34 F. 77 -

THE .tAMES R. BREWSTER.

77

steatr.er, the supremeconrt in Peck v. Sanderson, 17 How. 178, 182, say: "Where, as in the present case, they are brought suddenly and unexpectedly close to each other, and the ordinary rules of navigation will not prevent a collision, it is the duty of each to act according to the emergency, and to take any measure that will be most likely to attain the object." The master states that he would have ported his helm, and could have avoided this collision, if the steamer had given him their signal whistles to indicate that she was backing; and it is charged as a fault against the steamer that she did not giv-:. these signals. But, as article 19 of the new regulations expressly declares that the "use of these signals is optional," it is not in itself, independently considered, a fault that they were not given. Notwithstanding t4e fact, howey.er, that the signals are made optional, when their great utility in promoting a mutual underunstanding; bet;ween ,a steamer and a sailing vessel comes to be derstood, it :p1l\.ythen be.a legal duty on the part of the steamer, as one of the of reasonable prudence, to givethose signals,whenever thesituatipn is suph that the, steamer cannot alone avoid collisiOJ:;1, ,and when the knows, or ought to know, that the other vessel, guided by such signals,bul not without them, might safely change her course So as to, avoid disaster. I do not need to pass on that question now. In the situation of these two vessels, the master of the Willey, withorit knowing whether the steamer intended to go ahead of him or astern,or even ,whether she. had her engines, (in, which latter case the steamereould not materially change her cour,se,) Qouldnot prudently change his own course in time to be oiany service. I cannot, therefore, hold the Willey in fault on that ground. The cases in which steamers fail to hear the fog-horns of sailing vessels until quite near are too frequent to wafrant the inference that the horn was not properly blown, because not sooner heard. For the Willey's speed, however, in that situation, and for her failure to attempt to check it after the approaching whistles of the steamer were several times heard near in the thick fog, I must hold her to blame; and the damages and costs must, therefore, in both cases be divided.

THE JAMES

H.

BREWSTER.

THE CHAMPION. THE LAWTELLE. THE JAMES

H.

BREWSTER V. THE CHAMPION et

al.

(District CO'U'l't. E. lJ. Penmylvania. February 7, 18fl8.)

L

TOWAGE-GRoUNDmG OF Tow-BURDEN OF PROOF.

A barge was grounded, while in charge of a tug, without any fault of her own. If the accident occurred where the libelant's witnesses say that it did. it was at a place which was known to be dangerous. The defense claimed that it occurred in the customary channel, and in consequence of extraordi-

· . Ml'ily 10", 'Wstel"

There.wl.l8, t1,othiJ)g; Itl the eviClencetosustain the allegation of efttra9rdinaruy low wate,: thil fact of the grounding; no evi: dence tliaHlnY·other such 'Vessel:'gTi)unded in the channel about the same time, :nOrthai any such vessel ever 'grounded at the point where respondents claim thl\t this.occurred. ,lllllli,;that tl1e burden of proof was on the. defense" and that the evidtmce ,was,.msuflicientto sustain their position.
To'W

DAllAGES-REPAIR.. . . ,

·· SAME-GROUNDING OF

When, throu/il'h thenegligenceof:the tug, a tow 18 run aground and dam· aged, and subsequently the ownel'f! pf the tug puHhe tow in as good condition ll.S she was ill betorethe accidetlt,;damages Can be recovered only for the un: necessary delay 'caused the'rebi. ", . . . '. ' '

ill Admiralty. Libel fOr damages.

Flanders Pugh, for libelant. Driver & C!du.lswn, for,respondents. . ., ..
,

.

'_

while in charge The defense' is inevltable accident; that she grounded in the custorqary' chanilel, in conse-' quence of extraordinary low water. ThewitlleSses dn' ·the one side and the other disagree respecting the point at which she grounded. If it .is where the libelant's witnesses say; the defense fails. The: barge should have been taken there. The place was dangerous, and known to be 80. . If it occurred elsewhere; the' result must be the same. There is 1lothingin the evidence to'justify the allegation of extraordinarily low witter, except the fact of grounditlg; no evidence that any other ,suchveg.. sel grounded in the cbanllel'about the same time, or that such a vessel ever grounded at the'phint wh:ere the respondents assert that ·thisoeCurred. No reaSOn is 'shown or suggested for theextrilOrdinary shallowness of the water' setup...The burden is on respondf>ntsjandthe evidence is insufficient to sustain ,their position. The weight oithe evi.:. dence justifies.8. belief that tHe' respondents' witnesses are . mistaken $pecting the point where the grounding occurred. After the injury the respondents took charge of the vessel,and had'her repaired. They 'showed a. to' discharge thei'r duty towards her.. If the repairs put her in as good condition as she was before the accident', the libelant is entitled to nothing, unless it be for delay. The case must go to a commissioner on this question.
or the respondents, without any fault of her 6wn.

The Brewster was'injured by

,I

r.-"·

'." 1

i

>..

!.,

:,.

.'l

':, - "

PJ...UTt1., THE. GEORGIA.

PLATT

and ,'Others

11. TH;E'GEORGIA.Q

(Di8triot Oourt.E. D',New York.

MARrrIME

4, 1887,)

The services of the quarantine commissioners, in the care and treatment of sick seamen in the quarantine hospitals, are maritime in their character, and the lien of tho commissioners on the vessel, arising out of such, services. requiredbystate statute,ca,neonsequently be enforced by a proceeding in admiralty. . " ' .
I.!.! .

COlQlISSIONERS-CARE OF SIQK SEAMEN.

Goodrich, for libelants. Sidney'Ohmbb, for claimant. R. D.Bfm;edict, for libelant in another suit.
BENEDICT, J. This is a proceeding in against by certain officers of the state of New York, designated c'commissioners of quarantine," to enforce a lien for the care anll treatment of some sick members of the crew of that vessel, who, by direction of the health port C!f New York, were sent tooneoftllequarantin,e);lOsY'orj,{,harbo,r, .and there. treated, and p1[1.intained;' 'the vessel sickness on board. 'There IS no, 'as to the facts"and upon the facts a lien upon We vessel in favor ,libelants is,created pya J:1rovision in'the statute of the state of New Yorlt: The ,only questiqu in this case is whether a, lien of the charaqter .in tion, prea.tedpy, the state be enforcell by a proce,edillgin the It. can be soeAfoi-ced it the thisCllSe the maritime in character; otherwis,e not. . see, no 'reason to', douqtthepropriety of. holding services to They in the care and 'med,ieal treatmentofseaniim Tpe seaple,n were, so, care4JqrandJreate4:by reason of in, the, course of the voyage. Then care treatmenh therefore,devqlved on the vessel'by tIie, ,maritime la'w,;aJ;ldfor that. reaspn ,thei\' cpre by tbe, should -be,collsidered a Inaritime service. va,rti,cular services by the qual:antine lAws Qithestate to be rendered before the vessel could be allowed 'to complew Jier :,cparges inight wen be deeme<i port char.pi in the, due course of per voyage, ,ges, and for reason lD then character. My opinion, therefore, that the libelants have a uPoIl,the vessel whichm,ll!y by

rem

Edward G.

"

of the Ne'WYork bar.