[(F UOO B87 1876 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDQE DOUGLASS BOARDMAN FrRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS <:";«ELL UNWERSITY LIBRABV 3 1924 068 531 379 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924068531379 EEPORTS ADMIEALTY AND EEYENUE CASES, ARGUED AND DETERMINED CmCUIT MD DISTEICT COURTS OF THE OTITED STATES, WESTEEN LAKE AND EIVER DISTRICTS. By henry B. BEOWN, DISTEICT JUDGE, EASIEBN DISIBIOT OF IQCQIGAN. VOL. I. NEW YOEK: BAKEE, VOOEHIS & CO., PUBLISHEES, 66 NASSAU STREET 1876. Entered according to tro^Act of Congress, in tlie year 1876, by BAKEK, TOORHIS 4 CO., In the Office of the Librarian of Congieat, U Wasl>a'n. BAKER £ GODWIN, PRINTERS, HO. 25 PABE ROW, H, I, JUDGES WHOSE OPINIONS ARE REPORTED IN THIS VOLUME. JOHN McLEAN, ASSOCIATE JUSTICE OF THE SUPREME COUET. NOAH H. SWAYNE, ASSOCIATE, JUSTICE OF THE SUPREME COURT. HALMER H. EMMONS, CIRCUIT JUDGE, SIXTH CIRCUIT. , ROSS "WILKINS, DISTRICT JUDGE, EASTERN DISTRICT OF MICHIGAN. HIRAM V. WILLSON, DISTRICT JUDGE, NORTHERN DISTRICT OF OHIO. SOLOMON L. WITHEY, DISTRICT JUDGE, WESTERN DISTRICT OF MICHIGAN. JOHN "W. LONGYEAR, DISTRICT JUDGE, EASTERN DISTRICT OF MICHIGAN. CHARLES T.' SHERMAN, DISTRICT JUDGE, NORTHERN DISTRICT OF OHIO. HENRY B. BROWN, DISTRICT JUDGE, EASTERN DISTRICT OF MICHIGAN. PREFACE If any apology be needed for adding another volume to the already crowded shelves of our professional libraries, it may perhaps be found in the fact that, in the multitude of reports issued since the adoption of the Constitution, only about a dozen volumes of exclusively admiralty decisions are included ; of these but one, viz., that of Mr. Newberry (of which the present volume . is designed as a continuation) is devoted to cases arising upon the Western lakes and rivers. This volume was published in 1867, and is believed to be the last of the strictly Admiralty Series, excepting the 3d of Ware. By far the greater number of admiralty decisions are mingled with common law, equity, bankruptcy, and patent cases, and scattered through more than a hundred volumes of reports. Indeed this fact suggests the observa- tion, that the present method of incorporating in the same volume these widely differing classes of cases is expensive, unphilosophical, and unsatisfactory. Few admiralty practitioners are interested in bankruptcy business, and yet to obtain the benefit of fifty admiralty precedents, they are obliged to purchase a volume contain- ing at least an equal number of bankruptcy cases, and in the Circuit Court reports a still larger proportion of common law and equity cases. VI . PEEFACE. The same is true of the patent lawyer, who is not in- frequently compelled to purchase an entire volume to obtain the benefit of a single important case. Thus a great many who would gladly buy every book devoted to the branch of the law they particularly affect (and nearly every lawyer is more or less a specialist) are deterred by the expense from purchasing at all. The reporter ventures to suggest to the profession that cases determined by the Federal Courts, instead of being reported by districts might more acceptably to the bar, and, in the end, more profitably to the publishers, be reported by dosses, viz. : (;1.) Patent cases. (The most- important of these have already been reported by the late Mr. Fisher.) (2.) Admiralty cases. (3.) Bankruptcy cases, (These are very acceptably col- lated in the Bankruptcy Register.) (4.) Criminal cases and cases peculiar to the jurisdiction and practice of the Federal Court. N.o mention is made in this classification of ordinary, cases at common law and equity, as they are more satisfao- torily, if not better, decided by the Supreme Courts of the several States, than they can be by a single judge. The present volume contains the more important admi- ralty cases determined in the Sixth Circuit during the last eighteen years. The accidents of compilation have limited it to cases arising in the two districts of Michigan and the Northern District of Ohio ; but subsequent volumes, if pub- lished, will probably include cases from other districts. The fact that a large majority of these cases has arisen within the Eastern District of Michigan is due not more to the fortunate location of Detroit for admiralty business, than to the painstaking industry and marked ability of the late PREFACE. VU Judge Longyear. Without formal dedication to that effect, this volume is intended as a tribute of respect to the memory of that most excellent judge and upright citizen. In selecting material, the following cases have been, with few exceptions, eliminated : (1.) Oases turning solely upon questions of fact. (2.) Cases reversed. ^ (3.) Cases affirmed by the Appellate Court and elsewhere reported. (4.) Those reannouncing principles of law already well settled. (5.) Cases reported in other volumes. Probably some of the cases here reported "were hardly worthy the consideration, but it is hoped the volume may prove useful to those interested in this branch of the profession. I beg to acknowledge my indebtedness to my late partner Mr. If ewberry, and to the several judges whose opinions are here published. Since the book went to press, the cases of The Free State (p. 251) and The Colorado (p. 393) have been affirmed, and that of The S-wnrvyside (p. 22Y) reversed by the Supreme Court. Detroit, March, 1876. H. B. B. TABLE OF CASES. PAGB Acadia. — Towage. Practice. Effect of giving bond. . 73 Arctic. — Practice. Security for costs in wages cases. . 347 Akmstrono. — Negligent towage. Equipment of tugs. Look- out. Inevitable accident. . . . 130 Atalanta, — Stale claim. Purchaser bound to use due dili- gence. ...... 489 Avon. — Jurisdiction of collision in Welland Canal. Sale to bona fide purchaser. Damages. . . 170 Balizb. — Wages. Season of navigation. Desertion. For- feiture. Mitigating circumstances. . . 424 Brambn. — ■ Wages. Mortgagee in possession. . . 161 BucKBYB State. — Practice. Deposition. . . 65 Canadian. — Passenger's contract. Damages. . . 11 Champion. — Supplies furnished in Canada. Might of assignee to sue. ...... 520 Charlotte Raab. — Collision. Vessel in stays. Burden of proof. ...... 453 Clarion. — Jurisdiction. Towing. ... 74 Clematis. — Exceptions to libel. Negligent towage. Liability of agent to third persons for torts. . . 432 Clematis. — Desertion of tow by tug. Judgment of master. 499 Coleman & Foster. — Collision. Insufficient equipment. Respective liability of tug and tow. Pleading. . 456 Colorado. — Collision in a fog. Speed. Lookout. Suffi- ciency of watch. Inevitable accident. , . 393 Colorado. — Damages. Market value. Expenses of earn- ing freight. . . . . . 411 Daniel Ball. — Navigable waters. Power to regulate com- merce between different States. Inspection laws. , 193 B TABLE OF CASES. PAGB David Moreis. — Collision in attempting to pass a raff. Costs 273 Detroit.— Practice. Amendment of libel. Stale claim. nights of bona Jide purchaser. . . . 141 Douglass. — Collision. Lookout. Sailing vessels. Evidence. Admissions. ..... 105 Fame. — Forfeiture. Duty of delivering manifest. Unlad- ing and delivery. . . . . . 42 Free State. — Collision. Steamer and sailing vessel. Arti- cles 13 and 16. Bisk of collision. Speed. . 251 Free Trader. — Practice. Custodian's fees. . . 72 Gala Plaid. — Certificate of probable cause. Practice. Ev- idence in support. .... 1 Gmi.— Wharfage. The 12th Rule. . . . .37 General Cass. — Jurisdiction. Navigable waters. Charac- ter of vessel. Lighters. Lien for towage. . 334 GiLLETT V. Pierce. — Bight to jury trial in admiralty. Act of 1845. Bevised Statutes. . . . 553 Glover. — Demurrage, Consignee. Custom. . . 166 "Hauiltos MonTos.— Supplies bought at a distant port. . 40 Henry Miller's Case. — Criminal jurisdiction. Sigh seas. 156 Hercules. — Stale claim. Bona fide purchaser. Mortgage of indemnity. ..... 559 H. P. Baldwin. — Collision. Vessels close-hauled on oppo- site tacks. Lookout. . . . ' . 300 Illinois. — Practice. Setting aside decrees. Rule 40. . 13 Illinois. . Pleading. Necessary averments in libel. Act of 1845. ..... .497 Iosco. — Materials. Construction of vessels. . . 495 Isabella. Jurisdiction, Watercraft laws, . , 96 Island Queen. — Shipment of gold coin. Limited liability act, ...... 279 John Martin. — Wages. Authority of engineer. Forfeit- ure. ...... 149 Kaloolah. — Practice, Petition to set aside sale, , , 55 Livingston v, Pratt. — Practice, Suppression of deposition, 66 TABLE OF CASES. XI PAGE Lton. — Negligent towage. Collision. Vessel at anchor. . 59 Magnet. — Wages. Desertion. Misconduct. Autlioriiy of engineer. Forfeiture. .... 547 Marquettk. — Salvage. Special contract for property saved. How far a salvor is an agent of the owner. . 3G4 Hasten. — Collision. Weight of evidence. Speed in entering a harbor. . . , . . . 436 Mastkks & Raynob. — Collision with vessel at anchor. Proper anchorage. Anchor watch. . . . 342 Mayflower. — Damages by collision. Demurrage based upon probable earnings. .... 376 Melibsa. — Wages. Stale claim. Pleading. Infancy. Costs. ...... 476 Mermaid. — Repairs. Law of Canada. . . .51 Michael Groh. — Damages. Expenses of getting off. Pro- test. . . . . . . 419 Miller's Case. — See Henry Miller's Case. . . 156 Milwaukee. — Collision. Steamers meeting end on. Rules of supervising inspectors. Speed. . . 313 Morton. — Collision. Duty of tugs in the arrangement and management of tows. Pleadings. Amendments. . 137 M. W. Wright. — Seamen's wages. Act of 1790. . 290 Nabob. — Collision. Right of alien owner to sue. When forfeiture becomes operative. Tug and sailing vessel. Lookout. , . . . . 115 Napoleon. — Collision. Vessel aground in narrow channel. Right of way. ..... 33 Neil Cochran. Jurisdiction, Injury to bridge. . .162 Old Concord; — Practice. Right of mortgagee to intervene. Rearrest of vessel. .... 270 Ontario. — Damages proximate and remote. Loss of insur- ance. ,....• 480 Ottawa. — Jurisdiction. Injury to wharf. . . . 356 Planet. — Collision. Vessel at anchor. Anchor watch. . 124 Ploughboy. — Revenue laws. Receiving goods without permit. 48 Prindiville. — Practice. Amendment of claim. . 485 Revenue Cutteii No. 1. — Assignment, Purchase by Gov- ernment of vessel subject to liens. Jurisdiction. . 70 Xii TABLE OF CASES. PAGE Rosoius. — Practice. Opening depositions out of court. 442 Sailor's Bride. — Salvage. Quantum meruit. Jurisdiction of claims against foreigners. ... 68 St. Joseph. — Marshaling of liens as between mortgagee and materialmen, foreign and domestic. Liens for ad- vances. ...... 202 Senator. — Salvage in case of derelict. Liaiiility of salvors for negligence. ..... 373 Senator. — Towage. Mastery's certificate. Duress. Power of underwriter of cargo to bind, vessel. . . 544 Silver Spray's Boilers. — Salvage under contract. Limit- ation to amount agreed on. Subsalvors. . 349 Simmons' Case. — Smuggling. Definition of "wearing ap- parel in actual use." .... 128 Skylark. — Bill of lading. Vessels not liable for stone pur- chased as cargo. . . . . . 361 Spaulding. — Marshaling of liens. Salvage and general average. ...... 310 Stranger. — Liability and duties of tugs. Sheering of tows. 281 Sultana. — Seaman's wages. Clerk of steamboat. . 13 Sultana. — Authority of marshal to repair. . . 35 Sumner's Apparel. — Salvage. Duty of salvors. Forfeit- ure. Embezzlement. .... 52 SuNNYSiDB.— (7o?Zmo». ' Responsibility of vessel at rest ex- hibiting colored lights. Lookout. Duty to rean- nounce lights. ..... 227 SuNNYSiDE. — Damages. Demurrage. Master's wages. . 415 Sunshine. — Practice. Tender. Costs. . . 75 Sweepstakes.— -Co WmoTO. Tug and tow. Division and or- der of tow. Fastening of line. . . . 509 Tan Bark Case. — Release of lien by delivery of cargo. Bill of lading. Liability of carrier for loss by frees- «»^ 151 Thomas A. Scott. — Collision with vessel aground. Narrow channel. Stopping. Judgment of master. 503 I0LS.D0.— Practice. Rule 53. Motion of cross-libellants for security. • . . • 445 Union Express.— (SaZva^e. Contract with owner of cargo. 516 Union Express.— Ziew for money advanced on request of owner. .... » .' TABLE OF CA.SES. Xlll Victor. — Collision. Tug and tow. Manning and equip- ment of tugs. Necessaries furnished in home port. 449 Volunteer. — Jurisdiction. Inland waters. • . 159 WATOHruL. — General average. Contributions for loss of deck load. ..... 469 Williams. — Jurisdiction. , Executory maritime contract. Lien. Effect of part performance. . . 208 Young America. — Pleadings. Amendment. Joinder of ac- tions in rem and in personam. . . . 462 YouNO America. — Collision. Lookout. Insufficient man- ning. ...... 549 Zouave & Bioh. — Collision, Duties of tugs and tows. . 110 DISTRICT COURT. DISTRICT OF MICHIGAN. Hon. EOSS WILKINS, Disteict Judge. THE GALA PLAID. FEBEUARY, 1859. Certificatb of Probable Cause. — Practice. — Evidence in Support, A motion for a certificate of probable cause of seizure may be made subsequent to the decree, and upon the hearing of such motion the Court is not limited to the evidence introduced upon the trial, but may receive any evidence tending to show that the collector acted upon a reasonable suspicion. In determining the question, the Court is not at liberty to consider the fact that the seizure was made at night, without proper warrant, and that the conduct of the officer was otherwise oppressive and cruel, as his certificate would not protect him in an action for a personal trespass. The Court can only consider whether his action was malicious and groundless, or whether he acted upon a reasonable suspicion that the goods were smuggled. The fact that the claimant was selling them at a low price in an obscure town, declaring them to have been imported, and that duty had been paid upon only a small portion, was held sufficient to justify their seizure. MoTioK for certificate of probable cause. The facts fully appear in the opinion of the Court. Mr. Jos. Miller, District Attorney, for the United States^ Mr. Alfred Bv^seU, for the claimant. WILKINS, J. The libel in this case embraced a large quantity of merchandise seized by the direction of the col- lector of the port of Detroit, in June, 186Y. The articles enu- merated in the libel filled some twenty-two boxes, and con- 1 DISTRICT COURT. The Gala Plaid. sisted of gala plaid^ merino, silks, dress goods, flannel, edging, muslin, lawn, silk veils, &c., in all numbering, in various quantities, some fifty different pieces and qualities of fancy merchandise, of the value of about $1,000. The goods were all claimed by one John Larkin, who, with his family, emigrated to this country from England, in Octo- ber, 1856. The issue joined in the case was tried by a jury on the 14th of July, 1868, a little over a year after the seizure, and as ap- pears by the record, no other testimony was introduced than that of Thomas Thayer, and Mary Ann Larkin, the daughter of the claimant. The former was the appraiser, called only to the identifica- tion of the articles. The latter stated positively that all the goods enumerated in the libel were purchased from one Jackson, residing in a certain street in the city of New York, and as each airticle enumerated in the libel was separately called over by the Dis- trict Attorney, distinctly averred that the same was bought in 'Eew York, and she being the only witness for the Government as to the fact of importation, the District Attorney abandoned the prosecution. The jury gave a verdict that the allegations of the libel were not sustained, acquitting the goods, where- upon the Court decreed a dismissal of the libel and a restitu- tion of the property seized. On the succeeding day a motion was made by the District Attorney, in behalf of the collector, for a certificate of proba- ble cause, under the Acts of Congress of 1799 and 180Y. The argument of the same was, by the stipulation of the proctors, postponed until the first week ia November. The practice of this Court has generally been, on releasing after a hearing the property seized, to direct, with the decree dismissing the libel, this certificate of protection to the ofiicer, if the evidence warranted the presumption of a reasonable sus- picion on his part that the goods had been illegally brought into the United States: the exoneration of this officer being placed by the law on the fact that, although the evidence did DISTRICT OF MICHIGAN. The Gala Plaid. not warrant condemnation, yet there were sufficient circum- stances disclosed to justify the seizure. In this case the claimant was not called upon for any ex- culpatory evidence. The case was abandoned. The proctor of the claimant and the District Attorney of the United States stipulated at a future day to present to the consideration of the Court the present motion — a practice which does not meet the sanction of the Court, which has led to rauch expense and confusion, and has only been tolerated with the view of doing justice to a public officer, who was not personally present at the seizure, and if any outrage was committed, either on the rights or feelings of others, is not at least morally amenable. Had this course not been taken, I must have refused th? certificate, for there was not, on the trial, a scintilla of evi- dence warranting suspicion. "When the motion came up for hearing, the Difitrict Attor- ney offered in evidence the circumstances of suspicion upon which the collector directed the proceeding. This was ob- jected to by claimant's .counsel, on the ground that the trial was closed, and that it was not competent for the Court on this motion to hear other proof, and that it was limited in the granting or refusing of this certificate to the testimony which had been subniitted on the trial. The testimony was heard under a reservation of the Court, and after much consideration, I am satisfied that it was admis- sible at this stage of the proceeding, and on this motion, although the libel was dismissed and restitution decreed. There is certainly nothing in the language of the statute that inhibits the motion being made subseiquent to the rendi- tion of the decree. In the case of the 26 Diamond Mings (18 Law. Eep. 250), the motion was made on a day subsequent to the dismissal of the libel, and Judge Sprague, it would seem, granted the certificate upon evidence of a fact, which if offered, was not pressed during the trial, namely, the eoncealment of the rings by the passenger when the manifest was made con- taining similar articles by the same person. The statute does not limit the evidence to that offered upon DISTRICT COURT. The Gala Plaid. the trial. It declares if it shall appear to the Court before which such prosecution has been had that there was a reasonable cause of seizure, the Court shall cause a proper certificate or entry to be made thereof — that is, ^efaot is to be certified. The time when the application is to be made for such certificate is not determined, and it is not clearly inferable as the intent of the Act that such certificate should be based exclusively on the testimony offered antecedent to the decree. Had the stat- ute declared that the final decree should embody such certifi- cate, then the Court could hear no other evidence than that given on the trial ; but, omitting so to enact, the inference is strong that the design of Congress was to enable the collector to come in at any time after judgment has been given for the claimant, and procure from the Court the certificate contem- templated, on such a showing as he may be enabled to make. The statute prescribes that the Court shall cause a proper certificate to be given or entry to be made. The alternative is with the Court to give the one or direct the other — and it is not, therefore, a necessary part of the record — ^not an essen- tial journal entry, and consequently not a part of the original proceeding, unless the Court so chooses to order. To sustain the prosecution, the evidence is given to the jury, under the direction of the Court, and it is the evidence upon which their determiijation is made ; but whether or not the prosecutor had probable groimds for instituting a suit, is another question, and solely for the action of the Court, which may proceed to hear the matter, either during the progress of the trial after the testimony is in, or subsequently, upon the application of the officer" for leave to exhibit his grounds of suspicion. The only direction of the Act being that the subject-mat- ter excusatory of the officer, and protective of him against the action of any other judicial tribunal, is, that such excuse shall be judged of by the Court before whom the prosecution is had. In the case of the Forester (1 Newb. 81), the Court acted at once on the application of the District Attorney, the proofs on the trial being conclusive upon the point. MSTEICT OF MICHIGAN. The Gala Plaid. The Court holding then that this inquiry may be properly gone into after the prosecution has closed, will now inquire into the sufficiency of the excuse set up and proved by the collector. It is alleged on the part of the applicant for this certificate, that the circumstance of vending these goods in an obscure town, but sparsely inhabited, distant from any large village or city, and selling them at a low price, under the declaration by the claimant, repeatedly made to purchasers before seizure, that he had brought them from the Old Country, and paid duty only upon part of them, was sufficient to warrant his sus- picion and his official action. And it is further alleged that the place of deposit and mode of sale confirmed the impression that they had been fraudulently brought into the country. There can be no doubt that on this application the Court is confined to the circumstances existing prior to the seizure. It is an application based on an acquittal. The prosecution has failed to establish the charge, and that trial is ended. The property has been released and restored, and the issue determined. The Court, then, is to hear the cause of seizure, and noth- ing else. The Court may be satisfied, on the testimony ad- duced on the application, that the District Attorney was mis- led in abandoning the prosecution, that his witness was guilty of perjury, and that, had all the facts been brought to the no- tice of the Court, a decree of condemnation must have been rendered. But all this is, of no avail, except so far as corrob- orative of the circumstances of suspicidn which led to the seizure. Furthermore, I am satisfied that the conduct of the officer in making the seizure, cruel, uncivil, oppressive or otherwise, with or without warrant, has nothing to do with the merit of this application. It presents a single question to the Court, and when resisted, a single issue, and that is — "What were the grounds of suspicion which led the collector to direct his deputy to seize the merchandise in questi-6n ? "Was the seizure malicious and groundless, or had the officer a DISTRICT COURT. The Gala Plaid. reasonable warrant of suspicion, based on circumstances and facts which came to his knowledge and existed prior to his oflScial action in seizing the goods ? By the Act of 1Y99, sec. 6S, when the collector has cause to suspect a concealment of smuggled goods in a dwelling- house, he is bound to make application under oath to a magis^ trate, and obtain a search warrant, which can only be executed in the daytime, in obedience to the constitutional injunction, forbidding unreasonable searches, and guaranteeing the secu- rity of private dwellings. A seizure at night is unreasonable and prohibited, and these provisions so essential to peace and safety are re-enacted in 1816 (3 Stat, at Large, 232). But the mode pursued by the officer, and his official ac- tion upon his suspicions, have nothing to do with the ques- tion whether his suspicions were groundless or otherwise. If the collector, having a just and reasonable suspicion, acts without warrant, or on an irregular warrant, or illegally in making the search at night, or oppressively in seizing what is not dutiable, such as articles of clothing, or commits a per- sonal trespass, he certainly is amenable elsewhere to the parties injured, and is not protected by the certificate of the Court, gi-anted under the Acts of 1799, 1807, or 1823. Did I think so, I should be very loath to grant the certifi- cate in this case. For although I am satisfied that the war- rant is a genuine document, and not a forgery (as was sup- posed in the argument), yet I cannot sanction, by any act of mine, the conduct of officer Cullen, in making an indiscrim- inate seizure of broadcloth and female chemises, of pan- taloons, petticoats, French apparel, night-clothes, baby's clothes, &c., so completely stripping the apparel of the family that the ehadren were left in nudity and the young women compelled to borrow from neighbors the requisite clothing for church. Two exigencies are covered by the certificate : ■1st. The claimant cannot recover costs, although acquitted DISTRICT OP MICHIGAN. The Gala Plaid. because by his own conduct he misled the officer of the Grovernment. 2d. He cannot recover damages in any action, because the proper tribunal determined that the officer was warranted in making the seizure. But, if the mode was unlsiwful and in- jurious, the certificate is but a blank piece of paper, as a shield of protection. The Act of Congress never designed to protect robbery, assault and battery, or midnight trespass under the cover of this certificate. It never designed to pro- tect conduct forbidden by the statute itself. It means no more than this, that Certain merchandise hav- ing been seized for a violation of the revenue laws, and that fact having been tried and the goods restored, the public officer had just grounds for his official action, and no costs are awarded to the claimant, I recur then to the issue as stated, leaving with pleasure the outrageous conduct of the officer in performing his duty. In the case oi Loshe v. The TTmted States (7 Oranch, 339), decided as far back as 18 L3, Judg^ Marshall says, " that the t|rm " probable cause," as used by OdngresSj does not signify prima facie evidence, which, in the absence of exculpatory proof, would justify condemnation, but simply evidence of circumstances which warrant suspicion. And, at a later period, what constitutes probable cause, was held by Judge Stbry, in the Rover (2 Gall. 240), to be a question of law for the Court, — ^in the facts exhibited justify- ing the officer. And, as a question of law, tEe circumstances of each par- ticular case must govern the Court. In the case of the Friendship (1 Gall. Ill), a dOubt as to the construction of the law by the officer was held to be a reasonable cause for seizure. In the George (1 Mason, 24), Judge Story defines " ' probable cause ' to import a seizure made under circum- stances which warrant suspicion." Arid in the case of the Forrester, in Newberry, 81, this Court held that the circum- stances which occurred when the vessel was unladen at the dock, of the captain calling in the presence of the revenue DISTRICT COURT. The Gala Plaid. officer, the merchandise, " Port Sarnia stuff," warranted his seizure. In the case of the 26 Diwmond Smgs, a very slight cir- cumstance' induced Judge Sprague to grant the certificate, namely, that the claimant was apprised of the fact that the diamond rings had been entered by him on his manifest. When the steamer came to their moorings at Boston, the revenue officer was notified, by the captain, that there had been a robbery on board, and no passengers were to land un- til a legal search had been made. The claimant came to the purser on the deck, and handed him a small parcel, containing the twenty-six rings, with a request to enter the same on the ship's manifest. This being in the presence of the revenue officer, he at once seized them^ The claimant had previously entered on the ma'nifest four cases of jewelry. The question was, had the twenty-six rings been concealed ? The Court dismissed the libel, but held that the claimant was apprised of the fact that there was a manifest in which he had caused similar goods to be entered, and that, although he had not actually concealed the goods in question, the circum- stance was sufficient to warrant the suspicion of the officer. What are the circumstances in this case, as proved, on which the collector acted ? The informer, J. H. Terry, states to him by letter of the 20th of June, 1857, that the claimant is selling, in the vicin- ity of Tecumseh, at his dwelling-house, a large quantity of fancy goods, in all of the value of about $1,000. That he and his daughter say, that they recently brought these goodfi from England, on a greater part of which they did not pay duty; that upon certain artificial flowers duty was paid, but no duty on the residue. That the claimant was an English- man recently come into the country ; that he kept no store, but had the goods stored away in the garret of a one-story house ; and that he was personally present, and heard, with other witnesses, the statement that they had not paid duty on DISTRICT OF MICHIGAIT. The Gala Plaid. tiem. Now, if this statement has been made out by the proof, there was sufficient ground for the seizure. Terry himself was put upon the stand, and testified — that he was at the place where these goods were sold ; that they were kept in a garret of a one-story house ; that they consisted of the articles enumerated in the libel ; that he heard Mary Ann Larkin say, that they did not pay duty on all the goods, and would sell cheap ; that they had brought over from England 22 cases ; that they had only paid duty on the artificial flowers ; and that the reason why they escaped paying duty on all was that the officer did not know that they had any other goods. • This statement is corroborated by the evidence of CuUen, as to the account given to him by the claimant that the goods were brought from England, by the statement which he made to the collector himself when seeking the restoration of the property, by Holdrich, to whom claimant repeatedly said that the goods came from England, by Wheeler, who went to buy cloth, and to whom claimant said that he brought all the goods from England, and that he paid the duty only upon part, and by the affidavit of the claimant himself, made in October, 1857, in open Court, when applying for the continu- ance of the cause, in which he solemnly states — "that he brought all the goods seized from Liverpool in the ship Bright, openly and without the least secrecy, and that he paid to the custom house officer at New York all the duties demanded, and that he eould prove all these facts by his daughter Mary Ann and his fellow-passengers." This affidavit was made on the 12th of October, 1857, and the daughter, as a witness on behalf of the Government, swore on the trial, in July last, directly and particularly the reverse. One or the other is perjured. There is no room for charity, and the father's oath is supported by all the sur- rounding incidents of the case, by the declaration of the daughter to Terry, and by her testimony before the grand jury. It is true, the Court must be governed on this applica- tion by the circumstances which led to the seizure ; but the 10 DISTRICT COURT. The Gala Plaid. evidence of Cullen, Shoemaker, Holdrich and Wheeler, and the affidavit of the claimant are only used as corroborating, beyond all doubt, the testimony of Terry and the circum- stnnces proved by him : That duty was Hot paid upon these goods, and that they could be sold cheap. The circumstances of this case strongly illustrate the pro- priety of the ruling that the Court should not, in all cases of seizure under the revenue laws, determine the propriety of the certificate on the facts elicited on the trial of the main issue. Here the District Attorney introduced only the evidence of the daughter of the claimant. Had he recollected, and called the attention of the Court to this affidavit of John Larkin, the comparison between it and the bare-faced, peril- ous, minute swearing of Mary Ann would have elicited from the Court a course of procedure, calling peremptorily for the punishment of either the father or daughter for willful and corrupt perjury. The Court believed what appeared to be the frank state- ment of the woman, that each article was purchased in New York, and sympathized with the witness in the evident spoliar tion of part of her property, in a strange land, where she had sought a livelihood in the neighborhood of her relatives. As the facts turn out, there should have been a condemna- tion. The proof then on file warranted it. The depositions of Dawson and Benedict, the custom house officers of New Tork, as to the non-payment of duty, the sworn avowal of John Larkin on file, and the proof of his declarations by Cullen, Wheeler, and Holdrich, with Mary Ann's avowal, would have overwhelmed her statement in Court, and caused a condemnation. Motion granted. DISTRICT OF MICHIGAN. 11 The Canadian. THE CANADIAN. JTOfE, 1856. Passensbr's Contbaot.-^Damages. Where the master of a schooner who had taken passage on a steamer to rejoin his vessel, was carried past the place for which he had bought his ticket, and at which the steamer usually stopped, he was held entitled to recover not oidy for his personal expenses and loss of time, but damages in the nature of demurrage for the detention of his vessel. Libel for breach of contract in failing to land a passenger at the port to which he had taken passage. Libellant was the master of a vessel lying at Algohac, an intermediate port on the St. Clair river, between Detroit and Lake Huron. He had left his vessel, going up the river, and secured her a cargo, and on the 4th of July took passage on the Canadian, at Port Huron, paid his fare to Algonac, with the intention of stopping there and rejoining his vessel. Evidence was given that the steamer usually stopped there, and that the clfrk in- formed libellant she would stop there on that trip. She did not stop, however, but carried libellant on to Detroit, where- by he was prevented from rejoining his vessel before the afternoon of the following day. The wind which had been favorable during the 4th and 5th, shifted to the northward on the evening of the 5th, and prevented the departure of the vessel before noon of the 7th. She thereby lost the cargo which libellant had engaged. Mr. John S. Newberry, for libellant. Mr. Alfred Euasdl, for claimant. WILKINS, J. This action is brought to recover dam- ages for a breach of contract in failing to land the libellant at Algonac, for which place he had purchased his ticket. 12 DISTRICT COURT. The Canadian, The contract and its breach are admitted. Libellant took passage on the Canadian for Algonac, with the assurance that the steamer would stop there on her downward trip. He procured his ticket with that understanding, the clerk stating she would land him there. When opposite this place he re- fused to put the libellant ashore, but the owner being on board directed her master " to put her through and not to stop," and the steamer passed on to Detroit, taking the libel- lant with her. These facts are not controverted. The onlj question is as to the damages. These must be limited to the actual loss sustained by the libellant in conse- quence of the failure of the steamer to perform her contract. He was at the time owner of the schooner Oceana, which was lying at Algonac waiting for him, he having gone up to Lexington to engage a cargo for her. It is alleged, though not very satisfactorily proven^ that he failed to obtain this by reason of his delay in reaching the schooner. He is entitled, however, to remuneration for his loss of time and damages in the nature of demurrage for the deten- tion of his vessel for three days. This, with his personal outlay, amounts to $103.50, for which a decree wiU be entered, rejecting the estimate of the probable profits of a trip to Cleveland. This action is clearly sustainable. The passenger thus wronged should be compensated in damages adequate to the nature of the injury, and passenger steamers must be kept to the fulfillment of their engagements. I)eGreefor libellant. DISTRICT OF MICHIGAN. 13 The Sultana. The Illinois. THE. SULTANA. FEBRUARY, 1851. Seaman's Wages.— Clbkk of 'a Steamboat. The clerk of a steamboat is a mariner, and entitled to a lien for wages. Libel for wages. Libellant was hired and served during the autumn of 1856 as clerk of the Sultana, and claimed a lien for his wages. WILKINS, J. The clerk of a steamboat is a mariner, within the meaning of the law conferring a lien for wages. {Curtis on Merchant Seamen, p. 5, and notes ; The Prince George, 3 Hagg. 376 ; 2 Bovm. Law Die. p. 405 ; Milk v. Long, referred to in 2 Dod. 105 ; Wilson v. The Ohio, Gil- pin, 505 ; Flanders on Mar. Law, 354 ; Boss v. Walker, 2 Wilson, 264 ; Trainer v. Superior, Gilpin, 514.) Decree for lihellant. THE ILLINOIS. MARCH, 1857. Peacticb. — Setting Aside Decrees.— Eule 40. R seems a Court of Admiralty has no general power, at least after expiration of the term to set aside a final decree on the ground of oversight, inadvert- ence, or mistake. The ten days allowed by Rule 40 for setting aside a decree, are restrictive, and a motion made after this time cannot be entertained. This was a motion by William Dixon, master of the pro- peller Illinois, to open a decree obtained by default, and for leave to answer. 14: DISTRICT COUKT. The niinoU. A libel for collision was filed against the propeller, Sep* tember 3d, 1865. The propeller was seized, and the usual stipulation given, to answer judgment, on the 15th of the same month. Certain depositions were taken in Cleveland on the 26th, and upon October 23d, no answer having been filed, although an appearance had been put in, a default was entered, and the cause referred to the clerk to assess damages. On Oct. 25th he made his report, and on the 29th a final de- cree was entered for $1,926 and costs. An appeal was taken from this decree, November 6th, and in the following June the appeal was dismissed by the Circuit Court. On August 26th, 1856, this motion was made upon aflJdavits of merit, and a further showing that claimant's proctor was absent from the city when the time given to answer had expired and the decree was taken, and that he had taken the ap- peal supposing the case could be reheard upon the merits. An answer was also tendered. Mr. James V. Ccmvpbell, for the motion. Mr. John 8. Newberry, contra. WILKINS, J. Upon the return day of the process in this case, twenty days were taken by claimants to answer. At the expiration of this time, his counsel being engaged in the trial of a cause at Monroe, which had been unexpectedly prolonged, his default was taken, and a final decree was en- tered, Oct. 29, 1855, for $1,926. Claimant's counsel returned from Monroe a few days after the decree was entered, and at once took an appeal to the Circuit Court. This appeal was, however, dismissed upon the ground that an appeal would not lie upon a decree taken by default. He now moves the Court to open the decree, and for leave to answer. Under General Admiralty Eule 29, the Court may, in its discretion, get aside a default, and admit the defendant to answer at any time before final hearing and decree, upon payment of costs. This rule obviously has no application to DISTPICT OF MICHIGAN. 15 The Illinois. cases where a final decree has been entered. Under Kule 40, the Court may, in its discretioi^ upon motion of defendant and payment of costs, rescind a decree by default and grant a rehearing, at mvy in/me withim, ten days after the decree has ieen entered. The material point to be determined in this case is whether the Court has power thus to rescind a decree not only after the ten days have expired, but when a whole term h^s intei'vened between the rendering of the decree 9,nd the making of the motion. Aside from the rule, I have very grave doubt whether a Court of Admiralty ought to open a final decree, particularly after expiration of the term, upon the ground of oversight, mistake, or forgetfulness on the part of defendant or his coun- sel. The English authorities are unanimous in holding that a final decree cannot be opened upon this ground. In the case of The Yroww Sermina (1 Ch. Rob. 163, 168), a decree was rendered, Jan. 27, 1799. On the 7th of Eeb. the counsel moved to open it, on the ground of a mistake on his part. The Court (Sir W. Scott) says, " I will not go so far as to lay it down universally, that it is not in the power of the Court to reconsidpr its decrees on very particular occasions." Speaking of the case then before the Court, he says, " as a precedent, it would be a practice highly dangerous, and the liberty of reviewing its decrees, if it exists, which I do not affirm, is a liberty which the Court would exercise with very great caution ; because I oresee that, were applications of this sort to be easily admitted, they would be very frequently made on reasons much less sincere than those which are now offered to the Court." " Without discussing the power of re- viewing a sentence," he rejects this application. In the case of The EUzabeth (2 Acton, 57), application was made to rescind a decree condemning the cargo, on the ground that there had been an understanding that upon the produc- tion of certain affidavits consent should be given to a rescission of the decree — and these proofs were now produced — and the counsel cited a case, to show that the Court would rescind its decrees. But the Court (Sir John MchoU) says : " Ag far as 16 DISTRICT COURT. The Illinois. I recollect that case, it rather proved the rule that this Court does not rescind its decrees. The 'motion to rescind was made upon a reference to the registrar and merchants ; but was refused, as it was said it was not the practice of this Court to rescind, its decrees, and open the matter anew, whatever other redress the parties might obtain by an application to the Court, should it be proved they were materially aggrieved " — and the application was refused. The case cited by the counsel above was that of the Gehevnvraih, decided in 1798, in which it was represented to the Court that since the decree the proofs upon which the decree had been rendered had been impeached, amd shown to he fraudulent, and a motion was made to rescind and allow evidence to be given of that fraud. "But the Court refused, and said, their decree being final, it would be contrary to their practice to rescind it and open the sub- ject anew ; nor where even it appeared a fraud had been practiced, they could not go out of the order of their practice ; the parties, however, might apply to the Court in another shape, if they could satisfactorily prove they were aggrieved." In the case of the ForHtvdo (2 Dodspn, 68, June, 1 816), the libellants commenced one action on a bottomry bond then dismissed it, alleging the claim was settled. Shortly after they commenced a new suit, on the same bond. The defendants moved to dismiss the latter suit, on that ground — and the Court granted the motion, with costs, and demurrage. The Court (Sir "W. Scott, p. 70), after commenting on the affidavits, says: "They do not, in my apprehension at least, render it necessary that I should inquire how far the permission again to open a case which has heen once closed comes within the range of that large discretion with which this Court is by its commission intrusted. It might, perhaps, within the limits of that very extended equity which it is in the habit of exercising, deem it not improper in some cases to suffer a cause to be reopened. But it certainly would not do so unless there existed very strong reasons to show the propriety of the measure. I feel no hesitation in saying that Tnere neg- DISTRICT OF MICHIGAN. 17 The Illinois. Ugenoe, or oversight, wovld not he a sufficient ground for such cm extraordina/ry interposition of the authority . of the Court. A direct case of fravd, or something equivalent to it must he made out, before I can suffer such a step to be taken." And then he says, in regard to the affidavits, " Let us see, then, whetfter there be any such ground in the present case. There has heen no fraudulent concecdmeni or withholding of documents. The master has sworn, and it is not denied that he produced all the papers and delivered them over to the (libellant, who) must he presumed to have examined a/nd scru- tinised them. They camiot now he heard to say that they acted improvidently a/nd without due oatdion. If they did so in point of fact, they must abide hy the consequences of their own negligetice." A case relied upon by the defendant's counsel is that of The Monarch (1 W. Rob. 21), decided in 1839. An int&rloou- tory decree had been pronounced by Sir John Nicholl, deceased, after a hearing on evidence, it being a case of col- lision, declaring both parties in fault, and referring the cause to the registrar to take accounts, &c. A question of costs was afterwards raised, and a motion' made to alter the decree in that particular ; and a decision made in the House of Lords,, in 1824, was cited to show that in such a case the costs should have been (as a matter of law) decreed differently. Doctor Lushington, who heard the motion, refers to that case, and says that if that case had been brought to the notice of Sir John NichoU he would unquestionably have varied the decree to conform to it, as regards the costs, if it had heen in his power. He then goes on to consider whether he would have had the power, according to the practice of the Court. He says (p. 26) : " If it was a frequent practice to alter the decis- ions of the Court, much evil and inconvenience would doubt- less ensue in consequence. At the same time, it is to be observed that great injustice may be occasioned if this Court has not such a discretionary power of varying its decrees as is possessed by other Courts of this country. The Court of 2 18 DISTRICT COURT. The niinois. Chancery, iefore enrollment of a dsoree, may, and often does alter, vary and amend it, &o." This case does not sustain the defendant. In the first place, there had been no jmal decree at all — and the case was still before the Court, standing on a mere " interlocutory " decree of reference — and yet "bhe Court hesitated much about granting the motion. In the second place, the amendment which was allowed was one of la/w entirely, and not of facts. It was a case of an error of the Court, as to the law — an error appoufently of record. Again, it was an amendment, merely, and not a re- scission — still less a re-opening of the case for new proofs. Judge Conkling (2 Adm. p. 367), commenting on this case, says : " It seems very clear that the learned Judge enter- tained no notion of any power in the Court analogous to that exercised by Courts of equity upon a bill of review, or of any power to gtrami a rehecurmg wpon gue^sions of fact." " The error to be corrected in the case before him was an error of law," — and he says that this is the only case that contains, so far as he has discovered, an explanation of the views enter- tained by the High Court of Admiralty on this point. These cases, extending over a period of sixty years, show that negligence, inadvertenee, oversight, mistake of counsel or party, are no grounds for rescinding decrees, on motion, whatever other mode there may be. Fraud, or its equivalent, is the only ground, and in one case even that was held not to be good ground. The Courts of Admiralty in this country apparently fol- low the same practice. In the case of The Arnry (2 Gall. 386), a decree had been rendered, condemning as prize a British vessel and cargo ; afterwards a claim was presented by certain merchants of Morocco, alleging the property to be theirs, and asking thai the decree be rescinded. The Court refused. And Judge Story says that in cases of prize, a rea- sonable time is allowed for neutral claimants to interfere, " and if no claim, is interposed within that time, condemnation follows of course, mpmnam contumacicB. Nor is this a mere DTSTRICT OF MICHIGAN. 19 The Illinois. arbitrary regulation. It is to be foand in analogous cases in tbe common law, &c.," " at all events, it is a part of the Ad- miralty law wMoh this GquH is hound to respect, and we are not at liberty, upon any notions of supposed inconvenience, to create a novel regulation. If the present be found unsuit- able to our circumstances, as a maritime power, it will be for the Legislature to devisg a more just and equitable rule. Sta/re decisis is a gre^t ma?im in the administration of the law of nations." " This Court can have no move jv/risdietion to revive or review the cause, or to sustain the present appli- cation, than it earn, have to adjudicate upon amy other cause tfihieh has hem d^ter^i/^d within 1/wenty years." " It is ut- terly incompetent in this Court, sitting as such, to grant an appeal in a cause which is no longer within their cognizance." The case of The Martha, (1 Blatch. & How. 151), decided in 1880, is in point, and the Court, Judge Betts presiding, lays down the doctrine ,^nd its reasons at full length. In this case, a depree had been pronounced, dismissing the libel, with costs ; afterward, and in the following term, a motion was made to valy the decree as to the costs, and the motion was heard and granted. But on another motion being made for a de- cree against the sw^ties for those costs, the matter again came up, and the Cpujit vacated the last order, the Judge observing he had supposed, when he made that order, that the case was still open. At p. 1^1 he says : " I should certainly never have allow.ed the argument in this cause to proceed, unless I bad sup- posed that the whple case was under the control of the Court, and that the former decree stood suspended until a decision could be had upon the question of costs." " The proposition now before the Court is, whether a Coiirt of Admiralty, after hearing and definitive decree, can, of its own authority, rehear the cause or nuUiiy the decree at any time subsequent to the term in which it was rendered." " The prpceeding in this ease had all the effect of a rehearing — the case hod heen dis- posed of." He alliides to the practice in the English Admi- ralty and Ecclesiastical Courts, and in the French Courts. As to the Ip-tter, he says : ^' la the French practice, which con- 20 DISTRICT COURT. The niinoifl. forms very closely to the civil, the judgment becomes perfect as soon as it is pronounced, and the Judge cannot correct it after the rising of the Court, and after the register has entered the judgment upon the minutes as it was given." (Cites Pothier on Omil Procedure, ch. 5, art. 2.) He says that Courts of Chancery allow a rehearing upon sufficient reasons, at any time before decree enrolled, " lut this practice has never ieen inl/rodmed mto the Cowis of Commwn Loajo w Ad- miralty^'' The Judge then gives the reasons for this rule, as derived from " the character of the suits usually prosecuted here." " Usually it is of the last importance to suitors here to have an immediate dispatch of their business. Seafaring men are not in circumstances to conduct protracted and reiterated litigations upon their claims, and it is usually better for their interests to have prompt decisions, even though adverse to their demands. Experience, I believe, fully justifies the remark, that whether in the Instance or the Prize Courts, every delay and appeal is of serious detriment to the mariner's interest. The sum in dispute is usually small and of immediate necessity to the suitor. It is for his interest, therefore, that the most speedy decision possible should be obtained, and that when it is ad- verse to him, he should rather go immediately to his employ- ment than linger over the contingencies of a reconsideration of his case. These views have probably led to the exclusion from Courts of Admiralty of the practice referred to, and I concur in the sentiments of the eminent men sitting in the English Admiralty and Consistory Courts upon this point, that it is a matter of great doubt whether a power of this de- scription should be exercised in this Court without the free consent of all parties to be afi"ected by it." In the case of the steamboat New England (3 Sumner, 495), a petition, in the nature of a libel for a rehearing, or of a libel of review, had been filed. In deciding whether such a libel was admissible in admiralty practice, the Court (Judge Story, p. 502) refers to the case of The ForUtudo, above cited, and then says: "Eut 1 am not aware that after the decree DISTRICT OF MICHIGAN. 21 The Illinois. has been enrolled or entered on record, and the term has passed, that any Court of Admiralty, at least in this country, has ever entertained an application for rehearing. In the High Court of Prize Commissioners in England, it is said to be the practice never to rescind a decree after it is passed, or to open the subject anew. But at the same time it was, by implication, admitted that another mode of redress might be adopted, meaning, I suppose, that a libel in the nature of a bill of review in equity might be sustained, &c." A libel of review is, of course, very different from a " mo- tion." These cases in England and America settle this point, it would seem, beyond controversy, that Courts of Admiralty cannot, on motion, rescind a decree. There may be another form of remedy, but what that is we are not here called upon to discuss. Judge Story seems to think a lihel of review would lie, but the present is a mere motion. In this respect (of not rescinding a decree after the term is passed) other Courts follow the same rule. In JEOudson <& Smith v. Guestier, a question was decided in the Supreme Court of the United States, at February term, 1810 (6 Cranch, 281). At February term, 1812, a motion was made that the case be reheard (7 Cranch, 1), but the Court say, " that the case could not be reheard after the term in which it had been decided." This case is a leading one. It is cited by -Judge Story in T/ie Avery, above cited (1815) ; by Judge Betts in The Mar- tha (1830). In Ma/rtim, v. Hunter's Lessee (1 Wheat. 365 [1816]), the Court say : " A final judgment of this Court is supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this Court can revise its own judgments. In several cases which have been formerly adjudged in this Court, the same point was argued by coun- sel, and expressly overruled. It was solemnly held that a final judgment of this Court was conclusive upon the parties, and could not be re-examined." 22 DISTEiCT COURT. The lUinoia. In BMaU v. United States (12 Peters, 491 [1838]), the Court say : " No principle is better settled, or of more uni- versal application, than that no Court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term at which they have been rendered, unless for clerical mistakes, or to reinstate a cause dismissed by mistake- — froiii which it follows that no change or modification can be made, which may substantially vary or affect it in any material thing. Bills of review in equity, and writs of error coram vdbis at law, are exceptions which cannot affect the present motion." In Wash. Bridge Co. v. Stewart (3 How. 425 [1844]), the Court say, " The want of power in this Court to review its judgments or decrees, has been so frequently determined by it, that it is not now an open question." In the Circuit Court of the United States the same rule pre- vails at law and in equity. In Alters v. Whitney (1 Story), 3 1 0, a motion to amend a judgment by inserting " John," instead of " James," which had been inserted in the writ by mistake, was refused. Judge Story alludes to the United States statute of jeofails (Judiciary Act of 1789, sec. 32), and says it provides for amendments in form only-— that by it " no authority is given to the Courts of the United States to make any amend- ments in judgments, except as to defects and want of form," and this he says is not a matter of form, and there is nothing on the record to amend by. He further says, " It is plain that at common law, no judgment was amendable after the term at which it was entered, and amendments could be made in the process, &c., only while the cause stood in paper, and before judgment. The authority to amend them, even in England, in cases of this sort, is dependent upon and limited by statute." In Wood V. Luse (4 M'Lean, 254), a motion was made, after judgment rendered and the term elapsed, to set aside certain proceedings in the case. Tte Court say, " If the mo- tion was not objectionable on other grounds, it is clear that the proceeding on the original suit, and the notes on which it was founded, could not be revised in this manner." Eefer- BISTEICT OF MICHIGAN. 