author: ROGERS, Circuit Judge

text:
    THE BUENOS AIRES. WEST INDIA OIL CO. et al. v. COMPANIA TRANSATLANTICA DE BARCELONA.
    (Circuit Court of Appeals, Second Circuit.
    December 15, 1924.)
    No. 63.
    1. Collision <s=343 — Sailing vessel privileged vessel as against steamer.
    Under International Rules, arts. 20, 22 (Comp. St. §§ 7859, 7861), a sailing vessel, except when the overtaking vessel, is always the privileged vessel, as against a steamer, and it is her duty to hold her course and speed; a steamer in such case, being the burdened vessel, required to keep out of sailing vessel’s way.
    2. Collision <®==>45 — Sailing vessel not at fault because it changed its helm when it became' evident that steamer would not keep out of sailing vessel’s way.
    Sailing vessel, which changed her helm just prior to collision with steamer, when it became evident that steamer would not keep out of vessel’s way, as required by International Rules, arts. 20, 22 (Comp. St. §§ 7859, 7861), held not at fault merely because it changed its helm.
    3. Collision <®==43 — Steamer required to stop and reverse on discovery of sailing vessel ahead without definite knowledge as to its course.
    Steamer on discovery of sailing vessel ahead, without definite knowledge of its course,'’ was required to stop and reverse in the face of the manifest danger.
    4. Collision <§=>75 — Vessel which fails to see lights is liable for resulting collision.
    Vessel’s failure to see lights on' other vessel, properly set and burning, where due to want of vigilance, renders it liable for resulting collision.
    5. Collision <§=>79 — Evidence held to sustain finding that collision hetween steamer and sailing vessel was fault of steamer in not keeping lookout.
    In libels for damages sustained in collision between steamer and sailing vessel, evidence held to sustain findings that lights of vessel, required by Comp. St. §§ 7836-7841, were burning properly, and that steamer was at fault in not keeping proper lookout so as to discover vessel and permit her to hold her course, under International Rules, arts. 20, 22, being Comp. St. §§ 7859, 7861.
    6. Evidence <§=>586(3, 4) — Positive evidence entitled to greater weight than negative evidence^ on issue whether lights of ship were burning properly.
    Positive evidence of persons on ship that lights of ship were burning properly is entitled to greater weight than negative testimony of witnesses on other vessel that they did not see lights.
    7. Collision <§=>108 — Sailing vessel held not at fault for directing course to port just before collision with steamship.
    Sailing vessel, sunk in collision with steamer, was not at fault merely because she directed her course to port just before collision, since she was entitled to keep her course in reliance on steamship’s duty to keep out of way, and fault committed in attempt to escape from peril of collision was in extremis, and imposed no liability. .
    8. Collision <§=>77 — Duty as to lookout, stated.
    Under International Rules, art. 29 (Comp. St. § 7868), a vessel is bound to have a proper and reasonable lookout placed at. point best suited for purposes of hearing and observing the approach of objects likely to come into collision with vessel.
    9. Admiralty <§=>28 — Spanish vessel held liable in action in rem for death of seamen, in collision due to vessel’s fault.
    Under Act March 30, 1920, §§ 1, 4 (Comp. St. Ann. Supp. 1923, §§ 1251%, 1251%e), vessel at fault was liable in action in rem for death of seamen as result of collision, though such vessel was a Spanish ship and there was no such right of action in rem under the Spanish law.
    Appeal from, the District Court of the United .States for the Southern District of New. York.
    Consolidated libels by the West India Oil Company and others against the steamship BuenosaAires, her engines, etc.; the Compania Transatlántica de Barcelona, claimant. Decrees for libelants (286 F. 251), and claimant appeals.
    Affirmed.
    This cause comes here from the United States District Court for the Southern District of New York.
    A libel was filed by Harold Sturges Rankin, as administrator of the estate of Donald MacDougald, deceased, against steamship Buenos Aires.
    A libel was also filed by Harold Sturges Rankin, as administrator of the estate of Costa Fridolf Persson, deceased, against Buenos Aires Compania Transatlántica de Barcelona.
    A libel was also filed by Royal O. Bach-man and Bert Penoyer Burgess, as coadmin-istrators of the estate of Julian Bachman, deceased, against Buenos Aires Compania Transatlántica de Barcelona.
    There was likewise a libel filed by Thomas Shepard managing owner of the bark Wind-rush against steamship Buenos Aires, Com-pania Transatlántica de Barcelona. And there was a cross-libel, filed by Compania Transatlántica de Barcelona, owner of the steamship Buenos Aires, against Horace Shepard and others, owners of the bark Windrush.
    A libel was filed by the West India Oil Company of New Jersey against steamship Buenos Aires. This suit the libelant brought as owner of the cargo of the bark Windrush.
    And these various libels were by an order of the court consolidated into one cause under the name and title of West India Oil Company, steamship Buenos Aires, and bark Windrush. This order was entered on June 28, 1922.
    The suits all grew out of a collision between the Buenos Aires and Windrush on the morning of May 10, 1920, which resulted in the loss of the bark, her carg’o, and the lives of five of the bark’s crew. The collision occurred about 1,000 miles south and east of Sandy Hook. It happened at 2:45 a. m. Windrush time and at 3:15 a. m. Buenos-Aires time.
    A large amount of testimony was taken, the record covering 1,058 printed pages. A final decree was entered on February 21, 1924. It ordered, adjudged, and- decreed tó the West India Oil Company the sum of $261,136.47 damages and interest and $203.-45 costs, amounting in all to the sum of $261,339.92. It decreed to the administrators of the estate of Julian Bachman $6,090, damages and costs.

      It decreed to the administrator of Gosta Fridolf Persson $3,503.10, damages and costs.
    It is decreed to the administrator of Donald MaeDougald, $8,589.60, damages and costs.
    All these decrees were to carry interest from the date of the entry of the decree until paid.
    The cross-libel filed by Compania Transat-lántica de Barcelona was dismissed with costs.
    From this decree an appeal was taken to this court.
    Hunt, Hill & Betts, of New York City (Geo. Whitefield Betts, Jr., and George C. Sprague, both of New York City, of counsel), for appellant Compania Transatlántica.
    Bingham, Englar & Jones, of New York City (T. Catesby Jones, of New York City, of counsel), for appellee West India Oil Co.
    Burlingham, Veeder, Masten & Fearey, of New York City (Chauneey I. Clark, of New York City, of counsel), for the Windrush.
    J. Harvey Turnure and Eustace Conway, both of New York City, for appellee administrator.
    Before ROGERS, HOUGH, and MAN-TON, Circuit Judges.
   ROGERS, Circuit Judge

(after stating the facts as above). The collision complained of occurred in the Atlantic Ocean on the morning of May 10, 1920. The steamship Buenos Aires was a passenger steamship carrying 698 persons on board and was on its way from Cadiz, Spain, to New York City. It was a Spanish owned vessel and was proceeding on its course at a speed of about 9% knots per hour when it discovered the bark Windrush almost directly before it, and which it had not before seen. A collision resulted between the two vessels, and the Windrush was sunk. It was an American vessel built in England in 1892, and classed by Lloyds ás 100-A-l. The bark sailed from the port of New York and was bound for the port of Montevideo, Uruguay, with a full cargo of refined- petroleum. The whole cargo was lost and five out of eighteen members of her crew were either drowned or died of exposure.

The libels are on behalf of the owner of the bark, the owner of the cargo, and the administrators of the sailors who lost their lives.

The libelants claim that the collision was due solely to the fault and neglect of those in charge of the steamship Buenos Aires. The steamship alleges that the collision was not due to any fault or negligence on the part of her owners, officers, or crew, but solely to the fault, negligence, and lack of care of the owners, officers, and crew of the Windrush.

The Buenos Aires was the burdened vessel and the Windrush the privileged one. A sailing vessel, except when it is' the overtaking vessel, is always the privileged vessel as against a steamer, and it is her duty to hold her course and speed. Article 20 of the International Rules (Comp. St. § 7859) is as follows:

“When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel.”

Article 22 of the same rules (section 7861) is as follows:

“Every [steam] vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.”

