[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 363
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 364 The principal fact in controversy upon the trial was, whether at the time of the collision, the sloop was drifting down the river with the tide, as described by the plaintiff's witnesses, without wind sufficient to give her steerage way, or whether, as the defendants' witnesses testify, she was sailing with a good breeze, on a course which would have carried her to the eastward of the steamer, and when within a few yards' distance, voluntarily changed her course so as to throw herself athwart the bow of the steamer. It being stated *Page 366 in the order appealed from, that the new trial was granted on questions of fact as well as of law, we have been compelled to examine the evidence with the view of determining, whether a new trial should have been granted on the ground that the findings of the referee were against the weight of the evidence.
If the collision occurred in the manner claimed by the defendant, the case is too clear for discussion. But if the plaintiff's version be the true one; if the sloop was becalmed and drifting with the tide, and the appearance of a change of course was produced, as stated by the plaintiff's witnesses, not by the action of the helm, but by a momentary puff of air, which threw her boom over to the eastward, and canted her bow to the westward, while she had no steerage-way, a more serious case is presented.
The referee has found this controverted fact in favor of the plaintiff. The court below, in giving the reasons for its decision, has not differed with his finding in respect to the circumstances of the collision; and after a careful examination of the testimony, we have come to the conclusion, that a finding in accordance with the plaintiff's version is not against the weight of the evidence.
Assuming then, as we must, that there was no wind, and the sloop was drifting with the current, we entertain no doubt as to the sufficiency of the evidence, to sustain the finding of negligence on the part of the defendants. From the circumstances of the collision, as testified to by the witnesses on the part of the plaintiff, the referee may have discredited the statement of Delamater, who was at the wheel of the steamer, and may have found, that he did not see the sloop in time to take measures to avoid her, or he may have found that, seeing her, Delamater omitted to change the course of the steamer, as he should have done. If there was any danger of the vessels coming together, it was the duty of the steamer to take action to avoid it; yet, although the sloop was seen by the men on the barges in tow at the distance of more than a mile, and one of the defendant's witnesses, who was on one *Page 367 of the barges, testified that the sloop appeared to him to be coming close to the barges, and that he took measures to provide against her colliding with the barges, it is not shown that the steamer did anything whatever, for the purpose of keeping out of the way, until the vessels were within twenty-five or thirty yards of each other, when she rang to stop her engine. The man at the wheel testified, that the steamer was then on the same course which she had been keeping for half an hour previously. It is evident that if there was no wind, the sloop could not have moved materially out of the course in which she was drifting, and that a change should, therefore, have been made in the course of the steamer, so as to clear her.
The defence must, therefore, rest upon the allegation of contributory negligence on the part of the sloop.
As we have already stated, we do not deem the evidence on the part of the defence, in respect to the wind and the movements of the sloop, so preponderating as to justify us in holding that the referee should have found that the sloop had a wind, and wrongfully or negligently changed her course, and that his finding to the contrary was against the weight of the evidence. But it is claimed on the part of the defendants, that conceding that the sloop was drifting with the tide, and not under the control of her helm, it was negligent to suffer her to proceed in that unmanageable condition, and it was her duty to come to an anchor.
This position is sustained, by the opinion of the majority of the court below, and is stated as the ground upon which the new trial was granted.
We cannot concur in this view. It is not sustained by authority; and the adoption of such a rule would materially, and it seems to us, unnecessarily embarrass sailing vessels, especially in the navigation of rivers. A sailing vessel should, unless special circumstances exist rendering it dangerous, be entitled to take advantage of a favorable tide as well as wind; and in a temporary calm, or when the wind is baffling, to keep in condition, to take advantage of any breeze which may spring up. She should not be compelled, when a regular *Page 368 current is carrying her toward her destination, to come to an anchor or lower her sails every time the wind slackens or fails.
If the current should be drifting her toward a stationary object, or one unable to keep out of her way, no doubt it would be her duty to anchor or take other measures to avoid collision. But in the navigation of a river, a sailing vessel owes no such duty to an approaching steamer to which she is visible, and which has motive power and sufficient room to enable her to keep clear. The steamer should judge of the course of the current of the river she is engaged in navigating, and by that means calculate the course of the drifting vessel and avoid it. (Pearce v.Page, 24 How. U.S., 228; Newton v. Stebbins, 10 How. U.S., 586; Crockett v. Newton, 18 How. U.S., 581; Laune v.Tourne, 9 La., O.S., 428; The Island City, 5 Blatchford, 264;Fretz v. Bull, 12 How. U.S., 466; The Fashion v. Ward, 6 McLean, 152.) A steam propeller with a tow, stands upon the same footing in respect to the duty of avoiding sailing vessels, as any other steamer. (N.Y. and Balt. Trans. Co. v. Phil. andSav. St. Navigation Co., 22 Howard U.S., 461.)
No special circumstances were shown in this case, which rendered it improper for the Westchester to take advantage of the favorable current to make progress on her voyage, or to keep her sails up to catch the occasional breeze. The river was upward of two miles in width; the channel upwards of one mile in width, and almost entirely clear of vessels. And although it was night there was clear starlight, and the sloop had her lights set, in a manner to indicate that she was under way. It does not appear that there was any deficiency in her equipment. Her master and crew were on deck; she had a proper lookout, and the speed of the current did not exceed two miles per hour. At the rate at which both vessels were progressing, those navigating the steamer could with proper attention, have seen the sloop approaching for a considerable time before meeting her, and made their calculations as to her course, based upon the condition of wind and tide. There *Page 369 was ample room, and the sloop had a right to expect that the steamer would pass her at a safe distance.
Assuming therefore, as we must, that the referee, in effect, determined that the collision occurred in the manner claimed by the plaintiff, and such finding not being against the weight of evidence, our conclusion is, that contributory negligence on the part of the plaintiff was not shown, and that the finding of the referee on that branch of the case should be sustained.
We have examined the various exceptions to rulings on questions of evidence, and do not find in them any sufficient ground for reversing the judgment.
The only remaining questions raised, relate to the damages. By the stipulation of the parties, but two items were left to be passed upon by the referee, viz., the value of the sloop, and interest. There was sufficient evidence to sustain his finding, as to the value of the vessel, and we think that interest on the value of the property lost was properly allowed. In cases of trover, replevin and trespass, interest on the value of property unlawfully taken, or converted, is allowed by way of damages, for the purpose of complete indemnity of the party injured, and it is difficult to see why, on the same principle, interest on the value of property lost or destroyed, by the wrongful or negligent act of another, may not be included in the damages. (PropellerMary Vaughan v. Steamboat Telegraph, 2 Benedict, 47; Sedgwick on Damages, p. 385, and cases cited; Walrath v. Redfield,18 N Y, 457.)
The order appealed from should be reversed, and the judgment on the report of the referee affirmed with costs.
Ch. J., GROVER and PECKHAM, JJ., concur; ALLEN and FOLGER, JJ., not voting.
Judgment affirmed. *Page 370