nJ:>ERAL· RElPORTER,.' vol. ·38.
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VANAMAN VANAMAN
THE
ALGmRS.
v.
SAME.,
(District Oourt, B. D. Nf/UJ York. March lB" 1889.) . . OOLLISIOi!r--StG:NAJ:,S. ,.
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Bflix't1Qle' 2 of the international regulations for preventing collisions at sea, a. iaillng:vessel is forbidden to display a flare-up light to an approaching ves. when. she is being by such vessel, as provided in arti, ceil.: '::', ' i
,....
. .Inkdmirltlty· .TM 'first ,a:boye' named action' was" brought against the Algiers to reo eover for the'.ldss of the schooner'Nelly S. 'Jerrill and her cargo by col1i$ion. ' ,'.[1}i'e second action was brought by a seaman on the schooner to re¢overfor persQmU' injuries to bImarising out of the collision; Biddie & 'Ward, HenryD. Edmunds, and CtirtW Tilton, for libelants. Oharld H. TWeed and R. D. Benedict, for the steam-ship. , 'I. ' . .
,These actions, which have been, tried together, arise out ofa collision between the l.'lchoorrer Nelly S. Jerrill and the stellmer AlgierS,'whibh 'occurred on December 8,1:887. The schooner, while tbeMast Of New Jersey, closehauled on her port tack, and heading N.E.<by N., at about 10 o'clock at riightoff Barnegat, met the steamer AIgiilfl3 'coming down the CORst, steering S. by W. t W. The sehooner 'held her 'course. ' The steamer did the same until near the schooner; when, seeing a flare-up light on her starboard bow, sbestar'boarded hard, :but'by the time slie hlul swung two and a half points she struck the schooner' pn the port quarter, about 10 feet from'the taffrail, cn,ttin'g off'the stern, and with it the libelant John D. Vanaman, who asleep in:: his j bUnk, and was u wakened by finding himselfin the I water: ','The' scihbOIler claims that' she was carrying proper side-lights, 'flare-up light,nnd that the collision was by the want'of a 'proper on The the schooner, lDVlOlatlOl1 of the law, dIsplayed a she 'misled tbe steamer. . . ' . H,t{ The ,question .first to be corisideted is whether the' exhibition of a '1!ar(tirp'VSh(b,ythe schooner'was'a 'violation ofthe rules for pre\1enting 'collisions lit'gen.;as revised' by ibestatute of March '3, 1885. 23 St. at Large, 438. The contention on the part of the schooner is that :the rules do not forbid the showing of a flare-up under such circumstances, and the decision in the case of The Merchant Prince, L. R. 10 Prob. Div. 139, is cited in support of this contention. By the decision referred to, the language of the British statute, which is identical with the language used IReported by Edward G. Benedict, Esq., of the New York bar.
!
.527
in the second article of our act of March 3, 1885, was held not to forbid the exhibition of a flare-up :light ,1,)y, a l\lailing although not being overtaken by but approaching a steamer upon a course crossing her own. With all my respect for the opinion of the learned .justice who in the case of The Merchant Prince so construed the British statute, I am of the opinion that our act of March 3, 1885, cannot be, so construed.: ,-THe word"¢a:try" seems to metej' have the same meani,ilg in all the rules. n meil.Jls "carry and show.'" If the word "carry," in article 2,'means "carry'asa fixed light,"'it'would follow that the light provided for in article' 11 fuusi be carried"as lifixed light;' 'fdrartic1e'11 is specifie<lin article 2, and the light mentioned in article 11 is just as inuch to be carried as the light mentioned in any other article. of such a construction would be to I1?alte the Elt-at,uie 6'{ery . asa ,fixed vessel, when being overtaken, must be light or a flare-up light, which she must show from her stern to the ves,sel, .,I;:caon,gt, Pllt S\lcA a ?on,c:;tructi()n r lunqerstancl., oU,r statute, ,l),sa,ilingvesse!ll3, forbidden, .by, artIcle 2, to d,lalighttoan,apprpa9hing RY l;Iuchyessel, Such pe\qg la-w, the schQon;er on this occasion" lig¥ .to the approaching tion of the Consequently,accon1jng ,to ,4ow;rt" RY tlleJ;lUpreme. 