iHE ANNIE J · PARDEE.
The case is not free from difficulty. The evidence is conflicting and very evenly divided. It consists of the testimony of the men on the two vessels, and of men on other vessels in the vicinity at the time. These all appear to be intelligent and honest witnesses. It is apparent from the relative situations of the two vessels and the surrounding circumstances that the accident could not have happened unless one of them at least was at fault. The lights of the steamer and of the Alice Montgomery are confusing elements in the problem. The libel of the Wellington omits to state.the important fact, testified to by her master, that when the Pardee's light was first reported, and before the collision had become imminent, the Wellington's helm was put to starboard, and she fell off a point. I do not deem it necessary to recapitulate the evidence. My conclusion, after careful consideration, is that the preponderance of the evidence goes to prove that the course of the Wellington was to the windward of the course of the Pardee. That being established, the collision is undoubtedly to be attributed to the Wellington's having kept off in the first instance. Had she kept her course, or luffed, as I think she might have done, although close.hauled, she would have gone clear. It sufficiently appears that she was not so near the wind as to prevent her luffing without losing control of herself. In this view of the case, the Pardee seems to have acted properly in porting. The lookout of the Wellington was not called. He disappeared from the vessel the next day at Boston, and has not been since found. The whole case turns upon whether the green or the red light of the Pardee was first seen from the Wellington. He is the only person who can answer the question with certainty. In a case so evenly balanced as this, the absence of a living witness so important as this man is a misfortune that I think should be borne by the party responsible for his conduct. Io the case of the Pardee against the Wellington an interlocutory decree is ordered for the libelants. The Wellington's libel against the Pardee ia dismissed. Neither party to recover coats. Ordered accordingly.
September 30, 1885.)
(Oircuit Court, D. Ma88achu8ett8.
On examination of the facts as disclosed by the evidence, held, that the collision between the schooners Mary B. Wellington and A.nnie J. Pardee, off Cape Cod on October 8, 1884, about 7 P. M., was due to the fault of the Pardee.
John c. Dodge ef Sons, for libelant and appellant. John Lathrop, for claimant.
Before GRAY, Justice, and COLT, J. COLT, J. On October 8, 1884, about 7 o'clock in the evening, the three-masted schooners Mary B. Wellington and Annie J. Pardee came into collision off Cape Cod, somewhere between Race Point light Rnd Highland or Cape Cod light. The Wellington was bound out· ward from Boston to New York, without cargo. The Pardee was bound inward to Boston from Baltimore with a cargo of coal. The Pardee struck the Wellington on the starboard side just forward of the mizzen rigging. The sea was smooth. The night was dark, but good for seeing lights. The exact direction of the wind is in dispute. The libelant contends that it was S. S. W., and the claimant that it was S. W. The Wellington was sailing close-hauled on h"er starboard tack, and her speed was about six knots an hour. The Pardee was on the port tack under all sails, with the wind abaft her beam, and her speed was eight knots an hour. The Wellington had a crew of seven, five of whom are called as witnesses: the master, mate, lookout, man at the wheel, and steward. The Pardee had a crew of nine, six of whom are called as witnesses: the master, two mates, the lookout, man at the wheel, and steward. The Wellington contends that she first saw the green lrght of the Pardee about a point on her starboard I;>ow; that if the Pardee had kept her course, as she was bound to do, having the wind free, she would have gone clear; but, instead of doing this, she suddenly al. tered her course, showed both lights, and headed directly for the Wellington's starboard side; that then the Wellington's helm was put hard-up for the purpose of avoiding the blow. The Pardee, on the contrary, contends that she first saw the red light of the Wellington about two miles off, a point and a half to two points on her port bow; that then the Pardee put her helm to port and kept off about a point, giving the other vessel plenty of room to pass; that the Wellington, instead of keeping on her course, suddenly showed both lights, and then her green light, indicating that she had starboarded; that the Pardee, seeing a collision inevitable, and to prevent being run down and sunk by the Wellington, ordered the wheel put hard down, and the vessels came together. It is evident that one of the vessels was at fault. The whole question turns upon their relative positions as they approached each other before the collision. 'rhe witnesses on board the Wellington testify that they first saw the green light of the Pardee, which would make the Pardee to the windward of her; while the witnesses on board the Pardee testify that they first saw the red light of the Wellington, which would bring the Wellington to the windward of the Pardee. If we believe the Wellington's account as to the light first observed, the Pardee is at fault; and, on the other hand, if the Pardee's account as to the Wellington's light is true, the Wellington is to blame. The evidence from the two vessels upon this question is in direct conflict. We do not deem it necessary to discuss it here, further than
THE ANNIE J. PARDEE.