23 The Illinois. ring to the New York practice, he says : " But by the com- mon law, the judgment of a previous term cannot be set aside on motion ; and this is the doctrine of the Supreme Court," — " a clerical error in the entry of the judgment will be cor- rected at any time, but judgments canrmt he set aside on mo- tion^ after the term at which they were entered." In Doggett t. Emerson (1 Woodb. & Minot, 1), a motion was made (in equity) to vary a decree pronounced, but not actually entered, at a previous term. The motion was re- fused, and Judge Woodbury says : " But as an entry is neces- sary to complete their operation and give them full effect, like an enrollment of a decree, or a signature of it by the Chancel- lor in England, it is in the power of the Court to make changes in them hefore that is done, and probably hefore the term closes at which the entry is made." But after it is once pronounced and communicated to the parties, it would be, he says, " altogether destructive of judicial consistency and firm- ness to do so, unless made upon good and urgent cause, on a full rehearing by both parties." "There must be shown some oivious m,istak6 of law or fact, or some new matter since discovered ; " and be cites The Avery (above cited) as hold- ing that the Court will not grant a rehearing after the term has ended. In Jackson v. Eldridge (1 Wood. & M. 61), the Court re- fused to vary a decree in chancery on petition. The Judge says, " a decree is usually considered final after the end of the term at which it was rendered " — ^but may be before, as it was in this case. After it is final, a mere clerical mistake in figures or form, may be corrected on motion or petition, " tut nothing done which goes to its merits and to the prin- ciples or orders themselves that have been made by the Court." " In States where no statutes exist expressly remedy- ing such cases, it is very questionable whether any power ex- ists at common law to re-open or change, in a material part, any final judgment. He refers to the case of Cameron v. McRolerts (above cited), and says, that though in that case 24 DISTRICT COURT. The Illinois. " some years had elapsed, the principle is the same whether it be days or years, if the judgment has gone from the waste book and minutes, and been entered up as perfected." And he also refers to a case not reported, Dixon v. Lewis, before the Supreme Court, at January term, 1845, in which the Circuit Court had suspended a final judgment by default, on motion of the defendant, on the ground that he had been pre- vented from appearing by mistake as to the term of the Court. The majority of the Supreme Court held that the Court below had no power to suspend thai, judgment — ^but the case went off upon another ground. In the State Courts the same rule prevails. In Miller v. Hernphill{4: Eng. [Ark.j 488), in chancery, an order was made, Oct. 10, 1845, dismissing a caused/or want of prosecution. On the 10th April, 1846, on motion and affi- davits, the .cause was reinstated. On appeal, it was held that that order " was clearly coram, nonjudice, inasmuch as at the term next preceding, the cause had been dismissed for alleged want of prosecution." See also Smith v. Stimiet (1 Pike, 501). In Hill V. Bichmds (11 S. & M. 194, 9), a bill in chancery was dismissed in 1842, on account of the failure of complain- ant to give security for costs, as required by a previous order. In 1846, a receiver, who had been appointed, and had acted in the case before its dismissal, applied by petition to the Court for an allowance, which was granted. On appeal the Court say, "a petition, in many respects, very nearly re- sembles a motion, &c. Either one or the other is proper only when a case is pending,'' or when a Court of Chancery has jurisdiction on petition by express statute. « After the dis- missal of the bill in 1842, the original cause was no longer in Cowt, the parties were no longer before it, and iU jurisdic- ■ tion was at an end." This case was approved and same point decided in Starke V. Lewis (23 Miss. [1 Gush.] 151). In Deeds v. Deeds (1 Greene [Iowa], 394), a decree was granted in June, 1847, divorcing the parties, and giving the cus- tody of children to the father. Afterwards a petition was pre- DISTRICT OF MICHIQAIT. 25 The niinois. sented to set aside the latter provision, and granted. On ap- peal, held erroneous. The appellate Court say that part of the decree "is absolute, and cannot be changed, altered or re- versed by any Court except an appellate Court," or by bill, &c., impeaohmg it for fraud, or matter arising afterward. In JBwch V. Soott (1 Gill & Johns. 393), the Court of Ap- peals held that " a decree signed and enrolled could not be reheard on petition," and that it would be considered as en- rolled when signed by the Chancellor and the term ended. In Pfeltz Y. Pfeitz (1 Maryland Ch. Dec. 466), that case is cited and approved, and the same point decided. The Court say, " it is clear that if an application were made by petition to open the enrollment and vacate the decree, it must be re- fused." The decree in this case was by default or pro con- fesso. In Thomjpson v. Ward (8 B. Monr. 26), the Court say, a decree can only be set aside for error or fraud. In the for- mer case only by appeal or writ of error, or by bill of review — in the latter, only by an original bill. In the CommoT^eaWh v. Shanks (10 B. Mon. 304), the Court below, after the end of the term, varied a judgment at law as to the costs. On appeal, held, " the order or judgment made at the November term was a final order — ^nothing was left open for the future action of the Court, and no power was reserved to change or modify the judgment. If an execution had been issued not authorized by the judgment, the Court could, at a subsequent term, have quashed it, &c., or quashed the taxation of costs, if improperly made hy the clerk, but they had no authority to correct their final judgment, after the close of the term at which it was made." In Ashley v. Glasgow (Y Mo. 320), a motion was made to set aside a judgment for costs made at a previous term — re- fused. On appeal, held, " when the term is past, then the control of the Court ceases, and no alteration or amendment can be made but such as is authorized by the statute of jeo- fails and amendments." In Lindell v. Bank of Missouri {^ Mo. 228), judgment was 26 DISTRICT COURT. The Illinois. rendered, November term, 1825, against the bank. The rec- ord stated that the parties " appeared by their attorneys." In 1833 the bank moved to set aside the judgment, on the ground that there had been no notice or lawful process served. Mo- tion granted. On error to the Supreme Court, the Court say : " The only question to be considered is, whether the Court could, contrary to the record, receive proof that the parties were not rightfully in Court. The record says the bank ap- peared by attorney. This must stand as true ; at all events, it cannot be contradicted by affidavit. If this were allowed, then every judgment tendered in a Cov/rb af record would at all tvmes he subject to the sa/me proceeding / no property would be safe, the sanctity of a record would be lost, and with it all security for right. It may be, if the attorney who appeared for the bank, did so by mistake,, this mistake, if discovered, might be corrected during the ter^n^ hut Kardl/y aftei'wardsP In Lampsett v. Whitney (3 Scam. 170), a motion was made at December term, 1841, to rehear a cause decided at Decem- ber term, 1840 — refused. The Court say, " one term has in- tervened, «&c., and it is now too late to make it. The Court conceives it has no power over tJie case."" " It is believed that in no instance has the Court entertained a petition for a re- hearing after the lapse of a term." From these cases it appears that it is not in Admiralty Courts alone that this rule prevails. It may at first view seem harsh, and in some cases it may operate hardly. Yet it is the only safe rule that can be followed. Any other practice would destroy the sanctity and conclusiveness of records, open the door to endless litigation, unsettle rights of property and person, cause delay, expense and min—" Interest reipuhlicce ut sit finis litivm " — it would accumulate and clog the business of the Courts, and render it impossible to get through it. As the rule now is, parties understand their rights and duties, and it becomes them to be vigilant and prompt, and not to sleep upon them. Now what effect does Eule 40, of which we have spoken, DISTRICT OF MICHIGAN. 27 The Illinois. have ? It does alter the general practice, so far as to allow a decree by default to be opened, on gbod cause shown, after the decree is rendered, and even after the term is ended, in cases where the term ends before the ten days are expil-ed. But the privilege thus given is expressly limited to the ten days specified, and unless applied for within that period, no benefit whatever can be derived /"wm ifmt rule. The rule carries with it no power or force heyond its express termSi The Court in making that rule, evidently had in view the general adnairalty practice, which forbids, as we have shown, any interference with a decree after it is once rendered. In a spirit of liberality, the OoUrt saw fit to relax that general rule to a certain extent, and no more. The fact that it did so re- lax it does not authorize this Court to relax it still more. The fact that it jkeed the Urrdt and the boundary is evidence that it intended that that limit should not be passed. The rule is to be construed as if it were a lam, and it has all the force of a statute. This appears from the history of its adoption. Congress, on the 23d of August, 1842, passed an act (sec. 6, 5 Stat, at Large, p. 516) authorizing the Supreme Court to afdopt riiles for the government of the Admiralty Courts. In pursuance of this act, the Supreme Court, at January term, 1845, adopted these rules. The rules so adopted were in i^ect adopted hj Congress itself, the Supreme Court being but its agent for that purpose. In the State Courts of Michigan it is held that their rules, adopted in a like manner, have the force of statutes. But whether they are to be considered as a statute passed by Congress or not, yet they are prescribed iy the Supreme Cowrt, and are the la/vo of this Court, which is a subordinate one, and bound to obey the requirements of its superior. So far as this Court then is concerned, they are, at aU events, " a law," and to be considered as such. There are many authorities which hold that a rule, even of its own making, is a law of the C&wrt — and that the Court 28 DISTRICT COUBT. The Illinois. has no discretion to depart from them. {Ram on Legal Judg- ments, 33 ; Ogden v. Robertson, 3 Green, 124 ; Rex v. Mann, 2 Strange, 755 ; Dunbar v. Conway, 11 Gill & Johns. 92 ; Wall V. Wall, 2 Har. & Gill, 79 ; Thompson v. Hatch, 3 Pick. 612.) A fortiori, this will apply to a rule prescribed by a superior Court. A rule may be extended on application beforehand, but when once the period prescribed by a rule is passed, rights home vested which the Court cannot take away. Now then, construing this rule as a law, what operation is to be given to it? Dwa/rris (on Statutes, 641) says : " It is a maxim, generally true, that if an affirmative statute which is introduetive of a new law, directs a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner." Again, " If a new power be given by an affirmative statute to a certain person by the designation of that one person, although it be an affirmative statute, all other persons are in general excluded from the ex- ercise of the power, since inclusio unius est easclusio alterius. Thus, if an action founded on a statute be directed to be brought before the Justice of Glamorgan, in his sessions, it eamnot be brought before a/ny other person, or in any other place." Again, at p. 667, he says, " An act of Parliament some- times directs the manner in which a defendant shall be en- titled to take advantage of the enactment, as hy pleading the statute in bar; in such cases the party must pursue the remedy pointed out, or if he do not avail himself of it at the proper time, and m the manner and form prescribed, he can- not take admamtage of it afterwards." At 6 Bacon's Abridg. 383-4, the following rules for the construction of statutes are laid down. He says we must con- sider the old law, the mischief, the remedy, and the reason of the remedy. He says, " the 'best construction of a statute is to construe it as near the rule and reason of the common law DISTRICT OF MICHIGAN. 29 The Illinois. as may be." " When a statute directs a thing to be done generally, and does not a/ppoint any special manner, it shall be done according to the course of the common law." " In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be Oigreeable to the rules of the common lano in cases of that nature ; for statutes are not presumed to m,ake any alteration in the common \?c^, farther or otherwise thorn the act expressly declares ; therefore, in all general matters, the law presumes the act did not intend to make any alteration, for if the Par- liament had had that design they would home expressed it in, the act." Again, *' If a new remedy be given by a statute in any particular case, this shall not be extended to alter the common law in any other than that case." Again, " A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter." Again, at p. 391, " Every statute ought to be construed for the preventing of delay as much as possible." " If the meaning of a statute is doubtful, the consequences are to be considered in the construction ; but where the meaning is plain, no con- sequences are to be rega,rded, for this would be assuming a legislative authority." " A statute creating a new jurisdiction ought to be construed strictly." Let us apply these rules to the present case : This Rule 40 gives a new remedy — it is an innovation on the common law of admiralty (so to speak) — it gives a new Jurisdiction to the Court. It is, therefore, to be construed strictly — as near the com- mon law rule as possible. It is not to be presumed the rule was intended to alter the common law rule "farther or other- wise than it expressly declares." This rule is calculated to cause delay. It must be so con- structed as to prevent delay " as much as possible." But the important point is, that the remedy given is to be sought in a special manner, and at a special time, and it can- not be done in any other manner. The words of Dwarris, at p. 66Y, are expressly applicable. 30 DISTBICT COUET. The Illinois. This principle is a plain one, and is acted upon every day. For instance, the statutes of Michigan authorize the defendant to redeem land sold under execution at any time within twelve months. No one has ever claimed that that statute gave him any privilege beyond its express letter, or that he could redeem an instant beyond the time fixed. Again, it is a principle that a,pplies to contracts and stat- utes both, that the express enumeration or adoption of certain things is an exclusion of all others. Judge Leavitt, in the case of Wa/rd v. Ogdensburgh (5 McLean, 641), commenting on Adm. Eule 15 (which allows, in cases of collision, a suit either against th^ ship and master, or against the ship alone, or against the master or the owner alone wj personam), said that inasmuch as this rule expressly enumerated those classes of suits, it was in effect a prohibition of all others ; and he held that an action againsit the ship and owners could not be sustained ; and he pites several eases to sustain his decision ; and his decision on this point was not re- versed on appeal, the point being abandoned by counsel. In Marhvry v. Madison (1 Cranch, 174), a question arose as to the extent of the original (contradistinguished from appellate) jurisdiction of the Supreme Court. The constitu- tion declares that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, &c. In all other cases it shall have appellate jurisdiction." It was in- sisted that as the clause giving original jurisdiction contained no negative word, the Congress could by statute give it in other cases than those enumerated. But the Court held other- wise, and said, " affirmative words are often in their operation negative of other objects than those affirmed ; and in this case, a ngative or exclusive sense must be given to them, or they have no operation at all." Judge Story (1 Com. on Const, sec. 448), says : " There are certain' maxims which have found their way, not only into judicial discussion, but into the business of common life, as founded in common sense and common convenience. Thus it is often said that in an instrument a specification of particu- DISTRICT OF MICHIGAN. 31 The Illinois. ■ « ■ — - lars is an exclusion of generalg, or the expression of one thing is the exclusion of another. Lord Bacon's remark, that ' as exception strengthens the force of law in cases not ex- cepted, BO enumeration weakens it in cases not enumerated,' has been perpetually referred to as a fine illustration." Again : " there can be no doubt that an affirmative grant of power in many cases will imply an exclusion of all others. As for in- stance, the Constitution declares that the power of Congress shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority. Why ? Because an affirmative grant of special powers would be absurd as well as useless, if a gen- eral authority were intended." In the present case, to give this Court power to open a decree at any time within ten days, would be useless, if the Supreme Court meant or understood that they had the same power without the rule, or that they had it after the ten days expired. The affirmative grant, I think, of the ten days' limit, is an exclusion and prohibition of all other time. Again, Judge Story, speaking of the constittitional powers of the government, says (1 Com. Const, sec. 426) : " On the other hand, a rule of equal importance is not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impol- itic, or even mischievous. If it be mischievous, the people may remedy it." If they do not choose to do so, the presump- tion is, that the" miachief done Tyy a restriction of power, is less than would arise hy its extension. It is a choice between two evils, choosing the least. The same remark will apply to grants of judicial power; the grant is not to be extended by construction beyond its fair terms. If mischief ensues in individual cases, it is better to bear that than the greater evil of extending the power. If I am correct in the foregoing views, then, inasmuch as the ten days allowed by the rule elapsed before this motion was made, it cannot be entertained. It will undoubtedly 32 DISTRICT COUET. The Napoleon. operate harshly upon the defendant in this case ; bnt I am satisfied that if he is entitled to any relief, it must be ob- tained by some other proceeding. Motion denied. THE NAPOLEON. MARCH, 1857. Collision. — Vessel Ageodnd in Narrow Channel, etc. — Eight OP Wat. Where a tug is working at a Teasel aground in the channel of St. Clair flats, it is her duty to obstruct naTigation as little as possible, and to giTe way to passing Tessela, though it m^y require a temporary suspension of her efforts. In approaching a tug so engaged, the master of a steamer has a right to rely upon her obserrance of this duty, and the same precautions are not demanded of ^i"! as would be if no such obligation rested upon the tug^ On libel of Chester Kimball, for damages sustained by the steamtug J. D. Morton in a collision upon the St. Clair flats. At the time of the collision, which was on the 30th of August, A. D. 1856, the Morton was engaged in getting off the Torrent, which was aground upon the St. Clair flats, on the southerly side of the channel, and about a quarter of a mile from the lower end. The tug had taken a line about forty feet in length from the schooner, and was endeavoring by slackening and then going ahead at full speed, by a sudden jerk to start her off. The schooner Muskingum was also lying aground on the opposite or northerly side of the chan- nel, and to the southwest of the Morton. In pulling on the Torrent, the Morton was headed up and partly across the channel, although it was charged in the libel that there was a clear passage of ten rods wide between her and the northerly bank. BISTEICT OF MICHIGAN. 33 The Napoleon. While lying in this position, the propeller Napoleon came up the channel, passed to the northerly of the Muskingum, and ran into the Morton, striking her upon the port wheel nearly amidships, and doing her considerable damage. Mr. Geo. 8. 8wift, for libellant, cited Demies v. Mann, 10 M. & W. 546 ; The Batavi&r, 2 W. Kob. 407 ; Steamboat Go. V. Vanderhilt, 16 Conn. 420 ; Cvmrniitis v. Spruanoe, 4 Harr. 315 ; Brovmdl v. Flagler, 5 Hill, 282 ; The Qi/rolwmo, 3 Hagg. 169 ; Ralston v. The State Bights, Orabbe, 22. Mr. Levi Bishop, for claimant, cited Flanders' Mar. Law, 289, 299, 304 ; 1 Oonk. Ad. 370 ; The Genesee Chief, 12 How. 461. WILKIlSrS, J. The channel of St. Clair flats, where the collision in this ease occurred, navigable for vessels drawing ten feet of water, does not exceed 180 feet in width. There is some conflict in the testimony as to the exact position of the Morton, but I am satisfied she was not lying parallel or nearly parallel with the channel, as she could not in this position have worked to any adyantage in getting the Toz- rent off. Bearing in mind that the length of the Morton was 165 feet, and the distance between her stern and the bow of the Torrent 30 feet, she would naturally assume a position, in getting off the Torrent, that would throw her so far across the channel that it would be impossible for a tug, drawing so much water as the JS^apoleon, to pass her to the northward. I am satisfied that such was the fact. Of course, too, it would be out of the question for the UTapoleon to pass between the two vessels so long as the line was taut. Evidence was given of a custom for tugs, while working at vessels aground upon the flats, to give way upon the ap- proach of other vessels and permit them to pass. Consider- ing the number of vessels using the narrow channel, and the frequency with which they ground there, I think that good seamanship and the interests of commerce require that tugs, in assisting stranded vessels, should obstruct the navigation of the channel as little as possible, and should yield a right 3 34r DISTRICT COURT. The Napoleon. of way to passing vessels, even if they are obliged to desist temporarily from their efforts. Had this course been pursued by the Morton in the present case, the collision would have been avoided. While it is true her failure to do this would not have justified the Morton in running her recklessly down, or in omitting the observance of ordinary care in approaching her, still her duty to give way, and the probability of her so doing, ought to be taken in consideration in determining what would be ordinary care under the circumstances — in other words the master of the Napoleon had a right to suppose he would conform to this well known custom, and to rely upon his observance of it, and . would be excused from such precautions as would have been necessary had he known the Morton would not have given, way. As she approached the group of vessels in question, the iSTapoleon passed to the northward of the Muskingum, which lay nearly abreast of the Torrent, and a little to the north- ward of the centre of the channel, and as she passed her, her master hailed the Morton to stop his boat, back her, and let him go by. To this Captain Ejmball replied, " No, go around me ; " and when Capt. Pridgeon, of the Napoleon, again said, " I am drawing too much water, and can't go around yon," he still refused to move, and continued working his engine ahead. Seeing then that a collision was imminent, " Capt. Pridgeon rang his bell successively to check, stop, back and back strong. This was immediately done, and the wheel of the Napoleon was working backward at the moment of collision. If the Morton had backed at once when requested, and opened a passage-way, as she ought to have done, the Napoleon would have passed her without injury. There was not sufficient water for her to pass either to the southward of the Torrent or the northward of the Morton, and they were thus obstruct- ing the only available channel there was at that point. Bearing in mind that as against the Morton the Napoleon had the right of way, I cannot see that there was any orais- DISTRICT OF MICHIGAN. 35 The Sultana. sion of ordinary precautions on her part to avoid a collision, and she must therefore be exonerated from fault. lAhel dismissed. Note. — See 3%e Thomas A. Scott, post. THE SULTANA. MAHPH, 1858. Authority of Marshal to Repair. The marshal has no authority, as such, to direct repairs to a yessel beyond what are necessary to her preservation while in Ma custody; but if repairs are furnished upon the order of the master, the fact that he was, without the knowledge of the libellant, holding the vessel as custodian for the marshal, will not prevent a lieu attaching. LteEL for dockage and repairs. It appeared that the Sultana was brought to the dock about the 6th of December, A. D. 1856, and was taken in on the 8th under a contract be- tween the master and the libellant. The remaining facts ap- pear in the opinion of the Court. Mr. Wm. Gray, for the libellant. Mr. J. 8. Newberry, for claimant. _ "WILKINS, J. There is no doubt that the contract in this case was within the scope of the master's authority, and that the dockage was necessary, within the meaning of the law. The vessel had been seized under process of attach- . ment on December 1st, and at the time she entered the dock •36 DISTRICT COURT. The Sultana. was in custody of the marshal, who had constituted Captain Appleby ship-keeper, to hold possession of the vessel while awaiting the further action of the Court. Appleby was known to libellant as master of the vessel ; he was not known to him as the deputy of the marshal. He evidently made the contract with libellant as master, and riot as ship-keeper, as he had no right to do so in the latter capacity. Tyler, the deputy marshal, who had made Appleby ship-keeper at his own request, took possession of the vessel himself on the 15th of January, while she was still in libellant's dock. At the time the contract was made and the vessel entered the dock, libellant had neither actual nor constructive notice that Captain Appleby had any authority from the marshal to ■ hold possession of the vessel f on him. Such being the case, the Court will hold the vessel liable for the dockage and re- pairs furnished up to the 15th of January, when Tyler, the known deputy of the marshal, took possession of her. From this time libellant had notice that the vessel was in the custody of the law, and the subsequent repairs furnished by him constituted no lien. It is not within the power of the marshal to contract for repairs that are not absolutely neces- sary to the preservation of the vessel while in his custody. It is his duty simply to keep the vessel as he receives her, and he has no authority to expend money for alterations or repairs for the purpose of completing her equipment for navigation. The third and fourth items of libellant's account, amount- ing to $1,750, are disallowed, and a decree granted for the residue. Decree for libellant. DISTEICT OF MICHIGAN. 37 The Gem. THE GEM. MARCH, 1858. WHARrAOp. — ^Thk 12th Rule. Wharfage is the Tise of a wharf by a vessel for the loading or unloading of goods or passengers. Mere anchorage at a wharf is not wharfage. The use of a wharf is not " material " for a ship, within the meaning of the 12th Eule, nor is a wharfinger a material-man. The maritime law does not give a lien for wharfage. Theee libels bronglit to recover for the use and occupation (1) Of a wtarf at the foot of Woodward avenue, Detroit ; (2) Of a private wharf fronting certain lots of libellants, in Detroit ; (3) Of a wharf on the opposite shore of Detroit river, in Mr. Alfreds Russell, for libellant. Mr. John S. Newberry, for claimant. WILKINS, J. At the commencement of the argument of this ease, the procter for the libellant abandoned all claim for the use of the Canadian wharf ; and so far as the use of the wharf at the foot of Woodward avenue is concerned, the case was settled by that of TTie Empire State (1 Newb. 547). The only matter left for the action of the Court on these libels is the claim for the use of the private wharf of libellant, by the Gem, for certain days in the years 1866 and 1857. Wharfage may be claimed either upon an express or an implied contract : express, when a price is agreed upon for the use of the wharf, and implied, when used without such g,greement. Strictly speaking, it is money due, or money act- ually paid for the privilege of landing goods upon, or loading a vessel while moored, from a wharf. The occupation, by DISTRICT COUET. The Gem. anchorage or otherwise, of a navigable river open to all, in the vicinage of a v^harf, ■implies no contract of wharfage, because it is no use of the wharf for either the landing or the reception of passengers or merchandise. "Without determining the pre- ponderance of the testimony as to the controverted fact, whether this wharf was or was not used by the Gem, I am necessarily compelled to adhere to the opinion given by this Court in the case of The Asa R. Swift (1 Newberry, 553), which, until reversed by the appellate Court, must govern. The law of that case has not been reversed. An appeal was taken from the decree of the District Court, and a stipulation filed, by which two. legal propositions, embracing the merits of the case, were submitted to the Circuit Jiidge. The first was as to the extent of the lien conferred by the local law, and its enforcement in rem against a domestic vessel. The second, whether the fact that the steamboat had left the wharf with no effort on the part of the wharfinger to de- tain her, and with full knowledge on his part, precluded a recovery m rem. The case was argued on these propositions, at the session of the Circuit Court, in June, and held under advisement until the 5th of August, when the clerk of the Circuit was di- rected, by letter, to enter a decree reversing that of the Dis- trict Court, without stating upon what ground, or wherein, the District Court had erred. This is no reversal of the law as pronounced by the Dis- trict Court, nor is it possible to ascertain on which proposition the reversal is based. In The Asa B. Swift, it was held that the 12th Kule of the Supreme Court, having the force of a statutory provision, directed that " proceedings m rem shall only apply to cases of domestic ships where, by the local law, a lien is given to material-men for supplies, repairs or otlier necessaries." The statute . of Michigan gives a" lien for wharfage, but the statute of the United States inhibits the proceeding in this Court, limiting the same to domestic vessels where, by DISTRICT OP MICHIGAN. 39 The Gem. the local law, a lien is given to material-men for supplies, &c., and to none others. The District Court held : 1st. That the use of a wharf was not " material " for the ship. 2d. That a wharfinger was not a material-man. !ITeither of these propositions is denied by the Circuit Court. 3d. That the 12th Rule was obligatory as to the jurisdic- tion of this Court in such cases. This proposition is not over- ruled by the Circuit Judge in such clear terms as to warrant the application of such reversal to the facts of this case. 4th. Material-men are such as supply the materials for the construction or repair of yessels. A wharfinger cannot be so considered. He is only a lessor for the time being of a part of his real estate, to be used for moorage. He supplies the convenience of dockage and the facility of discharging passengers and freight, but no material for the use of the ship, within the spirit and intent of the statute. The appellate Coui't does not declare otherwise. All we are ahle to learn from the brief minute of the Cir- cuit Judge to the clerk is, that the decree is reversed, but no construction is given either to the local law or the statute of the United States. It is a reasonable presumption, that the appellate Court, ascertaining that the local law gave a lien for wharfage, at once applied it, without reference to the pro- vision of the 12th Kule, as declaratory of the enforcement of such lien. This Court will be guided by the decisions of the appellate . Court ; but, in order to apply those decisions to other cases, we must be satisfied that the law has been determined by the appellate power, as we cannot safely direct judicial action on mere conjecture. The Gem was a domestic vessel, and therefore governed by the 12th Eule — the Court holding that the use of a wharf is not material supplied to a vessel, and that a wharfinger is not a material-man. The facts, as viewed by the Court, would not have war- 40 DISTRICT COURT. The Hamilton Morton. ranted a decree for the libellant, but I prefer placing the diB- missal of the libel on the ground stated. Libel dismissed. IToTE. — I think the weight of more recent decisions is to the effect that ■wharfage is a maritime contract, and that a lien exists therefor, irrespective of the 12th Rule. This was probably the view taken by the Circuit Court in the reversal of The Asa R. Swift. See ?%e Kate Tremaine, 5 Ben. 60 ; Ex parte Lewis, 2 Gall. 483; The Phebe, "Ware, 360 ; The McDonough, Gilpin, 103. But see Delaware River Storage Go. v. Big,rk Thomas, 1 Am. Law Rev. 381 ; The Alexamder McNeil, 20 Int. Rev. Reo. 176. THE HAMiLTOlSr MOETO]!^. MARCH, 1858. Supplies bought for a Vessel lying at a distant Port. Where coal was bought for a tug, then lying at a distant port, by one who pur- ported to be the master and owner, held that the seller was bound to ascer- tain the extent of the purchaser's authority, and the necessity for the purchase of the coal. This was a libel for fuel furnished Oct. 27, 1857. It appeared, upon the trial, that one Isaacs, who held himself out as master and owner, ordered of libellants, at Cleveland, on Oct. 23d, 230 tons of coal, and, at Isaacs' request, the same was shipped by them,' upon the schooner Velocity,. con- signed to the tug Hamilton Morton, at Algonac, Michigan, Isaacs representing that he purchased it for the use of the tug. It was shown to be customary for masters of steam vessels to purchase large quantities of coal at Cleveland, and have it shipped to various ports upon the lakes, for their use. The coal was sold upon the credit of the tug, and not upon that of Isaacs, who was known to be irresponsible. It appeared, however, that Isaacs, though the owner, was not, in fact, the master ; that, on Oct. 24, the day after the DISTRICT OF MICHIGAN. 41 The Hamilton Morton. coal was ordered, and before it had all been shipped on the Telocity, the tug was seized by the marshal, at Detroit, for debt, and remained in his custody until she was finally con- demned and sold. The coal was never actually delivered to the tug, nor unladen by the Velocity at Algonac, but was carried by her from Algonac to Detroit, where it was sold by Isaacs. It also appeared that the purchases for the use of the tug were usually made by one Robinson, her master, and that Isaacs paid little attention to her beyond collecting her bills, Mr. Wm, Gray, for the libellants. Mr. W. A. Moore, for the claimants. WILKINS, J. The coal never was furnished the Morton. It was delivered by the libellants to the schooner Velocity, which was chartered by Isaacs, '(^aiming to be the master and owner of the Morton, which, at the time, was actually in cus- tody of the marshal of this District, and had been for four days previous thereto. Should the Court' decree in favor of the libellants, it must be entirely upon the very unsatisfactory testimony of Isaacs, which in its material facts, is contradicted by Robinson, who testifies that he was master of the tug until the close of navi- gation, made all her contracts, and, at the time Isaacs was negotiating with libellants, had purchased all the coal she needed while she was lying at Algonac. Independent, then, of the question raised as to the lien under the Ohio law, the proof would not warrant a decree against the vessel. The fact that, at the time the coal was ordered, the tug was lying at a distant port, should have put the libellants upon inquiry, and they were bound to ascertain the extent of Isaacs' authority, and to see that the coal was actually needed by the tug, IMel dismissed. 42 DISTRICT COURT. The Fame. THE FAME. DECEMBER, 1868. Forfeiture. — Duty op delivering Manifest. — Dnlading and Delivery. Where a vessel and cargo appears by her manifest to be consigned to an Amer- ican port, parol evidence will not be permitted to control the intention so expressed, and to show that the cargo was, in fact, destined to a Canadian port. Under the first section of the Act of 1821, the master of a vessel entering a port of the United States, with merchandise subject to duty on board, and consigned to such port, is bound to deliver his manifest, notwithstanding he may intend such merchandise to be returned to Canada. The transhipment of a cargo from one vessel to another, while lying at a wharf in port, is aii unlading and delivery within the meaning of the 50th section of the Act of 1'799. Innocence of an intent to defraud the revenue will not prevent a forfeiture where a violation of the statute is clearly proven. IiTFOEMATioN fop forfeiture. The fi/rst count charged a violation of the first section of the Act of March, A. D. 1821, in that the bark, being an unregistered vessel, imported and brought into the port of Detroit, from the province of Canada, certain liquors subject to duty, without a manifest of the same being delivered by the master to the collector nearest to the boundary line, or nearest to the waters by which the liquore were brought, but that the master passed by and avoided the office of the collector at which the manifest ought to have been delivered, &c. The second count was founded upon the 50th section of the Act of 1799, and charged that the same liquors were brought, by some person unknown, in the Fame, from a Canadian port to Port Huron, in the district of Detroit, and there unladened and delivered from her in the night time, without a license from the collector or other proper officer. DISTRICT OF MICHIGAN. 43 The Fame. The answer simply denied, in general terms, the allega- tions of the libel. The liquors were taken on board at Amherstburg, Canada, and were manifested to Detroit, although they were not, in fact, intended for exportation, but were designed to be deliv- ered at Sarnia and Goderich, in Canada. The Fame passed by Detroit without stopping, and arrived ?it Port Huron late at night, where the steamer Ploughboy was waiting to receive the liquors. Eflbrts were made to find an ofiicer of customs at Port Huron who could give a permit, but, owing to the lateness of the hour, they were unsuccessful, and the liquors were transhipped from the Fame to the Ploughboy without authority, and by the latter carried to Sarnia and Goderich and unladened. Mr. Jos. Miller, Jr., District Attorney for the United States. Mr. Zevi Bishop, for the claimant. Our defence is simply that the goods were not consigned to the United States ; that they were not imported into the United States ; that there was no intention to import them ; they were not landed ; they were not, therefore, subject to duty ; and they do not, therefore, cause a forfeiture, and none has, in fact, taken place. The facts are simple and are clearly proved. The goods were shipped at Maiden, consigned to another Canada port, but as the Fame only went to Port Huron, the instructions were to put the liquors on another boat, bound to the port of destination, which was done, and the goods were never, in fact, imported into the United States. The following authorities bear on the subject : A claimant may explain a. prima facie case against him so as to show his innocence, and that there is no cause of forfeit- ure {The Robert Epose, all the remedies incident to that jurisdiction. Chancellor Kent, in his commentaries, says that "whatever admiralty and maritime jurisdiction the District Courts possess, would seem to be exduswe, for the Constitution declares that %h.e judicial power of the United States shall extend to all cases •of admiralty and maritime jurisdiction ; and the Act of Con- egress of 1789 provides that the District Courts shall have ex- clusive original cognizance of all civil causes of admiralty and maritime jurisdiction" (3 Kent Com. 337). This broad constraction of the admiralty power was sup- posed to be justified on the authority of the case of Martin v. sEunter's Lessee (1 Wheat. E. 304), where it is said that "the words 'judicial power shall extend,' &c., were imperatiVe, and that Congress could not vest any portion of the judicial power •of the United States, except in Courts ordained and estabKshed by itself." But more recently, this doctrine has been somewhat t^ NORTHERN DISTRICT OF OHIO. 99 The Isabella. . stricted in its application. Judge Story has given an interpre- tation to the Constitution not precisely in accordance with pre- vious adjudged cases. He says, " the admiralty and maritime jurisdiction was intended by the Constitution to be exactly as extensive or exclusive, and no more so, in the national judi- ciary, than it existed in the jurisdiction of the common law ; and that where the cognizance of admiralty and maritime cases was previously concurrent in the Courts of common law, it re- mains so (Story Com. Const. 533). And this interpretation of the Constitution was referred to with approbation by Mr. Justice Campbell, in giving the opin- ion of a majority of the Court in the late case of the Koyal Saxon. So that we suppose, the authoritative doctrine, as to the concurrent jurisdiction of the State Courts of cases cognizable in the admiralty, is this : The State Courts may exercise the jurisdiction in cases of which the cognizance was concurrent in the courts of common law previous to the adoption of the Constitution ; and this is the full extent of the concurrent au- thority of the State Courts ; and further than this those Courts have no power to act in such cases. On a contract for mariner's wages, the seaman, who has rendered the maritime service, may prosecute his suit against the master or the owner of the vessel, in the State Courts, un- der the common law forms of process, and in the common law modes of procedure ; because in this way a competent rem- edy is furnished according to the practice and usages of the common law. This is doubtless what was contemplated by Congress, in the saving clause inserted in both the Acts of 1Y89 and 1845, to wit : " Saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." This is a concurrent remedy with that which the seaman has in a Court of Admiralty, by process in rem against the vessel in virtue of his maritime Ken, or by process in personam against the master upon the maritime contract. But the State Legislature cannot confer admiralty jurisdic- 100 DISTEICT COURT. The Isabella. tion upon the State OourtB, or authorize admiralty proceedings vrvrem to enforce maritime Kens. This power, by the Consti- tution, is given to the General Government, and its exercise confined exclusively Tvithin the jurisdiction of the Federal Courts. It is, however, urged, that a quasi admiralty proceeding in, rem is authorized, to enforce a maritime hen in the State Courts, by virtue of the additional saving clause in the Act of Congress of 1845, to wit : " And saving any concurrent rem- edy which may be given by the State laws, where such steamer or other vessel is employed in such business of commerce and navigation." We had occasion, in the case of Revenue Cutter No. 1 (re- cently decided), to notice the purpose and effect of this Act of 1845, and to trace the authority by which it was passed, to the provision in the Constitution which empowers Congress " to regulate commerce with foreign nations, and among the several States." The framers of the law evidently proceeded with great caution, and with doubts and misgivings, as to the authority of Congress to pass the Act under the commercial power in the Constitution. And, indeed, it would seem inconsistent with the ordinary meaning of words, to call a law, defining the jurisdiction of the District Courts, a regulation of commerce.^ The jurisdiction of the Courts, and the regulation of commerce, are separate and distinct matters, having no necessary connec- tion with, or dependence on each other. And the fixed con- stitutional limits to the judicial authority of the Federal Courts would seem to form an insuperable objection to this- law, if its validity is made to depend upon the commercial power. It was evidently this apprehension of the want of authority in Congress to pass the Act, and the consequent diflSculties anticipated in the prosecution of suits under it, that induced the insertion of the provisions in relation to the trial of facts by a jury, and the reservation to the State Courts of the cogni- NORTHERN DISTRICT OF OHIO. 101 The Isabella. zance of cases that might (in matters of doubt) come under their jurisdiction. It is very clear that this law was not intended to recognize, in the State Court's, the right, or to confer upon them the power to exercise admiralty and maritime Jurisdiction ; and for the simple reason that Congress, under the Constitution, has no authority to make the grant. We now proceed to inquire into the effect of the libellant's suit and judgment in the State Court. Do those proceedings preclude his right to prosecute his claim and enforce his lien in a Court of Admiralty ? The libeUant obtained his judgment in the State Court under and by virtue of the Act of the General Assembly of the State of Ohio of February, 1840, entitled " An Act to provide for the collection of claims against steamboats and other water crafts, and authorizing proceedings against the same by name." <38 Yol. Stat. 34.) The first section of this law designates for what and whose account steamboats and other water crafts navigating the waters within and bordering upon this State, shall be liable, and as substantially re-enacted by an amendatory Act of April 12, 1858, reads as follows : " That steamboats and other water crafts, navigating the waters within, or bordering upon this State, shall be liable, and such liability shall be a lien thereon, for debts contracted on account thereof, by the master, owner, steward, consignee, or other agent for material, supplies or labor in the building, repairing, furnishing, insur- ing or equipping the same, or due for wharfage , and also for any damages arising out of any contract for the transportation of goods or persons, or for iujuries done to persons or prop- erty by such craft, or for any damage or injury done by the captain, mate or other officer thereof, or by any person under the order or sanction of either of them to any person who may be a passenger or hand on such steamboat or other water -craft at the time of the infliction of such damage or injury ; Provided, that the lien by this section created shall only attach to vessels of twenty tons burden and upwards, enrolled and 102 DISTRICT COURT. The Isabella. licensed for the coasting trade, according to the Act of Con- gress." The second section provides, that any person having such demand may proceed against the owner or master, or against the craft itself ; and the fourth section provides, that when, proceedings are had against the craft itself, the process shall be by warra/nt of seizure. The Act of March, 1848, explanatory of this statute, de- clares, that it shall be competent for a person holding a claim against any such vessel, to proceed against the vessel by name,, " notwithstanding the cause of action may have accrued beyond or out of the territorial limits or jurisdiction of this State, and although mich craft may not have been, at the time such cause of action accrued, navigating the waters within or bordering upon this State ; Provided, that no claim or cause of action arising or accruing beyond or out of the territorial limits or jurisdiction of this State (under the provisions of the Acts of which this is explanatory), shall be permitted to attach or operate to the prejudice of any hona fide purchaser of such craft not having notice of the existence of such claim or cause of action." (46 Vol. Stat. Y8.) .These Acts of the General Assembly of the State of OhiO' are in derogation of the common law. They are without pre- cedent as to forms of process, or in modes of proceeding in any practice or usage kaown to the common law. They afford remedies, which it is doubtless competent for the State Legis- lature to give upon contracts, and in relation to torts affecting- water crafts within the State, and which are not subject to the admiralty jurisdiction. But further than this, they can have no binding effect or legal operation. They can give the State Courts no jurisdic- tion over the mariner's lien for his wages upon vessels engaged in commerce and navigation between different States, or those engaged in the foreign trade. They purport to give the State Courts authority to proceed in rem, and to designate the order and priority of maritime liens in direct violation of the well- settled principles of the maritime law. They undertake to NORTHERN DISTllIOT OF OHIO. 103 The Isabella. afford remedies which it is not competent for the common law to give, and those also which it is not within the province or jurisdiction of the State Courts to enforce. Courts of Admiralty are careful to see that the mariner's Hen is not destroyed by the proverbial improvidence of the, sailor. And as this lien is a paramount claim upon the vessel, whoever owns such vessel, or how often soever the ownership may be changed, wherever she may go, and whatever may be- fall her, so long as a plank remains of her hull, the seamen are the first creditors, and she is privileged to them for their- wages. Nor can this lien be affected or destroyed by any pro- ceedings of the common law Courts. The purchaser, at a ju- dicial sale under such proceedings, takes the property cum onere. In the ease of Poland v. Brig Spartan (Ware's E. 134), it was urged (as it has been insisted in this case), that where different, creditors are each pressing their own rights against the vessel in different Courts, -the rule should be, to give pre- cedence to those who first lay their hands on the fund. And this was urged upon the plea of preventing a conflict and collision of judicial authority. The learned Judge of the Dish trict of Maine, in that ease, held that, as the mariner's lien was privileged, its very essence was to give a preference over the general creditors of the debtor. And that if such be the claim of the seamen, the attachment (under the State process) only created a lien on the property subject to such prior in- cumbrance, and consequently could, only create the. right to hold the specific property after discharging the lien. So, too, in the case of certain Zogs of Mahogany (2 Sum. E. 692), Mr. Justice Story says, that " a suit in a State Court, by an attachment under process of the property, can never be admitted to supersede the rights of a Court of Admiralty to proceed by a suit m rem to enforce the right against that property, to whomsoever it may belong." " The admi- ralty suit (he says) does not attempt to enter into any conflict with the State Court, as to the just operation of its own pro- 104 DISTRICT COURT. The Isabella. cess ; but it merely asserts a paramount right against all per- sons whatever, whether claiming above or under that process." This doctrine is not at all contravened by the decisions of the Supreme Court in the cases of Hagcm v. Lucas (10 Peters, 400), and Taylor et ctl. v. Cwrryl (20 How. 583). ' The principle established by these cases is simply this: When property is seized by a sheriff, under process from a State Court, so long as it remains in his possession thus ac- quired and held, it is in the custody of the law, and cannot be again seized when so held, upon process issuing from a Court of another jurisdiction. This is the full extent of the principle maintaiued by these cases. And in the latter case on the question of the right of the marshal to execute the process of seizure from the ad- miralty, and take a vessel thus held by the sheriff, the mem- bers of the Court were very near evenly divided in opinion, four of the judges insisting that the admiralty process was paramount in authority, and should be executed, notwithstand- ing the vessel was, at the time, thus in the custody of the law. In the case before us, the libellant's claim for wages against the brig was not merged iu the judgment obtained in the State Court under the Ohio water-craft law. Nor was his hen in any way affected by those proceedings ; and for the plain reason that his maritime hen was a right which the State Courts had no authority to enforce by a proceeding in rem; nor was the lien itself a matter within the cognizance of those Courts. And hence, the judgment was void for the want of jurisdiction in the Court which rendered it. The exception to the claimant's answer must, therefore, be sustained. Decree for liieUant. DISTRICT COURT. EASTERN DISTRICT OF MICHIGAN. Hon. ROSS WELKINS, District Judge. THE DOUGLASS. MARCH, 1863. Collision. — Lookout. —Sailing Vessels. — Evidbnob. — Admis- sions. In a collieion between two sailing vesaelB, one close-hauled and the other with the wind free, the latter was held in fault for an insufficient lookout, and for failing to give way in time. A lookout must be constantly at his post, and must not be interrupted in the performance of his duty. But little credence can be given to the testimony of a sailor who contradicts statements deliberately made by him, in writing, immediately after the collision. Great weight should be given to the admissions of the master of a colliding vessel, though not upon deck at the time of collision, who states to the in- jured party that his own vessel was in fault, and promises to pay the dam- ages done by her. Libel and cross libel for collision between the schooners Douglass and White Cloud, in the passage between Pointe au Pelee and Pointe au Pel6e Island, in Lake Erie, on the morn- ing of 'July 6th, 1861. The Douglass was bound from Oswego to Chicago, and at the time of the collision was sail- ing upon a W. IST. W. course, having the wind free and nearly abeam. The White Cloud was at the same time bound down the lake, upon an E. S. E. course, close-hauled upon the star- board tack. The night was dark but clear, and lights could 106 DISTRICT COURT. The Douglass. readily be discerned. It was averred on the part of the Doug- lass, that the White Cloud had no light and no proper lookout. This was denied on behalf of the White Cloud, and the fault charged upon the Douglass, that she had no proper lookout, and failed to give way as by law she should have done. Mr. J. S. W&wherry, for the AVhite Cloud. . Mr. W. A. MooreyioT \h.e Douglass. WILKINS, J. From the closest attention to the proofs on trial, and the application of the rule of law governing the facts unquestionably established, I am clearly satisfied that there was no fault in the White Cloud. In her navigation she kept her course as was her duty. She was heading E. S. E. on the starboard tack, by the wind, which was south, close-hauled, with a bright light burning, sufficiently admonitory to all ap- proaching vessels that were vigilant and kept a proper look- out; her speed was about six miles an hour; a competent crew was on duty. The last fact has been unsuccessfully con- tested, and had it been otherwise, the incompetency alleged would be of no weight, beyond a mere presumption, clearly rebutted by the preponderance of testimony, as to her keeping her course until the very moment of collision. But little reliance can be placed on the witness John Clan- cey, the lookout on the White Cloud, whose voluntary state- ment, reduced to writing a few days after the event, in the presence of his shipmates, fully agreeing with them in their account of the occurrence, does by no means, in this essential particular, correspond with his evidence as a witness on the stand. It is safer to trust to the narrative of a sailor, made when all the incidents were fresh in his memory, than con- demn on testimony given a year subsequent, and after appU- anees brought to bear upon him, probably superinducing a contrary statement. Suspicion will attach under the circum- stances, especially where he is brought to give evidence against his own vessel, impeaching the credit of his first story. EASTERN DISTRICT OF MICBIGAS-. 