OpenJurist

811

way she was seen from t4e decks of the Wayne, her crew concluded tpat the Phenix was sailing ina south-westerly direction, her course being It little to the westward of the course of the Wayne; and that she was sailing much faster than the Wayne, and had overtaken the Wayne, anciattempted to cross her bows, thereby bringing on the collision. This theory, if sustained by the proof, would of course show the Phenix clearly at fault. She would have had no right, undedhe circumstances, to attempt to cross the bows of the Wayne. She, according'to respondent's testimony, had the wind free as well as the Wayne, and, if she wished to get to the windward of the Wayne, her duty was to have gone under the stern of the Wayne, instead of attempting to cross her bows. The master of the Phenix was flo trained seaman, had spent the most of his life as a 'sailor, and must have known the folly and madness of the attempt he is charged with by the respondent. The only way in which I can in any degree explain the testimony of the witnesses for the Wayne is that they were inattentive in looking out for lights and signals, and when the proximity of the Phenix was discovered on board of the Wayne the wheel of the Wayne was suddenly put to starboard, and her bows swung rapidly to pOrt, so that for an instant preceding the collision, and while the last torch was being shown, the two vessels seemed to be along-side of each other, the port side of the Phenix showing along the starboard side of the Wayne. All the witnesses on the Wayne admit that they had no knowledge or notice of the presence of the Phenix until just·at the instant before the collision, when the torch-light was shown from the deck of the Phenix. At that moment, undoubtedly, the position of the two vessels was such as that, if the Wayne's wheel was put to starboard ,they might hastily have assumen that the Phenix had approached them fromtheinside, or was attempting to cross their bows. Therefore, without further attempt to rec<.tneile this contradictory testimony, I simply say that I accept the proof from the Phenix as being the most natural and consistent, and, in the light of that proof, find the Wayne must have been at ' fault, and liable jor the damage incurred.

Ei.LIOT v.

THE

(Di8trict Oourt, No D. Illinoi8. March 14,1889.)
COLLISTON-BETWEEN BAILING VESSELB-FOG-BIGNALS.

The schooner M. was. between 4 and 5 A. M., running close·hauled on the port tack between Cat-Head point and the Manitollislands. Lake Michigan. Her course was about west"south-west. witb the wind south by west. There was a dense fog. and two blasts of her fog.horn were sounded at proper in. tervaJs. Hllaring a single blast of a fog-horn from a schooner. w,hich proved to be the B.; over the M.'s starboard bow, the M.'s captain assumed that she was running about south'east. close hauled on the s'tarboard tack. and immepOrted. and went off two p(>ints to starboard, when, bearing another, single blast about ahead. he ported another point, bringing his course west by north, which he held until the S. was disclosed through the' fog runnIng

812
about east-north-east. and 80 close that coIIlsion was Inevitable. The S. claimed that the wind was south-south-east. but the evidence showed that it was from south by west to south-south-west. thus giving the S. the wind free. Held. that as by the supplemental rule 12. new sailing rules 1883. a vessel with the wind free Is required to sound three blasts on her fog-horn, the S. was at fault in giving an Improper signal.