See the following eases: The Carroll, 8 Wall. 302, 305, 19 L. Ed. 392; The Illinois, 103 U. S. 298, 299, 26 L. Ed. 562; The Lafayette (C. C. A.) 269 F. 917; The Stifinder (C. C. A.) 275 F. 271; La Boyteaux’s Rules of the Road at Sea, 135. The general rule requires a sailing vessel meeting a steamer to keep her course, and it is the steamer’s duty to keep out of the sailing vessel’s way. “The rule creates a mutual obligation, whereby the sailing vessel is required to hold its course in order that the other may know its position, and not be led into erroneous maneuvers in endeavoring to comply with the requirements of the rule.” The Europa (D. C.) 116 F. 696, 698; The Free State, 91 U. S. 200, 23 L. Ed. 299; The Scotia, 14 Wall. 170, 181, 20 L. Ed. 822. In this case the Windrush obeyed the rule and the Buenos Aires disobeyed it. It is true that the Windrush changed her helm. But this she did not do until just prior to collision when it became evident that the Buenos Aires was not observing the rule and would collide with her unless she could in some way make her escape. If the Wind-rush in the extremity of collision changed her helm, it cannot be attributed to her for a fault.

The rule which requires a steam vessel to keep out of the way of a sailing vessel when proceeding in such directions as involve a risk of collision seems to have been a rule of navigation in the United States as long as steam has been used as a motive power. The reason lies in the fact that the motive power of the steamer is under human control and is at all times available, while the motive power of the other is not. As was said by Judge Sprague in The Osprey, 18 Fed. Cas. 884, No. 10,606: “The wind bloweth not only where it listeth, but when it listeth. * * * It may suddenly come ahead, or wholly cease; and in the latter case, she [the sailing vessel] would be helpless.” And see The' Leopard, 15 Fed. Cas. 351, No. 8,264; The Northern Indiana, 18 Fed. Cas. 351, No. 10,320.

The libelants’ witnesses testified that the night was clear with the moon shining about 20° above the horizon, the last quarter of the moon not having come; that few stars were visible and light cirrus clouds hovered in the sky.

The witnesses testifying for the Buenos Aires said that the moonlight was visible at times only; that nimbus clouds floated across the sky, covering the moon at times and interfering with visibility. They, however, admitted that the night was good for observing lights.

It was the duty of the Buenos Aires when she discovered the Windrush ahead, without knowing definitely the course the latter was pursuing, to stop and reverse in the face of the manifest danger of the situa^ tion. In The Cushing (C. C. A.) 292 F. 560, 563, 565, this court held that the failure of the steamer to stop and reverse her engines in the face of danger was sufficient to fasten liability upon her. We there said:

“Failure to reverse until just before the collision is indicated by the log. Steam vessels must stop their engines in the presence of danger, or even anticipated danger, and the failure to do so has been the cause of condemnation of many vessels, where collisions have occurred. The New York, 175 U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126.”

And in The Diana (D. C.) 181 F. 263, affirmed 194 F. 1021, 114 C. C. A. 654, the court (at page 265) says:

“If the boats [steamer and bark] were in such position that there was not time to correctly ascertain what course the bark was holding, and to estimate whether the steamer could go to port or should proceed across the bark’s bows, then the steamer should have stopped and reversed so as to lessen the danger of the position.”

The failure to see lights when properly set and- burning, where due to want óf vigilance, renders the vessel liable for a resulting collision. The John Rugge, 234 F. 861, 148 C. C. A. 459; The W. H. Gilbert, 232 F. 547, v146 C. C. A. 505; The David C. Ritecy (D. C.) 223 F. 179; The Number 32, 170 F. 932, 96 C. C. A. 148.

It appears that for some time prior to the collision and at the time thereof the Wind-rush was proceeding with all her sails set except her royals, fore-top-gallant sail, flying gib and gaff topsails, all of which were furled. It also appears that the second mate,, who was in charge of the watch, was aft; that a seaman was at the wheel; and that a competent lookout was stationed forward on the forecastlehead.

It is claimed on behalf of the Windrush that she was, prior to and at the time of the collision, displaying the regulation red and green side lights, which had been lighted at sundown on the evening before. But it was alleged by the Buenos Aires, in the answer which was interposed, that no lights were displayed^by the Windrush or were visible to those on the Buenos Aires at any time.

The statute required the bark to exhibit a proper red light on the port side and a green light on the starboard side visible for a distance of two miles. Comp. St. §§ 7836-7841. The court below has found as a fact that the lights of the Windrush were burning properly. We are convinced of the correctness of t£at finding. The sailor whose duty it was to care for the lights on the Windrush, and who was detailed as lamp trimmer, and who cleaned the lamps, testified that the binnacle lights and the lamps used about the deck were cleaned every day and the running lights every other day. On his cross-examination he testified as follows :

“Q. Of course, you took good care of them, didn’t you? A. Certainly, I would hear about it if anything went wrong with them and the mate would find out about them.
“Q. Was the mate likely to find out about them? A. Yes.
“Q.'How? A. Every half hour a bell was struck aft at the wheel; the wheelman, struck the bell every half hour; the man on the forecastlehead, the lookout man — every time he struck the bell he had to report the lights, and he would sing out when the bell was struck, ‘The lights are burning bright,’ and the mate would answer, ‘All right.’
“Q. Did the mate make any inspection to see if they were burning bright? A. No.
“Q. Then it wasn’t certain that he would ascertain any default on your part in earing for the lamps? A. Why, yes; it is because if the lamps were out the lookout would let him know they were out.”

- The witness, whose testimony shows him to have been truthful, testified on his direct examination as follows:

“Q. Can you tell me now when the lamps, particularly the running light of the Wind-rush, were trimmed by you previous to the ■collision? A. No, I am not absolutely sure whether it was that day or the day before; 1 couldn’t say; I am not positive.
“Q. It was your custom, was it, to trim them every other day? A. Every other day.
“Q. And you can’t recall now whether you ■cleaned them the day before the collision or the day before that? A. No.
“Q. What was the condition of those lights? A. They were in good condition.”

This testimony was given nine months after the accident happened. But the steward on the Windrush testified positively that he saw the man cleaning the lights on the afternoon before the collision. He was asked: “You are sure you saw him that afternoon?” To which he answered, “Positive.”

And the lookout on the Windrush testified that the lights on the bark were burning brightly just before the collision. He testified as follows:

“Q. Did you look at them (side lights) at 2 o’clock? A. Same as usual. “ * 4 They were bright.
“Q. Now, when did you notice the side lights again after 2 o’clock? A. Well, I keep looking always about every five minutes, and then at half past 2 it strikes five bells.. Then I reported to, the second mate, v I sang out, ‘Light burning bright, sir.’
“Q. You personally looked at your lights and saw that they were burning at 2:30 ? A. Yes. 51 s '5
“Q. Were they burning brightly? A. Yes. ° ~
“Q. When did you last see that side light lit before the collision? A. Just about a couple of seconds, about a minute.”

The appellant contended first that the bark’s lighthouses were improperly constructed. It was proved that they were properly constructed. It then contended that the burners were improper for use in the lighthouse because no chimneys were used. It was proved that the burners were proper. It then contended that the lights were smoky. It was proved that they were not smoky. It then contended that the method of cleaning and trimming was improper, and that the lamp trimmer did not use a suitable instrument. The court found ■against the Buenos Aires on all of these contentions and we concur in all those findings.

The testimony is convincing that the bark’s side lights were lighted and burning brightly up to the moment of collision. When the lookout on the bark went on duty on the forecastle at 2 a. m., which was about three-quarters of an hour before the collision as those on the bark insisted, the lights were burning brightly. At 2:30 a. m. he reported to the second mate that the lights were burning. He testified as follows:

“Q. You personally looked at your lights and say that they were burning at 2:30 ? A. Yes. .
“Q. Did the mate come up after that and look at them? A. He was once there and looked.
“Q. And you looked at both red and green lights? A. Yes.
“Q. And you saw that both were burning? A. Yes.
“Q. Were they burning brightly? A. Yes, when I see the steamer come closer, and didn’t change her course, I was looking all the time. Always when a steamer passes at sea, she keeps away, miles away, but she was steeling straight across our bow.
“Q. Then you went to look at the lights? A. Yes, when we walk on the forecastle from side to side you can see the lights all the time.
“Q. You are positive those lights were burning? A. Yes.”

He was corroborated by other witnesses who were on the bark. A passenger on the steamer testified that about 2 a. m. or 2:15 a. m. he saw a sailing vessel exhibiting both red and green lights. If the collision occurred at 2:45 a. m. as those on the bark insist it did, this testimony is also corroborative of that given by those on the sailing vessel. And the District Judge who heard and saw the witnesses found as a fact that the lights on the sailing vessel were burning. There was, as is usual, a conflict in the testimony, and a number of the witnesses testified that they saw no lights after the collision. But the testimony that after the collision a witness saw no lights is not convincing that the lights were not burning at the time of collision, as the lights might- readily be extinguished by the impact of collision, and especially is this true in a collision so severe that the stem of the steamer cut into a steel vessel a distance of 19 feet. See The Livingstone (D. C.) 87 F. 769, 776; Pennell v. United States (D. C.) 162 F. 64, 71.

