This action is for collision between, the schooner pilot boat Hermit and the steamship Monterey, shortly after 4 a. m. of December 15, 1906, and some few miles to the southward of the Sandy Hobk Lightship. By the collision the Hermit became a total loss; the Monterey was uninjured.
The testimony has been wholly taken by deposition, and this decision is rendered without the court’s seeing or hearing any witness, and therefore without the great advantage always gained therefrom.
I am of opinion that the wind at and before the time of collision was a light breeze, sufficient, however, to give the pilot boat a movement with the wind abeam, or nearly so, of about four knots per hour.
The direction of the wind is in controversy, but it is so obvious that those upon a sailing vessel must necessarily pay the stricter attention to the wind’s direction that I have assumed that it was approximately southeast by south, as stated by libelants.
There was a very moderate sea, to which conclusion I am drawn by the admitted experiences of the shipwrecked crew after collision; when in a greatly overloaded yawl they evidently had no difficulty in making their way to the steamer, and pulling one of their number out of the water en route.
. The speed of the Monterey at the time of collision was small; indeed, I think she.had nearly stopped her way. This is shown by the ease with which the shipwrecked men in their yawl rowed to her, and also by the fact that, although the steamer' struck the schooner full on the starboard, while the yawl was trailing alongside' on the port, the shock of the blow was not sufficient tp swamp the yawl or interfere with most of the schooner’s crew stepping directly into it from the deck. The Monterey is 341 feet long, with a gross tonnage of 4,702; while the Hermit was but 80 feet long, with a tonnage of 70. And, if the larger vessel had not neai'ly stopped at the time of collision, I think it obvious that the Hermit would have been literally driven under the water, the yawl been swamped, and serious loss of life ensued.
The time of the collision can be very nearly fixed as at 4:03 to 4:05 by the Hermit’s clock, and at 4:06 by the deck time of the Monterey. In my computations I have used the time'of the Hermit’s clock, and assumed that the Monterey’s time was approximately two minutes faster. This has been done because the clock on the Hermit was favorably situated for observation by her navigators, and I perceive from the depositions no reason to impugn their honesty of intent in statements of time.
The evidence is singularly barren of estimates of distance, and such as are given do not seem valuable, for the night was very dark, though clear, so that lights could readily be seen, but the ships themselves were concealed from each .other until collision was inevitable. I do not think that the estimate even of an experienced mariner as to the distance at which he sees a light alone can be relied upon.
It is obvious from the record, and is indeed admitted by both counsel, that this collision could not have happened without either (1) such inattention on the part of the Hermit as laid her course directly *937across that of the Monterey.; or (2) from an unlawful change of course and maintenance of high speed, on the part of the Monterey, after the pilot boat began her endeavor to approach the steamer.
I do not think the charges against the Monterey are sustained, and find the schooner solely liable.
1. The Fault of the Hermit.
While a comparison of the courses given from the two vessels leads to the belief that there was some divergence between the reading of the Hermit’s compass and that of the standard compass on the Monterey, it is to me obvious that upon her own story the schooner must be condemned.
When the masthead light of the Monterey was seen Pilot. Warner was in diarge of the Hermit, lying hove to and heading east by south. He wore ship to head south by west half south, and steered along by the wind. lie then saw the steamer’s red light bearing about south by east a little easterly, and when she had burned a blue light be called the next pilot for duty (McCarthy) at 3 :3o a. m.
Por reasons entirely unexplained, McCarthy did not come on deck and take charge until 3 :50; and, when he did, his vessel was still beading south by west half west on the port tack, the wind was from the same direction as first above noted, and he saw the red light. Thereupon he maintained his course for a period which he states by the clock as seven minutes, and then took a bearing of the approaching steamer, and found she bore south southeast easterly, still showing her red light only.
It does not appear that Warner and McCarthy compared their respective bearings of the Monterey; but McCarthy states that, when he took his bearing, he thought the Monterey to be about a mile to a mile and a half dead to windward, and steering about north.
