THE COLUMBIA.
715
not oe rationally accoonted for. At 12: as the pilot-hoat bore a little less than two points off the Alaska's port bow; and had she been coming up on her general coorse, N. by E. E., and the Alaska in the mean time moved as slowly as claimed, the pilot-boat would have borne, at 12: 06, two minutes before, nearly four points off the Alaska's port bow, instead of two, uS the Jog states. Had the pilot-boat, however, during these two minutes, come upon a course of N. E. by E. so as to preserve bel' bearing of two points off the Alaska's port bow, thRn, having the wind aft., her speed would have been increased, and on luffing suddenly just before 12: 08, within 500 or 600 feet of the Alaska, she would have come ronnd so rapidly as to cross the line of the Alaska's path, not 250 feet distant, in less' than half a minute, instead of three minutes. Luffing suddenly from such a course, her speed would not be much checked, and she woulcl continue at rapid speed till she headed north; nor could she have been kept for three minutes from crossing the Alaska's path without being brought to a stop for a considerable interval. Not only does the testimony, as I have said, show that there was no such stop, but such a mode of navigation for a pilot-boat designing to launch her yawl ahead of the steamer would be in the highest degree improbable. She would naturally check her course gradually as she approached the steamer's head by a gradual, not a sudden, luff. All the difficulties above referred to proceed really from two assumptions on the Alaska's part: First, too little speed; second, too much time after the engines were reversed. Correct these, and all the difficulties vanish. 2. As regards the time, I have already observed that the entry in the log, "about two minutes," was evidently an estimate only. The evidence shows that when the engines were reversed collision was apprehended. Experience proves that persons expecting disaster, and not busily employed, overestimate the time. It is natural, therefore, that this interval, then estimated at "about two minutes," should have been much overestimated. It is probable that the time was not over one minute. The fact that the pilot-boat did not stop, and was less than two points off the port bow at 12: 08, and yet did not clear the steamer, makes it difficult to believe the interval was over a minute. If it was not, the order to reverse would have had little . effect. Other circumstances confirm this view. At 12: 08, when the officers first perceived that the pilot-boat meant to cross the Alaska's bow, the commander exclaimed: "My God! what is that man trying to do?" The first officer exclaimed: "By Jove! that man will be into us; I never saw such a thinK in my life!" These exclamations show apprehension of immediate collision; but as the pilot-boat was then less than two points off the Alaska's port bow, and seemed to those' officers to be from 250 to 500 feet distant, and had to run only half the distance to reach the point of intersection that the Alaska had to run, it is difficult to see wily they
t
716
FEDEr-AI, REPORTER.
should have had such apprehension of collision if the Alaska a.t that moment was not running over two knots, as they estimate. The officers were not then aware that the pilots were intending to launch the yawl ahead. I think it was the Alaska's own speed that made the danger, and the apprehension, of collision; and hence the immediate order, "Full speed astern." Again, the log shows that the Alaska continued backing at full speed from two to three minutes after the collision. Had her headway been stopped, or nearly so, at the moment of collision, there would have been no need of backing so long; for that would have carried her far astern of the capsized yawl sought to be reached. But it was precisely what she would have done had her speed at the moment of collision been some four knots. Again, when the. lines thrown to the men failed to reach them, a seaman ran almost the whole length of the ship, nearly to the stern, where the buoys were kept. and lighted one, and threw it over. This must have occupied at least a minute from the time of the collision. The master estimates from one to two minutes. The yawl and the men had already gone astern, and the evidence shows that the buoy also went first astern, proving that the steamer had headway even a minute after collision, and after two minutes backing. The buoy was soon afterwards overtaken and passed, through the continued backing of the ship, so that it was then seen abeam or forward of abeam. 3. The drifting of the wreck on each side of the Alaska at the rate of from four to six knots is in my judgment far too great to be ascribed to the winds and waves in an ordinary gale. The hull began to sink immediately after the collision, and no rapid drifting was possible after the hull was under water. The capsized yawl, and the spar with the men clinging to them, could not drift at such a rate, even if exposed to the wind; but they were out of the wind in the lee of the ship. The evidence also shows that the different parts of the wreck passed along on both sides of the ship at about the same rate, and appeared opposite the bridge at about the same moment. Only one cause can account for this, viz., the forward motion of the Alaska. 4. Nor can I accept the Alaska's suggestion that instead of encountering her stem the pilot-boat was capsized and smashed in by . drifting or being tossed sideways against the Alaska's bow just aft of the stem. The log says the collision was with the stem. One of the officers says the pilot-boat at the collision was right ahead; though another says her light, which was probably on her mainmast, was a little to starboard. When seen a few seconds afterwards only one mast was visible; the other had already disappeared. That must have sunk almost instantly. This does not seem to me likely to have arisen from the pilot-boat's being merely thrown on herbearn ends on being tossed by a wave against the Alaska's bow; but from beiIig
THE COLmIBIA.