We have not overlooked the testimony of the captain, of the steamer who expressed the opinion that oil burning lights could not be jarred out by a collision. There was no testimony but his on that point, and as we are satisfied that the lights were burning prior to the collision, we are not willing to decide this ease on the opinion which he expressed.

The appellant’s brief considers “the question of whether or not the bark was displaying her green side light as decisive of this entire case.” This court concedes it to be decisive. But if it be ■ decisive and no green light was displayed by the bark, as required by law, those in command of the steamer certainly would have had the absence of the light at the time of collision strongly impressed upon their mind, and the absence of the light would have been noted in the log of the steamer. But no such entry in the log was made at the time. And this notwithstanding the statutes of the United States provide :

“In every case of collision in which it is practicable so to do, the master shall, immediately after the occurrence, cause a statement thereof, and of the circumstances under which the same occurred, to be entered in the official log book.” Revised Statutes, § 4290 (Comp. St. § 8036).

It certainly is a matter of great significance that in a matter of such vital importance as the absence or failure to see the side lights of a sailing vessel, which was sent to the bottom by a collision with a steamer, the log of the steamer made no mention of the important and essential circumstance that the bark'was displaying no lights at the time the collision occurred. It is hard to believe that so important an omission would have occurred had the lights not been burning. The Richmond (D. C.j 114 F. 208.

We again call attention to what this court said in The Fin MacCool, 147 F. 123, 77 C. C. A. 349, where we remarked as follows:

“The case is one for the application of the rule of evidence that positive evidence is ordinarily to prevail over strictly negative evidence, and that when one or more witnesses testify that they saw an object or heal’d a signal upon a given occasion, their testimony is to prevail over that of a same number of witnesses, of equal candor, who testify that they did not see or hear it. There is, in such cases, no necessary conflict of evidence as to the fact in question. The observation of the fact by some of the witnesses may be entirely consistent with the failure of the others to observe it, or their forgetfulness of its occurrence. Horn v. Balt. & Ohio R. Co., 54 F. 301, 4 C. C. A. 346, 351; Rhodes v. U. S., 79 F. 740, 21 L. Ed. 644, 25 C. C. A. 186; Stitt v. Huidekoper, 17 Wall. 393. Of course, in each ease the opportunities of observation, and the interest prompting the witnesses to attentive.observation are to be considered; and the rule referred to is not inexorable, but is to be applied with due regard to the circumstances of the particular case. The whole subject is excellently treated in 17 Cyc. pp. 801-803, where all the authorities are collected.
“Upon consideration of all the evidence we are led to the conclusion that the men on board the Elder did not maintain a vigilant observation, and that the lights upon the wreck, though not seen by the lookout or any others of her crew, were visible, and ought to have been discovered.” '

And referring to the fact that the crew of the schooner testified that her lights were brightly burning, while the crew of the steamer testified that the schooner’s lights were not showing properly, this court further said (114 F. 208):

“This positive testimony by those on the schooner, in a position to see the lights, and know of their condition, will not be lightly rejected because other persons, whose duty it was to have seen them, either failed to observe, or happened not to see them. Nega-' tive evidence of this character cannot be accepted to outweigh positive evidence. The failure to observe a light cannot be said to disprove its existence.”

In such eases the positive evidence of persons on the ship who were in a position to see, and who did see, the lights of the ship, is entitled to greater weight than that of mere negative witnesses who were on another vessel and who did not see the lights. The Alabama (D. C.) 114 F. 214; The Martha E. Wallace (D. C.) 148 F. 94; The Dorchester (D. C.) 163 F. 779; The Noreuga (D. C.) 211 F. 355, 358; The Creole (D. C.) 277 F. 119; aff’d (C. C. A.) 277 F. 122.

It was contended in the court below and in this court that the lights were defective in that ihe simplex burner used in the specially constructed steel lighthouses of the bark should have been fitted with “a globe or chimney.” But an inspector of steam vessels who stated that he was familiar with the use of light towers on steam vessels, but admitted that he was not familiar with their use on sailing vessels, testified that simplex burners, similar to those used on the bark, were commonly used in the side lights of vessels, and that they were intended to be used without chimneys. And the captain of the bark, who had held a master’s license for 30 years, testified that a simplex burner without a chimney was properly used in a lighthouse such as that on the bark. He was asked how far his red and green lights would show in the conditions as they existed on the night of the collision at the time of the collision, and replied about 3 or 3% miles. A seaman with 21 years’ sea experience stated that such lights could be seen at least 3 miles. Another seaman with a like experience of 11 years gaye a similar answer, and was corroborated by still another seaman. The court below found, and we see no reason for disturbing the finding, that the lighthouses for containing the side lights were properly constructed and the lights were of a kind carried by numerous sailing vessels.

The following is an excerpt from the testimony of the captain:

“Q. Which light did you have? A. The simplex. * * *
“Q. And any’globes? A. No.
“Q. Did you ever carry globes? A. No, sir; because our lighthouse was with a wooden bottom that opened up with a trapdoor, and it was wind tight; no air could get in there, because we put that wooden bottom in to stop any air from going into the tower. * * *■
“Q. It has been testified to by the witness here who preceded you on the stand that a lamp without a globe would go out in 3 hours. A. Well, I never saw these go out in 10 hours.
“Q. How many years have you been ear-drying these lamps, side lights, with the lamps in them, on the Windrush, without globes? A. Since 1912.
“Q. And the collision occurred in 1920? A. Yes.
“Q. Did the lights ever go out? A. No. )}

The testimony that after the collision those on the Buenos Aires saw no lights on the Windrush, and that of the captain of the steamer that the jar of a collision does not extinguish oil lamps, loses any significance it might otherwise have had when it is remembered that the foremast of the Windrush fell over to the starboard immediately after the collision, and the light was just forward of the foremast so that it is highly probable that the sails and rigging of the mast completely obscured the light from the time it began to fall. And the master of the Buenos Aires was so alarmed that it would strike his vessel that he disengaged his steamer as ■ quickly as possible. Those on the Buenos Aires must have been more concerned with the matter of their own safety in the few minutes which elapsed between the collision and the sinking than they were in the matter of lights. The sails, spars, and rigging on this mast as they fell to starboard might readily obscure, the starboard light of the Windrush, even though the jar of the collision failed to extinguish it. And as the Windrush sank, as appears from the log of the Buenos Aires, within four minutes after the collision, the excitement which must have prevailed on the Buenos Aires at the time was not conducive, as counsel for the Wind-,rush contended, to careful observation.

The value of the testimony of those on the Buenos Aires, who testified that prior to the collision they saw no lights on the Windrush, may be judged by the fact that they failed to seé the Windrush itself.' The testimony satisfies us that on such a night as that on which the collision "occurred’,’with the moon in its third quarter and with practically no clouds, the Windrush, full rigged and with new canvas, irrespective of any lights would be easily visible at a considerable distance away; some of the witnesses testifying that she would be easily visible at a distance of at least two miles.

It is contended that the bark was at fault for directing her course to port just before the collision. But this contention, if seriously put forward, is without merit. The bark was entitled to keep’ her course in reliance upon the duty of the steamship to keep out of the way. When it became apparent that the steamer did not intend to conform to the law if the bark, in an attempt to escape from the peril of collision, committed a fault of" navigation, the fault was in extremis, imposed no liability, and makes no difference. The steamship which had plainly violated the law and caused the peril is alone to be held responsible. The Stifinder (C. C. A.) 275 F. 271; 276; The Lafayette (C. C. A.) 269 F. 917, 925; The Sea Gull, 23 Wall. 165, 23 L. Ed. 90.

The general regulations for the prevention of collisions between vessels contain no provision relating to lookouts,- except what is implied from the general rule that nothing shall exonerate the vessel, the owner, etc., from the consequence of any neglect to keep a proper'lookout. But a vessel is bound to have a proper and reasonable lookout. And while no specific location is prescribed for the lookout, he is required by good navigation to be placed at the point best suited for the purposes of hearing and observing the approach of objects likely tecome into collision with the vessel. The Nevada v. Quick, 106 U. S. 154, 1 S. Ct. 234, 27 L. Ed. 149. It has been held that as a rule he should be as near the water as possible to note the lights of crossing vessels and avoid them. The Prinz Oskar, 219 F. 483, 135 C. C. A. 195, affirmed 216 F. 233; Watts v. United States (D. C.) 123 F. 105. And the Circuit Court of Appeals in the Fifth Circuit, in The Pilot Boy, 115 F. 873, 875, 53 C. C. A. 329, 331, declared: “Elevated positions on a steamer, such as the hurricane deck, are not as favorable situations for the lookout as those on the fore-ward deck near the stem.”

