APPEAL from the Circuit Court for the Southern District of New York.
Chapin libelled the propeller Hypodame for a collision which had occurred on the Hudson River, on a December night, 1862, a little below Dunderberg, between the propeller just named, then going up the river, and a schooner of his descending it, by which the schooner was struck on its port side near the cathead, split open for ten feet or more, and sunk before she could be towed into shallow water.
His allegation was that the propeller, ascending the river on its east side, at the rate of eleven or twelve miles an hour, with no proper lookout stationed or attending to his duty, ith plenty of room to have passed safely, had not done so, but, making a rank sheer from her previous course, though hailed by the schooner, and though the hail was heard, had run at full speed into the schooner, descending the river on its west side at the rate of but a mile and a half an hour, and sunk her; that by reason of the collision he had been put to great expense to raise and recover the vessel and cargo; to repair the one and save the other, the amount and particulars whereof could not as yet be correctly stated,' but would as believed exceed in the aggregate $6000.'
On the other hand, the answer denied that the propeller was going at any such rate of speed as that pretended by the libel, averring that the speed was much slower than even six miles an hour; in fact, 'very slow;' that she had one bright light on the stem forward, which shone right ahead, and four points on either bow; two bright lights on the flag-staff aft, which shone all around; a red light on the larboard side, and a green light on the starboard; with a competent lookout placed in a proper position on the forward part of the propeller, and attentive to his duty, as was the master, and also the other officers; that to avoid an apprehended danger with a steam-tug and tow descending the river, she had changed her course to the westward, giving the usual signal of such intention by two blasts of her steam whistle; that shortly after this change of course had been made, a hail was heard on board the propeller from some boat or vessel on the river, but that no boat or vessel could be seen from the propeller by reason of the darkness of the night and from the omission on the part of the vessel to show any light; that the propeller's engine was immediately slowed, and then stopped, when, at that same moment, the headlights of the propeller, shining on the sails of a vessel, revealed, for the first time, the schooner; that the bells of the propeller were rung to reverse the engine, and that this was promptly done, and the steamer's helm ported to ease the blow of the collision; inevitable, now, however, by any effort on the part of the propeller, from the close proximity and course of the schooner at the time of the hail and of the discovery on the propeller of her critical position.
The facts as assumed by both the courts below, were essentially these: