THE HENRY WARNER. THE HENRY W ARNER. 1
(Di8fJrict Court, D. Massachusetts. December 11, 1886.)
COLLISION-VESSEL AT ANCHOR-DANGEROUS ANCHORAGE-FAILURE TO KEEP LOOKOUT.
When a vessel is at anchor in a place where other vessels are frequently passhlg, and where navigation is difficult and dangerous, special care and :vigilance, in order to give warning of her presence to passing vessels, is reo quired. She mustllave agood lookout, and an anchor light of the regulation pattern lit and burning; to have a watch on deck is not sufficient, if there be no one on lookout at the time of the collision. One who advances money to pay debts which are liens, and who takes an assignment of the claims, is not entitled to look to the fund the sale of the vessel, after he has been actually repaid, or if circumstahces exist from which payment must be presumed.
2.:MARITDlE LIEN-ADvANCES TO PAY WAGES AND STEVEDORES' BILLS-AsSIGN MENT OF CLAIMS TO PAYEE.
Collision. Libel in rem by the owners of one of the colliding vessels and the underwriters of her cargo against the other vessel and her freight. L. S. Dabney and H. Wheeler, for the Ibis. C. T.Rus8ell and W. E. Russell, for the Henry Warner. W. W; Dodge, for the Insurance Companies. NEIl'lON, J. This case was a libel by the owners of the bark Ibis, against the barquentine Henry Warner and her freight, for collision. The China Mutual Insurance Company and the Atlantic Mutual Insurance Company, who were the underwriters of the cargo of the Ibis, consisting of 1,299 bales of cotton, lost in the collision, and who have paid the loss, also intervt>ned for their own interest, and prayed that the damages decreed against the Henry Warner should be paid to them. The collision occurred on the evening of January '6, 1886, on the Nantucket shoals, about 'half way, and nearly on a direct line, between the Handkerchief and the Shovelful light-ships. The Ibis was on a voyage from Galveston to Boston. Off Holmes Hole she took a pilot, and, 'Continuing on her course, rounded the Handkerchief light-ship between 4 :30 and 5 P. M. At 5:30 P. M., when half way between that·light-ship and the Shovelful light-ship, she dropped her anchor, furled her sails, and set an anchor light in the starboard fore rigging. She continued lying at anchor in that position until the collisiotl. The Warner was on a voyage from Buenos Ayres to Boston. After rounding the Handkerchief, the wind being N. W. and favorable, her course was laid directly for the Shovelful light. Nothing was seen or heard of the Ibis by the lookout, or by anyone on the deck of the Warner, until the two vessels were within two or threa ship's lengths apart, and until it was too late to do anything to prevent the collision; and at 7 o'clock, or a little later, the Warner ran into the Ibis, Btriking her on the port bow, a little forward of the cat-heads, and cutting her down
by Theodore M. Etting, Esq., of the Philadelphia bar.
to the water's edge. The Ibis floated until the next morning, when she was abandoned by her crew,and Boon after sunk. The Warner lost her anchor and all her head-gear. The latter continued on her course after the accident, and succeeded in passing the shoals, but, owing to the loss of her head-sails and anchor, was driven off the coast, and did not arrive in Boston until the 14th. It is insisted on the part of the Warner that the evidence fails to show that at. and immediately before the collision, the anchor light of the Ibis was up and burning; or, if it was, that it was not the powerful eight-inch globular lantern required by the sailing regulations, but was one of inferior capacity. It must be admitted that some of the circ1.,1mstances of the case tend strongly to support this view. The evening, though dark, was perfectly clear. The second mate and another seaman were on the lookout f()!'ward()n the Warner, and the master was· on deck in charge, and was keeping a lookout ahead with his night glass·. Yet none of them saw the light on the Ibis. It is agreed that the light was out immediately after the collision, while the vessels were in contact. The lantern was not produced in court. The master of the Ibis testified that it was left hanging in the rigging, and went down with the vessel. But a diver, who examined the wreck on the bottom a few days afterwards, searched for it, but did not find it. On the other hand, the master of the Ibis, the pilot, the two mates, the men in the watch, !;tnd all the othennen on board who were in a position to observe, swear with great positiveness that they saw the lantem buming brightly and cleal"ly in the rigging as the Warner approached. All describe it as the regulation eightinch globular lantern. The mate's a,cconnt of it is somewhat but not sufficiently so to throw discredit on the others. When taken down after the collision, the top was found to be broken in, but the glass was uninjured. It was repaired with canvas, and again lighted and set, and continued to burn until the vessel went down. The master of another vessel which lay by the Ibis during the riight saw it, and describes it as the usual regulation light. The light was also seen by the men in charge of the Handkerchief and Shovelful light-ships, two miles off, for some time before thecollision,and as late as 7 o'clock. With all this evidence before me, I find it impossible to come to any other conclusion than that a proper anchor light was set and burning on the Ibis. That being so, the Warner was bound ather peril to see it, and avoid the vessel at anchor. It is certainly more likely that the men . on the Warner failed to see it through inattention, or by confusing it with the lights of the numerous light-houses and light-ships to the eastward, than that so many witnesses should be guilty of the grossest falsifieation, as they undoubtedly must be if the light was not'there. The lantern must putout'in the collision, but whether by the jibboom ofthe Warner, as the libelants claim, or by the concussion, or in some other way, it is impossible to say. The shroud on which it was hung was found broken by the diver.. The de.nt in the top shows a blow, of some sort. What happened to it at the bottom of the ocean, must, of course, remain a mystery.