The want of a competent lookout properly stationed and vigilant is a fault in a vessel as a result of which she assumes the consequential risk of a collision to which the fault contributed. The Anna W., 201 F. 58, 119 C. C. A. 396; The Greystoke Castle (D. C.) 199 F. 521; Graves v. Lake Michigan Car Ferry Transportation, 183 F. 378, 105 C. C. A. 598; The Volund, 183 F. 413, 105 C. C. A. 647.

The libels filed in these cases all alleged that the Buenos Aires failed to keep “a good lookout” and failed “to maintain a proper and vigilant lookout.”

It is undisputed that the Buenos Aires at the time of this collision was navigating with no lookout on the forecastlehead. Instead, the man was stationed in the crow’s nest on the foremast.

Article 29 of the International Rules (Comp. St. § 7868) provides that “nothing in these rules shall exonerate any vessel or the owner or master or crew thereof, from the consequences of any neglect “ * * to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the cáse.”

It is true the statute fails to prescribe any specific place on a vessel for the lookout to be stationed, but the courts have held that good navigation makes it necessary that the lookout shall be stationed in the forward part of the vessel and at a point best suited for hearing and observing the approach of vessels and where his vision will be free from all obstructions.

The lookout on the Buenos Aires in the crow’s nest was 75 feet above the water. This was a very great height and a very unusual one for a lookout to be placed. The captain of the Adriatic of the White Star Line, who has been in command of White Star ships for 21 years and had been in the employ of that company' for 28 years, and was a disinterested and most competent witness, testified as follows:

. “Q. You consider it necessary to maintain a man on lookout on the stem head? A. Yes.
“Q. State your reasons. A. I would rather have the man on the — if I had to only have one man on lookout, I would rather have him on the stem head than on the lookout, for the following reasons: That the officer — there is always two officers on the bridge. The officers on the bridge are higher and they can look after the horizon part, whereas the — the far distant part — whereas, the stem head man can see better in the vicinity of the ship. * * *
“Q. Which man is in the better position to see a sailing vessel, a man stationed aloft in the crow’s nest or a man stationed on the stem head? A. Daytime or nighttime?
“Q. Nighttime. A. The stem head man always in the nighttime.
“Q. Why do you say that? A. Because he has got a closer vision. His vision — the lookout man above is looking over the object. You will-find that if you are more on the range- with the object, a sailing ship’s sails, would loom up; if you were more level with it, you would see that blur quicker than the man that was looking over it, you see. * * *
“A. I am personally, if you ask my own personal opinion, I am in favor of the stem head man in preference (to one in the crow’s nest) — as I said before, in preference to the lookout man, because he is too high. He can see things at a distance. Oh, very well,, you see; he can pick up things at a distance; but if I had only one lookout man I would place him on the stem head.
“Q. Even on this ship ? A. If I only had one man, I would rather he be — of course, we have regulations in the company, that, they have — one man must be on the-crow’s nest and one man on the stem head. That is the regulation of the company. * * *
“Q. Assuming, Captain, that you had a dark night and there was a light of a sailing vessel which could be picked up, say, for two-miles, which lookout man would be likely to-pick that up first? A. The stem head man;, he is more on a line with the vision.
“Q. Assuming, Captain, that the moon is behind you and the— A. Then that easts a shadow.
“Q. And a cumulus cloud is in the sky; which lookout would see a sailing vessel? A. Stem head man, I should think.”

' The following is a further excerpt from, his testimony:

“Q. When you are in the crow’s nest,, where is your horizon, Captain? A. That, all depends upon the height of the vessel. Now, our horizon would be about eight miles.
“Q. Suppose your crow’s nest is 75 feet. np; about where would it be? A. Ten. miles. Seventy-five feet would be an enormous height.
“Mr. Sprague: You mean 75 feet from the deck?
“The Witness: I am speaking from the water. * * *
“Q. When you are speaking of the crow’s nest on British ships, are those as high as 75 feet? A. No.
“Q. About how high? A. I should say about 40 feet; that is the average.
- “Q. You would call 75 feet a very great height? A. Very high. ° *
“Q. A man stationed 75 feet— A. I am talking of an average ship.
“Q,. You would consider that very high for a lookout? A. Yes.
“Q. And as I take it from what you say, for seeing elose-hy objects it is much better to keep your vision on a lower plane, if possible ? A. Yes.
“Mr. Sprague: I object as leading.
“The Witness: Objects that are close.
“Q. And by close, do you mean objects within two miles? A. Yes.”

And the captain of the Leviathan, who had an experience of 31 years and had crossed the Atlantic 754 times, testified as follows:

“Q. The question in which we are interested in this ease is the proper place to station a lookout in the nighttime — have you given consideration to that question? A. I have never known anything else in my experience than carrying the lookout on the foreeastlehead as long as we can, weather permitting, and also in the crow’s nest. We never take the man out of the crow’s nest; we always double up by putting a man on the foreeastlehead.
“Q. What is the purpose of keeping a lookout on the forecastle head? A. We are under the belief, and always have been, that they can see better there. ff * *
“Q. Can’t you see better from a high elevation than a low elevation? A. On a perfectly clear day you can see at a greater distance; on a perfectly clear night, you would pick up a shore light 15, 20, or 30 miles away from that distance, but not a small vessel; you would never see a small vessel. • ® ®
“Q. Wouldn’t you see the green and red lights sooner from the crow’s nest than from the foreeastlehead? A. I don’t think you would pick them up, you would see that great distance; they are only supposed to be seen two or three miles. a * •
“Q. Wouldn’t the side light of a sailing vessel, being 20 feet above the water, be seen quicker from an elevation of 70 feet than it would from an elevation of 20 feet? A. Not an oil side light; the man up above would be looking over the top of it, he would be right on top of it before he would pick it up, while the man on the foreeastlehead would have it right in front of him.
“Q. You think that an oil side light carried 20 feet above water would be seen quicker by a man who is 20 feet above the water than by a man who is 70 feet above the water? A. I think so.
“Q. Why do you say that? A. Because I think that the man who is higher up would be looking right over the top of it.”

Two witnesses called by the steamer testified that they favored the crow’s nest for the lookout’s position. The third witness similarly called stated that when the weather permitted, the best place was on the fore-castlehead. The following is an excerpt from the testimony of the fourth witness:

“Q. Isn’t the proper place for a lookout on the foreeastlehead, in the eyes of the ship? A. It is, but if it is a cold night he walks about to keep his blood in circulation, whereas in the crow’s nest he is protected from the weather to a greater extent.”

The fifth witness for the steamer gave his reason for thinking the crow’s nest to be -the best place for a lookout. He said:

“Well, I think all objects, I have found from my experience they are more visible from the crow’s nest than from any position on the ship, for the same reason that you can see better and sooner from the bridge than you can from the forecastle. * * 5 ”

The following is a further excerpt from his testimony:

“Q. Captain, just a moment ago Mr. Sprague asked you with reference to the Celtic, whether there was a lookout also on the foreeastlehead, and you evaded the question by saying you had them all over; will you answer the question directly and say whether they had a lookout also on the fore-eastlehead? A. When -the weather permitted.”

He further testified:

“Q. Yes, but you did keep a lookout on the foreeastlehead when the weather permitted? A. As an extra precaution. * 9 9 “Q. The other ones, you did keep a lookout on the foreeastlehead? A. Yes.
* a

The witness was employed on the Cunard Line for six years serving as navigating officer from 1903 to. 1909. He admitted that while so employed he kept a lookout on the forecastlehead except in the ease of three boats.

We are satisfied that a proper degree of care was not exercised by those in command of the -Buenos Aires in stationing a lookout in the crow’s nest 75 feet above the water without having a lookout placed forward on the deck in the how where he could keep a better lookout for sailing vessels lying low on the water and having side lights only 20 feet above the water line.

This brings us to a consideration of the libels filed by the administrators, who seek to recover for the loss of life of their respective decedents, two of whom were drowned after jumping into the water from the Windrush after the collision and another of whom died from exposure after having been picked up from the sea.

These libels were filed under the Act of March 30, 1920, entitled “Death on the High Seas by Wrongful Act.” 41 Stat. 537 (Comp. St. Ann. Supp. 1923, §§ 1251%-1251%g).

