claims for towage and the ordinary. claims for supplies in the home port, the contention in that case being that all home-port claims should have preference to the mortgage, and by common consent they Were all treated as equal home-port claims, and the mortgage preferred to them. A more careful consideration of the question has satisfied me that towage, especially in and out of the Chicago harbor and while in the harbor, should be treated as a maritime lien. The docks upon the Chicago river to which the cargoes of most of the sail-vessels are consigned, and the grain elevators from which ·cargoes are taken, are many of them so far up the stream that they would be practically inaccessible to sail-vessels but for the assistance of steam-tugs, so that even if the ordinances of the city did not compel the employment of tugs by all sail-vessels in the river, so much time would be lost in warping up and down the stream as to seriously abridge the usefulness of sail-vessels in our lake commerce. The steam-tug has therefore become a necessary auxiliary to the sail-vessel, taking the place of seamen to warp them, and of pilots to· guide them into and out of the harbor, and to and from their docks; and as the tug is substituted for the services of the seamen and pilots, it is but right that they should be allowed a lien at least to the same extent as that for pilotage. A decree may be entered. directing the payment of this towage claim as a. lien upon the proceeds prior to that of the mortgage·.
TnE BROTHERS.I DREIBKE 11. THE BROTHERS
(Disf:rict Oourt, No D. Illinois. November 22, 1886.) 1.
COLLISION-TuG AND SCHOONER-HARBOR NAVIGATION-OVERTAKING VESSEL.
The tug M., while incumbered by a tow, was overtaken by the tug B. The latter vessel was unincumbered. and was steaming at II. higher rate of speed than the M. After passing the latter vessel, the master of the B. endeavored to cross her bows, but in doing so the two vessels came in contact, in consequence of which the B. was forced athwart the river, and into collision with the schooner C. Held, that the collision was caused by the faulty maneuver of the B., and that there was no fault on the part of the other vessels. The M. having been brought into the case at the instance of the owners of the B., and having been adjudged to be without fault, must be a.wardad costs as a.gainst the B.
SAME-A.TTACHMENT 011' INNOCENT VESSEL-COSTS.
W. H Condon; for libelant. W. L. MitcheU, for the Brothers.
lReported by Theodore M. Etting, E3q., of the PhiladelpMa bar.
Kremer, for the McLane.
BLODGETT,J. This case is now before me upon exceptions to the commissioner's report. The original libel was filed by libelant, Dreiskie, as owner of the schooner Ralph Campbell, against the tug Brothers, for damages to the Campbell resulting from a collision between the tug and the schooner near the south entrance to the east draw of the Madisonstreet bridge, on the Chicago river. On the application of the owners of the tug, an order was made bringing in 'the tug Mary McLane as a party respondent in the case, upon the allegation that the collision complained of was caused by the negligence and bad management of the McLane, to such, -extent as to make her liable for the whole or part of the damage done to the Campbell. The commissioner found and reported that the collision and injury to the Campbell resulted from the joint those in charge of the, tug Brothers and of the tug McLane, spd that the damages to the Campbell should be divided, and one-half ' tug. Exceptions, have been filed to the report by the clail:nantof the Brothers, on the ground that all the damages should' have been Q,warde.d against the McLane; and by the claimant of the McLane, on the ground that the proof shows the McLane was not at fault for the cql!ision,and hence that the commissioner erred in awarding any damages against , ' From an examination of the proof submitted with the commissioner's report, it appears that, at tHe time of the collision in question, the tug Shields, with the schooner Ralph Campbell in tow, was going down the Chicago river, and passed through the west draw of the Madison-street bridge, at about the same tiIpe the tug Mary McLane, with the schooner Persia in tow, proceeding up the river, passed through the west draw of the Randolph-street bridge two blocks north of the Madison-street bridge. Just before the Shields reached the draw of the Madison-street bridge, she gave the usual signal indicating her intention to pass through the west draw of the Randolph-street bridge, and, as the east draw of the Madison-street bridge WitS clear, the McLane assented to this signal, and starboarded her wheel, so as to carry herself and tow to port diagonally river, into the east draw of the Madison-street bridge. The tug Brothers was also proceeding up the south branch of the river, without any tow or other incumbrance, and passed through the east draw of the Randolph-street bridge It short distance behind the McLane and her to'w. She was, however, running at a greater rate of speed than the McLane, and, just before the latter had reached the north end of the middle or tu:rn-table pier, of the Madison-street bridge, the Brothers had nearly passed the McLane, and so changed her course as to throw her across the McLane's bows, by reason of which the McLane struck the fan-tail or after-part of the Brothers, back of her wheel-house, upon the starboard side; thus causing her to swing directly, or nearly so, athwart the river, so that the Brothers came in collision with the Campbell, which was just passing out of the west draw of the Madison-street bridge, causing the injury complained of.