107 The BouglBBa. No fault therefore can be attributed to tbe management of the White Cloud. Had her crew been inexperienced, and that had produced the collision ; or if the wheelsman had been incompetem, and his unskillful steering had caused' the calamity; or if her light had been obstructed for a moment, which does not clearly ap- pear, and in consequence she had nm into the other vessel, such showing would place her in fault. But such was not the case ; the vessfel was managed well, her light was bright, and although the wheelsman was young and inexperienced, the rule of the road was strictly observed. Incompetency or negligence must be such as to cause the collision, and fault cannot be imputed where the law of navi- gation has been followed. This determination leads to the next question, viz : Was there fault in the Douglass ? It occurred to the Court, during the progress of the trial, and from the evidence of the first mate of the Douglass, that such must be the conclusion reached, and that the proofs would not warrant a decree of inevitable accident. In cases of this description, there is usually much conflict- ing testimony. Hence the Court should exercise every caution in scrutiniz- ing evidence, and sift as well as weigh the proofs. On the night in question, the Douglass was sailing up the lake, bound from Oswego to Chicago, freighted with iron, and was passing through Point au Pelee, with a free wind, her course W. N. W., and her speed about seven knots an hour. Her captain had retired, leaving the charge of the deck with the first mate. White, and a competent wheelsman, look- out and deck hands, unsuspicious of danger. The mate was beguiling the passing hour with humorous narrative to the wheelsman, when his attention was suddenly called to the light of the White Cloud, and he ran forward exclaiming : " Where the devil is the lookout?" In haste, he gave the nec- essary order to " hard up," but immediately reversed the same 108 DISTBICT court; The Douglass. in the fright and confusion of the moment. His order to port -was too late. The peril of navigation by night, on ocean, lake and river, whetlfer by steam or canvas, demands constant and uninter- rupted vigilance. The officer of the deck is bound to be act- ive ; the lookout must be vigilant, and the wheelsman, who has charge of the helm, must not be disturbed in his duty. Their appropriate responsibilities are incumbent upon each, but the deck officer, for the time, supervises all. The distraction or perversion of the attention of either lookout or wheelsman, by the master or mate, leading to a neglect of duty and consequent collision, places the vessel in fault, and makes the owner and master responsible. The duties of lookout and wheelsman demand constant vigilance. The one must give timely warning of approaching peril, and ihe other must be ready to respond to the appropriate order of the master of the deck. To the subordinates, in particular, are intrusted the lives and property on board. Was this vigilance exercised ? The night was clear, wind favorable (a light southerly breeze), and objects at a distance easily discernible. Both ves- sels were on the same line, moving in direct opposition, and at a speed of sis miles an hour. The Douglass, sailing with the wind, was bound to steer clear of the White Cloud ; the latter was not discovered by either the mate, wheelsman or lookout of the Douglass, until she was twice her length off, and a col- lision inevitable. No matter how experienced a sailor was the mate, White, or how trustworthy as a sober man, he neglected his duty at this crisis, and occasioned the neglect of duty on the part of others, until it was too late to escape the peril. A vessel is not free from blame when either the important functions of a lookout or wheelsman are causelessly inter- rupted, and proper care by the commander will always forbid and prevent such interruptions. The duty of lookout impUes vigilant and constant observation, which cannot be faithfully discharged if subjected to the slightest interruption. EASTERN DISTRICT OF MICHiaAN. 10& The Douglass. In determining the prominent facts, I have carefully con- sidered the proofs on both sides and have no donbt as to those upon which the opinion is based. This was strengthened greatly by the declaration of Captain Turner, to Mr. H. N. Strong, on the 8th of July, twenty-four hours after the colli- sion. Captain Turner was not on deck, his watch having ex- pired a moment before the collision. When he retired he left all well, and therefore knew noUiing of the incidents or cause of the disaster. His information was unquestionably received from his mate, and his judgment formed from his and the statement of others. His naatical experience apprised him where the fault lay, and with this knowledge, he calls on his arrival at Detroit, upon Mr. Strong, and states " that the Douglass was to blame ; that he had written to his owners to that effect, and that he would be here and settle the damages. That it was the most lubberly piece of business he had ever known, and that his mate had seen the White Cloud light, which was a good one." When Mr. Strong thus testified, I could not regard it other- wise than as a truthful though fatal admission of Captain Turner. Independent of the character and well-known respect- ability of the witness, his statement bore internal evidence of truth, not impaired by the denial of Turner, " That, to hia recollection, he never made such statement." Mr. Strong is positive : Turner prevaricates. The one is unimpeached, the other is proved to have made contradictory statements to Cap- tain Elsie, and his own accotmt of the motives of his visit to Strong and Elsie, shake the credence which otherwise might have been bestowed upon his denial. That he made the declaration, I entertain no doubt, and I think it settles the controversy. The admission of a seaman of experience and intelligence, based upon the statements of his mate and crew, made at the very time of the occurrence, thus passing judgment upon his own vessel, and attributing the Calamity to its mismanagement, render almost unnecessary further examination of the facts ; for, who is better able to judge than such an expert with the facts fresh before him ? 110 DISTRICT COUET. The Zouave and Bich. But the proofs presented other points, and the Court eoiild not ■withhold the expression of its opinion as to the character of the fault that makes the Douglass responsible. Decree for libellant. THE ZOUAVE AND KIOH. MARCH, 1864. Collision. — Duties op Tugs aiid Tows. The contract of towage implies knowledge of the channel and safe pilotage. Good seamanship requires that vessels of heavy draft should be placed behind those of lighter draft. An improper order given in a moment of imminent peril is no fault. Libel by John Kilderhouse, owner of the schooner Arnold, against the tug Zouave and the schooner Eich". The facts sufS- ciently appear in the opinion of the Court. Mr. Alfred Russell, for libellant. Messrs. J. 8. Newberry andTT. A. Moore, for the Zouave. Mr. A. W. Buel, for the Kich. WILKIISrS, J. This was a collision on the St. Clair Flats, caused by the grounding of libellant's vessel by the tug Zouave, in consequence of which the Kich, which was second in tow, ran into her, occasioning considerable damage. At the close of the evidence, I entertained no doubt as EASTERN DISTRICT OF MICHIGAN-. Ill The Zouave and Rich. to the Eich, but deemed it best, as well as courteous to the counsel, to reserve an opinion until the entire case should be heard. The Zouave had taken the Eich first in tow at the head of the river, when, subsequently, the Arnold, of greater draught, appeared, and by direction of the master of the tug, the posi- tion of the Eich was changed, and the Arnold was placed first and the Eich second. It is clear, that had the Eich been kept in her original position, there would have been no collision — she would not have been forced into the Arnold, and, there- fore, the stranding of the latter, however it might have affected the other vessels in line, would not have occasioned the collis- ion by the Eich. Having contracted for safe towage, the Eich was imder the control and government of the tug, and her duty was simply to follow her lead, obey her direction, and faithfully submit to her guidance. The contract of towage comprehends safe pUotage, es- pecially through the perilous passage of the St. Clair Flats, where the channel is narrow and requires the greatest pre- caution. The contract embraces more than mere progress against adverse wind, or. the supply of speed, when there is no wind. The tug is presumed in the undertaking she makes, to know the channel and all its perils, and engages to take her tow line safely through. It comprehends knowledge, caution, skiU and attention. The proofs show that the Eich was of less draft than the Arnold, and had her position in line remained unchanged, she would not have stranded, whether or not the Zouave was in the channel. Placing her in the rear of the Arnold, was the act of the Zouave, with the presumed knowledge of the risk to be incurred, and not the act of the Eich. But the Court holds further : That there was no fault in the Eich as to the order given, even if, under the excitement of the moment, that order was improper. The peril was sudden and imminent. She was in great danger both in front and rear, with little, scarcely a mo- ment's, time for consideration ; and, as was strenuously urged 112 DISTRICT COUET. The Zonare and Rich. and admitted in the case of the White Cloud, an improper order given under such circumstances, is not to be considered a fault. She had a full complement of men, and every man was at his post. The tow line was going at the rate of five miles an hour. The danger was immediately perceived by the lookout of the Eich, immediately reported, and the order as immediately given. Neither is it so very clear that this order was not the best under all the existing circumstances. The Penfield was coming upon her, within 110 feet, and affording but a few seconds to her captain to determine how his vessel should escape from the danger in which she was placed by the strand- ing of the Arnold. ^ The expert testimony differs as to the proper order under such circumstances, yet the testimony of the officers and crew, also experts, under whose personal observation the facts occur- red, is much more satisfactory and reliable on this question than that of others, however learned in the theory and prac- tice of navigation, who were not present at the time, and could not see all the incidents as they actually occurred at the crisis. Hypothetical proof, though drawn from experience,. is not as satisfactory in cases of this kind as the observation of experience on the spot and at the time. But, be the order given strictly right or wrong, it was nec- essarily given on the instant, under great peril, and for self- safety, and, therefore, was no fault. It would be gross injus- tice to punish the Eich in damages, when the propelling power of the Zouave, the force of the current, and the stranding of the Arnold, placed her, unwillingly, in the great peril to which she was so suddenly exposed, and under which an order, at least of only doubtful propriety, was given. At best, it was scarcely possible for her, under the speed and space that has been established by the proofs, to escape being run into by the Penfield, running ashore, or colliding with the Arnold. Self- safety was with her the paramount law. The case of the Morton has been dted. Though some- what similar, it is not exactly this case. There was proof that EASTERN DISTRICT OF MICHIGAN. 113 The Zouave and Rich. the collision could liave been avoided in that case by the proper management of the stranded vessel, and the Court then held, and now holds, that vessels in tow have duties to perform, the neglect of which, if causing a collision, would release the tug. They must exercise the proper care for self-preservation, obey the directions of the pilot, in emergency give proper orders, and are certainly not discharged by their contract from all duty. The Rich, as the proofs demonstrate in this case, was vigilant, prompt, careful and obedient, and the mere proba- bility of her escaping a collision by a different order than that given, does not place her in fault. There must be a reasonable certainty to convict. Keleasing the Kich from the allegations of the libel, the Zouave must be held responsible, unless the collision was an inevitable accident, for I do not deem the Arnold in fault. Her crew was competent, she obeyed the orders of the pUot, followed her lead, practiced no deception as to her draught, .and, when taken in tow, was open to the inspection of the master of the Zouave, who, knowing the channel and its depth, made his contract accordingly. Unavoidable accident is an event unexpected by human experience, not the act of man or man's agency, as a sudden storm of wind, or a stroke of light- ning. Unforeseen peril, that which cannot be calculated by human science or experience, can only make a collision on lake or river an unavoidable accident. Such, certainly, was not the case here. It is established by the proofs that the Arnold was the ves- sel of the greatest draft in the whole line, and therefore more apt, in shallow water, to run aground. Placing her first im- periled the rest as well as herself. She ought to have been .placed last. This good seamanship required. The master of the Zouave so testifies, but he omitted this very obvious duty so essential in order to secure the Arnold's safety. The collision occurred from her running aground, and had she been last instead of first, it certainly would not have occurred. This arrangement of the tow line was a primary 114 DISTRICT COURT. The Zouave and Rich. fault in the tug, and independent of the other circumstances in the case, renders her liable. In the contract of towage, the tug master is bound to arrange his vessels in tow, with the view of securing the safety of all with whom he contracts, and no reckless and unsanc- tioned usage on the part of tug masters will be allowed to modify such a salutary rule for the protection of life and prop- erty. Furthermore, the Court is satisfied from the proofs, that the Zouave was not in the proper channel when the Arnold stranded. She was too far to the eastward. The Naomi and the Two Fannies, of equal, if not greater draft, passed the Arnold to the westward, while she lay aground. She was pulled off to the westward when extricated, found water suffi- cient, and her mate states substantially that he ported his wheel shortly before the stranding, unquestionably with the view to keep in the channel, as she evidently was not then in the middle of the channel, but kept so close to its eastern border, if not outside, as to lose the depth of water necessary for the Arnold. This was not the skillful navigation for which she contracted. And, if before the collision, she was in the chan- nel, there was no sufficient excuse for varying her course from the obscuration of the ranges. The wind was down the river, and if the ranges were obscured at all it waa but for a short time that the obscuration existed. The master and the mate of the Rich state that the ranges were obscured but a few moments, and the tow carried no canvas. An unusual ob- scuration might excuse and make the collision unavoidable, but such a difficulty should always be anticipated and provided against by skillful tug masters, who should then slacken speed and proceed with greater caution. Decree for Uiellarii. NoTK— The case of the Morton, cited in this opinion, was reversed on appeal See post, p. ISY. EASTERN DISTRICT OF MICHIGAN. 115 The Nabob. THE IfABOB. APRIL, 1864. Collision. — Eight of Alien Owner to Sub. — When Foefbiturb BEOOMBS Operative. — Tuo and Sailing Vessel. — Lookout. The fact that prior to the collision, an interest in the injured vessel had been transferred to an alien, and a forfeiture thereby incurred, does not preyent such alien owner from joining in the libel, the forfeiture never having been judicially declared by a condemnation. A tug having vessels in tow, when meeting a sailing vessel, is subject to the rules applicable to ordinary steamers. A tug having only a mate and wheelsman on deck is insufficiently manned. A lookout is absolutely necessary. Libel and cross libel for coUision. The Ubel was filed to recover damages from the owners of the Nabob, for colliding with and' sinking th^ steamtug John Martin, the alleged property of the libeUants. The schooner Nabob was on her voyage from Buffalo to Milwaukee. Hav- ing been towed out of St. Clair river into Lake Huron, on the evening of May 16th, 1863, she anchored in the lake for want of wind to continue her voyage. She remained at anchor un- til midnight, when she again started on her voyage up the lake, her course being north by west, for Pointe aux Barques. The tug John Martin, engaged in the business of towage, and in search of vessels in Lake Huron, took in tow the bark British Lion, a short distance above the village of Lexington, and about thirty miles from the River St. Clair, and headed for the river, designing to procure other vessels, which she ex- pected on her way down, her course being south or about south half east, and four miles from shore. Just about daybreak she was run into by the Nabob, which struck her amidships, and so forcibly that she immediately went to the bottom. It was further, alleged and proved, that the tug John Mar- tin having been duly enrolled and licensed, was in January, 1863, transferred in part by John Pridgeon, her owner, to 116 DISTRICT COURT. The Nabob. William K. Muir, one of the libellants, who was at the time a subject of Her Britannic Majesty ; that subsequent to her en- rolment and license as the sole property of Pridgeon, libellants knowingly and unlawfully used such enrolment and license, together with the custom house certificate thereof. It was also admitted upon the trial, that Pridgeon made oath at the custom house, in Detroit, that he and Muir were both citizens of the United States, and not subjects of any for- eign power. This oath was not true, as Muir had never been naturalized, but had simply declared his intention to become a citizen, though Pridgeon had taken the oath under the erro- neous impression that his declaration of intention, had actually made him a citizen. Messrs. W. A. Moore, Wm. Gray, H. S. Emmons, Geo. Jerome and Geo. V. N. Lothrop, for the libellants. Messrs. J. 8. Newberry apd Alfred Russell, for the re- spondents and cross libellants. Pridgeon and Muir, at the time of the collision, and at the time of bringing suit had no title to the tug John Martin. The title was in the United States. (1) The evidence shows that John Pridgeon sold one-third of the tug (being then an enrolled and licensed vessel) to Muir, who was then a British subject. This forfeited the vessel (Brightly's Digest, p. 149, see. 46 ; Act 1Y93, § 32 ; Brightly's Digest, p. 829, sec. 16 ; Act 1792, § 16). (2) On April 28th, 1863, Pridgeon took and subscribed an oath at the custom house, stating Muir to be a citizen, which was not true, and obtained a new enrolment and license upon the oath. This forfeited the vessel (Brightly's Digest, p. 824, sec. 4; Act 1T92, § 4). (3) No title passed to Muir by the sale; he was a for- eigner — incapacitated to receive a title to an American built vessel—consequently, as one of the joint libellants never had any title to the tug, the suit must fail. EASTERN DISTRICT OF MICHIGAN. IIY The Nabob. (4) Pridgeon's title was divested from him and vested in the United States at the moment of sale to Muir, so that neither libellant had title to their interest. ■ In TJ. S. V. 1960 Bags of Coffee (8 Cranch, 405), it was held that a sale to a 'bona fide purchaser for valae without notice did not prevent condemnation (See also Copk. Treat. 3d ed. 526, and cases cited ; Gelston v. Hoyt, 3 "Wheat. 311 ; Cald- well V. JJ. S. 8 How. 366, 381 ; MoLame v. U. 8. 6 Pet. 437). No proceedings to condemnation are necessary to effect a change of title — ^in fact the United States never get any record or paper title {The Floremo, Blatch. & How. 52). WILKINS, J. The severe penalty prescribed by the statute was undoubtedly intended to prevent false swearing in taking the oath necessary to obtain enrolment, and the fact that the oath was taken in haste and in ignorance that Muir had only declared his intention of becoming a citizen, would be no excuse in a prosecution for a forfeiture. By the Yth section of the Act of 1792, in regulation of the coasting trade, the certificate of enrolment is to be solely used for the vessel for which it is granted, nor can it be sold or dis- posed of to any person whatsoever, but. shall be delivered up under the circumstances described, to the collector of the dis- trict ; and if any foreigner shall purchase the whole, or any part of the ship, the delivery of the certificate shall be made within seven days. By the 16th section, if such sale be made to a foreigner, and be not reported and made known, such ship, her tackle, apparel and furniture shall be forfeited. This section clearly contemplates a trial before the forfeiture is incurred. The proofs establish the fact that, previous to the collision, one-third of the John Martia was conveyed by Pridgeon, one of the libellants, to the other libellant Muir, and that Muir was not then, and is not now a citizen of the United States. It is contended by the claimants that, by this alien owner- 118 DISTRICT COURT. The Nabob. ship, the tug was eo instanti forfeited to the United States, and that one of the libellants having no title, this action cannot be maintained. The case of the Mohawk, though not exactly this case, was a proceeding for a forfeiture under the Act of 1792. There was, however, a subsequent purchaser, without notice and before condemnation, whose interest was involved in the controversy. This, however, is a case of collision, by which a trespass was committed by the claimants, and for which damages are sought to be recovered. The res, though forfeited under the Act of Congress, yet that forfeiture never having been enforced by the Government, nor the vessel seized, it has remained in the possession of its alien owner. No information was made until the close of this trial, and the Government has since re- mitted the penalties. It is true the language, " shall be for- feited," is positive ; but the forfeiture was never judicially consummated, nor the vessel condemned. It is true the libel- lants, being the transgressors, cannot plead want of notice or ignorance of the act whereby the forfeiture was incurred, but they were still in possession at the time of the trespass ; no right or title had been asserted by the United States, which might never see fit to enforce the forfeiture ; and, until the assertion of a claim, the res remains under the protection of those in possession, who, at least, have a quasi title that would sustain an action of trespass against a wrong-doer. Whether there was a forfeiture or not is an issue not to be tried in this case. Under the Act of 1Y92, 1 am satisfied that no forfeitiu-e is consummated until decree of condemnation. Where such decree is pronounced, it will, according to circumstances, mod- ify or control subsequent transfers. The Bags of Coffee Case, 8 Cranch, 398, involved the validity of a sale after forfeiture, though the purchase was made in good faith before condemna- tion. The question arose as to the title of the purchaser as against the United States, and it was held the condemnation consummated the forfeiture. This case certainly does not apply to the facts now before the Court, as there has been no EASTERN DISTRICT OF MICHIGAN. 119 The Nabob. decree, and, by the act of th^ Government in omitting to pros ecute, the owners implicated in the ofEence remained in posses- sion until the collision. The case of Gelston v. Hoyt, 3 Wheat. 311, simply exon- erated the oflScer from trespass in making the seizure, but held him to respond in damages where no forfeiture was proved at the trial, and no certificate of probable cause given. In Caldwell v. United States, 8 How. 366, the rule is clearly stated, that the United States acquires no title by the mere forfeiture, but, in order to avoid sales between forfeiture and decree, the latter has relation back to the offence. There must be a consummation by judicial decree to vest title in any one as against the owners. If otherwise, how can the ship be protected? Is she to rot at the wharf until prosecution is commenced ? Is she to be abandoned when no one claims her possession ? When negligently damaged by others, who is to sue for recovery ? What provision thus makes the vessel an outlaw ? I do not think the Act, in directing a prosecution and trial, contemplates an instantaneous forfeiture upon the com- mission of the offence, and therefore hold that the libeUants are rightfully in Court. This collision occurred in Lake Huron, the Nabob being on a northerly course up the lake, and the Martin with her tow steering south by east, and bound for the Kiver St. Clair. It is conceded that if the Nabob, being a sailing vessel, kept her course, she was not in fault, and the Martin is responsible. This is a simple question of fact. Much time was consumed in the examination of the proofs, as to the direction of the wind, though not with a view to an argument that if the wind was not free to the Martin, she is measurably exculpated. To such a proposition I could not assent for one moment. The Martin was propelled by steam power, and, whether the wind was free or not, she must avoid a sailing vessel, the law considering the propulsive power of a steamer as tantamount to a free wind. But the direction of the wind becomes im- portant simply in regard to the course of the Nabob at the time of collision ; for if the Nabob, after weighing anchor. 120 DISTRICT COURT. The Nabob. took her course after midniglit north, by west, with the wind west southwest, she had a free wind, and could easily keep her course ; but otherwise, if the wind was north of west. Upon this point the proofs were conflicting, and to so great and so painful an extent that the Court is compelled to believe that there is either willful perjury on one side or the other, or that the wind, within the period of half an hour, was most wonder- fully capricious. There is great difficulty in the settlement of facts where the crews of antagonistic vessels come in conflict in Court. Abeel, the second mate of the JSTabob, swears that the wiad was W. N. W. when he made the light of the tug, and he is followed by Byron, Clancey, Willes, and Bensly, of the crew of the Nabob ; while Barret, Allen, Dumass, and others, of the Martin and Lion, swear as positively to the wind being W. S. W. But it has been settled, in the case of the Genesee Chief, that the crew of the sailing vessel, as to the direction of the wind, is most entitled to credit. Hilson, the captain of the Nabob, whose calm and deliberate manner, as a witness, most favorably impressed the Court as to his truthfulness, says : " The wind varied in the space of one hoifr in four different directions, but that, near the time of the collision, it was "W. N. "W., free and steady, the Nabob keeping her course." This is a positive and credible declaration. The testimony of this witness is so conclusive on the main point in controversy, that the Court has no hesitation in de- claring, that, giving him credence, the libel must be dis- missed. He says that " he was towed out of the river a little after 8 o'clock in the evening, and was left by the tug Eagle a mile ■out in the' lake, and the wind being light, he came to anchor. That he got under weigh again shortly after midnight. The wind was then light, from the southwest; that he steered north by west. In a few minutes the wind hauled about to the northwest, and we headed then north by east. In a few minutes she came up north by west half west, and the wind was variable from that time imtil about two o'clock. It then EASTERN DISTEICT OF MICHIGAN. 131 The Nabob. settled into west northwest. I told the wheelsman if she would go as far as north by west half west, to let her go ; if not, to keep her fidl and by. I was close by the compass, and noticed how she was heading at that time, about two o'clock. My watQh commenced at midnight, with Abeel, Byron, and Clancey. Shortly after two o'clock I turned in, after giv- ing the wheelsman directions to keep her on that course, which 1 also communicated to the second mate. I directed him to caU me if he saw anything he did not understand. The wind was then west northwest, and my vessel was on her course at that time, and carrying a green light, aU saUs set except the square sail. We were on the port tack." This was when he left the deck. Further, he says : " On turning in, I only took off my boots, coat, and hat. Afterwards the mate called me, and I came on deck with what clothing I had on. Heard the tug's whistle ; saw her on my lee bow, about two points, and head- ing across my bow, going pretty fast, and about five hundred feet off, and I immediately ordered my helm hard up." In response to a question propounded by the Court, this witness said : " When I came back on deck, the Nabob was on the same course as when I turned in, and did not swing, or, if she did, she swung to the eastward." This is to the point. I repeat, then, if this witness is to be credited, the tug was in fault, and not the Nabob, because, 1st, the latter kept her course tUl the moment of collision ; 2d, the Martin was heading across her bows; and 3d, his retiring from the deck, to obtain rest, and leaving the vessel in charge of the second mate, was not a fault contributing to the collision. If such neg- lect of duty caused the collision, or might have led to it, then it was such a fault as would have condemned his vessel. But he swears positively the Nabob was on the same course as when he left the deck, and, as positively, that the Martin was crossing his bows. Aware of the importance of Captain Hilson's testimony, the libeUants have undertaken to impeach his credibility ; not 122 DISTRICT COURT. The Nabob. on the ground of mistake or failure of memory, but for abso- lute corruption. Mistake in iucidental particulars, or a failure of recollection as to collateral facts, or a disagreement between tbe witness and others as to material facts, will not impeach his credibility ; but knowingly swearing falsely, or giying two different versions of the same transaction, must exclude the whole testimony from consideration. Now,- Captain Barret, the master of the Martin, does not, in my estimation, so im- peach the credibility of Hilson. Hilson swears he was on deck. This fact is not disproved by Barret's simply stating that he told him he was in bed. And, as to the conversation of which Barret testifies, it is but the adverse statements of the two masters, after the collision, when both were striving to exculpate their respective vessels, and imder the excitement of the moment, when Barret's crew had been just rescued from drowning. He may or may not have made the statement ; or, if made, and days after he denied it, his cool and firm denial of it in Court frees him from the taint of wiUful perjury. It is but witness against witness. And, as to the alleged contra- diction by Abeel calling him after the tug's whistle, it is not so conclusive or satisfactory as to warrant the entire rejection of Hilson' s testimony, for the tug may have whistled both before and after the captain was called. I pass by Swartwourt, as to the tow bill, and Enwright, as to the steeve of the bow- sprit, as unworthy of serious attention, in this connection. The rule of impeachment is not of such an ii-on character as to condemn a material fact as false which corresponds with other proof, because other statements made by the witness have been, by the preponderance of number, successfully con- tradicted. Money has purchased — ^power sometimes over- awes — and it wiU not do to weigh testimony by the multi- plicity of the witnesses, especially in hotly contested admiralty cases. DifBcult as it sometimes is, I have always endeavored to get at the facts, through the manner and matter of the wit- ness. If he carries the appearance of integrity and candor, and his testimony is consistent with itself and all the surround- ing circumstances, I cannot but yield my confidence, despite EASTEEN DISTRICT OF MICHIGAN. 123 ■' The Nabob. trifling discrepanciesi The rejection of Captain Hilson's testi- mony, however, conld not change the determination of the case. The law casts the burden of proof upon the master of the steamer who sues, to prove that his vessel exercised all proper care and diligence and prudence to avoid the collision. It wiU not do for the steamer to say that the sailing vessel was first in fault. If the tug has violated the law and the rules of navigation, especially if such infraction he a primary omission or fault, she cannot recover, if the same has led to the casualty. Steamtugs are vessels propelled by steam. As such they are governed by the rules applicable to steamers; and as to precautionary regulations, having other vessels in tow and in peril, there is more reason for their strict observance by steam- tugs than by steamers. The law in admiralty in regard to this is well settled. As early as the Genesee Chief (12 How. 463), it was declared by Chief Justice Taney, that " It is the duty of every steamboat traversing waters where sailing vessels are often met with, to have a trustworthy and constant lookout, be- sides the helmsman." " And whenever a coUision occurs with a sailing vessel, and no other lookout is on board but the helms- man, such omission is prvma faoie evidence that the coUision was occasioned by her fault." From this decision, in 12th Howard, down to the steamer Louisiana, in 23d Howard, there is one unvarying strong cur- rent of authority in the same direction ; the last case making the rule more stringent in requiring proof of the competency of such lookout, and prescribing, as his station, the most suitable place for his observation. In the intervening case, in the 18th of Howard, the steamer was a tug, and the rule by Chief Justice Taney, in the 12th, appUed by Mr. Justice Nelson, 'drawing no distinction between steamboats and steamtugs. "Without re- ferrring to the other cases since the Genesee Chief— and they are numerous — ^the correct doctrine as to lookouts, thus col- lated and embodied is this : AU vessels propelled by steam, navigating the highways of commerce, must have constant and vigilant lookouts, employed as such, and so stationed on deck 124: DISTRICT COURT. The Planet. as to possess timely and perfect observati»n of all approaching or passing vessels, so as readily to ascertain their courses and movements, so far as practicable imder aU the surrounding cir- cumstances. By the proofs in this case, the mate, AUen, was the only lookout. He and the wheelsman were in charge of the tug at the .time. Without reference to his competency, which has been assailed, I entertain no doubt that his gross neglect misled the tug across the bows of the Ifabob, and caused the collision. A wheelsman is not a lookout. He can- not discharge that duty when steering by the compass. His attention is to his wheel and the compass — not over or beyond them. The mate, having the general command of the vessel, cannot perform lookout duty. He has the general super- vision of the ship, and directs both the wheelsman and engi- neer. "While so engaged searching for vessels, he cannot dis- charge the duty of lookout, as required by the law. This neglect, then, as to a lookout, was a fault, and, as such, if there was no other, must prevent a recovery by the libellants. Jjiiel dismissed and decree for cross libellants. KoTB. — This case was affirmed on appeal to the Circuit Court. THE PLAISTET. APRIL, 1864. Collision.— Vbsskl at Anchor. — Anchor Watch. A schooner lying at anchor -with her sails np, in a channel 1,B00 feet %ide, was damaged by a steamer coming down the channel at the rate of 12 miles an hour, and endeavoring to pass between the schooner and another vessel which lay about 400 feet ahead of her. Held : (1) That the schooner had a right to lie where she did with her sails up, though there was apaffy wind. (2) That no anchor watch was necessary in the day time. (8) That the Steamer was solely in fault for not giving the schooner a wider berth. EASTERN DISTEICT OF MICHIGAN. 126 • The Planet. Libel for collision. The facts conceded and the facts proved to the satisfaction of the Court were substantially these : The schooner SteUa, of 176 tons burden, was pursuing her voyage from Buffalo to Milwaukee, when, for want of wind, she came to anchor at midday, in the St. Clair Kiver, above Port Huron, about 400 feet from the American shorp, the river being at that point about 1,500 feet wide, and the current nearly five miles an hour. The Stella was in company with another sail vessel called the Elida, and the wind, which had been radier light aU the morning, failed them at noon, and died away altogether ; 80 that at this time and place, neither vessel being able to proceed up the current, they came to anchor, the EHda some 400 feet in advance of the SteUa, and about the same distance from the American shoi-e. The SteUa kept her mainsails up, as her anchorage was but a short distance from the lake, and she had every reason to expect being towed by the Sarnia, which was then gone to the Elida to attach her first to her tow. The river is about 1,500 feet wide at this place, and there was ample space for vessels ascending or descending to pass on either side of the SteUa. While thus at anchor, the steamer Planet came down the river at a speed of twelve or thirteen miles an hour, heading down stream, passing on the starboard side of the EUda, and attempting to run between the SteUa and the American shore, ported her helm, and with the power of the current and steam, in a few minutes after passing the EUda, ran into the SteUa, occasioning the damage aUeged to both vessels. Mr. W. A. Moore, for the schooner Stella. Mr. J. S. Newberry, for the steamer Planet. "WILKINS, J. Many witnesses swear to the wind being puffy and capricious, when but a few minutes before the col- Usion the EUda and SteUa were forced to come to anchor because the wind had died away. Another witness, on board 126 DISTRICT COURT. The Planet. the Forester, swears that he had seen from her deck the Stella ranging off and on aU the morning, when it is miques- tionable, and not denied, that both the Elida and Stella only reached their anchorage at noon. Some of the witnesses swear that the Stella swung and sheered while at anchor about one hundred and sixty feet,.a statement certainly inconsistent with the admitted fact of the length of her chain and weight of her ' anchor. Such a breeze as would make her thus range was sufficient to take her at once to Lake Huron, without the aid and expense of a tug. The speed of the Planet, her size, and the consequent undulation of the water, forbade ac- curacy of observation by those on her decks, and would mislead the judgment of the most truthful. On the part of the Planet, it is urged that the SteUa was at fault, in being at anchor, with her sails up, and neglecting a watch at her helm. It was midday; the channel broad and deep — on the starboard and larboard sides — to the east and the Canadian shore, 1,000 feet, and to the American, more than 300 feet, with sufficient depth of water to within a few feet of the shore ; the anchorage was only for a short time, and no necessity existed for a watch at the hehn, no more than for a light at her bow, or for a watch and light when lying at dock in port. Such a requisite presupposes powerful steamers to be without government, and that sailing vessels must keep a lookout when at anchor in a channel 1,500 feet wide, in order to protect descending steamers from being run into by sheering. She had a right to keep her sails up when at anchor, under the circumstances proved. Having ample room to pass on either side, if there was wind to make the Stella sheer, the Planet was, nevertheless, to take that into consideration, and avoid passing the Stella so near as to render a collision possi- ble. A steamer must avoid a sail vessel when both are under weigh ; much more should a sail vessel at anchor be avoided, even on the eve of departure, and when her sails are up. It is no excuse for the steamer — ^with ample space safely to pass— that the wind was puffy, and the anchored vessel so sheered as to run EASTERN DISTRICT OF MICHIGAN. 127 The Planet, into the steamer, or cause the steamer to run into - her. The fault is in the steamer ; and the sheering of the sail vessel, whether caused by imdulation or wind, does not shift the fault from the steamer to the sail vessel. It is unnecessary to attempt to reconcile the conflict in the testimony as to the fact of sheering. Fish and Cottrel of the Forrester, swear to the ranging, and the crew of the Planet to the same fact — ^with much probability, as the undulation would cause some ranging, though not to the extent that the crew fancied, in their rapid flight down a current of five miles an hour, while the captain and crew of the Stella, and the master and mate of the Elida testify to the contrary, Merrill, the mate of' the Stella, stating positively that he was on deck aU the time the Stella lay at anchor, until the collision, except for a few minutes at dinner, when he was told the Planet was com- ing, and that the Stella lay all the time steady at anchor. A sailing vessel at anchor even with sails up, and about to start, must be carefully avoided by a steamer coming into port ; and it constitutes no defence to the latter that the former sheered, so as to cause collision. The steamer must keep off. There is no doubt that there was some ranging in the SteUa, for a short period, on the rapid approach of so large a vessel as the Planet, causing a corresponding undulation. But this ranging cannot be attributed to the wind. And whether she ranged or not, while at anchor, imder the sudden puffs of wind playing on her sails, the Planet was bound to guard against the exigency, by taking a wide berth, either to the larboard or starboard. This she could do. This she ought to have done. Where there is ample sea room, a steamer must avoid a sail vessel at anchor, or under weigh, and the law imposes no duty upon the latter when anchored, as to an approaching steamer in day- light. At- night, the usual light and watch are necessary, but in the day time, all the duty to avoid a collision is with the steamer. It is not allowable for the latter to run any risk as to the anchored vessel, or attempt the experiment of a danger- ous proximity. Sailing vessels, especially when at anchor, enjoy the broad protection of the law. 128 DISTRICT CO0BT. Simmons' Case. The fact has been established that with reference to the Elida, the Stella lay inside, and not outside, and not at a greater distance than five or six hundred feet below. This fact being fixed in the judgment of the Court, the fault in the Planet is fixed. With space abundant on either side, it is inexcusable that she ported on passing the Elida, a movement that brought her inevitably across -the bows of the Stella. If it was desirable to hug the American shore, she ought to have done so before she reached the Elida, and not after she had passed that vessel. Had she done so, the coUis- ion would have been avoided. Decree for libellant. Note. — On appeal to the Circuit Court, this case was affirmed. But see, aa to necessity of anchor watch, the Masters and Raynor, post. SIMMONS' CASE. NOVEMBEE, 1865. Smuggling. — Definition ov " Wearing Apparel in Actual Use." A person who goes to a foreign country for the purpose of buying clothing, is not within the proTisions of sec. 8, of the Act of March 8d, 1867, providing for the free entry of " wearing apparel in actual use * • * of persons arriving in the United States," notwithstanding he wears the same in return- ing home. Ikfoemation for smuggling. From the defendant's ad- mission to the collector, it appeared that being a resident of Washtenaw county, Michigan, on the lYth of Novem- ber, A. D., 1865, he went from there to Windsor, Can- ada West, for the purpose of buying an overcoat for EASTERN DISTRICT OF MICHIGAN. 129 Simmons' Case. his son, a lad of eighteen, who accompanied him. It was pur- chased and put on by the young man; the father and son recrossed the river into the United States, the son wearing the overcoat, passed by the custom house, and when stopped by a custom house officer, who seized the coat, declared that they had no intention of entering the goods. Mr. Alfred Bussell, District Attorney, for the United States. After a fuU argument of the question of law involved, the Court charged the jury substantially, as follows : WILKTlSrS, J. If the jury find the facts as stated in the testimony of the collector, I instruct you that the offense as matter of law is complete. • Section 5 of the Act of June 30, 1864, (Session Laws of 1864, page 207,) provides for duty on clothing, as follows : " On clothing, ready made, and wearing apparel of every description, composed whoUy or in part of wool, made up or manufactured whoUy or in part by the tailor, seamstress or manufacturer, except hosiery, twenty-four cents per pound, and in addition thereto, forty per centum ad valorem." The defendant relies upon section 3 of the Act of March 3d, 1857 (volume 11, Statutes at Large, U. S. p. 194), which provides for the free entry of " wearing apparel in actual use, and other personal effects (not merchandise), professional books, implements, instruments, and tools of trade, occupation or employment, of persons arriving in the United States." In my view of the law, the overcoat, although on the back of the young man, was not in " the actual use of a person a/r- ri/omg m the United States^'' within the meaning of the ex- emption. The use referred to in the statute is use prior to coming into the United States, by a person who has been abroad, or lived abroad, and who has not visited the foreign country for the very purpose of bringing in the clothing upon his body, with the design of thereby escaping the payment of duty. 9 130 DISTRICT COURT. The Armetrong. Otherwise a dozen men might cross repeatedly during the day, and bring over clothing enough on their hacks to supply a clothing store. Moreover, in all cases df wearing apparel ia use, tools, etc., a free entry must be made at the custom house, and a declara- tion made under oath, in writing, bringing the party within the exemption. (See General Eegulations Treasury Depart- ment, pp. 560, 600.) I understand the practice is quite general of persons going to Canada and wearing back new clothes, sending the old ones by express. This is in direct violation of the law, and if satisfied of the facts, your verdict should be guilty. Defendant convicted. THE AEMSTEONG. MAT, 1866. Negligent Towage.— Equipment op Tugs. — Lookout. — Inevitable Accident. A tug, whose master also acts as pilot and engineer, is not properly manned. It is the dnty of a tug towing a vessel through a narrow channel and encoun- tering a snow storm so heavy as to obscure the sight, at once to stop and cast anchor. The want of a competent lookout is a fault of the grossest description. The opinion of the master and crew of a tug, that their vessel was properly managed, and that the accident was inevitahle, is entitled to very little if any weight. Libel for damages occasioned by negligent towage. The libellant, the owner of the schooner Swallow, brought his ac- tion to recover damages for careless and reckless towage across the St. Clair Flats in December, 1866. EASTERN DISTRICT OF MICHIGAN. 131 The Armstrong. By the contract set forth in the pleadings and proofs, the tug agreed to tow the schooner safely from Algonac to New Baltimore, a distance of only 14 miles, employing compe- tent power, skin, experience, and a knowledge of the chan- nel, for such an undertakiag at that season, and with the vessel as she then was. The tug ran her aground, a few hours after she had taken her in charge, on the morning of the 7th of December, and the libel alleges fault in the reckless and ignorant towage of the respondent. The answer admits the grounding of the schooner, denies that it was the fault of the tug, but alleges that it was the mis- management of the master of the schooner, after and while the tug was aground. It appeared in evidence that the master of the tug also acted as pilot and engineer, and the mate was also serving in the capacity of wheelsman. Mr. J. S. Newberry, for libellant. Mr. W. A. Moore, for claimant. "WILKINS, J. From the answer the important fact is elicited that the tug ran out of the channel and got aground, and in consequence, the schooner, being attached to the tugj was also grounded, and in the hurry and confusion of such an iacident, neglected to detach the line or to cast out an anchor. l^either of these allegations, if clearly proved, would ex- onerate the tug — because, 1st, the captain of the tug knew the condition of the schooner before he made the contract, as to her active force in case of such an emergency ; and, 2d, if his ignorance and incompetency ran the tug aground, he is not excused from responsibility as to the schooner, by her neglect to detach herself immediately from the tug, or stop her own progress by casting anchor. The contract was safely to tow her through the channel for 14 miles, under her then existing condition as to her crew and power of self-control ; and it was 132 DISTRICT COURT. The Armstrong. the groundling of the tug that rendered such other but then unavailable help necessary for her safety. This defense is, therefore, dismissed from consideration. The business of towage is one of great importance in navi- gation, and, both in England and in this country, is governed by rules of justice and common sense as certain as those which regulate any other business. Experience and skill are imphed in most contracts for work and labor to be performed. A car- penter is not a blacksmith, a tailor is not a lawyer or a physi- cito, neither is a farmer a steam navigator. Holding one's self out as such, against the fact, is a fraud ; and, where it embraces the skillful care of property and life upon the water, the fraud amounts to a crime. My mind was strongly impressed during the hearing, that the father and brothers, who owned and had the control of this tug, had not the necessary experience as sailors to warrant them in entering into such a contract ; and, though their pres- ence on the witness stand was prepossessing and inviting of confidence, I could not give to their testimony that reliance which would lead to an acquittal from great blame. They ven- tured the Pass without sounding line or small boat, to feel their way, beset with obstructions, with no other instrumental- ity but a small pole to exhibit depth of water as they pro- gressed, through a hazardous channel, and at the season of peril. The posts of duty were not sufBciently manned ; three persons imdertaking the duties at one and the same time, of master, engineer, wheelsman, and lookout, and the master, working the engine one moment, and then hastening to the bow to look ahead and about for the channel. Neither can I determine the case in their favor on their testimony as experts. Their opinion, as to the correct man- agement of their boat, should not be and is not reliable. They swear the blame away from themselves, and attribute it to the act of God, as an unavoidable accident — ^the result of a blind- ing snow storm. Until the Act of Congress of 1864, forbidding the exclusion of interested witnesses in civil actions, I had resisted the adop- tion of the State .practice, admitting such as competent, and EASTERN DISTRICT OF MICHIGAS", 133 The Armstrong. clinging to the old common law rule as tlie safest and wisest. When such testimony is offered to a jury, the Court has noth- ing to say, but, as the credibility of witnesses in admiralty is a question for the Court, I frankly declare that I will give to such testimony very little confidence, and, more especially where it is but the mere opinion of the witness — ^under oath, it is true, but a swearing away of personal liability. The yam spun by sailors, assuming the solemn dignity of testimony, must alwiays be received with caution, and scrupulously sifted, however carefully woven. Sailors will, from habit, compare notes with each other, and where there is a minute exactitude of agreement in narrative, it will lead to suspicion. But the Armstrong brothers and their father were not educated seamen, or BO far experienced in the husiness as to justify the rejection of their statement, simply on that ground. Their concurrent opinion, however, is open to a different objection. With honorable men — and I know nothing to the contrary but what this father and these brothers are such — ^interest will not lead to the manufacture of falsehood, or the suppression of truth ; but, in ninety-nine cases out of one hundred, such a a relation to the case obscures the judgment, and generates mistake. The question of fact is, whether or not the incident was an unavoidable accident, the snow, drift blinding the vision of the tug's master and wheelsman, and their judgment that it was so cannot safely be made by the Court the basis ■ of its decree in their favor. The occurrence was either an unavoid- able accident or the fault was in the tug. The proof exonerates the Swallow. She was to follow, not to lead the tug. The tug first ran out of the channel, and then aground. This caused the Swallow to swing and get aground. Had the tug kept the channel, neither the tug nor schooner wcfUld have got aground. This is clear. But whether she ought to have cast her anchor after the tug was aground, does not affect the question of blame. It is not probable that it would have prevented her grounding ; she had not a competent crew to do it, and this the tug's captain well knew when he entered into the contract to tow her through the channel, only 14: miles, in 134 DISTRICT COURT. The Armstrong. daylight. There was no fault in the Swallow, and her swing- ing to and fro in this narrow channel, and running into the bank, was caused by her tug pilot running herself ashore. "Was it an- unavoidable accident ? This would excuse. Man is not held responsible for the act of God. But the proof of this must be clear, direct and unquestionable. There was a snow storm while the vessels were in the channel. If it was such as to blind Ihe vision, it was the duty of the tug to stop and await its abatement. Was such the conduct of the captain ? He swears, on folio 95 : "I did not stop entirely, because I wanted to preserve steerage-way until it cleared up," and " I ran about ten minutes after the snow storm had set in, and did not sing out to stop until my father, by a pole, discovered that we were out of the channel, and the schooner in danger." If, then, the storm was such as they describe, anchorage or stopping the engine was an imperative duty. Ten minutes' run, or a mile, under such circumstances, was imperiling the safety of the schooner, and a gross fault on the part of the tug. The appellate Court, in the case of the Morton, emphat- ically establishes the rule, that under such incidents the duty of the tug is forthwith to resort to other measures of precau- tion and prudence to protect her tow, either by slowing, stop- ping, or sounding. " The tug," says Mr. Justice Swayne, " has no right to dash blindly on, and incur danger she neither knows nor can avoid." If danger threatens, to stop at once is her duty. "Where the vision is obscured, in the navigation of a narrow channel, there is imminent danger, and to continue the course, and not stop, is such negligence as makes the tug responsible for the consequences. The alleged storm cannot protect them ; their own folly condemns, and that is not inevitable which can, by common prudence, be avoided. Although sufficient reason is adduced, in the foregoing considerations, for the rendition of a decree for the libeUant, I deem it proper to remark, as an admonition to tug masters. EASTERN DISTRICT OF MICHIGAN. 135 The Armstrong. that this and the appellate Court have determined that, if the catastrophe in these cases can be at all attributed to the want of a proper lookout, such destitution will of itself render the tug liable. Such is the law in this District, and governing the navigation of these contiguous lakes. It is idle to say that the business will not warrant the expense, or that the captain and wheelsman can, on these boats, keep up a sufficient lookout. Eecent exposition of the law declares otherwise; and tugs, engaged in towing most of the time property only, are as much required to have competent lookouts as larger steamers, intrusted with the care of human life. A lookout is a ftmc- tionary in navigation, with duties distinct from the captain, or mate, or wheelsman, and neither of the latter class can supply his place and attend properly to his own specific charge. As well might the captaia work the engine, or the engineer man- age the wheel, as either engineer or captain keep up a con- stant, vigilant lookout. It is true, life is more precious than property, and its protection ranks higher in the law, but ad- miralty makes no preference in administration, and casts its ample aegis over both. In the John Fretter, Judge Swayne says : " Where there is no lookout, the fault is of the grossest character, and every doubt relating to the consequences is to be resolved against the tug. It is impossible, in the nature of things, that the captain can perform properly his other duties and also that of the ' lookout,' and he must not attempt it. A crew is not com- petent without a lookout, either on tugs or steamers. If there be none, the tug cannot" avoid her responsibility by the oaths of the captain or crew, if there be the slightest doubt as to the spring-head of the catastrophe." Such is the strong language of the appellate Court, and I am sure, as now constituted, will never be modified. Of this our tug-owners may be certain. If the damage accruing can by possibility be attributed to this cause, the essential allega- tion of a competent crew is disproved, and the oaths of the captain and crew wiU be received with suspicion. The proofs in this case establish the fact that the misman- agement of the tug and the ignorance of the channel caused 136 DISTRICT COURT. The Armstrong. the libellant's vessel to run ashore, and a competent lookout, acquainted with the channel and its banks, might have avoided this grounding, notwithstanding the alleged storm. Piloting a vessel through a narrow channel, although for a short distance, in stormy weather, demands a fuU crew — ^master, lookout, wheelsman and engineer — each of whom shaU be at their posts ; and the lookout cannot be dispensed with, and is as essential to avoid collision with natural obstructions as with other vessels. Collating, then, in a condensed form, the answer and the reliable proofs, the following facts are prominent, incontestable and conclusive : 1. The Armstrong, having the Swallow in tow, first got out of the channel, and first ran agroimd. 2. The contract was for safe towage, and implied a knowl- edge of the channel, of the condition of the schooner, and the shifting peril of the weather. 