and that a man may be tried for a slightly dl.fferent offense from the. one for which he was extradited, there being to suggest fraud. A.nd in Wi800nsin the court holds that a tuan who has been extradited on the charge of 'the commission of a particular crime"Bnd, on trial, acquitted. may be immediately rearrested for an entirely ditferent offense, without being allowed a chance to return to the state trQIn )"18 was extradited. State v. Stewart, 19 N. W. Rep. 429.
READ V.THE MARIN IN.
(aU-cult aourt, B. D. New York.
November 11, 1887.)
SHIPPING-DAMAGE TO CARGO-SALE-CONDUCT OF.
A damaged cargo of licorice root, consisting of 2,112 bundles, was Bold by the libelant at auction. A.t the sale only 250 bundles were exposed to inspection. But one bidder was called as a witness in the proceedings against the vessel.for damages, and he refused to give the name of the person for whom he made the bid. The purchaser who bought the entire lot was present at the hearing before the commissioner, but he was not put upon the stand.. The extent of the injury to the cargo was involved in a sharp conflict of testimony. There was no dispute as to the market value of good licorice at the time of the sale.' Held, that the sale, so conducted, did not supply a fair criterion of value, and that the conclusions of the district judge and the commissioner as to the libelant's damages would not be revised on appeal, their correctness <lepending wholly upon the credibility of the witnesses examined before them.
SAME-DAMAGE TO CARGO-SALE-ExpENSES.
Expenses incident to the auction ilale of a damaged cargo, and for the servo ices of experts employed by the libelant, are not elements of damage against the vessel. .
In Admiralty. On appeal from district court, 28 Ft:d. Rep. 6M t modified. Lorenzo U710, for claimants. Josiah Hyland, for libelant.
WALLACE, J. The libel in this case was filed to recover damages for alleged injuries to a cargo of licorice. root, consisting. of 2,112 bundles, consigned to the libelant, arising in the course of transportation and .unloading of the cargo. This appeal presents only a question of fact as to the extent of the injuries, and the consequent damages sustained by the libelant. This question has been considered by the judge of the district court and by the commissioner to whom, by the interlocutory that court, it was referred to ascertain and report the damages. The question of tact is involved in a sharp conflict of testimony, and this court cannot .undertake to revise the conclusions of the distnct judge and. of the commissioner, the correctness of which depends wholly upon the credibility of the witnesses examined before them. The libelant relies with great con· fidence upon the effect of the sale of the licorice root at auction, as showing the extent of the injuries by showing its then commercial value, there
being no dispute, substantially, as to what its market value would have been if it had been delivered in proper condition. Such sales, when fairly conductedjaffordstrong evidence of the market value at the time. They do not, however, supply an infallible criterion of value. They are readily susceptible of collusive practices, and when the circumstances create a reasonable suspicion that such practices took place, but little reliance can be placed upon the evidence. In the present case the whole lot of licorice root- was not exhibited at the sale, but 250 bundles were brought out upon the sidewalk, and exhibited as a sample of the rest. The purchaser who bought the entire lot, although. present before the commissioner, was not called as a witness by the libelant. Another person who made a bid at the sale was called as a witness; but he refused to give the name of the party for· whom he was acting in making the bid. He was the only bidder called. Both the district judge and the commissioner were convinced, by the of the. witnbsses examined before them relative to the extent of;the injuries to the licorice root, that the price obtained at the auction sale did not fairly represent its then commercial value. They were doubtless satisfied that the lot placed on the sidewalk for exhibition to bidders did not fairly represent the condition of the whole, and that the sale was conducted in the interest of the libelant in order to fix an apparent market value, for the purposes of a claim against the bark. , The items of damagea growing out of expenses incident to thlilauction ·.sale, and fpr the services of experts employed by the libelant, were erroneouslyallowed to the libelant by the commissioper, and seem. to have been overlooked when the report was before the district court for confirmation. As the case is here upon an appeal by the bark as well as .by the libelant, the amount of these allowances should be deducted. With this deduction, the decree of the district court is affirmed, with costs of this court to be taxed against the libelant.
and others v.
