paying all her expenses but those of marine insurance, was held entitled to the salvage award, to the exclusion of her owner. The Scout, L. R. 3 Adm, 512; 41 J. Adm. 42; 26 L. T. (N. S.) 371. The mortgagor of a ship, before condition broken,(as in this case,) bas the absolute right to the possession and use of the ship by the terms of his contract. He could maintain a possessory action for her against anyone, ev:en his mortgagee. He bas thus a qualified ownership in her, and would be entitled to salvage if he earned it. Again, a mortgagor, upon condition broken, can enter into contracts for and for the service of the vessel, and these contracts are his contracts, and bind her and him, and he is entitled to the freight earned, to the exclusion of the mortgagee. Bogart v. The John Jay, swpra,' Morgan's Assignees v. Shinn, 15 Wall.1l0. Nor can the mortgagee intervene, and stop the payment of the money therefrom to the mortgagor, because he has contracted to give him the use and enjoyment of the ship. Salvage is an extraordinary compensation for services of a certain character. On what principle can the award for such service be taken away from the mortgagor when he would be entitled to reward for ordinary services? Put it in another way: Suppose that the property (the salving vessel) is at peril? At whose risk is it,-that is, at whose risk finally? That of the mortgagor; and if the property 1I1Ortgaged be lost or perish, the security is lost, but the debt remains. Even in South Carolina, the results of emancipation were visited on the mortgagor of slaves, and that, too, after condition broken. Oalhounv. Calhoun, 2 S. C. 283. While, therefore, lam not prepared to say that the mortgagee of a salving vessel may not claim salvage., where the circumstances put the mortgaged property in peril, I hold that a mortgagor, before condition broken, can bring a libel for salvage, he being in the use, possession, and control of the salving vessel.
THE CAMBUSDOON. THE CHARLOTTE WEBB. CALLAHAN and others v. THE CAMBUSDOON. KENNEDY and others v. THE CHARLOTTE WEBB.
(Dt'strlet Court, S. D. New York. April 14, 1887.)
COLLISION-PILOT-BoATS-RuLES OF NAVIGATION-ANSWERING PILOT'S SIGNALS-UNEXPECTED MANEUVERS.
A vessel at sea upon pilotage ground is subject to the usual rules of navigation, as respects a pilot-boat whose signal offering services she has not answered, and whose services she does not desire. She is not in fault for observing the usual rules in endeavoring to keep away from the pilot-boat, though latter maybe navigating for the purpose of coming within hailing distance; nor for not guarding against dangerous maneuvers of the pilot-boat
that could llot be or expected. It is not a legal fault to give no answer to a pilot's flash-light, offering her services, there being no rule 01 fixed custom requiting an answer.
In a confliot of testimony comparatively little weight is to be attached to the statements of witnesses in their own behalf, upon critical facts, differing from their first statements, and drawn from them by the strenuous pressure of leading questions by their own counsel.
The pilot-boat C. W., in II cljlar, dark night, about 15 miles off the Jersey coast, seeing the green light of the bark U. off her starboard bow, bearing aboutS. W. by S., for the purpose of hailing her and tendering services as pilot, stood to the westward on her port tack, and crossed the C.'s bows for the purpose of going down upon the windward side. When shjl had brought the C.'s bearing to S. E. by 8., the pilot-boat' came about on her starboard· tack, heading S. S. E.; but, after proceeding two or three lengths, supposing t.\1at the bl/.rh: was rounding to the westward, and luffing for the purpose ef receiving the pilot, put her helm to starboard, to cross the park's 1>OWS again, and down upon her lee side. While thus crossing her bows, she came in collision with the bark. The bark had l/.lready taken a pilot. on board,and did not answer the flash-light. to indicate that no pilot was desired, by eXhibiting a white light a few times, as is. sometimes done, but. changed a couple' of 'p'oints to the eastward, as she' saw the pilot-boat standing across her bows to the westward, ,and, after the pilot-boat had .crossed, swung back to her course, and perhaps half a. point. beyond. The bark WitS pQsely proceeding slowly, and her sails were'not trimmed as usual. . Just be·fOrethe .collision, she again· veered to the eastward. to keep away from the . ,piwt-QQat, which seemed .,to be coming dangerously pear on her port side. . t.\1at the collision wa,s. due solely to the dangerous maneuvers of the pilot-boat; that her inference that the bark was luffing, drawn from the bark's swinging .backto her course; and from the trim of her sails, was unwarranted; that tb,.e pilot-boat was not justified in again attempting to cross the bark's bows. to the east';l'ard.. before the bark',s purpose. to luff w!Ls made reas()nably certalll, br showmg both her colored bghts, WhICh she dId not do; that the pilot-boat s starboarding was not required for lIerown safety; and tllat the bark was justified, under the fourteentll rule of navigation, in b<;lth changes of the helm, to keep out of the pilot-boat's way, as the bark was sailing free, and had the wind on her port SIde, and the pilot-boat's last change was unreasonable and not to be expected. .
