derstanding was due to their own fault. That it was shared by others, and by courts as well as by counsel, is shown fully by the briefs of coun· sel and opinion of the court in Andrew8 v. Hovey, 124 U. S. 694, 8 Sup. Ct. Rep., 676. That it was shared to some extent by the counsel for the defendant, is shown by the form of the answer; although the present 'Counsel for the defendant, at the first hearing in chief, strenuously con· tended that the law was as it was afterwards declared to be in that case. In view of all this, the rulesoLlaw do not seem to require that the. plaintiff shall be tied down to the consequences of the misunderstanding; and the prinoiples of justice would appear to be furthered by relieving him from them. As this is a matter of disoretion not reviewable,the exercise of it in a manner that will admit the evidence where due weight can be given to it, seems safer than the exclusion of the evidence from any ,consideration would be. The plaintiff has leave ,hereupon to take and file testimony as to the engine the Governor Hill, and as to fraudulent and surreptitious use of the invention by ,the Amoskeag Manufacturing Company, within 60 days. ,The defendant has leave to take and file testimony to meet this, and as to any use of the invention prior to May 13, 1862, by the Amoskeag Manufacturing Company, within 60 days after. And the plaintiff has further leave to take and file testimony in rebuttal within 40 after that.
F. & P. M. No.2.
CARTIER V., THE
F. & P. M. No.2.,
& P. M. R. Co., Claimant.)
(Circuit Court,E. D. Wi8consin.' October 1, 1888.)
tug, :having in tow a raft of logs about 600 feet long, and of sufficient width to fill the channel, arrived off the harbor at about 8:30 o'clock P. M. The night was dark and rainy. a slight sea was beginning to make, and the was running strong out of the harbor. The tug exhibited the regulation greeJ;l. and red lights, and two vertical white lights indicating a tow; the lights baingvisible only from right ahead to two points abaft the beam. There was no ligh't upon the raft, bnt there was a lantern in a yawl-boat at the real' of th>:lraft. A propeller, approaching the harbor from the same direction, saw the light at the stern of the raft, which appeared to be about a quarter ofa mile from the propeller. and to be that of a schooner at anchor. The tug served the lii\'hts of the propeller, and sounded a danger signal, which the propeller supposed to have proceeded from some vessel in the harbor. A second signal was sounded, whereupon the propeller, unable to see any lights except ·the light in the yawl·boat. checked its speed, and. on the sounding of a third signal, made a circle in the lake. and then entered the channel, where it collided with the raft. The mate.of the propeller saw no lights ahead.on entering. the channel, but heard the tug's exhaust, and knew therefrom that a tug with ato'W was somewhere in the channel. Held, that U. S. Nav. Rule No. 12, requiring rafts naVigating or moored in any bay, harbor. or river to carry one or more white placed in the manner prescri bed by the board of supervising iJ;lspe,ctors of steam-vessels, did not authorize the regulation made by the boal'(l. that rafts in tow should carry certain white lights, and that the .),. tug, did not violate statu,tory regulations in not liO lighting the raft,; "
CoLLISION'--"BETWEEN TUG AND S'l'EAMER-TuGs-LIGHTS.
THE F. & P. M. NO.
Under articles 28, 24, of the Rct adopting the revised regulations, (28 U. S. St. at Large, c. 854,j>. 442,) providing that with respect to the regulations due regard shall be had to all dangers of navigation, and to all special circumstances rendering a departure from the rules necessary to avoid immediat.e danger, and that nothing in the rules shall exonerate any vessel from neglect to carry lights, or of the neglect of any precaution required by the ordinary practice of seamen, the tug was negligent in not exhibiting rear lights, which would indicate to the propeller her position, and that of hertow.
8. SAME;-OVERTAJUNG VESSEL.
The propeller was negligent in entering the channel after the alarm signals were given, and after it had notice of the proximity of the tug and its tow·.
In Admiralty. Libel for damages caused by a collision. G. a. Markham and O. T. WiUiams, for libelant· .F. M. HfY!}t, for claimant.
