41 F. 826 -

826

FEDERAL RE1>ORTER,

voL 41.

any such construction. The limitifin either direction were not designed to be fixed by the statute itself, hut by the supervisor. Those limitswepe to be within the tributary waterl:l', i. e., to embrace less than the whole of such tJ'ibutary waters,-and oilly-such as the supervisor should specify by nxinga northerly as well as a southerly limit. This he has not done, and that in terms which Elxclude all the tributary waterst9 the north, and exclude also all the waters of Long Island sound, both of which are in of the authority given by the statute. In my judgment, such a power to create a limit of prohibition, in the case of a higbly!,enal and criminal statute, cannot be properly executed by mere implication or indirection; :opr by terms whioh in themselves pro-: hibit nothing, but leave the eitent of the alleged implied prohibition, without reasonable definiteness and certainty. The promulgation by , the supervisor undel'aection 1 is such a departure from the authority of the statute, and the mode in which it was intended to be exercised,. and such a' fuilure to perform whatthe statute required, namely,to fix: the limitS hf th¢. prohibited area within the tributary waters, as, in my have nO validity; and.:no cause of action accrued under it. The q,efect is one that can be' remedied at any moment by the supervisor, by a proper fi:Xibg of the limits as; contemplated by the statute; and he should 'be required to execute the,statutory power according to its intent before 'it is enforced against Sections 3 refer exclusi"ely to cases of"such prohibited matter," or of" such forbidden matter," when loaded on a boat,etc. But it is plain'thatthe words "forbidden matter" and "prohibited matter" do not refer torefuae, dirt, anywMrewithin the United States, but only tosutih matter as is within the scope of this act, namely, such as is within, or within, the prohibited area that is designed to be constituted and established within the prescribed limits of the tributary waters under tlie first section. Dirt or refuse in Washington or Philadelphia isnot prohibited matter. It first bebomes so when found or brought within the prohtbited limits. 'As nO'prohibited area has yet been legally con· stituted, there is nothing in this case to which the words "such prohib. ited matter" can attach. The cauEjes of action under sections 2 and 3, therefore, cannot be maintained" and the libel inust be dismissed·

. MEYERS EXCURSION

&

NAVIGATION

Co· .". THE EMMA KATE Ross.

(DiBtniot Oourt, D. NeW Jersey. Maroh 4,1890.)
L. CoUISION-CROSSJNG BTEAHERS. Under 28 U. S. at. at 441, which provides that, "if two ships under steam are orosslng 80 as to involve risk of collision, the ship whioh has tlie other on her '.'" own starboard side shsU keep out Of tl:!e way of the othEjr, " when a collision under 8uoh oiroumstanoes .lih\! vessel whose duty it is to keep out of the way should be held in fault, unless clear and undisputable evidence establishes the contrary. I. SAME-ABSENCE OF LOOKOUT. The absence of a lookout on the other vessel is immaterial where it does not apo lear that the oollision oould in any wise be attributed to his absence.

MEYERS EXCURSION & NAVIGATION CO. li. THE EMMA KATE BOSS.

827

In Libel for.damages by coUision. Wing) Shoudy &- Putnam, for libelant. R. D. Benedict, for claimants.
GREEN, J .. This is an action for collision which occurred on the of June .23, 1888, on the Hudson river, a short distance south oCtlie ferryof the Pennsylvania Railroad Company, between the Emma Kate Ross and the steam-boat Chrystal Stream. From th r evidence. in the cause, it appears that about 10 o'clock on the evening of the 23d of June, 1888, the Chrystal Stream was proceeding down the river, on.a southerly course, parallel with the New Jersey shore, .and about 300 yards distant easterly from the exterior line of piers. She was making for the docks of the Communipaw Coal Company to tie up for the. night. The tidewaB about "slack-water, nearly slack;". "epb on the Jersey shore." "There was no wind." "!twas a bright, moonlight night; almost as bright as At the same time the steam-tug Emma Kate Ross left pier No.1 North [Hudson] river, New York city, bound to Jersey City. Her captain had left her at the pier, and she was in charge of the mate. Her course was diagonally across the river, heading at firet, apparently, for the Erie Railroad ferry, and showing those on board the Chrystal Stream only her red light. Later, her course changed slightly, and bore a little more to the south and west, so that her. green light came into view to the pilot of the Chrystal Stream. Her objective point was the dock of the Red Star Line Steam-Ship Company, adjoining the ferry-slip of the Pennsylvania Railroad Company at Jersey City. The two vessels proceeded upon their respective courses without any lessening of speed, and rapidly approached each other. When very close, the Chrystal Stream signaled to the tug that she intended to keep on her course. This signal was immediatelyacknowledged by the Emma Kate Ross, but, it is alleged, was misunderstood by the mate in charge of the tug. It had been, admittedly, up to this time, the intention of the pilot of the h,lg to cross the bow of the Chrystal Stream, but, seeing the danger of the collision which now seemed imminent if he persisted in that intention, he suddenly changed his plan, and, throwing his wheel hard a-port, gave the signal to his engineer to back at full speed. This attempt to avoid the collision was, unfortunately, unsuccessful; and, despite the effort, the· tug ran her stem into the port side of the Chrystal Stream at a point distant about 50 feet from her stern, breaking the wheel beam and crank, the holding down bolts in the main deck,and the eccentric rod, and carrying away the A,frame, and doing some other damage. It isfor these damages that this libel was filed. , The testimony takon in the cause touching the negligence of eitqer vessel is contradictory, and difficult to reconcile with any theory. But, after careful consideration, I think the weight of the evidence sustains these findings and conqlusions: (1) That the two vessels were upon "crossing courses." (2) That not only were both vessels in plain view of each other, but each was actually seen by the other some time before the