3. There Was not sufficient time to detach the toV, or to cast anchor, so as to secure the schooner in the channel. 4. To detach the schooner, by cutting her tow-line, would have, from the narrowness of the channel, and the ignorance of her captain of its banks and breadth, most certainly have run her ashore. 5. The tug continued her course for some minutes after the snow storm had commenced. 6. Instantly stopping might have avoided the catastrophe. Y. The crew of the Armstrong ws,s incompetent for the peril encountered, either for safety or extrication. The grounding of the tug proximately occasioned the grounding of her tow, and if the first could have been avoided by ordinary care and forecast, the proximate was not over- ruled by any paramount power. If thie storm was foreseen, and its peril could have been avoided, the responsibility is with the tug, and cannot properly be ascribed to " a blinding snow storm." I>eoreefor libeUcmt. Note. — ^Upon appeal to the Circuit Court, the decree in this case was affirmed. CIRCUIT COURT. EASTERN DISTRICT OF MICHIGAN. Hon. NOAH H. SWAYNE, Associate Justice op the Supeeme Coxjet. THE MORTOlSr. Collision. — Dutt op Tuqs is the Arranobment and Manage- ment OF Tows. — Plbadinos. — Amendments. A tug ia bound to the exercise of ordinary care ia taking up, arranging and man - aging the tow. Having full control of the vessels towed, she must direct as to the length of their lines, the order in which they shall be towed, and prudence requires that the heavier draft vessels should be placed behind those of lighter draft. The tug is bound to know the channel, and to keep the tow in the deepest water. If the ordinary lights or landmarks are obscured, the tug should provide for the emergency by slowing or stopping the engine, and sounding the channel The vessel towed is bound to prevent a collision, if she can, or to make the dam- ages as light as possible. The allegations and proofs must coincide ; and the Court cannot consider evi- dence not in accordance with the issues made by the parties. The, Court will allow amendments upon terms even on the hearing of an appeal. Libel for collision. On the SOth of June, 1863, the tug Morton, Kimball master, was coming down St. Clair river, having in tow the four following vessels in their order : Supe- rior, drawing 11 ft. 4 in., Ohase master ; Vanguard, 10 ft. 4 in., Davis master; Yankee and Bermuda. At sundown, they passed Jerry's Ranch and the range lights on the flats just after they were lighted. Before passing the lights, the Superior and Vanguard, which were carrying part of their sails, took all the sails in. The depth of water on the flats at the time and duf- 138 CIECUIT COURT. The MortoB. ing the season was 12 ft. 6 in. or more, and vessels of that draft constantly went through in safety. The deepest water was to the westward of the range. The tug, before reaching the end of 'the dredged channel, got too far to the eastward and stranded the Superior. The master of the Superior sang out to the Yanguard an order to starboard and then to port. The latter order was immediately obeyed by the Yanguard. The tow line from the Superior to the Yanguard was about thirty fathoms long or the usual length. The Yanguard swung slowly, and struck the starboard quarter of the Superior with the bluff of her port bow, and drove her over the shallow place into deep water, and caused the injury complained of. The tug gave the vessel no warning and did not sound the channel or slow, stop or back her engine. The captain, mate and wheelsman were attending to the navigation of the tug. She had no lookout stationed forward. On the trial in the District Court, the libel was dismissed, and the case appealed. Mr. J. S: Newb&rry, for the appellant. Mr. W. A. Moore, for the appellee. An oral opinion was delivered substantially in the following language : SWATNE, J. In this case it is alleged on the part of the Hbellants : That there is no issue tendered by the pleadings as to any fault committed by the Yanguard, and no fault charged upon the Superior as to her conduct ; That the proofs taken in regard to an issue not tendered by the pleadings are inadmissible, and should not be considered by the Court. The rule is well settled, that the allegations and proofs must coincide, and that the Court cannot look outside of the pleadings to consider evidence not in accordance with the issues made by the parties (2 Conk. Ad. 245-250 ; McKinley v. Morrish, 21 EASTERN DISTRICT OF MICHIGAN. 139 The Morton. How. 343; The Bhode Islomd, Olcott, 606; The Oregon, Newb. 504; The Boston, 1 Sum. 329; The 8a/rah Ann, 2 Sum. 206). It is equally well settled, that in order that substantial j'us- tice may be done, the Court will allow amendments to be made, even at the hearing of an appeal, taking care that no injury be done to either party. And in case injury should be likely to ensne from allowing amendments, the case would be con- tinued, to allow the party to take such evidence as he might deem material on the new issue {The Sarah Ann, 2 Sum. 206 ; The Boston, 1 Sum. 329). In the view I shall take of this case, however, it will not be necessary to continue the case, but I shall consider the evidence precisely as if the amendments that the party might make were already made. In regard to the responsibility of tugs, when taking other vessels in tow, we hold that they are bound to use ordinary care and diligence in taking up, arranging and managing the tow, according to the exigencies of the business. • That while engaged in such busiaess, tugs, as well as pas- senger steamboats, are bound to have a competent lookout properly stationed and vigilantly employed. That in this case it is not certain that the collision was oc- casioned by the absence of such lookout. _ That the tug has the fuU government and care of the vessels towed; she must direct as to length of lines; the order in which they shall be towed ; that good management and com- mon prudence require that the heaviest draft vessel should be placed aft of those of lighter draft ; and had that precaution been observed in the present case, the present collision would not have taken place. That ordioary care on the part of the tug requires them to know the channels through which they undertake to tow ves- sels, and where it appears there was a good draft of water, the tug is bound to keep in it. In this case there was 12 ft. 5 iu., while the Superior was drawing only 11 ft. 6 in. Vessels drawing 12 ft. 4 in. went through that channel in safety the 140 CIRCUIT COURT. The MortoD. same day. It is clear that the tag got too far to the eastward, and thereby stranded the Superior, and was in fault' therefor. Again, if for any reason the ordinary ranges, lights or land- marks are obscured, it is clearly the duty of the tug to take such other precautions as may be necessary, either by slowing, stopping or backing the engine, or sounding the channel. She has no right to dash blindly ahead, and rush into dangers she neither knows nor can avoid {The Rose, 2 W. Rob. 3 ; The Birkenhead, 3 Id. 76, 81; The Perth, 3 Hagg. 414; Cham- berlain V. Ward, 21 How. 548). Upon these considerations we hold the tug in fault, and grossly so. But this would not necessarily make the tug liable for the entire damages, for the Superior may also be in fault. The vessel in tow had also duties to perform. She is bound to prevent the collision if she can ; and if she cannot, then she is bound to make the damages as hght as possible. This is a rule of universal law (Abb. on Shipp. 154, 341 ; SeSkscher v. MoCrea, 24 Wend. 304 ; Tonjlffr v. Read, 4 Paige, 571 ; Emerson v. Howland, 1 Mason, 51 ; MiUer v. Marmeri Chv/rch, 7 Greenl. 51). It is alleged that the master of the Superior gave the order first " starboard," then " port," and that the master of the Yan- guard repeated the orders in the same way. The experts show very clearly that the proper order in this case was "port," and that the contradictory orders would prob- ably lead to confusion. Yet Davis, the master of the Van- guard, and others, swear that the orders were given in instan- taneous succession, and that the only order obeyed on his ves- sel was the order to "port;" that the hebn was immediately put to port. In considering the weight of evidence, it is a well settled and sound principle of construction that the direct evidence of what was done on one vessel is of much greater weight than the hypothetical evidence of experts or others giving their opinions as to what was done. Even if it was shown that a wrong order was given and EASTERN DISTRICT OF MICHIGAN. 141 The Detroit. obeyed, either on the Superior or Yanguard (which is not shown, however), under the exigency of the circumstances and light of authority, it could not be considered a fault {^The Genesee Chief, 12 How. 461). We can find no fault on the part of the Superior or the Vanguard. But even in this case, were there fault on the part of the Yanguard, it would not prevent a recovery on the part of the owners of the Superior (The New PhiladelphAa, 1 Black, 62). The decree below must be reversed, and the cause referred to a commissioner to compute the damages. Decree reversed. THE DETEOIT. JUNE, 1874. Pbactice.— Amendment op Libel.— State Claim. — Eights of Bona Fide Purchaser. A Court of Admiralty has no power to permit a libel to be amended by striking out the name of a sole libellant and subatiinting another io its place. Such amendment is virtually the institution of a new suit, and discharges the sure- ties upon the stipulation. It is the duty of the claimant, however, to put his objections upon the record, and unless he does so, he will be deemed to have waived them by appearing, examining witnesses, and contesting the case upon the merits. A claim for towage accrued against a vessel in May and June, 1865, while she was in the hands of a person who had contracted to purchase her. Having failed to fulfil his contract ; she was returned to the owner who took her to Canada within a month or two after the services were rendered, where she remained until June 27th, of the following year. She was there resold to a bona fide purchaser, without notice, who brought her within the jurisdiction of the Court, and kept her during the remainder of the summer. On Octo- ber 6tb, the libel was filed and the vessel attached. HM, That the lien was waived and the action conld not be maintained. A hona fide purchaser under a bill of sale does not lose the protection of the law by taking the collateral guaranty of a third party, indemnifying him against liens. 14:2 CIRCUIT COURT. The Detroit. On appeal from the decree of the District Court dismiss- ing the libel. The action was brought to recover for the serv- ices of the tug Young America, in towing the barge Detroit to and from Bear Creek, in Canada. The libel was originally filed in the name of John K. Harrow, who was supposed to be the owner of the tug. After answer filed and the testimony of one witness had been taken, it was discovered that James P. Harrow was the owner of the tug at the time the services were performed. Upon an affidavit that the proctor had been misinformed at the time the suit was commenced, an amend- ment was permitted, substituting James P. for John K. Har- row as libeUant. A motion to vacate the order permitting the amendment was afterwards made and denied. Claimant there- upon appeared, took testimony, cross-examined witnesses, and contested the case upon the merits, without further objection to the amendment. The towage services in question were performed in May and June, 1865, the barge being then in the hands of one McDonald, who held her under an agreement to purchase of one Kean, the owner. On July 14th, 1865, McDonald hav- ing failed to perform his contract, Kean took possession of her and had her towed to Canada, opposite Detroit, where she underwent some repairs. It appeared that about August 30th, she was towed back to Detroit, where she remained a very short time, and was then taken back to Canada and laid up for the remainder of the season. In the autumn of 1865, the bill was sent by Harrow, who lived at Algonac, forty miles from Detroit, to one Kanter, at Detroit, with instructions to collect. Some time before the return of the barge, Kanter made a demand on Kean who returned an evasive answer. On Jime 27th, 1866, the claimant, Alger, went to Canada with Kean, bought the barge there and brought her over to Detroit, where she was thoroughly repaired. A negotiable note at four months was given for the purchase money. The bill of sale which was not given until August, contained a special warranty by Patrick E. Kean against all liens, and a collateral guaranty to the same effect was given by his agent. EASTERN DISTRICT OF MICHIGAN-. 143 The Detroit. Michael B. Kean. The libel was filed and the barge attached October 6th, 1866. Mr. H. B. Brown, for Hbellaiit. But sixteen months elapsed from the time the claim ac- crued until the barge was attached ; of these, eleven months were spent in Canada.' If the barge had not changed owners there could be no pretense of a State claim {The Nestor, 1 Sum. 85 ; Jay v. Al- len, 1 Sprague, 130 ; Brown v. Jones, 2 Gall. 4^T ; The Sarah Ann, 2 Sum. 212 ; The Bucheye State, 1 JSTewb. Ill ; The Merrimac, 14 "WaU. 653). Where the vessel has changed hands, the questions to be considered are : . ■First. "Whether the libellant has used due diligence. "Was the claim enforced within a reasonable time, considering all the circmnstanceB of the case {The Baric Chusam,, 2 Story, 468 ; The Rebecca, "Ware, 212 ; The Lillie Mills, 1 Sprague, 307 ; The Eliza Jane, IMd. 152 ; The Dubuque, 2 Abbot, U. S. 33 ; The AtaloMta, post). The facts of this case, with regard to the diligence used, are not unlike those in the ease of The Boli/oar, Oleott, 480. So far as the claimant Alger is concerned, the case stands precisely as if the libel had been filed on the day she was brought over from Canada, because he purchased her there, and no ohamge of circumstances took place from that time to the day of filing the libel. She was brought over as his property, sold to him on four months' credit, which did not expire until after the libel was filed. Deducting her absence in Canada, but five months elapsed from the time the claim accrued until the libel was filed. Beckoning the time she remained here after her return, less than four months elapsed, either of these being sufficient to take the case out of rule in the Buckeye State, where it was held that as against bona fide purchasers, the libel must be filed within a year. The time of her absence should of course be deducted 144 CIRCUIT COUET. The Detroit. {The Sarah Ann, 2 Sum. 212 ; Th£ General Jackson, 1 Sprague, 554). Second. Whether the allowance of the claim will Work an injury to innocent purchasers. I submit the question is not simply whether the vessel has passed into the hands of a horM fide purchaser without notice, but whether such purchaser will have to pay the claim out of his own pocket. The Court will look at all the circumstances of the case, and if it finds the purchaser amply protected, will hold the vessel responsible. This distinction is noticed in the case of The Louisa (2 W. & M. 62). In the case of The Utility (Bl. & How. 224), the Court indicates an opinion that if the purchaser protects himself, the libellant wiU also be protected. In the case of Cole v. The Atlantic (Crabbe, 440), the Court enforced a claim 'against a ionafide purchaser, after the lapse of two years, because the libellant had used due diligence, and the purchaser was indemnified. Injwry to third parties seems also to be made the test in case of The Canton (1 Sprague, 440), and also in that of The Bucheye State. In this case two special guaranties against these liens were taken from responsible parties, one of whom signed the stipulation to answer judgment, and it is not claimed that a decree for payment would work any actual in- jury to idger. The amendment substituting one libellant for another was within the discretion of the Court {Jennings v. Springs, 1 Bailey's Eq. 181). Even if it were not so, the claimant has waived the objec- tion by appearing, taking testimony, noticing the case for trial, and litigating on the merits for eight years without objection. Mr. K H. Cornfield for the claimant. (1) No attempt is made to contradict claimant's testimony, that he is a honafide purchaser without notice. The fact that the bill of sale contains full covenants of warranty, does not deprive the purchaser of the protection which the law affords EASTERN DISTRICT OF MICHIGAN. 145 The Detroit. him. Indeed a'quitclaiin deed is considered strong evidence that the vendee is not a hona fide purchaser {Oliver v. Piatt, 3 How. 333 ; Lowry v. Brown, 1 Cold. 456). To sustain libellant's position is to subject the purchaser under covenants of warranty to the expense of two suits : 1st, to defend the claim ; 2d, to recover from his warrantor. (2) Libellant's claim is stale. The services were rendered not to Alger nor to Kean, but to McDonald, who held the barge under an agreement to purchase. The general rule with regard to laches, is stated in the fol- lowing case I^The Dubuqv^, 2 Abbott U. S. 33). It is only a statement of a general principle of law, that, as between two parties, a loss must be borne by him who might have acted and neglected to do so. Claimant, has been guilty of no laches. If he pays, he su3Sers a loss which hbel- lant might have prevented by acting promptly. Had proceed- ings been instituted before August 16th, when the bUl of sale was given, claimant might have protected himself by refusing to accept it until the claim was paid. {Slwme v. Ship Carter, 4 Cranch, 328 ^ The Buckeye State, 1 Newb. Ill ; The Eliza Jams, 1 Sprague, 152 ; The Paul Boggs, It. 369 ; The Gen- eral Jackson, Ih. 554 ; The Dubuque, 2 Abbott U. S. 20 ; The John Lowe, 2 Ben. 394 ; The Fa/vorite, 1 Biss. 525.) An oral opinion, substantially in the following language, was delivered by SWAYITE, J. The libel in this case was originally filed by John K. Harrow, but, by an amendment allowed under an order of 'the District Court, the name of James P.Harrow was substituted. It was not a mere mistake in the name of the libellant, but an actual change of one person for another. I think there was no authority to make this order. It was de- cided by the Supreme Court, in The Oommander-in- Chief (1 "Wall. 43), that new parties may be added, and parties im- properly joined may, on motion, be stricken out, but I do not think this authorizes the substitution of one sole libellant for an- other. It is, substantially, the institution of a new suit. 146 CIRCUIT COURT. The Detroit. Clearly, this coiold not be done at common law, and I know of no authority for this practice in equity, except the one cited from Bailey's Keports, which rests upon different principles. If the claimant, after having objected, and asked to have the order vacated, had stood by his objection and refused to pro- ,ceed further in the case, or if he had put his exceptions on record, showing that he had done everything in his power to insist upon them, I should have held it fatal in this Court. But I think, by appearing, taking testimony and cross-examin- ing witnesses, arguing the case upon the merits, and conduct- ing the litigation for nearly eight years without observing any of the forms to which I have adverted, the objection must be deemed to have been waived. By appearing and contesting this new suit upon the , merits, the claimant is now precluded from insisting it was not properly commenced. The effect of these proceedings upon the sureties, it is not necessary here to discuss. There is a controversy between the parties, whether the barge was taken to Canada on the 14th of July or on the Slst of August, but I do not regard it as material t» the disposition of this case. The services having been rendered in May and June, the libellant cannot be considered in default for failing to prosecute his claim before the Slst of August, assuming her to have been removed upon that day. She remained at Wind- sor, opposite and in sight of Detroit, until the 27th of June, 1866, when the claimant Alger went to Canada, purchased her, and brought her to Detroit, where she was put into a dry dock and largely repaired. This libel was filed and the barge attached on the 13th of October, 1866. The question to be considered is whether this delay is to be deemed a waiver of libellant's lien as against Alger. It is said he is not a ionajlde purchaser, by reason of the warranty contained in the biU of sale and ihe collateral guaranty given by M. B. Kean. I seems to me, however, that the answer of Mr. Canfield is entirely conclusive upon that point. It is held in the authorities upon that subject, that the very fact that a vendee accepts a quitclaim deed, is strong evidence that he is EASTERN DISTRICT OF MICHIGAN. 147 The Detroit. not a hfma fide purchaser, and sucli I conceive to be the law. I do not understand that a person, by taking the warranty of his vendor, or of a third party, loses the protection of the law applicable to honafide purchases. The services were rendered while the vessel was in posses- sion of McDonald, under a claim of ownership. So far as it appears from the testimony, the barge was his, and he was its agent for^U purposes. After he had failed to complete his purchase, and the vessel was surrendered to Kean, he was en- titled to be advised that such a claim was owing by McDonald when he might possibly protect himself against it, and it is proven in this case that a demand was made upon him for pay- ment some time during the following autumn. Had libeUant failed to give this notice before the close of navigation, I should have held the barge discharged of the lien while in Kean's hands. But it seems to me this was not libeUant's only duty in the premises. The season of navigation closed and winter passed. On the 27th of June, 1866, the claimant Alger went to' Windsor, where the barge was lying, purchased her, brought her to De- troit, and placed her in Jones' shipyard, where extensive re- pairs were commenced. Libellant was bound to know all this. He certainly could have learned it by observation or inquiry. Yet he allowed the months of July, August and September to elapse without taking a step to enforce his claim. Not until the 6th of October, was his libel iQed and the vessel attached. During all this time the title was vested in Alger. ISTow, as a question of law, was this reasonable dili- gence? The main authorities upon the subject have .been read and I fuUy concur in their reasoning. In the cases of the Buckeye State (1 ISTewb. Ill), and The Dubuque (2 Abbott's TJ. S. 20), a rule applicable to the lakes is laid down, that where the vessel has passed into the hands of a lonafide purchaser, claims of this character should be prosecuted within the current season of navigation, or, at least, within a year. I think this rule is founded upon the most solid considerations of good sense. Granting there were The Petroit. no laches in this case before the close of navigation, as the vessel was aU this time beyond the jurisdiction of the Court, I think it was incumbent upon libellant to keep a careful watch upon her movements, to notify the purchaser of his claim as soon as she was sold, and to proceed to enforce his lien as soon as she was brought within the jurisdiction of the Court. He was bound to know that this vessel was as likely to change hands as any other, and should have used diligence to ascertain when she was transferred to Alger, and have given him speedy notice of his claim in order that he might lose no opportunity of protecting himself against it. Instead of this, he allows the three busiest months of the season to elapse without making known its existence. I think these facts war- rant the presumption that the lien was waived. TJpon the best consideration I have been able to give to the case, I feel constrained to affirm the decree of the District Court. Libel dismissed. DISTRICT COURT. EASTERN DISTRICT OF MICHIGAN. HoK. ROSS WILKINS, District Judge. THE JOHN MAETIK. MAY, 1866. Wages. — Authority of Enginbbe. — Forfeiture. The engineer of a steamboat has no anthority to make any alteration in the engine at the home port -without the consent of the owner, and his conduct in so doing wUl work a forfeiture of his wages. Libel m, personam, for wages as engineer upon the tug John Martin, then employed in towing vessels upon Detroit and St. Clair rivers. Answee that libeUant, without the knowledge or consent of the master or owner, removed certain portions of the engine and machiaery from the tug, and greatly damaged the same, whereby the tug was delayed at Detroit for two days, and re- spondent suffered damage to a greater amount than the wages claimed to be due. It appeared upon the trial that libellant, who was an ex- perienced engineer, was dissatisfied with the construction of the engine in some minor particulars, and suggested to the master a change in the cut-off quadrant, and reversing lever that would render the engine safer and more manageable. The master did not give an express assent to the alteration, but made an evasive answer which libellant construed as an ac- quiescence. On arriving at Detroit, the home port of the tug and the residence of respondent, the boiler was found to need 150 DISTRICT COURT. The John Martin. .some slight repairs, and libellant, -without consulting the owner, seized the occasion to make the alterations he had suggested, took apart certain portions of the engine, carried them to a founder, and was superintending the work when he was dis- covered by the owner and discharged. The tug was delayed more than a day, and lost a valuable tow. Mr. M. B. Brown, for libellant, contended that if the a teration was made in good faith, with the design of improviuj^ the engine, and libellant used reasonable skUl, he ought not to be subjected to a forfeiture of his wages because he had failed to obtain the authority of the owner, citing 2 HiUiard on Torts, 473 ; Story on Baiknents, sees. 429, 431, 433, 440. Mr. W. A. Moore, for respondent. WILKESTS, J. I was satisfied at the close of the proofs that this libel ought to be dismissed, but the lucid argument of the proctor for libellant induced me to withhold a decree until further deliberation. I believe f uUy the testimony of the respondent Pridgeon as to the rate at which libellant was employed as engineer of his tug, and also as to his loss incurred by libellant's unauthor- ized conduct in disabling the vessel by undertaking to remodel the engine at the home port, without the consent of the owner, who was personally present when the vessel reached the wharf. The engineer's conduct was unexcusable, and at the season and under the circumstances occasioned damage more than the amount of wages due. In navigating a steamboat, the engineer commands and controls his own department, but this power cannot be ex- tended beyond the voyage. When that terminates his power ceases, except so far as is necessm^ for repairing the engine and making ready for another voyage. He has no authority to remodel the engine without the consent of the owner. That consent was not obtained in this case, and the act of the en- gineer was one of gross insubordination — working a forfeiture of his wages. Libel dismissed. EASTERN DISTRICT OF MICHIGAN. 151 The Tan Bark Case. THE-TAJS" BAEK CASE. MAY, 1866. Eblbase of Lien by Delivery of Cargo. — Bill of Lading. — Liability of Carrier fob Loss by Freezing. The delivery of a cargo to the consignee without demanding freight or notify- ing him of the master's lien therefor, will, in the absence of special agree- ment or local usage to the contrary, discharge such lien. The mere intention of the master to retain his lien is not sufficient as against a consignee who has bought and paid for the cargo. The bill of lading, though not conclusive, is very strong evidence of the ap- parent condition of the cargo. A master who lays his vessel up for the winter, with cargo on board, is bound to take precautions to prevent injury from dampness or mold, and to protect his deck load from the effects of snow and ice. When, by his negligence, the cargo is exposed to injury by an excepted peril, the carrier is liable. He is bound to take such precautions as he can fore- see are necessary under the circumstances of the case. Libel for freight. The libel averred that, in December, 1864, John Becker, as master of the schooner John Thursby, received on board of the schooner, at Goderieh, 112^ cords of tan bark, to be carried -to Detroit ; that it was then very late in the season, and cold weather coming on suddenly, the schooner was frozen in and compelled to lie up at Goderieh for the winter. That in the month of AprU following the schooner completed her voyage, and discharged her cargo at ■ the dock of Jewell & Sons, at Detroit, with the understand- ing that they had bought the same, and would pay the freight thereon. That the bark was worth between $500 and $600 ; that their freight was to be $3 50 per cord, and that, at the time of discharging the bark, libellants notified Jewell & Sons that they claimed a lien for freight, which they would not re- lease without payment. That Jewell & Sons promised to pay the freight, did pay $38 to apply upon it, but refused to pay the residue, or surrender possession of the bark. 152 DISTRICT COURT. The Tan Bark Case. The ANSWER averred that the charter had been effected in October, and the bark sold in Detroit " to arrive " at $9 50 per cord, but that, owing to the delay of the vessel, the sale had . been rescinded, and claimant had made another bargain to sell to Jewell & Sons at $6 per cord, if delivered in good order. That upon reaching Detroit it was found to be so badly injured by wet, dampness and mold, as to be nearly worthless, and that this damage had been occasioned by bad stowage and insuflS- cient care. The agreement by Jewell & Sons to pay freight was denied, as well as notice of the master's hen for the same, and it was claimed that delivery of the cargo had discharged the lien. Upon the trial it appeared that a bill of ladiag had been signed by the mate, certifying the bark to be "shipped in good order and condition." There was some conflict of testi- mony, however, as to its actual state at the time of shipment. The weather became so cold after the bark was laden on board that the vessel was unable to proceed on her voyage, and the mas- ter left h6r, with instructions to strip her of her sails and rig- ging, and lay her up for the winter. The hatches were fastened down, but not so tightly but that water dripped into the hold ; the deck load had been put on board in the usual manner, but had not been roofed or otherwise protected from the weather, so that ice had gathered thick upon deck, and a portion of the bark had to be chopped out and throvm away. In being dis- charged, it was found the cargo was wet, molded, and dam- aged about one-half its value. There was a preponderance of evidence to the effect that the master had delivered the cargo to Jewell & Sons, who were assignees of the bill of lad- ' ing, without notice of his lien for freight. While the bark was being unloaded, the master went to Cleveland upon other business, returned two days after the vessel had finished dis- charging, and demanded his freight, which was refused. Mr. W. A. Moore, for libellant. The delivery of the cargo was not made with the intention EASTERN DISTRICT OF MICHIGAJT. 153 The Tan Bark Case. of releasing the lien (Angell on Carriers, § 370 ; The Volun- teer, 1 Sum. 551 ; Oertwi/n Logs of Mahogany, 2 Sum. 589 ; The Kimball, 3 Wall. 37; 151 Tons of Coal, 4 Blatch. C. C. 368). The vessel is not responsible for the damage to the bark by freezing (Glark v. Ba/rnwell, 12 How. 272; Lamb v. Pa/rhman, 1 Sprague, 343 ; Baxter v. Lelam,d, Abbott Adm. 348). The bill of lading- is not conclusive evidence of the condi- tion of the cargo at the time of shipment {Bissell v. Price, 16 lU. 408 ; Ellis v. Willard, 5 Seld. 529). Mr. e/i S. Ifewberry, for claimant. WILKINS, J. I think it established by a preponderance of testimony that the master delivered the bark to Jewell & Sons without demanding freight or notifying them of his lien. It is true that $38 was paid by them to Capt. Becker, while the cargo was being unloaded, but it was charged not to the master but to the shipper, Mr. Paul, and was allowed by him on his settlement with JeweU & Sons. The fact that the shipper was then in Detroit, and was present at the un- loading of the vessel, taken in connection with the, master's departure for Cleveland, and his failure to return until two days after the vessel had finished discharging, would naturally lead them to suppose he had waived his lien, and relied upon the personal responsibility of tlie shipper. Prima facie, the delivery of the cargo to the consignee releases the lien for freight ; it may be preserved, however, by a special agreement, by notice that the delivery is made subject to the- lien, or by a local usage to that effect, but the mere in- tention of the master to retain his lien, not communicated to the consignee, is insufficient. (AngeU on Carriers, §§ 370-374 ; Bigehw v. Eeaton, 4 Den. 496; Bags of LAnseed, 1 Black, . 108). As JeweU & Sons bought and paid for the bark before notice of the master's lien, it would be manifestly unjust to permit him now to enforce it. 164 DISTRICT COUET. The Tan Bark Case. Independently of this, however, the claimant is entitled to recoup the damage sufiered by the cargo. The evidence fails to satisfy me that it was not in good condition when shipped on board, notwithstanding the testimony of the master and mate that they told the shipper it was damaged and re- fused to receipt for it in good order. As matter of fact the mate did certify that it had been " shipped in good order and condition, and although a bill of lading may be contradicted in its recitals of number, quantity and quality, and is but slight evidence of the condition of goods packed in boxes or otherwise not open to inspection, it is very strong evidence of the outward condition of the cargo at the time of shipment.* In one case at least (Benjamva v. Sinclair, 1 Bailey, 1Y4), it has been held conclusive evidence, though I cannot see that the doctrine of estoppel has any application to the case. It would be a premium, however, upon gross negligence to permit it to be controlled, except by clear evidence. In this case not only does the consignor testify that the bark was in good order when shipped, but it is admitted that the top layers of the deck load, which would naturally have come from the bottom of the pile as it lay upon the bank, and consequently most exposed to moisture, were in perfectly good condition when delivered. Although a loss by freezing is an excepted peril, the car- rier must be free from negligence. It was a contingency which, in this case, must have been foreseen, and should have been provided against. There is no evidence, however, that any precautions were taken to preserve the cargo from the effects of frost. Immediately upon the harbor being closed, the master left for home, leaving the vessel in charge of two men, with instructions to strip her and lay her up for the winter. He put no shipkeeper on board, but, as he says, paid a man $5 " to keep an eye on her " during the winter. There is no evidence of what was done after his departure. No pre- ■ cautions, however, appear to have been taken to ventilate the hold, or to prevent dampness from collecting and injuring the bark. "Where a cargo gathers moisture, as sometimes occurs EASTERN DISTRICT OF MICHIGAIir. 155 The Tan Bark Case. in passing from a warm to a cold climate, it lias been lield the carrier is not responsible ; but wbere tbe gathering of damp- ness and mold is the usual effect of laying a vessel up for several months, I think the master is bound to use some pre- cautions by ventilating his hold, or otherwise to obviate in- jury. At least he should have exercised the ordinary prudence of roofing over his deck load, and preventing the ice from gathering upon the deck. "Where the negligence of the carrier exposes the goods to injury by an excepted peril, the authorities are uniform that he must respond in damages. He is bound to take not merely the usual precautions against frost, but aU such as he could foresee were necessary to be taken under all the circumstances of the case (Edwards on Bailments, 456-478 ; Angell on Carriers, sees. 160-164 ; Abbott on Shipping, p. 485 ; Seml&r V. Commissioners, 1 Hilton, 244 ; Bowman v. Teall, 23 Wend. 306 ; Glarh v. JSa/rnwell, 12 How. 2Y2 ; if. J. Nm. Go. v. Merchants' Bank, 6 How. 385). As the damage to the cargo in this ease exceeds the freight, the libellant is not entitled to recover. Libel dismissed. Note. — ^Upon the question of release of lien, see also the following cases : The Mdy, 6 Wall, 481 ; Tlie Bird of Paradise, 5 Wall. 545 ; Tamvaco t. Simp- son, Law Kep. 1 C. P. 363 ; Paynter v. James, Law Rep. 2 C. P. 348 ; Kirchner V. Venus, 12 Moore P. 0. 361. 156 DISTRICT COURT. Henry Miller's Case. HENET MILLEE'S CASE. MARCH, 1867. Ckiminal Jukisdiction. — High Seas. The great lakes are not " higli seas " mthin the meaning of the Act of July 29, 1860, punishing the burning of vessels. MoTioif in arrest of judgment. The defendant was con- victed of wilfully procuring tlie setting on fire of the passenger steamer Morning Star, plying between Detroit and Cleveland, on Lake Erie. The indictment was framed under the Act of July 29, 1860 (sec. 7, 9 Stat. 441), punishing the offense when committed on the "high seas." The defendant's counsel moved the Court that a rule be entered directing an arrest of judgment, for the reasons following, to wit : 1. Because the offense named in the indictment is charged to have been committed on the high seas, and this Court has no jurisdiction over any part of the high seas. 2. Because the offense charged in the indictment, if com- mitted on any part of Lake Erie, is not an indictable offense vothin any Act of Congress cognizable by this Court. 3. It appears in evidence that if the offense charged in the indictment was committed at all, it was committed within the territorial boundaries of the State of Ohio, and hence the Court had no jurisdiction, and erred in refusing to charge the jury, as requested by the defendant's counsel, that this Court had no jurisdiction of the case. Mr. O. V. jy. ZotArop, for motion. Mr. Alfred Russell, TJ. S. District Attorn^, for the Government. EASTERN DISTRICT OF MICHIGAN. 157 Henry Miller's Case. "WILKINS, J. By the Constitution Congress may define and pirnish felonies committed upon the high seas. The mo- tion in this case requires the Court to determine the meaning of the words " high seas," as employed in the Constitution and the penal Acts passed thereunder. The 7th section of the Act of July 29, 1850, imder -which this indictment is framed, provides that " every person not being an owner who shall on the high, seas wilfully, with in- tent to destroy the same, set fire to any vessel," &c. I regard it as settled that the high seas are the uninclosed waters of the ocean outside the projecting capes. Without going over the cases at length, I may refer to Wiltberger's Case, 5 "Wheaton, 76, and Beman^ Case, 3 Wheaton, 336; GrusKs Case, 5 Mason, 290. The Act of 1850, under con- sideration, is almost identical with the Act of March 26, 1804, chapter 40, and Judge Story, in Bdbinson^s Case, 4 Mason, 307, gave a construction to that Act, and decided that ship- burning on a bay in the island of Bermuda, land-locked and inclosed by reefs, was not committed on the " high seas " with- in the purview of the Act. So Mr. Justice !N"elson, in the late case of Wilson, 3 Blatch. 435, also held in respect to this offense when committed on the East river. It should be ob- served that in most other acts touching offenses on the high seas, the words " or in any haven, creek, basin, bay or other waters within the admiralty and maritime jurisdiction," are added. And within this latter description the lakes would be included. But the Act of 1845 itself extending the admiralty juris-, diction over tlje lakes, recognizes the distinction between the lakes and the high seas. The same jurisdiction is given by that Act to the District Courts in certain cases arising on the lakes, as in cases arising on the high seas. It is true that, in Moore <& Foot v. Am. Ttoms. Co., 24 How. 1, the Supreme Court declared that navigation upon Lake Erie was not inland navigation as contradistinguished from navigation upon the ocean, and used language classing the lakes with the ocean for certain commercial purposes ; but 158 DISTRICT COURT. Henry Miller's Case. the opinion in that case clearly points out the distinction be- tween the lakes and the high seas. I agree with the Court in Wilson's case, that it is within the constitutional competency of Congress to define and pun- ish this offense when committed upon other waters than the high seas ; but Congress has not done so ; and in cases likr this and the case of the Lake Erie pirate, Burley, the Federa Courts cannot act without an amendment of the Act of 184:1 extending the jurisdiction to crimes, as well as to torts and contracts concerning lake shipping between the States. Such an act would be beneficial on account of the difficulty of fix- ing the locality of such crime so as to give jurisdiction to any particular State Court, and by reason of the accessibility and effective process of the Federal Courts. In this and other similar cases the offender will in aU probability go unpunished in any State- Court. The evidence in this case exhibited a state of facts truly frightful to contemplate, and it is with great regret I feel compelled by the decisions of the Supreme Court to grant the motion and direct the discharge of the prisoner for want of jurisdiction. Judgment arrested. DISTRICT COURT. NORTHERN DISTRICT OF OHIO. How. CHARLES T. SHERMAN, District Judge. THE YOLUNTEER. JAHTJARY, 1S10. Jurisdiction. — Inland Waters. The admiralty has jurisdiction of a collision between a canal-boat and a tug engaged exolusirely in harbor service and occurring upon nayigable waters wholly within the body of a county. This was a libel to recover damages to the canal-boat Fred. "Wood, caused by a collision with the tugs Volunteer and JSTichols, in the harbor of Cleveland, on the 7th of Octo- ber, A. D. 1868. Messrs. Willey S Cary, for libellant. Messrs. Ganfield <& BuokingTiwm, for claimant. SHEEMAN, J. The first question raised is, whether the Coiirt has jurisdiction in admiralty of those vessels used only- in the harbor of Cleveland and within the body of a county in Ohio. It is claimed the only jurisdiction, if any, this Court can exercise is by virtue of the Act of Congress of 1845, and that this Act does not confer general admiralty jurisdiction over vessels navigating these lakes, much less over vessels only 160 DISTRICT COURT. The Volunteer. plying, as these vessels do, within the body of the county of Cuyahoga. This has been a much mooted question, and there has been much controversy on the subject, both in this country and else- where. It cannot be said that it is yet a well settled question either way. But so far as this district is concerned, it may be con sidered res ad^udlcata. In the Eevenue Cutter Cases (cmte, p 76), it was, after an elaborate argument, and due examinatioi and deliberation, decided by my predecessor, that, under the Constitution and laws of the United States, admiralty jurisdic- tion did extend over the lakes and their navigable waters. This decision has never been reversed, and the learned opinion then announced never been answered or much controverted. I shall, therefore, adhere to it as the law of this Court, until it is reversed or modified by the Supreme Court. The same may be said as to the admiralty jurisdiction over tugs and other vessels plying in the navigable waters and harbors of the lakes, and used in the commerce carried on between the States bordering on the lakes. It has been frequently decided that these vessels, though not actually employed in transporting freight and passengers to points and places outside of the State, yet they are links of transportation necessary and indis- pensable to enable the commerce between the States to be duly carried on ; and, therefore, they are properly subject to admiralty jurisdiction. Both of these tugs were used in tow- ing vessels engaged in commerce between the States, in the harbor, and outside to their destination. The canal-boat in- jured was actually employed at the time in bringing a cargo to a vessel destined to Chicago or Detroit. The tugs and the canal-boat were all, therefore, links of transportation, and come within the uniform rulings of the Courts bordering on the lakes. Such being the law of the case, and being satisfied from the evidence that the tug Volunteer was in the fault, the de- cree wiU be against her alone, for such damages as may be found, upon reference, that the canal-boat sustained. Libel dismissed as to the tug Nichols. Decree for liheUant. NOETHERN DISTRICT OF OHIO. 161 The Bramen. THE BEAMEN. MARCH, 1871. Wages. — Moetgagke in Possession. A mortgagee in possesBion is liable for the mate's wages. This was an action brought to recover the wages of libel- lant as mate, and of his wife as cook, of the scow Bramen during the season of 1870. The action was in personam against Hurst, as the owner of the scow. Hurst denied the ownership and his liability. It appeared from the evidence that the scow was built by one Gabriel, and two men by the name of Stywalt. That, during its construction, they became indebted to the respond- ent Hurst in a large sum of money, which they secured at first by a mortgage on the scow, and subsequently by an ab- solute biU of sale, accompanied, however, by a verbal agree- ment that, upon the payment of the money to Hurst, the ves- sel should be conveyed back. That, upon the execution of the bill of sale. Hurst took out a new enrollment in his own name, and by his consent Captain Eayman assumed charge and command of the vessel, with the understanding that he would account for her earnings to Hurst. Messrs. Willey, Cory and Terrell, for libellant. Messrs. Jfw, JVoUe and White, for respondent. SHEEMAIST, J. Upon the state of facts disclosed by the evidence I am satisfied that the bill of sale given by Stywalt and other owners was, and should be treated as a mortgage, and that Hurst held it only as mortgagee. The case turns upon the fact whether the vessel was or was not in his pos- session, and under his control. If he held it as a mortgagee 162 DISTRICT COURT. The Neil Cochran. without possession, the authorities, both ia this country and in England, hold that he is not liable for the wages of the of- ficers and crew, or for repairs and supplies. If he was a mort- gagee with possession, then, under the English authorities, he would not be liable, unless the suppKes were furnished and services performed upon his credit. But by the American authorities (see Hodgson v. Butts, 3 Cranch, 140 ; Tucker v. Buffington, 15 Mass. 477 ; Milm, v. Spmola, 4 Hill, 1T7), he would be held and considered as the owner, and liable for the expenses and supplies. These authorities lay down the prin- ciple clearly and distinctly, and must govern this case. I have carefully examined the evidence, and if, from it, I had any doubt that Hurst had not the possessictQ and control of the vessel after he had received the bill of sale, that doubt would be resolved by the fact that he took out an enrolhnent of the vessel in his own name, and in doing so swore that he was the true owner, and in actual possession of the same. And thus being the owner, and the vessel running for his benefit, he must be held liable for the wages of the libellant and his wife. Decree for libellant. THE KEIL COCHEAK JAITUARY, 1872. Jurisdiction. — Injury to BRiDa«. An action will not lie in admiralty against a veaael to recover for damage done by her to a bridge thrown over a navigable stream. Libel for collision. The facts are fully stated in the opin- ion of the Court. NORTHEKN DISTRICT OF OHIO. 163 The Neil Cochran. Mr. James Mason and Messrs. Estep & BurJce, for libel- lant. Messrs. Willey, Ca/ry tfe Terrell, for claimant. SHEKMAN, J. This is a Ubel by the Lake Shore and Michigan Southern Railroad Company against the schooner Neil Cochran, setting up substantially the following facts : The libellant is a corporation duly incorporated under the laws of the State of Ohio, having its office and principal place of business at Cleveland. It is the owner of an iron swing- bridge across the Cuyahoga river, near its mouth, being so constructed as to swing entirely out of the way of vessels navigating the river, enabling them to pass and repass without obstruction. Said bridge is duly authorized by law, and is kept constantly manned, night and day, with a sufficient force to swing it when vessels approach, and at night is lighted and in full view of all vessels entering said harbor. On the night of November. 10th, 18Y1, the bridge was so lighted, manned and ready to be swung, upon notice of the approach of vessels, by lights, signals or otherwise. The schooner Neil Cochran came into the port of Cleveland, on a voyage from Port Hope, in Canada. When the vessel ap- proached and entered the Cuyahoga river, she. was without lights, and gave no signal whatever. By reason of the dark- ness of the night she was not, and could not be, seen by those in charge of the bridge, until she was so near that the bridge could not be swtmg out of her way ; and the vessel negligently and carelessly ran into and against the bridge with great force and violence, and broke and injured the bridge to the extent of ten thousand dollars. This damage was occasioned solely by the neglect of the vessel to exhibit lights and to give any signal of her approach. The libel then prays process against the vessel, and that a decree be pronounced against her for said damage and costs. To this libel "William E. Stafford, owner and claimant of said vessel, files an exception alleging that said libel is insuffi- 164 DISTRICT COURT The Ifeil Cochran. cient in ttis, to wit : " That the wrongful acts alleged in said libel against the said schooner Neil Cochran, her master and crew, do not constitute a marine or maritime tort; and that this Court has no jurisdiction of this case in manner and form as here brought." The question, then, for the Court is this : Do the wrong- ful acts set forth in the libel constitute a marine or mari- time tort? In the decision of this question it is unnecessary for the Court to go into a review of the authorities as to the jurisdiction of admiralty in cases of tort. It is sufScient to say that it is well settled and conceded law that the test of ad- miralty jurisdiction in cases of tort is the locality of the act. Therefore, in this . and all other like cases, when we have de- termined whether the tort was committed npon navigable waters within the admiralty cognizance, we have also deter- mined the question as to whether or not it is a marine or mari- time tort. In determining this question I shall be guided by the de- cision of the Supreme Court of the United States, the opinion delivered by Mr. Justice Nelson, in the case of The Plymouth (3 WaUace, 20). From that case, supported by the clearest and most con- vincing reasoning, the following propositions are deducible : First. The jurisdiction of the admiralty over marine torts depends upon locality — the high seas or other navigable waters within admiralty cognizance. Second. The origin of the wrong must not only be on nav- igable water, but the substance and consummation of the in- jury must also be on navigable water. Third. The fact that an injury is 'done by a vessel is of no weight in determining the question of jurisdiction, locality being the test. Fourth. If the negligence which occasions the injury is upon navigable waters, but the whole damage resulting there- from is upon the land, kdmiralty has no jurisdiction. Fifth. The negligence, of itself, furnishes no cause of ac- tion ; it is darrmv/m aisque injuria y the whole or substantial NORTHERH' DISTRICT OF OHIO. • 165 The Neil Cochran. cause of action, both negligence and resulting damage, must be upon navigable water to constitute a maritime tort. In the light of these propositions what shall be said of the case at bar ? Clearly this : That the origin of the wrong was upon navigable water, but that the whole damage resulting therefrom was done upon the land, the bridge being attached to and a part of the land. Indeed, the case at bar and the case of The Plymouth are identical in principle. In that case. The Falcon, a steam propeller, was moored at the wharf in the Chicago river; she took fire through the negligence of those in charge of her ; the fire communicated to and burned down some large packing houses on the wharf, and the owners of the packing houses filed a libel against the owners of The Falcon, for the resulting damage. The libel was dismissed for want of jurisdiction, and the United States Supreme Court affirmed the decree. There, as here, the negligence or origin of the wrong was on board a vessel, an instrument of commerce ; there, as here, the vessel was, at the time of the negligent acts, on navigable waters ; and here, as there, the whole damage or consummation of the injury was upon the land. There is no distinction to be taken between the cases. I conclude, then, in the case at bar, the substantial damage or injury, for which the libellant asks relief, was done upon the land, and not upon navigable waters ; and that, therefore, this Court has no jurisdiction in the case. Libel dismissed. Note. — See The Ottawa, post. 166 DISTRICT COURT. The Glover. THE GLOVEK. OCTOBER, 1872. DbMURRABE. CoNSIGNKK. C0STOM. Where no " lay days " are provided in the charter party or bill of lading, and there is no express stipulation as to the time of unloading, the consignee is not liable for delays occurring without his fault. If it is a custom at the port of delivery for vessels to be xmloaded through an elevator, each vessel waiting its turn, such cpstom becomes part of the con- tract, and the master takes upon himself the risks and delays incident to such a method of unloading. The libel in this case was filed in personam to compel the payment of demurrage by the consignee Thomas Walton, for seven days' detention of the schooner Glover, in unloading a cargo of barley in the port of Cleveland. The bill of lading was in the usual form, but did not provide for " lay " days, nor for compensation for detention. It was general in its form, such as is customary on the lakes. From the proof it appeared that the vessel arrived at 10 o'clock A. M., on Wednesday, October 4th, and was forthwith reported to Thomas Walton, the con- signee. That upon inquiry, both by Walton and the captain, no elevator could be found in the port that would agree to un- load her before the next Friday. That on Friday, the 6th, the vessel was at the Erie elevator and commenced unloading, but the cargo of barley was found to be wet, caused by leaking through the hatches, and they therefore ceased unloading; that by the next Tuesday the barley, by throwing open the hatches and by other means, became dry enough to commence unloading ; that about one-haK was unloaded, when some of the machinery of the elevator broke, and the barley was not entirely unloaded until Thursday. It was also established by the proof that it was a general and uniform custom along the lakes, including this port, that the consignee should have twenty-four hours, after the arrival of a vessel at the docks, to NORTHERN DISTRICT OF OHIO. 167 The Glover. provide a place and prepare for its tmloading ; that all grain Bhould te unloaded by means of an elevator, and that, in un- loading at an elevator, every vessel should take its turn in the order of its arrival. Under this state of facts the libeUants, on the one hand, claimed to recover damages for the detention of the vessel, at the rate of $75 per day, the agreed value, and, on the other hand, the respondent and consignee claimed that he was not liable for such detention, as it was not caused by his fault or neglect. Messrs. Willey, Gary <& Terrell, for libeUant. Messrs. Prentiss <& Voroe, for respondent. SHEEMAIT, J. The liability of the consignee in this ac- tion turns upon the question whether the law imposes upon him the payment of damage when the detention was not caused by his actual fault or neglect. Originally it was held that damage could only be recovered when it was expressly stipulated for in the contract of affreightment or bill of lad- ing ; but of late years it is established that it may also be re- covered when there is a breach of an imphed covenant or duty on the part of the consignee. In former times, aU charter parties and bills of lading, stipulated on behalf of the freighters or consignees, that a certain number of days should be allowed for unloadiag, and that, after their expiration, an agreed price per day should be paid for demurrage. The Courts before whom such contracts came, uniformly held that the consignee was liable for such demurrage, no matter for what reason or whose fault caused the detention. They so held, because it was the contract of the parties, but chiefly because it was a contract mutually entered into, and the consignee could have provided for a large number of days, or could have stipulated against a liability for delay caused by means and occurrences over which he had no control {RcmdO/ll v. Lynoh, 2 Camp. 362 ; s. 0. 