JENKINS, J. On the 18th day of September, 188B, at ahout5 P.'M., the tug Aldrich started with a tow from Hamlin, a point on the east shore of Lake Michigan, bound for Ludington, some six miles south. t This tow consisted' ofa raft or boom of logs of from 225,000 to 250,000 feet in quailtity, indifferently called a balloon, sag, or bag boom. The boom wfl:s composed 'Of from 40 t048 pieces of square timber, each of the length of about 35 .feet,connected with each other at the ends by chains; '1111d attached-to the tug by a hawser of 600 feet in length. The logs flolited unattached within this boom, and when in motion the boom naturally .assumed a balloon shape; the logs floating to the stern of the boom, 'which at the forward end came nearly to a point. It was about 220 feet in width at the stem, and of the length' of about 600 feet. The tug was ·90 fi3et in 'length. The:tug, with her tow, arrived off the Ludington piers at about 8:30 o'clock P. M. of that day. The night was very dark, and rain was falling;" The wind was'from the south-east, a slight sea ;was ginning to make, and the current was running strong out of the harbor. The tug exhibited the regulation green and red lights, and twoverticlil white lights, indicating a tow; these lights being visible only'fro1tlright ahead to two points abaft the beam. There was also claimed! to havebeen a light in the engine-room shining out through a window in'the · rear of the As the tow approached the piers there was nO light upon theraft\ but a laborer, with a lantern, was in a yawl-boat at the rear of the boom; his duty being to recoverlogs escaping therefrom;' The tU'g with its tow was makitig headway at the rate of one and one-half milesai1hour, and, as it neared the pier, took in sorrie 300 feet of ,thehawser; making the distance from the stern of the tug to the stern oftheraft about 900 feeL At the same time the propeller frorn the north, on heruBual voyage from Manistee to Milwaukee, touching'at Ludington, at the speed of from lO! to 11 miles an hour. The Iighta 'of the tug were not visible tothepropeller, but her captain saW the light atthestemofthe raft, on the port bow, bearing about E. N. E.' At,the sounding of the second danger signal, hereafter referred to, this light'ap-peared to·hith to be distant about a: quarter ofa mile from the propeller, and Soma ·2;000 feet or more north of the north pier; to be statioriary;
an<1 to be t l1at ofa schooner atanchor. The lightsof the propeller were sotlIlcted a dahgersigpal. At this time the mile nqrth.west from. thep,iers, the tug being also outSide, n.earer totbe harbor l 6nd was ,about one-fourth of a mile inshore, from th¢ prqpeller, ,'This danger signal was heard on the propeller, arid was'supposed to:have 'pJ:'ooeeded from some vessel in the channell or in thePere Marquette lake;constituting the harbor at Ludington. The propelleJ:' kepther oourse, headed for ,the beacon-light on the south pier. Shortly;thereaftElr, the tug sotindedit secoriddanger signal, upon hearing whioh the oaptain of the propeller, unable to see, any lights exoept the white,light in. the yawl-boat, checked his ,boat down, and hauled her up S. S. E. The captain,of the propeller states that between the first and secon4 alarms he had not proceeded a quarter of a mile, and, according to the captain of the tug, was one-half mile from the piers; and the tug, by authority, was some 300 feet from the Ludington pier-light, lludhad not en,ter,ed the There was a third alarm sonndedwhen the propeller was' about 1,000 ffletnorth.west from the the tug being at that time,accordingJo her captain, in the channel between the ,piers. From the firsta.lm:,m untilthen the tug had proceededonlyrrom 800 to 1,200 feet, having struck the current, and making slow: progress. "Upon the third alal'Ih, the propeller's engine ;was stopped,her Wheel, put hard a-port, and the ship, turned Qut, made a circle in, thela:ke, and was then beaded due east, and entered the harbor ;hugging the s(>uth pier, proceeding at the rate of four miles an hour; justsufficient",l:l.$ claimed by her master, to keep her under oontrol. The northpiElris about 1,600 fea.t long, the south pier project,s into Lake Michigan 20O",feet more. The distance, between" the pierI;! at the mouth feet; at the east end, 190 feet. The beacon-lig4t.islocated on the south pier, 200 feet east oOts outer !'lnd, and directly opposite the outer, .end of the nortbpier. The life-saving station is on the north pier, 800 'feet from itao\lter end. While prooeeding between the piers, and, acto certain of the witnesses, at the beacon-light, and according to others of tbewitnesses opposite to or near the .life-saving station, the ,ca.me in collision with the raft, separating some of the timbers of the boom, thereby permitting a portion of the logs to escape into the. lake, wheretbey were lost. The libel is filed to recoveJ; the value of the logs 50 lost. The inquiry first presented for consideratiOI\1 is as to the duty oithe tug '$ldthe raft:withrespect to lights, and whether thatduty was Performed. :I ,am all concerns the tug, that lilhe was properly lighted, 'o1nless, under, the Cll'cumstances of the case, ordinary prudence required . the exhibition of some light that would prove aI). effectnal warning to the cOllling steamer.: The tllg carried the re.gplation colored lights forward, .and ,two white lights,iudicating to 'Vessels approaching from s.head b6l;tlll, that she bad a 'tow. It ,would seem to have beenbnproper in, such case to exhibit the range of two white lights ,provided, by fnle 7,. The U. S. Grant and The Tallyl,Ir;r, 7 Ben. 195, 201. It isillEliatedby the claimant that the .raft should have been dif-
THE of. & P. !.i.
