This case turns almost altogether upon questions of fact, and particularly upon the existence and density of the fog at the time of, and immediately before, the collision. From the opinions both of the circuit and district courts it would appear that libelant took the ground in both courts that there was little or no fog prior to the collision, and no fog signals were given by the tug, while the steamship's witnesses claimed that the fog had set in from 15 to 30 minutes before, and became so dense that neither the tug nor the bark could be seen over 400 feet distant; and that the steamship was regularly sounding her steam whistle. If there were no fog, then the steamship was grossly and inexplicably in fault for starboarding, after receiving two whistles from the tug, and subsequently porting, and attempting to pass between the tug and her tow. Indeed, the very flagrancy of her fault in this particular was such as to lead to the belief that it is not likely to have been committed.
In this court, however, libelant takes the position that the steamship Holberg was in a dense fog from the time of passing the Narrows, at about 4 o'clock, up to the time of the collision, at 4:26; that the Quickstep was not, however, in this fog, and hence the witnesses on the steamer, looking from the fog into clear weather, could see the tow further than the witnesses on the tug, looking into the fog, could see the steamer. The difficulty with this assumption is that there is nothing in the facts to support it. The seventh finding is that 'at the time and place of collision there was so much fog as to prevent vessels from being visible to each other more than a short distance (estimated by the witnesses from the Holberg at between 200 and 300 feet), and such as to require the sounding of fog signals under the rules. Such signals were sounded by the Ludvig Holberg. This fog had prevailed between the Narrows and buoy No. 11 during a period of at least 15 minutes before the collision.' Finding No. 10 is: 'While she [the steamship] was thus proceeding, she heard one blast right ahead; then another, a little more on the starboard bow. Both these were blown by the tug, which was not at the time visible through the fog to those on board the Holberg.' The opinion, too, of the district judge is the direct converse of the respondent's argument in this particular, wherein he says: 'Some further explanations of the discrepancies between the witnesses of the bark and of the Ludvig Holberg may be found in the fact, often testified to before me, that objects cannot be distinguished so easily or so far in looking toward the fog as in looking away from it. The bark's witnesses may, therefore, have been able to distinguish the steamer before the latter could distinguish the bark.' There is a further finding (No. 8), that the Holberg 'ran into this fog about the time she passed the forts,' from which we infer, and such also is the testimony, that the fog was coming up the bay from the southward, whereas the theory of the libelant assumed that there was a bank of fog at and just below the Narrows, while the weather was comparatively clear where the Quickstep was.
The stress of the libelant's argument is that, considering the state of the weather, the steamer was not proceeding at the moderate rate of speed required by law in foggy weather, and did not take prompt measures by stopping and reversing to avoid a collision. The finding as to her general speed is (No. 5) that she 'started from pier 15, East river, some time between 3.05 and 3:15 p. m. She ran slow out of East river, but soon increased to full speed, and continued to run at that rate until, fog having set in, she reduced to half speed, and later to dead slow. Her motion through the water was, while at full speed, about 9 to 9 1/2 knots; while at half speed, about 6 1/2 to 7 knots; while at dead slow, about 3 1/2 knots an hour. She had been running at the latter rate for a few minutes only, probably not more than four or five, before the collision. (6) She was off Bedloe's Island between 3:27 and 3:32, and it was nearly 4 o'clock when she reached Fort Lafayette. The distance from that point to the place of collision is a little over 3 1/8 knots.' (8) 'At that time [as she passed the forts] she began sounding fog signals, but did not reduce her speed until she had run some distance below the forts. Then she reduced to half speed only, and did not further reduce her speed until about buoy No. 13. (9) By the time she reached a point a little below buoy No. 13, she had slowed down to about four knots over the ground. From that point to the place of collision, a distance of 4,500 feet, she did not increase her speed.'