(District Oourt, liJ. D. Wisconsin.
November 23, 1887.) Tow.
l;COLLISION.,-VESSEL AT ANCHOR-DUTY OF BARGE AND
the light of a vessel at anchor nearly in the middle of the stream, distant about a mile. There was room to pass on either side. The tug passed diag. onally the bows of the vessel at anchor, about 500 feet from her; but the dista;nce between her and the other vessels in the tow gradually diminished by the force of the current, and the last vessel in the tow struck her. Held, that the barge being bound to keep out of the way of the vessel at anchor, must, at.her.peril. shape her course for a safe margin against the, contingeIi. dei of navigation, and the effect of the current.
A .steaPJ. barge, with a tow of five vessels; c;'Oming down a river discovered
A barge, being the last in a tow of five, crossing diagonally a river, collided with a vessel at anchor, the whole tow yielding to the force of the current, and each of the tow passing the vessel at anchor nearer than the one ahead. It was in testimony that the master of the barge, when the tow changed its course to cross the river diagonally, ported his helm, to head his vessel above the boat ahead of bim, but the current drifted him down. Held, that the col· lision cannot be attributed to fault on the part of the barge. A vessel anchored in the middle of a river about 1.900 feet wide, where vessels were frequently passing, leaving room on either side for them to pass. Held,that herlliace of anchorage was not improper. A vessel anchored in the middle of a river 1.900 feet wide, where vessels were frequently: passing and repassing. The last boat in a tow of :five crossing the river diagonally, through the force of the current struck her bow. She had her anchor light displayed, and her anchor w,atch on deck. Her mate seeing the danger called to the steam barge having the'tow to keep off, but did not run out more anchor chain nor put the helm to port until the collision was immediately at hand. The captain was not on board. Held, that the circumstances 'of the anchorage imposed upon the vessel a degree of vigilance and care in which she was wanting, and the vessel must be held tobe in par'
SAME-VESSEL AT ANCHOR IN MID-STREAM.
Markham & Noyes, for libelants. Van Dyke & Van Dyke, for respondents.
DYER, J. This is a libel for a collision between the schooner H. C. Richards, which was lying at anchor in the St. Clair river, about a mile belowiPort Huron, and the barge H. C. Davis, which, with other vessels,was in tow of the steam harge Ogemaw. The collision occurred in the e'trening of May 16, 1886. The Richards was bound on a voyage from Buffalo to Racine, Wisconsin, and with several other vessels had been.in tow of a tug from Buffalo. On arrival at a point in the river near the place of collision, the tug left the Richards and two other ves· sels belonging in the tow astern of her, and proceeded with the rest of the tow to Lake Huron, intending to return for the Richards and her consorts, and, having brought the whole fleet together again at Lake ron, to resume the voyage to ports on Lake Michigan. The Ogemaw was proceeding down the river with a tow of five barp;es. The vessels con;:tituting the tow, naming them in the order in which they were placed in the tow, were: The Roberts, the City of the Straits, the Ketchum, Chutch, and the Davis. The collision occurred between 9 and 10 o'clOCk in the evening. It was a clear, bright, moonlight night, and there was no wind nor sea to embarrass navigation. Bright anchor lights displayed on the Richa,rds and the two vessels astern of her. The anchor light of the Richards hung in the rigging about 16 feet from deck, and the second mate and one seaman were on watch. The second ma.teof the Richards testifies that the vessel was lying bows up stream I with 30 fathoms of chain out, about half a mile below what is known as the "Middlc.Ground," and a mile from Port Huron. The weight of the testimony on both sides is, that she was about 800 feet from the American shore. Above Port Huron and Sarrda the river flow! \