717
cut through by the Alaska's stem when the latter was under consid· erable headway. 5. The testimony as to the quick-water is of slight weight, because the time when it was observed is easily liable to be mistaken.. A selilman testified that he saw the men drawn down by the quick-water amidships; but Mr. Challoner, some 200 or 300 feet further aft, saw the men still drifting astern rapidly. So the purser may have been mistaken as to the time of seeing the quick-water, or have mistaken for that the commotion of the sinking vessel. o. The estimates by which the Alaska's speed is arrived at by her witnesses are not convincing, when opposed by so many circumstances and so many contrary indications. It is significant, moreover, that not one of the Alaska's officers testified to her ordinary speed when her engines are working at "half speed" or "slow." In the absence of all testimony On the subject, it is scarcely credible that the commander and all the officers are alike ignorant on this point. To omit direct evidence, and to resort to the computations of a mechanical engineer who never saw the ship, based on the engineer's estimates of the number of revolutions per minute, that were not entered in the log, is a substitution of a very inferior kind of evidence, when much better was presumably in the claimants' power. In other cases the rates of steamers at "half speed" and "slow," as compared with their "full speed," has been often proven before me by the direct evidence of the officers who knew the facts. In no case that I recall have these rates been so much reduced comparativelyas the estimates in the present case would make them. what is called "half speed" is fully two-thirds of "full speed;" and "slow," about half of "full speed," and that is so in other steamers of the size of the Alaska; and in fair weather, or in a moderate gale, the proportions remain about the same. These usual proportions, applied to the Alaska, would agree with all the other indications in giving her a speed of from six to seven knots at 12: 00, and about four knots at 12: 09. Had the officers of the Alaska supposed that the Columbia intended to cross her bows, and go to windward, instead of porting her helm and going to leeward, as she approached the Alaska, no doubt the order to reverse the engines would have been given earlier, and her speed would have been brought down to the proper minimum. The master testified that the night was "a good one for seeing lights, but bad for estimating distances." Mistake as to the pilot-boat's distance through this cause probably contributed also to the delay in reversing the engines. The master's estimate at 12: 06 that the pilotboat was nearly a mile distant was from two to three times too great. The mistake was a nat Jral one, as the pilot-boat was a small object. It was partly from this cause, I think, and partly because the intention of the pilot-boat to keep her course and cross the Alaska's bow was wholly unexpected, that the Alaska's speed was not brought to a.
718
FEDERAL REPORTER.
substantial stop. Notwithstanding the emphatic testimony of the officers of the Alaska and others, the crossing of the steamer's bows in this manner has been practiced by pilot.hoats so long, and the duty of comin!{ to a substantial stop for the purpose of taking on pilots is so well settled, that the Alaska cannot be held legally justified in assuming, up to nearly the last moment, that the pilot-boat would change her course, which was obviously across the Alaska's bow, and on that ground be exempted from the duty of coming substantially to a stop. It was the duty of the Alaska to reduce her speed nead)' to a stop, so as not to imperil the pilot-boat in any method of approach the pilots might think advisable. It is not unlikely, on the other hand, that the pilots, at about 12: 06, when about one-third of a mile distant from the Alaska, being then about 1,000 feet from the line of her path, in consequence of the great size of that vessel, made the opposite and equally natural mistake off ahe really was. Thus of supposing her to be only half the erroneously believing she was within some 500 feet of the steamer's track, instead of about 1,000 feet from it, the pilot boat would luff when too far away, in order to reduce her speed as usual, so as to launch her yawl. Having twice as far to go as estimated. and being therefore unexpectedly delayed in getting almost ahead of the steamer before she could launch the yawl, aided as this mistake would be through the steamer's constant veering to the northward, the pilot-boat's speed at length would become insensibly so much reduced that, when she did get nearly ahead of the steamer, the latter, coming on under moderate head way, instead of being nearly stopped, the pilot-boat probably had not speed enough remaining to admit of the usual and necessary dexterity in handling, so as to fill away quick enough to escape. The evidence shows that she did bear away, but not in time to clear the steamer. 'l'hese views of the probable courses and speed of the two vessels fulfill all the conditions of the best data in the evidence; viz., the recorded bearings and times, and violate no natural probabilities. No other view that has been presented to me does this, and on careful study I have not been able to discover any other that does so. Second. I must hold it a further fault in the Alaska that, ha:ving first starboarded so as to approach the pilot-boat in the proper direction, she afterwards ported, and under a port helm kept veering to the northward up to the moment of collision; thus delaying and thwarting the expectations and the maneuvers of the pilot. boat to launch the yawl, and then get away. Precisely similar was the course of the steamer that was condemned by the supreme court in the case t)f The Oity of Washington. But for this latter fault the pilot.boat, notwithstanding the Alaska's too great speed, would have gone clear. course was crossing that of the The fact that the pilot-boat's Alaska was certainly known. It was the Alaska's duty to come as near to a stop as praoticable, and leave the rest to the pilot-boat.