COLLiSION-PILaT-BoAT AND BAw;:,-KEEPING AWAY-FOURTEENTH RULE.
In Admiralty., Jaa.K. HiU, Wing Whitehead, Parker
Sluxudy, for the Cambusdoon. Dexter, for the Charlotte Webb.
BROWN,J. The above cross-libele were filed to recover the damages sustained, respectively, by the owners of the pilot-boat Charlotte Webb and the British bark Cambusdoon, through a collision that occurred about 1 o'clock in the morning of April 2, 1886, off the coast of New Jersey, about 15 miles S. S. E. of the highlands of Navesink. The pilotboat was intending to hail the bark in order to tender her services, but was run down by the bark while crossing the latter's bows to the eastward; the bark's bowsprit and stern striking the pilot-boat just abaft of the fore-rigging, carrying away her mast, and breaking in her side. The night was dark; but clear and pleasant, with a moderate breeze from the south-west. The bark was 193 feet long, deeply laden, drawing 22 feet of water, andhad already taken a pilot on board. On account of her great draught of water, her pilot did not wish to arrive at the .bar at Sandy Hook until about high water, at 6 o'clock in the mornv.80F.no.9-45
ing. She was therefore proceeding , at the rate of not over three anJ one-half knots, with her mainsail hauled up, her top-gallant sails down upon her caps, and her royals clewed uPi and, the wind having shifted not long before, her yards had not been trimmed. The pilotboat was under reefed foresail and mainsail, with her jib and staysail set. The account of the collision, as stated in the libel of the pilot-boat, and as testified to by her witnesses,is, in brief, that, having first made the bark's green light bearing about S. W. by S., the pilot-boat was put upan her port tack, heading W. f. N. j that she kept qn that course, after crossing the bows of the bark, until the latter bore S. E. by S. when the pilot-boat came about upon her starboard tack, heading S. S. E., for the purpose of going down upon the windward side of the bark, as customary, to hail her; that, about the tim6 she got upon her starboard tack, the bark was thought to be luffing, and rounding to the westward, from which it was inferred that the bark desired to take a pilotaboardj that acting on that inference, in order'to go. upon the bark's lee side,-that is, her starboard it .was llsualto take the pilot on board, the pilot-boat put hell'helm harda-starboard, after running only two or three lengths on the coutse of S. S.E., so as again to cross the bark's bows to the eastward; and that she would have done so safely, had not the bark then ported her wheel so as .to follow up the' pilot-boat in her tum, which brought about the colli.sion. The faults charged. upon the bark are that she misled the pilot-boat by first luffing to the westward, and thereby inducing the belief that a pilot was wanted on board, and leading 'the pilot-boat to .cross tlle'bark's bows to the eastward; and, see· ond, by afterwards porting her whEJel. . .' . On the part of the bark it is cla:imedthat she did nothing to mislead the pilot-boat,or to warrant any inference that she was lu.'ffillg, or rounding to, or desired to take a pilot on board; that, though the pilot's flashlight was twice seen, no signal in return was given to indicate that a pilot was desired; and that the only changes in the bark's edurse were that she first veered two points to the eastward,-that is, ooN. N. E.,-when the pilot-boat first crossed t6 the westward, in order the more effectually to keep away from the latter; and, after the pilot-boat had got three points on her port bow,-that is, bearing N. by W.,-thatthebark came back again to her proper course of N., swinging in the process not more than half a point to the westward of N.; and that afterwards , just before·the collision, when the pilot-boat was seen coming dangerously near on the bark's port side,she again ported her wheel" for the purpose of keeping away from the pilot-boat,under which she also changed but two points, so as to head N. N. E., at the time of the collision. The evidence shows that it is a very common practice, where a pilot has been previously taken on board,to indicate that fact by exhibiting, in answer to a pilot-boat's sig-hal offering her services, a. white light two or three times in rapid succession. That was not done in this case. Had that answering signal been given by the bark, doubtless this collisiOli would have been averted. It was not given, as the pilot of the bark says, because, after the pilot-boat. had crossed to the westward, there was