828

FEDERAL REPORTER,

vol. 41.

collision. (3) That the admitted intention of the Emma Kate Ross was to cross the bow of the Chr,}'stal Stream; her pilot judging that he had plenty of time and space so to do,-being so confident in this respect that he did not deem it necessary to warn the Chrystal Stream of such purpose by any signal. (4) The Chrystal Stream kept on her course, straight down the river, without change, as she had the right, and in fact was bound, to do. Of her intention to keep such course she duly notified the Emma Kate Ross by whistle. (5) That, as it turned out, the pilot oftha Emma Kate Ross evidently miscalculated the speed of his own vessel, or the speed of the Chrystal Stream, or the distance between the two vessels, and, finding that by keeping on the course he was then holding a collision was to avoid such disaster by backing his engine at full speed, and porting his helm. (6) Despite this ellort on the part of the pilot of the Emma Kate Ross, the collision occurred,-the tug striking the Chrystal Stream head on; the result of the collision clearly showing that, notwithstanding her engine was reversed, the tug was moving forward with considerable momentum. The duty cast upon vessels situated as these were is precise and clear. "If two shi.ps under steam are crossing so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other." 23 U. S. St.. at Large, 441; The Corsica, 9 Wall. 630; The Hansa, 5 Ben. 502; The Cayuga, 14 Wall. 275. In the case at bar, it is undisputed that the Emma Kate Ross had the Chrystal Stream on her own starboard side from the moment the vessels came into sight ofeach other until the moment of collision. The mate in command of the tug admits this in his testimony. The duty of keeping out of the way of the Chrystal Stream was clearly upon the Emma Kate Ross. The collision shows that she did not do so. It was her rashness in attempting to crosS the bow of the Chrystal Stream which brought about the result. The Chrystal Stream kept ouher course, as it was imperative for her to do. It was her duty to assume that the tug would implicitly obey the regulation" to keep out of her way." Had. the Chrystal Stream changed her course in anticipation of the motion of the tug, she would have been guilty of a fault. A whose duty it is to keep her course should not anticipate the movements of the other vessel, and give way. The safety of navigation depends, essentially, upon the certainty which results from exact adhesion to general and well-known regulations. The 'Sv,nnyside, 1 Brown, Adm. 227; The Clement, 2 Curt. 363 j The Gitana, L;R. 2 Adm. & Ecc. 350; The Ariadne, 13 Wall. 475. The Emma. Kllte Ross was guilty, then, of a breach of a well-known duty. The 6tnission of a known legal duty is such evidence of and carelessness that, in every case of collision happening under such circumstances, the offending vessel should beheld in falllt, unless clear and indisputable evidence established the contrary.· Taylor v. Harwood, 1 Taney, 444; The Hercmes, 17 Fed. Rep. 606; The Eleanora, 17 Blatchf. 88. The application of this principle constrains me to find that the Emma Kate Ross was in fault,and must be held responsible for the damages resulting from the collision.

THE WENSLEYDALE.

829

It was urged upon the oral argument of this cause, by the claimants, that, as there was no lookout upon the Chrystal Stream, she should he held in fault in consequence of this breach of regulations. The evidence as to the alleged absence of the lookout from his station is very contradictory. While the claimants offered evidence, negative in its character, tending to prove that a certain witness did not see the lookout on the Chrystal Stream just previous to the collision, the libelants produced witnesses who testified to personal knowledge of his presence then at his post of duty. It is not necessary, however, to analyze or weip;h these conflicting statements. It is enough to say that, under the circumstances of the case., the absence of the lookout on the Chrystal Stream, if he were absent, does not relieve the Emma Kate Ross of responsibility. There is no diSpute that each vessel was in plain view of, and was plainly seen by, the other, a long time before the collision. Nor is there any pretense that the collision could be in any wise attributed to the absence of a lookout. A fault which has no ill consequences is immaterial. The Morning Light, 2 Wall. 550; The Annie Linckley, 104 U. S. 185, 191; The George Murray, 22 Fed. Rep. 117. There must be a decree for the libe1anti, with the usual reference to ascertain damages.

TIm

ANDERSON

WENSLEYDALE. 1

et ale v.

THE WENSLEYDAI.&

(DI8trlct Cowrf, E. D. New York. March 10,1800.)
8BAJ,mN-BI01CfESs-HOSPITAL CHARGES-LIARILITY OJ' SHIP.

A seaman. ill with fe,ver, was sent to a hospital, and remained there 184 days. It appeared that, so far as the fever was concerned, he might have left the hospital at the end of two months, but that, owing to having had some of his toes amputated, he was unable at that time to stand on his feet or take care of himself. Held, that the ship was liable to the New York quarantine commissioners for the seaman's expenses during the entire period ofhia stay at the hospitaL ·

Act by the New York quarantine commissioners to recover the hospital expenses of a .sick seaman. Goodrich, Deady « Goodrich, for libelant. Butler, Still'11Utn « Hubbard, for claimant.
BENEl;>IGT, J. The only question raised in this case is whether the quarantine commissioners can recover of the ship the quarantine hospital expenses of the seaman named McCormack for the whole period of 134 days, during which time the seaman was in the Swinburn Island Hospi- , tal, whither he had beeu sent by the health officer pursuant to a statute

In Admiralty.

'Reported by Edward G. Benedict, Esq., of the New York bar.