The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 45
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THE MELBOURN P. SMITH
none of these provisions can in any way inure to the benefit of persons
not in such service and therefore, unless one or the other of these
defendants can show that he was in such service at the time this judg-
ment was rendered the failure of the plaintiff to file affidavit that
such was not the case becomes wholly immaterial, so far as any right
on their part is concerned, to disturb or cause this judgment to be set
aside. They do not assert or claim to have been in such service, and,
on the contrary, the plaintiff tenders an affidavit that they were not.
I can see no reason why such affidavit, uncontradicted by defendants,
cannot on this motion be accepted and filed, to show that no injustice
in this particular has been done defendants and no error in rendering
the judgment to their prejudice has been committed.
The motion to set aside must be overruled.
THE MELBOURN P. SMITH.
(District Court, E. D. Virginia. Feirnary 18, 1919.)
1. COLLISION 8V-VESSELS IN FOG--EVIDENCE AS TO SIGNALS.
Positive testimony of the officers and others on board that the correct
signal was given by a schooner at night in fog, shortly before collision,
showing the tack she was on, cannot be overcome by testimony of those
on the other vessel, half a mile away, as to the signal heard by them.
2. COLLISION e:*:82(2)-STEAM AND SAILING VESSEL IN FOG-EXCESSIVE SPEED.
A collision at sea at night in a fog between a steamer and schooner
held due solely to the fault of the steamer, which was the burdened ves-
sel and admittedly going at 9 or 10 knots when she saw the schooner half
a mile away, after hearing her fog signals for some time.
In Admiralty. Suit for collision by R. J. Leseman, master of the
schooner Melbourn P. Smith, against the steamship Ontario, with
cross-libel. Decree for libelant.
Edward R. Baird, Jr., of Norfolk, Va., for the Melbourn P. Smith.
Hughes, Little & Seawell, of Norfolk, Va., for the Ontario.
WADDILL, District Judge. This litigation involves a collision be-
tween the sailing ship Melbourn P. Smith, and the steamship Ontario,
which occurred about a quarter past 12 on the morning of the 21st of
March, 1918, in the Atlantic Ocean, some 30 miles to the northward
and eastward of Cape Charles Light. The schooner was a four-
master, en route from New York to Newport News, for a cargo of
coal. The Ontario was one of the Merchants' & Miners' Transporta-
tion Company line of steamers en route from Norfolk to Boston.
The weather was thick, rain especially heavy, and the wind blowing
30 miles an hour from the eastward.
The material facts, save as to whether the schooner was sounding
a signal of one blast, indicating it was on the starboard tack, or two
blasts, indicating it was on the port tack, are not in serious dispute.
The collision occurred, in the main, as claimed by the libelant. That
the weather was,thick, that each vessel was giving -appropriate fog
O::For other cases see same tolic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/59/: accessed March 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.