not time to get the light, and exhibit it. , There was time, however, had he directed it to be done when thepilot-boat's flash-light was first seen on the starboard bow. The omission to give this answering signal is not charged as any fault in the libel. There is no regulation requiring such a signal. The practice, as appears from the testimony, does not amount to a fixed custom, 'and seems to be only a matter of conventional courtesy, optional among the pilots themselves, and not amounting to any legal obligation chargeable upon the ship. The primary cause of the collison was manifestly· the .last change of the pilot-boat in putting her helm hard a-starboard, and crossing the. bows of the bark to the eastward. It was, in any view, a dangerous maneuver .on the part of the pilot-boat. Her witnesses estimated the distance of the bark at that time to be about one-quarter of a mile; but; from circumstances mentioned below, I have no doubt that the distance was not half so much. They claim that that maneuver was justifiable, on the ground that the bark was luffing, so as to warrant the inference that she WaS roundingto . the westward in order to take on a pilot; and, that it was necessary for the pilot-boat to take that course, upon the bark's luffing, in order to avoid the collision. . Upon careful consideration of the testimony, I am obliged to find adverselyto the pilot-boat in .both particulars; namely, that there was nothing done by the bark justly warranting any inference of her rounding to or luffing fat the purpose of taking on a pilot; and that there was no necessity for the pilot-boat to Eltarboard for her own safety. When the pilot-boat was seen designing to cross the bark's bows to the westward, and wason the bark's starboard side, it was clearly no fault on the part of the bark to haul two points to the eastward,-that is, to N. N. E.; for by the fourteenth rule ·of navigation she was bound to keep out of the way of the pilot-boat, which was close-hauled; nor was it anyiault that, after the pilot-boat had fully crossed the bark's bows, and bore N. by W., the bark starboarded, and swung back to her proper course, though I think she did this before the pilot-boat had reached three points on her port bow, and was not in ·fault therefor. For the pilot-boat it is claimed that the bark swung much to the w!,,stward of her true course; namely, to N. W. by W. This contention rests on the evidence of Johnson, the wheelsman of the bark, called in behalfof the pilot-boat; and also upon the testimony of one of the pilots, that the masts of the bark were seen nearly in line. But Johnson's testimony is not only subject to suspicion, in consequence of his former difficulties with the master; but his statements, taken together, are wholly incompatible with the other testimony on both sides, and are so plainly mistaken that no weight can be given to them. He states explicitly and repeatedly that, the bark's previous course being first north, the first order he received was not to port his wheel, but to starboard his wheel; that he did starboard accordingly, and the bark came up three points, i. e., to N. W. by N., so as to have the pilot-boat on his lee bow; that is, his lltarboard bow. This is his testimony as it stands. Its impossibility discredits his whole testimony. If the change of throo points to the Webt-
ward was after she had already gone eastward two points, namely, to N. N. E., then this change of three points by a starboard wheel would reach to N. by W., a half point only in excess of what the captain swears to observing by the cabin compass, and that difference would be immaterial. The testimony of one of the pilots, that the masts were seen nearly in line, is subject to thedo,ubt at what precise time they were so seen. That they were observed to be nearly in range. at the time when the pilot-boat's wheel was put to starboard did not firl'tappear in the witness' own state·ment. That statement associates it with his boat's heading about east, i. e., very nearly at the moment of collision. It was only under the strenuous pressure of leading questions by his own counsel that different testimony: was given by him. Comparatively small weight, in any case, is due to testimony as to critical facts thus elicited. That the bark's masts should be seen in line from the pilot-boat at the time the latter starboarded, the bark must have been heading N. W. by N., or three points west of her proper course, if her bearing from the pilot-boat ",as S. E. by S. That she was at no time heading in that direction, or nearly so, is abundantly proved from all the testimony in the case. The rule so oiLen applied t.o testimony in regal'd to the apparent movements of vessels in the water is clearly applicable here, namely, that a vessel's own witnesses as to her movements must be credited, rather than the testimony as to her apparent changes, given by those on board of another moving vessel, unless the testimony of the .former is in some way discredited, inconsistent, or improbable. In the present case the testimony