THE MARION W. PAGE AND THE MISSOURI.
'329
he should have the exclusive right to sell so far as they could control it, and that he still has. The cases cited by plaintiffs' counsel prove tdo much. They not only l:lhow that defendant is powerless, but that plain- , tiffs are equally so. To enable him to set up this defense we think it should appear either that plaintiffs expressly stipulated that the defendant should encounter no competition in the sale of the work, or that they were guilty of some fault or negligence in connection with such sales. 'fhe two cases' of Sims v. Marryat, 17 Q. B. 291, and Frtulks v. Kamp, 3 Fed. Rep. 898, tend to establish the proposition that plaintiffs impliedly warranted that they had the exclusive right to sell, but they have no tendency to prove a guaranty by them that defendant should not he, interfered with. The motion for a new trial must be denied, and judgment will be entered upon the verdict. ' NOTE. Upon a rebearing before tbe circuit and district judge this caSe affirmed.
THE MARION
W.
PAGE
and
THE MISSOURI.
(DiBtrrict Oourt, E. D. Michigan. January 18, 1888.)
1.
COLLISION-BETWEEN SAILER AND STEAMER WITH
Tow. A propeller, with five barges in tow, bound down Lake Huron, upon a course nearly south, met a schooner bound up the lake, with a free wind, upon an opposite course. The schooner passed the propeller upon the port hand, at a safe distance, but, instead of keeping off, as she might have done, s.udde.nly put her helm hard down, and endeavored to cut across the tow between the fourth andfifth barges. Held, that the schooner was solely inia,ult.
S. SAME. Where a schooner, sailing with a free wind, meets a propeller incumbered with a long tow, the duty of avoidi,ng a collision does not devolve wholly upon the propeller.' The schooner is also bound to look out for herself, and take such precautions as the circumstances seem to require.
In Admiralty. Libel for damages. This was a libel for collision between the barge Saginaw, then in tow of the propeller Missouri, and the schooner Marion W. Page, which occurred in Lake Huron, off Lexington, at about 7 o'clock in the morning of October 20, 1886. The libel averred, in substance, that the barge was the fourth of a tow of five vessels in tow of the propeller Missouri, and bound down the lake on a course nearly south; that the schooner Page, bound up the lake, on a parallel opposite course, with a free wind, approached as if to pass on the port side, but, ·after she had passed the Missouri, and when a short distance ahead of the Saginaw, she suddenly swung, as if under a starboard wheel, directly across the tow, and struck the Saginawupon her port bow, not far from the stern. The answer of the Missouri did not differ essentially from the libel in its statement of facts, but denied all the allegations of fault made against the pIOpeller. The answer of the schooner Marion W. Page averred that she, together
330 .
REPORTER·
schoonerg John Kelderhouse, Newsboy, and Arthur, had just beeJ:l,. qast off by the tug WilliamA. Moore, and had. shaped her course north, by west up the lake, with a free wind; that about half past 6 in tho morning the Missouri was seen coming down the lake, at a distance of mile, and bearing a point upon the schooner's starboard bOWi the vessels continued on their respective courses until the Missouri suddenly, and when about two lengths off, hauled up and attempted to crQss the Page's bow. "The Page, however, was kept steadily on her' course until she approached the thir\i blitrge of the Missouri's tow, when wheel was ported sufficiently to clear the stern of this barge. After this been done, her wheel was put to starboard, and the man on the was called to let go the line to the fourth barge. This, however, was not done, and before the Page could swing sufficiently to clear the tow line she struck, and the fourth barge, which proved to be ,the .&gio.a.w;:parpe on without apparent change of course, struck the Page a heavy blow on her starboard side between the fore and main rigging, opening up her own bows, and leaving her port anchor hanging. on the Page's rail. From the time the Missouri and her tow were first sighted, and until after she crossed the Page's bow, the latter was kept steadily on her course. witholltvaria.nce, and. after the; Missouri had crossed the Page's course, the time and distance were too short for the latter to avoid a collision ",ith PPe or more barges in the Missouri's tow." The court was assisted upon the argument by Commander Elmer, U. S. N., and Capt. Thomas Hackett, nautical assessors. "<'Mo'iJr'B&Canjield, for the libelants. . :'J. 'W: Finney, for the propeller Missouri. ;'O.E. Oramer and H. H. Swan, for the Marion W. Page. 'f:;.,]
!i',;{
.
BROWN,J., (after stating the facts as above.) We have found no diffiiculty in disposing of this case. The answer of the Page sets up an im"probable state of facts, and the testimony discloses quite a different, but 'an equally improbable, defense, viz., that the tow was pursuing a southwesterly course down the lake, and so much across the course of the Page that the latter was unable, even with a free wind, to avoid coming into cwlisiqnwith the tow. Had this been the case, we are by no means that we should have exonerated the schooner from fault. While the general rule is unquestioned that a steamer, having vessels in tow, is as a steam-vessel. and bound to keep out of the way of vessel, this rule is subject to important qualifications, and in [apt .of little value where a propeller, having four or five barges in tow, meets ,a number of sailing vessels, pursuing a different course, with a free wind. In such a case, it is clear, the sailing vessels are much better abll1' tQ control their movements than .the steamer, and it is but just that >,1;4eduty of avoiding a collision should not rest wholly upon the latter. ,.Such a, ,case would seem to be an exceptional one, and falling within the of special circumstances, rendering a departure from g@eralrules necessary in order to. avoid immediate danger. The :K.ingsfQ.n:..lrv-Sea,8W. Rob. 152.; The La Plata, Swab·. 220 ;.The Arthur
a
THE MARIONW.:PAGE
AND THE
MISSOURI.
Gf,Yf'don, Lush. 270S' The Amel'itan; L. R. 4 Adm. & Ecc. '22'6,;,,;iBufiri' this case we areeritirely sati'sfiedthat thalliw was upon the course of south by east, or south halfeast, from Pointe aux Barquestothe:St. Clair river. It is true, there is a great deal of conflicting testimony'\ipc;>n this point, and we cannot undertake to explain or reconcile the staterrierits of the different witnesses. Aside from the general rule that. the witnesses; , upon a particular ship, are to be believed with regard to hercollrse aria maneuvers in preference to an equal number of witnesses upon imother' ship testifying from appearances, there is a strong probability that a steamer bound from one point to another will take the usual andshodest course between the two points; and in the absence of a showing of $ome good reason for a departure from the usual course, such as stress of weather, we feel ourselves safe in assuming that the usual course will be pursued. The Alberta, 23 Fed. Rep. 807. Now, the from Pointe aux Barques to the St. Clair river is south half east, or south' by east, depending somewhat upon the variation of thecompaasor of the wind; and when witnesses, who are not upon the tow, take the stand, and testify that the course of the tow was south-west, we have a very plain answer to their testimony. We simply do not believe them. It is utterly incredible to us that this tow, not having been driven 'easterly towards the center of Lake Huron by any stress of weather, and, there being nothing to show that she had gotten off her proper course from Pointe aux Barques to Port Huron, should be sailing soutb-westerly as she approached Lexington. Such a course would hav,e carried her iishore in a very short time. We think, then, that weare bound 10 assmilethat the general course of this tow, from the time she left Saild 'Beachu'htil' the Page have in sight, was south by east, and that the real question here is, what was the obligation of the Missouri when she made these 'four vessels? The testimony indicates that she first'made them at a distance of seven or eight miles,-too far off to render it incumbent upon her to take any steps to keep out of their way. After they had approached within two or three miles of each other, two of these vessels appeared upon the port and two upon the starboard bow of the Missouri. It was evidently unsafe for the pilot of the Missouri at this point to port, because he would not only throw himself across the bows of the two vessels upon h,i,s starboard hand, hut would endanger his rUIlning ashore. It wa'aaImast equally impossible for him to starboard without endangering. a collision between his tow and the tw'o vessels upon his port hand: He judged, and, we think, correctly, that, as there. was an opening between ,tpe \.',es- : sels, his better plan was to port slightly, and go between them. .'rhe two vessels upon his starboard hand kept their course, and passed between him and the shore. The Kelderhouse, instead of porting, as of the Missouri snpposed she was going to do, starboarded,and" actint:{ upon that hint, the Missouri also starLoarded a little, and endeavored1to make her way between the Kelderhouse and the Page. Now,- we. think, under these circumstances, the Page should have acted upon this tion, and, while she was not bound to h¢r course, she was bound to consider the fact that the tug wascdli1ing''d6*'n
332,
FEDERAL REPORTER.
'Yith a tow half a mile long, and should have looked out for herself to a certain extent, and kept away from the tow, as with a free wind she might easily have done. We think, if she hadused ordinary care, she rpight easily have avoided the collision without violating the well-settled rules of navigation, but paying that regard to her own saiety which is obligatory upon every vessel meeting another where any risk of collisirn is involved. The testimony shows that she passed within 1,200 feet of the Missouri. We think it entirely clear that if she had kept her course, or if she had kept off, as she might easily have done at that distance, she having a leeway between herself and the Missouri of 1,200 feet, she would have passed the entire tow in safety. The cause of the oollision was the fickleness of the Page, or her apparent uncertainty with regard to what she ought to do. If she had fallen off, as we think she could have done wi'thout difficulty, she would easily have avoided the collision. She appears, however, to llave allowed herself to get closer to the tow than was safe, and then, being in peril, and perhaps in extremis, she put her helm hard down, and attempted to cut across the tow. That Wa$a desperate maneuver, and one which could hardly have failed to result in disaster. The only excuse,given for it is that the master was afraid that if she jibed she would take the masts out of her. But it is suggested to me by the experienced gentlemen who have advised me in this case, that if she had dropped her aftersails, or the peak of her mainsail, she might very easily have fallen off without jibing; and even if she had jibed, it would not have injured her masts or yards. It seemed 'to me from the first that there could be but one result. to this case, and I no reason to change my mind in that regard. An order will be entertld adjudging the schooner Marion W. Page solely in fault for this coland referring it to a commissioner to assess the damages. The qbel as against the propeller Missouri will be dismissed, with costs.
THE AUSTRALIA. ,FREEMAN l ,
tI.
THE AUSTRALIA, (OCEANIC S'l'EAMSHIP Co., Claimant.)
'(Di8trict Court, 1v. D. California. March 9, 1888.)
PiLOTS-HALF-PILOTAGE-SPEAKING VEasEI,· I
. Asking·the master of a vessel which was about to sail, at the custom-house, if he desired a pilot. and an answer that he did not know, is not sllch, a speaking of asbip and decline of services as eQtitles a pilot to "half-pilotage" un· . der Pol.. Code Cal.s 2466. providing that when a vessel is spoken to, outward :or inward bound: ·and the services of a pilot declined, "half-pilotage" shall be , paid... . .
,
P. D. Wigginti)rIi,(Lloyd &: Wood, of counsel,) for libelant.
,Libel for
c'Oh;arles Page,
of counsel,). for :claimant.
.,,