in a south-easterly direction, but at those points there is a bend in the stream, and for a long distance below the middle ground its course is south-westerly. As the Ogemaw passed the middle-ground she was headed directly down the river, but at that time, or soon afterwards, she changed her course so as to go between the Richards and the American shore. This put her and her tow on a diagonal course across the river, so that necessarily the vessels were more or less deflected from a direct line astern of the towing steamer, by the current. All the vessels in tow of the Ogemaw passed the Richards safely except the Davis, the last in the line. She struck the Richards on the bow, carrying away her bowsprit, bob-stays, jib-boom, guys, and dolphin striker, and doing other damage. The Davis was also injured. As the collision occurred with a vessel at anchor, the steamer is prima facie liable. and CRn only relieve herself by showing that the accident was inevitable, or was caused by the culpable negli/lence of the schooner. The Carroll, 8 Wall. 304. See, also, Mamifacturing Co. v. The John Adamll, 1 Cliff. 413, and authorities there collated. The fact that a steamer has barges in tow does not alter the rule requiring her to keep out of the way of an approaching sailing-vessel, and in such a case the steamer should take extra and timely precautions to avoid a collision. The Favorite, 10 Biss. 536, 9 Fed. Rep. 709; The Oivilta, 103 U. S. 699 .. The principle that, where a vessel at anchor is collided with by a vessel in motion, the latter is prima facie in fault, provided the former is anchored in a proper place, has been enforced against a towing steamer, although the collision was not with her, but was between one of the vessels in the tow and the vessel at anchor. The Masters and Raynor, 1 Brown, Adm. 342; The Worthington and Davis, 19 Fed. Rep. 836. Upon consideration of the testimony, I can have no serious doubt that the Ogemaw was in fault; There is dispute about the precise locality where the Richards was anchored, and about the exact width of the river at that point. The libelants contend that the place of anchorage From an examination was about half a mile below the of a government chart of the river, which is in evidence, I should conclude that the width of the river between channel banks at that point is about 1,900 feet. The respondents claim that the Richards was lying further down the stream, where it is narrower, and where it would seem, from measurements made on the chart, the width is from 1,600 to 1,800 feet. The testimony on the part of the libelants tends to show that the Richards was lying about one-third of the distance across the river from the American shore; while the weight of the testimony on the part of the respondents is, that she was in mid-channel. However this may be, and whether the libelants or respondents are nearest right in their understanding of the facts as to the precise location of the Richards, and the width of the river at that point, it is obvious that there was ample space on both sides of the Richards for the Ogemaw and her tow to pass. If the Richards was where the libelants claim she was, then there was a space of about 800 feet between her and the American shore, and a space of about 1,000 or 1,100 feet between her and the Canadian side of the
channel. If she was where the respondents claim she was, then there was a space of 800 or 900 feet on either side of the Richards. If the Richards was half a mile below the middle-ground, there could have been nodifficulty, in the exercise of proper watchfulness and care, in passing her safely on the American side, even with as many vessels as the Ogemaw had in tow. If she was lying as far down the river as the respondents say she was, the facilities for shaping the course of the tow after leaving the middle-ground so as to pass the Richards on the American side, were very greatly increased. It is evident, as was observed in the case of ll'eU8 v. Arn18trong, 29 Fed. Rep. 218, that the fault of the master of the Ogemawwas in "not allowing a sufficient margin for safety amid the contingencies of navigation, and not taking in time the decisive measures at his easy command." He evidently did not take sufficiently into consideration the force and effect of the current on the vessels in tow, as they took a diagonal course in the wake of the steamer across the river. This is apparent from the fact that the distance between the Richards, and the tow gradually diminished with each passing vessel, until at last she was struck by the Davis. The Ogemaw was between400 and 500 feet from-the Richards when she passed her; the Roberts, the next boat in the line, passed at a distance of about 400 feet; the Oity of the Straits was about 250 feet, and the Ketchum about 150 feet, from the Richards, when they passed her. The mate of the Ketchum says he should judge the Ohurch was 100 feet closer to the Richards than the Ketchum was. and the master of the Church testifies that his vessel was not more than 15 feet from the Richards when she passed. Such being the proximity of the vessels in the tow to the Richards, which