scuttled and sunk, and not along-side the wharf, chargeable with full wharfage rates, the same as for a vessel along-side and using the wharf in the ordinary ways of commerce for loading or unloading, or riding in safety afloat. I do not think the mere stretching of a line to the dock, under these circumstances, constitutes such wharfage as is referred to or intended in the resolution, and it should not be, charged for as such. I allow, therefore, the sum of $9.24 for one week, at the rate of one cent per ton, with interest, $1.62, making $10.86, with costs, and I the residue of the claim. Judgment may be entered for the libelant accordingly.
" Wharfage is a charge for the use of a wharf, made by the owner therefor,
by way of rent or compensation." Parkel'sbu1'U & Ohio Riv61' Tran,yp. 00. v. Oity 0/ Parkersburg, 2 Sup. Ct. Rep. 732.-[ED.
THE GRAND REPUBLIC,
(Ih'st1'2'ct Court, 8.D. New York. April 11, 1883.)
1. RULES OF NAVIGATION-INSPECTORS' RULES-SECTlON 4233-SECTTON 4412. The rules of naVigation established by the supcrvising inspectoTl'l under section 4412 of the Revised Statutes, are valid and binding, in so far as they do not conflict with the statutory rules of naVigation in section 4233. 2. SA)IE-1\ULE 2. Rule 2 of the supervising inspectors, which rcquircs a steamer in the fifth situation, having the other steamer on her own starboard bow, to go to the right, is not in conflict with rule 19 of the Revised Statutes, § 4233, though it takes away the option existing under the latter to go to the right or the left. 8. CONTRARY SIGNALS-RuLE 19. Where the steamer G. R was coming up the middle of the North river, having the steamer A. about ·one point on her starboard how allout a mile distant, and the latter was coming down the river from the easterly side, heading somewhat tothe Jersey shore, and the latter gave one whistle, which was not heard by the G. R, and the G. R, when half a mile off, gave two whistles, which were answered uy one whistle, to which the G. H. replied with two whistles when only one-eighth mile distant, and a collision ensued, and neither steamer slackened her speed until they were within two or three lengths of each other, lkld, that both were in fault for not slacking sp('ed sooner, and that the G. It. was further in fault for not porting her helm to go to the right, as reqUired by the inspectors' rule 2.
THE GRAND REPUBLIO.
Wm. H. McDougal, for Martin & Haskell. Stapler & Wood and O. Van Santvoord, for co-libelant H. & H; Manuf'g Co. II. E. Tallmadge, for co-libelant Garvey, adm'x. Hcnry T. TVing, for insurance companies. D. x T. McMahon, for claimants. BROWN, J. The several libels and petitions in this case were filed to recover damages for the loss of the steam-boat Adelaide, by· a, collisio'n with the Grand Republic, in the middle of the Hudson river, off Leroy street, at about 7.50 P. M. on the nineteenth of June, 1880. Both were stout, staunch, and powerful employed in the excursion and passenger business about New York. ' The Adelaide was running to and from the iron pier at Long BraJilch. She had made her last landing on her return' trip at' the foot of Twenty-second street, in the North river, where she had disch'atged her passengers, and was steaming down the river tow-ardsher berth, near Communipaw ferry; Jersey City, where she was to lay up for the night. The Grand Republic had been upon an excursion, and had landed her passengers at 'Jewell's wharf, Brooklyn, and was returning to ,lay up for. the night at the foot of Twenty-fourth street, North river. After rounding the Battery she kept off and reached about the middle of the river at Courtlandt street, when she was headed nearly ,directly up the stream, or probably a little westerly, and kept nearly upon the same coursa until she struck the Adelaide, near her forward gpngway on the port side, causing the latter to sink in a few moments. For the reRpondents it is claimed that the Adelaide, when first seen about a mile distant, was coming straight down the river, and much nearer to the New York 'Shore, until shortly before the collision, when she gave a sheer to the westward and undertook to cross the bows of the Grand Republic, when it became impossible for the latter to avoid her. The witnesses for the Adelaide testify that after leaving Twentysecond street she was heading for about Communipaw ferry, and that the Grand Republic, when first seen, somewhat above a mile distant, was also heading somewhat to the Jersey shore ; that the Adelaide, when about a mile distant, gave one signal whistle, indicating that she would go to the right; that the Grand Republic, when half milediBtant, first replied with two whistles, and at the same time steered more to the westward, to which the Adelaide again gave one long whistle, to
which two WhIstles were again answ()red by the Grand Republic, which were followed by several danger signals from the Adelaide, when her helm was put hard aport and all steam put on in the endeavor to escape the Grand Republic, the collision appearing then to be otherwise unavoidable. On the part of the Grand Republic it is testified that none of the whistles of the Adelaide were heard except the last danger signals, a fElw moments only before the collision; that her own first two whistles were given when the steamers were half flo mile apart; the second two when they were about one-eighth of a mile apart; and that immediately thereafter she stopped and reversed at full speed, when from two to three lengths off, at the same time giving several danger signals. Eaoh olaims that if the other had kept on her oourse when their first whistles were given the .collision would not have happened; the Adelaide claiming that the Grand Republic would have passed port to port, and the Grand Republio claiming that they would have passed starboard to starboard. It is not necessary to examine in detail the numerous points upon which the witnesses disagree. The'collision could not have occurred except through a gross of the rules of navigation by one or both of the vessels. There were no obstrUGtion8'in the river on either side ; the weather wu,sc)ear; the. wind light; the time less ;than a quarter of an hourl;l,fter sunset; and the oourse of each was in full view of the othet. Some controversy has arisen on the argument in regard to the courses of the two vessels in reference to each other, and whether these courses fell within what is known as the fifth situation in the supervisors' inspeoting rules and their rule 2, or in the . sixth is, "head and head, or nearly Bo,"---within rule 1. ,.The test whether steamers will be considered as meeting "-head and head" is whether the colored lights of each would be seen to the other. If that test be applied, the steamers were not in that situation, according to the evidence em both sides. From the evidence on the part of the Adelaide; and the probabilities of the case, as she was bonnd for Commnnipaw ferry, I have no doubt that on leaving Twentysecond street she took, as .her witnesses testify; a direct course thither; nori have I any doubt that the Grand Republic;, after passing Chambers street, was headi.ng up the middle oftha river; th0ugh probably a little to the westward. Upon these ()ourses their paths would cross
THE GRAND RKPUBLIC.