The material sections of the act (Comp. St. Ann. Supp. 1923, §§ 1251%, 1251%e) are as follows:

“Section 1. Might of Actionj Where and By Whom Brought. Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state, or the District of Columbia, or the territories or dependencies of the United States, the personal representative of. the decedent may maintain a suit for damages in the District Courts of the United' States, in admiralty, for the' exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.* * * *
“Sec. 4. Mights of Action Given by Laws of Foreign Countries. Whenever a right of action is granted by the law of any foreign state on account of death by wrongful act, neglect, or default occurring upon the high seas, such right- may be maintained in an appropriate action in admiralty in the courts of the United States without abatement in respect to the amount for which recovery is authorized, any statute of the United States to the contrary notwithstanding.”

The answers set up that the Buenos Aires was a Spanish ship and governed by the provisions of the Spanish law, which‘did not provide for the bringing of the suits in question. It was stipulated between the proctors on both sides that under the Spanish law there was a right of action in favor of the héirs or relatives of a decedent who suffered actual pecuniary damage by reason of the death of a person by negligent act against the person or persons responsible' for such negligence, but that there was no right of action in rem against a vessel for damages for such death and ,no right of action in an administrator.

■ The trial court sustained the libels upon the ground that the liability for the deaths was to be determined by general maritime law, and that the Act of March 30, 1920, became part of the general maritime law and governed the situation.

Prior to the adoption of the Act of 1920, the Supreme Court held that the general maritime law did not provi.de a remedy for wrongful death. The Harrisburg, 119 U. S. 199, 7 S. Ct. 140, 30 L. Ed. 358; The Alaska, 130 U. S. 201, 9 S. Ct. 461, 32 L. Ed. 923; Butler v. Boston S. S. Co., 130 U. S. 527, 9 S. Ct. 612, 32 L. Ed. 1017; La Bourgogne, 210 U. S. 95, 138, 28 S. Ct 664, 52 L. Ed. 973; Western Duel Co. v. Garcia, 257 U. S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210.

But before considering the legal question involved we shall refer to the facts.

- We doubt whether a case can be found in the reports which shows conduct more inhuman and shameful than that of those in command of the Buenos Aires immediately after the collision. It was the manifest duty of the captain in command of that vessel to render every possible assistance to thé survivors of the vessel which his ship had sent to the bottom of the sea. This was his duty by every instinct of humanity as well as his duty under the express provisions of the law.

The Act of September'4, 1890, known as the Stand By Act, provides in section 1 as follows:

“That in every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without serious danger to his own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any), ,sueh assistance ás may he practicable and as may be necessary in order to save them from any danger caused by the collision, and also to give to the master or person in charge of the other vessel the name of his own vessel and her port of registry, or the port or place to which' she belongs, and also the name of the ports and places from which and to which she is hound. If he fails so to do and no reasonable cause for such failure is shown,' the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default.” St. vol. 26, p. 425 (Comp. St. § 7979).

The testimony in this case as to the course pursued by the master of the Buenos Aires after the collision would be incredible of belief if it were not substantiated by the testimony of witnesses who beyond a doubt are testifying truthfully. After the collision the Buenos Aires was at no time in serious danger, and although the evidence shows that the lifeboats could have been lowered, as there was no sea, but they were not in fact lowered until, according to some of the witnesses, four or five hours after the collision occurred, and according to others three or four hours after it happened. In the meanwhile sailors from the bark were exposed in the water, some 18 of them, and some died from the effects of their exposure. And although the collision happened about 3 a. m. it was not until at least three hours after daylight that any effort was made to lower a single boat. One of the passengers on the Buenos Aires testified as follows:

“Q. Were any efforts made before the lowering of these boats that you have just described? A. No, sir.
“Q. Made no efforts at all? A. No efforts to lower the boat.
“Q. Did you think it strange? A. Yes, I did.
“Q. Did you hear any protest being made on board ship? A. Yes, everybody was complaining.
“Q. What complaints did you hear? A. Why don’t they lower a boat ?
“Q. Whom did you hear saying that? A. The passengers.
“Q. Did you make any remarks like that yourself ? A. Yes.”

The steamer’s log gives the time of collision as 3:15 a. m., and the appellant concedes that the survivors were not rescued until 6 a. m., nearly three hours after the collision. The master of the steamer admitted that “if you' had sufficient men you could lower it (the lifeboat) in two minutes.” As he had a crew of 138 men, he certainly had “sufficient men.” The second officer of the ship testified to lowering a boat on another occasion in two or three minutes. And within 15 minutes after the collision the chief officer of the steamer’had examined the damage which his vessel had suffered and found that “there was no danger of the Buenos Aires sinking,” and so reported immediately to the master. There was no possible excuse for the inhuman course which was pursued. And it clearly appears to us that under the Act of 1890, above set forth, the master in charge of the Buenos Aires failed to render to those on board the Wind-rush “such assistance as may be practicable and as may be necessary in order to save them from any danger caused by collision.” As he failed to do so for three, hours and a number of the crew perished in consequence, “and no reasonable cause” for such failure was shown, we would be justified and required by the statute to hold that the collision was “caused by his wrongful act, neglect or default.”

But in this case it happens that quite irrespective of the failure for three hours to render the assistance which humanity and the statute alike made it the duty of the Buenos Aires to render, the testimony makes it clear that responsibility for the collision rests solely upon the steamer and its owner, Compañía Transatlántica de Barcelona.

It is urged upon us that the general maritime law being in effect the international law of the sea, upon which the leading maritime countries of the world are in agreement, it cannot be changed by the legislation of one country only, but must be accomplished by convention, treaty or joint legislation.

It is true that for some purposes a ship is, by a fiction of law, regarded as part of the territory of the nation whose flag she flies. This principle, however, is applicable to cases between the vessel and her passengers and crew in order that such persons may not be subject to no law at all. See Queen v. Keyn, 2 Ex. D. 63, 194. But the 'principle has no application in eases involving torts on the high seas as between ships of different nationalities having different laws. The Brantford City (D. C.) 29 F. 375; The Sagamore, 247 F. 743, 159 C. C. A. 601; The Scotia, 14 Wall. 170, 184, 185, 20 L. Ed. 822; The Belgenland, 114 U. S. 355, 5 S. Ct. 860, 29 L. Ed. 152; The Chattahooche, 173 U. S. 540, 550, 19 S. Ct. 491, 43 L. Ed. 801.

The nature and extent of the appellant’s right must be determined according to the law of the place where the collision occurred and the obligation was incurred, and that place was on the high seas. Thomassen v. Whitwell, 9 Ben. 403, 408, Fed. Cas. No. 13,-929.

But if th’e locus of the tort is the high seas, and the liability for the tort is to be determined by the law of the place where the tort is committed, then the recovery of the damages must be according to the rules of the maritime law. Now the maritime law is only so far operative as law in any country, as was said in The Lottawanna, 21 Wall. 558, 571, 22 L. Ed. 654, as it is adopted by the laws and usages of that country. And since the Act of 1920 the maritime law which the courts of the United States enforce gives a right of action for negligent death on the high seas. And in Hughes on Admiralty (2d Ed.) pp. 224, 226, it is declared that a similar right is given by the laws of Holland, Belgium, France, Scotland, Italy, Germany, Austria, and Switzerland. It is stipulated that such a right exists under the law of Spain. The existence of this right thus recognized by the leading maritime nations of the world thus appears now to be so general that it may fairly be considered a part of the general maritime law which the maritime nations enforce.

It appears, however, that while under the laws of both the United States and Spain a cause of action exists to recover damages for death which results from a wrongful act, the law of the two countries differs as to the persons entitled to bring suit and as to whether there is a liability in rem against the offending vessel or in personam against her owner. Under Spanish law a suit in rem cannot be maintained against the vessel. But the law of the United States, the Act of 1920, gives a right of action “against the vessel, person, or corporation which would have been liable if death had not ensued.”

The maritime law of the United States authorizes a proceeding in rem in a ease of the nature of those now before the court, and in the courts of the United States the procedure will be in accordance with the law of the United States. “That law is supreme in our courts over the French law” in the matter of the procedure to be followed to enforce the libelants’ rights. The Kongsli (D. C.) 252 F. 267.

