menU! .0f.thilJ witness,whenhis testimony is fairly read as a whole, to justity an .inference that ,the tug made a sudden sheer. His whole account of the transaction is In itself, it is probable; and it accords with all the unquestioned facts. The negligenqeof the ship, which is indisputable, sufficiently accounts for thedilfaster, and the proofs, taken altogether, we think exonerate the tug from the charge of having carelessly brought her tow in dangerous proximity to the schooner. Little need. be said. with reference to the charge against the tug of negligence "in failing to sound her whistle, or to give any notice to those in charge of said ship of any change in the course of said tug." The weight of the expert testimony upon the question of the duty of the tug to to the ship is against the latter. We think the tug owed no such duty to her tow. Although not promptly following the tug, but "hanging on" her port quarter, the mate of the tug was justified in assuming that the ship, with the pilot aboard of her, would avoid the schooner, as she could easily have done had her officers been attentive to their duties. Upon the whole case we are satisfied that the collision was altogether due to the negligence of those who were aboard the ship, and charged with her navigation, and that the tug was not in any wise in fault. Therefore the claimant of the ship is justly answerable for the entire damages. I The decree of the district court is reversed, and the case is reim,anded, with a direction to enter a decree for the libelant against the claimant of the ship Invertrossachs and his stipulator for the full amount of the damages, with interest from August 5, 1893, and costs in the. court below and in this court.
THE M. KALBFLEISCH. I THE WM. FLETCHER. PAUL v. "THE M. KALBFLEISCH and THE WM. FLETCHER. .(District Court, E. D. New York. November 9, 1893.)
COLLISION-DAMAGES-OFFERS TO REPAIR-LOWEST OFFER.
One who prefers to have his damaged vessel repaired where she lies, though he knows of an offer to repair at a lower figure made by another shipwright; cannot recover as damages more than the amount of the lower figure, unless he can clearly show that his vessel would have been injured by removal to the new berth. Interest is allowed on demurrage awarded for delay during negotiation in regard to repairs necessitated by collision.
SAME-DEMURRAGE-INTE:REST ON DEMURRAGE.
In Admiralty. On exceptions to commissioner's report. A loaded· scllooner in tow was brought in collision with another tow, without any fault of her own, and, upon suit brought, both the tugs were held liable for the damage caused. On a reference to ascertain the amount of libelant's damages, it appeared that
Reported by E. G. Benedict, Esq., of the New York bar.
THE M. KALBFLEISCH.
the master of the schooner on the same day, Saturday, put his vessel an a dock to prevent injury to the cargo from the leaks. On Monday the owner of the vessel appeared, and negotiations were opened for settlement and repair. A survey was called, and held Tuesday; the owner, the agents for the two tugs, and three ship. wrights,-one appointed for each vessel,-being present. An offer to repair according to the survey was made by G., on whose dock the vessel lay, and a lower offer by M., the surveyor called by one of the tugs, in writing. The surveyOl' called by the other tug went home, gave his measurements to a superior, and an offer to repair (which was much lower than either of the o1her offers) was sent by the firm A. & Co. to the agent of the second tug on Wednesday. At the time of the survey, P., the owner of the schooner, objected to having the vessel removed from the dock where she lay unless she was unloaded, fearing too great strain would be brc'Ught on the vessel. The offer of 1rf. was shown to him; but he did not show the offer of G. to the agent of the second tug, nor did he see the offer of A. & Ca., for on Wednesday, in answer to a message from P. sent through the agent of the first tug, the agent of the second tug told P. to go on, and libel for his damages. All negotiations being dropped, P., on Thursday, ordered G. & Co., on whose dock the vessel still lay, to' do the repairs, giving him no particular directions, but to do no more than was necessary. The commissioner reported the amount of damages sustained, saying:
"I take as the cost of repair the sum for which an offer In writing to do the work was made at the time by a responsible firm, and add the cost of temporary repairs and transfer of the vessel from the dock where she lay to another dock, for full repair, as estimated. The judgment of the owner, that she could not be so transferred without injury, is not supported by evidence which convinces me that it was an accurate judgment. Some evidence was presented of another and still lower offer to repair the damage, but I do not think this was so brought to the knowledge of the owner as to require him to act on it. The other offer he saw and knew about, but preferred to have the vessel repaired where she lay. The expense of the dock, while the ves· sel lay awaiting negotiations about the repair to be closed, is allowed, and I see no reason for withholding demurrage for that time."
The commissioner allowed interest on the demurrage, following the case of Milburn v. 35,000 Boxes, 57 Fed. 237. Both parties ex· cepted, the libelant claiming that the full amount of G. & Co.'s bill for repairs should be allowed; and the claimants, that only the amount of the third offer (that of A. & Co.) should be allowed, and no demurrage for the days of negotiation. . Alexander & Ash, for libelant. Wilcox, Adams & Green. for claimant of the M. Kalbfleisch. Hyland & Zabriskie. for claimant of the Wm. Fletcher. Upon hearing before the court, all the exceptions were overruled, and the report confirmed as made.
THE ROBERT HOLLAND and PARANA:. POPPE et al. v. BIGELOW., (District Court, E. D.Wlsconsln. November 27, 1893.)
COLI,ISION-SAIL-STEAMER A"ND Tow-DuTY OF STEAMER.
A wrong maneuver by a sailing vessel at a time of perU and confusion brought about by the unwarrantably near approach of a steamer and tow will be regarded as an error in extremis.
In Admiralty. Libel by Albert Poppe and others against Anson A. Bigelow to recover damages for a collision. Decree for libelants. Van Dyke & Van Dyke, for libelants. 'Charles E. Kremer, for respondent.
SEAMAN, District Judge.
On November 1, 1891, at about 5:15
and the barge Parana, in tow of the steamer Robert Holland, (with the barge Stevenson,) at a point on Lake Michigan four tosix miles off the west of Wisconsin shore, and five or six miles north of Cana Island light. The Aldrich was a three-masted schooner of 180 tons burden,laden with lumber, bound from Nahama, Mich., to Milwaukee, Wis. She hll-d her three jibs, foresail, and mainsail set, and her mizzep. furled, and was on a course of S. by W. i W., when sighted. The wind was a good, fresh breeze, from the norlhwest. The steamer Holland had the barges Stevenson and Parana in tow, in the order named, all light, bound from Chicago to Washburn, Lake Superior, via straits of Mackinac. Their course, when the schooner was sighted, (erroneously stated by the answer as N. E.,) was N. N. E., according to the undisputed testimony. The Stevenson carried a foresaUand staysail, and the Parana a foresail. This libel was filed by the owners of the schooner against the owner of the Holland and the Parana, upon claim that the collision happenel'l solely from fault of the towing steamer, throngh violation of rule 20 of navigation regulations, in failing to keep out of the way of the sailing vesBel, and especially in an alleged change of course to cross the bows of the schooner. The respondent denies all fault on the part of the steamer, and alleges fault of the schooner in the following particulars: (1) That she exhibited no torchlight to the steamer; (2) that she kept no proper lookout; (3) that she did not keep her course. Although there are many contradictions in the testimony with the advantage as to numbers in favor of the respondent, the undispnted evidence shows that it was a clear, dark morning, and the lights