by an angle Of at least one point. 'e Severalwitnesaes ft6m the Grand Republic also state that the Adelaide;frOin the time when she was first seen, bore from one to one and a half points on their own starboard bow. Her two colored lights could not, therefore,have been seen on board the Adelaide. When the Adelaide was first seen by the pilot of the Grand Republic off Vestry street, the former was about off Eleventh street, or three-quarters of a mile distant. From all the evidence, I am satisfied the Adelaide was then at least one·third of the distatlce out from the New York shore,as her pilot testifies; and that she bore from the Grand Republic one point on the latter's starboard bow. A drawing of the situation will show that the Grand Republic must, therefore, have been heading a little towards the westerly shore of the river,and that the situation was, therefore, the fifth, rather than the sixth, as indicated in the inspector's rules, (p.SS.) It is not, however, material in this case which situation should be regarded. a6 the true one, as respeots the obligation of the Grand Republic, for, whether it was the fifth or the sixth, the pilot rules equally required the Grand Republic to port her helm and go to the right, there being nothing to make it necessary tO'depart from this ' By the nineteenth statutory rule (seotion 4233) the vessel which has the bther on her own starboard side is required to keep out of the way; while the other, in such case is, by rule 21, required to keep her course; and this applies to the fifth situation. The Grand Republic having the Adelaide oniher own starboard hand was, therefore, bound to keep out of theway.\ Independent of the inspector's rules she would, doubtless, have had the option of shaping her course either to the right or left, for the purpose of keeping out of the way. New York, etc., Co. v. Runwalt, 21 How. 872, 384. The inspector's'rules and directions (rule 2, pp: 83, 87) take away this option, and require a steamer in such case to pass to the right; while the other vessel, which by the statute (rule 23) is bound ", to keep her course, must, according to the inspector's directions,"eontinue on her course, or port her helm, if necessary to avoid a collision, eaoh having previously given one blast of the steam-whistle." The supervising inspectors are by seotion ·;4412 authorized to "establish such regulations, to be observed by all steam-vessels passing each other, as -they shall from time to time deem necessary for safety." The rules thue established are obligatory;'so far as they are not in conflict with. the statutory regulations. ,The Milw'lUkee,
Brown, Adm. 313, 321. Rule 2 of the inepectors, in taking away the option of the vessel bound to ,keep out of the way to go the left if she chooses, when in the fifth situation, is not in conflict with the statutory rules, and is, therefore, binding. The direction for the other vessel to "keep her course, or port her helm if necessary to avoid a collision," is unfortunate, I think, in the latter branch of it, as it is liable to be misinterpreted as an authority to vary from the statutory obligation to keep her course under rule 21, except in the special circumstl\-nces referred to in rule 24, although probably not so designed. From the courses ot the vessels, as I have above described them, it is manifest that there wae danger of collision from the time of firstE!igullils. The duty of ,each was perfectly fixed by the rules. The Grand Republic was bound to keep out of the way by passing to ,the right, and the Adelaide was bound to keep her course. Both were also required to Blacken,ap,eed, and also to stop and, back if necessary. ,The witnesses' ()n the part ,of the Adelaide contend that the Grand Republic continually starboardiug her helm in accordance with her two whistles; and one witness who was behind her testified that he saw her l'\ldderbladeiLldic!\;ting the· helm hard to starboard just before Her own. witnesses claim that her helm was not untilj>he stopped and her engines, when the vessels about twO! lengths aplJ,rt, .and that then she ported. From this it ismanifflst that took noAimely and proper ,lP.(l;<\.sures to thec,ollisiduan:d keep out of tlte·way, as she was Pllund to There was nothing in the circumstances making it necessaufqr hertostarboard}l:er helm rather than port; and if she had from the time of her first two whistles, .when half a mile off, ail the witnesses testify, sbe was violating the il1spectOli'S' rule whicl;l requiredherio ,pass to the right. 1£ she made nl;) change in.. helm until within- two or tllree lengths, as is claimed on her 'part,'she.persisted in her ,course in 81lite of obvious risk of collision long after she was bound, by ,the rule to have ported in order to avoid it. The excuse given, that she was waiting to hear a reply to her tWQwhistl-esJ atJd that she h:eard none until after· her secbnd blast of two whistles, is not' valid. I cannot doubt that einglewhia. tIes were given from the Adelaide, as; teiJ;tified,to by. those on board pf her au4\1 by ot,her iwitnesses who heardth:eni. That they Were not hea.rd, onboa1'1i tl.te Grand Republic did not .excuseher fwm making a timely change of course as required by the rules.