90urt in the <lase of The Pen'rwylvania, 19 )Vall. 125" the den rests the sch09,Iler to ,prOre' pot onlY, that, her dispw.X, not' OP;6; of, the cauSes!: pr that it . Qf ,of the ..· The evideI,lce. },[email protected] that, It was, yes.sel tlle coast, When ll1 fact she \Vas :$bort.!Y, .aJterit was by reasonofjt, alld that she swung points schooner. Jnasmucp' as the )1, hehn, ,strUck schol:met l 9f her, clear that ther,e couldha,ye beenn<> collj,EilOn if the steamer had held.hMr : -.- A.nil the testimony, plainly that it inconsequence, :of p, ligh,.,tih.,'3rt ..the. f1l1,re..u .a,"ad,'.l,t,he, ,stea.m.,,'e,'r t,",O:M4 hght dld ,not co1hslOn, when, 1£ would have been no co1hslOn, and when It was because the steamer saw W, j!;liw;lWt9 see the flare-up light no way, therefore, to escape the concluslOn that the. schooner must be held in fault for having shown a flare-up light when forbidden so to do by the l'\w. As to the steamer the evidence makes it plain that a carefullookout was not maintained. The weather was fine, and the schooner should have been seen sooner than she was. If she had been seen as soon as she might have been, collision could have been avoided. Both vessels are accordingly held in fault. Let such a decree be entered.
"of
J'EDERALREPORTER,
vol. 38.
GRING 11.
A
CARGO OF LUMBER.!
-;1
(Di8eriot Cou'!'t, E. D; New'Yo'!'k. March 13,1889.) '
SilIPPING-rFBEIGHT LIEN-WAIVER.
A,vessel discharged a cargo of lumber in Augus,. and ,during the delivery Bom,> !portions were carted away by persons to whom it had been sold, withouto!:ljection from the vessel. and no notice was given to the consignee or " his !vendee of any intention to hold the lumber, for freight. and no steps were " ,taken, to e,nforce a lien for freight until late in September. Held, that the I 'nep. '
In Admiralty.
, Hylxlnd, & Zabriskie, for libelant. R. D. Benedict, for claimant. BEN:Jj:DtcrtJ. This is all actionto enforce a lien forfreight against a cargo of sprticelumber transported' in the canal-boat Silver Wave from Etchirn, nellr Quebec, Can., to the port of New York. By the bill of lading the lumber was consigned to Dunbar & Co." of New York. Upon theatrival' of the vessel at New York, and reporting to Dunbar & Co." theydirected that the be delivered to William Richenstein, Newtbwn Qteek. The Vessel, proceeqed to Newtown Creek, lind there the lumber was dispbarged at the lumber-yard of RiCJhenstein. After the lumber had been, dischittged; the libelant went to the office of Richenstein with the inten.ti9n of'getting his freigh t, and was, there told that' the freight was to be prtid hyDunbar & Co., and that 'there was a shortage in thelumbefdeliVe,red. 'Thereafter the libelant was paid by Dunbar & Co. the<amount of his' freight. less $20 for shortage. It appears in evidencethat, the lumber, w,hen delivered, was placed in a' lum:ber-yard; that during the delivery some of it was carted away by persons t<> whom :Hhad been ,sold by Richenstein. No objection waS made to this by the libelant, nor at any time was any notice or intimation given to Dunbar &qo. or to Richenstein pian intent to hold. the cargo for freight. More:,over, no steps were taken to enforce a lien until September 22,' 1887. 'although the discharge had been Mncluded in August. Such a state of 'flloC,ts does not permit the inference, that an existed betw.een the libelant and the consignee that the of the lumber at 'RigheJTl,stei'n's lumber-ynrdshould not be regarded as a waiver of the fieri. The libel must be dismissed, and with costs. r;· . .
Edward G. . l1 1 ."
Esq., of the New York bar·
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