ferently lighted. Under rule 12, water-craift and rafts navigating any bay, harbor, or river, by hand-power, horse"'power. sail, or by the rent olthe river, or which shall be moored il'fornear thechanilel or fairway of any .bay, harbor, or river, are required to carry one or more good white lights, which shall be placed in such manner as shall be prescribed by the board of supervising inspectors of steam-vessels. Claiming under this authority, the inspectors have divided the rule prescribing the lights to be carried by certain water-craft navigated or moored as specified in rule 12, and apparently providing, as to rafts, in whatever manner navigated, that a raft of one and not more than two cribs in length shall earry one bright light on a pole not less than six feet high; of three or more cribs in length, shall carry one white light at each end of the raft of the same height; that rafts of more than one crib abreast (a crib being thirtytwo feet in width) shall carry one white light on each outside corner of the raft, making four lights in all. Syn. Dec. Treas. Dept. 1883, p. 89·. Such provision is manifestly wise; notice being thereby given to a vessel approaching from any direction of the extent and boundaries of the raft. Such or similar provisions should be made obligatory by the congress with respect torafts in tow, as well as to rafts navigated as speeifiedin the rule. But lam not prepared to concede the power of the bMrdof supervising inspectors of steam-vessels to enlarge the obligations imposed by rule 12, or to enact regulations with respect to lights 'upon rafts not navigated as desiguated in the rule. The power -granted is limited to the regulation of the number and location oflights upon rafts navigated or mooreel as specified. It is not altogether clear that the inspect.ors de-: signed to extend the regulation beyond the scope of the power contimed, but the regulation as to rafts is separated from the regulation of watercraft, and is in terms unlimited. The regulation must be restricMdjtt' its application within the limits of the power granted. 1 therefore'hold that there is no regulation of the congress prescribing the character ,and number of lights to be exhibited at night upon rafts in tow. What other duty then devolved upon the tug arid raft with respect to lights under the circumstances? Articles 23 and 24 of the act adopting the revised regulations (23 U. S. St. at Large, c. 354, p. 442) provide that with respect to the regulations due regard shall be had to all- dangers bf navigation, and to any special circumstances which may render a departure from the rules necessary to avoid immediate danger; and that nothing in the rules contained shall exonerate any vessel from any neglect to carry lights or signals, or of the neglect of any precaution required by the ordinary practice of seamen,or by the special circumstances of the case. This tug had in tow a raft some 600 feet in length, and at the widest part some 220 feet in width. The tow was distant from the tug some 600 feet while inthelake. and some 300 feet as she entered' the piers. No lights of the tug ,were visible to a vessel approaching astern. 1 do not regard the light through the window of the engine-room as useful in aliy sense as a warning. If there was such light. it VI'as necessarily low and dim, its effective power depending in large degree upon the situatiori6f the lantern in the engine-room, and the condition of cleanliness of' the
window and the lantern. The lantern was there for use in, and to light, the not for of warning. It would not cast its rays far aft, and was not seen flt!Uly time from the decks of the ler. This tow was a wide raft of logs, partially submerged, 10 times as wide as the tug, and, floating upon the waters, was not visible at any distance in that dark and rainy night. The only light was the tern in the yawl-boat at the stern,. which, by an approaching steamer, might well be taken, at the snail pace the tow was proceeding, for a vessel at anchor. The tug was approaching the harbor at Ludington, the seatof'l1n 'active commerce, ltnd 'at an hour when her master knew the propeller was due. She was entering the channel with a raft of equal width,ofthe channel, and which would necessarily obstruct the passage of any;vessel entering or leaving the harbor. The master of the tug knew of thj3 propeller's approach when the latter was at least a mile distant, and no other lights than those mentioned were exhibited. The rules ·of 'navigation provide