City of Washington

WOODRUFF, Circuit Judge. The preponderance of the evidence is, 1 think, clearly in support of the decree made in the court below. The pilot-boat, by her flash light, was seen from the City of Washington at a distance of several miles, and the testimony of the second officer and of the wheelsman of the steamship both show that they saw her movements, and saw that her course was such as would cross the course of the steamship. Other testimony from the pilot-boat shows that the repeated exhibition of the flash light must have apprized those on the steamer of her movement in that direction; and even the master of the steamer must have observed her near approach in that direction, when he saw the letting down of her yawl, to bring a pilot to the steamer, with a lantern on board. From that moment his attention was diverted to watching the approach of the yawl; and, even according to his testimony, the pilot-boat was then nearly ahead. He seems to have trusted to his own supposition, that, so soon as the yawl left her, she would put up her helm and fall off to leeward, (as he thinks she should have done,) and, therefore, paid no attention to her. But she in fact, continued her course, and the weight of the testimony is that she was in the act of crossing the course of the steamer when her yawl left her, if, in truth, she had not crossed it, so as to bring the steamer's port light into View. Under these circumstances, and with the knowledge of the course of the pilot-boat, most decisively established by the testimony of the second officer and wheelsman, and implied in that of the master of the steamer, it is impossible to say that the collision was in any degree due to the want of a mast-head light on tihe pilot-boat. It is equally clear, that the collision was due to fault in the navigation of the steamer. If, as the witnesses from the pilot-boat testify, the pilot-boat had crossed the course of the steamer, so as to bring the port light of the latter into view, before the steamer star-boarded, then the fault of such starboarding is manifest. If the pilot-boat was only ahead at that moment, still, as her course was to the port of the steamer, such starboarding was improper. In any event, it seems to me that the steamer was in fault, in not slowing, and, if necessary, stopping, at an earlier moment, and before coming into such dangerous proximity to the sailing vessel. Indeed, 800 upon the proofs, it was the duty of the steamer to stop to receive the pilot, attempting to board her in the night season. [NOTE. Claimant appealed to the supreme court. The grounds of the affirmance are thus summarized by Mr. Justice Clifford: “The court here concurs with the circuit court that it is impossible to say that the collision was in any degree due to the want of a mast-head light on the schooner, or to negligence on the part of those in charge of her navigation; on the contrary, it is clear that the steamship is guilty of both charges preferred against her by the libellants. She improperly starboarded her helm after the yawl was launched, and she continued to advance, whereas she should have stopped and backed, if it was necessary to back, to prevent any forward movement.” The City of Washington, 92 U. S. 31.] Left to my own unaided judgment, I should have deemed it an improper risk assumed by the pilot-boat, when approaching to place a pilot on board a steamer, to put herself voluntarily .and deliberately in tihe path of the steamer, to there lower her yawl for putting the pilot aboard. It would have seemed to me that taking such a position was unnecessary and greatly dangerous; but, the proof is, without contradiction, that this is the custom, and reasons are given for it which, to the witnesses, seem satisfactory. Doubtless, this custom proceeds upon an assumption that the steamer will stop to receive her pilot. Upon the proofs, as they stand, I am not able to find it a fault in the pilot-boat that she acted in conformity with this custom; and yet, I do not feel quite satisfied that it would not be wiser to take some other position. The libellants must have a decree for their damages found in the court below, with costs.