ference between the respective losses sustained. The Alabama and The Game Cock, 92 U. S. 695; The North Star, 106 U. S. 17,1 Sup. Ct. 41. It necessarily results that they stand in the position of sureties towards one another as respects the claim of a cargo owner whose goods on board one of the vessels have been lost by the comsion. The cargo owner may pursue either wrongdoer, and recover his whole loss from one, notwithstanding, as between themselves, each is primarily liable for half. The one who is thus compelled to pay the whole loss is in effect a surety for the other, to the extent which the latter should contribute. Because the loss is a common burden, the owner of either vessel may remove it, and become entitled to contribution against the other. Courts of admiralty are guided by equitable considerations, and no principle is better settled in equity than that parties who stand in such relations are entitled equally to all the benefits, and must bear equally all the burdens of the position. Like ordinary sureties, one cannot speculate upon the debt, to make a profit from the other; but, if one compromise, the other is entitled to the benefit, and is responsible only for his proportion of the amount actually paid, with interest. IJ:ickman v. Curdy, 7 J. 'J. Marsh. 555; In re Swan's Estate, 4 II'. Eq. 209; Wynn v. Brooke, 5 Rawle, 106; Bonney v. Seeley, 2 Wend. 481; Lawrence v. Blow, 2 Leigh, 30. The decree is affirmed, with costs.
THE PORTIA. NEW YORK, N. & H. STEAMSHIP CO. v. CORNELL STEAMBOAT CO. (Circuit Court of Appeals, Second Circuit. December 5, 1894.) No. 15.
COLLISION-FAILURE OF STEAMER TO STOP AND REVERSE PROMP'I'LY MATE CAUSE, PROXI-
A steamship going down the East river, on entering the channel west of Blackwell's Island, disco,ered, coming up half a mile below, two tugs towing seven loaded canal boats, lashed to one of the tugs, the other tug leading with the hawser attached. They were on the easterly side of the channel, heading at an angle towards the New York shore, and the tide was flood. The steamship, proceeding at half speed near the New York shore, gave a signal of one whistle, intending to pass port to port, as required by the state statute. The leading tug responded by a similar signal, but, though she ported her wheel and went ahead at full speed, the other tug stopping her engine, their course was not materially changed, and they and the tow were carried by the tide tC'wards the Kew York shore until, when the steamship had come within 300 or 400 yards, it was no longer safe for her to pass on that side. Thereupon she changed her course two points to port, and gave a signal of two whistlES, to which the second tug responded by a like signal, and put her engines full speed ahead; but the movements of the tugs and tow were very sluggish, and they drifted with the tide as before. Observing this, the steamship reversed her engines, but by the time her headway was stopped her bow had swung a point to starboard, and she struck the starboard canal boat, which sunk. Held, that the steamship was in fault in failing to stop and reverse at the time of her change of course, notwithstanding that the hazardous situation was
by the failure of the tugs to perform their obligations, and thm,. fault, though gross and lnexctlsable, waS not the pro:xlmate cause of the collision, as the steamship could have avoided it by obeying the rnle.
