OpenJurist

FEDERAL .ltlj1POll.TEll..

vol. 50.

that the Lamberton had .resumediherforward motion. The answer of o,ne whistle t4a' ;>4egave her unlier the circumstances, the SQ.ine dut.y·. in: her coming forward; and),ndoipgso she blld. the:,rigpt. c;)f way. Had· he wished not to acquieSce, he shopld }:lave giyen to indicate it; and in agreeing to the Lanlberton's· cOllling()n, it was his duty to stop in the safer place abQve the light. TIW Lamber.ton, having the rigqt of way,. was not requireli 'to wait)onKer: below drifti,ngupwards, even if she could have safely. done so,. which is at least doubtful; the eYidence op. .that point is hardly sufficieJ;lUo form a certain judgment. As I do ,not find tile LambertQn. in .fault, the libelant is enagainst titled to a decree against the Osceola only. witQ costs; a,nd the Lambw'ton, ,the libelshould be dismissed, with costs.

THE

'ROGElUItl.THE

ATLANTA.

PHcENIX

and THE

ATLANTA.'

(DiBtrict oourt, S. D·. NewYor7c. April 20, 1892.)
CoLLlSIO'N-Foe-:-STEAV,VBSSELS

'thlt steam-lighter P., lightabQve but thiok near the water, saw at a llC)DBiderable distanoe the smoke-staok of the. tug A. orossing her course, and somewhat on her starbolU'dhand, and knew by the signals of the A. that she had a tow. she reverse until the A.'s tow appeared through the fog, 50 feet away. Held1 that suoh delay fixed l1pon the P. the blame for the oollision whiOli ensued, ana that the A., being in doubt as to the P.'s course. was justified in reversUl.g under rule 21, even t40ugp gQiDg on might have ,"voided the collision.

IN BACKING.

In ..!\.Jmiralty. collision. Butle7',{)till'f!OCtn ,Iiubbard and Mr. Cromwell, for libelant. Gherarw. Davis, for. thePhoonix.. Goodrich,. Deady Goodrich, for the Atlanta.
BRO\)W, ))istrict Judge. On tIle of the libelant's canaH>oat was takel;l in tow at the Morris can8(l basin, Jersey City, by Atlanta. to be to the Atlantic basin, Brooklyn. The was the outer of two boats on her port side, there being anothe,rb!)8.t on her starb:oard side. . The morning was foggy, and after waiting .a,bout an hour, .Q.t the mouth of Morris canal basin, the fog lifted qn her· way. When less tha.n. half way across and th.e. A,thlIl;ta the North nv.er, the fog shut somewhat thick near the wa· ter, Quit mu{}h less higqer up. Sho1';tly. afterwards. the libelant's barge was alittle .f01;ward of amidrsjlips by.. the!3tem of the steam on her, w.ayfrorn pie!:l. North river, to 0000:.

.. THE

881

After the fog shut down the Atlanta proceeded slowly under one bell, and her pllot testifies that the hull of the Phcenix, as well as her mast, became visible at a considerable distance. The Atlanta was a little on the starboard hand of the Phamix. Fog signals indicating a tow had been regularly given by the Atlanta, and an additional signal of one whistle was given to the Phcenix when she was seen at a sufficient distance to keep away, which the Phrenix answered with one whistle. Afterwards the pilot of the Atlanta, seeing that the Phrenix was not ing away, but kept coming towards him, reversed when some 200 or 300 feet distant. The Phrenix was but one-third loaded, and after the fog shut down upon her in mid-river she also slowed. The evidence leaves no doubt that the Phrenix had timely notice of the Atlanta's presence with a tow a little on her starboard hand, and that she saw the smoke-stack of the Atlanta in abundant time to have to starboard, or avoided her, as it was her duty to do, either by by stopping and reversing. She delayed reversing, according to her own pilot's testimony, until the canal-boat came in sight not over 50 feet distant. This delay fixes the blame upon the Phrenix. The Atlanta, seeing that the lighter kept coming towards her, reversed as was her duty under the old twenty-first rule. Had she kept on, she might possibly have cleared; but that is not enough to charge her with fault. She did not know and could not tell, what the Phrenix was doing, or why she did not keep away in accordance with the previous exchange of signals. There was no such clear case as justified or required the Atlanta to disregard the twenty-first rule. The error, if any, was an error of brought about by the previous fault of the Phrenix. judgment in Decree for the libelant against the Phrenixj and for the dismissal of the libel against the Atlanta, with costs.

THE HA VILAH.

PRATT tI. THE HAVIT,AH.

(CircuUCOUTt of Appeals, Second Circuit. January 18,1899.)

1.

COLLISION LIGHTS.

SAILING VESSELS

MEETING -

FREE

AND

CLOSEHAOLED

C00R8E8--

A brig and a schooner appl'Oached each other on a clear night, the brig salling free on a couI'Ile W.?i N., and the schooner closehauled on an E. by N. COUl'lle. On conflicting evidence the COl!lrt found that the schooner held her course, except. for a luff i·,! extremis, continually eXhibiting to the brig her green light, and that the red light of the brig was seen on the schooner's starboard bow some time before the collision. The brig collided with and sank the schooner. Held, that it was the duty of sailing free, to have avoided the schooner, sailing closehauled, and for her faill)re 80 to do the brig was in fault. The mere fact of a vessel's sinking by reason of a collision is not suftlclent to warrant a fl.ndillg tbat she aDd her cargo are a total loss; and where it appean' probable that tbey may be raised without much expense, and the vessel repaired; . ownera are not allowed to insist upon damages, as for a total 1088, when they have

S.

DAMAGES-:'ExPENSE 011' RAISING SUNKEN VESSEL-WHEN NPT ALLOWED.