THE ENERGY.
801
I think the time allowed for retaining priority in these harbor cases may be justly reduced to 40 days. That will give the short credit incident to the usual rendering of monthly bills, and 10 days more for settlement, or libeling the boat in case of non-payment. It accords in some degree with the period of modern Atlantic voyages; it does not exceed the time ordinarily enjoyed by the ship in the ante-steam period; and it is short enough not to imperil, as a rule, the security, or the partial security, afforded to damage claims, which the maritime law designs also to protect, though subordinately to contract liens on the same voyage, according to the universal practice (except under peculiar circumstances) of at least the last 200 years. The long extension of time heretofore given has led to evils and abuses here, which observation satisfies me ought to be corrected by a nearer approach to the general maritime rule; and the time limit of 40 days, after which such liens will be held to lose their priority as regards any liens arising on a subsequent voyage, or trip, will, I think, subserve all that necessity and that encouragement of commerce for which maritime liens have been created, and for which they are preserved; and that time will not ordinarily or substantially prejudice damage liens, which are of a lower rank, beyond that inferiority which for centuries has been assigned to them as liens. The time limit is, indeed, an arbitrary limit; and so is the seaharbor tugs consistson limit, or any other limit, that can be adopted -enUy with the existence of such liens at all for any practical use. Any other rule than the voyage rule must be arbitrary, and that rule would leave no practical security whatever. In the above cases there will be paid (1) seamen's wages; next, (2,) supply liens arising within 40 days before August 28, 1889, on which day the lien for damage accrued; next, (3,) the lien for damage in towing; next, (4,) the residue to be divided pro rata among there-. maining claims for supplies. The costs are allowed with the claims.
(ctreuit Court, D. Massachusetts. AprU 28, 1800.) · (JoLLISION-MuTUAL FAULT.
Between 8 and 9 o'clock on a foggy night the schooner M. and the brig 'E.colltded on an exposed and frequented part of the ocean. sinking the M. Neither vessel had a proper fog-horn sounded by mechanical means. The wind was southerly, and the M. was sailing close-hauled on the starboard tack, S. S. E. The E. was'sailing on the port tack, N. N. W., six knots an hour. No horn was heard on the M., but on the E. a horn was heard just as the green llght of the M. showed on the starboard bow, and the wheel was starboarded. The M., though the right of way, lutted across the bows of the E. On the M. the skipper and nlne men were below; the only men on deck being the man at the wheel, who had had but little experience, and the lookout, who also had charge of the ilavigation and the duty of sounding the horn. Held., that the damages should be divided.
. ,
In Admiralty
FEDERA:f.,'RFJPOBTER I' vol.' 49.
Prederick:IJodge. for libelant.
0; T. R'U8tJeU) Jr.) for clafmant·
.NE1,SON, J. This collision between the fishing schooner Monmouth, of Gloucester,and the British brig Energy, occurred about 10 miles to the 'eastward of Highland light, between 8 and 9 o'clock on the evening of July 30, 1887, in a thick fOK. The wind was south-westerly. The Monmouth, boUhd out on a fishing trip to George's banks, was sailing close-hauled on. the starboard tack, and steering S. S. E. The Energy wason aV'oyage from Porto Rico:toBoston, with a cargo of molasses. She waS sailing on the port tack, with the wind abaft the beam, and was heading W., directly opposite to the course of the Monmouth. On the Energy, the sound of a being heard ahead, and immediately;after'the green light of the Monmouth showing on the starboard or lee bow; ,the Wheel was starboarded to pass Oil the starboard side. Had the'M'Onmonth held to her oourse, as she ought to have done, having the right of way, they would have gone clear. But, instead of keeping her course; she luffed across the bows of the Energy, and hence the collisibD. 