mE OITYOI'BT. AUGUSTIn;
herself against the steamer by the force of the 'wind and sea, rather than by any movement of the steamer. We do not find that there was any action on the part of those in charge of the steamer that resulted in the injury to the schooner, or that they could possibly have done anything to prevent or mitigate the loss does not appear. The steamer was the first vessel properly in the channel, and the schooner the overtaking vessel trying to get past. It will necessarily follow, therefore, that the decree of the court below must be reversed, but, in the taxation of costs, we do not consider that there should be taxed as legitimate costs in the case the taking and embodying in the record the vast am:mnt of irrelevant and immaterial matter of examination and cross-examination of witneBBes, swelling the record to nearly 200 printed pages, for which!Ve cannot apportion the responsibility. It is therefore ordered that the case· be ra-. manded to the court. below, with instructions to dismiBB the libel, and tax the ooati equally .against the parties.
THE CITY OF ST. AUGUSTINB.
11. THE CITY OF ST. AUGU8TINlL
S. S. Co. ".
(.DI.Btrl.ctCourt, B. D. Nf/ID Yor1c.
July 12, 1899.)
Oou.IIlION-8TEUI AND BAIL-lI'AILURE TO ALLow BUPFICIENT MARGIN POll
SAPlIft. The steamer of St. A., bound S. W. W., saw the green light of the schoon· er Norman a little on her starboard bow. The red light of the schooner afterWl1.rds became visible to the steamer, which thereupon altered her course to starboard so as to bring the red light on her port bow. Afterwards the schooner'. green light appeared again, and the steamerstarboaroed further, but collided with the sailing vessel. Her excuse was that the sailing vessel had not held her course. On evidence, and regarding the schooner's narrative as better confirmed by the proof, the court found that, with the exception of a change in extremis, the course .of the BChooner had not been altered, and that the fault which brought about the collision was that the steamer did not make allowancll for the usual and necessary variation in tbe course of the schooner, or her changes of lights through leeway and the of her and, consequently, did not allow a sufficient margin for passing the BChooner, which ahe Wall bound toa.void. Hel4. that the steamer was alone liable for the coUialoD.
Wilcoo:, Adams &: Green, for the City of St. Augustine.
BROWN, District Judge. At about half paet 1 o'clock in the morning of November 25, 1891, the schooner Norman of 367 tons, loaded with a cargo. of lumber, bound from Savannah to Baltimore, and then heading about northeast, came. in collision oft· the coast of North Caro-
Wing, Slwudy &: Putnam, for Henderson and othen.
Cross li.bels for collision.
DDElUL BEl'ORTJm t
St. Angustine, of 390 tons, 'bound south· War.doJ7oD:a icourse S. Wd W. ,The stem of the City Augustine nMs6rUck:the.end of the schodner'sjibboom, or bowsprit, which being b,niklelil-fat the knightheadsand oorriedaway, their bowBcamein colli· siciilJ.c'IJIDhe',schooner was so dan;tsged that she filled; but did not sink, and'BhQil'f\lsStowed to Washington. The steamer sustained sOlIlieinjuries, and the libOvelibel and cross libel were filed to recover the respective . damages; Thenight'was dark but clear, with. starlight; the wind was moderate, ll.boutnorth northwest; the lights bfbothvessels were propeHy set and burning. The steamer was goingfr.om eight to nine knots; the schooner, fromfourtoofive knots. When th:Elvessels were from haIfa mile to a mile 'apart. the green 'light of each wits seen by the other a little on the starboard bow of each, It is evident, therefore, that the schooner was at that time to the westward of the Ih)e of the steamer's course, which was then also directed astern of the schooner; otherwise the steamer's red light must have been visible. l:J!lt the schooner was making, doubtless, a half point leeway t so that her actual course was very nearly opposite to that of the steamer·. It was the duty of the steamer to keep out of the way of theailingvessek The excuse of the steamer for not doing so is that the schooner did not keep her course; but that after having first turned to the eastwardilUfficiently to show her red light to the steamer, (upon seeing which the steamer changed her course a point and a half to; the westwaftl,' so as 'fubriilg the schooner's red light well upon the 'steamer's port bow,) the. schooner again changed her course to the westward so as again to show her green light; whereupon the steamer put her Course still more to the westward, until at collision she was heading about clue west; tl.ndthllt the I!lollision happened solely in conthe, or by