The allegation in the libel is that during the 12 hours the towing lasted the sea was continuously rising and the wind getting stronger, and the severity of the weather such that great care was required, and at 6: 30 the wind had increased to a gale, and the seas running exceedingly high, so that the hawser had to be cast off. But the proof of the claimants convinces me that when the hawser was cast off, although there was some little more wind and sea than in the morning, the increase was slight, and that the speed of the towing had not noticeably diminished. The log-book of the Gaudaloupe does not support the statements of the libel; the entries being, "at 6: 30 P. 111., weather cloudy; strong wind." At 1 A. M., during the night following, "cloudy weather, moderate north-east wind, and small sea." The barometer had remained high, without marked change. The proof leads me to the conclusion that Capt. Nickerson ordered the hawser to be Gast off, not on account of any change in the weather, as the libel alleges, but because he began to repent of the undertaking, and to return to his original idea that his duty to the owners of his steamer, and to the owners of the cotton, required him to make all speed to New York, and not to run the risk of being oLliged either to delay 10 or 12 hours in the Chesapeake for coal, or to go to sea from there with a very scant supply. I do not think it was the weather which changed, but his mind. Taking Capt. Nickerson's own version of the agreement,-that if he would take hold and tow, and had to let go, he would be paid for what towing he did,-I do not think the libelant's case is made out. lt must have been intended that he was to continue to tow until, from some change of circumstances, he was compelled to let go, not merely so long as he might continue to think it for the interest of his owners. Otherwise it would have been folly for Capt. 13arwise to agree to pay the high rate usually allowed for such towage merely to be left in a position no better than he was at first, and it would have been misleading on th<= part of Capt. Nickerson to have undertaken such a service. The conduct of Capt. Xickerson, upon observing the signals of distress, in going out of his course, and in lying by the Algitha during the night, evinced a highly commendable spirit, and it is with hesitation that I deny all compensation for their delay, and for the 12 hoUl's' towing; but as the Algitha, without any stress of weather, ,vas left by him as helpless, and in at least as unfavorable a position, as where he found her, if not in a worse one; and as he abandoned her without any communication or consultation with her master; anu as I find that the contract, regarded simply as a towage contract, was not performed,-I do not think it is a case in which there shoulu be any recovery. BCI:vices to vessels in distress should be encouraged, but not such as y01untarily lea ye the disabled yessel in the same plight. I think the duty of tlle court is well indicated by Judge 13EXEDICT in
!he Edam, 13 FED. REP. 140. Speaking of the frequency with which It now happens that steamers are left, by accidents to their machinery
at sea, wholly dependent on other steamers for relief, he says:
co It appears a duty owing by the courts of admiralty to the public to gi ve a reward 5utficiently liberal to induce the master of any steamer to overcome all unwillingness to assume additional labor, to put aside his desire to make a direct ami quick passage, even to disregard the express instructions of his Owners, in favor of the request of another steamer disabled at sea to be towed to a place of safety."
Libel. dismissed, without cos:s to either party.
THE RHODE ISLAND. THE EBEN FISHER.
(District Court, S. D. Neto York.
July 18, 1883.)
COLLTSION--STEAMER-"MODERATE SPEED IX FOG.
Fifteen miles an hour in a dense fog, in Long Island sound, is not a moderate speed in a steamer; and where, by moderate speed, a collision would have been aVOided, the steamer held liaLle.
Although no express statute then refjuired sailing vessels to slacken sail and go at a moderate speed in a fog, in a thoroughfare where other vessels must be expected tu he met, such was, nevertheles." the duty of sailing vessels in tho exercIse of ordinary prudence in navigation. The new regulatiuns require this.
A rate of speed at night and in a dense fog which is immoderate and excessive for a steamer, is le.s justifiahle in a sailing vessel under the same circumstances, as she has less facilitks for quickly and changing her movements. A speed of seven miles an hour having been rcpcatedly hgld exccssive in steamers in a dense fug, htld, therefore, cxcessive in a schooner, and careless navigation, for which the schooner should be held in fault.
5. 20. . Ible 20, requiring steamers to keep out of the way of sailing vessels, cannot , be construed to justify in sailing ,'es els a speed which would be deemed excessi,e as regards thcir duty to other sailing vessels which they are bound to avoid. 6. OF PLEADIXGS. "'here the libel did not expressly chargc cxccssive ratc of specd in thc schooner, but the facts appeared in tile schooner's testimony, and there being no dispute about them, Iteld, the pleadings should be deemed amended accordingly. 7. F"\ULT. ,Yhere a collision took place hetl>een the steamcr n. 1. and tht' schooner E. F., aLolit S P. in a den;;e fo;, in LOIlg Island sound, at the commencement of the pilotage ground, numerous otlJer steamers and vessels should be expected to be and the st('f,aler was going at the rate of 15 miles per hour, and the schooner sailing before the wind 7 miles per hour, ilnd the collision would ha\'c been '1\'oided had either Leen going at a more moderate speed, held, Loth \I'ere in faua.