the course they were on steadily a collision between the Davis and the Richards was inevitable; and the course the tow was on, its proxiinity, and manner of approach, demonstrate that the master of the Ogemawdid not sufficiently consider what was a necessary margin for safety with such a line of vessels stretched out astern of,him. The duty to keep out of the way .embraces the duty to keep away by a prudent and safe margin, having reference to all the contingencies of navigation. The Aurania and Republic, 29 Fed. Rep. 125. A steamer bound to keep out of the way must, at her own peril, shape her course for a safe margin against the contingencies of navigation and the effect of tide currents. The City of Springfield, 29 Fed. Rep. 923. There wasno difficulty in observing the anchor light of the Richards sufficient distance away. Nearly all the witnesses concurin the statement that the light was seen when the tow was passing the Sarnia elevator. The master of the Ogemaw testifies that he and his second mate saw the light it was between three-quarters of, a mile and a mile off', and that when he rounded, the bend ofthe river he Was a little closer to the Canadian than the American side of the river. He then took a course which he says "was pointing dead on the lights" of the Richards, keeping that course until, as he testifies, he ported his wheel a little, t'enough just to go down the middle, or a little towards the shore from the vessel, seeing a good open road lit that side, and seeing a tow ahead
going the same way." Fl10m all the evidence it is also plain that the steamer. and her tow could have passed directly down the river on the Canada side of the channel without embarrassment or difficulty·. It is true a propeller was then. going up .the river on that side, but there was ample space for her to pass, as she was a single boat without a tow. n is claimed that the course the Ogemaw took, was occasioned, in part at least, by the approach qf the propeller between the Richards and the Canada shore. But the master of the Ogemaw himself testifies that he saw the lights of the propeller after he had ported her wheel to go between the Richards and the American shore; so that he must have determined upon his course before he saw the propeller at all. Attempt has. been made to charge responsibility for the collision upon the Da,vj.s. It is said that in rounding the middle-ground she did not turn soon enough; that her wheel was not promptly ported, and that she was thus suffered to get out of line by those in charge of her. It is then argued that for this alleged fault the towing steamer is not responsible. As the Davis was manned by her own master and crew, it was their duty to exercise reasonable care and skill in her navigation. The Gity of Alexandria, 31 Fed. Rep. 430. The steamer was the dominant mind and will in the adventure. It was the duty of the tow to follow her guidance, to keep as far as possible in her wake, and to conform to her directions. The exercise of reasonable skill and care within this sphere was incumbent on the tow. The Margaret, 94 U. S. 496. I am of the opinion that the respondents have failed to show an omission of this legal duty on the part of those on board the Davis. The testimony in support of respondent's theory in this respect consists largely of expressions of opinion. It was of course tnore difficult to keep the Davis, the last vessel in the tow, exactly in line with the steamer than to keep the vessels nearer the steamer in line. As we have seen, all of them gave way more or less to the force and effect of the current, the Davis, naturally, from her position, more than the others. The consequence was, that each succeeding vessel was drawn nearer to the Richards than the vessel ahead, and this explains the true cause of the collision. The testimony of witnesses who were on the Ogemaw, and on the vessels nearest to her, in support of the claim that the Davis got out of line, is necessarily uureliable, because of their distance from her; and if she did drift out of course, they were not in a situation to say ;whether it was attributable to fault of navigation or to the force of the current, and unavoidable embarrassment arising from her position in the tow. The master of the Davis testifies that about the time his vessel passed the Sarnia elevator, the Ogemaw changed her course to pass on the American side of the river; that in following that course he tried to head his vessel above the boat ahead of him, but that the current drifted him down; that his wheel was hard a-port at the time of the collision, and had been for some time before; and that he kept his vessel just as far over to the American shore as the appliances at his command would permit, and as was possible. He testifies further that, when he saw the Ogemaw "make the turn," he gave the order to port the wheel of his vessel; that this was done below