A comparison of bearings would have shown that the steamer was broadening off the Hermit’s port bow with considerable rapidity, and was therefore going at a good speed, and McCarthy’s own observation should have told him- that on her supposed course the Monterey would pass the Hermit (even if she had not worn) within rather less than two-thirds of a mile. Yet just when these facts were, or should have been, obvious, McCarthy decided to come up on the wind and sail to the eastward, in order to get still nearer the steamer before dropping his yawl; and he therefore gave the order to wear ship, hove his wheel hard aport, clamped it there, and selected this time to go down into the cabin, open the stove door, and pick up and repack his clothes, which the movement of the vessel had thrown upon the deck. This inopportune visit below occurred at 3:57 by his clock, and he feels sure that the collision happened not later than 4:03. He declares that before the collision he had time to get on deck and unclamp his wheel, which he says he continued to hold hard aport until collision was inevitable.
I cannot believe that in this effort he was wholly successful. He was bound to know that his vessel would wear with a continually increasing radius of maneuver as the wind bore more abaft, that eas*938ing the wheel would lengthen that radius, and that the then existing arrangement of the Hermit’s sails tended to produce forereaching.
The testimony of the other men on the Hermit induces belief that while McCarthy was below there was no lookout; and, indeed, it is hardly too much to say that no one was in charge of the schooner. Except for jibing the booms, she seems to have been left to sail herself, and when the green light of the steamer appeared it is evident that the observers on the Hermit are rather arguing that they could not have sailed across the Monterey’s course, than asserting that they did not. The maneuver was a delicate one at best, demanding close attention, as well as great skill, and I am convinced that the Hermit, by thoughtlessness on the part of the pilot in charge, and complete absence of proper lookout, was permitted to do that very thing.
2. The Faults Alleged Against the Monterey.
The difference in reading between the compasses of the two vessels is the probable reason why no diagram has been offered endeavoring to harmonize the courses stated in evidence. With the Monterey bearing south southeast a little easterly from the Hermit, some six to eight minutes before collision, and the Monterey steering north northwest (magnetic), there must have been some difference between the compasses seen, or collision would have been obviously probable to both in ample time to avoid it. As neither vessel says that this was the case, comparison of compass bearings must be abandoned, and the inquiry.becomes this: Did the Monterey change her course at or after the time that McCarthy on the Hermit began to wear ship?
By the largest estimate (i. e., on the supposition that the clocks on the two vessels were synchronous) this space was no more than nine minutes, and whatever would have been the' course indicated by the. Hermit’s compass had it been placed on the Monterey, or vice versa, I am convinced that the steamer did not change her course at any time after 8:53 by her own clock. On this.point I attach great importance to the fact that the watches were changed on the Monterey at 4 a. m., and can see no reason to doubt the testimony of the quartermasters that the course was laid as north northwest (magnetic) several minutes before the relieving quartermaster appeared in the pilot house.
It is often looked upon as a venial offense in a seaman to swear by his ship; but it is not believable that the two quartermasters on the Monterey could have withstood cross-examination, if it had not been true that the' course," maintained until collision was inevitable, had been established so long before 4 a. m. as to take from this litigation every element of danger by reason of any change of course on the part of the Montere)r. Within the well-known rules relied upon by the libelants (City of Washington, 92 U. S. 31, 23 L. Ed. 600; The Columbia [C. C.] 27 Fed. 704; The Alaska [C. C.] 33 Fed. 107; The Champagne [D. C.] 43 Fed. 444), a steamer approaching a pilot boat fulfills her entire duty by maintaining a reasonable speed and a fixed course. That does not mean that the course .shall be unchanged from the time when the vessels sight each other miles apart, but that it *939shall not be so changed as to embarrass the pilot boat in her endeavors of approach.
At 3:57 a. m. (or say 3 :59 a. m. Monterey time), the Hermit began to maneuver to approach the steamer. From that time'! think the steamer was hound to maintain a steady course, She did so, and liad been doing so for at least six minutes before.
The speed of the Monterey shortly before 4 a. m. was approximately 10 knots; her bottom was very foul, and she lost way quickly. Whether this was a convenient speed for taking on a pilot is immaterial, for, whether the Monterey’s speed was low or high, she was entitled to assume that the Hermit would not cross her bow. When the green light of the schooner appeared, it was, by all the testimony, too late to do anything, and whatever was done, or sought to be done, by either party after that moment, was in extremis.
Let the libel be dismissed, with costs.