evidence, circumstantial in nature and before the fact, that lights were present at the time of collision because they had been placed there previously. I am asked to find this despite positive testimony that none were. Positive testimony from persons charged with navigation of a moving vessel should not under the law be lightly disregarded. Philadelphia & R.R. Co. v. River & Harbor Imp. Co., 3 Cir., 1910, 183 F. 109; The John H. Starin, 2 Cir., 1903, 112 F. 236.
One final contention of the libellant is that the ship was at fault in merely stopping its engine and in failing to reverse when officers on the bridge had knowledge that an object lay dead ahead. There is no doubt that the order to stop the engine was given immediately upon receipt of the warning from the lookout. A reading of Shanahan's testimony demonstrates that reversing the engine at that point would have been a futile gesture. It also clearly indicates that when he saw the scows he knew that a collision was inevitable so he fell on his knees and braced himself so as not to be thrown when the collision happened. His estimate of the time involved is three-quarters of a minute more or less. Running at maneuvering speed, which it was entitled to do at that point, the distance involved would probably be not more than one ship length. Clearly, no ship of this size could be stopped within that distance, even had a full astern order been immediately given. The testimony of the master of the vessel and of the third assistant engineer is that it would require approximately one-half a minute to stop the engine and put it at full speed astern. That is the exact approximation of time made by the master between the lookout's signal and the collision. It is hornbook law that no one can be criticized for failing to act with precision in an emergency situation created by someone else's fault. Certainly, the one at fault is not entitled to make this complaint.
It appears to me that on the question of liability the weight of the testimony preponderates in favor of The Calmar and, therefore, I conclude that the steamship Calmar was not at fault and the libel should be dismissed. Further, The Calmar mar is entitled to recover on its cross-libel.
Conclusions of Law
1. The Court has jurisdiction of the subject matter and of the parties to this suit.
2. American Dredging Company was at fault because no scow in the flotilla exhibited an anchor light visible to the approaching Calmar.
3. The failure of the scows to exhibit proper lights was a statutory fault which was the sole inducing cause of the collision.
4. The steamship Calmar maintained a proper and vigilant lookout.
5. Said lookout promptly and efficiently reported the earliest actual sighting of the scows.
6. Steamship Calmar's speed and navigation were at all times proper.
7. The normal presumption of fault against a moving vessel created by collision with an anchored vessel has been overcome because the Dredging Company and its vessels committed statutory faults which alone account for the happening of the collision, and the Dredging Company thereafter failed to show, by clear and indisputed evidence, that causative fault was committed by the steamship Calmar.
8. The libel of American Dredging Company should be dismissed with costs.
9. The steamship Calmar is entitled to recover on its cross-libel.
10. A decree may be entered in accordance with the foregoing findings of fact and conclusions of law.
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