THll:· GRAND REPUBLIC.
The urand Republic was also equally in fault for .not slackening speed until within two or three lengths. Each steamer was going at the rate of about 11 miles an hour, and they were,therefore, approaching each other at a combined speed of about 22 miles an hour. TheGrand Republic was 300 feet long; the Adelaide, about 240. Had the former stopped and reversed a quarter of a minute sooner; the Adelaide would have passed safely. The excuse given on the part of the Grand Republic for not slackening, that until her second signal of two whistles, when they were about an eighth of a mile apart, the Adelaide was coming down upon a parallel course ripon her starboard side, cannot be accepted as the fact. The contrary appears,.not merely from all the Adelaide's,witnesses, but from the claimant's witnesses also; for, from their testimony, it appears that while the, Adelaide 'was from one to one and a half full points on her: starboard bow, when nearly .a mile distant, at the time of the second was still no further, but rather less, upon their starboard Ibowj thCiugh ··then only one·eighth of a mile apart'; whereas, had they been proceedingon parallel courses,' must, in coming within an 'eighth of a mile l havebr(}adened much more' to sta,rboard; so that, even in the night-time, and had only the Adelaide's .red visible, the fact that she did not broaden off to starboard would have been conclusive evidence to ,the Grand R,epublic that the former was crossing the latter's bows. The Adelaide's course, however, was perfectly visible to the Grand Republic, and it was obvious that she was crossing the latter's bows, even before the'sheer to the westward, at the time of the second two .whistles., It is, therefore, impossible to exempt from the charge of gross neglect of hold the Grand the rules, both in not stopping and :as in ·notshaping·her course to the eastward . . It is thltttheAdelaide iiifal}.lt; signal. of two whistles, afte:r; the ,Adfllaide's. 0lle ,wp.istle, was" qf.i tself, under the circumstances, the strongest warning of danger. "The'vessels were then but half a mile apart, and within a minute and a hltlf '0£ crosBing, othees 'it was th,e duty of the Adelaide "to.keepher c0urse," it. was also her duty to under rule evident danger ofcollieioll j within the meaning of that rule. The D. S. Gregory, 2 Ben. 226, 234; The 'MiilJ;ettikee, '1 Brown, Adm.. 322; The City of New! York; 15 FED. REP. 624-627. She made no attempt to slacken speednntihifterth+e second two .blasts from the Grand Republic, when of
a mile distant, or less than three lengths, and when within some 11) or 20seoc>ndsof collision, and this attempt was immediately reversed by an to move on at all possible speed. It is most probable, from the situation, that a collision at that time was unavoidable, and that the order 'by the captain of the Adelaide to go at all speed offered the only' chance of escape then remaining, and that this wonld have been successful if the Grand Republic had earlier slackened speed, and, stopped and backed seasonably, as she was bound to do. Although I am not prepared, therefore, to hold the Adelaide in fault for this: last order, nor for her hard-a-port wheel in connection with it, this does not in the least diminish her responsibility for her previous neglect of rule 21, which required her to slacken her speed from the time of the first contrary signals, when there arose obvious risk of -collision. Had the Adelaide then slackened her speed, she would after'lfll.rds· have had no difficulty: in reversing at once, if necessary, and thus have easily avoided the collision. The damages must, therefore, be'apportioned between the two ves'sels,f'and a reference ordered to compute the amonnt; and, at the .same time,proof may be taken as to the rights and interests of tha various libelants and petitioners.
(Oircuit Court, E. D. Penna.1JlfJania.
1. ADMiRALTY PIiAOTICE-Al'PEAL-SUPER8EDEAS.
An appeal to, the supreme court o.f the United States from the judgment of the circuit court, a decree made by the district court, duly entered, with stipulations approved by the court, does not operate as a 'Ruperaedeaa, or vacate the decree, so as to prevent the entry of judgment agailist the stipulator& in the district and circuit courts.
2.,JUDGU\J:NT 0:1'1 ApPEAL-LmN OF'. . '
Upon an appeal to the supreme court, duly entered, with stipulations approved by the court, a judgment will be entered against the stipulators in the' district and circuit courts, and such judgment will remain 8S a lien against them until ihe appeal t(l the supreme court ,shall have been flna])y determined.
Petition to Vacate the Entry of Judgment against stipulators the circuit courts in admiralty. '
_Reported by' Albe. t B.Guilbert, Esq., of the Philadelphia bar.