isthe:nfore- entitled to recover his freight without any deduction for .the expense of pilling. Inadtlition to the claim for freight the libel also. seeks to recover six days',demurrage at the rate named in the bill of ladhlg. Upon the testimony;; lam of the. opinion that the master can charge for two days' demurrage, and no more. A decree will therefore be entered in favor of 'the libelant against the laths seized, in accordance with this opinion. The amount,asl figure it, is $169.74, with interest from September 27,
MANltATTAN 11. THE AGNES MANlII"ING.
(DIstrict Court, E. D. PennsyZ'llanw. Ootober 81, 1890.)
A stesmer and a were approaching in a olear night, on oppMfte counes. When the vessels were a few lengths apart the sohooner was JlrAt ,een by the , steamer. thongh, as her lights were bUl'nlng. brightly, she should have been se1!n one llnd·o!1e.h,alf miles away. The steamer had. onlr one man on lookout and three men' on deck. HeZd, the lookout was defeotive, and the steamer in fault for not . 'keeping off. 2. BAUD. vessel, ':Vhose duty it is keep oft, is known to respond tardily to her wheeL, she is eSp80lally bOund to mamtsin a vigilant lookout.
8. ·SAMB-CHANGINGOOUKSIlIS. LCoIJLJ8JOlf-BTEAM AND BAIL-LoOKOUTS.
The stealQer aoknowledged herself in fault, but olaimed that porting hel' helm when exeouted. would hsve oarried the vessels olear but for the starboarding of the schooner. '. The sohooner. aoknowledged starboarding, but olaimed it was done SOlQe time hllfore theoolUsion. HeZd, as the evidence of the time of the schooner's staTboaratng and the probabilities were against its Iniving been done..after the steamer ported, the oharge of oontributorynegligence was not
4. aUlfIl':':'CUANGB' OF CouRsB-IN EXTRBMIS. Where &-steamer had eome·so olose to a·schooner saUing'on an oppdsite course,
her,.tl1at extreme measures to port her to avoid 001lision, astsrboarding of tneschOoner then made was in extrerlliis and excusable.
In Admhalty· '. · Petitionl>y Clarence Birdsall et ttl., owners, to limit the liability of the schooner Agnes for collision with the steamer Manhattan, anrllifkl. by thi:! Manhattan agaiust the Mlmn'ing. The admitted facts were thatthe Manning, a four-masted schooner from Baltimore to Ne", York; and making 7to 10 knots, and the steamer Manhattan from New YOI'ktoWest Point, Va., making 10 to 12 knots. collided near The steamer's evidence tended to show that the schooner .wasseim When. three-fourths of a mile ofr; and that the steamer ported, the'v'essels on clearing courses, ana that afte'tthe steamer ported bringing the vessels into' collision. The starhoarding, it was dorie vrhen the
Matk WIlk& Collet,
Esq:,' of th& Pblladelphil& bar·.
THE AGNES MANNING.
sels were f!lor apart, and that the changes then made 'were and that the Elteamer ported only immediately before the collision. The evidence showed that there was only one lookout(three men altogether) on the ste!lolIler's deck at the time of the collision, and that the porting the wheelman both turning the was done very rapidly, the pilot wheel. Robinson, Bright, Biddle &- Ward, for lihelant. Henry R. Edmunds and Ourtis Tilton, for claimant, citedAs to the duty of an ocean-going steamer to have two lookouts: The Oolorado. 91 U. S. 692. The duty of ,the steamer to see, the schooner: The Abby Ingalls. 12 Fed. Rep. 217; The Falcon. 19 Wall.' 75. As to the evidence necessary to show contributory negligence by the schooner: Haney v. Packet 00., 23 How. , Astoa change otcollrse of the schooner, if made after portU. ing of the steamer. being made in extremis: The Mag.qie J. Smith.
S. 355. 8 Sup. Ct. Rep. 159; The Elizabeth Jones, 112 U. S. 514. 5 Sup. Ct. Rep. 468; 'l.'he Oadiz.20 Fed. Rep. 157; The Norwalk. 11 Fed. Rep. 922; The Reading, 43 Fed. Rep. 391;.
BUTLER,J. The Manhattan was in fault. The proofs show this very distinctly,.:...-so distinctly that her proctor admitted it on the argument. Her duty required, her to keep off, and she did not. Her lookout was defective, and the Manning's approach was not observed until the vessels were so near each other as to create danger, notwithstanding the fact that her lights were burIling brightly and the night was favorable to a distant view. They should have- been- seen readily a mile and a half away, yet they were not observed until the vessels were but a few lengths apart. This is the more reprehensible because the Manhattan was known to respond tardily to her wheel.--:While admitting her fault, (which is amply sufficient to account for the disaster,) she, charges the Manning -with contributory negligence. Such charges, under similar circumstances, are very commoti. The crew of the offending vessel usually seeks to telieve itself from censure and responsibility by charging the other with improper' change of course and voluntarily running into dangpr.To sustain such a charge the evidence should be very cl ar.In this case it certainly is not.·· While the witnesses for the Manhattan·say the after they had ported, those from the latter declare just as p6aitivelythat she did not. They say a slight change was made much further back, a considerable period before the Manhattan ported, and tbat this was the only change made. These witnesses are most likely to be accurate respecting the fact. If the wheel was changed,as charged, they must know it, while the others migpt be mistaken; .llnd they certainly have no greater motive for falsifying than tbelatteti Besides, they are supported by the probabilities of the case. It is improbable that she would so change after seeing the Manhattan turn in that direction and thus run into greater danger. It is quite clear, to say the least, that the charge of contributory negligence is not proved. If it were proved, however, it would not tend to relieve the steamer. The vessels were then in veril, and the change, though erroneous, would be excusable. That the situation was perilous when the steamer ported
FEDERAL REPORTER, vol.
cannot well be doubted; the conduct of the officers shows it. They resorted immediately to extreme measures, such as are only taken to escape threatened danger. It is evident they were seriously alarmed. The steamer's claim to damages cannot, therefore, be sustained, and a decree must be entered accordingly.
THE JERSEY CITY. 1 CoRNELL STEAM-BoAT
tI. THE JERSEY CITY.
(Dt8trLct Oourt, E. D. New York.
CoLLISION-FERRY-BOAT AND TOW-CROSSING COURSES.
A tug, with several boats in tow along-side, came down the North river, rounded to,and lay about 850 feet from the New York piers, holding herself against the ebbtide, and waiting for the steam-boat City of N., which was coming up astern, to pass inside of her; While so waiting, a ferry-boat, bound from Jersey City to New York, attempted to pass between the tow and the City of N., and her paddle-wheel struok the outside boat on the starboard side of the tug,causing it to sink. Held, that the ferry-boat was liable for the damage.
In Admiralty. Suit against the ferry-boat Jersey City for damage by collision. See 43 Fed. Rep. 166. R. D. Benedict, for libelant. Robinson, Bright, Biddle Ward, for claimants.
BENEDICT, J. Upon the merits of this case, it need only be said that the libeljtnt is entitled to a decree, unless the defense set up by the ferryboat is maintained. That defense is that there was room enough for the ferry-boat to pass between the tow and the City of Norwich in safety, on her way to her slip, but that she was prevented from passing in safety by the action of the tug in dropping down the stream, and thereby so narrowing the space between the City of Norwich and the tow as to make it impossible for the ferry-boat to pass without striking the stern of the tow as she qid. This defense, however, is not supported by the evidence. The weight ,of the evidence is the other way. There must therefore be a decree for the libelant, with an order of reference, to ascertain the damages.
by Edward G. Benedlot, Esq., of the New York bar.