THE LITUANIA

THE LITUANIA. (District Court, D. Maryland. April 20, 1911.) Collision (§ 79 ) — Steamer and Schooner — Failure to Caret Lights.^ A steamer held not in fault for a collision with a schooner at night, on the ground that the schooner was not carrying lights, and could not have been seen from the steamer in time to have, prevented the collision. [Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 123, 139, 151; Dec..Dig. § 79.*] In 'Admiralty. Suit by Thomas E. Dawson, as master of the bugeye Edgar M. Schall, against the steamer Eituania. Decree for respondent. Milton Roberts, for libelant. George Forbes and Convers & Kirlin, for respondent. For other cases see same topic & ¿ number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — ROSE, District Judge] ROSE, District Judge (orally). There is no question as to rules of law applicable. I am not deciding the question on the relative number of witnesses for the steamer or for the schooner. I am not even deciding the case,' I may say, on any superior reliability that I attribute to the witnesses on the part of the steamer. I have seen but one witness from the steamer; but I have seen witnesses for the .schooner, and I have heard their testimony, and after I heard them testify the conclusion is very strongly borne into my mind that the schooner’s lights were not burning. Therefore it is not a question of the burden of proof. It is not a question of negative against positive testimony. It does not seem to me that the testimony given by the members of the crew of the schooner was true. The only question in the case is whether the steamer is at fault, even then, for not seeing the schooner. I can hardly think so. I know of such nights as those that have been described by the witnesses, where it is clear overhead and where it is exceedingly hard, unless there- is a light, to see near the water. In this case this steamer was moving, as it had a right to move, perhaps at 10 miles an hour or more; that is to say, it was moving over a mile in six minutes. I doubt very much, under those circumstances, whether a most diligent lookout would have discovered or could have discovered a schooner, if it had no lights out, in time to avoid the accident. The steamer was moving that night at such a rate that in a minute it would pass over approximately 300 yards. I doubt if with the greatest possible vigilance anybody on that steamer could have seen the schooner moré than 100 yards away. That would have been only 20 seconds before they came .together, a time absolutely insufficient to have made the slightest practical change in either the speed or the course. Those on the steamer saw the schooner as soon as the most vigilant man could have seen it, but they saw it too late to take any precautions. Under the circumstances, I shall have to dismiss the libel.