in certain cases for lights that will show all around the horizon, (rule 7 j) that vessels. at anchor shall,exhibit at night, at a height not exceeding 20 feet above the hull, a white light in a globular as to show a clear, uniform, and unbroken.light, visible all around the horizon, and at a distance of at least one mile, (rule 10j) and that every sail-vessel, on' the approach of any steam-vessel, during the night-time, shall exhibit a lighted torch upon the point or quarter to which such steam-vesselshall be approaching, (Rev. St. § 4234.) These provisions indicate the care deemed necessary to give warning to approaching s.teamers. They declare and regulate, with respect to navi.gation, the exercise .of that ordinary care for the protection of others which devolves upon everyone at sea or upon land.. While not obligatory with respect to rafts, they point the way to what acts should be deemed acts of ordinary caution. If, as the rule declares, prudence demands,in-the case of a sailing vessel under way, that a torch should be exhibited by way of warning to a pursuing steamer, how much more is such or a similI'Ll'. effectual warning required in the case of a raft. A vessel is to extent itself a signal of danger. She can be seen in ordinary at quite a distance. But a raft of logs floating upon the water. at night gives no warning of itself, and is dangerous to navi. gation. Ordinary care requires that such lights should have been exhibited uPOn as would indicate danger to a vessel approaching from any directipn, and give suitable and timely.warning. Failing such methods, it.Wl1sincumbent upon the tug to exhibit such rear lights as would indicate to the approaching steamer her position, and give warning of her toW. Suph or similar precautions in such .a locality, and underthecircuw.,stances described, were, in my jUdgment, imperiously de. roanded by, and their omission was negligence. The Peshtigo, 25 Fed, J;tep.488,490. I am herein fortified by. several expert seamen, whose testimony has been produced, and stands uncontradicted.and unthe custom upon the Great Lakes to have for years opposed, been to have rafts in tow at night so lighted that their shape and dimene4 hibUed to approaching vessels, and that the. tugs of sions 'would
THE F. & P. M. 1m.
such tows have been accustomed to exhibit at the stern a bright light indicating their presence to a pursuing vessel. The custom but conforms to the dictates ofprudence, and emphasizes the duty which the law, in my judgment, imposes. I reach the conclusion, therefore, that the tug and raft were at fault, and that that fault was the primary and producing cause of the collision. This finding is not, however, conclusive of the right of the libelant. The disregard of duty by the tug and raft did not warrant the propeller to neglect any reasonable precautioJl to avoid a collision; and if, notwithstanding non-compliance with duty by the tug and raft, the propeller might have avoided the collision by ordinary skill and seamanship, then both vessels were in fault, and the damage must be equally apportioned. The Continental, 14 Wall. 345. The record discloses, as to the location and acts of the vessels at and preceding the collision, the usual bewilder· ing conflict in the evidence. Much of it is mere guess-work, self-contradictory, and unreliable. Some of it is evidently the offspring of imagination, stimulated by the excitement of the event. It would serve no useful purpose, however, to analyze this evidence. It is sufficient to state the conclusions to which my mind is impelled by a careful scrutiny of the testimony. If the master of the propeller miscarried in judgment in eating the signal, that was not of itself a fault, (The Lepanto,21 Fed. Rep. 651;) and having, upon nearing the piers, reduced his speed to four miles an hour, so that the steamer could be stopped when the dan. ger became apparent, he was not so far at fault. The Scotia, 14 Wall. 181; The Sar'Tnatian, 2 Fed. Rep. 911. The danger signal was a warning that a vessel was ahead. No lights being observable, the propeller was bound to assume that the vessel was not approaching. She was, therefore, as to the tug, the overtaking vessel, and bound at her peril to keep out of the way. The warning, however, did not require the propeller to stop; there being more than sufficient sea-room in the channel to pass. It was only required that she should proceed slowly, and with caution, sounding proper signals. In fact, there was no collision with the tug. The