proved where such circumstances of exigency are shown as would induce a prudent owner, if present, to order them, or to provide funds for the cost of them on the surety of the ship. (4) The ordering, by the master, of supplies or repairs upon the credit of the ship, is sufficient proof of such necessity to support an implied hypothecation in favor of the material-man, or of the ordinary lender of money, to meet the wants of the ship, who acts in good faith. This fourth proposition is the one affirmed in The Luln. These propositions are quoted at length, for they seem to emphasize this conclusion. The material-man must assume the burden of showing that the supplies or advances made to the ship were necessary. When, however,he shows that they were made in good faith, on the order of the master, he has complied with the stringent requirements of the first proposition, and has shifted the burden. The testimony creates no suspicion that the libelant did not act in good faith. Indeed, the fact that his advance of $105 was recognized by the agent of the steamer, and the draft of the master for this sum was duly honored, encouraged him to rely upon the statement of the master in every respect. There is no direct evidence on the part of claimant showing the absence of such necessity. The vessel was run expensively; it earned freight and passage money. Whether it paid expenses or not does not appear. The rule of The Grapeshot must be applied. Let libelant have a decree for $276.30, with costs.
THE SENECA. MALONEY
(District Court, D. Rhode IsLand. July 25, 1891.)
COLLISION-BETWEEN STEAM AND SAIr.--BuRDEN OF PROOF.
A steam-yacht having rlln down and sunk a schooner, the sole question as to the liability was whether the schooner changed her course before the collision. Five witnesses,'one of whom was disinterested. testified that the schooner did not change her course until the collioion had become inevitable. and they were directly contradicted by only one witness. Hdd, that the yacht was liable, since the burden WIIS on her to prove that the schooner changed her course.
In Admiralty. This. wus a libel for a collision, whereby the schooner General Hall was sunk about five miles easterly from Nausett light, Cape Cod, at about 11 o'clock on the evening of April 4, 1891. It appeared from the testimony, without substantial contradiction, that the wind was N. W. by N., and moderate; the sky was overcast, but the air was clear; that the schooner was close-hauled on the port tack, and headed about N. by E.; that to the leeward of the General Hall was the schooner Hattie S. Collins, OIl the same tack, and with the same course, and a little ahead of the Hall, and distant from her about 200 yards; that the
FEDERAL REPORTER, vol. 47.
steam-yacht Seneca was heading about S. by W., nearly head-on to the schooner, but on a course a little to the westward of the course of the schooner, and was proceeding at about the rate of 10 miles an hour, and was about three-eighths ofa mile northward from the Hall; that from these positions the vessels so proceeded that the steamer struck the schooner on the starboard side about amidships, cutting her down, and bringing down her mainmast; and that the schooner sank almost immediately afterwards. The master, mate, steward, and man at the wheel of the schooner testified that she did not tack or change her course, except that just before the collision, and when it could no longer be prevented, the wheel was put to starboard, in the hope to lessen the force of the blow, and the schooner luffed about one point. This testimony was corroborated by the testimony of the master of the schooner Hattie S. Collins. Alonzo P. Bliven, a designer and builder of yachts, who had bought the yacht in Boston for her present owner, testified that he was on deck acting as lookout at the time of the collision, and that the schooner came in stays, and went about when the vessels were about 300 yards apart, bringing the sohooner across the bow of the. yacht, and making the collision inevitable. Mr. Bliven also testified that th0 master of the schooner, after he was taken on board the yacht, said that he had made a mistake in going about. Kemp, the valet of Mr. Langley, the owner of the yacht, testified that the master of the schooner ad. mitted the collision was his fault; and Dean, the cook of the yacht, gave similar testimony. There was no evidence that any effort had been made to obtain the presence or the testimony of any. other of the persons who were on the yacht at the time of the collision. The master of the schooner denied that he had said he was in fault. E. E. Blodgett and E. P. Carver, for libelant. S(tmttel T. Douglas and William W. Douglas, for claimant. CARPENTER, J., (after stating the facts as abore.) Various su Lsi diary questions have arisen on the evidence in this case, and have been carefully argued; but I think they have no weight, except to support one side or the other of the single issue which must be decisive of the question of liability. The sole defense of the owner of the yacht is that the schooner changed her course, and thereby caused the collision. On this issue, whether she did so change her course, he has theafiirmative and the burden of proof. I think he falls far short of sustaining this burden. All the crew of the schooner who have any knowledge of the facts give their testimoh1 to the effect that the course was not changed; and they are corroborated by the testimony of the master of the Collins, who does not appear to be interested in this contro\'ersy. On the other hand, there is 8ubstautially but one witness; for I am not inclined to give much weight to the loose and indefinite reports of conversations which are . given in by the cook and the man-servant. It is true that the master of the schooner admits that at first he mistook the yacht, with her long row of electric cabin-lights, for a tug with two barges in tow; and it is ingeniously argued that, since barges under
the influence of the strong breeze would be considerably to the leeward of the course of a tug, it is reasonable to snppose that the master of the schooner, knowing this fact, and relying on the slow rate of speed at which the supposed tug must be proceeding, would naturally think it safer to come about and pass the tow to the windward. Doubtless this consideration might have some weight if the testimony as to what actually occurred on board the schooner were much more evenly balanced. But, on the other hand, it is to be considered that, if the master supposed the yacht to be a tug with barges, he would still be conscious that it was his duty to hold his course, and the duty of the master of the tug to so manage his vessel and his tow that no collision should bappen. On the whole, therefore, I am of opinion that the fault rests wholly with the yacht, and that there must be a decree accordingly.
(District Court, E. D. Michigan.
March 25, 1891,)
A propeller having a schooner in tow made a trip on Lake Huron at the very end of the navigation season. On passing a certain harbor, the weather gave indications of a storm, but the propeller kept on her course. The storm soon grew to be one of unprecedented severity, and, while the vessels were near a lee shore, the tow-line broke, and the schooner was wrecked. Held, that the act of the master in keeping on his course in such an emergency was not negligence. Where circumstances are evenly balanced, which indicate a choice of action in time of danger, the master's decision in the matter of navigating the vessel is conclusive, and, although he may err in jUdgment, it is not negligence, if the master be competent. Hypercritical scrutiny into the conduct of the navigation, after the event of the disaster and in the light of that which has happened, is not the test of negligence, but prudent judgment is to be tested by the circumstances as they appeared to the master at the time he was called to act, and not as they appear to the court after the more critical scrutiny than the master could have given to them.
SAME-TEST OF NEGLIGENCE.
In Admiralty. On November 26, 1889, the propeller Wilhelm, with the schooners Mears and Midnight in tow, all lumber laden, left the port of Cheboygan, Mich., bound to Tawas. At 4 A. M., November 27th, the tow passed Thunder Bay light, at which time the weather was unsettled, wind from the eastward, and sea moderate. About 7 o'clock the tow was struck by a heavy squall from about E. N. E., accompanied by snow, and from that time until the loss of the barges on Fish point, at about 2 o'clock P. M., the wind blew a gale from E. N. E. to N. E., accompanied by frequent violent snow squalls and a heavy sea. About 9 A. 1\1., when Dff Sturgeon point, the Wilhelm lost her starboard deck load, causing her to list so much to port as to interfere with bel' steering, at which