schooner. Such changes are !lemed ", Besides',Borne evident mistakes by the witnesses on' both sides, there is a subst"ntialconflict irdhe' testimony in regard to the the lights the changes of course, which cannot be whollyreconciled as U!e;testimonY stands. ,The apparent conflict,however, will be greatly nlaking allowance for the following considerations: (1) point tQ a. point. between the. mean heading of.the s<;t1pOller, whieh',J'have nodoubt. was about northeast, and her actualoo,lirseso much more to the eastward,fllrough leeway; (2) the crossingof'theschMner'slights prl>bably at least a quarter of a point on each side; (3) the yawing of tb,e schqoner probably from a quarter of a point to half a on, eacii side of..her mean course;' (4) a considerable excess in of thetime and distance before collision when the 'schoorier'il rea 'light wasluflJt seen.' Her witnesses estimate the at a mile; probably it was not one third of that
iHs sought 'to discredit the witneSses for the that no chllnge'Wils rhade in their Jcourse;by ar· g'litllen'tseo"ncerriing the'navigation' based' upon the' steatne't'S testiinony
TlmClTYOF ST. AUGUSTINlll.
andestimate!lwith regard to the ligqt.s, their changes, and distance. There is really nothing correctoess of these estimates, and without them such arll;uIU,ents .have little force·. Amid such uncertainties in the. testilnony and estimates, the greatest weight must be given to facts. that rest' upon more certain testimony, or are more satisfactorily The witnesses for the steamer testify that the angle of collision was nearly a right angle, and considerable stress is laid on this [email protected]
tiflon a collision of the bows at an angle of two or three poirits. The cathead, about 12 feet from the stem, projected about 18 inehes, and by the blow of collision it was driven in, with the deck, two feet to stAirboard,and the jnboard end of the cathead beam was split. Theseieiroumstances cannot be accounted for upon the steamer's theory of a right-angled blow. They accord entirely with the story of the schoonel','andshow that at collision the difference from opposite courses did ,n:otprobably exceed two or three points. As the steamer changed her couhleat most only about3i points to the westward, the schooner's ehange miust ha.ve been ltlssthan a point to the eastward, and this agrees testimony that her wheel was ordered bard aport with when'the stelimer was very near. 4. could not have two or three points to the westwa.rd:withbUther sailnhakinginthe wind, whereas at collision they were 'full.' ' 5;' The' e'\1id'ence shows that the scraped along the port side of the steamer, carrying away the mizzen lanyard and aepar rigged out there"l1 tft quarter :being 30 or 40 feet away. . are eonsistent and are incompatible with any mhterial obangeof oourse,and eonfirm, therefore; the testimony of the schoon'el"s 'Witnesses. ,1 eredit this narrative rather than that of the steamer, because it is better sustained by the circumstantial proof. Thesehoonet'e :slight ohange under aport wheel in extremia a few moments beforecoliision;, 'was not a fault, IDol' did it contribute to the colprecisely the minute points lision. Without attempting to conc81'ning ,iha: 'steamer's navigation, I am satisfied the real limit that about! the collision was, that having the schooner's green light nearly stra:igbtahead as reported hlythe lookout, and being herself all e'alltwatdi·<df the 8choonerls:actual course, the steamer did the not in her maneuvers allow a suffioientJ!margin for passing the schooner, nor for the ueUalllnd ntlGesSary variation in her course, or changes of of lights; and that conlights, thT?]1gh ya.:wing,leeway, sequentlysnedidnot at first keep away sufficiently to port; nor after'wards,when the schooner's red light appeared, which, in my judgment, wfiswhen the vessels were less than' 1,000 feet apart, did she seasonably "orsUffiCientiy,gotostarboard. The Beta, 40 li'ed. Rep. 899. The Ro'anoke, 45 Fed. Rep. 905; The red light probably came in view at the ·extrenw swing Of the BchooDt:!tto starboard in yawing, whereupon she resumed the opposite swing to port. It is quite possible, also, that the steamer's heading west was, not reached until after collision, aided, as ;n'· must have been, by theblbw from the schooner upoo, the stem and bow of thesteQttlar. It is evident from the testimony that the order to thEl moment ofoollision; and the previous changes . Of 2t, pointihlouM have been easily made by this small steamer in going a l:listanceof·400 feet, with but a small offing to the westward, not sufficient to clear the schooner. Decrees maybe entered in favor of the sohooner as against the steamer, with costs.