'The Monn1outh filled and sunk immediately, her men escapingon board the Energy. The Energy also suffered some injury. There vms an, attempt ma.de on the part of the Monmouth to prove thahhewas to the wipdward of the Energy, and that it was the latter's luff, and not thatwas·the cause of the accident. The IIlan on the l06koutd'eposed that the fitst he knew of the approach of the Energy was seeing both her lights over the port or lee bow. Upon this point I have ,no' hesitation in deciding in favor of the Energy. The only men on::deck on the Monmonth were the lookout and the man at the wheel, the la;tter'a seaman of little experience; The former. in addition to his had the sole charge of the navigation ·of the schooner, and'hadbesidelJ ,the duty of sounding the fog-horn. The skipper and nine other men were below. This was virtually leaving the vessel without any lookout. and was ofJtkle.lf- badllavigation, and sufficient to condemn the Monmouth. On the Energy the mate's watch was on deck, consisting of the first mate, a man at the wheel, and another on lookout. The master was also on to have been alert, and t.he master, mate, and lookout were in positions to observe the approach of the Monmouthiirid, 'hdr l1eal'ing; Theil' that-the Monmouth was to the leeward of thE' Energy is much more credible.than that of. the ,Mollij;lQuth,who dtlposesthat she was to the rUwa,svroved .with sufficient certainty that the speed of. the Energy was sailing with the wind between .two and ,three ,points abaft the beam. ,The wind was a good moderate SJ:1ehad all sailset.lIermll,Ster deposes that she '\Yllll going<five .. I think her speed may be safely taken as This, would not be lIloderatespeed in the case of a .etearii.shipr,in '8n,;exposed and frequented part ()f the ocean. in a thick fog, and I see no reason why it should be in, the case . '. of a sailing ship.
THE MAINE.
303
vessels were witho:ut an efficient,fog-horn, sounded pya bellows ot other 'mechanical means, as requireq. by the interna,tional sailing regulations. 'I decided in, the recent case of The Catalonia, (not and also in two other cases, that neglecting to have on board the regulationfog-horn was a fault in it sailing ship ina collision in a fog, unless it was shown with certainty that the omission,could not have contributed to cause the collision. No such proof IS furnished here. Both vessels of sounded 'n common fog-horn, blown by the, breath; but the the Energy was not heard ataH on the Monmouth, and that of Monmouth was not heard on the Energy until just the moment the Monrtlout4 camein sight. 'It was plainly of the MopmOllth, having the right of way, to give notice of hei-presence to vessels ,approaching from the.southward, bythe ineaus prescribed by the sailing i:ules. "It ",as 'argUed for the Energy that, as' was bound, to keep out' the way of the Monmouth; ahd' the latter nadonly to' keep her course, should be excused for the omission. But I am bound to conclude that a regulation horn can be lreardfurtheroff,than a common horn, and that, if the lookout on the Monmouth had been sooner made aware of in his fright and confusion, the approach of the have luffed across her bows. The Energy should have shortened sail. The Energy is condemnedfor;nQt' going 'ata.)inoderate speed, and for not carrying the fog-hqrn. The Monmouth was in fault, not only for being withont ,the' reguliiionfog-horri{ but also for changing her course, and for not ,having a lookout., Decree for the libelants, damagag1:UFHedivlded,',' SO'brliered. "
or
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THE
VA'NWnietal.,1). ,'.' ';',; '\,;",:' :. ·.
THE, MAINE' et
al.
(Di8tri.ct Oourt, E. D.New YOTk.
Hay 10, 1890.) ' .'
CoLLISION-BETW.EBNSTlIkMIlIRS-"'"QVBRTUIl'iO: VESSEL-EvIDBNOE.
A be.twllenthll E. H. and tl1,eferry-boat M. 11) the East river. Bilthvessels had been lying bows fUrther up than the ferry-bOat. 'rhe que,sJ;ion in the case was whether 'thecoUision was caused by the ferry-boat moving up against the tug, or by the tug backing down upon the fern-boat.. HeW. that the Wllight of evidence showed the. collision to have been !ciLl1S1!d:by the backing ottho against the ferry-boat, and the tug's libel to recover her'damages was '. , .
In· Admiralty.
Oa71Jeriter Mosher; for libe1ants·.. , . lfilCox, Adams Macklin,
Action. to recoveJ; d,amages. for collision. .
,.':
BENi<;nICT, J. ThiS,.is an action' of 'Maine for the tug-boat Edwin· Hawley in acoUi$iop. .'. whicK happened on the oCc88ionof the naval dispw.yat the lReported by · ",0.;:.,;
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