12 East, 179 ; 1 Parsons on Shipping, 314"). In other 168 DISTRICT COURT. The Glover. eases, where, according to modem usage, there is no stipula- tion for " lay days " or demurrage in the charter party or biU of lading, the Courts uniformly, both in England and America, hold that where there is no express stipulation as to the time of imloading, a consignee is not liable for delays occurring without his fault, or a failure on his part to comply with some of the obligations imposed on him by law or a custom of the port as to unloading [Burmester v. Hodson, 2 Camp. 483, 488). Chief Justice Mansfield, in the last case, said : " Here the law could only raise an implied promise to discharge the ship in the usual and customary time for unloading such a cargo. That has been rightly held to be the time within which a vessel can be un- loaded in her turn into the bonded warehouses." The same doctrine is fully sustained in Abbott on Shipping (311, 312, 313) ; also in The Ca/rgo of the Mwry E. Tdber (1 Ben. 105); and B. B. Oo. v. Northam (2 Ben. 1) ; Towle v. Eetlel (5 Cush. 18). In the late case of Strong y.A Qucmtity of Wheat, in the United States District Court, ITorthem District of New York, in manuscript. Judge Hall held that a master of a ves- sel was bound to know the custom of the port to which he conveyed a load of grain, and if the custom prevailed at the port that all grain should be unloaded at an elevator, and that the vessel should wait its turn, that the custom entered into and became part of the . contract, and that the master was bound by that custom. This distinction between the liability of consignees, when " lay " days and demurrage are provided for in bills of lading, and their liability where they are not mentioned and provided for, is fully recognized in all the reported cases. It is not rec- ognized in rather a popular elementary work, because of the well known carelessness and want of research by its reputed author, and hence has grown up an extended misapprehension of the law on this subject. Bearing in mind this distinction, and the fact that this biU of lading was a general one, with no provision for " lay " days or demurrage, the question arises : Did Walton, by his neglect or fault, cause detention of this vessel ? The detention from "Wednesday to Friday, in wait- NORTHERN' DISTRICT OF Omo. 169 The Glover. ing its turn to get to tlie elevator, was, according to the above authorities, and especially that from Judge Hall, of the North- em District of New York, a part, of the contract, was in com- pliance with the custom of the port, and Walton, the con- signee, was not liable. On Friday, after the elevator commenced to take in the cargo, finding the barley was wet, its managers refused taking it in until it was dried. The libeUant claimed that the elevator stopped taking it in because of the orders of Walton, who wanted to consult the insurance company. The captain of the vessel so swears. Walton swears the contrary, and states positively that the elevator people refused to take it because of its condition. The burden of the proof of the fact is on the libeUant, but the testimony is balanced, and I must assume that Walton did not order as claimed. If so, then the detention of the vessel from Friday to the next Tuesday was not Walton's fault, but was rather the fault of the master of the vessel, who permitted his cargo to become wet by the defective state of his hatches. Nor was it Walton's fault that the vessel was further delayed until next Thursday in conse- quence of the breaking of the machinery of the elevator, while it was engaged in taking in the barley. The master was aware of the well known and uniform custom in all the ports on the lakes : that grain is only unloaded from a vessel by and through an elevator, and that such was contemplated when he made his contract, and therefore he takes upon himself all the risks and accidents incident to such a method of unloading. I am of the opinion, therefore, that Walton, the consignee, is not liable in this action. IMel dismissed. Note. — ^It seems to be assumed in this case that an action in personam will lie in admiralty against the consignee to recover demurrage occasioned by his default, and such appears now to be the law. It has been lately decided by Judge Lowell, of the Massachusetts District, that a suit in rem will lie against the cargo to recover damages for delay in un- loading. (The Hyperion's Cargo, 1 Law Rev. 457. See also TapscoU v. Bel/our 1 Asp. Mar. Law Oas. 501 ; Ford v. Coteatoorth, 3 Mar. Law Caa. 468.) CIRCUIT COURT. NORTHERN DISTRICT OF OHIO. How. HALMEE H. EMMONS, Ciecuit Judge. THE AVON". FEBKUART, 1873. Collision is the Welland Canal. — Jurisdiction of Torts in Foreign Waters where Local Law gives no Lien. — Ad- MiRALTr Lien not divested by sale to Bona Fide Purchaser, unless by a Proceeding In Rem. — Libellant's Damages not TO BE Decreased by Amount Paid Him by Underwriters. The general maritime law universally recognized by civilized nations g^vea a lien for a marine tort upon the offending vessel, and tHs lien travels with the ship into whosesoever hands she may go. The proceeding in rem, to en- force such a lien, is not process. In no sense is it remedy only, or a part of the lex fori, but is the enforcement of a proprietary interest. This lien or proprietary interest is not divested by a sale to a hona fde pur- chaser without notice, unless had by virtue of a judicial proceeding in rem. A transfer within a jurisdiction where the offending ship is not subject to seizure does not constitute an exception to this rule. The waters of the Welland Canal, as now used for international commerce, are within American admiralty jurisdiction. The Suez and other canals, and all the improved navigation of the world, have been, and from the nature of their use should be, as much subject to admiralty jurisdiction as waters in natural channels. While a natural thoroughfare, although whoUy within the dominion of a government, may be passed by commercial ships of righi, yet the nation which constructs an artificial channel may annex such conditions to its use as it pleases. NORTHERN DISTRICT OF OHIO. 171 The Avon. When it may be inferred that the maritime law sought to be applied is ex- cluded by the lex loci, the remedy in rem should be denied. If from the cir- cumstances a contrary presumption arises, the principle of the maritime law involved should be enforced. It is not enough per se to deprive a Court of admiralty jurisdiction, that collision happens where there is mxmicipal power to exclude the maritime rule. It must further appear that it has actually been done, and this the record in this case fails to show. The mere absence of a tribunal to enforce the maritime law has never been admitted as sufficient evidence of intention to exclude it. No argument can be drawn from the fact that the "Welland Canal is a tideU's water, and that therefore the authorities which sustain admiralty jurisdiction over torts and contracts, in foreign waters, do not extend the maritime law over it. Admiralty Courts have taken jurisdiction wholly irrespective of the fact of a tide. Inapplicability of the lex loci contractus, the lex rei citce, and the lex loci de- licti, where obligations growing out of international commerce are to be ad- judicated with reference to the maritime law, considered. The libellant in a, collision case, when successful, is entitled to recover the full amount of his damages, notwithstanding he may have received partial indemnity from the underwriters. Collision in the "Welland Canal between the schooner Medbury and the propeller Avon. The claimant interposed two special pleas to the libel. . (1) That the Avon was a Brit- ish vessel, owned and registered in Ontario, and at the time of the collision bomid from one British port to another — ^that the WeUand Canal is an artificial navigable water connecting Lakes Erie and Ontario, exclusively British property, and within British territory. (2) That after the collision and before libel filed, claimant purchased the propeller for a valuable consid- eration, without notice of this claim. That there are no ad- miralty courts in Ontario, and no admiralty jurisdiction in force there, and that by the laws of said province the propeller is not liable to seizure for injuries done by her while owned by another person. Messrs. £. B. Bemis and Willey, Gary & Terrell, for libeUants. The only reported case upon the question whether Courts 172 CIRCUIT COURT. The Avon. of admiralty have jurisdiction of a tort committed upon the Welland Canal is that of Soott v. The Young America (Newb. 101), where the jurisdiction was sustained. This has ever since been accepted as law. This decision was not based upon the obsolete Act of 1845, for it declared th5 Act of 1Y89 fur- nished a broader jurisdiction. The case of The Genesee Chief was rested "upon the ground that the lakes and na/oigdble waters connecting them are within the scope of admiralty . jurisdiction." Same language is employed in case of The Eagle (8 "Wall. 20), which is decisive of the present case. The objection that the Avon was owned in Canada is met by the uniform practice of the American Courts for sixty years to enforce remedies in admiralty without reference to ownership, whether domestic or foreign (2'Ae Commerce, 1 Blaet, 580 ; The Maggie Hammcmd, 9 "Wall. 435). No case can be found holding that jurisdiction between our own citi- zens and foreigners is a matter of comity — it is everywhere treated as a matter of right. The fact that by the local law there is no Hen for a tort is disposed of by the case of The Eagle. It is not a question of local law, but of the general maritime law, though in cases of contract, the court may decline jurisdiction if it sees fit (1 Pars, on Ship. 531). The District Court erred in deducting from the damages the amount received from the insurance companies. It is something with which a trespasser has nothing to do. If the insurance is paid before suit brought, and the company subro- gated, the company is the proper party to sue, but if paid after suit brought, as in this case, the proceeding is not afiected by it. The company may become a party as co-libeUant if it chooses, or the suit may go on as commenced, the libellant accounting to the company for its proportion, Messrs. Estep <& Burh, for claimant. (1) The jurisdiction in cases of tort depends exclusively on locality — ^it must happen upon waters over which the jurisdic- NORTHEEN DISTRICT OP OHIO. 173 The Avon. tion extends {The Commerce^ 1 Black, 584). The. "navigable waters" spoken of in the Acts of 1789 are known by differ- ent names, and it is, perhaps, not necessary they should be connected directly with the sea. The words "navigable streams" are sometimes used, but no correct definition could make this canal a st/rewm, of water, as it is without head or flow, and vessels pass through it with the aid of a dozen locks. ISTo case can be found of a Court of Admiralty assuming juris- diction of a collision in a canal except in the great Holland Canal, which was treated as a confining of the waters of the sea to a particular locality. In the cases of the Genesee Chief and Eagle, the distinc- tion is taken between puhUc navigable streams, which are the common property of both nations, and pri/oafe ways con- structed by corporate enterprise, into which vessels can only enter by leave, upon payment of tolls, and subject to regular tions prescribed by the owner or the Canadian Government. The canal in question was dry land more than' fifty feet above the level of Lake Ontario when Congress passed the Act of 1789, and so continued for more than fifty years. Congress could not therefore have intended to include it. The Ohio and Pennsylvania Canal connects the navigable waters of two States, and is navigable by vessels of 100 tons, but it has never been claimed to be within the jurisdiction of Admiralty. They are navigable, but not public navigable streams. These canals may be, and frequently are, leased to private corporations or individuals, who may close them against everybody but themselves. In the case of The Young America, no plea or answer was interposed, and the case was heard on motion to set aside the decree. The decision was based wholly upon the Act of 1845, now obsolete, the canal being in fuU operation when Congress passed the act, and they must have intended to include it. (2) The seizure of the vessel is a proceeding in rem, based upon a maritime lien for the injury complained of, which is enforced by subjecting the property to the satisfaction of the claim. If such lien exists it must be by virtue of some law. 174 circuit' cottet. The Avon. Evidence shows it is not by the law of Canada — it cannot be by virtue of a law of the United States, as they have no extra- territorial jurisdiction. This Court can only enforce liens given by some law — ^it cannot create them. There was no lien while the propeller remained in Canada ; yet if it did not then exist it did not attach when she came into American waters. It is not claimed the lien was created by the seizure, for the seizure was made to enforce a lien already existing. The property could not be seized upon execution or attachment, as it had passed out of the hands of the person doing the injury. By the law under which the present owners acquired title, she was free and unincumbered, and ought to remain so wherever she goes. The contract under which they bought the property is governed by the lex loci contracius,&nd if valid there, it should be held by the comity of nations valid everywhere. EMMONS, J. The Avon is a Canadian vessel. On her way from a Canadian port on Lake Ontario, to another like port on Lake Erie, she collided in the Welland Canal with the libellant's vessel, an American ship, on its way from one American port to another. The canal connects the two lakes, and is wholly artificial, but by treaty between England and the United States, and local Canadian laws, is open alike to the ships of both countries. It is a thoroughfare for inter- national commerce, and is navigated by ships as well from the ocean as the lakes. Subsequent to the collision, and before the filing of the libel, the Avon was sold in Canada to a Canadian purchaser. This suit was commenced the first time she visited an American port, and no laches are imputed to the libellant. "We have given the case far more than its share of atten- tion, and are at last compelled to make a decree condemning the Avon, in much doubt, however apparently logical the steps may seem by which it has been reached. It is argued by the claimant that there is no jurisdiction for wrongs occurring in this artificial passage, created by and whoUy vidthin the government of Canada. That as the local NORTHERN DISTRICT OF OHIO. 175 The Avon. law of that province gives no lien, none can be enforced here, and that, at all events, the subsequent sale from one subject to another of a Canadian ship within that province, as it there gave an unincumbered title, aU other Courts will respect and protect it. These propositions are deemed too weU settled to require citations in their support. "We have an argumentative purpose in noticing a few familiar maxims, which respondent's counsel deem conclusive objectioiis to the relief asked. Numerous judgments and authors too, when attention is not challenged to the distinction, dispose of cases like that before this Court, as if the rules we shall fully concede were applicable to their determination. This Kbel sets up a wrong, where consequences are not to be measured by the local law, and that it may be clearly per- ceived that this case constitutes an exception to the principles which generally apply to such local code, we desire to state and concede them, with their proper qualifications, in some fullness and detail. The utmost extension of the rules in reference to the lex loci contractus, as sustained in the following treatises and judgments, and the numerous other similar ones, both Federal and State, are not intended to be in any degree disregarded or even qualified. (Story Conf. of Laws, §§ 242, 243, and 327 ; Whart. Int. Law, tit. Z,ex rei citcB and Lex loci contractus / Bell V. Bruen, 1 How. 169 ; Duncan v. U. S. 7 Pet. 435 ; Caldwell v. Carrington, 9 Pet. 86 ; Pope v. Nicherson, 3 Story, 465 ; Bank of Augusta v. Earle, 13 Pet. 520 ; Allen V. Sheucha/rt, 10 Am. Law Peg. 13 ; Mut. Ins. Co. v. Wright, 23 How. 412 ; Bulldey v. Honold, 19 How. 390 ; Wheaton Int. Law, pt. 11, chap. 2, § 7.) The ship being Canadian, and at the time of the sale in Canadian waters, and the parties Canadians, bring the case so clearly within the principles which apply the lex rei citm, that any analysis of judgments is unnecessary to show that the local law will regulate rights unless the maritime is made to apply. Whart. Priv. Int. Law, tit. Lex rei citae, discusses with special fullness this subject, and so far as the facts of this 176 CIRCUIT COURT. The Avon. case are concerned, his criticism is approved. It is familiar law in the Federal Courts. The municipal lex loci delict/i mil equally control, if the conditions of this navigation are not such as to make applica- ble the principles governing collisions upon the sea. (See Story Conflict Laws, §§ 423 b, 423. g; Whart. Priv. Int. Law, §§ 47T, 480, and notes do., § Y07; Whitford v. Pcmama B. B. Co. 23 N. T. 467, 475, 482; BafaelY. Verelst, 2 Wm. Bl. 1055 ; Martyn v. Fahrigas, Cowp. 161, and notes in Smith's Leading Cases ; The Halley, Law Rep. 2 Adm. 17, 18, 19, 22.) This well understood rule is of course not intentionally interfered with. That an act lawful by the law of the place where it takes place is so everywhere, is but a truism. That no Court can create a lien by its judgment upon property without its territorial jurisdiction, or assume to administer its own municipal law to create one, over things not subject to its provisions, when and where the transactions occurred, out of which it is asserted the right in rem springs, is also in its broadest sense admitted. (Whart. Priv. Int. Law, § 828 ; Story's Conflict of Laws, §§ 322 b, 401, 402 a.) Not only do we decide as we do in the light of such a rule, but say with confidence, we should dissent from the qualifications as- serted by Courts of great respectability. We should have de- cided differently The Milford (Swabey, 362), The Jonathan Goodhue (do. 626), in which, by virtue of an English statute, Dr. Lushington gave an American master a lien not authorized by the law of his own country, and in reference to which his contract was made. They are justly criticised in The Halley (Law Eep. 2 Ad. 12). This proceeding m toot is not process. In no sense is it remedy only, or a part of the lex fori. It is the enforcement of a proprietary interest, and can no more be resorted to when that by the law of the place of the contract or of the act does not exist, than a suit for possession can be maintained without a title to support it. Although there are some judgments in the Supreme Court which seem so to treat it, and the history of the 12th admiralty rule would authorize a different doctrine, the late tendencies there, and its numer- NORTHERN DISTRICT OF OHIO. 177 The Avon. ouB other decisions, ably drawing the line between the laws of contracts and of property, and mere remedies, show clearly there is no authority in that high tribunal for sustaining this libel upon the notion that the proceeding is but ia remedial form. In Vandewater v. Mills (19 How. 82), the Court, by Grier, J., comments upon the looseness of Hkening it to at- tachments m personam. The late case of Ha/rmer v. Bell (22 Law & Eq. 62 ; s. c. 7 Moore P. C. 267), which is often approved in the Supreme Court, in discussing the nature of this proceeding, points out clearly the broad difference be- tween process and remedies, on the one hand, and the enforce- ment specifically of an interest in the thing on the other. Unless therefore a lien, by virtue of some law applicable to the act, was created by this collision, when and where it occurred, there is no standing here by the libeUant. We sustain the libel only because it is believed the maritime lam affords the measure of right. That the general maritime law yields, in all instances, when it is the wiU of the local sovereignty that its own code shall apply in waters subject to its control, is but another imdis- puted maxim ; and although no question has been made that this artificial passage, wholly within the dominion, Tnay be fully governed by its laws, and aU conditions annexed to its navigation which the political power deems expedient, we suggest, for the purpose of construing some judgments here- after cited, that it is no more absolute and plenary than that of all governments in the natural bays, ports, and partially inclosed waters of the sea. (Wheat. Int. Law, part 2, chap. 2, § 9; Ben. Adm'lty, §§ 39, 256, 240; Whart. Priv. Int. Law, §§ 356, 358, 440, 443, 859 ; HaUeck Int. Law, p. 130, § 13, citing Wheat, pt. 2, ch. 4, § 6, and other authors.) After say- ing that the local jurisdiction extends to all bays and ports within headlands, and to a marine league from shore, he adds : " Within this territory its rights of property and territorial jurisdiction are absolute, and exclude that of every other nation." (See p. 132, § 16.) More than this certainly cannot be said of 12 178 CIRCUIT COURT. The Avon, the Welland Canal. Judgments in reference to acts in sncli waters are precedents for like proceedings here. We have a motive, too, in calling attention to the rule tibat, when waters are boundaries, like the St. Clair and De- troit rivers, where the collision in the case of Eagle (8 "Wall. 15) occurred, the right, the absolute right, of navigation is common to the ships of both countries^ and also that, when rivers or narrow straits of the sea lead through one country into an- other, there also the right of passage exists, and the munidpal jurisdiction is modified accordingly. (HaUeck, 137, § 22; Wheat, pt. 2, eh. 4, § 11 ; 1 PhiU. § 155 ; HaUeck, pp. 138, 140, 141, 142, 146 ; Wheat., cmte, §§ 12 and 14.) It is no longer questioned here or in England, that for a marine tort a lien exists upon the offending ship. In the JRook Islcmd Bridge (6 Wall. 213), it is said : " For torts com- mitted upon the sea, a lien is given which travels with the ship into whosesoever hands she may go." The Bold Buceleugh (7 Moore P. C. 284) is approved. That it is imiversally recognized as a part of the general ma/ritvme law, and depend- ent upon no local rule of the English or American admiralty, see the America (6 Law Rep. If . S. 264) ; where, in a careful opinion. Judge HaU, of the Northern District of New York, cites and reviews Edwards v. The Stockton (Orabbe, 580) ; The Hornet {lb. 426 ; 16 Law Reg. 1) ; The Nestor (1 Sum. 78). They fully sustain his conclusions. And see The R. B. Forbes (Sprague, 328 ; s. o. 1 Cliff. 331 ; Ywndewater v. MMs <19 How. 82); The Young JTecAcmio (2 Curtis, 404); The Phoebe (1 Ware, 263) ; The Rebecca {lb. 188) ; The Feronia (L. E. 2 Ad. & Eo. 65) ; The Commerce (1 Black, 680). This feature of universalily of r.ecognition, it will be seen, is an important element in the other question, whether it shall be applied within local jurisdiction by the presumed consent of the sovereign. That the lien is not divested by sale to a bona fide pur- chaser, unless it is by virtue of a proceeduig in rem, is also said in Vandewater v. MiUs (19 How. 82), and The Rook Island Bridge (6 Wall. 213). The case cited and approved NORTHERN DISTRICT OF OHIO. 179 The ATon. there is a strong instance of the application of the rule ; cases, therefore, will be referred to, not in support of the general doctrine, but to show only that the circumstances of the present transfer, within a jurisdiction where the ship was not subject ' to seizure, do not constitute an exception. The Rebecca (1 Ware, 188), The Stockton, (Orabbe, 580), The Mary (1 Paine, 180), as well as several of the judgments before referred to as sustaining the general doctrine that the lien exists, presented circumstances of strong equities in favor of innocent purchasers who urged them against the enforce- ment of the Hen. But it was held to constitute a proprietary interest which no transfer, save by a judicial proceeding in rem, could divest. The Charles Amelia (Law Eep. 2 Ad. & Ec. 330) was a collision in British waters between a French and English vessel. The former was subsequently sold imder bankruptcy proceedings in France. It was said, as this was not a proceediag in rem, but one which sold the owner's in- terest only, the lien was not affected. {The Bengal, Swabey, 468 ; The John amd Ma/ry, Swabey, 471.) The one was a suit for seamen's wages, and the other for damages by collision. Judgments at law had been in both obtained, but this election was held not to preclude a subsequent resort to the offending slups. They, it was said, were primarily liable irrespective of ownership. In the Batavia (2 Dodson, 500), it was held that a sale in Batavia did not divest the lien for seamen's wages due in England. Nor is this rule, in its most extended application, deemed an impolitic or hard one, the modification or restriction of which is demanded by the exigencies of modem commerce. It is favored, not because it is an ancient theory and old writers so say, but because the necessities of international in- tercourse and the safety of navigation have been found to re- quire it. {The China, 7 Wall. 58 ; The Ralley, Law Rep. 2 Ad. «fe Ec. 13 and 15; The Prims Frederik, 2 Dodson, 467; The Bebeeca, Ware, 188.) Where there had been a sale with- out notice, it is said : " What can be more equitable, when the ship has been the cause of the damage, than to look to it for 180 CIRCUIT CODET. The Avon. reparation ? It is often the sole source of security." The Oa- seUe (2 W. Eob. 280), The AmeUa (Brow. & Lush. 152), and nearly aU the decisions hereafter cited, are equally commenda- ■ tory of the rule which holds the ship liable as the offending- thing, irrespective of transfers, with notice or without it. Con- ditions wiU be demanded more clearly indicative of an intent on the part of the local government to exclude «wcA a rule, than would be required to displace one deemed hard and uncon- scionable, and at war with public policy. That the waters of the Welland Canal, as now used for international commerce, are within the American admiralty jurisdiction, we had, as re- marked on the argument, no doubt, and had this collision occurred between two American ships, and no transfer had been made within the Dominion of Canada, we should have fol- lowed for other reasons than those there stated. The Yowng America (ISTewb. Adm'y E.ep. 101) ; The Genesee Chief (12 How. 443) ; The Magnolia (20 How. 296) ; The Commerce (1 Black, 580); The Hine v. Trevor (4 WaU. 558) ; The Belfast (7 WaU. 624) ; The Eagle (8 WaU. 15) ; The Daniel BaU (10 Wall. 557), and kindred cases, include these waters. The recent English decisions, either drawing upon the late statutes, or treating their old phrase " Within the ebb and flow of the tide," as in reason only it should be treated, as a mode of de- scribing navigability, have taken jurisdiction of cases in arti- ficial and tideless waters. (See The Eagle, 8 WaU. 15, and the cases there and hereafter cited.) There are few harbors in the Northwest which are not en- tered through wholly artificial passages. It would be most impolitic to say that a ship, in passing through our St. Mary's Canal, between Lakes Huron and Superior, is beyond the process of the admiralty. A large portion of the commerce of the latter lake will soon pass through the Portage Lake Canal. The St. Clair Flats are now so crossed by a similar channel, through which passes as much international commerce as through any waters on the continent. The Suez Canal, those of Venice, Amsterdam, Rotterdam, and the Great Northern ■ Canal and basins of HoUand, and aU the improved navigations of the world have been, and from the nature ,of their use NOKTHERN DISTRICT OF OHIO. 181 The Avon. ■ehould be, as much subject to the admiralty jurisdiction as waters in natural channels. It would be a most mischievous and gratuitous. distinction which would exclude them. There is but one difference which would work a material consequence in a case like that before us. A natural thoroughfare from sea to sea, although wholly within the domain of a govern- ment, may be passed by commercial ships of right, while the nation which constructs an artificial one may annex such con- ditions to its use as it pleases. Such a thoroughfare is subject to the same control as are the natural bays, whose waters are within natural headlands, and lead only to the country of the government controlling them. "We cannot say, therefore, in this case, as we do of the collision in that of Ths Eagle, or as we would of a ship passing through the Bosphorus to a Eua- sian port on the Black Sea, that Canada or Turkey could not impose their laws. We must treat it as we would a passage up the Golden Horn at Constantinople, or down the lagoon and up the Grand Canal at Yenice, where every condition the "local authority saw fit to impose would be obligatory. We must apply here the same implications which Admiralty Courts have established as general principles of law where the local authority is absolute and imqualified. If the result is an in- ference that the principle of the maritime law, now sought to be enforced, is excluded by that of Canada, the remedy *w r&m should be denied. If, on the contrary, precedent, and more -especially wholesome protective principles, authorize a differ- ent presumption, the Avon should be held liable' m rem for her offenses. The claimant relies upon Smith v. Condry (1 How. 28) -and the principles before recognized, that the obligation im- posed upon an act in the State where it occurs should consti- tute the measure of liability in all other jurisdictions. That case exempted a ship from liability where an English statute compelled the employment of a pilot in the port of Liverpool, and expressly provided that the vessel should not be liable for damages resulting from the wrongs of such public officers. This judgment has been followed in The Halley (Law Eep. 2 182 CIRCUIT COURT. The Avon. Adm. & Ec. 3). This latter case, by the general course of its^ learned and greatly extended argument, more than by any direct assertion of such a doctrine, shows that when the local law is applied, it is because the peculiar circumstances of the trans- action and the nature of the law create the presumption that such is the intention of the sovereignty within whose waters the transaction occurred. It is not enough per se that a col- lision happens where there is mimicipal pow^r to exclude the maritime rule. It must further appear that it has actually done so. "When ships are seeking a port for protection or trade, or leaving it having engaged in it, and more especially- where they are in the custody of its local political olEcers by- compulsion, they are subject to such portions of the municipal law as are intsnded for their governance. The port police regulations, the local customs in reference to navigation, and all rules which, from their nature and office, are presumed to apply to domestic and stranger ships alike, regulate the con- duct of both classes. If the power which prescribes them has declared the obligations which arise from their observance or violation, all other nations wiU adopt the same measure of duty: This is the limit of the rule. Smith V. Oondry, and similar judgments, may mislead, un- less read in the light of general principles, whidi they do not intend to deny, and which some of them directly affirm. Lit- erally and formally they assert the application of the lex loci delicti, as if it were a case upon land, and as if the general municipal law would, of its own force, and by its general promulgation in the State, apply to a marine tort as it would to a trespass within its real territory. This ts by no means true. The inquiry is but half answered when we learn what is the local code regulating wrongs generally in the nation. The other, and equally important portion here is, has the Govern- ment, in unmistakable terms, declared that it shall be enforced upon foreign ships to the exclusion of the maritime rule ? This is what we think is meant in the Eagle, where Justice Nelson says, that Smith v. Condry was an exceptional case. In the Halley, in all respects like Smith v. Condry, Sir K. Phill- NORTHERN DISTRICT OF OHIO. 183" The Avon. more, p. 6, cites The Girolamo (3 Hagg. Adm. 177); The Zolverem (Swabey, 99) ; The Oolubohick (1 Wm. Eob. 147) ; to which others might have been added, that the English Courts in cases of collisions administer the maritime law, and he follows them by cases showing the right in rem is a favorite in the admiralty. It is especially shown that it is quite con- sisteiit with the general rule for the Court of Admiralty to enforce all such modifications as the local goverment clearly creates. The libeUant's counsel considered the judgment ia the Eagle as covering all the questions involved. Did it stand alone, we should not so hold. It did undoubtedly decide that the obligations created by a coUision in Canadian waters were not measured by her laws in the circumstances of that case. Although it occurred where the municipal jurisdiction, for all the purposes of -local government and of her own ships, was absolute, the Court said : " The cause would be governed by the practice and principles of the Courts of Admiralty of this country, whoUy irrespective of any local law." They add that Smith v. Condry was an exceptional case, leaving the in- ference strong, as the Hbellants urge, that the generality as- serted is universally applicable, save where ships have com- pulsorily submitted themselves to local governmental official control. But the facts in the Eagle required no such extended doctrine as is now imputed to it. The case leaves the law applicable to this record where it found it, imposing upon the Courts the duty of deciding whether, in the instance before it, the circumstances of the ship and the navigation subjected the transactions to the municipal or the maritime law. It was a very common case, so far as this point is concerned, and did not call for, as in the Superior Court it did not elicit, any judi- cial discussion. It occurred in boundary waters, the vessels were all Americans, exercising an international right ' in circumstances where, without exception, it has ever been held the local laws were inapplicable. It might as well be said that the English statutes limiting liability would control the obliga- tion of an American owner for wrongs committed against a 18i CIRCUIT COURT. The Avon. iiome vessel within a marine league of the island of Saint Helena. TVe do not therefore misunderstand the doctrine of the Eagle, and make it the foundation of our judgment, only so far as it reiterates the fcimiliar doctrine we suppose it to announce. We do not think the record shows, that Canada has ex- cluded this favorite, universally recognized, and necessary principle of maritime law from the waters of this canal. She has opened this thoroughfare from sea to sea, as our Govern- ment has that over the St. Clair flats, and the hundreds of artificial entrances it has constructed to the harbors of the na- tion ; as Holland has the Great Northern Canal and her other numerous artificial and improved navigations, and as the ex- pensively constructed entrances to ports everywhere are opened. All alike are free to the commerce of the world. In all, the more general and universally acquiesced-in doctrines of the maritime law have been unreservedly applied, save where stat- utory limitations or local usages have modified it. The mere absence of a tribunal to enforce it has never been admitted as sufficient evidence of such an intention. "We know of nothing in the conditions of this navigation which exempts it from the rules applied to aU other waters where the munici- pal authority is equally supreme. The following cases are those which, in the brief time we could command, have been selected from the long list in ref- erence to the general subject most pertinent to tjie precise facts before us. "We think they not only authorize, but com- pel, a subordinate Court to enforce the right asserted in the Hbel: The Maggie Eammmd (9 "Wall. 435). The bill of lading was made in Scotland, by the master of a Canadian ship, to transport goods of a Camadian to Camada. Parties, contracts, goods, ship, and voyage, were all foreign. The vessel put in- to "Wales, and there wrongfully refused to carry forward the cargo. The Ubel, in the opinion of the Court, set out two causes of action : the breach of the contract to delimer, and the wrongful act in "Wales. NORTHERN DISTRICT OF OHIO. 185 The Avon. In reference to the contract to deliver, and irrespective of the local wrong in "Wales, jurisdiction in rem was sustained upon two grounds : First, that a lien existed by the general maritime law ; and, second, that, although doubtful, the better opinion was that it did so by that of Scotland, where the con- tract was made. We are concerned with the first reason only. As to this, it is said, where a lien is given by the maritime law, it is no objection to proceeding in our Courts in rern, that the local Cov/rU were not clothed with similar authority. Though as a general rule, where both litigants are subjects of the country where the transaction occurs, and where no such remedy exists, our Courts will refuse it as between them ; still, if no objection by the consul is made, even in such case, they may in their discretion entertain jurisdiction. The decis- ion seems fuU, that where the maritime law is clear, the mere absence of a local Court to enforce its liens will not prevent an American Court of Admiralty from doing so. The case be- fore us is far clearer than the extreme one in the 9 Wall. Here the injured party is a citizen, and the offending ship the only source of satisfaction within our jurisdiction. This case applies the rule to a leading maritime State, and shows the practice is not by the Superior Court considered to depend upon the barbarous or semi-barbarous character of the countries in which actions have accrued. It treats the waters of England, Scotland and Wales, as it would those of Turkey, China, or Egypt. The absence of a Court in the one, no more than in the other, prevents the administration of maritime rights at- tendant upon contracts or wrongs within their waters. If such a distinction is not made, the precedents and conclusive doc- trines of all authors, the assumption of the law for aU time, precludes discussion here. Suppose the collision happened in China, Africa, or in the harbors of semi-barbarous or whoUy non-commercial people, with no Court of Admiralty, the ob- jection that its absence would prevent a remedy would not seriously be heard. The following decision affords a striking illustration of how wholly independent is the administration of maritime 186 CIRCUIT CODRT. The Avon, liens of the other and different question whether, at the place and at the time they vest, there is a remedy for their en- forcement : The Siren {1 Wall. 152), a prize vessel in the custody of the captors, collided with the intervenor's ship. She was con- demned and the proceeds paid into the registry. Although no suit in rem or otherwise could have been sustained, because the ship was the property of the Government, stiU it was said the lien existed and would be enforced whenever exigencies occurred which vested the jurisdiction of the Court. The practice in the English Admiralty against Government ships is referred to ; instances where seamen's wages have been en- forced in cases of forfeiture to Government, and various other cases where liens and rights have been sustained after the sub- ject has come into the possession of the Court, although they could not have been originally enforced, are discussed and likened to that in judgment. Page 158 it is said : " The exist- ence of a lien is not dependent upon the ability of the claim- ant to enforce it." This in various forms of expression is re- peated and illustrated. The Dcuois (10 Wall. 15), is another instance of the en- forcement of a maritime lien where the right to proceed in rem was dependent upon the future accidents of the res. The libellants proceeded as salvors of cotton owned by the United States, and although it was conceded no such remedy could be maintained if the property had reached the hands of Govern- ment officers, that the lien nevertheless attached, and it would be enforced if the process did not involve an invasion of their actual possession. The Siren, upon the point for which we cite it, is approved. The claimant's counsel then is hardly justified in saying that the existence of a lien without the abil- ity to enforce it at the time it originally vests, and at the place and against the thimg in its then condition, is an absurdity. We perceive neither absurdity, injustice or impolicy in saying that a right in rem, exists, the enforcement of which may de- pend upon the accident of whether the res enters a jurisdifr- tion where Courts are clothed with the necessary power, or NORTHERN DISTRICT OF OHIO. 187 The Avon. passes from the hands of those in whose actual possession for political reasons it cannot be impleaded. And see The Bird ofPa/radise (6 WaU. 545). The Tioonderoga (Swabey, 215), an American ship, was in the employ of the French Government, and by orders of an official, was taken in tow of a steamer, also in same employ- ment, and through the sole fault of the latter was brought inta collision with the Melampus in the Golden Horn at Constan- tinople ; no question of jurisdiction was made or the peculiar character of the waters mentioned in the report of the case. This narrow bayou, but two or three miles in length, is in some places less than 700 feet wide, and is crossed by a bridge of boats connecting the city of Constantinople with its north- ern suburbs, Pera and Galata. It is not a thoroughfare from sea to sea, and the local municipal jurisdiction is as absolute as that of England in the Welland Canal. In the subsequent case of The Grief swald (Swabey, 430), in which the collision happened in the roadstead off the town of Dardanelles, a ques- tion of jurisdiction was made ; but Dr. Lushington said he had no doubt of it, and it was said that in The Tioonderoga, the Court took " jurisdiction in these very waters." The case, however, proves far more than that admiralty jurisdiction will be assumed over these foreign waters bordered by cities and suburban towns, and inclosed from the sea by drawbridges and land thoroughfares. It holds that for a wrong there com- Tnitted the general maritime law applies and wiE be enforced by a proceeding in rem. It being urged that the owners, and therefore the ship, were not liable, on account of the control of the French Government, Dr. Lushington replied : " We must recollect that this is a proceeding in rem. I am not aware where there has been a proceeding m rem, and the vessel has " been guUty of damage, that any attempt has been made in this Court to deprive the party complaining of the right he has by the m,a/ritime law of the world ai proceeding against the property itself." This is said in reference to a eoUirion happening in private waters within the municipal jurisdiction of a country whose Courts at that time would not enforce the 188 CIRCUIT COURT. The Avon. lien. The anomalous mixed foreign tribtmals which by treaties and usage administer justice between citizens of cUfferent nor Uonalities enforce only that lam of the world to which Dr. Lushington refers. They administer the maritime law, be- cause by the law of nations, where it is not by positive local law superseded, it applies within the municipal jurisdiction of Turkey. And this is just the proposition before us, and upon which this case depends. (See Wheat. Int. Law, pt. 1, chap. 1, § 10, and note by Lawrence ; and same, pt. 2, chap. 2, § 12, and notes, for the character of these tribunals ; and The Chief s- wald, Swabey, 430.) If the above case rightly applied the law, by giving an English owner a remedy im rem against an American citizen for a collision happening within a municipal- ity where the local law gave none, it wiU require some nice distinctions which it is not the modem policy of admiralty tribunals, and certainly not of those of England or America to make, in order to distinguish the case at bar from it. The Grief awald (Swabey, 430). The collision was in the roadstead oflE the town of Dardanelles, and within the munic- ipal jurisdiction of Turkey. The Griefswald was Prussian, and the Constellation English. Two questions were decided : 1st. That the admiralty had jurisdiction of matters happening in waters vdthin the municipal government of Turkey ; and 3d. That the particular proceedings in the local Prussian Con- sular Court at Constantinople were not res odQudicaM,. In de- ciding the last and principal matter considered. Dr. Lushing- ton says : '•'■The municipal laws of T*russia could home nothing to do with the quesUon in issue, which must be governed Jyy maritime law as it prevails in the maritime States ofMtrope." " In cases of collision, it has been the practice of this country, and so far as I know, of the European States, and of the United States of America, to allow a party alleging grievance by collision, to proceed in rem against the ship, wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable." This reason for the rule would be NORTHERN DISTRICT OF OHIO. 189 The Atod. readily defeated if a transfer terminated the liability of the offending res. The MaU Ivo (Law Rep. 2 Adm. &c. 356) collision, in the BoBphorus, within the municipal jurisdiction of Turkey, between Norwegian and Austrian ships, Dr. Lnshington said, he doubted whether there was, in such case, where ioth were foreigners, a discretion which would authorize him to decline the jurisdic- tion similar to that which existed in the case of seaman's wages. At all events there was no doubt as to the jurisdiction wherever the tide ebbed. The lien was enforced and the mer- its decided. It is a singular use of this phrase, ebb and flow of the tide, in view of the well-known fact that there is no tide in the Black Sea, the Sea of Marmora, or the passage between them. (See lippincott's Gazetteer, Black Sea; McCnlloch's, same title; both assert there are no tides. Benedict's Adm. § 226, and the learned authors he refers to say the same thing.) This is noticed only to suggest that no argument can be drawn from the fact that the Welland Canal is a tideless water, and that therefore these English judgments do not extend the maritime law over it. They have paid no attention to this fact of a tide in foreign waters, but have taken jurisdiction whoUy irrespective of it. Why they stiU cling to the mean- ingless form of words must depend upon reasons we do not appreciate. In The Bold Bucdeugh (3 Wm. Eob. 220 ; s. c. 2 Eng. L. & Eq. 536), the collision occurred in British waters, and the lien there attached, but she went to Scotland, was there seized, and disbharged on bail, and by her law was not subject to second seizure. While in this condition she was sold to a bona flde purchaser in Scotland. The claim was as here, that as by the law of the place of sale, the ship was exempt from seizure, so she should be in England. Dr. Lushington thought the interests of commerce demanded a different rule, and say- ing that the vendee would have a remedy over against the vendor, notwithstanding the local law, he condemned the Buc- deugh. This case is a leading one, and has several times been 190 CIROITIT COURT. The Avon. approTcfd in the Supreme Oourt. It was aflmned 23 Eng. Law & Eq. and Y Moore P. 0. 267, upon the ground that the proceedings in Scotland were in personomi, only. But the principle for which it is quoted from 3 Wm. Rob. is in no way impaired. It may well be that we, in this instance, may make a mis- take in the opposite direction, but nothing is more common, even by Courts of high character, where attention is not chal- lenged to the subject, than to overlook the inapplicability of the familiar rules in reference to the lex looi contraotus, the lex rei sites, and the lex loci delicti, where obHgations growing out of international commerce are to be adjudicated in refer- ence to the maritime law.' A bill of lading made in England, by the master of an American ship, will be governed by the American law, though the voyage be to France or to China. The lex loci coni/ractus does not apply, although the contract is made in England. See Pope v. Nicherson (3 Story, 465) ; Moyd V. Ouibert (Law Rep. 1 Q. B. 115), the facts of which are too extended for statement, but in which is a most in- structive opinion, discussing the application of the Danish law as that of the place of the principal contract ; that of Portu- gal, where a bottomry bond in question was executed ; that of England, being the place of delivery of the goods, the general maritime law, and lastly the French law, being that which was actually applied, to limit the liability of the owner, because it was that of tJie ship. It interestingly illustrates the impossi- bility and impolicy of applying, in these instances, the lex loci. The difficulty arising in semi-barbarous countries, and other places having little or no home commerce, and consequently little well-settled commercial law, while numerous foreign ves- sels of aE other countries throng their ports, is forcibly stated. The most influential portion of this elaborate judgment here, is that which concedes that if there had been any gener- ally acknowledged maritime law, as universal and well-settled as that which we are asked to apply, and which prohibited the release of the owner upon resigning the ship and freight, so as to make the French law marked and exceptional, it would NORTHERN DISTRICT OF OHIO. 191 The Avon. have been applied, and that of France rejected. The presump- tion was that the maritime law did apply where that was clear and undisputed. In Cammell v. Bewell (6 Hurl. & Norman, 728), goods shipped in Eus^ia by a Prussian ship, belonging to an English owner, were sold in Iforway by the master, where the ship was wrecked.' The sale was upheld, because the law of Nor- way authorized it. But each justice concedes that if there had been a well-settled maritime rule the other way, the local law should not have been applied. Crampton, J., says: "If it could be made out that there was a general maritime law on this subject, it would be a question how far we could suffer the law of a particular country to prevail against itJ' Cockbum, J., replying to this argument at the bar, said ; ' " But the mari- time law is not uniform," and repeats this as a reason in ren- dering judgment. Byles, J., believing such was the maritime law, was for holding the sale void. The goods here, it will be noticed, were not carried into Norway for the purpose of trade. It was one of the exigencies of international commerce, and it was for this reason that her laws should not govern, if they contravened the general maxims of commercial justice and poHey. In Donald v. Hewitt (33 Ala. 534), the court, in deciding that Hens given by local statutes, to be enforced by judicial proceedings, would yield to a local home attachment in per- sonam against the owner of the ^e«, take pains to say such rules will not apply to maritime liens, which override the local law ; and so are many other cases both here and in England. It is said in Bags of Linseed (1 Black, 108), Courts of Admiralty, in carrying into effect maritime contracts, are not governed by the rules of the common law, but deal with them upon equita- ble principles, and the usages and necessities of commerce. In many other departments of international law, analogies may be foimd showing that the decree we make is more in accordance with its general spirit and policy than to hold that every ship, as it enters foreign waters, passed beyond its pro- tection. At sea, the ship is part of the national territory to 192 CIECTJIT COURT. The Atod. which it belongs. In ports, also, most nations still suffer the same theory to apply to all which is done within the ship, even though moored in their harbors. Although criminal jurisdic- tion is never extended beyond the national limits in other cases, the criminal statutes of our own and other governments in- clude offenses committed on shipboard without foreign muni- cipal jurisdictions. (See HaUeck, and the numeroiis authori- ties he cites, p. 170, § 24, p. 171, §§ 26, et seq.) The general rule in reference to ships, as we understand it, is not to yield the maritime law to any doubtful suggestions of the local power, and in no case to do so where its invasions are unjust and injurious to the general interests of commerce. {Lwerpool Marine Credit Co. v. Htmter, Law Eep. 3 Ch. Apl. 479 ; s. c. Law Hep. 4 Eq. 62, commenting upon and dis- tinguishing Simpson v. Fogo, 1 Hem. & Miller, 195 ; s. c. 1 John. & Hem. 18 ; and see CmnmeU v. Sewell, 5 H. & N. 728, and other cases.) The decree below is affirmed, except as to the damages. They must be increased by the amount which was deducted on account of the amount paid by the insurance company. (See 1 Pars. Mar. Ins. 442 ; Protection Ins. Co. v. Wilson, 6 Ohio St. 553 ; Yates v. WJvyte, 4 Bing. N. C. 272 ; Ha/rt v. Western B. R. Co. 13 Mete. 99.) This rule seems to be conceded by the appellant, and no present examination has been given it for distinctions which might take this ease out of the common rule. Decree affirmed. DISTEICT COURT. WESTERN DISTRICT OF MICHIGAN. Hon. SOLOMON L. WITHEY, District Judge. THE DANIEL BALL. ■ Navigable Waters. — Power to Regulate Commerce between DIFFERENT StATES. To WHAT VbSSELS INSPECTION LaWS ARK Applicable. A small steamer was engaged in transporting freight and passengers upon Grand Eiver, between Grand Eapids and Grand Haven, in the State of Michi- gan. Althongh her route was wholly within the State, she carried freight consigned to and from other States, which was transhipped at Grand Haven. She also carried passengers on their way to and from Chicago and Milwaukee. In the opinion of the Court, she was subject to inspection and license under the navigation laws of the tJnited States, but as a different view of the law had been taken in the same and other districts : Beld, out of deference to these opinions, and for the sake of uniformity, the Ubel should be dismissed. The steamer Daniel Ball was libelled for want of inspec- tion and license under the navigation laws. The owners set up by way of defense that the Ball was not, by law, required to be inspected or licensed. The facts agreed npon were as follows : The Ball was a steamer of 123 tons burden, drawing about two feet of water, running on Grand River, a river entirely within the State of Michigan. She was so constructed as to be incapable of navi- 13 194: DISTRICT COURT. fhe Daniel Ball. gating the waters of Lake Michigan, or of continuing her voy- age further than Grand Haven, a port on Lake Michigan, at the mouth of Grand River. She took in freight at Grand Kapids, forty miles up the river, and received and delivered at other places along the river. At Grand Haven her cargo, not previously discharged, was unloaded. A part of her freight was goods and merchandise shipped from Grand Eapids, and destined to places in other States, viz : Chicago and Milwaukee, in Illinois and Wisconsin ; but such goods were delivered at Grand Haven, to warehouse and forwarding agents, to whom "they were consigned at that port, who forwarded such goods to their place of destination in other States by lake boats. Passengers were carried by the Ball who were on their way to Chicago and Milwaukee. The second section of the Act of Congress of July 7, 1838, provides, " that it shall not be lawful for the owner, master, or captain, of any steamboat, * * * to transport any goods, wares and merchandise, or passengers, in or upon the bays, ■ lakes, rivers, or other navigable waters of the United States, * * * without having first obtained a license," etc. The owner incurs the penalty of $500 for a violation of this section, and the boat is liable to be proceeded against to enforce the forfeiture against her. The Act requires all such steamers to be inspected annually. The amendatory Act of August 30, 1852, provides, " that no license, register or enrollment, under the provisions of this or the Act to which this is an amendment, shaU be granted, or other pwpers issued hy any eoUeotor, to any vessel, propelled in whole or in part by steam, and carrying passengers, until he shall have satisfactory evidence that all the provisions of this Act have been fully complied with ; and if any such vessel shall be navigated with passengers on board, without complying with the terms of this Act, the owner thereof, and the vessd itself, shall be subject to the penalties contained in the second section of the Act to which this is an amendment." This Act further provides for the inspection of the hulls of steamers, and of their boilers, engines, etc, WESTERN DISTRICT OF MICHIGAN. 