Appeal, the District Court of the United States for the East· ern Distci.ctof York. This was a libel by the Cornell Steamboat Company against the steamsb,ip the New York, Newfoundland & Halifax Steamclaimant, for damages for the sinking of canal boat ship No. 3037:, while in tow of libelant's steam tugs R. G. Townsend and S. L. Crosqy, by collision with the steamship. The district court rendered ,a. decree for libelant. Claimant appealed. Wilhelmus Mynderse and Butler, Stillman & Hubbard for appellant. & Benedict, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. Circuit Judge. The owners of the steamship Portia have from a decree of the district court condemning her in damages for a collision which took place in the East river opposite Blackwell's Island. The libel and answer in the cause are commendably full and specific, and the testimony of the witnesses for both parties has been exceptionally candid. The facts are these: The steam tugs S. L. prosby and Townsend were proceeding up the river on a flood tide, which was running three or four miles an hour, with a tow of seven loaded canal boats. The Townsend was leading by a hawser 60 feet long, attached to the Crosby, and the Crosby had four canal boats lashed to her starboard side, and three lashed to her port side. The river at that point is about 700 feet wide, and the length of the entire tow was about 250 feet. "'nile the tugs and tow were on a course heading towards the New York shore, in order to be able to enter the Harlem river on the flood tide, the real.' of the tow being about 150 feet from the Blackwell's Island shore, and the Townsend being well out towards mid-river, they were discovered by the steamship Portia, which had just rounded Horn's Hook an,d had straightened down the channel, and was about half a mile away. The Portia was proceeding at half speed, well in towards the New York shore of the river. She was an ocean steamer 230 feet long. Upon discovering the tugs and tow, she gave them a signal of one whistle. The Townsend immediately responded by a similar signal, ported her wheel, and went ahead at full speed. The Crosby stopped her engine. NotWithstanding the.Townsend's efforts, she could not materially change the course ofthe tow, and when the vessels had approached to within a, distance of three or four hundred yards of each other the tugs and tow had been carried by the tide well over towards the New York slit>re, the Townsend bein,g only about 250 feet away from it. Owing to the proxht1ity of Mason's reef, the available path open to the Portia between the Townsend and the shore was not more than 150 feet
wide. Thereupon the pilot of the Portia, fearing that his vessel would be crowded upon Mason's reef, if the courses of the vessels were not altered, changed the course of the Portia two points to port, and gave a signal of two whistles to the tugs and tow. The Crosby responded to the Portia's signal by a like signal, and put her engines full speed ahead. Notwithstanding, the movements of the tugs and tow were very sluggish, and they continued to drift with the tide practically as they had been doing before. "Cnder the influence of her starboard helm, the Portia swung towards the Blackwell's Island shore, but, observing the sluggish movements of the tugs and tow, and believing that the Portia would strike one of the starb(mrd vessels of the tow if she continued, the pilot ordered her engines reversed. This order was immediately obeyed, but by the time her headway in the water had been stopped the bow of the Portia had swung about a point to starboard. The Portia struck the outer starboard canal boat of the tow about 10 feet from the stern, and in consequence the canal boat sank. By a statute of this state applicable to the waters of the East river, it was obligatory upon the Portia and the steam tugs, meeting as they were, to pass one another port to port by going on their reo spective starboard sides of the river. Although the tugs were em· barrassed by a heavy tow, and were going with the swing of the tide, the Portia had no reason to apprehend, when she first dis· covered them, that they were incapable of controlling their own navigation. They were well on the easterly side of mid-river. The Portia was not only justified in giving her first signal of one whistle, but, under the rules of the board of supervising inspectors, she would have been remiss in duty if she had omitted to do so. If the tugs were unable to adhere to the ordinary statutory rule of passing port to port, they should have signified their dissent by a signal of two whistles. When the Portia's signal was assented to by the answer· ing signal from the Townsend, the Portia had a right to assume, until the contrary became obvious, that the tugs could and would so control their movements as to allow her sufficient room to pass on their port hand. As the vessels approached each other the tugs steadily encroached upon the waters available to the Portia until the time came when the Portia had a right to believe that it was no longer safe for her to persist in the course agreed upon. Her path of available waters between the Townsend and the shore was about 150 feet wide, and by the time the intervening distance of three or four hundred yards between the vessels could be covered it was manifest that the Townsend, as she was then going, would have crossed this narrow path, and it would have been oc· cupied by tow. Under these circumstances it would have been manifestly imprudent for the Portia to have adhered to her original purpose of passing the tugs and tow port to port. It is entirely plain that this situation was brought about by the failure of the steam tugs to perform their obligations. Whether their failure ·to do so was because the masters of the two tugs were at cross purposes, as they apparently were when one stopped his engine and the other