on the part of the bark, that she made no changes beyond two points to the eastward ,and back again to N. ! W., is -established by a number of witnesses who are in no way discredited; while Johnson's testimony, the only witness from the bark opposed, that she went to N. W. by W., so as to have the pilot-boat· on her starboard bow, is not only inconsistent with everything else in the case, but would be irreconcilable with the facts of the collision, and with any claim on the part of the pilot-boat; since, if the bark swung to that heading, the pilot-boat, by reason of her far more rapid handling in turning, must have crossed the bark's bows much before the latter could have reached her. This conclusion is further confirmed by a projection of the courses of the two vessels backwards from the point of collision. The testimony shows that the bark, under a hard a-starboard or hard a-port wheel, would have changed less than a point in going a length, not more than a point in, going 200 feet. Witnesses on both sides state that the pilotboat, which was but 79 feet long, would change as much as seven points in going from 300 to 400 feet, or at least a point in going 60 feet,-a little less than a length. Considering that the bark was deeply loaded, drawing 22 feet of water, and that the pilot-boat was light and quickly handled, there is 110 doubt, both from the testimony in the case, as well as from common knowledge, that this difference in the rapidity of their handling is by no means exaggerated, and that the difference is probably less,than that above. stated. At·the rate above
given, the course of the pilot-boat, under a hard a-starboard wheel, would bel'epresented bya curve of 300 feet radius; that of the bark, by a radius of from 1,000 to 1,1()0 feet. Assuming that the pilot-boat, with the wind one point free, was going only four knots, the most able to her that the evidence will admit, she must have starboarded one minute only before the collision, during which she changed her heading from S. E. by S. to N. by E., her heading at the time of the collision. The bark, which was then heading N. N. E., could not have changed two points from N. without going at least 400 feet; and she must therefore have ported about the time, or a little before, the pilot-boat starboarded. This accords with the statement made by the pilot Noble, who says that, when he ported, the pilot-boat did not seem to be drawing across his bows, but to about the same as before. A very little !"tonsideration of the limits of· the courses of the two vessels will show that the testimony of the two pilots on the pilot-boat, in their estimates of time and distance and relative situations, are wholly incompatible and irreconcilable with the most essential facts. The testimony indicates, without any substantial variation, that the vessels, at the time of the col1ision, headed as above stated,-the pilot-boat about N. by E.; the bark about N. N. E. Had the bark been headed N. W. by N., or - nearly so, at the time the pilot-boat starboarded, or just before, the pilotboat, under her rapid change of heading, must have crossed the bark's course much before the bark could have reached her under her slower change, nor could the bark in one minute, or in double that time, have changed five points to N. N. E. The conclusion is inevitable, both from these latter considerations, as well as from the ordinary rule as to the credit to be given to testimony by persons on board vesstlls in motion that there. was no such rounding of the bark to the westward as the pilot-boat supposed; and that her masts wete not in line, nor nearly so, until the pilot-boat had brought them nearly in line by het own changes, under her starboard helm. I very much, doubt whether any change in the line of the masts was visible while the bark was first goin/!: back to her proper course from N. N. E.; but, if it could be and was observed, it was no such change as warranted the inference drawn from it; for the bark was still nearly 12 points off the wind. Doubtless the pilot did suppose that the bark was intending to round to in order to receive him on board; but it was I think, an altogether hasty and unwarranted judgment, founded upon the position of the bark's sails and yards; an error into which pilots ohiper years would not have fallen. The same consideration of the necessary courses of the vessels under a. hard a-port or a hard a-starboard helm shows, also, that, even if the bark had been luffing as supposed, the pilot-boat was under no neceflsity of starboarding her helm merely to avoid the bark. She would have her by a larger and safer margin by porting than by starboardmg, as she was already to the westward of her, and would swing to the westward:lnder a port helm much faster than the bark under a starboard helm.
