'Yith a tow half a mile long, and should have looked out for herself to a certain extent, and kept away from the tow, as with a free wind she might easily have done. We think, if she hadused ordinary care, she rpight easily have avoided the collision without violating the well-settled rules of navigation, but paying that regard to her own saiety which is obligatory upon every vessel meeting another where any risk of collisirn is involved. The testimony shows that she passed within 1,200 feet of the Missouri. We think it entirely clear that if she had kept her course, or if she had kept off, as she might easily have done at that distance, she having a leeway between herself and the Missouri of 1,200 feet, she would have passed the entire tow in safety. The cause of the oollision was the fickleness of the Page, or her apparent uncertainty with regard to what she ought to do. If she had fallen off, as we think she could have done wi'thout difficulty, she would easily have avoided the collision. She appears, however, to llave allowed herself to get closer to the tow than was safe, and then, being in peril, and perhaps in extremis, she put her helm hard down, and attempted to cut across the tow. That Wa$a desperate maneuver, and one which could hardly have failed to result in disaster. The only excuse,given for it is that the master was afraid that if she jibed she would take the masts out of her. But it is suggested to me by the experienced gentlemen who have advised me in this case, that if she had dropped her aftersails, or the peak of her mainsail, she might very easily have fallen off without jibing; and even if she had jibed, it would not have injured her masts or yards. It seemed 'to me from the first that there could be but one result. to this case, and I no reason to change my mind in that regard. An order will be entertld adjudging the schooner Marion W. Page solely in fault for this coland referring it to a commissioner to assess the damages. The qbel as against the propeller Missouri will be dismissed, with costs.
THE AUSTRALIA. ,FREEMAN
THE AUSTRALIA, (OCEANIC S'l'EAMSHIP Co., Claimant.)
'(Di8trict Court, 1v. D. California. March 9, 1888.)
. Asking·the master of a vessel which was about to sail, at the custom-house, if he desired a pilot. and an answer that he did not know, is not sllch, a speaking of asbip and decline of services as eQtitles a pilot to "half-pilotage" un· . der Pol.. Code Cal.s 2466. providing that when a vessel is spoken to, outward :or inward bound: ·and the services of a pilot declined, "half-pilotage" shall be , paid... . .
P. D. Wigginti)rIi,(Lloyd &: Wood, of counsel,) for libelant.
of counsel,). for :claimant.
HOFFMAN, J. Section 2466 of the Political Code of this state provides that when a vessel is spoken, inward or outward bound, and the services of a pilot are declined, "half pilotage shall be paid." Thelibelantclaims to have spoken the steamer Australia outward-bound, and that the offer of his services was declined. The circumstances under which the alleged "speaking" of the ship occurre4, and the offer of services declined, were as follows: On the 2d of March, 1887, while Capt. Houdlette, master of the Australia, was at the custom-house engaged in clearing his ship for a foreign voyage, he was approached by the libelant, a licensed pilot for this port, who inquired whether he wanted a pilot. To this Capt. Houdlette, according to the libelant's account, replied, "I don't know." Other witnesses testified that he added, "Come to the ship, and I will tell you." It is upon this conversation that libelant relies as constituting a "speaking of the ship," and a refusal by the master to accept his services. It is clearly proved that for many years a practice or usage has prevailed in this port under which the pilots have been accustomed to inquire at the custom,house, of masters of outgoing vessels, when clear-. ing their ships, whether they will require the services of a pilot. This practice is convenient and unobjectionable when both parties agree to treat such an inquiry as equivalent to speaking the ship. But where a pilot claims a compensation under a statute for a constructive service, no practice or custom, however inveterate, can absolve him from the duty of bringing himself within the requirements of the law. To say that an inquiry at the custom-house, such as that made in this case, constitutes "a speaking of the ship" within the meaning of the statute, would seem to be an abuse of terms. The law requires not only that the vessel be spoken, but also that the services of the pilot be declined. In this case the master did not decline the pilot's offer, if offer it can be called. He merely replied that he did not then know whether or not he would require his services. Other witnesses testified, as I have stated, that he told the pilot to come to the ship for a definite and final answer. I think this discrepancy is immaterial. On either statement it is clear that his services were not declined. I do not mean to say that if the master had informed the pilot in positive and unequivocal terms that he would not require or accept his services, and that he intended to proceed forthwith to sea without a pilot, this announcement might not be accepted as a waiver of any irregularity in the offer of service, and as relieving the pilot of the duty of making a more formal offer of services which he was assured would be declined. But no such response was made by the master when the vessel was, as is said, "spoken at the custom-house." The master merely informed the pilot that he had not determined whether or not he would take a pilot, and, as he says, directed him to come to the ship for a final auswer. It seems to me plain that, to entitle the pilot to the compensation allowed by law, he should have brought himself within the terms of the statute by making a formal offer of hisservices when the ship was about to proceed to sea, and by procuring from the master Ii. distinct refusal to accept them.
CHIESA 'V· .CONOVll1R .et al.
(DiBtrict Oourt. S. D. Alabama. September 21, 1888.)
IN WHEN LIE.s.
Rule 2 of the admiralty rules of practice, providing that the mesne process in a suit in per8fJnam may be a warrant of arrest of the person of the defendant, and, if he cannot be found, for an attachment of hIS goods and chattels, does .not authorize an attachment in Alabama, where imprisonment for debt has heenabolished.
In Admiralty. Libel in personam. The libel was filed at Mobile, while the vessel was there, loading for Liverpool, and sets up a violation of charter in not sailing on a voyage from Pensacola to Rosario. . It alleges that the bark was the property of E. M. Conover and John Doe, whose name is to libelant unknown. On showing made, the district judge made an order for issue of attachment of the vessel as such property. On hearing at special term, of motion to dissolve the attachment, it appeared that E. M. Conover was the sole owner, was wife of the present master, and with him upon the vessel. Pi/lans, Torrey & Hanaw, for owner. G. L. & H. T. Smith, for attaching creditor. TOULMIN, J. After a careful consideration of the motion to quash the attachment in this case, and the arguments thereon, and an examination of the authorities bearing on the question. that I have been able to find, including those submitted by counsel, I feel bound to hold that the order for the attachment of the vessel was improvidently made, and that the attachment was without authority of law, and should be vacated. The only authority for the attachment of the property of the defendant in a suit in per80nam is found in rule 2 of the rules of practice, which' provides that the mesne process may be a warrant of arrest of the person of the defendant, and, if he cannot be found, for an attachment of his goods and chattels. 'fhe attachment of the vessel is not authorized except where the defendant cannot be found, and then, where the warrant of arrest is authorized under the law of the state where issued, it should be in the alternative; that is to say, it should direct. first, the arrest of the person of the defendant,and, if he cannot be found, then the attachment of the property. My opinion; therefore, is that the writ of attachlueut can be had only where awarraut of arrest of the person of the defendant is authorized. Such attachment. can only issue where such warrant can issue,and be executed only where the warrant of arrest cannot be lJecause the defendant cannot be found. As a warrant of arrest . of the person. of the defendant is· unauthorized and illegal under the law , of this state, so is a writ of attachment, which is dependent on such warrallt of arrest... In other words, as the right to the writ of attachment on·the right to.hnprison for and as by law imprisonis ment for· debt is abolished in this state, it must follow that the writ of attachment in this case is without authority of law, and should be vacated; and it is so ordered.