Marine Review (Cleveland, OH), July 18, 1895

It would seem that the vessel captain who will stop and back his engines every time there is the remotest possibility of a collision of any kind will best serve his owners, or the underwriters carrying a risk on the vessel. Another collision case, that of the Leatham & Smith Wrecking & Towing Co. of Sturgeon Bay, Wis., owners of the steamer THOMAS H. SMITH, against C. W. Elphicke & Co. of Chicago, owners of the steamer ARTHUR ORR, has resulted in a division of damages. The decree is from United States District judge Seaman of Milwaukee. The collision in which the SMITH was sunk occurred near Racine, Wis., on the night of Nov. 11, 1893, in a dense fog. The ORR had been fitted up for world's fair passenger traffic, and was on her first trip as a freight steamer, after her temporary cabins had been removed at Milwaukee, when the collision occurred. The owners of the Smith sued for $25,000.

In ordering a division of damages judge Seaman held that the ORR had been traveling too fast and was at fault in that she did not stop when she failed to clearly understand the SMITH's signals, On the other hand, the SMITH had failed to stop when she heard the ORR's signals, and instead, had ported and swung across the ORR's bows. She should have waited until she fully understood the ORR's signals before changing her course. Under the circumstances he could not hold that it was a maneuver in extremis, which could be excused. An interesting point was raised by counsel for SMITH to prove negligence and responsibility on the part of the ORR. The collision occurred, as stated, in a dense fog. The SMITH left Chicago before the fog settled down, but the ORR left Milwaukee in the thick of it. The point raised was that the master of the ORR had been guilty of negligence in leaving port in a fog. judge Seaman decided that it was not negligence. He said that he was satisfied that leaving port in a fog could not be held to be per se negligence. The law as he understood it allowed a vessel to leave in a fog, but constrained her to the utmost care to avoid collisions.