In The Brantford City (D. C.) 29 F. 373, 382, 383, Judge Addison Brown said:

“But inasmuch as the high seas are the common ground of all nations, and are not governed by the merely municipal laws of either, the quality of acts committed on the high seas, as between persons or ships belonging to different nations, whose laws are different, is determined by the maritime law as accepted and administered in the forum where the suit is prosecuted. Hence acts, tortious by the law of England, if committed on the high seas, are actionable in England, though not tortious by the municipal law of the defendant’s domicile, or of the ship’s flag;' and, in general, the law of the flag has no application to torts committed on the high seas, as between persons or ships of different countries having different laws. Foote, Priv. Int. Law, 398, 403; Mars. Coll. (2d Ed.) 208, 209, 212. The point was distinctly presented, and so adjudged, in the case of The Leon, 6 Prob. Div. 148. The same rule in this country has been repeatedly affirmed by the Supreme Court. The Scotland, 105 U. S. 24, 29; The Belgenland, 114 U. S. 355; s. c., 5 Sup. Ct. Rep. 860.”

The Supreme Court in The Scotland, 105 U. S. 24, 29 (26 L. Ed. 1001), in 1881, speaking through Justice Bradley, stated the law as follows:

“In administering justice between parties it is essential to know by what law, or code, or system of laws, their mutual rights are to be determined. When they arise in a particular country or state, they are generally to be determined by the laws of that state. Those laws pervade all transactions which take place where they prevail, and give them their color and legal effect. Hence, if a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and -liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the ease. In the French or Dutch tribunals they would do the same. But, if a collision occurs on the high seas, where the law of no particular state has exclusive force, but all are equal, any forum called upon to settle the rights of tha parties would prima facie determine them by its own law as presumptively expressing the rules of justice; but if the contesting vessels belonged to the same foreign nation, the court would assume that they were subject to the law of their nation carried under their common flag, and would determine the controversy accordingly. If they belonged to different nations, having different laws, since it would be'unjust to apply the laws of either to the exclusion of the other, the law of the forum, that is, the maritime law as received and practiced therein, would properly furnish the rule of decision. In all Other eases, each nation will also administer justice according to its own laws. And it will do this without respect of persons, to the stranger as well as to the citizen.”

And again in The Belgenland, 114 U. S. 355, 369, 5 S. Ct. 860, 867 (29 L. Ed. 152) the court said:

“As to the law which should be applied in cases between parties,, or ships, of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted.”

And such is the doctrine of the English courts. In.The Griefswald, 1 Swabey, 430, which arose out of a collision between a British ship and a Persian ship in the Dardanelles, Dr. Lushington said:

“In eases of collision, it has been the practice of this country, and, so far as I know, of the European states and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many eases a remedy in personam would be impracticable.”

The decree is affirmed, with costs.


source: Caselaw Access Project

author: BRYAN, Circuit Judge.

license: Public Domain

text:
    BAILEY v. UNITED STATES.
    (Circuit Court of Appeals, Fifth Circuit.
    March 11, 1925.
    Rehearing Denied April 6, 1925.)
    No. 4319.
    Í. Customs duties <@=>125 — Smuggling intoxi- - eating liquors is crimina! offense.
    . Smuggling intoxicating liquors, or knowingly facilitating their transportation after their importation, constitutes a criminal offense, under Tariff Act 1922, § 593(a) (b), being Comp. St. Ann. Supp. 1923, §§ 5841h-12, 5841h-13.
    '2. Criminal law <@=>150 — Continuing conspiracy held kept alive by overt acts after enactment of statute.
    Though a continuing conspiracy to smuggle intoxicating liquors and facilitate their transportation was formed prior to the enactment of Comp. St. Ann. Supp. 1923, §§ 5841h-12, ■5S41h-13, overt acts committed after its enactment 7seld sufficient to keep it alive.
    3. Internal revenue <@=>2 — No tax imposed on wholesale liquor dealers.
    Since the passage of the National Prohibition Act (Comp. St. Ann. Supp. 1923,'§ lOlB&ty, et seq.), which repealed Rev. St. § 3244 (4), being Comp. St. § 5971, there is no statute in force imposing a tax on wholesale liquor dealers.
    4. Indictment and information <@=>117 — Not bad as a whole, because one object of conspiracy not an offense.
    Indictment for conspiracy to smuggle, transport, and sell intoxicating liquors, facilitate their transportation, and carry on business of wholesale liquor dealer without paying special tax, is not bad as to its other averments, because averment as to conspiracy not to pay special tax states no offense.
    5. Indictment and information <@=>119 — Indictment not invalidated by unprovabie aver-ments, which may be rejected as surplusage.
    It is not an objection that an indictment charges more than the proof can possibly show, if what is well charged constitutes an offense.
    6. Indictment and information <@=>l25(§t/2) — Conspiracy to commit several offenses may ba charged in one count.
    A conspiracy to commit several offenses may properly be included iu the same count of an indictment.
    7. Conspiracy <@=>43( I) — Indictment held sufficiently specific.
    An indictment for conspiracy may be as general and indefinite as the conspiracy which it seeks to, punish.
    In Error to the District Court of the United States for the • Southern District of Georgia; William H. Barrett, Judge.
    Criminal prosecution by the United States against Jolxn B. Bailey. Judgment of conviction, and defendant brings error.
    Affirmed.
    A. A. Lawrence and John J. Bouhan, both of Savannah, Ga. (A. L. Herzog and E. H. Abrahams, both of Savannah, Ga., on the brief), for plaintiff in error.
    Chas. L. Redding, Asst. U. S. Atty., of Savannah, Ga., and White B. Miller, Sp. Asst. Atty. Gen., for the United States.
    Before WALKER, BRYAN, and ROSTER, Circuit Judges.
   BRYAN, Circuit Judge.

All of the assignments relate to the overruling of a demurrer to the indictment. The indictment contains only one count, and charges that Bailey, plaintiff in error here, and several other defendants, entered into a conspiracy under section 37 of the Criminal Code, being Comp. St. § 10201: (l) With intent to defraud tbe revenue of tbe United States, to smuggle and clandestinely introduce from the Bahama Islands into the United States at points near Savannah, within the Southern district of Georgia, intoxicating liquors, “the same being merchandise subject to duty, and which should have been invoiced, that is to say, brandy, whisky, gin, and other distilled spirits, and champagne”; (2) to facilitate the transportation of “said merchandise, from the several places where it was so to be introduced into tbe United States as aforesaid, to divers nearby storage and distributing points, and from those points to Savannah aforesaid, and to other points to said grand jurors unknown, after the importation of said merchandise as aforesaid”; (3) to transport a portion of “said merchandise and intoxicating liquors” to storage and distributing points, and from there to Savannah and to other points unknown, without a permit from the Commissioner of Internal Revenue; (4) to sell at one of the storage points, or at Savannah, or at points unknown, for beverage purposes, “a portion of said intoxicating liquors and merchandise”; and (5) to carry on the business of a wholesale liquor dealer without having first paid the special internal revenue tax. The conspiracy is alleged to have been a continuing one from July, 1921, to the date of the filing of the indictment in August of 1923. All the overt acts under it are alleged to have been committed in 1923. ' "

In support of the demurrer it is contended that the customs duty on intoxicating liquor and the internal revenue tax on wholesale liquor dealers were repealed by the Eighteenth Amendment; that paragraphs 801, 802, and 803 of title 1 of the Revenue Act of 1922 (Comp. St. Ann. Supp. 1923, § 5841a) are void, because they are repugnant to the Eighteenth Amendment; that smuggling and the carrying on of the business of a wholesale liquor dealer without a license are not offenses, but are averments descriptive of the conspiracy, and cannot be rejected as surplusage, which' places the government in the position of not being able to prove the conspiracy as alleged; that the indictment is void for duplicity, in that it charges several offenses in a single count; and that it is vague and uncertain, because, although it alleges a conspiracy to transport liquor without a permit and to sell it for beverage purposes, it fails to identify the places from and to which the defendants conspired to transport the liquor and at which they conspired to sell it.

Whether the Eighteenth Amendment repealed the customs duty on liquor is not material in this ease. A duty was imposed by the tariff provisions of the Act of 1922. 42 Stat. 858, c. 356 (Comp. St. Ann. Supp. 1923, § 5841a et seq.). Sections 2865 and 3082 of the Revised Statutes (Comp. St. §§ 5548, 5785), which prohibit smuggling of any merchandise with intent to defraud the revenue of the United States, and concealment and facilitating the transportation of such merchandise after importation, respectively, were in substance re-enacted. 42 Stat. 982 (Comp. St. Ann. Supp. 1923, §§ 5841h-12, 5841h-13). It is too late to contend that the United States may not tax intoxicating liquors, notwithstanding their production or importation is prohibited. United States v. Yuginovich, 256 U. S.1 450, 41 S. Ct. 551, 65 L. Ed. 1043; United States v. Staaftoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358. Although the indictment alleges that the conspiracy was formed before the passage of the Revenue Act of 1922, the overt acts to effect its objects are alleged to have been committed after the passage of that act, and the indictment charges a continuing conspiracy. The overt acts alleged were sufficient t'o keep the conspiracy alive. Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136. It follows that in our opinion smuggling and facilitating the transportation of liquor, with intent to defraud the revenue of the United States, are criminal offenses.