In Admiralty. Libel for collision. Schuyler &- Kremer, for libelant. W. H. Condon, for respondent.
BLODGETT, J. The libelant, as owner of the schooner Morning Star, seeks to recover damages sustained by his schooner from a collision with the Stafford on the waters of Lake Michigan. It appears from the pleadings and proofs that the Morning Star, bound on a voyage from Torch Lake to Chicago, with a cargo of cedar, was, between 4 and 5 o"olock in the morning of May 24, 1887, running au the pointand the Manitou islands. Her course port tack between was,about west-sou.th-west, with the wind south by west. There was a dense fog, and two blasts of her fog-horn were being regularly sounded at intervals not to exceed two minutes, when one blast of a fog"horn from a schooner, which proved to be the Stafford, was heard over the starboard bow of the Morning Star. Her captain, who was officer of the deck at the time, hearing the single-blast signal from the Stafford, assumed that she was running about south-east, close-hauled on the starboard tack, and at once ordered his wheel put to port. and went off two points to s.t!lrboard,when he got the Stafford's horn-still a single blast-about when he ported another point, bringing his course west by north, and held this course until the Stafford was disclosed through the fog, running about east-north-east, l1.nd so close that a collision was then inevitable., The wheel of the Stafford was put to port, and the port bow QftQe,$tafford struck the port bowofthe Morning Star, doing the damage complained of. I think the whole case turns upon the direction of the wind. It is claimed on the part of the Stafford that the wind was south-south-east, while a clear preponderance of the proofs from the deck of the Morning Star, and from the decks of the schooners Simmons, Starke, and Nelson, that were in the vic,iuity and hearing of the accident, makes the willd from south by west to south-south-west. All the proof from the Stafford and Jh.e Morning· Star makes the course of the Stafford from east by north to east-north-eastj and with the wind south, or from any point west of south, the Stafford must have had the wind free,-that is, she.had it from abaft the I understand that, when a sailing the wind a-beam, or abaft the beam, she has the wind ftee. And all agree that if the Stafford had the wind free she should have sigIlals of three 1,lpon her fog-horn. See Supplemental Rule 12:, New Sailing Rules of March 1,1883. When the m8ste1' of the Morning Star heard the signal of a single blast from the Stafford's fog-horn, tbt;lright to conclude that the Stafford was running
,,,'.".,,_ ..··· ;.' _, ' _ .. ,_ '.0" ,

'rHE AMERICA.

81&

on the starboard tack, and it was a propel' for him to puthis wheel to port. so as to pass astern of the Stafford, as the Morning Star was on the port tack, and obliged to keep out of the way of the Stafford on the starboard tack, unless he knew the Stafford had the wind free. If the Stafford had been sounding a signal of three blasts, the master of the :Morning Star would have understood it was his duty to keep his course, and that it was the duty of the Stafford to keep out of the way, accordingto rule 17 ofthe new rules of March 1,1883; but the master of the Morning Star was misled, and caused to change his course, by the erroneous signal of the Stafford; and while the change of the Morning Star's course may have brought about the collision, such change was made through the fault of the Stafford in not sounding the proper signal required by usage and the sailing rules. A decree for damages may be entered in favor of the libelant.

THE AMERICA. l MILLS

v.

THE AMERICA.

((]i1'cuit Court, S. D. New York. Mar.ch 18,1889.)

1.

COLLISION--.,.BETWEEN TuGS-CROSSING Bows.

A tug whir-h. on sightiu&, another tug showing itued crosses tl,1,e latter's bow to the starboard mstead of passing port to port. III in fault for a collision occurring thereupon.' . .

"

2.

SAME-DELAY IN REVERSING-EMERGENcy-FAILURE TO CHANGE COURSE.

The tug A., when 300 to 400 yards from the tug T·· which showed both lights. blew a single! whistle. Getting no response. it slowed, and blew again, still seeing both lights: but the red theu became invisible. and the T. gave two whistles. The A. immediately thereon reversed. and gave the 48;nger signal. The 'testimony as to the distance of apart varied from 150 to bet,ween 500 and 1,000 feet. A collision occurring, held. that the A,was not in fault for not reversing sooner. or in not starboardinjt her helm when theT. indicated an intention to cross her bow.

In Admiralty. Libel for damages. On appeal from district cQurt. '32 Fed. Rep. 845. This is an action. by the owner of the steam-tug Talisman to. recover from the steam.tug, America the damages'sustained bya collilsion between the two tugs on the night of March 5, 1886, in the NorthJ:iver. The Talisman left Weehawken at 11:15 P. M., bound fo):', pier 5, N. R.,. and ,had passed Castle Point, lying about 400 or 500 yards from the Jersey 'Shore, and heltding generally down the river,bllt angling slightly for the New York shore. The America left Jersey City, bound for'l]l;Iirty-Fifth 'street, New York. She went up along the Jersey shore abou,t 300 feet or so off the piers, lintil near the Lackawanna docks, when she sheered
:' ,1. MOdifying

82. Fed. Rep·. 845.