signal was not; 'however, notice to the propeller that the tug had a tow that was to he avoided. The obligation to avoid collision with the tow did not become operative until notice that there was ntow to be avoided. (The Leland, 19 Fed. Rep. 771.) In entering !hechannel the tug made her course to the south pier, thence towards the north pier, so as to swing her tow into the channel, and avoid contact with the end of the north pier. The collision occurred at or very near the beaconlight on the south pier; the propeller striking the boom at or forward 01 its center. This must' have been so, for the captain ·of the tug states that when the propeller was coming in after making her circ1ethe tug was 500 feet from the end of the south pier. The tug was 90 feet in length, the hawser 300 feet, and the raft 600 feet. This would leave the entire raft outside of the north pier. When the propeller entered the channel the tug was 600 feet ahead of her. The stern of the tow was then necessarily astern of the propeller. The yawl-boat was at that time outside the pier, and· the light was nearly ,200 feet to the north. west of
the ,propeller. Upon the collision propeller immediately reversed her, engine, and began to back, which threw herstern over to port, is, manifest she did not strike the tow, and ,further into the raft. astern, for in that event thl'! steamer would not ha.ve encountered the raft with her propeller as she backed, and would have met serious difficulty, and probable disaster, in forcing her way through a compact body of logs' filling the entire width of the channel, whereas she proceeded after the collision without difficulty;' 1 find no act of negligence in the conduct, of the propeller at, the immediate fioment of collision. Was the propeller in fault in attempting to enter, the channel at the time and under thedrcumstances disclosed? Three alarm had been sounded, which the captain of the propeller was unable to locate. He states these alarms to have been sounded before he put his wheel hard a-port, and turned out into the, lake. Thero is great contradiction in the evidence of the location of the vessels at the times of these different signals, but I shall assume the fact to be as stated by the captain of the propeller. His object in turning into ,the Jake was cautionary, and to locate the danger signal. The first alarm appeared to him to ,come from the little lake inside the piers in the vicinity of the railroad dock and ferry. The second alarm sounded nearer to him, ahead of him; but he could not say whether in the channel or no.t. At the third alarm the propeller was 1,000 feet away from the beacon-light. It sounded close, and from 600 to 1,000 feet away, a little on her port how. The propeller being only 800 feet from the north pier, and the signal sounding not over 1,000 feet, away, the captain, in the exercise of ordinary caution, was bound to assume that the alarm proceeded from a vessel at or near the mouth of the channel. Since he could discern no then, or after he had turned in ' the lake and headed for the channel, he was bound to assume that the vessel was not approaching him, but was ahead of him, passing up the channel. He was therefore, as to the tug, imposed with the responsibility of an overtaking vessel. All this, however, ,disconnected with other circumstances, was no notice of the tow, and, there being ample seUl-room,topass, there was no fault in proceeding at, cautious speed, if the propeller is not otherwise -chargeable with notice of the tow. The captain of the propeller heard the tug exhausting, but, he .claims, not before the collision. He asserts that he sounded one whistle to indicate to the tug that he would pass to starboard, but that this was done after asserts that this the collision. The mate of the propeller, signal was given just as the propeller started ahead after coming around, before the beacon-light was reached. In this iscorrobprated by the evidence for the libelant. It a proper signal to have been given before entering the channel, the exact location of .the tug being unascertained. The mate also fltates tl1at he could see no lights ahead, but that he the tug's exhaust, and therefrom Imew that a tug with a,towwassomewhere in the channel. He knew thisbeforetbebeaconlight was reached. Heknew.it. before the propeller entered the channel. He knew it when the .propeller headed to enter the channel, and was nearly 1.,000, feet away· f,rom t4.e beacon-light. The Propeller,then, had
THEE. &< P. M. NO.:2.