The special tax imposed upon wholesale liquor dealers by R. S. § 3244 (Comp. St. § 5947), was repealed by the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138]4 et seq). Lipke v. Lederer, 259 U. S. 557, 42 S. Ct. 549, 65 L. Ed. 1061; Fontenot v. Accardo (C. C. A.) 278 F. 871. We are of opinion that the section just mentioned has not been re-enacted, and, as contended by the defendant, that there is no tax now in effect upon wholesale liquor dealers. It therefore may be assumed that the last subdivision of the indictment does not state an offense. But the averment that the defendant conspired to carry on the business of a wholesale liquor dealer without paying the special tax does not in any way affect the, other parts of the indictment. It is not an objection that an indictment charges more than the proof can possibly show, if what is well alleged constitutes an offense. The averment of the failure to pay the license tax is surplusage, but it does not render the indictment bad, unless it is descriptive of a material averment. 2 Bishop’s Criminal Procedure, § 45. Clearly the averment of a conspiracy not to pay the special tax as a wholesale liquor dealer is not descriptive of the other averments contained in the indictment.

A conspiracy to commit several offenses may properly be included in the same count of an indictment. Frohwerk v. United States, 249 U. S. 204, 39 S. Ct. 249, 63 L. Ed. 561; Anderson v. United States (C. C. A.) 269 F. 65, 76; Anderson v. United States (C. C. A.) 273 F. 20, 28; Rowan v. United States (C. C. A.) 281 F. 137.

It is also objected that the indictment is so vague and uncertain as not to put the defendants on notice of some of the charges against them, because the conspiracy alleged included agreements to transport liquor from places which were not identified to places which were unknown, and to sell it at Savan-nali or at such unknown places. Conceivably the defendants could have entered into just that kind of conspiracy. ' They might not themselves have agreed upon the particular places to which the liquor would be transported, or at which it would be sold. If they could enter into a conspiracy to commit offenses without agreeing upon all of the details as to how or where some features of their conspiracy would be carried out, surely the indictment would not be rendered b&d if it charged a conspiracy which also left out such details. If it were otherwise, it would not be difficult to form a criminal conspiracy which the law could not punish. The law is not as helpless as that. An indictment may be as general and indefinite as the conspiracy which it seeks to punish.

The judgment is affirmed.


author: WOODS, Circuit Judge.

text:
    UNITED STATES v. WHITE OAK COAL CO.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2240.
    1. Courts <§=>284 — District Court has jurisdiction of action for difference between market price of requisitioned coal and price paid by government.
    District Court has jurisdiction of coal dealer’s action against the United States for difference between market price of coal requisitioned by government under Lever Act, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%ii), and price paid by government.
    2. Trial <§= 136(3) — Jury should be instructed to find verdict in accordance with court’s in-
    ■ terpretation of writings, where all material evidence consisted of writings.
    Where all the material evidence in case consisted of writings to be construed by the court, the jury should have been instructed to find a verdict in accordance with court’s interpretation of writings.

      3. Contracts' <@=i0(4) — Government’s requisition under Lever Act reserving right of revocation, and acceptance thereof, did not constitute enforceable contract.
    Where requisition by Secretary of Navy for coal under Lever Act, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%n), reserved the right to revoke the order at any time, ■the requisition and its acceptance did not constitute an enforceable contract; there being no consideration and mutuality.
    4. War <§=>14 — Coal dealer’s agreement to accept price specified in requisition held not procured by duress.
    Where government’s requisition for coal un•der Lever Act .Aug. 10, 1917, § 10 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115ysii), ■stated that full price specified would be paid on dealer’s approval of price as satisfactory, but that only 75 per cent, of such price would be paid on dealer’s refusal to approve price, leaving dealer to sue for such additional sum as would be just compensation, the dealer, after approval of price as satisfactory and acceptance of full payment, could not recover additional amount on theory that agreement to accept price stated was procured by duress.
    5. Appeal and error <§=>882(10) — Evidence not available in support of party at whose instance it was excluded as irrelevant.
    Party on whose objection evidence was excluded as irrelevant cannot avail itself of such evidence in support of its contention on writ of error.
    6. War <§=>14 — Coal dealer, having received payment at increased price without objection, could not recover additional amount.
    Where requisition for coal under Lever Act, § 10 (Comp. St. 1918, Oomp. St. Ann. Supp. 1919, § 3115%ii), providing for payment of price specified in full if dealer indicated on order that price was satisfactory, or for payment of only 75 per cent, thereof, leaving dealer to sue for such additional sum as would be just compensation, on dealer’s failure to so do, and where dealer indicated that price specified was satisfactory, but in separate letter protested that price was not sufficient, but subsequently presented claim under retroactive order increasing price, and accepted payment of the increased price, without protest, dealer could not, by virtue of protest previously made, recover amount in excess of that so received.
    In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; George W. Mc-Clinti'c, Judge.
    Action by the White Oak Coal Company against the United States. Judgment for plaintiff, and defendant brings, error.
    Reversed.
    B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va., and Howard W. Ameli, Sp. Asst. Atty. Gen. (Alfred A. Wheat, Sp. Asst. Atty. Gen., and Elliott Northcott, U. S. Atty., of Huntington, W. Va., on the brief), for the United States.
    Charles W. Dillon, of Fayetteville, W. Va., and Robert S. Spilman, of Charleston, W. Va. (Dillon, Nuckolls & Mahan, of Fay-etteville, W. Va., and Price, Smith & Spil-man, of Charleston, W. Va., on the brief), for defendant in error.
    Before WOODS, WADDILL, and ROSE, Circuit Judges.
   WOODS, Circuit Judge.

In this action to recover the difference between the price paid by the United States and the market price of 210,631.375 tons of coal, the plaintiff recovered judgment for $899,054.60. Error is assigned in the refusal to sustain a plea to the jurisdiction, in the refusal to direct a verdict for defendant, in the admission and rejection of evidence, and in the instructions. The controlling evidence is in writing.

The Secretary of the Navy addressed a .requisition dated June 12, 1919, known as Navy Order N-6121, to the White Oak Coal Company for 226,800 tons of coal to be delivered between July 1, 1919, and December 31,1919. The requisition contained these provisions :

“1. In accordance with the provisions of the Acts of Congress, National Defense Act approved June 3, 1916, Food Control Act approved August 10,1917, Naval Appropriation Act approved July 1, 1918 (quoted in part on back of this page), and acting under the direction of the President of the United States, by virtue of the authority vested in him by the Constitution and laws of the United States, an order is hereby placed with you under the conditions to furnish and deliver material or services heeded by the Navy as in sheet 1 attached. Compliance with this order is obligatory, and shall take precedence over all commercial orders or contracts placed with you.
“(a) The price herein stated has been determined as just compensation for the material to be delivered or service to be rendered. If satisfactory to you, payment will be made accordingly and acceptance of this price will be considered as constituting a formal release of all claims arising under this order. If the price is not satisfactory and you so manifest below in writing, you will be paid 75 per cent, only of the designated amount. Further recourse may be had by suit against 'the United States to recover such further sum as added to the said 75 per cent, shall make up such amount as will be just eomr pensation therefor.’
“2. This order must be accepted and complied with in any event, and if placed in accordance with subparagraph A, you are only required to indicate below whether the price stated and fixed is satisfactory or is not satisfactory. If not satisfactory, a separate letter of comment and qualification must accompany the original order that is to be signed by you and returned. * * •
“Deliveries to commence July 1, 1919, and continue until December 31,1919, unless otherwise modified or revoked..
“Prices as herein stated will be subject to change due to change in wage scale or freight rate as may, in general, be applicable to the field in question and operative on the coal called for hereunder.”

The price was stated to be $3.08 a ton. Ebbert, the sales manager of the White Oak Coal Company, held the matter under consultation with- the other officers of the company until August 1, 1919. On that day he returned to Admiral McGowan for the Navy the requisition with the following acceptance signed at the foot:

“The above order is accepted subject to the conditions in subparagraph above. The price therein stated and fixed as being reasonable is satisfactory. White Oak Coal Company, by C. B. Ebbert, Manager of Sales.” .

Accompanying the acceptance was the following letter:

“We inclose you herewith, properly signed, your Navy Commandeer Order N-6121 dated June 12, 1919, covering the supply of certain tonnage requisitioned for the account of the United States Navy. Our wishes in the matter are to comply with this requisition but in signing this commandeer order the White Oak Coal Company wishes it understood that they do not waive any of the legal rights that they might have in the matter.”

