use more than two yeam before he applied for his patent. In either aspect of thecase,the defense has been 'established to our satisfaction, and the bill must be dismissed, with costs.
On rehearing, before JACKSON and BROWN, JJ., this case was affirmed.
RENOVATOR. 11. THE RENOVATOB.
(Diltrict Oourt, 8. D. New York. January 29, 1887.)
CoLLISION....:.SAn.-VESSEL AND STEAlfER-TACXING-OVERREACHING.
A sailing vessel has a right to rely upon the ability of a steamer to keep out of her way. and that the latter wilJ do so. where there is nothing to prevent; nor is a sailing vessel required to take measures to avoid a steamer by remain· 10J;lger than usual, when these measures are not ing in stays, or apparently necessary to aVOId a collision. .
AWAY-ERROR OJ!' JUDGMENT IN EXTREma.
Beal-hig away at the last moment to avoid instant collision fs not a fault, even if a mistake, when cau,sed by the wrongful and dangerously near ap· proach of the steamer.
In Admiralty. Hylnlnd & Zabriskie, for libelant. Bergrrw,n &. Dykman, for claimant. BROWN, J. In the afternoon of April 14, 1886, as the libelant's . lighter Suffolk was beating up the East river in the last of the flood-tide, she came into collision with the Renovator, a steam propellor, coming down the East river, at a point a little above the Catharine-street ferry, some 400 feet from the Brooklyn shore. The wind was a good sailing breeze for the lighter, and nearly dead ahead. She was a small craft, only about 40 feet. in length, and sailed within about 5 points of the wind. The lighter was seen by the pilot of the Renovator, which was coming down about 400 feet off the Brooklyn shore, from the time the lighter made her port tack from the New York shore. On reaching the Brooklyn shore, or near to it, she came about upon her starboard tack, and shortly after came into collision with the Renovator j her starboard bow striking the port bow of the propeller. The propellor was not embarrassed by the presence of any other vessels. It was her duty to keep out of this lighter's way, without disturbing her ordinary course in coming' about. The law places the burden upon the steamer, unless she show that the collision was brought about by some fault on the lighter's part. The faults alleged are that she did not run out her port tack towards the Brooklyn shore, but came about unexpectedly j and, second, that she might have remained longer in stays, and, by overreaching as much as
ONE; PACKAGE OF MERCHANDISE.
possible, have enabled the propellor to pass ahead orher, and was theref6'fe bouild Wi doso,-a point about which the decisions do not agree. See .The Empire State, 1 Ben. 57, 60; The W. a. Redfield, 4 Ben. 227, 234. There is considerable diversity iu the estimates of the distance from the Brooklyn shore at which the lighter tacked. Her witnesses say she ran within 50 or 100 feet of that shore, and as near as was safe. The propeller's witnesses estimate the distance from 100 to 200 feet. But there is evidence that upon the flood-tide there is an eddy for a little distance off the Brooklyn shore, which would tend to embarrass a vessel in coming about if she should run fully into it. There was also another tug with a scow coming down the river above her. The alleged fault of not running out her tack is not, I think, established; nor is the other charge of fault, in my judgment, sustained. Both the alleged faults are really sought to be applied in way that would require the sloop to take measures to avoid the propeller, which is not required of her except where a collision is imminent. She has a right to pursue her ordinary course; and, as stated by BETTS, J., in the case of The Argus, Olcott, 304, 313, "she had a right to rely to the last moment upon the ability and care of the vessel before the wind;" or, in this case, of the propeller, which had the same relative duty as a sailing vessel with a free wind. That the lightet bore away at the last moment to avoid was not Ii fault, nor even bad judgment. . It evidently diminished the injury. But; even had it been a mistake it would have been a mistake in extremis for which the Renovator would have been responsible, as the vessel wrongfully putting the lighter in a perilous position. The Argus, BUfJ'faj The Elizabeth JO'IUl8, 112 U. S. 514, 526, 5 Sup. Ct. Rep. 468. Decree for the libelant, with costs, with a reference to compute the damages, if not agreed upon. .
PACKAGE OF MERCHANDISE AND OTHER PACKAGES Oll' MERCHANDISE. l
SAME 'lJ. ONE CASE OF WOOL AND OTHER MERCHANDISE. SAME 'lJ.
PACKAGES OF MERCHANDISE.
LEWIS 11. SIXTY-FIVE PACKAGES OF MERCHANDISE.
(DiBt:rict Oourt, E. D. New York. December 27, 1886.)
SALVAGE-SALVED PROPERTY BROUGHT INTO UNITED STATES-SALVAGE CLAnlIJl -CUSTOMS DUTIES-PRIORITY.
Where property is salved on the high seas, and brought by the salvors within the limits;,)f the United States, the salvage clp.ims are entitled to priority over the claims of the government for duties.
by Edward G. Benedict, Esq., olthe New York bar.