timely warning of danger. That warning is located by her captain as just within the channel piers. When the propeller rounded to and headed into the channel, no lights could be seen, so that he ought to have presumed that the danger WlilS not approaching.: The known absence of lights imposed upon him the greater caution. The exhaust of the tug, indicating a-tow, was heard by the mate as, the propeller started ahead after coming around. The captain, in the exercise of diligent caution, ,should have heard that exhaust, if he did not. Notice to the however, notice to the vessel. If he failed to communicate the fact to ,Mssoperior officer, he violated his duty; but the propeller is none the less responsible. Knowing, then, or chargeable with knowledge, that a tug with a tow was ahead; that no lights were exhibited indicating the character or dimensions of thetow,-the propeller was place<;l, in the situation, as to the to:w, of an vessel, and bound ,to keep' out of the way. Rule '22; The Charles Morgan, ,6 J!"ed.Rep. Wliitridge v. Dill, 23 How. 448, 454. I think that, under the circumstances, dili,gent caution the propeller to stop. The captain had reason,able cause to apprehend He knew that itwas near. Notwith,standing the neglect of lights by the,tug and tow, the propeller had p.o right to proceed, apprehend,ing,a near'danger. I have not the evidence of expert seamen testifying for the claimant. should' lay ,great stress upon their opinions if founded on the whole, evidence; but hi the ca156 propounded to them, the fact of the e.xhaust of the tug'being heardon the propeller when headed for Hie channel; ,arid indiCa:tingftn linlighted tow near at hand, was not a stated factor in the problem submitted for theirjudgment. I cannot think they would approve the entering of the llarbor, upon such a night, with a known but unseen dan.ger just ahead.'The propeller should have beenl5toppedunti,Ltbechannel Wll8 known to be clear. A steamer'moVing in' narrow waters"especially 011 ,dark and rainy night, great Caution and vigil'ance.· , She proceeds at her peril in the faceof a kilowndanger.' Both ,vessels being in fault, the damages must be divided. '
LoWNDES "'. THE PH<ENIX.
(District Court, D. South Oarolina.
ADMIRALTY__PRACTtCE.,-BoND Fon C08TS--JURATORY CAUTION.
In admiralty, under astrict rule' that a stipulation for costs must be :flIed with the libel, upon a proper showing one may be allowed to sue upon" 8 juratory caution, II and, when a libel has been filed, with security, which is shown to be !;lad, upon 8 motion to file additional security the court will not order an absolute dismissl,\l upon failure to file such security.
In Admiralty. Motion for additional security for costs. Ingle8by « Miller and J. P. Bryan,' for libelant. I. N; Nathan, for claimant.
SIMONTON, J. 'The libel is for personal injuries to one of a gang of stevedores engaged in loading thEj steam-ship. When libelant filed his libel, he gave the stipulation' for costs, with one Gardner as surety. The lias filed a the state court showing that ,there are entere'd'against Gar4per several, judgments, yet unsatisfied. -qpon this he moves au order libelant gi've additional security on pain of dismissal of his libel. 'T4e,proctors for libelant state that prob,ably he cannot give additional, security, and' in this event they ask that the privilege. of a j\uatory caution be reserved to him. Suits in forma pauperi9, or,usingthe words in upon "a jura.tory 'caution," are recognized in the district courts of the United states. 2 281; Polydore v. Prince, Ware, 410jThollULB v. Thorwegim,,27 :Fe,d. Rep. 400. And this in courts in which there is req,uirillg ,security for costs. We have such a rule, (25). There is much to ,commend ,this indulgence to poor suitors. , ,It would be. abhorenr to a sense' of justice to refuse the renledy for a clear right on the only ground that the suitor cannot give a bond for costs. But it may be abused. In a port filled with shipping the temptation may be very strong to libel a ship just about to sai.l and force the payment of a groundless or extravagant claim. If there he no check in the shape of a stipulation for costs, this may lead to irreparable loss, or intolerable wrong. No final rule on this subject will be made. Let an order be taken, requiring additional security, to be put in within five days. If at the expiration of this time no security be put in, and if it be established in a proper way that none can be put in, the merits-of the case prima facie will be examined.