the Sarnia elevator, and that he knows the wheel was put to port. This testimony, coming from the officer in command of the Davis, who it appears was an experienced navigator, and thus detailing just what was done on board the Davis, outweighs the other testimony in the case, which tends, though not with much force, to attribute the collision to fault on the part of the Davis. Having determined that negligence is imp1Jtable to the Ogemaw, it remains to be considered whether the Richards was in any manner in fault. First, it is said she was anchored in an improper place. But as we have seen, there was ample space for the Ogemaw and her tow, in the exercise of proper skill and care, to pass on either side of her. Undoubtedly, as was said by Judge LoNGYEAR in the case of The Masters and Raynor, 8upra, there are safer places for vessels to lie at anchor, and where they would be a less obstruction to navigation. But no law or custom is shown prohibiting vessels from anchoring at the place where the Richards was lying, and her legal right to lie there must be conceded. The case just cited was one of collision very similar to that between and Davis, and it occurred very near the spot where this the one occurred. The bark Fame lay at anchor in the St. Clair river a little below Port Huron, and just opposite the foot of the middle-ground. As she so lay at anchor the tug Masters came down the river, with a tow of four vessels, the fourth vessel being the Raynor. The tug undertook to pass the bark on the American or port side of her, and between her and the middle-ground, and in doingso the schooner sagged off to port, and came in collision with the bark. There, as here, theproofs were contradictory as to the precise point where the vessel collided with, lay in the river, varying from one-third of the distance from the American channel bank to the middle of the channel. Judge LONGYEAR held that the place of anchorage was not an improper one, as there was room on both sides for the tug and tow to pass. In the caBe of The Planet, 1 Brown, Adm. 124, it was held by Judge WILKINS that it was proper for a vessel to lie at anchor in the St. Clair river 1,000 feet from the Canadian shore, and more than 300 feet from the American shore, even with her sails up, and when there was a puffy wind, there being, as was said by the court, ample room for other vessels to pass on either side. "If there is no rule or custom requiring a vessel to bring up out of the fairway, she may anchor there, although directly in the track of ships. Thus a vessel brought up in the Mersey directly in the track of the ferry steamers waR held not to be in fault for lying there. The obligation on a ship under way to keep clear of another at anchor applies, although the ship at anchor is in an improper berth. And a vessel brought up in a berth which is improper only in the sense that it is in an exposed and dangerous position, does not thereby contribute to a collisioncaused by another ship negligently driving into her." Mars. Call. 224. In The Worthington and Davis, supra, it was held that anchorage in the St. Clair river is not necessa.rily improper because the channel is comparatively narrow, and vessels are frequently passing and repassing, if
room be left for vessels and tows to pass in safety. See, also, Wells v. Armstrong, 8upra. As there was ample space for vessels to pass the Richards on either side, I must hold that her place of anchorage was not improper. But anchoring Jhere as she did, she was undoubtedly bound to exercise a greater degree of care and diligence in respect to her light and her anchor w'ltch, than would be requisite if she were anchored out of the usual path of vessels. It was her duty to keep a vigilant lookout, and to take to avoid collision with other vessels which the exiall the gencies of the situation might require. Mars. Coli. 224; The Worthington and Davis, supra j The Henry Warner, 29 Fed. Rep. 601. As before observed, the anchor light displayed by the Richards was sufficient, and conformed to the requirements of law. Fault is found with her for not exhibiting a torch-light when the Ogemaw and her tow approached; but there is nothing in this circumstance, because the Richards was seen early enough to have avoided her, and as soon as there could possiby