THE HENRY WARNER.
Tb'e claimants of the Warner also object that the Ibis was anchored in an improper place, and that the collision was also due to that cause. But there was no want of room for vessels to pass on both sides of her. The channel for ships at that place is a mile and a half wide.. The reason given by the master and pilot for anchoring here is that the wind was N. W., and increasing, and the vessel, being loaded with cotton, was high out of the water, and they thought there was danger that she might be blown off the coast after passing the shoals. But whether this showed good seamanship or not is immaterial. The place was the open ocean, which is free to all for anchoring as well as for sailing, with this limitation: that the anchoring vessel is under obligation to observe the usual and prescribed precautions to notify her position to other vessels. The remaining question is whether the Ibis used such precautions. She was brought up in a place where vessels were frequently passing, and where the navigation was difficult and dangerous. It was therefore incumbent on her to exercise especial vigilance and care to give warning of her presel}.ce to passing vessels. The starboard watch, consisting of the second mate and three hands, was on deck from half past 6. But no anchor watch was set, and no lookout kept. The watch were, collected under the lee of the forward house, and, though this was the side on which the Warner approached, they saw nothing of her lights until she was within two or three lengths, when they might and should have seen them soon after the Warner rounded the Handkerchief. Her own light was seen two miles off· by the men on the light-ships. With half a minute's earlier warning, the Warner would have gone clear. Situated as she was, it was her plain duty to have, in addition to her anchor light a good lookout kept. There can be little doubt that an earlier hail than was given would have attracted the attention of the men on the Warner, and, had the latter's wheel been put down a moment sooner, the Ibis would have escaped wholly, or with the loss of her head-gear only. For her failure to keep a lookout the Ibis must also be held to blame. The case was also heard on the petition of eight seamen, constituting the crew of the Warner, for the payment of their wages earned on this voyage out of the proceeds in the registry of the court. A petition was also presented by a firm of stevedores for the payment of their bill for discharging the cargo at Boston. It appeared that all these claims had been assigned to Mr. Gore, the average adjuster, who advanced the money for their payment. The amount advanced to the seamen has already been repaid to him by the firm of N. W. Rice & Co., of Boston, and Mr. Gore testified that he expected repayment of the sum advanced to the stevedores from the SaIl1e source. I have no doubt that, by this time, this has also been repaid. I think the evidence indicates, with sufficient certainty, that these claims were really paid in the interest of the owners of the Warner, and that the assignments were taken with the object of keeping alive whatever lien the petitioners might have for their paymenji, as against the owners of the Ibis and her cargo. They should therefore be treated as actually paid, and any lien on account of them
that may have once attached to the vessel and freight as already dis· charged. The petitions will be dismissed. The decree for the owners of the Ibis will be for divided damages, and for the insurance companies. as representing the cargo-owners, for full damages. Ordered accordingly.
THE HOWARD. l
GANNONV. THE HOWARD.
(Di8trict Oourt, .D. New Jer8ey. January 5, 1887.)
The lien.given the material-man by stl\te statutes will be enforced by proceedings in rem in admiralty. provided the transaction be based on the credit of the vessel. No lien exists for materials furnished to the charterer in the home port of the vessel, under an agreement to accept in part payment the note of the chll<rterer, if from the evidence it appears tha.t the material-man was aware of the terms of the charter-party, and did not suppose or believe. at the time the work and materials were contracted for, that they were to be supplied. on the credit of the boat or its owners. State statutes confer no lien in the home port, if from the evidence it appears that the vessel's credit was not an element of the contract.
In Admiralty. Edwin a.Davi8, for libelant. John Deady, for respondent. WALES, J. This is a libel in rem to enforce a lien, given by a statute of New Jersey, for the recovery of the balance of the price agreed on for putting into the propeller Howard a "Multiple Effect Surface Condenser." The home port of the vessel is at Newark, in this district, and the libelant and the owners also reside in New Jersey. The materials and work were furnished at Jersey City. Since thedecision oithe supreme court of the United States in The Lottawanna, 21 Wall. 581, the law has been settIed,that a material-man may proceed in rem, in admiralty, for supplies furnished to l!- domestic vessel, when the state statute affords a lien for snch supplies, provided they were furnished on the credit of the vessel. The question here is one of fact. To whom, or in what manner, was credit given by the libelant? Before the condenser was ordered the Howard had been chartered to H. H. Penny, of New York, by the managing owners, and the following clause was inserted in the charter-party: "It is also that the charterers may place an approved condenser in the vessel before leaving New York, and that one-half of the actual cost thereof Shall be allowed to them, by the owners, payable in equal amounts, to be deducted from the third and fourth payments on account of this charter.."
Theodore M. Etting', Esq., of the Philadelphia bar.