719 Third. The evidence of the expert pilots in the present case shows fault on the part of the Columbia. They testify that so long as the leeward light only of the steamer is seen, or if she seems to be keeping away, or if the steamer is perceived to be under any considerable headway, no attempt should be made at night to launch the yawl ahead, and cross to windward; that such a maneuver could not be justified; and that when the failure to make the windward light shows that the steamer is keeping off, the pilot-boat should also keep off safe to leeward, and not attempt to launch the. yawl ahead. 'l'his is certainly reasonable, and I cannot doubt its truth. This evidence materially modifies the custom relied on in the case of The City of Washington. Since the date of that case the usage may have been changed somewhat with reference to vessels of the class of the Alaska. The Alaska. upwards of 7,000 tons burden, is at least twice the size of that steamer. With the powerful electric lights now employed by such steamers, and with the general lighting up of the whole ship, when the Alaska approached within a quarter of a mile, I cannot resist the conclusion that the fact that the Alaska was under considerable headway ought to have been apparent to the pilot-boat. In my judgment the steamer at that time at the rate of five or six knots. must have been Acareful watch would have shown that she was not at rest, nor nearly so. In a gale, moreover, such as then prevailed, I should hesitate to find upon the evidence here that a vessel like the Alaska was required to come to a perfect stand-still in the water. The evidence shows that is not now expected. She would very quickly become unmanageable, and fall off into the trough of the sea,-a situation that. no pilot would expect her to assume. Neither the supreme court nor the circuit court, in the case of The Oity of Washington, declare it to be the duty of a steamer to come to an absolute stop, unless necessary; and the testimony here shows that an absolute stop was not necessary. In the case of McLaren v. Compagnie Franca'ise, 9 App. Cas. 640, referred to by counsel, the statement of the head-note is not sustained by the opinion; and that case, moreover, was one ofordinary navigation, not one in relation to the exceptional conditions arising between a steamer and a pilot-boat. I can bave no doubt that the pilot-boat was designing to launch her yawl when ahead of the steamer; becll.uBe there was plenty of time and space for her to cross to windward, and round the Alaska's stern, and there launch the yawl, had that been her intention. Not doing that, nor sailing to the steamer's lee, she must· have designed the only remaining course of launching the yawl ahead. Such a course was dangerous and unjustifiable in the gale of that night, even if it be ever justifiable in the night-time. It was still further unjustifiable, and a fault, to persist in this design when she failed to make the Alaska's green light, owing probably to the Alaska's greater distance than supposed, and to her veering to the northward, until her own speed was so re-
720
FEpEIlAL REPORTER.