to state that, upon the argument; and upon careful examination since, the testimony of Capt. Robbins of the Wellington has impressed us favorably, and from his position on the vessel, we think he was less likely to be mistaken than the witnesses on board Pardee. Further, the evidence of disinterested witnesses supports, on the whole, the position of the libelant. The mate of the steamer Alleghany, bound out from Boston, testifies that, about 7 o'clock in the evening of October 8th, he passed a vessel to the leeward going in the same direction as the Alleghany; that just after this he met an inward bound vessel which showed her greenligbt about a point on his starboard bow; that the approaching vessel then sbowed both lights on his starboard bow, whereupon the steamer was kept off to port until she headed N. E. This evidence is confirmed in material points by the lookout on board the Alleghany, called by the claimant. The witnesses from the Wellington and Pardee saw the steamer pass, and we have little doubt that the two vessels referred to by the mate of the Alleghany were the Wellington and Pardee, and, from his evidence, it seems clear that tbe Pardee must have been to the windward of the Wellington before the collision, and consequently at fault.. To meet this the claimant seeks to show that the green light seen by the steamer and by the Wellington must have been the schooner Alice Montgomery, which sailed from Baltimore with the Pardee, and at dark was one-half to three-quarters of a mile astern of her. The proof, however, on this point is not clear or satisfactory. It also involves the improbable conclusion that the Alleghany did not see the Pardee when passing her. No one on the steamer saw anything of any other vessel than the one she turned out for, until some time after. Now, if the light the steamer saw was the Montgomery, it follows that she passed the Pardee without seeing her, though the steamer had a lookout on her bow, and both captain and mate in the house. . We deem the present case a close one, and not free from difficulty; but, in view of the testimony from the Alleghany confirming" as it seems to us, the account given by Capt. Robbins and those on board the Wellington, we think the libelant has made out his case by a preponderance of evidence. Decree of the district court dismissing the libel reversed.
See the Mary B. Wellington, a1iU, 153.
THE COMFORT. 1
York. May 8, 1885.)
LIEN FOR REPAIRS-NON-RESIDEN'l' OWNEU-PHESUMPTION.
The fact that the owner of a vessel was a non-resident of the state of New York at the time necessary repairs on her were made at New York, raised a presumption that they were done on the credit of the vessel. This presumption was strengthened by the fact that they were charged to the vessel at the time they were done, and is not overthrown by the fact that the libelants, when they undertook the repairs, did not know where the owner resided; nor by the fact that they were made at the request of the owner's l1gent in New York; nor by the fact that 90 days were given the owner in which to pay for them; nol' by the fact that nothing was said about a lien. On the evidence it was held that the weight of evidence was that the repairs were not done in an unskillful ffi'lnnel', and the libelants, who had brought suit for the amount of the repairs, were entitled to a decree.
In Admiralty. Wilcox, Adams rt Macklin, for libelants. Roger M. Sherman, for claimant. BENEDICT, J. This is a proceeding to enforce a lien upon the yacht Comfort for certain repairs, consisting in putting a mass of lead into the keel in place of iron that had been carried away. 'rhe work was done in August, 1884, at the city of New York, and it is conceded that at the time the owner of the vessel was a non-resident of the state of New York. One principal defense is that the work was done upon the personal credit of the master of the yacht. Another defense is that the work was done in an unskillful manner. The conceded fact that the yacht was owned by a non-resident of the state of New York at the time of the repairs raises a presumption that the repairs were done upon the credit of the vessel. The Belfast, 7 Wall. 643. This presumption is strengthened in this case by the fact that the repairs were charged to the vessel at the time they were done. It is not overthrown by t.he fact that the libelants, C. & R. Poillon, when they undertook the repairs, did not know where the owner of the yacht resided; nor by the fact that in a letter to the libelants from Roger M. Sherman, a counselor at law having an office in New York city, inquiring whether the libelants would repair the vessel, Mr. Sherman wrote: "I have in my charge a modified cutter yacht, the Comfort, enrolled in the Seawanhaka Yacht Club j the owner wishes to substitute a lead keel," etc.; nor by the fact that 90 days were given the owner in which to pay for the repairs; nor by the fact that some time after the work had been done the libelants asked Mr. Sherman to give his note for the bill, which he did not do. The answer does not set up that the work was done on the credit of Mr. Sherman. It does aver that the work was done on the credit of the master of the vessel, but no proof has been offered in support of that averment. Upon the proofs, therefore,
) Reported by R. D. & 'Vyllys Benedict, Esqs., of the New York bar.
it seems clear that a lien upon the vessel was created by the doing of the repairs in question. As to the other defense, that the work was done in an unskillful manner, the weight of evidence is in favor of the libelants. It can· not be inferred that the lead was improperly fastened, from the fact that part was twisted off by the yacht's getting aground; nor does the present condition of the lead removed from the vessel warrant the conclusion that the work was unskillfully done, in the face of positive testimony to the contrary. Moreover, the objection that the work was unskillfully done was not made until a late day. Under such proofs the decree must be for the libelants for the amount of the bill, with interest to the date of the decree, and the costs.
Wlreuit Uourt, E. D. New York. July 8,1885.)
LIEN FOR REPAIRS-NON-RESIDENT OWNER-PRESUMPTION.
The decision of the district court in the same case (ante, 158) affirmed.
Admiralty Appeal. Wilcox, Adams <t Macklin, for libelant and appellee. Roger J"W. Sherman, for claimant and appellant. BLATCHFORD, Justice. 1. The district judge states in his opinion that as to the defense set up in the answer, that the work was done in an unskillful manner, he is of opinion that the weight of the evidence is in favor of the libelants. I am of the same opinion. 2. The yacht, at the time th& repairs were made, was owned by a non·resident of the state of New York. Therefore, the presumption arose, the repairs being made in New York, and being necessary, and made at the request of the owner, through his authorized agent, that they were made on the credit of the vessel as well as on that of her owner. The Emily Souder, 17 Wall. 666,670,671. This presumption is not displaced by the fact that the libelants did not know at the time who the owner was, or that he was a non-resident. They were entitled ,to the benefit of the lien which the actual status of the vessel gave, in the absence of evidence that they waived or supplanted the lien. It was not necessary that anything should have been said about a lien. The libelants charged the repairs to the vess.el. Nothing that occurred between the libelants and the agent of the owner amouilted to a waiver of the lien; nor did the giving of 90 days' time in which to pay for the repairs.
Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.