The commissioner, from the testimony before him, came to the conclusion that the McLane was at fault in striking the stern or after-part of the Brothers, and laid much stress upon the application of sailing rule No. 22, which requires an vessel to keep out of the way of the other vessel; and also found that, at or about the time the McLane struck the Brothers, she starboarded her wheel, whereby her bow was swung to port, so as to produce more effect upon the Brothers than would have been produced'if she had ported her wheel, and swung the bow of the to starboard. I think, however, the testimony does not sustain the decision of the commissioner that the wheel of the McLane was starboarded at or about the time she struck the Brothers. The testimony does fully show that the McLane starboarded her wheel soon after she passed through the Randolph-street draw, for the purpose of passing over to the port side of the river, and I think that is the only time that the proof shows the wheel of the McLane was put to starboard; but, ifthe commissioner is correct in his' conclusion as to the maneuver, or attempted maneuver, on the part of the McLane at tb.e time she .struck the Brothers, I still think that he has improperly invoked or applied the principle of rule 22, because I do not see how the MClJane, under the' circumstances, 'can be called an overt:a.king vessel. The Brothers was, to all intents and,,;purposes, the overtaking vessel. She was· running free, and unincumbered, and very rapidly, and undoubtedly her pilot had'miscalculated the extent to which he had passed the McLap.e when he ported his wheel, his vessel to' starboard, across the bows of the McLane, whereby the misbe bad passed far chief was occasioned, as he proba1;lly supposed enough ahead to enable him to swing in and Being tb,e. overtaking vessel, the Brothers was bound, under rule 22, to keep clear of the McLane, and had no right to !,!wing in across the bows, or place himself in a position where he would come across the bows of the McLane in order to pass her. course of the McLane with her tow waElundoubtedly at thjs time slightly diagonally across the stream, and it :was the impel,'ative duty ofthe pilot.of the Brothers, this all OC<)urredin broad day-light, and when there was nothing to interfere with his seeing the course of the McLane, and estimating her rate of speed, and noting the fact that she had a tow behind her, which she was bound to carry dear of the protection of the bridge pier, not to put himself in a position to cross the pa.th of the McLane, or bring his vessel in with her. This he evidently did not do, but, as I have .already said, miscalculated the extent which he had passed the McLane when he put his helm: to port, and swung his tug so that her stem collided with the bows McLane. ' . .·. , Suppose that the Brothers, instead ofhaving collided with the schooner, had herself received serious damage from the collisiQn with the McLane, and had brought Buit against the latter for such damage, could there be any doubt, uuder the facts, th*"t all the fault would .have been found.to lie with the Brothers, and'that she would have been compelled to bear the damage by reason of her.ownnegligence? !fsuch would be thel1Ver-
diet, as between the'two tugs, tinderthe. circumstances supposed, It seems to me it completely answers the' claim that the McLane should bear anT portion of the damagesnstained by the Campbell. The exceptions to the commissioner's report are sustained, and a decree may be entered finding that the collision between the Brothers and the Campbell was brought about solely by the negligence of the former, and that the damages shall be assessed against the Brothers alone. The McLane, having been brought into the case at the instance of the owners of the Brothers, must be awarded costs against the Brothers.
THE LIvE OAK. l
(Diltrict Oourt, No D. IfNnoiI. February 7, 1887.)
A mortgagee who permits a mortgagor to retain J;l0ssession sUbJecta a yu.el to .uch liens as may accrue under the latter'.
8chU!Jj1M&: KrtJmer, for intervenors. H. for mortgagees.
BLODGETT, J;, (oraUy.) The libel in this case is for wages eamed by libelants during the season of 1885 and 1886. The schooner has been sold, and her proceeds brought into court; and Mrs. Esther Robinson a.nd Robert Liston in:tervened as mortgagees, claiming to be paid out of the proceeds in court in preference to the wages earned in 1885, --Mrs. Robineon's mortgage having been given in April, 1882, and due one year after date, and Liston's mortgage havinf?; been given in April, 1885, and both mortgages duly in the office of the collector of customs in the home port of the vessel. After payment of the costs and the.unchallenged maritime liens there is not money enough left to pay the libelants and these two mortgages in full, and it is now urged in be'half of these: mortgagees that their mortgages afe superior claims to the earned'in the season of 1885, on tlie ground· that the wages of 1885 are stale claixps, and should not be enforced as against these mortgages. , In the caa80f TM Ha'fria Ann, 6 Biss. 13, I had occasion to consider 'and pass.' upon the question of stale maritime claims" as against the f:ghta 'oftha bonafide'purchasers, and there' held' that a claim for seamen's wage.
lReported by Theodote·Y. EttingjEsq., ofthePhilBdelphia bar.