duced that she could not be handled with the dexterity that is usual and necessary in order to avoid the steamer in such a maneuver. Fourth. Dnder the circumstances of this case, and the difficulties of obtaining evidence of the facts, I must hold that the libelants did not delay beyond a reasonable time before filing the libel on the thirteenth of November, 1884; and that there was no such laches as should discharge the steamer from the maritime lien acquired less than a year previous, in consequence of the transfer in the mean time of the title of the Alaska.. by Mr. Guion to Mr. Pearce, in October, 1884. It appears that Mr. Pearce, her builder, had claims upon the ship, secured by mortgage, for a great proportion of her value. In the final settlement upon the repurchase, as I understand, be advanced to Mr. Guion about £7,000 cash, besides canceling his other claims. Although the libel had not been filed at the time of this settlement, the accident was notorious; and the possible liability of the Alaska was a circumstance that could scarcely have escaped any reasonably diligent inquiry, had Mr. Pearce desired to aflcertain all possible outstanding liens, and made reasonable inquiries in that regard. See cases reviewed in The Bristol, 11 Fed. Rep. 156 j affirmed, 20 Fed. Rep. 800. F'ifth. As respects the right to recover damages in admiralty for the loss of life by the wrongful conduct of vessels on the high seas, some differences are found in the adjudications. It has been repeatedly discussed in its various aspects, and it is understood that the question is now pending in the supreme court. Awaiting the result of the determination of that court, and without referring to the common-law authorities, I shall hold in this case, as seems to me most consonant with natural equity and justice, that the pecuniary loss sustained by persons who have a legal right to support from the deceased furnishes a ground of reclamation against the wrong-doer which should be recognized and compensated in the admiralty. Gutting v. Seabury, 1 Spr. 522 j Plummer v. Webb, 1 Ware. 75; The Sea Gull, Chase, 145; The Garland, 5 Fed. Rep. 924; The Harrisburg, 15 Fed. Rep. 610; The E. B. Ward, .Tr., 17 Fed. Rep. 456; S. C. 23 Fed. Rep. 900; The Manhasset, 19 Fed. Rep. 430; The Oityof Brussels, 6 Ben. 370. A decree may be entered for the several libelants to recover half their damages, with costs, and a reference taken to oompute the amount.
BEALS V. ILLII\OIS, M. & T. R. CO.
721
BEA"LS
V.
ILLINOIS, M. & T. R. CO. and others. l
(Circuit Court, E. D. Missouri. April 15, 1886.) CORPORATIONS-BoNDS-DEED
A decree declaring a deed of trust and bonds secured thereby invalid, entered in a suit to which the trustee named in such deed of trust is joined as a party defendant in his individual capacity, cannot be attacked on the ground of fraud and collusion, after the property has been transferred for value to a purchaser without notice, by a bondholder who was not made a party, in a suit to have such property applied to the payment of his bonds.
OF
TRUST-DECREE DECLARING VOID-FRAUD.
In Equity. Motion by defendant for decree on bill, plea, and replication. This is a suit brought against thl:l Illinois, Missouri & Texas Railway Company, the Cape Girardeau & State Line Railroad Company, the Cape Girardeau Southwestern Railroad Company, and others, by the complainant, as owner of 68 outstanding conpon bonds, issued by the Illinois, Missouri & Texas Railway Company, and secured by a deed of trust upon all the property and franchises of the Cape Girardeau & State Line Railroad Company. The complainant alleges that he purchased said bonds in good faith, for value, and without notice, before they were due, and that interest thereon is past due, and unpaid; and he asks that the property covered by said deed of trust be applied to the payment of his bonds, and for other relief. It appears, however, from the bill and other pleadings, that the bonds in suit here, together with all others of the same issue, and the deed of trust securing them, have been held by the circuit court of Cape Girardeau county, Missouri, to be void, as against the Cape Girardeau & State Line Railroad Company, in a suit brought by said compl'tny for the purpose of having them declared void, and in which the Illinois, Missouri & Texas Railway Company, Frederick Winston, the survivor of the trustees. named in said deed of trust, and all known bondholders, were joined as defendants; and that the Cape Girardeau Southwestern Railway Company purchased all the property described in said deed of trust from the Cape Girardeau & State Line Railroad Company, for value, after said decree WIl,S entered in Baid suit, and without notice of any fraud or collusion in obtaining it.· The present complainant claims that said decree was in fact procured by collusion and fraud; and that he was not a party to the suit in which it was obtained, and was not represented therein by sl1.id Winston, because, though the latter was joined as a party defendant, it was in his individual capacity, and not as trustee, and was not served with process, and did not plead as trustee, but only as an individual, and failed to make any defense to the suit in his capacity as trustee, though he knew that said bonds were lawfully issued, and lReported by Benj. F. Rex, Esq., of the St. Louis bar.
v.27F.no.11-46