have been any obligation to show a torch. The Leopard, 2 Low. Dec. 238. The anchor watch consisted of the second mate and one seaman. The crew of the vessel consisted of six men before the mast, the master, and first and second mates. The master was not on board at the time of the collision. The same circumstance in the case of T"M Sapphire, 11 Wall. 170, was accorded some weight in the opinion of the court, as evidence of negligence. All the crew were below except the anchor watch, but came on deck just before the collision. The mate put the wheel of the Richards to port, but it is apparent from. the evidence this was not done until the collision was immediatelv imminent. The second mate knew there was danger when the Ogema·w was abreast of the Richards,for he says he hailed the men on the deck of the Ogemaw, and told them to keep away, and that he hailed the barges in tow, warning them to keep their wheels hard a-port. No effort was made to run out more anchor chain, thus allowing the vessel to drop down the stream with the current. In fact, nothing was done on the Richards to avoid the collision, except to hail the passing vessels, and put the wheel of the 'Richards to port when the collision was unavoidable. M.ore effective measures might have been taken to avert the disaster which resulted. The second mate and seaman, constituting the anchor watch, saw the Ogemaw and her tow approaching a long distance off. It was their duty to be alert, and to call assistance from below promptly. The danger was especiallyapparent when they saw, as they' must have done, tbat the tow was a long one, and that each succeeding vessel, as it passed, came in doser proximity to the Richards. If her helm bad been promptly put to port, and thus, by the force of the current, the stern of the vessel had been worked over to leeward, and the bow turned off to starboard, and if, in addition to this, more anchor chain had been run out, thus allowing the vessel to drop down the stream with the current, and if all this had been done, as it might have been, before a collision was actnally impending, it is highly probable the collision would have been avoided, or
that the damages OCC,l1sioned thereby would have been lessened. For the failure to take such precautionary measures, Judge LoNGYEAR held the vesseLManchbr in fault· in the case of The Masters and Raynor, supra, a case 'so parallel in its facts, to the cnse in hand, as to make it applicable here with singular force. The circumstances of the situation imposed upon the crew of the Richards the duty of exercising a degree of vigilance and care in which they appear to have been wanting. The Richards is. therefore held also in fault. Both vessels being found in fault, it follows that each must bear a moiety of theda-mages. A decree in favor of the libelant will be entered accordingly, and there will be a reference to a commissioner to ascertain and report the damages.
THE REBECCA SHEPRERD· .THE BENJAMIN BOURNE. THE REBECCA SHEPHERD
THE BENJAMIN BOURNE.
(DiBWict Oourt, E. D. Pennsylvania. December·6,l887.)
The schooners A. and B. were sailing early in the morning, off Cape Cod. The wind was blowing freshly from the south-west, or nearly so; the sea was chopping, and the weather foggy and "thick." Each vessel maintained a v;gilant lookout, and signaled frequently by horn. Their general course was the same, and both were close-hauled. The A. was on her starboard tack, heading nearly south-east by south, and the B. was on her port tack, heading about south·west. Neither could see the other or hear the signals, until immediately before the collision. When a collision was imminent each acted promptly, and both went to The A. contended that the B. should have ported instead of starboarding. The B. claimed that the accid.ent could not be avoided. Held, that the collision was the result of an inevitable accident.
In Admiralty. Flande:rs &- Pugh, for libelant. Henry R. Edmunds, for respondent. BUTLER, J. In the early morning of August 14, 1886, the libelant, when 12 or 15 Iniles south-east of Cape Cod, was run into by respondent,and seriouslydamaged. Both vessels were bound for Philadelphia, sailing on the .same general course, each in ballast and close-hauled, the former on her starboard tack, heading nearly south-east by south, and the .latter on her port tack,· south-west. The wind was south-west, or nearly so, blowing freshly, and the Sea chopping. The weather was foggy and thick. Each vessel maintained a vigilant lookout·and signaled frequently, by·hom.
by C. B. Taylor,Esq., of the Philadelphia bar.
THE· REnltccA SHEPHERD.