. It is urged that the proved slipping of the ropes on the axle of the wheel might have prevclited,a.nd probably did prevent, the swinging of the bark to the westward. from being checked as soon as intended. If any large swing·to westward had been proved, no doubt the cause suggested was adequate. But there is too :wuch uncertainty as to the time when the slipping of the ropes took place to allow it much force. The weight of testimony does not indicate that it occurred at that time, but afterwards. It is wholly insufficient, in my to outweigh the considerations above referred to. The only remaining question is whether the bark is in fault for porting just hefore the collision. In my judgment this was no fault. and for several reasons: First. Because it was for the purpose of keeping away from the pilotboat; the helm having been ported, certainly not after the pilot-boat starbO!j.rded, but probably a little before and when there was no indication that the pilot-boat was intending to cross the bark's bow again; and when the pilot-boat's light was apparently drawing undesirably near, though on about the same bearing, the bark rightly desired to keep further away. ..l have no question that at that time the pilot-boat was at least three points on the bark's port bow. Nothing cOilld have been more unexpected to the bark than that the pilot-boat should starboard, and again attempt to' cross her bows. The bark had done nothing to make such a maneuver by the pilot-boat seem possible. The pilot certainly could not foresee it, and was not required to entertain such an idea. TM W. a. Redfield, 4 Ben. 227, 234. , Second. The rules applicable to a vessel and a pilot-boat, after assenting signals have been exchanged between them, when the movements of each are designed for the purpose of taking' a pilot on board, are wholly inapplicable to this case. The bark had given no assenting signal, and no warrant to the pilot-boat to Buppose that a pilot was wanted. The failure to see any assenting signal on the bark was of itself notice to the pilot-boat that no pilot was desired. Under such circumstances, both vessels were bound by the ordinary sailing rules; and, as both were running free, the bark was the one bound to keep out of the way, because she had the wind on her port side as well as aft. New.Rules, art. 14, (c.) (e.) The bark, therefore, was not in fauIt for maneuvering to keep out of the way. The bark was, doubtless, bound to avoid anything which she could reasonably suppose would mislead the pilot-boat to her injury. In holding that the bark did not go mote than half a point to the W. of N., it is impossible to find anything on the part of the bark which can justly be said to have wrongfully misled the pilot-boat. The mistake of the latter was by her own fault, and founded, as I believe. entirely upon the position of the bark's sails and yards, which was a wholly insufficient ground for the inference drawn from it. In my opinion, no such inference was justifiable in the night-time until the bark had gone several points to the, westj, much Jess. had the pilot-boat any right to adopt so dangerous a maneuver until the bark showed both colored lights; neither
THE B. C. TERRY.
of which was done. Even when both colored lights would first come into view the bark would still be nine points off the wind; and, considering the ease with wliich the pilot-boat is handled, there would be no difficulty after that in her keeping away. She was bound to avoid the dangerous maneuver of crossing the bark's bows when she was so near, until the bark's supposed intention should be made reasonably certain by showing both her,colored lights. Had the. pilot-boat observed this caution, no collision would have occurred. When she starboarded, the bark, as I find l was not within two or three points of her supposed position. She wanted no other pilot; she neither signaled nor rounded to. The collision having been caused by the mistake and unwarranted inference of the pilot-boat, and without any legal fault of the bark, the by the pilot-boat alone. Decrees must be entered loss must accordingly; but, under the circumstances, without costs.
THE B. C.
CARROLL 'D. THE
(Diltrict OQurt. S. D. New YQrk. April 26, 1887.)
It is a. condition of the duty "to keep out oithe way," that the other vessel shall act intelligibly, and afford reasonable evidence of her intentions. While that is doubtful, the former should keep her course. The y,lLCht N. and the schooner T. were beating up the bay in a north-west wind, on the port tack. The N., being a little to leeward of the T., tried to como about upon the starboard tack, when she was sufficiently in advance to do so safely and pass across the T.'s bows, :under ordinary circumstances; but the wind being strong, and her foresail down, and her main-peak lowered, on coming about, she entirely lost headway, and swung around in all about 18 points, and collided with the T. on the leeward side. The master of the T., observing the continuous swing. inferred that the N. was intending to go to leeward, as similar vessels were in the habit of anchoring in that region, and he therefore starboarded to aid in av:oiding the N. Held, that ·the N. was alone in fault, the collision being occasioned by the. extraordinary behavior of the N. in coming about, andthe persistence of N. in endeavoring to cross the T.'s bows; and that the master of the T. did what was best under the circumstances.
HEADWAy-ExTR..-\ORDINARY SWINGING ABOUT.'
VESSELS-KEEPING OUT OF T.B;E WAY.
In Admiralty. On the afternoon of May 5, 1886, the schooner yacht Nokomis, 90 feet long, and of 51 tons burden, and the three-masted schooner B. C. Terry, Nokomis bound for loaded with timber, were coming in from Stapleton, ·near the north end of Staten island; the Terry, for Hoboken.