APPEAL from the Circuit Court for the Northern District of New York.
About nine o'clock in the evening of the 29th of November, 1869, heading east by north half north, the steam propeller Wenona was on her course down Lake Erie; her rate about ten miles an hour. The evening was somewhat dark and it was raining. There was a little mist on the water, but not enough to make what is called a fog. The wind was south, or south by east.
Going up the lake at the same hour, then, and for a half hour before, heading southwest by west half west, was the schooner Fr emont; her rate five or six miles an hour, all her canvas set, closehauled, though making some leeway.
Both vessels were well officered and had their proper lights properly stationed.
The vessels as they approached saw each other. The steamer saw that the vessel coming up was a sailing vessel, and the schooner before long saw that the vessel coming down was a steamer. The schooner kept on her course till a certain moment, when she changed her course. The steamer kept on her course till a certain moment, when she changed hers also. A collision took place, and the schooner with her cargo went to the bottom of the lake; her officers and crew having barely time to escape with their lives.
Her owner hereupon libelled the steamer in the admiralty. The question in the case was a pure question of fact. Did the steamer change her course, as she was bound by the rules of navigation to do, in time to enable the schooner safely to keep on hers? Did the schooner, when she changed her course, change it because the vessels had got so near that a collision seemed inevitable if she did not do so?
The question, of course, was to be decided by the evidence.
The LOOKOUT, on duty at the time, was examined; a man who had been a sailor for fifteen years, eleven of them on the ocean, and the rest upon the lake. He said:
'I was forward on the vessel. Our course was southwest by west half west. I saw the propeller's light; at first a bright light, right ahead. I reported it to the officer of the deck. He answered, and said 'I see it.' A minute or two afterwards I saw green and red lights; and I reported to the mate that there was a steamer ahead. The mate lit the torch and made a flash light. It was lit twice. It was a turpentine torch, and made a flash for two or three seconds. I watched the lights on the steamer; they appeared to me dead ahead, and seemed, if anything, to be gaining a little to the windward, until they opened out to our port bow, which was our weather bow. I could then see the red and bright light but not the green. The next thing I could see was that her green light shut in for a short time; and I saw the red and bright light but not the green. Then both green and red opened out brightly, and the vessel seemed to be coming down on us; and to be not more than three times her own length from us, perhaps not that. I called the men below, to come on deck and to look out for themselves. In four or five minutes from the time I saw the bright light as near as I can give it-it might have been more or less-it could not have been many minutes more-the steamer struck us between stem and cathead; at an angle of something more than forty-five degrees. She was under way and came stem on.'
The MATE, whose business for twenty-eight or twenty-nine years had been sailing, said:
'The captain came on deck as the second torch was lit; whether he or the cook lit it I can't say; one or the other. The propeller was then pointed right to us. The schooner's course had not been changed. Her course was south west by west half west. I know that from the compass, and I am swearing from what I know of the compass course. She had been on that course since a little after eight o'clock. She kept on that course till the time the captain came on deck. When the propeller was standing right over us the captain gave order to the man at the wheel to 'hard aport."
The WHEELSMAN, who had been for three years on the ocean, for ten upon the lakes, and for the last-mentioned term in the habit of steering, said: