and did not give that attention to her lights which those maintaining such speed, under such circumstances, should have given. The Manimba, 122 U. S. 97, 7 Sup. Ct. Rep. 1158, is an instructive case as to the high degree of diligence and watchfulness required by both approaching steam-veeselswhen there· is uncertainty as to the intention of either. The case was one in which, as in this, the collision was mainly the fault of one of the steamers; but the other was also condemned solely because, having no certain indication of the intention of the approaching steamer, she allowed her to get so near as to produce the risk of collision before signaHngor slackening speed. This court had occaetion, in 1880, in the caSe of The Irving. 2 Fed. Rep. 919, to call attention to the high degree of c8.utionrequired to enable steam-vessels to safely pass each other in theFt. McHenry, Brewerton, and Craighill channels; and the great number· of lamentable collisions which have since occurred, resulting in loss 'of life, and destruction of property, demonstrates that, with vessels approaching each other in these channels, risk of collision is liable to arise unexpMtedly, at any moment, and that safety can only be secured by the strictest observance of every precaution prescribed by statute regulations and by good seamanship. I find that both the Louise and the fault.
(Cwcuit Cowrt, S. D. New York. January 8,1892.)
COLLISIOl'-TuQc8 WITH Tows-ERROR IN EXTREMIS-FINDINGS OIl' FAOTS.
with a tow lashed on her port side, beyond the bow of the tug, rounded the Hattery, frOm the North river into the East river, going, about two miles an hour", The vessels discovered each otherwhen about 500 yards apart, on crossing courses, jibe P., having the W. on her starboard bow. The P. immediately blew two whistles'to indicate that she desired to pass to port and across the bows of the W.' ,The W;made no reply,: but kept on her course, without abating speed, until within about feet of the P. The P. then reversed her engines and came to a stand-still, being then almost directly In the path of the W., but somewhat on her port bow; atl4: the W. ported her wheel, thereby changing her course to starboard fouro,flve points. The W. escaped collision with the P.,but her tow struck the bow of the P.'s tow. In a suit broug-ht by the owners of the tow of the W. against the P., heUL: (1)·1f ,the P. was in fault the libelant should recover, even though the W. .. been in fault. (2) That, inasmuch as the P. had the W. on her starboard bow'when the vessels discovered each other, it WliS the duty of the P. to avoid tue W. 'and her tow, and the 'duty of the W. to keep her course; and that, there being no special circumstances rendering a departure necessary from the ordinal'y rules at the time when the vessels were 500 ;rards apart, the P. was in fault for attempting to cross the bows of the W., it beIng apparent tbat doing so was likely tc;l involve risk of collision. (3) If it was an error for the W. to port at the time she did, instead or'reversing- her engines, tbe error was committed under stress of a SUdden peril brought about by the original fault of tbe P., and the P. should be held altogether responsible for the collision. (4) The supreme court. having reverSed the former decree of this court because of a refusal of the judge to flnda certain fact as requested by the defeated party, this court now makes a finding upon the fact, ah.hough it is not necessary to do so since the act of March 3. 1891, establishing'the oir.cuit courts of appe\ll8.
to Jersey:City, going with the tide about ,seven mUes an hour. The tug P.,
The tug'W. was tOWing a barge by a hawser from Roberts' store, on East river,
THE E. A. PACKER.
In Admiralty. Libel for collision. Decree for libelr.nt. This was a suit in admiralty, instituted by the New Jersey Lighterage Company, owner of the barge Atlanta, against the steam-tug Dr. John Wolverton, which had the Atlanta in tow, and also against the steam-tug E. A. Packer, to recover damages for a collision between the Atlanta and a barge lashed along-side and in tow of the Packer on her port side, known as "Cross Creek Barge No.5," which occurred in the afternoon of October 25, 1880, near the mouth of the East river, in the harbor of New York. Service never having been obtained upon the Wolverton, the case proceeded against the Packer, and in the district court a decree was granted dismissing the libel upon the ground that the Wolverton was solely at fault for the collision. 20 Fed. Rep. 327. Upon appeal to the circuit court, this deoree was reversed upon the ground that the collision was partly, at ieast, the fault of the Packer, and that, under the rulings of this court, the libelant was entitled to recover its entire damage against her, which amounted, with interest, to $5,404.31, for which a decree was rendered against her. On appeal to the supreme court, this decree was reversed, (11 Sup. Ct. Rep. 794,) mainly upon the ground of a refusal of the circuit court to make a finding in regard to a certain matter of fact. The findings made by the circuit court were as follows:
"First. That on the 25th day of October, 1880, the libelant was the owner of the barge Atlanta, and was a common carrier of a cargo on said barge. as alleged in the libel. Second. That on that day, in the afternoon, a collision occurred between said barge and the barge Cross Creek No.5, then in tow of Packer. Third. That the barge Atlanta and her cargo were the on that day taken in tow by the steam-tug Wolverton at Hoberts' stores, in the East river, to be towed to the dock, Jersey City. and were towed astern of said tug by a hawser of one hundred and tifty feet in length between the tug and barge. Fow'th. That 011 that day the tug Packer was bound from the North river into the East river, having in tow 011 her port side the barge9toss Creek No.5, loaded with about 450 tons of coal, the barge pl'Ojectingbeyond the bow of the tug. Fifth. As the Wolverton, with her tow, was crossing the mouth of the East river, the Packer, with her tow, was beading around the Battery into the East river. passing the New York shore opposite the barge office, nllarly two hundred yards away. Sixth. 'rbat the tide in the East river was ebb, and at,about full strength. The Wolverton and her tow were going with the tide about seven miles an hour. and the Packer and her tow were proceeding against the tide at a speed of about two miles an hour. Seventh. That the Packer and her tow had come so far around from the North river before seeing the Wolverton as to be in the ebb-tide COIDing out of the East river, and when she saw she was heading up against that tide, and was about 200 yards out from the shore opposite the barge office. Eighth. The vessels saw each other when about 500 yards apart. and at that time the course of the Wolverton was about N. W. by N., and the course of the Packer was E. by N., and as they approached each otller the Packer had the Wolverton on her starboard bow, and the Wolverton had the Packer on her port bow, the Wolverton being further out in the river from the New York shore than the Packer, and the vessels being upon crossing courses, convw;ging towards the New. ,York shore. Ninth. As soon as the Packer saw the Wolverton she blew two blasts of her steam-whistle. She was then uuder a starboard wheel, and making in somewhat towards the end of the piers, but l1pon signaling the Wolverton she starboarded the wheel still more. The
'w:ithaut abating speed, until within about 200 ftlell.The Packer then: blew
Wolverton made no reply to the Packer's signals, but kept on her course,
whistles, andreverseq her engines, and tpe, Wolverton ported her The Wolverton passed tllebow of the her tow, but the barge was unabltl t<;l doso, and her port side came into collision with th'e, the Packer's tow. l'enth. At the time Wolverton ported her wheel danger of collision was. imminent, and acoll1sion seemed unavoidable; 'Bleventh. There was nothing In the river to interfere with the navigation of either vessel. The colJisionoccurred about 400 or 500 feet oll' the c,>f the piers, and just below, the slip of the South ferry. Twelfth. There was IlP usage of naVigation, applicable to th,e situation of the vessels when they discovered each oLher. ''l.'hi1'teenth,. That between the tide of the East' river and the North tivertliere is an eljdy, Which extends out about 400 feetfromithe barge ollice, and' the Packer had passed through .this eddy and reached the ebb-tide, which struck on the port bow!Jf her tow, and swung the vesselS still further off shortl before her pilot sawthe, W01 verton. FOU1'teenth. The barge was.in all respects properly navigated. By reason of the collision. the barge and cargo sustained serious injury." The following conclusions of law are found: I I First. The two tugs being on crossing conrs,foS, it WIlS tbe duty of the Packer. having the Wolverton on her starboard hand, to keep out of the way, duty of the Wolverton to keep her courSll. Stcond. It was tbe duty of the Packer to port her wheel. and stop and reverse bet engine in time to the collision. Third. The libelant is entitled to recover against the Packer the damages sustained by the collision." The course of the Wolverton, as in the eighth finding, was subsequentlychanged by the circuit judge from N. W. by N. to W. N. W. Beneqict, Taft Benedict, for libelant. Edw. D. McCarthy, for claimant of the E. A. Packer.
W.HLACE, Circuit Judge. The decree formerly made in this case, adjudging the libelant entitled to recover against the Packer for the damages sustained by the collision between the libelant's barge Atlanta and the barge in tow of the Packer, having been reversed by the supreme court upon appeal. because this court refused to make a findin/Z of fact which thatoourt, upon the evidence before it, thought the appellant entitled to, the case is now here fdr.a redeterIilination. Nothing was decided by the supreme 'court authoritatively, except that, upon the evidence before it, the appellant, the owner of the Packer, was entitIed to the finding of fact which he had requested. The facts in the case substantially appear in the statement preceding the opinion of the supreme court. 1 The E. A. Packer, 140 U. S. 360, 11 Sup. Ct. Rep. 794. Inasmuch as upon any further review there will be no bill of exceptions, and there is no necessity for any findings of fact by this court, it would seem unnecessary to make the.finding which was the subject of the exception upon which the former decree was reversed. Nevertheless, in view of the opinion of the supreme court, it has seemed to me the more proper course to reconsider the evidence, much of which was not embodied in the record on the,
1 The statement preceding this opinion is substantially copied from that of the supreme court. '
·THE E. A. PACKER.
with a view of making or refusing to make the finding. In ing this the entire evidence in the case has necessarily Qeen and I have reached the conclusion, reached before, that I have little to theUbelant is entitled to a decree against the add to my former opinion filed when the cause was originally decided; but it may assist the oircuit, court of appeals, in caf:e pf an appeal from the present decision to that tribunal, to refer to some of the evidence bearing upon the questions Of fact and to some ad<;iitional reasons for my conclusions oflaw. " . The mflst.er of the Packer testified originally thfl.t ,the collision from 1&0 to 200 yards off the New York side of the river. This statement in harmony with the facts set forth in the answer of the Packer. .Ifshe was 200 yards off while rounding the Battery, she could not have approached, under the helm she carried, and with the ebb-tide on thepot;t, bow of her tow, much nearer than this distance up to the time of the collision. Without referring to other testimony and corrob()oo rating :ciroumstances, the place of collision would seem to be corre(jtly located where it was placed in the original findings. It 'Will be observed that, according to the theory of the Packer's answer, there was not any rank change of course made by the Wolverton after the Packer discovered her. Its theory is that the Packer was entitled, because of the sftuation of the vessels when they first saw each other,to go between the Wolverton and the New York shore. It avers that when she first saw the Wolverton it would have been impossible to clear the Atlanta by going off on a port wheel, and that any movement to the right would have rendered a collision with the Wolverton inevitable. It assumes that the. Atlanta was in fault for the collision because she did not follow the Wolverton directly, and it distinctly charges fault in this respect upon the Atlanta; while, in enumerating the faults ofthe Wolverton, it does not any fault upon her because of any change of course on her part. 1'Jle testimony of Barker, and ofAckerley, each of whom was at the wheEll of the Atlanta, indicates that there was no change of course on the part of the Wolverton until collision seemed imminent. These, among other considerations, have led me to the conclusion that there was' no change of course on the part ofthe Wolverton, until, as ber master testifies, he ported to avoid destruction when the tugs were within 200 fe·et of each other. The vessels were not sailing by compass. I have accepted the testimony of Frazer, who was in the pilot-house of the Wolverton, and who seems to pe an intelligent and trustworthy witness, as themoflt reliable by which to ascertain the course of the Wolverton. He says that after she got out from Roberts' stores she headed for about pier 0, on the New York side,and was making allowance for the ebbtide to.carry her opposite pier 1 or 2. when she should reach the New York shore, intending to get there as close as she could. The testi· mony of this witness also spows, as (loes that of the pilot in charge of the racker, that the Atlanta sagged a Httle with the tide below the course of but that she did not sag 80 much that the Wolverton
could;not, while going at the speed she maintained, manage her in a way consistent with her safety or that of other vessels. ' of the various witnesses is practically in accord, making for the discrepancies which always occurnpon such a question', that the tugs were about 500 yards apart when they discovered each the other. I have accepted as substantially correct the statement of Adams, the engineer oftheWolvertotl, who locates the Wolverton at a distiinCe of 300 o'r 400 yards off the New York shore when the Packer yards ,away, and who locates thePacbr at that time a was on the portibow 'of the Wolverton: The weight of testimony is, deCidedly, that the Packer had the Wolverton on her starboard bow when she first discovered her; and, indeed, this is fairly inferable from the statefuetits in the answer of the Packer. There is 110 evidence in the record, '\Vot-thy of-consideration, to denote that the Atlanta was improperly steered, or did not follow the Wolverton as closely as she could, in view of the action of the tide. . Upoll the facts, as I have found them, it being entirely pllli11 that the Atlanta was innocent of any fault, the libelant is entitled to compensation for the loss sustained by the collision, either from ·the Packer or from theWolverton, or from both. If this were a suit between the two tugs/and cases could be decided upon sentimental considerations, the sympathies' of the court would be wholly with the Packer. But the Wolverton is not in cfJUrt, and the only question to be determined is whether 'the Packer was guilty of fault which was contributory to the collision, 'Ushe'was, the libelant is entitled to a decree. It is obvious that the co}lisionlIlight have been ell$nyavoided if the Wolverton had yielded het strict rights; and altered"her course to port wheri informed by the signals ofthe Packer tha:t the latter proposed to pass across her bows byikeeping to port. The Packer was in a very inconvenient situation,aIld naturally prp-ferred keeping between the New York shore and the Wolverton, because' by altering 'her course to starboard she would expose herself.and her cumbersome tow broad-side to the full force of the tide. The Wolverton, however, -wanted to get the benefit of the Slack-water near the shdre at the'Battery, and refusad to accede tothe proposition Of the Packer, although she could have done so with perfect safety, and without serious inconvenience to herself. But I cannot find upon the facts that the -Packer could not have avoided the Atlanta as well as the Wolverton-if she had taken a course to the starboard and astern of the vessels; and I agree with the learned district judge who decided this cause in the district court that she could have done so. Inasmuch as when the vessels first saw' each other, at a distance of about 500 yards away, the Packer had the Wolverton on her starboard hand, the Wolverton had the Packer on her port bow, it was the duty of the Packer to avoid the Wolverton, and the correlative duty of Wolverton to keep her course. In that situation rule 2 of the supervising inspectors, then, all now, in force, required the Packer to fulfill her duty of avoiding the Wolverton by passing to the right of the Istter, and
THE.E. A. PACKER.
required the' Wolverton to pass to the right of the Packer. It is unnecessary to dlilcide whether this regulation is one which has the force of a statutory rule, or whether it is one in excess of the authority which is conferred by law upon the supervising inspectors. It suffices that the rule, at least as to the duty of the Packer under the circulllstances of the p:::csent'oo.se, formulates the practice which is approved by the best nautical experience, and which has been adopted as an imperative regulation by the international marine conference. The language of the supname court, when this cause was before it, proves that the Packer was in fault in taking a course to port: -If it were clear that no collision would have occurred had the Wolverton kept her conrse, then the Btarboarding of the Packer was not a fault, since the PC)t.nt of intersection would be ahead of or astern: of the Packer. But if sq(lh starboarding was likely to involve risk of collision, then,'of course, it was a f!Ullt." That the starboarding.ofthe Packer did in this case involve risk of collision is demonstrated beyond peradventure or cavil by the fact that, before tne Wolverton changed her course at all, the Packer saw that danger· of collision was imminent, and that she could not pass ahead of the Wolverton, and reversed her engines. I cannot see how the twenty-fourth rule of navigation has any application to the case. That rule authorizes a departure from the other rules when there are special circumstances rendering a departure necessary "in order to avoid immediate danger." There were no such circumstances when the vessels were 500 yards apart, and when the first fault of the Packer, iithere was any.·was committed. This was conceded in the opinion of the district judge. There was no immediate danger, and no condition in the situation which would have rendered it unsafe for her to have,taken her course tostarhoard. It would have been inconvenient for the' Packer to do so, but nothing more. If it was the duty of the Wolverton to alter her course to port when she heard, or ought to have heard, the first signal of the Packer, then it is clear the collision is attributablesolely to her fatilt. Thatpropositioll has not been advanced by counsel for the Packer, and, notwithstanding some expressions in the opinion of the supreme court which· may be interpreted as sanctioning it, I cannot believe that it was intended to be so declared. Unless one vessel has a right, merely at her option, and without regard to any special circumstances, to dictate to another vessel a departure from a rule which it is the right and the duty of the latter to observe, this proposition cannot be maintained. It remains to be considered whether the collision is attributable to the conduct of the Wolverton, either because she did not reverse before the collision, or because she ported her helm. Upon this question that which seems to me the pregnant and controlling circumstance in the situation is not adverted to in the opinion of the supreme court. That circumstance is that while the Wolverton was fulfilling her duty of keeping her course, and relying upon the Packer to fulfill her duty of keeping out of the way in the manner she had selected, 1;>y passing in front v.49F.no.1-7
of the Wolverton, the Packer 'slowed and reversed her' engines, and brought·herself practically,to a stand-still in the water. This wDe:done when the tugs were within a distance,of about 200 feet of one another. had not thus brought herself to a stand-still when she wa.s nearly in the pnth of the Wolverton, it is probable that the Wol.verton would hav:e passed asternjatleast, it is possible that·the Wolverton might have done so.· Unless it can be found that the Wolverton <}ould not have passed astern of the Packer had not the latter reversed, it cannot be adjudged that the collision is'solely attributable to the conduct of the Wolverton in not reversing. The evidence does Dot warrant such a finding. , Wa9 the Wolverton in fault for porting? It seems to. have sumed by the supreme !courtthatshe was, and that tribunal the former decree of this court because of the refusal as the evidence before the supreme court denoted, that the conne Ofthe Wolverton was changed to starboard four or five points from her former pourse. In the opinion it is said "that the porting of the Wolverton must almost of necessity have brought about a collision." How this result could happen when the Packer was off the port bow of the W 01verton, and at a stand-still in the water, or nearly so, having abandoned her attempt to go forward in front of the Wolverton. I am at a loss to ul1derstand. It was Jor this reason,and because I deemed the finding immaterial, that I