THE MARY MORGAN.
sidered proven, it does not follow that the collision was oaused by that action on the part of the tug, for the tug was, from the outset up to the collision, to west of the Richmond. A swing of the tug to west would be away from the Richmond, but the Richmond's swing to west was towards the tug, and, taken.. as it was, it necessarily brought the vessels in contact. The contetltion in behalf of the Richmond that the Richmond and tug were upon crossing courses, involving risk of collision, and that it was the duty of the tug to avoid the Richmond because she had the Richmond on her starboard side, is based upon what seems to me to be a misapprehension of the facts. The tug and steamer were not upon courses crossing, so as to invite risk of collision, but the tug was upon a course up the river, and to port of the steamer, while the latter was swinging down the river in the endeavor to gain a course that would carry her down the river to east of the vessels below. Having. determined to pass down to east, and, as thero is strong testimony to show, given notice of that intention by her whistles, it was a fault for her thereafter to endeavor to gain the west side of the tug. The libelant must recover his damages of the Richmond, and his libel, as against the tug, must be dismissed.
THE MARY MORGAN.·
(Ot'f'euit OO'Url, E. D. PennaylrJanw,. April 22, 1886.)
The steamer Mary Morgan. with her Tights set and burning, was passing down the Delaware river at night. It was somewhat dark, and the tIde was at ebb. A single white light was seen, which was supposed to be on a vessel at anchor. This was a mistake, however, as the light was on the barge Pierrepont, which was conJing up the river on a course which was virtually that of the Morgan. The Pierrepont's side lights were up and burning, but were in bad condition. She saw the Morgan. but did not signal her until the vessels were too close to avoid a collision. Held, that the Pierrepont was in fault in not having- her lights in proper condition, and in failing to give a timely. signal; that the Morgan was in fault in concluding that the Pierrepont was at anchor,and in continuing to act upon that conciusion when they were near enough to have, by the exercise of a proper degree of vigilance. discovered her error; and that, as both vessels were culpable, each was liable for its proportionate share of the accruing damage.
Alfred Dr·iver and J. Warren Coulston, for the Pierrepont. Morton P. Henry and Henry G. Ward, for the Mary Morgan.
MOKENNAN, J. On the eighth day of August, 1879, the Mary Morgan, a steam-vessel, with her lights set and burning, was passing
Reported by C. B. Taylor, Esq., of the Philadelphia bar.
down the River Delaware, near mid-channel, above Fort Delaware, after night. The tide was ebb, and it was somewhat dark. Her speod was about eight miles an hour. She was in charge of a pilot, and had a lookout in his proper place. A white light ahead, a little off her starboard bow, no other lights being observed, was taken to be on a vessel at anchor. Proceeding under this belief, without any reduction of her speed, and without any effOl't to ascer'liain whether the vessel bearing the white light was really at anchor or not, she continued her course until quite near the vessel, which proved to be the Pierrepont, when, receiving one blaEt of a whistle from the latter, she answered, put her wheel hard a-port, and l'eversed her engines, She was so near, however, that, before any material change in her course had occurred, she came into collision with the Pierrepont. Her conclusion that the vessel carrying the white light was at anchor was erroneous. The Pierrepont was coming up the river a very little, if any, to the westward of the course of the Mary Morgan, so nearly to the course of the latter as to make it virtually the same. The Pierrepont's side lights were up and burning, but they were in bad condition, the lanterns being incrusted with smoke. She sighted the Mary Morgan when a safe distance away, and saw that she was very nearly, if not immediately, in front of the Morgan. She did not, however, signal to the Morgan until the vessels were so near together that a collision could not be avoided. Notwithstanding the defective condition of the Pierrepont's lights, a proper degree of vigilance on the part of the Mary Morgan, when the vessels were near each other, would have disclosed to her the fact that the Pierrepont was not at anchor, but was approaching, when she might possibly have made a. successful effort to avoid a collision. . Upon these facts I am of opinion that the Pierrepont was in fault in not having her lights in proper condition, so that they might have been seen by the Morgan when the vessels were not in dangerous proximity to each other, and in not giving a timely signal, as it was her duty to do under the circumstances; and that the Mary Morgan was culpable in concluding that the Pierrepont was at anchor, and in continuing to act upon this conclusion after the vessels were near enough together to enable her to determine with certainty· that her first impression was wrong, and that the Pierrepont was approaching her upon a line which involved great danger of collision. It follows that both vessels were in fault, and must be held liable for their respective proportions of the accruing damages. The decrees of the district court are therefore affirmed, and it is now decreed that the same decrees made by that court be entered in this court, with interest upon the sums adjudged against the parties, respectively, from the date of said decrees, and with costs.
THE SYSKONEN V. LOGAN.
SYSKONEN 'U. LOGAN
(District COUll't, E. D. Pennsylvania. JUly 7, 1886.)
CARRIER-OF GOODS BY VESSEL-FREIGHT.
The ship Syskonen received a cargo under bills of lading which provided for its delivery to "order or assigns, he or they paying the freight." A. & Co. contracted with B., an indorsee of the bills of lading, for the cargo, agreeing to pay the stipulated price on delivery to them. The cargo was delivered into lighters belonging to A. & Co., who receipted to the ship for it. Payment of the freight was sought of B., but failing in this, and t1ndinghim probably insolvent, recourse was had to A. & Co. Held that, as A. & Co. were neither assignees of the bills of lading nor owners of the cargo until after de· livery, they were not liable for tbe freight, and that the bill must be dismissed, with costs to respondents.
Charles Gibbons, for libelants. F'landers Pugh, for respondents.
BUTLER, J. The cargo was received' by the ship under bills of lading which provided for its delivery at Philadelphia, to "order or assigns; he or they paying freight." The bills were indorsed to Gardeicke, who, bn the ship's arrival in Philadelphia, ordered her to a discharging berth, where the cargo was delivered into lighters sent to receive it. The lighters belonged to the respondents, who' had contracted with Gardeicke for it, undertaking to pay the stipulated price on delivery to them. Gardeicke had it thus delivered', in pursuance of his contract, directly from the ship, the respondents receipting to the ship for it. 'l'he ship knew no one in the transaction but Gardeicke, and supposed she was delivering to him, or some one representing him, and accordingly called on him for the freight immediately after. Failing to obtain payment from him, and finding him probably insolvent, she resorted to the respondents. In view of the facts, the libel cannot be sustained. The respondents were neither assignees of the bills of lading, nor owners of the cargo, until after its delivery. The bill must be dismissed, with costs to respondent.
by O. B. Taylor. Esq., of the Philadelphia bar.