TOD II. KENTUCKY UNION RY.CO.
II. KENTUCKY UNION Ry. CO.
(C-irowU Court oj Appeals, S1.xth ctrauft.
October 4, 1892.)
MECHANIOS' LIENS-LABOR CONTRACTORS-KENTUOXY STATUTES.
Contractors supplying laborers and teams for the construction and repair of a railroad, being paid for the same by the day, and either party having the right to stop work at the end of any day, are not or "employes" within the terms of Act Ky. MliI.rch 20. 1876. which, among other things, gives alien fol' work done and materials furnished in keeping the road a going concern, but must on the contractors' act of March 27,1888, which gives a lien in favor of persons "furnishing labor or materials for the construction or improvement" of road, canal, or other ,public improvement. . heresupplies,suitable either for the construction of the unfinished part of a W railr(lad or the carrying on of the finished part, are furnished without any c,ont!'act as to how they shall be used, the material man has a lien unCijlr the act of 1876 for the part' actually used in operating the railroad" and another lien under the, contrac1;ors',.ct for the part actually used for construction and repairs; but whE/rehe has lost the li.en \lnder the latter act beoause of's failure to file his statement within 60 burden of proof is on him to show what part of the supplies was·actually the operation of the road. Wheretlie mortgagees of an insolvent railway apply for the appointment of a receivejrand the sale of the property, and material men intervene by petition, clalml:n&' a superior lien, the failure to give the claimants perBOll:\1 judgments for their respective debts against the railway is not erroneous.
Appeals from the Circuit Court of the United States for the District of Kentucky. ' In Equity. BiU by J. Kennedy Tod & Co., the Central Trust Company of New. York, and the Columbia Finance & Trust Company against the Kentucky Union Railway Company and others for the appointment ofa receiver,foreclosure of mortgages, and sale of the property. Rosser & Coleman intervened by petition, claiming a superior lien as laborers and material men. A demurrer to the petition was sustained. Thereupon the petitioners appealed, their cause being numbered 22. W. & A.C.Semple, Fa.irbank, Morse & Co., and Andrew Cowan & Co. appeal from a decree confirming the master's report, which disallowed most of the appellants' claims, and overruling exceptions thereto, their cause being numbered 29. Affirmed in both cases. Stone ct Sudduth, Dodd ct Dodd, A. BarneU, and Thos. C. Bell, for appellants. Humphrey ct Davie and St. John Boyle, for appellees. Before BaowN, Circuit Justice, and JACKSON and TAFT, Circuit Judges. ' J ....CKSON, Circuit Judge. The questions, ,presented for decision in these cases relate to the respective rights and priorities of different lien olain:iants upon the property of the Kentucky Union Railway Company, which, was chartered under the laws of Kentucky to construct, own, and operate a qesignatedline of railway in said state, about 100 miles in v.52F.no.3-16