195 The Daniel Ball. On the part of tlie owners, it was claimed that the Act, in ierms, goes beyond the constitutional powers of Congress to legislate, inasmuch as it includes boats navigating only the in- ternal waters of a State, which do not transport goods or pas- sengers between two or more States. The constitutional pro- vision under which the navigation law in question is passed, is as follows : " Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Mr. K S. EggUslon, Die^ict Attorney, for the United States. Mr. John S. Newberry, for the claimant. WITHET, J. It has been repeatedly held by the Courts of the United States that a commerce which is purely internal, carried on entirdy within a State, and which does not affect other States, is not within the power of Congress under the Constitution to regulate, but belongs exclusively to the State. Commerce is defined to be " an exchange of commodities ;" it is "trade and traffic," and " includes navigation and inter- course." The power to regulate commerce, then, includes the power to regulate navigation; but the navigation, like the commodity which is transported for exchange, trade and traffic, must be such as is embraced within and is a part of the com- merce among the States. We are brought to the single ques- tion, therefore, whether the navigation in which the Ball was engaged on Grand Kiver, carrying goods and passengers exclu- sively within the State of Michigan but which were shipped for places in other States, is " commerce among the several States." If this question was now presented and to be de- cided for the first time, I should have no hesitation, from the . consideration I have given it, in holding the Ball to be em- ployed in commerce between the States, and liable for the penalty of $500. The first authority which I notice is the decision, in manu- 196 DISTRICT COUET. The Daniel Ball. script, by Judge Wilkins, pronounced in 1856 or 1857, in two cases. The Forest Queen and Pontiac were running on Grand River, which was then within the jurisdiction of what is now the Eastern District Court. Goods and passengers were con- veyed on these river boats to Grand Haven, and there tran- shipped, destined and shipped from inland towns on the river to other States ; and goods and passengers coming from other States across the lakes were landed at the mouth of Grand Eiver in Michigan, and there transhipped and conveyed -ta places in the interior of the State by the Queen and Pontiac. The learned judge says : " The commerce stopped at Grand Haven, so far as the lake vessels were concerned, and the sub- sequent instrumentality of Grand River in the business was not such as to constitute this upward, new and interior State navigation, a commerce between Michigan, as to that trade,, abd' other States." Again, "this commerce, then, was alto- gJlBer internal, and subject only to the control and govern- ment.* of the State of Michigan, and is not within either the litter or spirit of the Constitution." • That case is the only one where the precise question ha& been before a court and decided, so far as I can discover, that is involved in the case at bar. The following cases cited at the bar are not regarded as presenting the question I am consider- ing, for the reason that in none of them do the facts disclosed show that goods were being conveyed which had been shipped from one State to another : U. S. v. The Seneca (10 Law Reg. 281); brooks v. F&ytona (2 Law Monthly, 518) ; WhiUahevY. Steamboat Fred. La/mrenoe (lb. 620); TJ. 8. ir.^Steam Ferry Pope (5^"ewb. 256); U. S. v. The James Morrison (lb. 241); U. S. V. Tugs W. K. Mui/r and Damidson (dfecision by Judge Miller, in manuscript) ; JI. S. v. TxKf S. K. Kirlrj (by Judge Wilkins, in manuscript). The Steam Ferry Pope, was a ferry-boat across the Mis- souri, at St. Louis, and it was held that in no proper sense could the Pope be said to be engaged in any trade, or be em- ployed in the coasting trade. " A ferry I deem nothing but a continuation of a road." " I admit," says the judge, " that WESTERN DISTRICT OF MICHIGAN, 197 The Daniel Ball. OongreBS might, constitutionally, regulate the transit on roads and over ferries, so far as it is necessary to regulate the com- merce with foreign nations, among the several States and with the Indian tribes, but no farther." In The James Morrison the same judge discusses the question involved in the case at bar, though not involved in that case, and the argument is an able one ia support of the views I have suggested. At page 24:7, the judge says : " The coasting trade is a part of the commerce among the several States, and it is not the less a part of that commerce because the vessel navigates -only from port to port in the same State, up and down a navigable river of the United States and never goes beyond the State boundary." I have examined, with care, the other cases referred to and commented upon by the counsel for the owners, viz : Gibbons V. Ogden (9 "Wheat. 1); Wilson y. Black Bird Creek Marsh Co. (2 Pet. 245) ; if. J. St. Nav. Co. v. Merch. Bk. (6 How. 344) ; Passenger Gases (7 How. 283) ; Veazie v. Moor (14 How. 568); Allen v. Newberry (21 How. 244); Maguire v. Ca/rd (lb. 248). I am unable to discover that any or all of these cases sup- port the view taken by the defense. The case of Wilson v. Black Bird Creek Co. (2 Pet. 245), was referred to as authority that Grand Eiver is not a naviga- ble water of the United States, and is cited by Judge "Wilkins in the Forest Queen and Pontiac as conclusive authority on that question. I do not understand the opinion of Judge Marshall, in this case, to go so far as is claimed. On the contrary, I regard it to be the well settled doctrine of the Supreme Court of the United States, that all waters within the United States which are navigable for the purpose of commerce, or in other words, waters whose navigation successfully aids commerce, are waters of the United States, and in the late case of Him,e v. Trevor (4 Wall. 555), it was decided that the admiralty jurisdiction of the United States " extends wherever ships float and navigation .successfully aids comm erce, whether imiernal or externaV ' That "Grand Eiver successfully aids commerce I need not discuss ; 198 DISTRICT COURT. The Daniel Ball. vessels from Chicago and other lake ports can navigate for miles up this river, and steamers run daily forty miles up its stream. If, then, admiralty jurisdiction may be exercised in a case aris- ing on Grand river, it must be a navigable water of the United States. In the leading case touching the power of Congress under tbe Constitution to regulate commerce, of Gihbons v. Ogden (9 Wheat.), decided by the Supreme Court in 1824, at page 194, Chief Justice Marshall says : " The subject to which the power is next applied is to commerce among the several States. The word ' among ' means intermingled with. A thing which is among others is intermingled with them. Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is com- pletely mtemal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Comprehensive as the term 'among' is, it may very properly be restricted to that commerce which concerns more States than one." Was not the merchandise transported on the steamer Ball, shipped and destined for other States, a commerce which af- fected more States than one ? Was it a commerce completely internal, carried on between man and man in a State, or be- tween different parts of the same State, and not extended to or affecting other States ? — as it would have been if it were to have stopped at Grand Haven, and not to go on from thence to other States. The carriage between Grand Kapids and Grand Haven was internal, but the commodity carried was proceeding to an- other State, and such other State, as well as Michigan, was in- terested in the trade and traffic of that commodity from the- time it left Grand Eapids. As an article of export from the latter and of import to the former, both States were inter- ested in the traffic, trade or exchange' of that commodity; hence it was commerce among the States. The means used in transporting that commodity was navi- gation, which is included in commerce. WESTERN DISTRICT OF MICHIGAN. 199 The Daniel Ball. At page 197 of the same case the Court says : " The power of Congress, then, comprehends navigation within the limits of every State in the Union, so far as that navigation may he in cmy mamner connected with commerce with foreign nations, or among the several States, or with the Indian tribes." Thus it would appear that the power of Congress to regulate com- merce with foreign nations, or among the several States, is co- extensive with the subject itself, and touches and controls both the commodity and the means employed in the conveyance at every step, from the point of shipment to the place of destina- tion, in different States. ' At page 204, the Ci)urt further says : " If Congress license vessels to sail from one port to another in the same State, the act is supposed to be,'neceBsarily, incidental to the power ex- pressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a State, or to act directly on its system of police." Clearly, here is an intimation of a power in Congress to re- quire of vessels employed iu the coasting trade, exclusively from point to point in the same State, to take a license, and it must be upon the ground that such vessels carry commodities which are in transit from a place in one State to a place in an- other, and therefore engaged ia commerce among the States. In none of the other cases referred to does the Supreme Court of the United States vary the doctrine laid down iu Gibbons v. Ogden, but, by repeated declarations in discuss- ing the various questions presented, affirm the views which I have quoted from that case. Considerable importance was at- tached iu the argument of this case to Allen v. Newbury (21 How. 244), by the counsel for the defense, but I am unable to discover that it is authority against the views which I have ex- pressed. The steamer Fashion was engaged in a general carry- ing business between ports in different States, and at the time was on a voyage from Two Rivers, in "Wisconsin, to Chicago, in Illinois. She was libelled for goods lost on the voyage, which had been shipped on her from Two Elvers to Milwaukee, in the same State. 200 DISTRICT COURT. Tbe Daniel Ball The Court held there was no jurisdiction, because the ship- ment of the particular goods was between ports and places in the same State, and therefore not commerce among the States. In spealring of the Act of 1845, the Court says: "There is some ground for saying, upon the words of the Act of 1845, that the contracts over which the jurisdiction (in admiralty) is conferred are contracts of shipments with a vessel engaged in tlie husiness of commerce ietween the ports of different States, but the Court is of opinion that this is not the true construc- tion and import of the Act. On the contrary, that the con- tracts mentioned relate to the goods carried as well as to the vessel, and that the shipment must he made hetween ports of different States" Clearly, according to this decision, it is not the fact that the boat does or does not run between places in different States, which determines the character of the commerce carried, as to whether it be purely domestic or among the States. On the contrary, it is whether the shipment " be made between ports of different States ; " when this is the case, the vessel carrying that commerce is to be regarded as employed in commerce among the States. How can it be said that a transhipment at the border of the State, into or from which the commodity is shipped, affects the subject of the commerce, and changes that which was com- merce among the States to a purely domestic commerce ? When a commodity has commenced to move, as an article of trade or traffic, between a place in one State and a place in another State, it denotes commerce between the States, and the means employed in moving it from place to place, over every part of the entire line, is an employment in that commerce ; and it seems to me that a law of Congress which regulates in any respect the means used in the transportation of that com- modity is an exercise of the power to regulate commerce among the States, within the Constitution. It is wholly inadmissible to say that so far as merchandise is conveyed within a State it is purely internal, and becomes commerce among the States only when it is calried between WESTERN DISTRICT OF MICHIGAN. 201 The Daniel Ball. States, or from one boundary line to another. If merchandise is taken on board a vessel 100 miles in the interior of a State, and by that vessel is transported without unloading to a point 100 miles in the interior of another State, it iavolves both navi- gation and commerce among the States, from the place of ship- ment to the place of unloading. Is it any the less commerce among the States, on its entire route, simply because conveyed, for the first fifty or one hun- dred miles, on a navigable river, by a boat navigating only that river, and entirely within the boundary of a State ? Is it any the less such commerce because this boat forms a link in a hne of boats, though in no way connected, covering the whole route, and that there is a transhipment on the way ? If I am correct in the views taken, it can hardly be success- fully claimed that it affects the question by showing that the goods ccmnot be carried on without transhipment, because of the incapacity of the river boat to navigate the lakes — nor vice versa, because the lake boat cannot find a depth of water in the river for her to navigate. The solution of the question lies deeper, and compels us to determine from the subject and the trafiic if it be commerce among the States at the time the Ball transported the commodity. Nevertheless, as the question of jurisdiction in this class of cases is of considerable importance, and a decision by this Court adverse to that given in the Queen and Pontiac would not be authoritative out of this District and would result in a want of uniformity in the two Districts of this State as to the liability of boat owners, and inasmuch as I am informed that some of the other judges of the District Courts, having jurisdiction bordering the lakes and on the navigable waters emptying into the lakes, entertain opinions in harmony with those expressed by Judge Wilkins in the Forest Queen and Pontiac, it maybe advisable to dismiss the libel in this case, for the sake of uni- formity of decisions, if for no other reason. Certainly, one rule, in reference to what classes of boats come within the inspection and license laws, should prevail in all the Districts. Besides, the great experience and learning 202 DISTRICT COURT. The St. Joseph. of Judge Wilkins, and of the other judges who are said to hold views in harmony with his on this subject, I may well acknowl- edge and allow to govern my action in this case, after having given expression to some of the reasons which would control my decision in the absence of such previous rulings. There is a further consideration which is of weight ia de- termining the course I should pursue, in justice to the owners of the steamers running on the internal waters of the State within this Distinct, viz. : the Government has for more than ten years rested apparently contented with the decision in the Porest Queen and Pontiac, never having taken an appeal to the Circuit Court. Boat owners had a right to suppose, therefore, that the United States acquiesced in the view of a want of liar biHty on the part of owners in this class of cases. I am disposed, therefore, contrary to my own judgment upon the law of the case, for the sake of that uniformity which is desirable in the rulings of the District Courts, to dismiss the libiel, treating the question as within the rule of stare decisis, and to leave it for the United States to appeal to the Circuit Court, if not content. Ziiel dismissed. Note. — On appeal, the Supreme Court reversed this decree, adopting the reasoning, but not the conclusion, of the District Judge. See 10 Wall. 551. THE ST. JOSEPH. MAY, 1869. Order of Distribution as between Mortgagee and Material- men, Foreign and Domestic. — Liens for Advances. Strictly maritime liens have priority over mortgages, without reference to the period of time when they accrued, Material-men, having liens by local laws, have priority over mortgagees in the distribution of the surplus. In this case, the Court ordered the diflferent classes of liens pwd as follows i Mrst, Maritime WESTERN DISTRICT OF MICHIGAN. 203 The St. Joseph. liens. Second, Liens given by State laws. Third, Mortgage liens. FowrtK The assignee in bantmptcy of the owner. No unforeseen and unexpected emergency need be shown to warrant a lien in favor of a material-man. Where the master obtains supplies, they are gen- erally supposed to be sold on the credit of the vessel, and in such cases the vessel is liable. A part owner and general agent and superintendent of a line of boats, of which the respondent was one, has no lien for material, but must be regarded as having given credit to the company. Advances made by a mortgagee to subsisting lien holders at the time of taking possession under the mortgage should be paid in the order in which the liens themselves would have been paid. Motion for order of distribution. The facts appear in tlie opinion of the Court. Mr. Robert Roe, for the material-men. Mr. CKas. Hitchcoek, for the mortgagee. WITHET, J. There has been a decree in favor of the libellants; the vessel has been sold; the proceeds paid into the registiy, from which libellants have been paid their decree and costs, and there remains a surplus of $24,046 20. Mne supplemental suits, by petition, have been entered by rival claimants against these proceeds. They are, by material-men, under contracts civil and maritime ; material-men, under stat- utory liens ; a mortgagee, under a mortgage duly recorded according to the Act of Congress ; and the assignee in bank- ruptcy of the owners. The fund is not sufficient to satisfy all. The principle is laid down by the Supreme Court of the United States, in Andrews v. Wall (3 How. 568), that it is an inherent incident to the jurisdiction of the Admiralty Court, to entertain supplemental suits by the parties in interest, to ascertain -to whom those proceeds rightfully belong, and to de- liver them over to the parties who establish the lawful owner- ship thereof. The Admiralty Courts of this country have generally ap- plied this principle to claims arising upon liens given by State statutes, and to mortgages, as well as to strictly maritime liens. 204: DISTRICT COURT. The St. Joseph. The important question, therefore, is as to the order of pay- ment. As between the claimants before the Court, maritime liens have priority over all the others ; this was conceded at the hearing. Until recently, we find no decision that does not give to the material-men having subsisting liens by local laws priority over a mortgagee in the distribution of surplus, while there are decisions giving priority to such material-men. {The Troy and Superior, 1 Newberry, 1Y6 ; The Paragon, "Ware, 322; Hend/rick Hudson., W. L. Monthly, 363; Justi Pon V. The Proceeds of Brig Arbustci, 6 Am. Law Eeg. 511 ; Brig Mjmnie, 6 Am. Law Keg. 328 ; Pro- vost V. Wiloox, 17 Ohio, 359.) Counsel for mortgagee has read a newspaper report of the case of the Grace Greenwood, recently decided by the District Court of Northern Illinois, 3)ostponing material-men under local laws to the mortgage lien, on the ground that' the mortgage becomes, by its record in the office of the collector of customs, as strong in equity as the claims of the material-men, and applies the surplus upon the principle that " that which is first in time is strongest in right." As will be seen by the authorities, this decision is at variance with former decisions, and it does not commend itself to our judgment. The water craft law of Miqhigan, under which some of the claims arise, postpones the mortgagee to the ma- terial-man, without reference to date of liens. Strictly mari- time liens have always held priority over mortgages, without reference to the period of time when they accrued, on the ground that it is as much for the interest of the mortgagee as for the owner, that the ship should be kept in repair and supplied,' to enable her to keep afloat and be in receipt of earn- ings ; thus adding to the value of the mortgage security, aa well as to the ability of the mortgagor or owner to pay the mortgage. We do not see why material-men, holding liens by the local law, have not the same position of priority as regards the mortgagee, and for an equally good reason, as is •conceded to material-men having strictly maritime liens. WESTEKN DISTRICT OF MICHIGAN. 205 The St. Joseph. We do not understand the law of Congress, in reference to recording mortgages, as affecting the question. We, therefore, hold to the following order of payments and priorities, as between the parties before the Court : First. — Maritime liens. Second. — Liens given by State laws. Thirds — ^Mortgage liens. Fowrth. — The assignee in bankruptcy of the owner. Before referring to the individual claims, we notice a point miade by the mortgagee against a portion of the claims pre- sented, viz : that no unforeseen and unexpected emergency is shown, aid which it is claimed is necessary to justify holding that a lien exists. Until the case of Pratt v. Eeed, decided in December, 1856, by the Supreme Court of the United States, 19 How. 360, it had not been regarded as necessary to a maritime lien, that any unforeseen and unexpected emergency should exist for materials and supplies to a ship, when obtained by the mas- ter. And it has been questioned by high authority, whether the Court, by that case, intended to change the law of liability for supplies to a vessel. The Court does not intimate any such intention, and does not review the authorities or refer to the previous rulings of the Courts of Admiralty. The facts of the case were that the owner, who was also master, procured the supplies without any representations of necessity, and ap- parently under some general understanding and arrangement, which raised the presumption " that there could be no necessity for the implied hypothecation of the vessel." His Honor, Mr. Justice Swayne, at the June term, 1868, of the United States Circuit Court, at Detroit, is reported to have held, in the case of The Propeller Pittsburgh, " That the ease of Pratt V. Eeed, 19 How., had not altered the law of liability for supplies furnished to a vessel. Where the master obtains supplies, they are generally supposed to be given on the credit of the vessel, and, in all such cases, the vessel is liable for them." Kecently, his Honor, Mr. Justice Davis, in the United ■206 DISTRICT OOITRT. The St. Joseph. States Circuit Court, at Chicago, held, that to create a mari- time lien for supplies, it must appear not only that they were needful, but the existence of some unforeseen and unexpected emergency must be shown {The Lady Franhlim., 1 Chicago Legal News, 273), thus, as we understand, holding that Pratt T. Reed did alter the law of liability for supplies, to which case the learned judge refers. In view of the rulings of the two distinguished members of the Supreme Court of the United States, taking different grounds as to the import of the decis- ion in Pratt v. Reed, is may be said the question is still an open one. We feel bound to follow the ruling of Judge Swayne ; besides our own judgment is that such is the correct view. In reference to the individual claims, under the views al- ready given, we regard the claim of James E. Stevens as possessing no merits. Stevens was one of the owners, and was general agent and superintendent, at St. Joseph, Michigan, of the line of boats owned by the company — jThe Lake Michigan Transportation Company. He held sixty thousand dollars of the stock of the company ; moneys were received by him dur- ing the season of navigation, and he must be regarded as having given credit to the company, and not to the vessel. HoUister and Phelps, of Chicago, claim a lien under State laws — $1,978 11, accruing between June 27 and October, 1867, the balance between March 27 and April 4, 1868. By the laws of Illinois, a claimant must assert his hen against a vessel within nine months after the same is due, or the Hen ceases as against subsequent incumbrancers, creditors, and ionafide pur- chasers. The vessel was taken possession of by the Third National Bank of Chicago, for breach of the conditions of its mortgage, October 16, 1868, and the libellants. Miller & Miller, did not file their libel until November 13. No excuse, therefore, is shown for delaying to assert this claim of 1867, until April 23, 1869. It must, we think, be postponed, at least to the payment of aU the other subsisting claims ; their claim, which accrued during the season of 1868, is allowed. "WESTERN DISTRICT OF MICHIGAN. 207 The St. Joseph. Farrar, Taft & Knightj of BufEalo, claim a maritime lien for materials and supplies which accrued between May and September, 1867. The greater portion of this claim is for machinery sent from Buffalo to Chicago on an order, and there delivered to, and received by, the vessel. This was a contract for which the owner would be liable, but creates no lien against the vessel. The other part of the claim, and that earliest fur- nished, has been allowed to lie so long without beiog asserted, that as against the other subsequent and subsisting ckims by material-men and the mortgagee, it should be regarded as stale, and be postponed to all the others, except the owner or his assignee. Good & Co., of Chicago, claim both a maritime lien and, under the water craft law of Michigan, their claim is allowed, as are also the claims of Pratt & Coulson, Aaron D. Rowley, and E. A. Kapp & Co. The mortgage claim of the Third National Bank of Chicago is allowed, together with such advances as were made by it to subsisting lien holders, when it took possession of the vessel under the mortgage, such advances having been made to sea- men and others, to save expense and delay that would grow out of suits threatened against the ship. These advances will be paid in the order already announced in reference to priorities. The amounts of the respective claims will be ascertained, and payment decreed accordingly. Order of distribution. Note. — tTnder the recent decision in the case of The Zotawana (21 How. B58), the principal question involTed here becomes of considerable importance. (See The Grace Greenwood, 2 Biss. 131 ; 2 Pars, on Ship. 149 ; Beeder y. Georges Creek, 3 Am. Law Eeg; 232 ; Scotes Case, 1 Abb. U. S. 336 ; The Harrison, 2 Abb. TJ. S. 1i.) CIRCUIT COURT. EASTERN DISTRICT OF MICHIGAN. Hon. HALMER H. EMMONS, Circuit Judge. THE WILLIAMS. MARCH, 1873. Jurisdiction. — Executory Maritime Contract. — Lien. — Effect OP Part Performance. A tug was hired at $200 per day to go to the assistance of a vessel which had been reported aground on the shore of Lake Huroa. On arriving at the spot, it was found the vessel had been gotten off, and the tug returned home without rendering her any actual assistance. Held, a proceeding in rem would lie to recover the stipulated compensation. All maritime contracts made by the master, within the scope of his authority as master under the maritime law, per ae hypothecate the ship, and perform- ance, in whole or in part, does not affect the question of jurisdiction generally, or the character of the proceeding, whether in rem or in personam. A libel in rem for salvage services will be sustained, though the contract was for a per diem compensation, not contingent upon success. The nature of maritime liens discussed, and the authorities reviewed. The libellaiit, John Demas, owner of the tug U. S. Grant, claimed a lien npon the brig WiUiams, under the following state of facts : On the 4th day of June, 1871, the brig was aground at Bing Inlet, on the Canadian shore of Lake Huron. On that day the master of the brig employed the tug at Detroit, her home port, to go to the brig's rescue, under a special contract EASTERN DISTRICT OF MICHIGAN. 209 TheWiUiama. to pay her $200 per day, from the time she should leave De- troit tUI her return, and $200 additional for use of hawser ; "which compensation was to be paid at all events, whether the services of the tug should result in, or contribute to getting the brig ofE or not. The tug left immediately to enter upon the service, but in approaching the place where the vessel had been, and probably was at the time of the agreement, aground, it was found that she was already afloat, and the services of the tug had become unnecessary. Thereupon the tug returned to Detroit. She was absent a little over five days, and the gross amount of her compensation was settled by the master at $1,100, for which a draft was given. The draft having been protested for non-payment, this suit was brought, and the draft tendered to be delivered up. The following opinion was delivered by the District Court {Judge Longyear) : That the contract was maritime in its character, and that the claim for compensation under it would constitute a valid cause of action in admiralty, in personam, is not seriously disputed, and I think does not admit of doubt. The question is, has the libellant a lien upon the vessel ? If, by operation of law, the contract itself raises a lien, then the present action m rem will lie, and the lien must be enforced, notwithstanding the ultimate object and purpose of the contract became unnecessary, or for any purpose impos- sible of performance, libellant having performed on his part so far as he could. If, however, no lien was created by the contract, then, as no service to the vessel was actually ren- dered, it is difficult to see how, or on what principle, a lien has arisen. "Was a lien created by the contract ? I think not. The service contracted to be rendered — that is, the ultimate object and purpose of the contract — was purely a salvage service. A lien on account of a salvage service arises because, and only because, something is saved by the service, or that service has contributed towards saving something, and then only upon what has been so saved. These constitute the very essence of a Hen for salvage. A lien then arises out of, and exists only on account of, the fact of sahage, and not on account of any 14 210 CIECDIT COURT. The Williams. contract under which the service may be rendered. When the service is rendered under contract, the contract is resorted ta for the purpose of fixing the compensation, and not for the Surpose of creating a lien. The law settles the question of en in all cases of salvage where the contract is silent upon the question, and is not of such a character as to preclude a lien which might otherwise exist. Where a salvage service is- actually rendered in a case like the present, there is no doubt the lien thereby created extends to the entire time employed, including going and returning {The Ivd&pendence, 2 Curt. 360). But this is because the time spent in going and return- ing is incidental to the salvage. If the savage fails, or is wanting, of course the hen and aU its incidents fail {^The Nar- ragcmgett, 01c. 388, 392). There is much force in the analogy suggested by counsel between the present case and the case of an executory con- tract of affreightment. In such cases a lien arises and can exist only with the actual delivery of the freight on board, or what is in law equivalent to .such delivery. Now, suppose a vessel is employed at Detroit to go to Cleveland, or other port, for some specific cargo whim is there and ready for shipment, for a fixed per diem compensation for the entire service, including going and returning. The vessel actually enters upon the performance of the contract on its part, by going to Cleveland, or other port, where the cargo was when the contract was made and when its performance was so en- tered upon, and there finds that the cargo has already gone forward, or for some reason its transportation has become un- necessaiy or impossible, and the vessel returns to Detroit. While there is no doubt an action in personam would lie for the time spent, no one would contend for a moment that a hen on the goods for freight was thereby created. It seems to me the case supposed and the one under consideration are quite analogous. If necessary, this case might be disposed of adversely to the libeUant, on another ground, and that is, the contract being for a fixed price, to he padd at all events and in no man- ner dependent on success (the contract being for a sdl/oage service), no lien upon the vessel could result in any event. This Court, at the November Term, 1871, so decided in the case of The Ma/tquette. (See also the follovdng cases: Th6 Whitaker, Sprague, 229, and the same case, p. 282 ; The Inde- pendence, 2 Curtis, 350, 355 ; Squire v. One Hundred Tons of Iron, 2 Benedict, 21 ; The Camanche, 8 Wall. 477.) But in- EASTERN DISTRICT OF MICHIGAKT. 211 The Williams. asmuch as under the view already taken, it is unnecessary to a decision, I do not put the case upon that ground. The learned advocate for libeUant, seeing the difficulties in the way of maintaining a lien for salvage, asked and ob- tained leave at the hearing to amend his libel by striking out " salvage " as the cause of action, and inserting in lieu thereof, " contract, civil and maritime." I fail to see, however, that this improves the matter in the least. In fact, as it seems to the Court, the concession admits the case against the libellant on the question of lien. The contract was for the performance of a saVoage service, and if a lien cannot be maintained on that ground (and we have seen it cannot), it cannot be main- tained on any other. In order to do so, the Court would have to construe the contract to mean something difiEerent from its express terms, and thus make a new contract for the parties, which, of course, wiU not be done. The libel must be dismissed, with costs to the respondent ; but inasmuch as the point upon which the decision is ba^ed, was clearly presented on the face of the libel, and therefore might and ought to have been raised by exception, all costs of witnesses and taking testimony must be omitted in the taxa- tion. The decree must be without prejudice to such other ac- tion as libellant may see fit to bring for the recovery of his claim. An appeal was taken by the libellant from this decree. Mr. H. B. Brown, for libellant and appellant. Objection is made to a recovery upon the sole ground that although the tug entered upon the performance of her contract, and proceeded to the place where the vessel was lying, she did not actually take her line or puU her off. It is conceded that if she had actxially pulled the vessel off, she would be entitled to recover not only for this service but for going and returning for that purpose. It is also conceded that if the tug had taken her line and made an effort in good faith to pull her off, she could have recovered though that effort was entirely futile. There seems to be, therefore, in the opinion of claimant, some magic about the physical connection between the tug and the vessel that gives the Hen. It is unnecessary to consider whether a proceeding in ad- 212 CIRCUIT COUET. The Williams. miralty can be maintained for the breach of a purely executory contract. AH we claim in this case is that where a vessel has once entered upon the performance of a maritime contract, she is entitled to recover for the services actually rendered, though they were of no benefit to the vessel. The general rule is well settled that wherever in a mari- time contract there is a remedy against the owner, there is also a lien upon the vessel {The Druid, 1 "W. Kob. 399 ; The Bold Buccleugh, 2 E. L. & E. 536 ; The ScKr Freeman, 18 How. 182). All contracts of the master within the scope of his author- ity, give a lien (1 Pars, on Ship. 173, note ; 2 Ih. 178, note 5 ; The Paragon, Ware, 322). It is held that although a ship has no Hen upon the cargo before it is received, the lien attaches the moment it is shipped on board, and she cannot be compelled to give it up until the freight is paid (1 Pars, on Ship. 175 ; Bulkeley v. Naum- Tceag Cotton Co. 'Si^ How. 386 ; The Hermitage, 4 Bktch. 474 ; The Gen. Sheridan, 2 Ben. 294 ; The Pacific, 1 Blatch. 569). There is no difference in principle whether the tug takes the vessel's line or not. She may not render her a particle of service, and may even injure the vessel, and yet it is not de- nied she would have a lien. The following cases dispose of the question of the necessity of physical connection with the vessel to confer a Hen. The Pacific (1 Blatch. 569), where an action in rem was sustained for the breach of an executory contract to carry a passenger. Bulkeley v. Naumkeag Steam Cotton Co. (24 How. 386), in which a vessel was held liable for the loss of a cargo after it was delivered to a lighter, but before it was shipped on the vessel (See remarks as to phys- ical connection, p. 393). The rule is weU settled that if supplies are bought for a vessel upon the representation they are necessary, the ves- sel is held, though in fact they are not necessaiy, and though -they were never placed on board at aU {The Gustamia, Bl. & How. 189; Bryan v. Pride of the West, 12 Mo. 371; Gibbons v. The Fanny Barker, 40 Mo. 253; Merritt v. EASTERN DISTRICT OF MICHIGAN. 213 The Williama. Brewer, 14 Law Eep. 452 ; The Kearsage, Ware, 546, 554 ; Brightley's Fed. Digest, p. 799, sec. 500, ; Sewall v. Hull of New Ship, Ware, 565 ; The Walkyrien, 3 Ben. 394). In the case of The Canada (Bee, 90), salvage was awarded for consorting an injured vessel, though she was not touched by the consort ; and, in The Underwriter (4 Blatch. 94), it was given to a vessel which " lay to " near a vessel in distress, though no assistance was actually rendered. The question involved in this case is also discussed in The Susan (1 Sprague, 499), and an opinion expressed in favor of a lien (see 2 Pars, on Ship. 287, 144). In the following cases actions were maintained, based upon a simple tender of services : The America (1 Lowell, 177) ; ExpaHe McNeil (13 WaU. 236). It is unnecessary to determine whether a lien is created hy the contract. There are a few cases which indicate that an action in rem will not lie for the breach of a purely executory contract, but on examination they will be found confined to preliminary contracts or to contracts of affreightment in which the lien is in the nature of a common-law lien, and dependent upon possession (Andrews v. The E'ssex Ins. Co. 3 Mason, 6 ; The Tribune, 3 Sum. 144; The S. C. Ives, Newb. 205 ; The Gen. Sheridan, 2 Ben. 294). There are dicta to the same effect in the following cases:. ITie Schr. Freeman (18 How. 182) ; Vam.dewater v. Mills (19 How. 82). In The City of London (1 "W. Bob. 89), a mariner was discharged after the articles had been signed, but before the commencement of the . voyage : Held, that as the voyage had been performed he could sue in admiralty for his wages. As nothing remained to be done in this case except pay- ment of the money, the contract was clearly executed (2 Greenl. on Ev. sec. 104). Mr. W. A. Moore, for claimant and appellee. The contract was a personal one, and created no lien upon the vessel. A maritime lien is a jus in re {The Globe, 2 Blatch. 427 ; The Young Mechanic, 2 Curtis, 406 ; The Kim- 214 CIRCDIT COTTRT. The Williams. hall, 3 Wall. 3Y). To create a lien for supplies, there must be a necessity for supplies and a necessity for credit {Pratt v. Beed, 19 How. 359 ; Tod v. Svltana, lb. 362); A contract to take care of a ship in port and the per- formance of the service, does not create a lien {Levering v. Bam,h of Colvmhia, 1 Oranch C. C. 152-207 ; Phillies v. ITie Soatiergood, Gilpin, 1 ; Oumey v. Crockett, Abbott's Adm'y, 490). There is no lien for a stevedore's services {The Arhstel, 1 Bl. & How. 216 ; The D. C. 8aMsbury, Olcott, 71). The master has no lien for his wages {The Grand Turk, 1 Paine, 73 ; The Orleans v. Phoebus, 11 Pet. 175). The language used in the Druid and The Bold Buccleugh is not approved in the case of the Schooner Freeman. In the case of the Druid the question was whether the owners were responsible for damage willfully done by the master when not. acting vnthin the scope of his authority. In the Bold Buccleugh, the question arose whether the pend- ency of a common law action, for a collision, could be pleaded in abatement of a suit in admiralty in rem for the same col- lision. The case of The Pacific (1 Blatch. 569), was decided by Judge N'elson in 1850 ; the case of Vandewater v. Milk, decided in 1856, overruled The Pacific, and Judge Nelson himself recognized this fact in the case of The Hermitage (4 Blatch. 474). And so Judge Blatchford held in the case of The Gen. Sh&ridam. (2 Ben. 294). In The Lady FranMn (8 Wall. 325), the Supreme Court adheres to the principle that the vessel is not bound except where the cargo is shipped. The cases cited by hbellant, where the vessel was held for supplies "furnished" for her, but not delivered to her, were all dependent upon a State statute, except Merritt v. Brewer. A maritime contract does not necessarily include a maritime lien {The Kiersage, 2 Curtis, 421, 424; Vande- water V. Mills, 19 How. 82, 89, 90, 91). EMMONS, J. Having recently, before the argument in this cause, decided in the case of ^the steamier Eobinson, in the the Western District of Tennessee, substantially the principle EASTKRN DISTRICT OF MICmGAN. 215' The Williams. iere involyed, we should not, but for the history of the c^use, have deemed the question one of doubt. "Without any very thorough examination at the time, but drawing mainly upon what we had ever assumed to be the law, we ruled that aU maritime contracts made within the scope of the master's usual authority did. per se hypothecate the ship ; and that those •of affreightment, insurance, towage, the fitting out and dis- -charge of vessels, and for aiding them in distress, were in- stances only of the application of the rule. After such examination as the great pressure upon our time will permit, we see no reason to modify this ruling ; but hold that the con- tract in this case did ex vigore, the instant it was consummated, ^pledge both vessels, that which was to aid and that to be aided, :for the security of the agreement. Performance in whole or in part works no consequence in reference to jurisdiction gen- «rally, or in the character of the remedy, whether in rent or inpersonam. It affects only the measure of recovery. The practical importance of ^ this question to our north- "westem commerce ; the numerous analogous rights which will fail of protection by even a limited application of the contrary xioetrine ; the protective power which the jurisdiction we sus- tain wiU exert in preventing the disregard of agreements ; and the fear that a brief unreasoned judgment may be less influen- tial to extend and support it, is om* excuse for pursuing some- what at length the reasons for our ruling, although forced to ■do so with much want of form. That contracts for salvage, towage and of affreightment, are in the most unqualified sense maritime, and therefore of admiralty cognizance, wiU not be questioned, and that Wew Jersey Co. v. The Merchants^ Bcmk (6 How. 344) ; Morewood V. Eneqymt (23 How. 493) ; Ins. Co. v. Dunham (11 WaU. 1), and the authors and judgments they refer to, bring within the rule the contract in this ease, wiU be as readily conceded. The denial extends only to the remedy m rem. We infer that one of the reasons for the decree of the Dis- trict Court is that this is at least in the nature of salvage serv- ice, and as the libeUant did not by his efforts save anything. 216 CIROtriT COURT. The Williams. there is no 'remedy m rem. The Ca/momche (8 Wall. 477) ; 2^ Pars. Adm'y, 283, and cases cited ; Benedict's Ad. Pr. sec. 300 to sec. 300 e ; The Hewry Ewbanh (1 Sum. 416) ; 4 Wash. C. C. 651 ; 1 Newberry, 428, 438 ; 1 Conk. Ad. 352, which say salvage is earned not by an attempt but by actual rescue, assert no doc- trine having any tendency to inhibit this proceeding. They and the numerous kindred judgments and authors deny only the exi/raorcl/lna/ry compensation given for salvage service. There is no intimation that a remedy against the ship, if it is saved,, will be denied if the agreement was for payment absolutely. The same remark is equally true of all the cases and authors- which say if the agreement is for such absolute payment,, irrespective of result's, there can be no reward for salvage properly so called. They all relate to compensation only, but not in any case to a denial of the proceeding in rem. Thus,, the case of One Hundred Tons of Iron (2 Ben. 21), is under- stood by counsel to deny all remedy against the ship. As the sole authority for what it does in this regard decide. The In- dependence (2 Curt. 350), is cated, in which, after a careful dis- cussion of this question, Judge Curtis takes pains to say he does, not decide that in a case like that now before us there is no- jurisdiction in rem. On the contrary, with manifest approba- tion, he refers to the judgment of Judge Conkling in The A. D. Patchvn (1 Blatch. 414), affirmed on appeal by Judge Nelson,. in which there was a contract precisely like tiiat here set up,, to labor for the rescue of the ship for &per diem compensa- tion, and where both judges sustained a proceeding in rem, as consistent with the other wholly distinct rule that there can be no extraordinary compensation in such case. At page 418 it is said : " Por all maritime contracts which the master is au- thorized to make, there is an implied hypothecation of the- ship. There was authority to employ others to aid in pre- serving the ship, and I imagine that such a contract, subject to the revisory powers of the Court, would create a lien on the vessel." The Emulous (1 Sum. 207), The Centurion (Ware,, 477), The Pigs of Copper (1 Story, 314), are reviewed, and the principle deduced that suits for salvage may be maintained,. EASTERN DISTRICT OF MICHIGAN. 2l7 The Williams. » although there is an agreement for a fixed and absolute com- pensation. This judgment is referred to in this connection more par- ticularly to illustrate the position that a denial of salvage is not a rejection of a proceeding in rem, but it quite as fully sus- tains the- broader proposition soon to be considered, that all authorized maritime contracts pledge the vessel for their per- formance. It win be noticed the term salvage is used to denote the nature of the service, even where an absolute compensation is agreed on. And so are other cases. In The Versailles (1 Cur- tis, 353), Judge Curtis remarks that he doubts whether there is any such head, properly speaking, as towage. • It should aU, he thinks, be termed salvage, whether the ship is in distress or not, whether there is an agreed price or for fixed wages, as in the case before us. It is, however, but a name. He followed only what Judge Story a little less plainly said in The Mnulous (1 Sum. 210), where he was seeking to lodge the power under some well- known head and among the old, familiar classes of admiralty jurisdiction, that it might escape the contests in the Supreme Court. That high tribunal has now settled this and some other questions, fortunately for the commerce of the country, and declared that over all maritime contracts our Courts have cognizance, and that our only duty is to determine they are such. We need not now, in order to take jurisdiction, main- tain that the towage of a staunch and seaworthy ship through the safe and land-locked straits of Detroit is g, savage service. We believe that the partial adoption of this inapplicable no- menclature is the parent of the objection in this case. It illus- trates the impolicy of applying names to things and acts in unusual senses. Towage, however, is generally called towage, and jurisdiction over it taken not because it is salvage or in the nature of salvage, but. because it is performed in pursuance of a maritime contract over which the Constitution and laws give the District Courts jurisdiction. 218 CIRCUIT COURT. The Williams. In most such cases the more appropriate, bnt, in our opin- ion, unnecessary terms of ordinary and " ext/raordi/rw/rg towage" are employed. (See The Princess Alice, 3 W. Kob. 138 ; The Kelly, 1 Eng. L. & Eq. 596, note 1 ; The Kvngloch, Ibid.) Dr. Lushington points out at length the difiference between salyage and towage, and what he terms extraordinary towage, the latter being such as demands some extra labor. He cannot, he says, where all is fair, break in upon agreements for the latter, and allow salvage properly so called. The Sarbinger (20 E. L. & Eq. 641) ; The Graces (2 W. Eob. 294), were hke . Adm'y, 361; TJie New Champion, Ibid. 202 ; The New Jersey, Olcott, 415). It is evident if the lookout had watched the tug's light carefully, he would quickly have discovered she was at rest ; as her motion, if she had been moving, would have been directly across his course ; and this he admits — it would then have been his duty to call the mate's attention to the fact, and that of the mate to hail her or otherwise attract her notice, and f aihng to do this, to starboard his helm a point and pass under her stem after he had approached so near that it had become ap- parent that an immediate change must be made to avoid a col- lision. He would have no right then to assume that the tug would back to get out of his way. The position taken by claimant is based upon the theory that a sailing vessel encountering a steamer, has but a single duty to perform, and that she may dash blindly on her course, treating the steamer, what she is averred in the cross-libel in ihis case to be, a simple " obstruction to navigation." There are three cases which cover this completely : Tlie A. Denihe (reported in 1 Pars, on Ship. 595, note 3, U. S. Cir- cuit Ot., Mass.), where the similarity is positively striking : even the same expression was used by the pilot ; The Gray Eagle (9 "Wall. 505), where the proposition is distinctly laid down that it is the duty of a lookout to watch a light until all danger is past ; that because a white light usually indicates a veasel at anchor, it need not always do so, and that the . fault EASTERN DISTRICT OF MICHIGAN. 235 The Sunnyside. . of one vessel does not authorize another to run recklessly over her. The Havre (1 Ben. 295), where the same proposition was substantially repeated. See, Especially, remarks of Court on page 303. See, also, The Wings of the Morning (5 Blatch. 15 ; The Ariadne (13 Wall. 4Y5). In the case of The Hope (1 W. Eob. 157), it was held, by the High Court of Admiralty, that no vessel shall unnecessarily incur the probability of a collision by a pertinacious adherence to the strict rules of navigation. In the following cases it was held that the fact that one vessel is in fault will not justify another in the infliction of an injury which could have been avoided by the observance of proper skiU. and care : Mills v. The Natham,iel Holmes (1 Bond, 352 ; Western Ins. Go. v. The Goody Friends (1 Bond, 459). The rule is equally well settled in the common-law courts, that a party is not to cast himself upon an obstruction which has be.en made by the fault of another, and avail himself of it if he does not himself use common and ordinary caution. The fact that a person is riding on the wrong side of the road wiU not authorize another to ride against him {Butterfield v. Forrester, 11 East, 60 ; Bridge v. Grand Junction JR. Co. 3 M. & W. 245 ; Oough v. Bryan, 2 M. & "W". 770 ; Monroe V. Leach, 7 Met. 274 ; Farwell v. Boston daWor. B. B. Co. 4 Met. 49 ; Angell on Highways, sec. 345 ; Sherman & Ked- field on Negligence, sec. 33, note 2). We cheerfully accede to the doctrine that where a fault is proven it will be presumed to be the cause of the collision, but insist it has no application where a contributory fault is clearly shown (1 Pars, on Ship. 580, 595 ; Williamson v. Barret, 13 How. 101). Messrs. F., H. Canfield and G. V. JV. Zothrojp, for the claimant and cross-libellant. Ilfo case can be found where a sailing vessel has kept her 236 CIRCUIT COURT. The Sunnyblde. course and been condemned for a collision with a steamer, where the latter exhibited the lights of a Tessel in motion. The allegation of a change of course on the part of the bark, was not insisted upon at the argument. The tug was at rest while displaying the signal lights of a vessel in motion, and the presumption is that this contributed to the collision ( Waring v. Clark, 5 How. 465 ; The Esk, Law Eep. 2 Ad. & Ec. 350 ; The ContmenM, 8 Blatch. 3 ; Taylor v. Harwood, Taney, 444 ; The Scotia, 1 Blatch. 308). By lying practically at anchor in the pathway of vessels, exhibiting the lights of a steamer under way, yet making no effort to avoid the bark which she had deceived as to her true character and condition, she was guilty of a positive and willful violation of law. All doubts should be resolved against her. The rules prescribed by the collision act should be rig- orously enforced {St. John v. Paine, 10 How. 557 ; Crocket V. Newton, 18 How. 583 ; Steamship Co. v. RwrnbaU, 21 How. 385 ; The Carroll, 8 WaU. 305 ; The Johnson, 9 WaU. 146 ; The Fannie, 11 WaU. 238). It was the duty of the bark to keep her course. The tug had the right to lie still till there was danger of collision, and it is conceded that up to this time the bark was not in fault for keeping her course. But it is only at this point that the rules themselves apply. They require the bark, after there is probability of coUision, to keep her course. Had she failed to do so she would have been a wrong-doer {The Potomac, 8 "Wall. 592; Bentley v. Coyne, 4 Wall. 512; Baker v. City of New York, 1 Cliff. 81 ; Wakefield v. The Governor, 1 Cliff. 96 ; Haney v. Louisiana, Taney, 602 ; The Corsica, 6 Blatch. 190 ; s. c. 9 WaU. 630 ; The William Young, Olcott, 41 ; The Oregon v. Eocca, 18 How. 572 ; Crocket v. Newton, Ibid. 581 ; The Northern Indiana, 8 Blatch. 99 ; The Clement, 2 Curtis, 368 ; The B. B., Forbes, 1 Sprague, 328 ; The Metropolis, 7 Blatch. 214 ; The Test, 5 Notes of Cases, 276 ; The George, 2 W. Eob. 3S6 ; The Vivid, 7 lb. 127; The Superior, 6 Notes of Cases, 607. EASTERN DISTRICT OF MICHiaAN. §37 The SunnyBide. There was no want of a proper lookout upon the bark'. He was an experienced sailor properly stationed. He reported the light to the officer, who came forward and looked at it. A proper construction of his testimony shows that it is not true, as argued, that he paid no further attention to the light till the collision was inevitable. He says the bark kept straight on her course, and he saw no change in the tug's lights ; and at the time of the collision he saw the same lights he had seen from the first. But even if the lookout was insufficient, it did not contribute to the collision, as it would still have been the duty of the bark to keep her course {The Fannie, 11 Wall. 238 ; The Europa, 2 E. L. & E. 557 ; The City of Paris, 1 Ben. 174 ; The Hansa, 7 Blatch. 288). The libellant fails to show that the officers of the bark could have ascertained by the exercise of ordinary care that the tug would not get out of the way, and that a change of course was ■ necessary. They had a right to presume the tug would obey the law, and not violate it ( Williamson v. Ba/rret, 13 How. 101 ; The Clement, 2 Curtis, 368). If there are any doubts they must be resolved against the tug ( Wheeler v. The Eastern State, 2 Curtis, 144 ; Strout v. Foster, 1 How. 89 ; Halderman V. Beckwith, 4 M'Lean, 292 ; Delaware v. Osprey, 2 Wall. 0. C. 268 ; The Ariadne, 7 Blatch. 213 ; The Test, 5 lifotes of Cases, 276 ; The Grace Girdler, 7 Wall. 203). Admitting the bark might have been managed more wisely, her master was guilty only of an error in judgment, not of a fault {TheDelaware v. Osprey, 2 Wall. C. C. 268 ; The Gen- esee Chief, 12 How. 268; The Scotia, 7 Blatch. 308; The Grace Girdler, 7 Wall. 203 ; The City of Paris, 9 WaU. 638 ; The Ca/rroll, 8 WaU. 305 ; The Favorita, 8 Blatch. 539). The tug having been guilty of such gross fault, is not en- titled to recover, even though the bark was not managed with all that care which the law requires {The Wm. Young, Olcott, 41 ; The Catherine, 2 Hagg. 145 ; The Fashion, Wewb. 8). ■fhe tug, having been guilty of a positive violation of law, all doubts are to be resolved against her, and the burden is upon her to show that the accident would have happened if 238 CIRCUIT COURT. The Sunnyside. ghe had performed her duty {The JPennsylvcmia, 9 Blatch. 454 ; The Comet, Ibid. 323 ; The Contmental, 8 Ibid. 3 ; The Fcmorita, Ibid. 539 ; Taylor v. Harwood, Taney, 444 ; Sal- tonstall V. Stockton, Taney, 21 ; The Ariadne, 13 "Wall. 479). The cases of The A. Denike and Gray Eagle are the only ones which tend to support the theory of the tug. EMMONS, J. The tug Goodnow was lying for a tow in Lake Huron, in the vicinity of the head of St. Clair river, in conformity with a well known usage. It was about 3 A. m., and although still dark, her hull could be seen in time to avoid her, had it been known she was without a lookout, and would not herself discover approaching ships, so as to perform her duty and move out of the way. AU her lights were brightly burning, with steam up, ready at any moment to move. A great number of vessels were in the vicinity. She was drift- ing before the wind, about two miles an hour, with her head to the eastward, so as to display to the Sunnyside, which was approaching from the southward, her white and green lights. These were seen by the latter nearly ahead, but, we infer, somewhat over the larboard bow, long before the coUision,^ and, by the experienced lookout, annoimced to the master in charge. He came forward, observed them, and remarked they were on a steamer, and that she " was all rightP He soon went further aft, to his more common station midships, where he could walk from side to side, in the observance of other lights, and where he could from time to time approach the compass, and issue orders at the wheel. The Sunnyside's speed was about nine miles an hour. The lookout observed the continuous bearing of the tug, which indicated she was not under way, and lay nearly in his path. It was not until they approached the immediate vicinity of the tug that the lookout, having had his attention turned in other directions by different lights discovered that they were in dangerous proximity. He then hastily announced the fact to the master. The latter at once gave orders to starboard, but too late to avoid the disaster which sank the tug. Upon these facts it is claimed the bark EASTERN DISTRICT OF MIOHIGATST. 