jJortedhis wheeland -went ahead at full speed, or whether it was because the tugs were of insufficient capacity to manage their heavy tow under theeonditions of the tide, is not material. It suffices that they were remiss.: As a consequence of their remissness the Portia was placed in ahazardons emergency and the situation involved risk of collision. Inasmuch as the tugs and tow had been drifting across the path of the Portia during all the time when they sbouldhave been swinging to the starboard, it is not strange that thepUot of the Portia should have supposed that their mov:ements could be readily accelerated in the direction they were drifting, .if the pilots would make the endea;vor. But the event proves that this was a misapprehension, and, although the pilots did what they could, the tugs and tow drifted with the tide, after the Jlortia changed her course to port and the tugs assented to that movement, practically as they did before. When the collision took place the Town· send was quite .close to the docks on the New York shore, and the situation of the tow at that time proves that it would have been impossible for the Portia to have passed on the port side if she had kept on her original cOUrse, instelld.of. changing it to port. Notwithstanding aU the extenuating circumstances, the Portia must be.held in fault for. the collision. W.hen the situation hu\l become"sQcritical that sll-e was ,obliged to deviate from the course which had been agreed upon between the vessels, ,it .was her im· peratii"e duty under rule 18 to slacken speed,or, if necessary, stop' and reverse, unless there were special circumstances a de· parture from the rule necessary,in order to avoid immediate danger. It is not ¢laimed that there were .any such special circumstances; and tp.e Portia's course was changed to port because her pilot supposed he cl1ll1d pass tbe tow in safety on the tow's stllrboard side, es· pecially if tb,etugs .c().operated, towards rendering that maneuver safe. The .situation was not one in extremis, because the distance J:>etw:eeP the vesl$els Wi:j.S ample to enable the Portia tp avoid collision by rever!iling, espedallYJRs she was moving against a strong tide. When, instead ()f o1:leying the rule of llavigation by stopping or reversing, the Portia concluded to proceed by altering· her course to port, she took that course at her own risk. Alt40ugh she subsequently reversed,and' did what was in her powerto avoid collision, her fa\llt in disobeying the rule was fatal. The fault on the part of the tugS!; thoughgrQssaud inexcusable, was nQt a proximate cause of the collision. An act of negligence is remote when, notwithstanding, the o.t11er vessel, by the exercise of ordinary care, can aVQid a collision; ·and if, notwithstanding the fault of the tugs, the;POI,'tia could have avoided the collision by obeying'the rule, which 1;1nder the circumstances was imperative, .she alone must be . ., . d,ecree with costB.
THE CARL KO!\OW.
THE CARL KONOW. GORLEY v. THE CARL KONOW. (District Court, E. D. Pennsylvania. No. 96.
COLLISION-DRAGGING ANCHORS IN STORM.
December 17. 1894.)
During a storm, whose approach was plainly visible, the defendant vessel dragged her anchor, and came in collision with libelant's vessel, which was properly moored a safe distance away. The defendant vessel did not put out a second anchor until after the storm had increased to a hurricane, and after such anchor was put out she did not continue to drift. Held, that she was solely liable for the collision.
This was a libel by William Gorley, master of the steamship San Domingo, against the steamship Carl Konow, for a collision. Conyers & Kirlin, for libelant. John Q. Lane, for respondent. BUTLER, District Judge. While the respondent was at anchor in the Delaware river off Kaighn's Point near Philadelphia, August 22, 1893; the libelant anchored a safe distance from her, 1,000 feet probably astern and considerably nearer the Pennsylvania shore. On the 24th the' respondent, having a single anchor out, drifted .downward some distance, and two days later returned to or near her former position. In the night of the 28th an unusual storm arose during which she drifted upward, within reach of the libelant, where she swung about, doing considerable injury to the lat· Is she responsible for the injury? The case presents no question of law or seamanship. Having collided with the libelant the respondent is presumably liable for the injury inflicted. To the claim she answers that the collision was inevitable--the unavoid· able consequence of the storm; that she took all proper measures to guard against it ineffectually. This the libelant denies, char· ging failure to make proper use of her anchors, asserting that but one was down until after the drifting had occurred. If this is true she is responsible. The danger was apparent for hours previously; the approach of the storm was plainly visible, and should have been provided for. If both anchors were not down before the vessel commenced drifting she was clearly in fault. If they were down, her alleged case of inevitable accident is made out. Thus the inquiry is reduced to this narrow point, and so the parties have presented it. Was the second anchor down before the drifting occurred? I am satisfied it was not. As usual in such cases the testimony is conflicting, but its weight is with the libelant. A discussion of the subject would be little more than a contrast of what is said on one side, with what is said on the other. It is clear that this anchor was dropped some time after the 8torm arose; at what par· ticular period is uncertain. But it is certain that when dropped