refused to find as requested. It seems to me that , the more the Wolverton could have changed her course to the starboard the greater would have been the chance of safety to both vessels, because the greater the change of course the wider would have been the distance behyeen them. If the Packer had maintained her speed, I am not satisfied that a change of course of four or five points to starboard on the part.ofthe Wolverton would have .enhancedthe chances of a collisionj but as it was, if it would have been slliftl for the Wolverton to proceed without altering her course, it certainly could not have been unsafe to alter. it in a direction whiohwould carryber a further distance away from the bows of the Packer than ShlEwould have otherwise gone. I have very great doubt whether it was possible for the Packer, in the short intervening distance between the intersecting courses of the two tugs, to change: her course four points to starboard. Any such change is utterly inconsistent the theory of the Packer's answer. Still, Shults! the master of the Wolverton, states that he effected such a change by porting, and, notwithstanding much in the testimony that leads me to a contrary opinion, I will find for present purposes that such a change was made. Hit should be assumed that if the Wolverton had reversed, or had not ported, the collision might have been avoided, the question remains :Whether the Packer was not in fault for bringing the W01 verton into a,situation master wasliableto commit an error of judg.ment. I understand the rule to be well established that in every case where a vessel, by her own nE'gl,igence, or the breach of a statutory rule, places another in great peril,' the latter will nat be held guilty of negligence
because at the last momentshe did something that contributed to the collision, or omitted to do sOnlething that might have avoided it. It has often been held by the supreme court that a vessel which by her own fault causes a sudden peril to another canuot impute to the other iri. extremis, although it was a wrong step, and as a fault a measure but for it the collisionw6uld not have occurrEld; and that a mistake made in the agony of the collision is regarded as lln error for which the vessel causing the peril is altogether responsible. The Nichols, 7 Wall. 656; The Carroll,8 Wall. 302; The City of Paris, 9' Wall. 634; The Lucille, 15 Wall. 676; TheFa'lJorita, 18 Wall. 598; The Falcon, 19 Wall. 75; The Sea Gull, 23 Wall. 165. If this isthe correct rule, it would seem that if the Wolverton was in fault for not reversing, or for porting, or for not etarboarding, it was a fault committed in the throes of a collision, which not only does not exonerate the Packer, but does not subject the Wolverton to liability. Whatever the conclusion may be as to fimlt on the part of the Wolverton, it suffices to establish the liability of the Packer to the libelant; that the Packer was guilty of timIt which was contributory to the collision. She insisted upon adopting the most hazardous mode of fulfilling her duty of avoiding the Wolverton, and attempted to do it ill a way which her own conduct conclusively shows was not practicable, except at risk of collision. A decree is ordered for the libelant.
THE CoNQUEROR.· VANDERBILT fl. I'BE CoNQUEROR.
(DIstrict Court. B. D. Nt/UJ York. January lIS,1892.) 1.
DUTIES-FOREIGN BUILT. YACBT-IMPORTBD ABTICLE-B!IIPPlNG LAws. From: the foundation of the government the duties on ships and vessels have been regulated by acts independent of the custom laws, and under a di1ferent system of legislation. Nor are vessels mentioned by name in any of the schedules or paragraphs prescribing duties. Accordingly, when the foreign built yacht Conqueror was purchased abroad by an American citizen, and navigated to the port of New York, and was then seized by the collector of customs, on the claim that she was liable to duties as an imported article, under the general tari1f act of October 1. 18110, (26 St. at Large, p. 567,> and her owner thereupon brought this suit to recover possession of hel', it was held that the yacht was not an imported arUcle, in the sense of the tari1f law, and not subject to duties under the tari1f act of Ootober I,
BAME-PRAOTIOE-COLLEOTOB'll POSSEBSION-8EIZUBE BY MARSHAL.
Under section 934 of the Revlsed Statutes, where the collector's agent in possession of the res denies the authority of the court, the court will order the marshal to take exclusive possession of.the subjeot of the suit.
In Admiralty. Suit by the owner to recover possession of the yacht Conqueror, held by the collectol' of customs for non-payment of duties. See 12 Sup. Ct. Rep. 295.
lReported by lJ:dward G. Benedict, Esq., of the New York bar.