23& The Snnnyaide. was to blame for not starboarding earlier. "With some doubt,, and after much hesitation, we hold the Simnyside to be with- out fault, believing that, in the circumstances, she was war- ranted in keeping her course. In arriving at this conclusion, we are in some degree influ- enced by the wholly inexcusable and exceptionally gross char- acter of the Goodnow's fault. The nature of the original Hbel and the untruthful and now abandoned proof to support it, we hold as legitimate subjects of consideration in denying a remedy. In order to appreciate the character of the misrepresentation in the original libel and proofs, it must be borne in mind that it is now conceded the Sunnyside was at no time over the tug's quarter, or in any direeticji where by any possibility she could be supposed to be there. "Without attempting literal accuracy, substantially the orig- inal libel alleged that, while the tug was lying as already indi- cated, the Sunnyside was made over their sta/rboa/rd quarter, and so far astern that there would have been a broad berth be- tween them, as she passed, of nearly half a mile. That, instead of keeping her course under the rule, she suddenly ported and ran down the Goodnow. No confession of fault was made ; but a case stated, having in no one of its features the most dis- tant resemblance to the facts as they are now conceded at the bar, and contained in the amended libel. The owner of the tug was on board, and the libel necessarily framed from his and his officers' statements. This false case was sought to be supported by testimony so inherently absurd and so undeniably untrue, that it is unworthy of criticism. In all this there is much which, unexplained, is so highly unconscientious as to merit censure, and essentially affect the right to relief {The Mabey omd Cooler, 14 "Wall. 205). No question as to the cir- cumstances in which the amendment was made has been raised here. That no person on board the tug saw the Kghts of the Sun- nyside until Just as the colKsion occurred, is conceded. If they did see them, their fault is only the more extraordinary. The 240 CIRCUIT COURT. The Sunnyside. amended libel charges four faults upon the bark : that she had not a proper lookout ; that she did not see the tug ; that she did not perceive that the tug was not in motion. These impu- tations are conclusively negatived by the testimony. The fourth is a vague generality, giving no enlightenment to respondent, and is such as we would, upon exception, hold not to be the subject of proof. The officer in charge having once observed the light, had full authority to act upon the assumption that the steamer would avoid him. We hold, if a light is announced to the offi- cer in charge of a vessel, obliged under the rules to keep her course, and from full observaition, the unambiguous apparent conditions in reference to wind, atmosphere, course, distance a,nd character of the vessel, all indicate absolute safety if the law of the road is complied with, he may leave the future watching of such a light to an .experienced lookout. It wUl not be a, f emit that he does not himseK remain with the latter and participate in his observation. He may return to his post further aft, to his general duties in the ship, and especially, if other lights are ofE abeam and over the quarters, give his atten- tion to them, and in all cases frequently to his compass and his own course. The application of the principle to ships whose duty it is to avoid others, requires only a more close criticism of the circum- stances, and more frequently demands longer and continuous observation by the master. If, from such observation, any circumstances known, or which with ordinary diligence might be known, indicate a de- parture from the rules by the approaching ship, or would sug- gest danger of collision, from any cause, to an intelligent sea- man, the duty of careful and continuous watchfulness is imposed upon the master. He would have no right in such a case to leave to the lookout the difficult duty of deciding when, on ac- count of increasing hazard, he should again announce the Ught. When, in these latter circumstances, the officer has exercised his best judgment, and kept his course^ or, waiting until the peril was great, has departed from the general rule, the Court EASTERN DISTRICT OF MICHIGAN. 241 The Suanyside. should not reverse Ms judgment, unless the error has been gross and unpardonable. It is not the duty of a lookout to reannounce a light, unless some new conditions occur, which an intelligent officer of the deck would not anticipate, from the first observation made, and in reference to which it is in some degree probable a new order would be given. These general principles, we think, will receive a ready common assent. We apply them here as follows : That the master performed his duty by remaining aft, where he could not see the danger, we have already sufficiently said. We think it equally clear that the lookout did his. An unneces- sary argument was made to show that he might, from her con- tinuous bearing, perceive that the tug was at rest. This sea- man frankly swears he did so perceive it, and the fact is too apparent for discussion. But it indicated nothing in the least unusual, and imposed no duty upon the lookout of reannounce- ment. Certainly when not at a distance, because the custom is as common as the trips of the sail craft for which they lay in wait. Nor was a near approach with the same condition any more alarming. It is a common .practice for these vessels to wait before they move for the close proximity of those which approach them. As a class, they are small vessels, with pow- erful engines, and are both started and backed with the utmost rapidity. From the nature of their avocations they acquire an exti^aordinaiy dexterity in avoiding vessels close aboard, and consequently, beyond all others, risk nearness of approach. If this one had not the characteristics of her class, it but adds an- other reason why assuming their attitude and proclaiming that she had, relief should be denied. Out of many thousands of instances where similar vessels have lain in the same way, not one in the whole history of navigation is known to have failed in the performance of her duty. The lookout had a right to repose, therefore, not only upon the statutes of the country, but upon the peculiar power and long practice of this class of ships to perform in just their circumstances the duty which they impose. It was ia the night, when no eye can measure the 16 242 CIRCUIT COURT. The Sunnyside. distance to a light, or the inill of a ship of unknown size, so as to discover the difference between two, four and six hundred feet. The tug was ah*eady moving two miles an hour before the wind. The bark was going nine, with her bows alternately elevated and depressed, and swayed to the right and left as she rose and fell with the waves. These conditions rendefed an immediate discovery of the precise moment when the tug, by a few turns of her wheel, should move slightly ahead or astern, as she should elect, utterly impossible. If life depended upon it, it could not be done. She would have to pass several times the distance necessary to avoid the bark before her movement could be perceived by the lookout. He, too, was engaged jn watching for other lights, in entire confidence that this .one wpuld move out of his way, and would not, upon the most familiar principles, give it any particular attention. That he would from time to time see it, is certain, because it lay in plain sight before him, and he concedes he did observe its coutinuous bearing. But it is equally certain, if he was actuated by the motives of ordinary men, he would not, a» he states, particularly notice it until some new and extraordi- nary predicaments suggested that it was not likely to obey the laws which so many hundreds before had obeyed in like situa- tions. Add to these conditions the rule of law, that if the bark changed her course at all m advwnce of real danger, she would be condemned for the fault, and we have presented predicaments in which it seems to us little less than a cruel misapplication of rules to hold the vessel liable because the lookout did not decide the precise moment at which he crossed the line of safety. We asked in vain from the learned and ex- perienced counsel in this case a diagram designating in time and distance the point at which the lookout should have rean- nounced the light. None such has been furnished. We ap- prehend it would be difficult to draw one which would stand the criticism of an expert. In a case where the fault of the libellant is excessively gross, where the bark has kept her course in accordance with the law, where her officers and lookout are proved to be of the EASTERN DISTEICT OF MICHIGAN. 243 The Sunnyside. very highest character, and where, to say the least, their con- duct has heen all which in ninetyTiiine cases in the hundred can be secured, we should deem it most impolitic for the safety of navigation, a discouragement to the performance of duty by good seamen, to set up in Oourt, for the benefit of those who have outrageously violated the law, a rule of criticism which would condemn the respondents' ship. In exceptional circum- stances, and under the stimulus of apprehended danger, " sleep- less vigUanee," rightfully in such circumstances demanded, is possible. With our present faculties it cannot be long sus- tained, nor do the ordinary exigencies of commerce demand it. When the facts presented not only fail to excite suspicion of peril, but, where viewed in connection, with legal rules, author- ize entire confidence that all is safe, ordinary ca/re is all which can be continuously exercised, and all which the law requires. We would like to have grouped the decisions which sustain more pointedly the various propositions involved in the preced- ing disposition of this case. Again compelled to work in an unusual mode from failing sight, and with many undecided cases demanding attention, we can do no better than to refer to judgments in the order in which they have been examined. In our selections we can go but little beyond the exceptionally full and thorough briefs of counsel. The following cases show our judgment would be sanc- tioned 'by the English Admiralty Courts : The Test (5 Notes of Cases, 276). Dr. Lushington says : " I cannot conceive that anything would be more likely to lead to mischievous con- sequences than to suppose that a vessel, whose duty it is to keep her course, should anticipate that another vessel wiU not give way, and so give way herself. The consequences would be that there would be no certainty. The certainty which results from adhesion to general rules is, in my opinion, absolutely essential to the safety of navigation." The George (5 Notes of Cases 371). This is emphatically re- peated by the same judge. The Superior (6 Notes of Cases 607). He says the proof must be entirely clear, showing the necessity for the deviation, before it can be even 244 CIECmT COUKT. The Sunnyside. justified. It is a diflEerent thing to hold that a neglect to do so is a fault. And see, equally pointed, a case quite beyond the requirements of the Sunnyside, The Vmid (7 Notes of Cases 127); The Immaganda Sara Clasina (Y Notes of Cases 582). A vessel, whose duty it was to keep her course, did not deviate until she had twice hailed the other, and at last, in alarm, did so, and was condemned in the en- tire damage. It is an extreme case, and goes far beyond what it is needful now to argue. We would hold the master blame- less if the approaching ship neglects his duty so long as to pro- duce alarm in an experienced sailor. And see a more recent enforcement of the same rule. The Gitana and Esk (Law Eep. 2 Adm. 350). The Esk's light indicated her at anchor. Minute observations might have discovered she was in motion, but the Gitana was held faultless for full reliance on the lights. The decisions of our own Courts are equally pointed in the same direction. The Clement (2 Curt. 363). A ship, conceding her own fault, asked a decree for division against another which was entitled to keep her course. It had been plausibly argued, as in this case, that as she approached close to, it was entirely mani- fest a movement on her part would have prevented the disas- ter. At page 368, Judge Curtis says : " Upon the rule of navigation applicable to such cases, he was not only in the right in acting upon the assumption that the brig would be so steered as to keep out of his way, but he was hound to act on that as- sumption, and keep his course, unless he saw that there would be -ao probable chance of a collision if he disregarded the role. The Ariadne (Y Biatch. 211). A brig, having an imperfect starboard light, was sunk in the night by a steamer. It was sought to sustain the libel on the ground that by extraordinary vigilance the brig might have been sooner seen. Judge Wood- ruff, affirming the decree dismissing the libel, at page 213, says: " But vessels have a right to assume that other vessels, if in their neighborhood, are acting in obedience to the statute regulations, and where the negligence of the sailing vessel, and her failure to comply with the statute requiring her to bear a light which EASTERN DISTRICT OF MICHIGAN. 245 The Sunnyside. can be seen at a distance of two miles, have led the steamer into danger of collision, it is not for the sailing vessel to in- sist that by more than nsual vigilance she might nevertheless have been discovered at a few yards' greater distance, and to claim contribution on that ground." This case is reversed in 13 "Wall. 475, but upon grounds which do not in the least affect the principle for which we quote it. That Court, taking an entirely different view of the facts, declared the steamer guilty of gross fault, that " for all the purpose of the case, there might as well have been no loolcout on the steamer." The expressions in reference to " sleepless vigilance," are carefully confined to the crowded thoroughfare in which the collision occurred, and were applied to a ship upon whom was cast the duty of OAjoidance. They notice, too, that although the light of the bark was dim, she could have been seen a quarter of a mile, if the lookout had done his duty. The judgment in no way qualifies the rule of law laid down by the circuit and district judges, that the gross fault of a libeUant cannot im- pose exceptional vigilance upon another. This is well-settled law ia the Supreme Court. In The Comet (9 Blatch. 323), Judge Woodruff says that where a party seeks a recovery after con- fessing a fault on his part, he must be held to the clearest proof of wrong on the part of his adversary. It is not enough to leave it in doubt. In Saltonstal v. Stockton (Taney, 11), Chief Justice Taney lays down the following principle at com- mon law, which is equally applicable in a Court of Admi- ralty : " If a man unlawfully places another in a situation which compels him to imdergo one of two hazards, and forces him to choose upon the instant between them, he necessarily gives him the right of selection, and must be responsible for the consequences, although it may turn out that the most for- tunate alternative was not adopted." The Scotia (7 Blatch. 308). The -Beiikshire, with illegal lights, led the Scotia to suppose that it was a steamer, at so great a distance that her colored lights were hid by the convexity of the ocean. She was, in fact, but a few rods off. In a judgment which, on ac- count of the magnitude of the values involved, was the result 246 CIECmT COURT. The Sunnyside. of more than ordinary examination, Judge Woodruff, affirm- ing on appeal what Judge Blatchford had ruled in the District Court, at page 338, said : " It was night, the distance of the Berkshire could not at that instant be known. If the Scotia attempted to go to port, it was not at all improbable that she would meet the ship while in the act of turning, while by turning to starboard there was a like uncertainty. Her officers must choose. They did exercise their judgment in good faith, and yet the collision ensued." Attention is called to the fact that lights, in reality within a few rods, were supposed four miles off upon the mast of a steamer whose colored lights were below the line of vision over the water. Here the Sunnyside is asked to decide, . within two or three hundred feet, the precise distance of the G-oodnow. This case has been affirmed by the Supreme Court, although not yet in the re- ports. The William Young (Olcott, 41). A sailing vessel, in fear of a collision, having changed her course to avoid it, was injured by a steamer. Judge Betts says : " Sailing vessels cannot justify a departing from their course on a probability of encountering an approaching steamer, unless she is crowd- ing so much upon the track as to create imminent danger of collision." The R.B. Forbes (1 Sprague, 328). The libellant's vessel saw a steamer more than a mile off ; she might easily have avoided her by a slight movement, but as it was her duty to keep her course. Judge Sprague decreed for the whole dam- age, upon the ground that she had a right up to the last mo- ment to suppose the steamer would avoid her. He adds, it would have been a fault for her to have changed her course. The Corsica (9 Wall. 630; s. c. 6 Blatch. 190). It was the duty of the America to avoid the Corsica. In attempting to cross her bows at a late period, discovering it was too late to do so, she stopped and backed. The Corsica, in the supposi- tion she was going to carry out the attempt, starboarded. This would have been entirely safe, but for the unexpected back- ward movement of the America. Although the Corsica was misled into this movement, the District, Circuit, and Supreme Courts all condemned her in the entire damage of thirty-three EASTERN DISTRICT OF MICHIGAN. 247 The Sunnyside. ^thousand dollars. > She did not adhere to the rule and keep her course. Bentley t. Coyne (4 Wall. 512). When a vessel, at the last moment, in gfeat peril, altered her com-se, the Court, in holding it justifiable in the circumstances, prescribes rules clearly showing the Sunnyside was right in holding it, even if it would not have been a fault to do otherwise. It is in no disregard of the familiar rule that the Admiralty, if it sufEers recovery at all, where there is mutual fault, equally divides the damages, that we say that when there is a gross and criminal departure from well-settled rules, and an absence of all common care on the part of the libellant, he should not be entitled to recover, even although he succeeds in proving a slight fault against his adversary. The Comet (9 Blatch. 329). Judge Woodruff examined the question of fault on the one .eide, in the light of that shown upon the other. Numerous judgments pursue the same course. It may, perhaps,. resolve itself into the simple truism that the more gross and improba- ble is the fault, upon the one side, the less is the duty of ob- iservation and of its anticipation on the other. An extraordinary criticism is made in this case. Com- jplaint is made that a lookout on a vessel entitled to keep her course, with a light before him which a seaman of common prudence would take for granted would get out of the way, temporarily took his eyes from it to watch other points of the horizon along which were numerous lights. WhoUy unreason- able as is such an objection, when coming from the mouths of those who put them forth to protect themselves from the con- sequences of their own wrongs, they are nevertheless not novel, and have been frequently answered by judges of the highest character {The Ev/ropa, Browning & Lushington, 89; 2 E. L. & Eq. 557). The Privy Council, affirming the decision of the High Court of Admiralty, dispose of such a criticism in favor •of this bark. The Charles Bartlett, being close-hauled, and bound to keep her course, and the steamer which sunk her having been found in fault, it was urged the sail vessel should -contribute to the damage, because, among other imputed faults, it was conceded the lookout, just before the collision, had his 248 CIRCUIT COURT. The Sannyside. attention attracted from the steamer by taming to observe some workmen engaged in coppering tbe rail. Their lordships say: "We can pay no attention to that argument; his busi- ness as lookout was to walk with his eyes to tbe horizon, but that does not mean that he is not to turn his eyes off to watch what a man is doing. All these expressions, ' lookout,' are to be taken in the common sense. He might do that, and look after the man coppering the rail." They say, as the bark was entitled to keep her course, the absence of a lookout was less important. Answering the objection that the bark might have heard the steamer sooner, they add : " ISow we think, with ref- erence to that, the circumstance that she was Teeepmg her cov/rse was very important, because a ship keeping her course is only bound to go on and keep her course ; not anticipating and watching that other persons are coming. If she had heard something was coming, she would have been entitled to con- sider that it would come so as not to do her damage." A dif- ferent rule, of course, would apply when perceived irregulari- ties indicated danger, and especially to a vessel bound to avoid another. When that high degree of watchfulness necessary only in circumstances of danger, is in argument required of those who are entitled to their way, upon the ground that unexpected irregularities may attend the movements of an approaching ship, the appropriate answer is that given by Judge Woodruff in The Scotia (Y Blatch. 308), where substantially he says : such a position assumes what is not to be assumed ; that irreg- ularities will occur, or that officers, without evidence that they are probable, are bound to presume they will happen. Not in reference to a vessel having a right to keep her course, but to tho^e who are bound to keep out of the way, and where a higher duty is imposed than that demanded of the Sunnyside^ the Supreme Court in The Grace Oirdler (7 Wall. 203), lays down the following reasonable rule : " The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances, such as is usual in simi- lar cases, and has been found by long experience to be suffi- EASTERN DISTRICT OF MICHIGAN. 24^ The Sunnyside. cient to answer the end in yiew, the safety of life and prop- erty." The remarks in Williamson v. Ba/rrett (13 How. 101) are peculiarly applicable in cases like this. The Supreme Court says it is by no means enough to show that a particular act or movement would prevent a collision, it must further ap- pear it is a legal duty to make it. In ninety-nine cases in a hundred, vessels bound to keep their, course might save collis- ion by deviation, but it is not their legal duty or right to do so. Equally stringent in the application and unambiguous in expressing the rule in manifold applications are. The Con- tinental (by Judge Woodruff, 8 Blatch. 3), The Eastern State (by Judge Curtis, 2 Curtis, 141), The Famorita (8 Blatch. 539), Taylor v. Earwood (Taney, 444), The City of Paris (9 Wall. 635). In The City of New YwTc (1 Cliff. 75)^ Judge Clifford says : " The vessel whose duty it is to keep her course should do so as if there were no danger." And in The Governor (1 Cliff. 96) he adds that these suggestions, that a ship hound to keepi her way might by deviation avoid the col- lision, are entitled to but little weight. See also. The Cath- am/ne (2 Hagg. 145), The Fashion (l^ewberry, 8), The Lyon (Sprague, 44 ; 1 Pars. Adm. 529, and cases cited). The CarroW (8 WaU. 305), The Johnson (9 WaU. 146), CrocJcett v. Newton (18 How. 583), The Steamship Co. v. EumbaU (21 How. 385). See also The Free State {post, p. 251), decided by this Court, in which the general principle authorizing full confidence that, the rules of navigation will be adhered to is annoimced, and the leading judgments considered. A full consideration of the books cited by the libellants is impossible. ISTone of them, save one, purporting to be a cor- rect manuscript report of a decision by Judge Clifford, have any tendency at variance with our judgment. We doubt whether it is fully before us. The Gray Eagle (9 Wall. 505) is'-cited by the libeUants. The case bears no analogy to this. The Court say the Gray Eagle was grossly in fault for not per- ceiving that a light which must have crossed from the larboard to the starboard bow, was in motion and not at anchor. Th& remark that the master should have watched the Kght, we 250 CIRCUIT COURT. The Sunnyside. fihould agree witli in the circumstances of that case. The Scot- land (1 Ben. 295), a vessel whose duty it was to keep out of the way, was guilty of manifest irregularities in such ample time before the collision, that had they been known to the ofiB- cer on the other ship, ordinary pi'udence would have de- manded a deviation. The lookout signally failed to do his duty. The case is but a common illustration of principles we fully concede. With some of the arguments in the opinion, if, .as we much doubt, it is intended to sustain the inferences which counsel sought to draw from it, we should not agree. The 0. G. VamderUU (Abb. Adm'y 361), The Hope (1 Wm. Eob. 157), are like cases. 1 Pars. Adm. 580, and notes, refers to the leading cases, holding that a rule of navigation should not be stub- .bomly adhered to. He remarks that The Oregon (18 How. 570), Crockett v. Newton (18 How. 581), take a somewhat dif- ferent view. K it is supposed that tribunal has decided a rule of navigation may be stubbornly adhered to, we do not so un- derstand them, and certainly proceed in no such notion now. If there be any difference between the English and American JTilings upon this subject, theformer are more rigid in insist- ing upon adhesion to rules of navigation. "We think the judgment referred to and the rules best for the safety of navigation, establish the right of the Sunnyside in the circumstances which were presented to her lookout to keep her course up to the point when collision became inevitable. She then did all in her power to avoid it. We find that there was no fault in the . master for returning to his post, or in the lookout, standing on the forecastle of his heaving ship, in the night, with no guide object between him and the light, that he did not discover the difference between a movement of two miles an hour and five, or in distance between six hundred feet and two. Carelessness on the part of the libellants, which, if life had been lost was undeniably criminal, can cast no such extraordinary duty upon the approaching ship. Decree for the cross-liheUant. Note. — This caae is now pending on appeal in the Supreme Court. EASTERN DISTRICT OF MICHIGAN. 261 The Free State. THE FEEE STATE. APRIL, ISTS. Collision. — Steamer and Sailing Vessel. — Construction or Ar- ticles 13 AND 16. — EiSK OF Collision. — Obligation to Slack- en Speed. A propeller descending the Detroit riyer at her usual speed, made the green light of a scow very nearly dead ahead, and ahout the same time the red light of a steamer a little upon her port bow ; the steamers exchanged single whis- tles and passed each other to the right ; while passing the ascending steamer the propeller starboarded to avoid the scow ; when very near the propeller, and about one and a half points on her starboard bow, the scow ported, and threw herself across the propeller's course, and thereby came into collision with her and was sunk. Held, the scow was in fault for changing her course, and that the propeller was not in fault for failing to slacken speed before the scow exhibited a red light. A propeller meeting a sailing vessel in a clear night with plenty of sea room, is under no obligation to slacken speed so long aa the sailing vessel is apparently keeping her course, and no danger is apparent. The words " risk of collision " are not used in the same sense in Articles 13 and 16 of the Collision Act; in the latter they apply only to cases of manifest danger of collision, and the obligation to slacken speed under Article 16 was not intended to be contemporaneous with the duty of porting under Arti- cle 13. The cases upon the subject of speed reviewed and criticised. Libel for collision, by August F. Ludwig and others, against the propeller Free State, the Western Transportation Company, claimant. The collision occurred between three and four o'clock in the morning, on the 17th day of August, 1870, in the Detroit river, just above Amherstburg, in Canada, and between the main land and the head of Bois Blanc Island. The scow was bound up with a load of building stone. The propeller was boimd down, also loaded. The weather was fair, and it was a 252 CIRCUIT COURT. The Free State. good night to see lights. The scow had the wind free, and a little over her port^qnarter. The propeller struck the scow on the port side, a little forward of the main rigging, crushing her in and causing her to sink almost immediately. The specific faults with which the propeller was charged were five in num- ber, and were as follows : 1. Want of proper lights. 2. Ko lookout. 3. Did not keep her couxse and pass on port side. 4. Did not slacken her speed. 5. Not fully equipped. The answer denied the faults charged, and that the collision was caused in any manner by fault or negligence on the part of the propeller, and claimed that the same was caused solely by fault and negligence on the part of the scow, and specified the fol- lowing : 1. That the scow had no lookout. 2. She did not keep her course. 3. Officers and crew not at their proper posts, &c. The following opinion was delivered by the District Court (Judge Longyear). There is no pretense that the first, second, and fifth charges of fault against the propeller, and the first and third against the scow, are sustained by the evidence. The case, therefore, stands for decision on the remaining charges only : The law governing the case is found in articles 16, 16, and 18, of the Act of April 29, 1864 (13 Stat: 60, 61), as follows : Article 15. If two ships, one of which is a sailing ship and the other a steamship, are proceeding in such a direction as to involve risk of collision, the steamship shall keep out of the way of the sailing ship. Article 16. Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse ; and every steamship shall, when in a fog, go at a moderate speed. Article 18. Where, by the above rules, one of two ships is to keep out of the way, tho other shall keep her course, etc. The mere fact of collision between a steam vessel and a sailing vessel is, as a general rule, prima fade evidence of fault and negligence on the part of the steam vessel, it being made her duty, bv article 15, to keep out of the sailing vessel's way ; provided always, however, that the sailing vessel is her- self without fault. In such cases, therefore, unless it shall ap- EASTEKN DISTRICT OF MICHIGAN. 253 * The Free State. pear that the collision was in fact the result, in whole or in part, of fault on the part of the sailing vessel, the steam vessel must hear the loss. Hence it becomes important, in this case, in the first instance, to inquire into the charge of fault made against the scow. By article 18, it was the duty of the scow to keep her course, and the charge of fault made against her is that she did not do so. By the evidence adduced on behalf of the scow the follow- ing facts are established : After entering Detroit river, the scow kept up along nearer to the Canadian (her starboard) bank. Just after passing Amherstburg the steamer Jay Cooke passed the scow on her starboard side, or between her and the Canadian bank. As the Jay Cooke was passing her, the scow came up (starboarded) one point, or thereabouts, in order, as the witness said, to give the Jay Cooke more room. After the Jay Cooke had passed, the scow ported, in order to get into the wake of the steamer. It was while she was sailing under this port order that the propeller came down upon her. When the collision became inevitable, the scow's helm was put hard aport, and the collision occurred. Here, then, by her own showing, were at least two changes in the scow's course. Did these changes, or either of them, occur after it had become the duty of the scow to keep her course ? And, if so, did such changes cause, or contribute to, the collision ? I think the proofs show that the propeller had been made from the scow before the Jay Cooke passed ; at all events, she was made aware of the approach of the propeller when she and the Jay Cooke exchanged signal whistles, which occurred just as the Jay Cooke was passing the scow, and, of course, be- fore the latter had ported to get into the Jay Cooke's wake. The proofs further show that -mien the two steamers blew their signal whistles, the propeller and scow were not to exceed a half a mile apart, and were probably considerably nearer than that ; and that when the scow ported, the distance between them was only some 300 to 400 feet. From these facts, it is clear that the proximity of the two vessels was such that the duty of the scow to keep her course had attached before she had made either of the changes men- tioned. Now let us see what effect these changes had in bringing about the collision. The proofs on the part of the propeller show that the scow 254 CIRCUIT COURT. The Free State. was first made from the propeller at or about the time the Jay Cooke was passing the scow, and that then the scow showed to the propeller her green or starboard light. This must have been after the scow nad starboarded to give the Jay Cooke more room ; because, owing to a bend in the river between the two vessels, and their position in the river, the starboarding of the scow would have the effect to shut in her red and open her green light to the propeller. It also appears by the proof that the propeller's course was laid to avoid the scow, while the latter was imder the starboard helm, and stiU showing her green light ; and I think the conclusion irresistible that, but for the scow's porting as she did, the propeller would have gone entirely clear of her, and there would have been no eol- sion. The propeller, of course, had the right to pass the scow on either side she chose, and, in laying her course, she had the right to presume the scow would keep her course. From the above premises two things are apparent : 1. That, if the scow had kept the course she was on when the Jay Cooke overtook her, and had not starboarded as she did (and there is nothing to show that such starboarding was at all necessary to avoid colliBion with the Jay Cooke), the propeller would not have been misled as to the scow's ultimate intentions, and would have had no excuse for attempting to pass her on her starboard side. 2. If, after the scow had starboarded, she had then kept her course, there would have been no collision, and hence tliat the immediate cause of the collision was the scow's porting as she did. In arriving at the above conclusions I have found it un- necessary to resort to that portion of the testimony on the part of the propeller in relation to the situation of the two vessels in the river, and relatively to each other, which was so ably and severely criticised by the learned advocate for the libel- lant. As to the movements of the scow I have drawn my conclusions solely from the libellant's own testimony, and have resorted to the testimony on the part of the propeller only for the purpose of aseertainmg when the scow was first made from the propeller, what light of the scow was then seen, and what action on the part of the propeller was predicated thereon. Having found that the scow must be held responsible for the immediate cause of the collision, it remains to inquire into the conduct of the propeller, and see if she was guilty of any fault which contributed to the result. The speed of the propeller, as we have seen, was nine EASTERN DISTRICT OF MICHIGAN. 255 The Free State. miles an hour. Confessedly slie did not slacken that speed until the collision was inevitable, and then it did no good. Risk of collision was clearly involved from the time the pro- peller first made the scow, and therefore her failure to slacken speed was clearly a violation of article 16. As to when the duty to slacken speed begins in such case, see opinion in Milwaukee case, recently decided in this Court {post). Where a vessel thus violaites a positive rule of law, and a collision ensues, it will be presumed that such violation of law contributed to the collision, unless the contrary be made clearly to appear. These rules were enacted to prevent the loss of life and destruction of property by collisions upon tlie water,, and the only way to make them effectual is to insist on their rigid enforcement. There bding nothing in the case to rebut the presumption above spoken of, the propeller must be held, responsible for not slacking her speed as required by article 16. Considering that it was in the night, or, at best, in the dim twilight of the morning, and in a narrow channel, through which lay the pathway of the entire commerce of the lakes, and consequently thronged with vessels passing and repassing most of the time, both night and day, as it actually was to a considerable extent at the time in question, the speed of the I)ropeUer was clearly too great for prudent and safe naviga- tion, so much so as to constitute a fault on general principles,, and for which she would be held liable independently of arti- cle 16 {The St. Charles, 19 How. 108, 111 ; Union S. S. Co. V. JVew Tork c6 Virginia S. S. Co. 24 How. 307 ; The Dis- patch, Swab. 138 ; The Germania, 21 L. T. IST. S. 44.) Decree dividing damages. From this decree an appeal was taken by the claimant ta the Circuit Court. Mr. H. B. Brown, for the claimant and appellant. The scow was clearly in fault for not keeping her course (Articles 15 and 18). If a sailing vessel keeps her course and a collision ensues, the steamer i&, prima facie, ill fault ; but if she does not keep her course, she is in fault, unless she can bring herself within Article 19 {The Potomac, 8 Wall. 590; The City of Wew Torh, 1 Cliff. 75 ; The R. B. Fwhes, lb. 256 CIRCUIT COURT. The Free State. 331 ; The Wm. Young, Olcott, 38; The New Jersey, Id, 415; The Neptune, Id. 483 ; Steamhship Co. v. Bvmhall, 21 How. 3Y2). The duty of keeping her course involves the incidental duty of heating out her tack. She must not embarrass the manceuvres of the steamer by changing her course, unless there is an immediate necessity for so doing {The Argus, Olcott, 304; The Empire State, 1 Ben. 57; The Bridgeport, 6 Blatoh. 3 ; The Scotia, 5 Blatch. 22Y ; The Potomac, 8 Wall. 590). Such fault being established, the scow waa solely to blame unless she can prove the steamer guilty of a subsequent fault not produced by or in any way attributable to the first (Lowndes on CoU. 88 ; The Lion, 1 Sprague, 40 ; The Anglo Normcm, 1 ISTewb. 492; The Ariadne, 2 Ben. 472; The Mwanda,! IS'ewb. 227). If the scow does not keep her course, she has no right to question the propriety of our order to starboard — ^the steamer has the right to adopt such measures as she may choose to get out of the way {The Great Eastern, Holt, 172 ; The Osprey, 1 Sprague, 245 ; The Oregon, 18 How. 570 ; St. John v. Paine, 10 How. 557 ; Newton v. Stebbims, Id. 586 ; The City of New Yorh, 1 Cliff. 75 ; The Carroll, 1 Ben. 286 ; The B. B. Forbes, 1 OlifE. 331 ; The Leopa/rd, Daveis, 193 ; The Northern Indir rnia, 16 Law Kep. 433). The propeller was under no obligation to slacken speed until danger was apparent (The Jesmond & Earl of Elgm, L. E. 4 P. C. 1 ; The Scotia, 7 Blatch. 308 ; The Queen, 8 Blatch. 235 ; Williamson v. Barrett, 13 How. 101 ; The Ariadne, 2 Ben. 472). There are but five exigencies in which the obligation to slacken speed arises, neither of which existed in this case : (1) When running in a fog, or in hazy or smoky weather {McCready v. Goldsmith, 18 How. 89 ; The Northern Indi- a/iia, 3 Blatch*. 92; The Colorado, post). (2) When meeting vessels in a narrow channel or river ( Ward V. The Rossiter, Newb. 225 ; The Bay State, Abb. Adm. 235; The Milwauhie, post). EASTERN DISTRICT OF MICHIGAN. 257 The Free Slate. (3) Wteii entering a crowded harbor or thicket of vessels '{The Indiana cmd Buffalo, Newb. 115 ; Steamboat New York V. JSea, 18 How. 223 ; JSogers v. Steamer St. Charles, 19 How. 108 ; The Louisiana, 2 Ben. 377 ; The Steamer Mectra, 1 Ben. 282 ; The City of Paris, 9 WaU. 634). (4) When approaching a vessel whose position or move- ments are xmcertain {Steamer Zomsiana v. Fish&r, 21 How. \; The Jas. Watt, 2 W. Eob. 271 ; The Birkenhead, 3 W. Bob. 75 ; Nelson v. Leland, 22 How. 48). (5) When the approaching vessel does something that indi- cates a depa/rtwre from the rules of na/vigation, or a misim- derstanding of the signals. AU the cases holding vessels in fault for too great speed faU within one of the above classes. Not one can be found which holds a steamer in fault for maintaining her usual speed when no danger is apparent. Mr. Geo. B. Miliard, on the same side. The District Court erred in finding the propeller in fault ibr too great speed. (1) There was no " risk of collision " until the scow com- mitted her fault, and therefore no obligation to slacken speed. Certainly the propeller was not bound to anticipate an infrac- tion of the statute by the scow. (2) The burden is upon the scow to show that the collision was not owing to her fault in changing her course, and if she cannot establish this, she cannot recover for any injuries she may sustain {The Lion, 1 Sprague, 40 ; T}ie Bay State, 3 Blatch. 48 ; Wa/ring v. Clarke, 5 How. 441, 466). (3) There was no obligation to slacken speed until danger of collision was apparent. " Kisk of collision " is determined when one vessel changes her course sufficiently to pass clear of the other {The Ewi'l of Elgin, L. E. 4 P. C. 1 ; The Wenona, 8 Blatch. 499). (4) The officer of a steamer has a right to assume that others will obey the rules of navigation, and is bound to as- sume that a sailing vessel will not change her course. 17 258 CIRCUIT COURT. The Free State. (5) There being no fleet of vessels, a. speed of nine miles an. hour, coming down the river, was not excessive — certainly it was not a fault as to the scow. (6) The scow has no right to commit the fault she did, and then, upon a mere conjecture, call upon the propeller for con- tribution. EMMONS, J. The grounds upon which the libeUanta demand an affirmance of the decree are that the Free State starboarded and ran into the Meisel after the latter had ported and showed her red light, and that the speed of the propeller was, imder the circumstances, unlawful. In reference to the iirst, the District Court found the facts against the libeUant. We agree that the evidence shows the starboarding on the part of the propeller was before or nearly cotemporaneous with the porting of the Meisel, and that such movement on the part of the latter caused the coUision. "We shall not discuss the evidence upon this point. The facts will be stated only for the purpose of showing the reasons why we differ from the learned judge of the District Court in refer- ence to the application of the rule of law which requires a steamer in difficult navigation, or where, from any cause, there is " risk of collision," to slacken her speed. The following facts, substantially stated in the opinion of the District Court, are all which are necessary for the purposes of the present judgment. The Meisel was coming up the river between Maiden and Bois Blanc Island, and near the Canadian shore. The propeller Free State, well equipped, manned and lighted, with lookout, and officers well placed, was coming down somewhere near the center of said channel, at fuU speed. At the same time the steamer Cooke came up between the Meisel and the Canadian shore, and exchanging with the propeller the usual signals for so doing, they passed each other to the right. The Meisel, as the Cooke passed between her and the shore, starboarded, and then, if not be- fore, displayed alone her green, and shut out from the Free State her red light. The wind was over the larboard qimrter of the EASTERN DISTRICT OF MICHIGAN. 259 The Free State. Meisel, and slie had a clean run before her, in the course which the display of her green light indicated, of over half a mile. !No other vessel was in the vicinity, and there was nothing to induce a suspicion on the part of the Free State that she would not run out the course upon which she had just entered, in circumstances rendering such duty imperative. As the Cooke passed the Free State, and while the Meisel was displaying her green light, indicating, as she was actually running, a course to the northwest, directly across that of the Free State, the latter, as was not only her right but her duty, starboarded, in order to pass the Meisel. "While the ships were in this position, and in such close proximity as to make a collision inevitable from the movement, the Meisel ported, and displaying her. red light to the propeller, ran across her bows, and was sunk so quickly as to result in loss of life. The instant the red light was opened to the Free State, every effort was made to arrest her progress. The morning had so far advanced that vessels could be seen a mile away. The atmosphere was clear, so that lights were in no way obscured. All the conditions of navigation were favorable for safety. It presents but the common case of a descending vessel meeting a ship without a circumstance to excite fear of collision. If the duty of slackening speed exists, it is only because the rule is universally applicable in all cir- cumstances contemplated in Article 13, even though the ships in fair weather meet in the open sea. Such a rule, counsel contend, the District Court administered in this case, and more fully explained and illustrated in the case of The MilwcmJcee (post). It is insisted that both judgments, when taken in con- nection with the facts in this record, construe Articles 13 and 16 of the Act of 1864 as imposing upon all steamships meet- ing end on, or nearly end on, the duty of both porting and slackening speed cotemporaneously. As a necessary result of such a rule, it is agreed a like duty is imposed upon all steam- ers meeting a sail vessel in circumstances demanding a change of course in order to avoid them. From this construction of the rules and all its consequences in practical navigation we are compelled to dissent. We can discover in the facts as we 260 CIRCUIT COURT. The Free State. have stated them, no duty on the part of the Free State to slacken her speed, until the unfavorable presentation of the red light of the Meisel immediately under her bows suddenly prompted the attempt. As everything possible in the circum- stances was then done, we hold her to be without fault. So far as the practical administration of this principle is concerned in The Milwaukee, we found no fault. In that case, from facts apparent to both masters, the courses were doubt- ful. It is with the argument, and some of the reasons of the judgment only, which we disagree. In the opinion of the District Court, too, in this cause, we find it said the col- lision happiened ,iQ the night, with the channel crowded with vessels. No such facts appear in the record before us, other- wise we should promptly affirm the decree. We think, in the application of this rule, there would be little difference be- tween the District Court and this. The necessity for the present discussion arises from the judicial argument in The MihjoauTcee, its citation in the present case in the opinion be- low, and its citation by counsel as a precedent here. It, by no means, follows that the learned District Judge gave it any such extension. Article 13 is as follows : " If two ships under steam are meeting end on, or nearly end on, so as to involve risk of col- lision, the helms of both shaU be put to port, so that each may pass on the port side of the other." Article 16 provides that " every steamship when approach- ing another ship, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse, and every steam- ship shall, when in a fog, go at a moderate speed." It is argued that the former provides the helm shall be put to port when vessels are meeting end on, so as to involve risk of col- lision ; and, as Article 1 6 uses like language in describing the cases when speed shall be slackened, both duties must be per- formed at the same time. Literally and irrespective of the former condition of the law, and of the exigencies of navigation, this is a logical con- EASTERN DISTRICT OF MICHIGAN. 261 The Free State. elusion. "We thiiik, however, this cannot be the meaning of these rules. Upon principle we should have no doubt whatever in ref- erence to their meaning. But in view of the history of their adoption by Congress, we should deem the decision of the Privy Council, reversing the judgment of Sir E. PhiUimore in The Jesmond and The Ea/rl of Elgm (L. E. 4 P. C. 1), obligatory. This Act is but an adoption of the English rules sanctioned by Act of Parliament. They have sprung from much mutual consultation and political conference in both countries, and were intended to create a system common to the commerce of each. All the leading maritime powers of the world have adopted them. "Were there much greater doubt than we ap- prehend exists as to their meaning, we have confidence the Supreme Court would follow for the sake of harmony the de- cision of the Privy Council. It is at all events the duty of this Court to do so. In that case the Jesmond and Elgin were meeting end on, and in the night, going at full speed. The former obeyed Article 13, and ported. The Elgin, when so near that the movement inevitably produced the collision, starboarded, and was sunt so suddenly as to drown a large portion of her crew. Sir E. PhiUimore held that Article 16 imposed the duty of slackening speed at the same time, and in the same circumstances in which Article 13 required the helm to ■ be ported. He divided the damages therefore, upon the ground that the Jesmond was running at too great speed. His judgment was reversed upon appeal. There was full argument and consultation with the nautical advisors, and the rule clearly announced that where Article 13 is obeyed, and there is nothing in the known conditions to lead either side to suspect a departure from it by the other, there is no duty to slacken speed, and Article 16 has no application. It is said that article applies only where some known fact, or one which ordinary care might discover, indicates danger. It is with much emphasis said the rish of collision mentioned in it does not include those unexpected violations of law by an approach- 262 CIRCUIT COURT. The Free State. ing ship which a good seaman would not anticipate, in the flupposition that there was an experienced master in command. The following decision, although not cited in the Elgin, is 3, fnU precedent for the judgment. The condition of the law, "when it was decided, was substantially the same as after the statutory adoption of the rules in reference to porting and slackening speed {The Bob Roy, 3 "W. Eob. 191). The Bob Eoy ran down the TJnicom, going at full speed until she was in such close proximity that the attempt to stop was useless. The green light of the Unicom being extinguished, and the red light hid on account of her course, she was mistaken for a sail craft. The Kob Jloy ported as she should have done had the vessel been what the light indicated. Dr. Lushington excused the Eob Eoy for not slowing her speed, because, he says, the. lights which the Unicom displayed indicated it was safe not to do so. The following American decision, made since the adoption of the rules of 1864, is equally pointed {The Scotia, 7 Blatch. 308). A sail vessel, in the night, was simk by a steamer pro- ceeding at fuU speed. The collision was caused by illegal lights and faulty movements on the part of the sail vessel. About haK a million was involved, and the case obtained an elaborate examination. Judge Blatchf ord, for reasons too ex- tensive to reproduce, held that Articles 16 and 13 prescribed the duties of the parties. He says, " The Scotia kept on at 13 knots an hour," and subsequently that he " can dis- cover no fault on her part." He says, in different cir- cumstances he would have found the Scotia in fault for not slowing or stopping when she first discovered the light of the Berkshire, but the improper light on the latter made it proper for the Scotia to port when she did. On appeal. Judge "Wood- ruff, affirming the decision of the District Court, although dif- fering with some of its reasoning in other respects, approved fully the portions we have quoted. He says : " The law be- fore the statute was that declared by it ; and therefore the rule as to slowing would be the same under the one as the other." In page 334 he inquires : " Ought she to have slack EASTERN DISTRICT OF MICHIGAN. 263 The Free State. ened her speed sooner than she did ? " Proceeding to answer the query, he says: "Whether the light she saw was on a steamer or on a sailing vessel, no duty to slacken speed or change the course of the Scotia arose until there was reason to apprehend a collision." " The suggestion that it was her im- mediate duty to slacken speed when she saw the light, assumes what in the first instance is not to he assumed. If «he saw the light and observed it diligently, without having reasonable ground for apprehending a collision, no duty to slacken speed, or even to change her course, was created." He illustrates at length the policy of the rule which authorized the Scotia to act with confidence upon apparent indications, without any assumption that there was, or would be, any violation of law on the part of the approaching ship. To these literally applicable and pointed decisions many may be added which, by their necessary assumption of the rule, are equally efficient in its support. It was not intended to change the " rule of the road," so far as any duty in this case was concerned, by the adoption of these articles. The regula- tions they establish are as old as steam and the modem improve- ments in navigation. The introduction of colored lights wrought no difference in their principle. They, by a certain indication of courses, made their application more easy. For all time since the matter came under judicial discussion it has been law, when vessels were meeting end on, to port the helm and go ahead with confidence. It is law, equally familiar and equally old, that when vessels of any kind are approaching each other, under circumstances which in any degree indicate to an experienced seaman risk of collision, they must slacken their speed, and, if necessary, stop. This statute being but a reitera- tion of these principles, must by the most familiar rules of in- terpretation be read in reference to them. They wUl be held to modify them only so far as their plain and express provisions compel. That the old so-called " Golden Eule " of porting and pass- ing to the right was established before the Act of 1864, see St. ■John V. JPaine (10 How. 583) ; The Nimrod (15 Jurist, 1201 ; 264 CIRCUIT COLTET. The Free State. Story on Bailm. 611 ; The DuJce of Sussex, 1 Wm. Eob. 274; The Rose lays down the rule stringently (1 Pars. Adm. 569,, and note 4), and fully affirming the rule, see Wew York Co. v. Wa/vigation Co. (22 How. 461), citing some of the leading En- glish and American judgments. The Supreme Court says the rule is well established. That when approaching each other in circumstances indi- cating danger of collision, it was the duty of steamers to slow before the adoption of Article 16, is abundantly shown by de- cisions which are immediately cited for a slightly different purpose. Save in the case of the Elgin and Jesmond, the Kob Eoy and the Scotia, before cited, and a few others, judges have sel- dom taken pains affirmatively to assert the truism that vessels- passing each other, where there are no apparent circumstances to indicate danger, need not slacken their speed. But this has been so universally assumed, the law should be deemed at rest. In order to establish old maxims it is by no means neces- sary, and is often difficult, to produce cases where the precise point has been raised and adjudicated. In Calton v. Bragg (15 East, 223), Lord EUenborough said : " It is not only upon decided cases, where the point has been passed upon, but also from the continued practice of the Court, without objection made, that we collect ' the rules of law." In Smith v. Doe (2 Brod. & Bing. 598), Lord Eldon, with mnch spirit, replying to what had been said at the bar, answered : " That the most enlightened judges who ever sat in Westminster Hall always gave the greatest weight to what had obtained in practice." And see 1 Blackstone, 68; Eam on Legal Judgment, 12; Bennet v. Watson (3 M. & S. 1); Prigg v. Pennsylvania (16 Pet. 539) ; U. S. v. Hudson (Y Cranch, 32) ; Briscoe v. Bomk of Kentucky (11 Pet. 25Y). A long list of concurring judgments, therefore, which necessarily involve a proposition, are as efficacious for its support as if it were affirmatively ruled. A very large majority of all the decisions in reference to EASTERN DISTKICT OF MICHIGAN. 