While the libel and answer charge the respective parties with serious faults, the libelant now stands alone on the allegation that the resp()ndent, on (loming into view, should have ported her wheel and luffed, instead of starboarding to go astern; and the respondent confines herself to the allegation that the fonner should have held her course, ins+""d of starboardingas she did; that her speed was too great; and that tne collision was inevitable. The situation of the vessels, their courses through the water, imposed on respondeut the duty of keeping off, and on the libelant that of holding her Gourse. In view, however, of their close proximity, the libelant was justifiable in changing as she did, although it is probable the change brought her stern nearer the respondent. If her rate of speed was too great, this did not tend to the collision, but mther to facilitate the respondent's effort to pass her stern. A careful exarl1ination of the case has satisfied me that neither vessel was in fault,--tbat the collision was unavoidable. The defense of inevitable accidentis not often sustained, and should not be. Generally, indeed almost universally; collisions are attributable to negligence, and it is only where the absence of negligence is clearly shown that the defense should be sustained. Here, I am fully persuaded, each vessel did her whole entirely free of fault. Neither was able to hear the other's signals, nor to see her approach, until so near that the collision was unavoidable. While the libelant now puts the distance at 300 yards, the libel states it to have been two lengths, (270 feet,) and the respondent puts it at about 250· feet. The precise distance cannot,of course, be known, nor very ,nearly approximated; the witnesses guess at it simply, and their guessing is no doubt wild. That the distance wass,o short as to render the situation very dangerous is, clear. It produced instant alarm on both vessels. The libelant's officers shouted orders to the respondent, ItS· well as to her own crew, and varied her course, which was only justified· by the peril impending, and the shock followed almost immediately, before the libelant had succeeded in turning her head more than two points. The collision was therefore, we repeat, unavoidable. This appears from the libelant's testimony, as well as from the respondenFs. It is urged, however, that the injury would have been less if the respondent had ported instead of attempting to go astern. This is by no means certain; to have brought the vessels side by side would have required a change of course in each of about five points, or ten between them. As the libelant had not succeeded in getting off more than two when struck, it is manifest that the vessels could not have been brought to this position, and that the attempt to do it would simply have landed the blow further towards the libelant's bow, where the injury might have been as great, or greater. Granting, however, that the respondent, under'the necessity for immediate action, in view of the danger, failed in judgment respecting the hest method of escape,such failure is not a fault for which she is liable. The F. P. Hall, 14 Fed. Rep. 408; The John Stuart, 4 Blatchf.444. To say the least, whether she should have ported and fallen off eastward oi: starboard to go astern, was debatable. To do
either would not have been amistakej which was best was simply a questionof judgment. The two experts called differ about it. Her master, an ex;perienced,competent seaman, who was earnestly seeking to escape the danger, selected the course adopted; whether his judgment was right cannot be ascertained, and is not important. With a little more space he doubtless would have gone clear, if the libelant had held her course. To measure the distance accurately under the circumstances, and know whet):1er it was sufficient, was impossible. No one was better capable of judging than he, and he believed it.to be sufficient. He could turn in this direction (from the wind) readily and quickly, while he could not in the other. With sufficient space between the vessels this was not only the proper movement, but the only one allowable. The mate, who was on deck when the vessels came into view, had instantly given an order to port, which 1:)eing heard by the master, who wall below, he ran up and countermanded it by the order to starboard. This countermand is complained of as a fault, on the ground that it de-' layed and embarrassed the effort to keep off. But why should it be complained of? The master's judgment was as good as that of the mate, probably better, and no appreciable time had been lost. The vessel's course was not affected by the first order. There is no satisfactory evi· dence that the wheel had been changed. What the libelant's witness says respecting it is incredible; the circumgtances (the da.nger and excitement, the distance and difficulty of seeing) forbid belief that he saw and noted what he asserts. It would be interesting to the respondent's wheelsman, but I cannot believe his testimony is important. Suppose the wheel had b0en changed, the vessel's course was not affected, and the delay must, therefore, have been but momentary, and immaterial. If the order to starboard had been given by the mate instead of that which he gave. the result must have been the same. This cannot be doubted. Possibly the blow might have been a little further back, but·the consequences would have been the same. The libel must be dismissed.
END OJ' VOLUME 89.