From July 1, 1919, to December 31, 1919,. the government received 68,000 tons of coal at the price of $3.08. On November 25,1919, the Secretary of the Navy notified plaintiff that Order N-6121 would be continued under “the same general conditions as set forth in the Navy order above mentioned.” At the foot of this notice and order the plaintiff accepted in writing “subject to the conditions-of Navy Order N-6121.” On May 11,1920, an application of the plaintiff for an increase in price to $3.417 a ton on account of the increase of wages, as provided for in Navy Order N-6121, for coal supplied after December 31,1919, was granted. This modification was accepted by the plaintiff by signing the written statement that “the price herein stated and fixed' as being- reasonable is satisfactory.” Again on June 10,1920, the-application of plaintiff for an increase in price on the same ground to $3.711 a ton after April 1, 1920, was. allowed and accepted by the plaintiff in the same words. On August 18, 1920, the Navy increased the price to $4.00, retroactive to April 1, 1920. Receiving no answer to the letter indicating this increase, the Paymaster General of the Navy on September 13, 1920, wrote to the plaintiff requesting prompt attention and saying i

“As will be noted from the Navy Order, the amount to be paid is contingent upon the acceptability of the price by the supplier.
“Unless early announcement as to youfi decision in the matter is therefore received, it will be necessary to suspend payments. Since this action is not desired your prompt return of modifying letter with appropriate accomplishment is requested.”

On receipt of the letter of the Paymaster General, plaintiff returned the order with a signed acceptance at the bottom that “the price herein stated as reasonable is satisfactory.” The plaintiff sent with the acceptance the following protest, dated September 17, 1920:

“Your letter of September 13, file N-6121: We have signed and return herewith, under protest, your modification of Navy Order N-6121, dated April 18, for two reasons.
“First. To our mind the price is unfair as it does not represent the true value of the coal.
“Second. To our mind the allocation of the tonnage assessed to each shipper is unfair, inasmuch as we are called upon for more coal than we should be expected to furnish.”

After this protest, the Navy increased the price by .3604$ a ton, making the price $4.-3604 a ton for all coal supplied after August 16, 1920, thus running the increase back of the protest of September 17, 1920. The record does not disclose whether this increase was allowed on a later application for increase by the plaintiff or in response to the protest of September 17, 1920, nor does it disclose any express notice to the Navy from the plaintiff of satisfaction or dissatisfaction with the increase.

The decision of the Houston Coal Co. v. United States, 262 U. S. 361, 43 S. Ct. 612, 67 L. Ed. 1028, has removed all doubt of the jurisdiction of the District Court under the facts stated. United States v. Archibald McNeil & Sons, 45 S. Ct. 258, 69 L. Ed. -, decided by the Supreme Court-March 2, 1925.

All the material evidence in the ease consisted of writings to be construed by the court, and the jury should have been instructed to find a verdict in accordance with the court’s interpretation of those writings.

We think there is no foundation in the testimony for recovery for the difference between the market price and the price paid by the government for coal delivered. The original Navy Order N-6121 and all subsequent extensions and modifications were made under section 10 of the Lever Act of August 10, 1917, 40 Stat. 276-279 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%ii):

“That the President is authorized, from time to time, to requisition foods, feeds, fuels, and other supplies necessary to the support of the Army or the maintenance of the Navy, or any other public use connected with the common defense, and to requisition, or otherwise provide, storage facilities for such supplies; and he shall ascertain and pay a just compensation therefor. If the compensation so determined be not satisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President, and shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per cen-tum, will make up such amount as will be just compensation for such necessaries or storage space, and jurisdiction is hereby conferred on the United States District Courts to hear and determine’ all such controversies.”

The original requisition made on behalf of the Navy referred to this statute and gave most explicit instructions that if the price was satisfactory the plaintiff should say so in writing and receive the full price stated therein in full payment- of the coal; .that if not satisfactory the plaintiff should say so and receive 75 per cent, of the price stated in the requisition with the right to sue the United States for such additional sum as would be just compensation. After full consultation of its officers, plaintiff corporation wrote its satisfaction with the price proposed, delivered the coal, and received full payment of the bill certified by it to be correct and just. It is true the requisition and its acceptance did not constitute an enforceable contract because the government, having reserved the right of revocation at any time, - was not bound, and hence there was a lack of consideration and mutuality; but upon performance by delivery and payment under the requisition the seller was bound and cannot ask a greater price than it agreed to accept and received. Willard Co. v. United States, 262 U. S. 489, 43 S. Ct. 592, 67 L. Ed. 1086; Atwater & Co. v. United States, 262 U. S. 495, 43 S. Ct. 595, 67 L. Ed. 1089. There was no duress nor compulsion on the part of the government. On the contrary, there was a favorable option to the plaintiff of receiving three-fourths of the government’s valuation in cash and afterwards asserting its own valuation before a jury. Gibbons v. United States, 8 Wall. 269, 274, 19 L. Ed. 453; American Smelting & Refining Co. v. United States, 259 U. S. 75, 42 S. Ct. 420, 66 L. Ed. 833; Consolidated Coal Co. v. United States, Court of Claims 8262, decided January 26, 1925.

Ebbert, the sales manager of the plaintiff corporation, was allowed to testify that ha and the corporation did not mean what they said when they sent to the Navy Department the statement as to satisfaction with the price, signed by him; and that in the letter of the same date saying the plaintiff wished “it understood that they do not waive any legal rights that they might have in the matter,” he meant to reserve the right to claim dissatisfaction with the price. General reservations cannot defeat specific provisions in written papers.

“Where there is a -repugnancy between general clauses and specific ones, the latter will govern; and even if there is no actual repugnancy if the-words of the contract are taken literally, yet when from the whole instrument it appears that the purpose of the parties was solely directed towards the particular matter to which the special clause or words relate the general words will be restrained.” 2 Williston on Contracts, p. 1200; Hollerbach v. United States, 233 U. S. 165, 172, 34 S. Ct. 553, 58 L. Ed. 898.

Whatever the. plaintiff meant to reserve, it could not have meant to reserve the price which it expressly told the Secretary of the Navy was satisfactory. Nor can its manager now be allowed to deny what he plainly wrote in accepting the government’s order. The estoppel of the plaintiff to contest the price was made complete by the acceptance of payment without objection, thus procuring the purchase money from the government on its representation that it was satisfactory. American Smelting & Refining Co. v. United States, 259 U. S. 75, 42 S. Ct. 420, 66 L. Ed. 833.

We are not concerned with fhe reason which induced the plaintiff to accept the price proposed by the government when the market price may have been higher. The government offered on the trial to prove as a reason that the plaintiff had outstanding contracts for future delivery of coal at a lower price, the frustration of which was beneficial to the plaintiff, but this evidence was excluded as irrelevant on the objection' of the plaintiff; therefore, it cannot now be allowed to support its contention that it did not intend to accept the government’s price because acceptance would have been unreasonable.

The coal delivered after September 17, 1920, on the communication and order of the government of August 18,1920, requires special consideration. It is true that the plaintiff, having signed at the foot of the order a statement that “the price mentioned as reasonable is satisfactory,” sent its letter of the same date expressly protesting that the price was inadequate, thus putting the government on notice of .dissatisfaction.

If the matter had stopped there, the letter putting the government on notice of dissatisfaction with the price possibly would have entitled the plaintiff to recover the difference between the price paid and the market price for all coal received from it by the government after September 17, 1920, the date of the protest. But the recovery could not have extended to coal delivered before September 17, 1920, for up to that time plaintiff had expressed satisfaction with the price.

As we have stated, however, the,government after this protest of September 17, 1920, again increased the price to $4.3604 for all coal delivered after August 16, 1920. This increase, retroactive to August 16,1920, a month back of its protest, the plaintiff without objection accepted, presented its claims therefor, and received payment. It cannot be held that its protest as to prices on September 17, 1920, is now effective as to subsequent deliveries when after that protest it accepted and received without objection an increased price covering the period to which the protest was limited.

The case comes to this: T£e plaintiff, with full knowledge of the statute and its rights thereunder, and with the most explicit directions of the Navy to say that the price was satisfactory or not satisfactory, over its signature, said ' the price was satisfactory and received the full price. Its protest that the price was inadequate of September 17, 1920, was of no avail when after the protest the government increased the price of the coal delivered after August'16, 1920, and the plaintiff accepted the increase and received payment at the increased price without objection. We think there is no basis in the evidence for any recovery.

Reversed.