265- The Free State. collisions, both English and American, assumed as weU as set- tled this principle, that actual perceived danger alone demands the duty of slackening speed. The Cognac (Holt's Eule of the Eoad, 133). Two vessels approached end on. The one followed the rule and ported, but the other suddenly starboarded, and brought about the col- lision. Dr. Lushington pronounced against the offending ship^ although the other was proceeding under full steam ; no criti- cism whatever was made upon the rate of speed. The Concordia (Holt, 142). So far as tiiis question is con- cerned, the facts are substantially the same as those in the Cognac. For a faulty starboard movement, the Concordia was condemned for the whole damage, although the other vessel was proceeding with rapidity up to the moment of the collision. The Mam/ Sandford (3 Ben. 100). The argument is full to sustain the rule. The Wenona (8 Blatch. 499). Justice "Woodruff reversed the judgment of the District Court, where a schooner with misleading lights, and which made a faulty starboard move- ment immediately preceding the collision, was run down in the night by a steamer going at full speed. In a judgment admirable for its clearness he demonstrates the legal right of the master of the Wenona to proceed in the confident pre- sumption, not only that the schooner's lights were properly placed, but that she would pursue the course they indicated. The facts are so strikingly like those before us, that the judg- ment in the one case would equally apply in the other. In Lowndes on Collision, 59, et seq., is an intelligent analysis of most of the leading cases where ships have been condemned for too great speed. His citations and comments abundantly show that the duty of slackening speed is dependent alone upon the exigencies indicating danger. The America (3 Ben. 424), is another instance of the condemnation of a vessel for a faulty movement in the immediate presence of an approaching ship, when both were proceeding at the usual rate, without any intimation of a fault on that account. J!few York Trans. Co. V. Philadelphia Steam, Co. (22 How. 461). A steamer was com- ^6Q CIRCXriT COURT. The Free State. ing up the Delaware with unabated speed, and ported in order to pass a tug with a tow attached by a hawser. The latter im- properly starboarded, and a collision ensued. The Supreme ■Court held the steamer did its whole duty if she slowed and endeavored to stop as soon as she discovered the improper movement. These few judgments are referred to simply to illustrate a mode of argument which may be successfully pursued through nearly aU the gre8.t mass of decisions where ships at full speed iave conie into collision, and one has been condemned ia the entire damages for sudden faults which could not be antici- pated by the other. That those which are most illustrative have been selected, is not supposed. In the brief time allowed for the purpose, it is accidental if they are so. A long list of judgments illnstrating the circumstances in which it is the duty of a steamer to slow, and demonstrating, -we think, satisfactorily that they wholly exclude those con- iained in this record, has been analyzed in the instructive and thorough argument of the respondent's counsel. It has greatly aided the Court. The length of our judgment prohibits what we had intended — ^its literal adoption. The perusal of these cases, with attention challenged to the argument that all of them with more or less force assume, that some affirmative evi- dence of danger must be present in order to impose the duty of decreasing speed, will result in a concession of the position {The Zouisiana, 21 How. 1 ; The Jas. WaU, 2 "Wm. Eob. 271 ; The Birkenhead, 3 "Wm. Eob. T5 ; 'Nelson v. Zeland, 22 How. 48 ; The A. Eossiter, Newb. 225 ; The Buffalo, lb. 115 ; Me- Cready v. Goldsmith, 18 How. 89 ; The New York, lb. 223 ; The Bay State, Abb. Adm. 235 ; Northern Indiana, 3 Blatch. 92 ; The St. Charles, 19 How. 108 ; The Zouisiana, 2 Ben. 377; The Elecin-a, 1 Ben. 282; The City of Paris, % Wall. 634). "We have examined these judgments, and can say with con fidence, they fully sustain lie argument which the learned counsel has deduced from them. They show that if we hold in this case it was the duty of the Free State to slow, where EASTERN DISTSICT OF MICHIGAN. 267 The Free State. every condition before her promised perfect safety in full speed, the judgment will stand without a fellow, unless it finds one in those which have been overruled. Benedict, Conkling, Parsons, Abbot, Angell on Carriers, in laying down the gen- eral rule, treat the judgments sustaining it in the same mode. If there be one elementary principle better established than another, we should say it is that which authorizes a seaman, having complied with every rule of navigation, in the absence of all indications of danger, to proceed with unabated speed, in fuU confidence that others would also perfomi their duty. The obligation on the part of the Meisel to keep her course is as imperative as that of the Free State to keep out of her way. The statutory "rules themselves, and the judgments already referred to in reference to the speed of the steamer, dearly affirm it. "We add, however, a few adjudications more particularly discussing the precise duty. They all deny the right of this saU craft to return to her former course, after hav- ing selected another, immediately in front of an approaching steamer. The Wenona (8 Blatch. 499), before cited, goes quite beyond the necessities of this case {The Scotia, 5 Blatch. 227; The Argus, Olcott, 304; The Empire State, 1 Ben. 57; The Governor, 1 CM. 93; The Bridgeport, 6 Blatch. 3 ; St. John v. Paine, 10 How. 557 ; The Oregon v. Booca, 18 How. 570 ; The Scotia, 7 Blatch. 308 ; The Queen, 8 Blatch. 234). The Potomac (8 Wall. 590), held a steamer faultless which was running nine miles an hour with no abatement of speed until just before the collision, although a sail vessel was run down, which suddenly changed her course and crossed her bows. The case is much like the present. (See New York Co. V. Bumlall, 21 How. 372 ; 1 Cliff. 75, 831, 415, 483.) These judgments and numerous similar ones also establish what results necessarily from the rule itself, that if the sailing vessel must keep her course, and it is the duty of a steamer to avoid her, the mode in which this is to be done is not to be closely criticised. The selection is wholly for the latter. Having fully approbated the construction which authorized 268 CIRCUIT COURT. The Free State. imabated speed in the circumstances of this case, we desire to call special attention to the conditions in which alone such a rule will be administered. The utmost diligence wiU be de- manded in order to discover the earliest indications of danger, and prompt precautions required to avoid their consequences when known. As we understand Article 13, it is a duty to port before any risk of collision has accrued. It would be a fault for which a steamer could be condemned if she waited until there was actual danger, such as is required in Article 16. They, by no means, contemplate the same circumstances, or prescribe duties to be performed at the same time. The former is to be imderstood as if it read as follows : " If two ships under steam are meeting end on, or nearly end on, so as to involve risk of collision, if thevr res^pectme courses were continued, the hehns of both shaU be put to port, hefore amy such risk is incurred, so that each may pass on the port side of the other." See The Nichols (7 WaU. 656), which decides, the porting must be so early that no danger is incuiTed. If the rule had been so worded, it never would have occurred to Sir R. PhiUimore that there was any analogy between it and Article 16. The one would have commanded the duty of porting before any risk of collision arises ; the latter that of slowing only where the risk has actually arisen. But the practical and judicial meaning of Article 13 is precisely as if it so read, and it is therefore impossible that the two duties, that of porting and that of slowing, under the 16th Article, can be contemporane- ous. Such a result is deduced only by a mere literalism wholly overlooking the substantial mandate to port long before the exigencies arise which call for the duties demanded by Article 16. This interpretation reconciles the rules and warns masters that they must port their helms at such safe distances, and ac- companied by such watchfulness and care as would render wholly inapplicable the act of slowing their engines. The Sunny Side {ante, p. 227), just decided by this Court, is an application of the same principle, for the justi- fication of a sail vessel which, keeping her course under EASTERN DISTRICT OF MICHIGA.N. 269 The Free State. the rule, ran down and sank a tug. Both judgments are necessary for an understanding of the qualifications with which we would like to see the rule administered. A large number of experienced experts have been examined since the argument, and without exception old masters of sail vessels as well as steamers pronounce the suggestion of a duty to slow in such circumstances a novelty. It is one which is not performed on the one hand, or expected or desired on the other. All with great strength of preference declare in favor of holding both parties inexorably to the rules, and authorizing neither to anticipate a departure by the other until actual present peril demonstrates that further adhesion is beyond aU question dangerous. It is said a large majority of aU collisions result from a too hasty decision that exigencies demand a deviation. In the general principles of law we have announced, we have much confidence. Whether another tribunal in a dis- position to divide a misfortune may not so criticise the conduct of the Free State as to impute some fault, we are less certain. But believing there is no greater discouragement to able officers, and no greater injustice to liberal owners who compen- sate them than those hypercritical judgments which demand a standard utterly impossible in practical navigation, and which are always announced in the interests of those but for whose wrongs the losses complained of would never occur, we have brought the steamer's conduct in this case to such a test only as we believe old and able mariners having a love for and a pride in their profession, would sustain. The ruling we make has the sanction of many such. Decree reversed and libel dismissed. Note. — ^An appeal was taken from the above decree to the Snpreme Conrt, where the case is now awaiting argument. DISTRICT COURT. EASTERN DISTRICT OF MICHIGAN. Hon. JOHN W. LONGYEAK, District Judge. THE OLD CONCOED. APEIL, 1870. Practice. — Bight of Mortgagee to Intervene. — Rearrest of Vessel. A mortgagee of a vessel has a light to interTene in an admiralty suit for the protection of his interest. A Teasel, discharged from arrest upon giving bond or stipulation, returns to her owner forever discharged from the lien which was the foundation of the pro- ceedings agdnst her, and the Court has no power to order her rearrest. It seems where the sureties hecome insolvent, the Court may require the claim- ant to furnish new sureties, on penalty of contempt, or of being denied the right to appear further and contest the suit. * MoTioiT to vacate order remanding vessel to the custody of the marshal. In this case the propeller was arrested November 10, 1868, and bonded on the same day by John Hutehings, claimant, with two sureties. December 18, 1868, Hutehings mortgaged the propeller to Eber B. "Ward, who intervened pendente lite, setting up his mortgage as the basis of his right to intervene. Jtdy, 5, 1869, an order was entered, remanding the propeller to the custody of the marshal, on the ex parte application of libellants, on the ground that the sureties had become insolvent EASTERN DISTRICT OF MICHIGAN. 271 The Old Concord. since the bond was given. Ward now moved to vacate the order so remanding the propeller, on the ground that the Comt had no jurisdiction over the vessel after she was so bonded, and therefore had no power to make the order. Mr. H. B. Brovm, for the motion. Mr. W. A. Moore, contra. LONGYEAR, J. It is contended, on behaK of libellants, that Ward has no standing in Court, he being a mortgagee merely, and not the owner or an agent, consignee or bailee for the owner, as required by rule twenty-six. Rule twenty-six has been considerably altered and enlarged, if not entirely super- seded by the Act of March 3, 1847 (9 Stat. 181). But the rule and the Act relate exclusively to the conditions to be complied with to entitle a claimant to avoid an arrest of the property, or to obtain its discharge after it shall have been ar- rested, and not to conditions necessary to entitle a party to in- tervene pendente lite, to participate in the distribution of pro- ceeds, or to protect any interest he may have in the subject- matter of the litigation. The right of a party to intervene for these purposes has been recognized, both in England and in this country, as ex- tending to judgment creditors who have acquired a Hen, and also to attaching creditors. (See 1 Conk. Ad. 55, 66-70, cit- ing The Flora, 1 Haggard R. 298, 303 ; The Rebecca, Ware's R. 204 ; The Ma/ry Anne, Ware, 99.) This being so, what reason can there be why a mortgagee should not be admitted to intervene for protection of his own interest, and contest a forfeiture so far as his right or interest would be prejudiced by the decree ? I can see none. I am therefore clearly of the opinion that Ward is properly ad- mitted to intervene as mortgagee, and consequently that he has a right to make this motion, and to be heard upon it. The next and remaining question is as to the validity of the order remanding the vessel. I shall not stop to argue the ques- 2Y2 DISTRICT COURT. The Old Concord. tion. It seems to be too well settled, both in this country and in England, to need further elucidation, that the vessel, on be- ing discharged from arrest upon the giving of the bond or stipulation, returns into the hands of her owner, discharged from the lien or incumbrance which constituted the foundation of the proceedings against her, forever and for all purposes whatsoever, the surety taken being a substitute for the ves- sel, and the Court has no power or jurisdiction over her there- after in the same suit or for the same cause {The Jlnimi, 4 Blatch. C. C. E. 90, 93 ; The White Squall, Ibl 103 ; The Kalamazoo, 9 Eng. L. & Eq. 657, 560 ; 15 Law Kep. 563). 1^0 question of fraud, mistake or improvidence in entering into the bond, or discharging the vessel, arises in the case, and therefore need not be considered. The only remedy that seems to be provided in a case where the sureties shall become insolvent is an application to the Court for an order requiring new sureties to be given. Diso- bedience to such order would put the party in contempt, and he could be proceeded against accordingly, and be denied the right further to appear and contest the suit until he complied with the order, or otherwise purged his contempt (Adm. Eule 6 ; Ben. Adm. sec. 492 ; 2 Conk. Adm. 112). I am therefore of opinion that the Court had no power to make the order remanding the vessel intx) the custody of the marshal. Motion granted. EASTEElSr DISTRICT OF MICHIGAN. 273 The David Morris. THE DAYID MOKEIS. FEBRUARY, 1611. Collision in Attempting to Pass a Eaft. — Costs. A tug, having five vessels in tow, while running down a narrow, crooked chan- nel, at a speed, with the current, of ahout seven miles an hour, overtook and attempted to pass a raft of timber in tow, moving at the rate of four and a half miles an hour, and occupying about one-half the width of the channel One of the vessels grounded upon the port bank, and the one next astern ran into and injured her : Seld, that the tug was in fault : (1.) For not sooner discovering the raft, and that it was in motion ; (2.) For attempting to pass it in a narrow channel. Seld, also, that the colliding vessel, not being affirmatively shown to have been negligent, cannot be held in fault. Where the libellant claimed $'70, and recovered but 30 cents, and the respond- ents claimed a larger amount of damages than they were able to prove : Held, that neither party should recover costs. Libel for towing. The libel alleged the towing of the bark by Kbellant's tug, the I. U. Masters, from Lake Huron to Lake Erie, August 30th, 1868, and claimed seventy dollars for that service. The answer of Kufus K. Winslow and others, owners and claimants of the bark, admitted the towing as al- leged, but denied that the same was worth the amount claimed, or that there was anything due Ubellants on account thereof, ■ and claimed a recoupment to the full amount of the value of the service, on account of damages alleged to have been suffered by the bark in consequence of unskillful towing. The facts, as deduced from the pleadings and evidence, were as follows : The contract as to price was at the usual rate, which was seventy dollars. There were five vessels in the tow, the bark David Morris being the fourth, and the brig Standard the fifth. A raft of .square timber, also passing down, in tow of the tug Clark, was 18 274 DISTRICT COURT. The Dayid Morris. overtaken in the narrow channel across the St. Clair Flats, in the twilight of the morning of August 30th, 1868. The chan- nel at this point is about three hundred feet wide. The raft was six to eight hundred feet long, and one to two hundred feet wide, and was passing down the channel nearest its- starboard bank, but the tail of it was swinging slowly to port. The tug Masters attempted to pass with her tow on the port hand side of the raft. The first two vessels of the tow went clear j but the third being the one next ahead of the bark, fetched up on the port bank of the channel. This made it necessary for the bark to starboard her hehn, and fetch up also on the port bank, in order to avoid a collision with the vessel forward of her, which she did. The bark having thus fetched up, the vessel behind her, the Standard, ran into her, hitting her in the stem, and causing damages, to repair which cost the owners of. the bark $69 70. The tugs and their tows were moving with the current^ which, at that point, was about two and a haK miles per hour. The tug Clark, with the raft, was moving through the water about two miles per hour, making her total speed about four and a half miles per hour. The tug Masters, with her tow, was moving through the water about four and a half or five miles per hour, making her total speed about seven or seven and a half miles per hour. The tug Clark was seen by the mate of the Masters when at least two miles distant, and was then taken by him to be a ' tug aground. It was not ascertained on board the Masters that the Clark was moving and what she had in tow- until within about half a mile of her. Mr. H. B. Brown, for libellant. Mr. Wm. A. Moore, for respondents. LONGTEAR, J. The question is, was the tug in fault for attempting to pass the tug and raft as she did ; and was the collision and damage caused thereby ? EASTERN DISTRICT OF MICHIGAN. 275 The David Morris. Here was a narrow, crooked channel, the banks of which were snhmerged on each side by a broad expanse of shoal water, and difficult of navigation even in broad daylight, and navi- gated safely at any time only by the aid of stakes and other guides. The tug was approaching this channel, with its large tow of five vessels, the entire length of which was not far 'from 1,800 feet, and moving with the curi-ent at a speed of between seven and eight miles an hour. Ahead of her was another tug, just entering the channel with a raft of timber of large dimen- sions, filling nearly or quite one-haK the channel. Without slackening her speed, or waiting for the tug and raft to pass through the channel and into the open water beyond, where there was plenty of room to pass, she overtook the latter, and, at the very narrowest and most diflieult part of the channel, at- tempted to pass, and the catastrophe happened. Surely some good excuse must be made to appear, in order to hold the tug faultless under this state of facts. It is claimed, in exoneration of the tug : 1. That, when the raft was first seen, the distance was so short that it was impos- sible for the tug to check down and reduce her speed, so as to allow the raft to pass through and out of the channel ahead of her, without great risk, if not the certainty of the vessels of the tow being thereby caused to run into each other, and that therefore such an emergency existed as demanded a prompt decision of the officer in charge of the tug, and that, although he might not have decided upon the course which may now appear to have been the best, yet, if he was not guilty of negligence in coming to the conclusion he- did, there is no liability. The Court recognizes this doctrine as a sound one when the emergency is sudden, and the best way out . of it is really a question of doubt. But in such a case the vessel charged with fault must be in no way responsible for the emergency. In this case the txig Clark, which had the raft in tow, was seen from the tug Masters long before the emergency hap- pened ; and in addition to this the evidence is clear to my mind that, with a proper lookout upon the Masters, the raft could 276 DISTRICT COURT. The David Morris. and would have been seen from her long before it is stated by her officers to have been seen. When the tug Clark was first seen from the Masters, it was the duty of those in charge of the latter to keep a close watch upon the movements of the former, and ascertain, at the earliest possible moment, whether she was aground, as at first suspected, or not, and if in motion, whether she had anything and what in tow. The Clark was moving at the rate of four and a haK miles per hour ; and in the relative position of the two to each other, and to the bends of the river, she must have been moving diagonally across the bows of the Masters, so that, by the exercise of ordinary dili- gence, it could have been discovered almost immediately that the Clark was in motion, and that she was moving towards the entrance to the narrow channel. The raft had upon it a house some eight or ten feet high, built of boards, for sheltering the men. This was also in motion, of course, and with the com- monest care and attention would have been seen almost, if not quite, as soon as the tug which had it in tow. These rafts, with houses on them, are not unusual on these waters, but, on the contrary, are of very common occurrence, and hence there was no difficulty in determining at once what it was the Clark had in tow. This would have afforded ample time for the speed of the Masters to have been checked down to that of the tug and raft, so as to have allowed the latter to pass through the channel first, without any possible danger to the vessels in tow of the Masters. The time and distance would have been so ample as to leave no room for doubt as to the duty of the officer in charge of the Masters to so check her speed. There- fore, if the Masters did find herself in the emergency claimed, in which there was reasonable doubt as to which was her duty, whether to check her speed or go ahead, she is herself respon- sible for the emergency, and can, of course, claim nothing on account of it. In this view of the case it is unnecessary to determine whether the emergency claimed reaUy existed or not. But I think if we were to inquire into it we should find it difficult to determine it in favor of the tug. According to the testi- EASTERN DISTRICT OF MICHIGAN. 277 The David Morris. mony of those on board the tug, the raft was seen when at least half a mile ahead. Some of the witnesses state it less, than that, but I think, taking libellant's testimony altogether, that is about the proof. The relative speed of the tug and tow to that of the tug and raft was about three miles per hour,, not to exceed that. The wind was blowing a stifE breeze nearly ahead. The expert testimony is clear to my mind, that in these conditions there would have been no difficulty whatever in checking the speed of the tug and tow down to that of the tug and raft, in ample time, without the least danger to the vessels of the tow, and that when so checked down the speed would stiU have been ample for steerage way. That it was the duty of the officer in charge of the tug so to check down, if he could with safety, there is no question ; that he could have done so with safety, is so evident, not only from the expert testimony but from the nature of the case, that I think there was hardly room for such a doubt in the mind of a competent officer as the Court ought to recognize. At all events, the danger of undertaking to pass the raft with such a tow was so much greater than that of attempting to check down, that the tug ought certainly to have made the attempt to do the latter. 2. The second position taken in exoneration of the tug is that the collision was caused solely by the fault of the Standard, in not either starboarding and fetching up also on the bank, or porting and running out into the stream in time, so as by the one manceuvre or the other to go clear of the bark after she had fetched up, and that therefore whether the tug was in fault or not, for attempting to pass the raft, she is not liable for the damages done by the collision. The difficulty in maintaining this position is the want of proof of fault on the part of the Standard. The tug being in fault for attempting to pass the raft, as already found, the burden was upon her to show that the collision and damage were not caused thereby. The proof shows that the David Morris fetched up about abreast of the tail end of the raft, with insufficient' room between for the Standard to pass, 278 DISTEICT COURT. The David Morris. rendering it inevitable that if tlie latter had ported and passed to the starboard of the former, she must have coUided with the raft. Hence her only course was to starboard and fetch up on the bank if possible. There is no proof that she did not attempt to do this, or that her failure to do it was on ac- count of an unskillful attempt. Neither does it appear what her condition or situation was when the emergency arose, so as to be'able to judge whether she might have effected the manoeuvre in time. It must be remembered that the tug is responsible for the emergency, and that the burden is upon her to show affirmatively and not by inference merely, that the Standard might have avoided the bark. Not having done so, she is not exonerated. I hold therefore, that the collision and damage to the bark were caused by the fault of the tug in attempting to pass the raft, and that the owners of the bark are entitled to have the expenses incurred for repairs thereby made necessary deducted from the amount due the tug for towage, and that the tug is entitled to a decree for the balance. The right of libeUant to be paid for the towage, and the right of claimants to have deducted therefrom expenses for repairs arose at the same time, and therefore interest can be computed only on the balance. The proof shows that the price of the towage was $70.00 Expenses of repairs 69.70 Balance due libellant .30 A question was raised as to the costs, and it is contended on behalf of respondents that, under all the circumstances of this case, they should recover costs. As a general rule the allowance of costs in admiralty is the same as at common law, that is, the prevailing party shall recover costs. But in the exercise of its equitable power, admiralty may hold each party to pay his own costs, or even the prevailing party to pay costs (1 Pars. Sh. & Adm. 544, and note 2). In this case the real contest has been as to the liability of EASTERN DISTRICT OF MICHIGAN. 279 The Island Queen. the tug for the collision and the consequent damage to the bark. Upon that issue the libellant has failed, and, instead of the respectable sum claimed by him, he recovers a merely nom- inal amount. I think, under these circumstances, it would be inequitable to require the respondents to pay his costs. On the other hand the respondents claimed a larger amount for expenses of repairs than they were entitled to. It may have been, and probably was, by mistake, but this does not help them any on the question here presented. I think they are not entitled to costs. Equity and fair even-handed justice in this case requires that each party should be left to pay his ■own costs {The Boston, Olcott, 407 ; The Nimrod, 24 Eng. L. & Eq. 589 ; The Cynthia Ann, lb. 579). Decree for liheTlant. THE ISLAND QUEEN. FEBRUARY, 18T1. Shipment of Gold Coin. — Limited Liability Act. Libellant's agent, who waa Intending to take passage on a steamboat from De- troit to a Canadian port, intrusted a quantity of gold coin to the master he- fore the vessel started, without taking a bill of lading or delivering a note" in writing. On returning on board, the coin was missing. Seld, the vessel was not liable. Libel for breach of contract of afEreightment for trans- portation of two hundred and seventy dollars (|270) in gold coin, from Detroit, in the State of Michigan, to Texas, in the province of Ontario, Canada. The facts are that one Daniel B. Odette, in the employ of libeUants, on the 25th day of September, 1868, had in his pos- session, at Detroit, a quantity of gold coin of the value of $270, belonging to libellants, and went on board the steamer with the coin in his possession, for the purpose of taking passage to 280 DISTRICT COURT. The Island Queen. Texas, in Canada, where libellants resided. The steamer not being ready to leave for an hour or more, and Odette being desirous of going on shore in the. meanwhile, and not wishing to carry the coin aboiit with him, asked a person on board whom he took to be the master of the vessel, and who waa then acting as such, for some safe place to leave the coia on board, and was shown a closet or cupboard in the master's room. Odette placed the coin in the cupboard, and left the vessel. On his return about an hour afterwards, the coia had disappeared, and nothing has been seen or heard of it since. Mr. W. A. Moore, for hbellant. Mr. H. B. Brown, for claimant. There was no dehvery. that could bind the vessel or its owners (Angell on Carriers, sec. 129 ; Blanchard v. Isaacs, 3 Barb. 388; Ford v. Mitchdl, 21 Ind. 54; Trowbridge v. Chivpm,, 23 Conn. 595 ; Grosvenor v. iT. T. Gent. B. B. 39 N. T. 34). Sec. 2 of the Limited Liability Act is a conclusive answer to Hbellant's claim {Pender v. Bobbms, 6 Jones, 20T; WU- Uama v. African Steamship Go. 1 H. & N. 300 ; Gihls v. Potter, 10 M, & W. 70). The exception in sec. 7 does not apply to the lakes and connecting rivers {Moore v. Am. Trans. Go. 5 Mich. 368; s. 0. 24 How. 1). Nor to steamboats carrying passengers (1 Abb. U. S. 315). LONGYEAE, J. The Liability Limitation Act of March 3d, 1851 (9 Statutes at Large, 635), settles this case beyond aU question against the libellants. Section 2 of that act provides as follows : " If any shipper or shippers of platina, gold, gold dust, silver, bullion, or other precious metals, coins, jeweby, bills of any bank or pubhc body, diamonds or other precious stones, shall lade the same on board of any ship or vessel with- out, at the time of such lading, giving to the master, agent,, owner or owners of the ship or vessel receiving the same, a EASTERN DISTRICT OF MICHIGAN. 281 The Stranger. note in writing of the true character and value thereof, and have the same entered on the bill of lading therefor, the mas- ter and owner or owners of the said vessel shall not be Hable, as carriers thereof, in any form or manner. Kor shall any- such master or owners be liable for any such valuable goods beyond the value and according to the character thereof, so notified and entered." There is no pretense that this law was in any manner com- plied with. This point being decisive of the case, it is unnec- essary to consider any of the other points raised and discussed on the hearing. ' Zibel dismissed. THE STKANGEE. MARCH, 1871. Tug-boats — Their Liabilities and Duties. Tngs, though not liable as common carriers, are bound to the exercise of or- dinary skiU and diligence in taking up, arranging and managing their tows. It is also the dnty of vessels in tow to use all possible means to avoid injury, and where injury ensues, to do all in their power to make the damages as light as possible. A tug, using ordinary care, is not liable for the sudden and unexplained sheer- ing of the tow to the right or left. The admissions of a party to a suit may be given in evidence as independent testimony, though he has been sworn as a witness, and no impeaching ques- tions asked him. The statute permitting parties to be sworn has not changed the practice in this regard. This was a libel against the tug Stranger, for unskillful towing of the schooner Monteagle through the Sault Ste. Marie canal on the 24:th of June, 1868, in consequence of which she was caused to strike a sunken rock at the entrance of the canal, near its westerly side, breaking a hole through her bottom, and causing her to sink just below the lower lock. ■282 DISTRICT COURT. The Stranger. Schooner claims damages for salvage expenses, repairs, deten- tion, &c., in the sum of $6,14,6 40. The faults alleged against the tug, were : 1. That she entered the canal with her tow at too late an hour. 2. Entered at too great speed. 3. Entered to the right of the centre of the canal instead of the left of the centre, as she should have done, to avoid drawing the schooner upon a sunken rock, the locality of which was well known to the tug, and was unknown to the schooner. 4. Failure to inform the schooner of the existence and location of said sunken rock, or to give any information or ■orders to the schooner as to entering and getting through the .canal safely. 5. Let her steam run down, and so failed to handle the schooner properly, in view of her condition, and thereby caused her to strike again below the lower lock. 6. The master of the tug left her after entering the canal, thereby neglecting his duty. . 7. The master of the tug failed and omitted to inform him- seM of how much water the schooner drew, and how much cargo she carried, as was his duty, and as was the custom, before at- tempting to take her through the canal. The answer admitted the towing as alleged, denied all the allegations in the Mbel of fault on the part of the tug, and ■charged that if the schooner struck a sunken rock at the en- trance of the canal, it was in consequence of her not following the tug, and by her sheering to the westward at the entrance of the canal ; that the injury caus.ed thereby was slight, and was •Tiot the cause of the schooner sinking below the lock ; that the sinking of the schooner at that point was in consequence of her striking a rock there, and was caused by the negligence and mismanagement on the part of the schooner, and without any fault on the fault of the tug. The evidence ft noticed in the •opinion so far as necessary to a decision of the case. Mr. Alfred HueseU, for libellants. EASTERN DISTRICT OF MICHIGAN. 283 The .Stranger. The vessel in tow is considered under control of the tng, land the tug is liable for an injury to the vessel unless it can be shown that it is not in fault (The Quickstep, 9 Wall. 670, '671, and cases cited). This case holds that the tug must see that the tow is properly made up, and that the lines are strong and securely fastened. The principle underlying it is that the tng assumes the responsibility in all things concerning the mode of performance of the contract of towage — that she is the mistress and not the servant — a point upon which previous cases had been in irreconcilable conflict (1 Pars, on Ship. 534, 535, 536). Consequence is, the tug is prima facie liable, and burden is upon her of disproving negligence. She is the pilot, and must keep the tow at a safe distance from the shore and from sunken rocks which are generally known and with the knowl- edge of the existence of which the tug is chargeable {The Angelina Corning, 1 Ben. 109 ; The Galatea, 2 Pars, on Ship. .276, note). The admission of libellants that the tug was not in fault «hould be stricken out. (1) The rule allowing admissions against interest was established when parties were not competent witnesses, and for that reason alone. The party is now merged in the wit- ness; evidence of his admissions becomes impeaching testi- mony, and the usual foundation must first be laid. His answer in chancery is now of no force except as a deposition {Roberts V. Miles, 12 Mich. 297). (2) The fault of the tug is a mixed question of law and fact, concerning which an admission operating by way of jestoppel cannot be made. "^ Messrs. W. A. Moore and H. B. Brown, for claimants. An admission of fault, though a mixed question of law and fact, is competent {The Manchester, 1 W. Kob. 62). Negligence is the omission to do something which a rea- sonable, prudent and honest man would do, or the doing some- 284 DISTRICT COURT. The Stranger. thing which such a man would not do, under all the circum- stances surrounding each particular case (Sher. & Eed. on Neg. sec. 7; Tajylor t. AtlanUc Ins. Co. 9 Bosw. 369; Bhfthe V. Birmvngham Co. 11 Exch. 781). LONGYEAK, J. It may be regarded as now well settled that tugs are not liable as common carriers. They are, how- ever, bound to use ordinary care, skill and diligence in taking up, arranging, and managing their tows {The Syracitse, 12 Wall. 171). The vessel being towed has also certain duties to perform, among which are to f oUow the tug, and in situations of danger, to use aU possible means to avoid injury, and when injury ensues, to do all in its power to make the injury as light as possible. The primary injury complained of, and the one from which all the damages alleged are claimed to have flowed, is that caused by the schooner striking a sunken rock at t^e upper entrance to the canal. If the tug is not in fault for this in- jury, then she is not liable at all. If she is liable for thi& primary injury, then she is also liable for all subsequent in- juries and damages to the schooner necessarily and naturally flowing from or caused by it, and which could not have been avoided by ordinary care and diligence on the part of the schooner. The whole gravamen of the case is contained in the third article of the libel, and is stated in the following words : " Third. That said tug preceded on said voyage, and while in said canal, towed said schooner out of, and away from the proper and ordinary course in the centre and easterly side of said canal, towards the westerly side thereof, and ran said schooner upon a sunken rock upon said westerly side, staving a hole in her bottom, whereof she soon sunk just below the lower lock." And further on, in the fourth artide it is alleged,. " that the master, mate, second mate, and wheelsman were on deck, and kept said schooner directly after said tug, and the damage was occasioned solely by the fault of said tug, and without fault on the part of said schooner ;" thus recognix in EASTERN DISTRICT OF MICHIGAN. 286 The Stranger. the duty of the tow, as above stated, to keep directly after the tug. The first important inquiry therefore is, did the tug " run the schooner upon a sunken rock " as alleged ; and, conceding that the schooner did run upon a sunken rock, did she do so ■while following directly after the tug, and if not, then was it in any manner occasioned by the fault of the tug ? I think these questions are fully answered by a simple statement of a fact clearly appearing by the proofs, and in re- gard to which there is no controversy, viz : That on entering the canal, the schooner took a sheer some distance, how far does not appear, to starboard, and that it was while she was on this sheer that she struck. The tug is not charged in the pleadings or proofs with being in any manner in fault for the sheering of the schooner, and as it is clear that she struck solely in consequence of such sheering, and would have gone clear if she had been kept as she is alleged to have been, directly after the tug, it is equally clear that the tug canbot be held in any manner responsible for the schooner striking as she did. The case of The Angelina Gormng (1 Ben. E. 109), cited by Hbellant's advocate, was not one of the sudden sheering of the tow from bad steering qualities or otherwise, as in this case, and consequent running upon a sunken rock, but was that of the sagging or hanging off of the tow to leeward, occasioned probably by the change of course by the tug. It is very easy to see how a tug, knowing of the existence and location of a simken rock, should be held responsible for running a tow upon such a rock in consequence of a change of course resulting in the sagging or hanging off of the tow in such a way as to bring her upon the rock. In that case the tug would be in fault for not having made due allowance for the sagging of the tow in consequence of the change of course ; which is very different from a case of sheering of the tow solely on her own account, and not on account of any act or manoeuvre of the tug, and which the tug coidd not have anticipated, or guarded against even if anticipated ; because it 286 DISTRICT COURT. The Stranger. would have been impossible to bave known beforehand which way the tow might sheer. In that case it was held that whether the sagging of the tow was chargeable to the pUot of the tug or to the men on the tow, was immaterial, for the' reason that the danger was not known to either. What would hare been the result if the danger had been known to the tug and not to the tow, and the sagging of the tow in consequence of which the injury occurred had been, as in this case, chargeable to the tow, the Court does not intimate. The case of The. QuicksUp (9 Wall. K. 6Y0), holding that the tug is liable for an injury to the tow, unless the tug can show that she was not in fault, applies exclusively to cases of injury resulting from the violation or neglect of some duty coming within the scope of the duties devolving upon that class of employment. In that case the primary cause of the injury was the use of imperfect and insufficient towing lines, and the Court held that it was among the duties of the tug to see that the lines were sufficient, and she was therefore held liable. But it certainly cannot be considered among the duties of a tug to anticipate and guard against the tow taking a sudden sheer. But it is also charged : 1. That the lateness of the hour and the darkness con- tributed to the result. I think the proof clearly shows that entering the canal at the time they did was at the suggestion and solicitation of those in charge of the schooner, and also that it was not at an unusual hour, and that it was still suffi- ciently light for all ordinary purposes in navigating the canal. 2. That the tug entered at too great speed. I think this- is entirely unsupported by the proofs. 3. That the tug entered to the right of the centre of the canal, instead of at or to the left of the centre, in order to* avoid the sunken rock, which rock was weU known to the tug and not known to the schooner. The proof shows that the custom is to enter at the centre, and I think there is a clear- preponderance of evidence that the tug so entered. EASTERN DISTRICT OF MICHIGAN. 28T The StraDger. 4. That the tug failed to inform the schooner of the ex- istence and location of the sunken rock, or to give the schooner- any information or orders in relation to entering and getting through the canal safely. Without stopping to argue the question whether it was or was not the duty of the tug to give- such information, under the circumstances of this case, or in any case of towage through the Sault Canal, a channel perfectly familiar to aU the navigators of the upper lakes, and through' which those in charge of the schooner had frequently passed, it is a sufficient answer to that charge that under the proofs it is evident that such failure to give the information specified, did not in any manner contribute to the catastrophe. Besides, this charge is inconsistent with the theory of the libel, and the proofs in the case. The theory of the libel is, that the accident happened while the schooner was following directly after the tug, and that it so happened in consequence of the tug's draw- ing her against or upon the rock. The proof shows that it did not so happen, but, on the contrary, that if the schooner had so followed the tug, she would have passed in perfect safety. Under this theory and these proofs, it was entirely a matter of indifference whether such information was given or not. 5. The tug let her steam run down • after the schooner struck ; also failed to examine promptly the extent of the in- juiy done to the schooner; so that, from these two causes, she could not and did not handle the schooner properly in view of her condition, in consequence of which she struck again below the lower lock. This is a charge of fault on the part of the tug after the accident at the entrance of the canal, and is independent of the question as to the responsibility of the tug for that accident, and there might be some question as to its admissibility under the libel as framed ; yet, as some evidence was admitted in re- gard to it, and it was insisted on in the argument, I will pro- ceed to consider it. First, that the tug let her steam run down. This is an in- ference merely, drawn by one one of the witnesses, Mosier^ 288 DISTRICT COURT. The Stranger. from the fact sworn to by him, that the master or person in charge of the tug, when the tug was trying to draw the schooner off from the rocks below the lower lock, and had made two efforts to do so and failed, and he was asked " why he did not go ahead on her," replied, or, to use the language of the witness, " I heard him singing out about the tug that they had to get steam up." She certainly had steam up, or she could not have made the two efforts she did make ; and to m^y mind, it is more rational to infer from what the master said that, although he had on his usual amount of steam, he desired to get up more in order to make an extraordinary ef- fort, than it is that he had let his steam run down. Secondly, .that the tug failed promptly to examine the extent of the in- jury occasioned by the accident at the entrance to the canal. There is no proof that those in charge of the tug knew any- thing of that accident until the canal had been passed, or nearly so. And then how can it be claimed that it was the duty of the tug to examine the extent of the supposed injury, when those in charge of the schooner did not deem it of sufficient importance to even sound her pumps ? I think this charge entirely unsupported. 6. The master of the tug left her, and neglected his duty. It was shown that the tug was in charge of a competent pilot, and therefore the charge is untenable. 7. The master of the tug failed and omitted to inquire of the schooner how much water she drew, and how great a cargo she carried. It nowhere appears that the draft of the schooner or the greatness of her cargo had anything to do with the acci- dent, or that the want of a more minute knowledge of those matters on the part of the tug contributed in any manner to the accident. I hold, therefore, upon the whole, that the tug is exonerated from all blame as charged for the accidents to the schooner. Other questions were raised and discussed, which it is unnecessary to consider, after having arrived at the above con- clusion. I have arrived at my conclusions in this case whoUy independent of and without any reference to the proved ad- EASTERN DISTRICT OF MICHIGAN. 289 The Stranger. missions of Kichards, one of the owners, and Byram, also an owner and master of the schooner, exonerating the tug from hlame for the accidents ; and it is therefore unnecessary to de- cide the motion made by the schooner's proctor to strike out that testimony. But as an abstract question, however, it is clear to my mind that evidence of the admissions of parties to the record is just as competent now as it was before parties were admitted to testify as witnesses ; and that, too, notwith- standing the parties whose admissions are sought to be proven have been sworn and have testified as witnesses on the trial, and were Hot asked upon the witness stand whether they had or had not made such admissions. Admissions are allowed to be proven, because they tend to prove some fact or facts per- tinent to the issue, and not for the purpose of impeachment. If, however, statements made by a party, not otherwise admis- sible, are offered to be proven for the latter purpose, then, no doubt, the question should be first asked of the party while on the stand as a witness. As to the other ground of the motion, that the admissions were of conclusions merely, and that such conclusions were of mixed law and fact, I think they would not be inadmissible on that ground alone. But where admissions are of conclusions merely, and not of facts simply, and have not been acted on so as to work an estoppel, they ave entitled to but little weight. Libel dismissed. 19 290 DISTRICT COURT. The M. W. Wright. THE M. W. WEIGHT. MARCH, IS*?!. Seamen's Wages. — Act op 1790 Construed. The provisions of section 6 of the Merchant Seamen's Act of 1790, with respect to the recovery of wages, apply only to the classes of vessels enumerated in the first section of the Act. The proceedings by summons to the master, provided for in section 6, are cumu- lative and optional, and the party may resort to an attachment in the first instance. On exception to answer, and motion to expunge. The libel was for seaman's wages. The answer, by its first, second, and third aUegationa, ig- nored the hiring of libellants, the rate of wages, and the ren- dering of the services as alleged in the libel, but on informa- tion and belief, disputed the validity of libellant's claim, and in general terms denied the jurisdiction of the Court. The fourth allegation of the answer was in the following words : " Fourth : These respondents allege, upon informa- tion and belief, that the said steamer, during the season of 1870, was employed in running from the port of Bay City, Michi- gan, to the port of Pine River, Michigan, making the round trip from said Bay City to said Pine Eiver and return once in each twenty-four hours, and that during said season she made no trip or voyage except between said ports as aforesaid ; that since on or about the 4th day of August last, said steamer has been tied up and remained idle at the port of Bay City afore- said, until about ITovember 1st, 1870, and during that time made no trip or voyage whatever, and that none of the prelim- inary steps or proceedings provided for and required by the sixth section of the Act of Congress, passed the 20th day of July, A. D. 1790, entitled ' An Act for the Government and EASTERN DISTfilCT OF MICHIGAN. 291 • The M. W. Wright. Kegulation of Seamen in the Merchant Service," has ever been taken, or complied with by the said libellants, or any person on their behalf ; and these respondents therefore submit that the said libellants ought not to have or maintain their said libel, and they pray that they may be allowed to have the same benefit of this objection and defense as if the same had been especially pleaded to the jurisdiction of this Court in this proceeding." The exception and motion to expunge related solely to this fourth allegation, and were based upon the alleged reason that the allegations of said article " set forth no defense to said libel or any part thereof." Mr. H. B. Brovm, for libeUant. Mr. Hoyt Post, for claimant. LONG YEAR, J. The questions discussed upon the argu- ment of the exception and motion, and which are for decision, are: 1. Does this case fall within the purview of section 6 of the Act of 1790 ? (1 Statutes at Large, 131). 2. If the case is within the purview of said section, then do the provisions of the section relating to commencement of suits by seamen for recovery of wages, supersede the law in force at the time the act was passed ? or are those provisions merely cumulative and optional ? Section six is in the following words : " That every seaman or mariner shaU be entitled to demand and receive from the master or commander of the ship or ves- sel to which they belong," [he belongs] " one-third part of the wages which shall be due him at every port where such ship or vessel shall unlade and deliver her cargo before the voyage be ended, unless the contrary be expressly stipulated ia the contract ; and as soon as the voyage is ended, and the cargo or ballast be fully discharged at the last port of deliveiy, every seaman or mariner shall be entitled to the wages which shall 292 DISTRICT COURT. The M. W. Wright. be then due according to his contract, and if such wages shall not be paid within ten days after such discharge, .or if any dis- pute shall arise between the master and seamen or mariners^ touching the said wages, it shaU be lawful for the judge of the district " (or a commissioner appointed by the Circuit Court,, as amended by the Act of August 23d, 1842, 5 Stat. 516),. " where the said ship or vessel shall be, or in case his residence be more than three miles from the place, or of his absence from the place of his residence, then for any judge or justice of the peace, to summon the master of such ship or vessel to appear before him to show cause why process should not issue against such ship or vessel, her tackle, furniture, and apparel, according to the course of Admiralty Courts, to answer for the said wages ; and if the master shall neglect to appear, or ap- pearing, shall not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute shall not be forthwith settled, in such case the judge" (commissioner), "or justice, shall certify to the clerk of the Court of the district, that there is sufficient cause of complaint whereon to found admiralty process, and thereupon the clerk of such Court shall issue process against the said ship or vessel, and the suit shall be proceeded on in the said court, and final judgment be given according to the course of Admiralty Courts in such cases used; and in such suit aU the seamen or mariners (having cause or complaint of the like kind against the same ship or vessel), shall be joined as complainants ; and it shall be incum- bent on the master or commander to produce the contract and log-book, if required, to ascertain any matters in dispute ; otherwise, the complainants shall be permitted to state the con- tents thereof, and the proof of the contrary shaU lie on the master or commander ; but nothing herein contained shall pre- vent any seaman or mariner from having or maintaining any action at common law for the recovery of his wages, or from immediate process out of any Court having admiralty jurisdic- tion, wherever any ship or vessel may be found, in case she shall have left the port of delivery where her voyage ended, before payment of the wages, or in case she shall be about to EASTERN DISTRICT OP MICHIGAN. 293 The M. W. Wright. proceed to sea before tlie end of tlie ten days next after the delivery of her cargo or ballast." I have quoted this section in full for the reason that there are expressions interspersed all through it plainly indicating to my mind the true interpretation to be given of it. The act is entitled " An Act for the Government arid Reg- ulation of Seamen in the Merchant Service." Section one provides that " every master or commander of any ship or ves- .sel bound from a port in the United States to any foreign port, or of any ship or vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other than an adjoining State, shall, before he proceed on such voyage, make an agreement in writing, or in print, with every seaman or mariner on board such ship or vessel," etc. Then, after pro- viding what shall be the prices or wages to be paid by any master or commander to every seaman or mariner he shall carry out "without such contract or agreement being first made and signed," and for a forfeiture by such master or com- mander of twenty dollars for each seaman or mariner so carried out, section one closes as follows : " And such seaman or mar- iner, not having signed such contract, shall not be bound by the regulations, nor subject to the penalties and forfeitures, contained in this Act." Now, it is apparent, that if section six is intended to provide for the same class of cases as is specified in section one, then the case under consideration does not fall within the purvie\y of section six, because the vessel was not a vessel " bound from a port in the United States to any for- eign port," nor " from a port in one State to a port in any -other than an adjoining State." Mr. Sedgwick, in his treatise on Statutory and Constitu- tional Law (p. 237) says, " It is an ancient and well settled rule, that where any cause of doubt arises, although apparently the doubt attaches only to a particular clause, the whole ^statute is to be taken together, and to be examined, to arrive at the legislative intent." Applying this rule to the Act in question, we find that by section one a certain contract or agreement is required to be entered into between the master 294 DISTRICT COURT. The M. W. Wright. or commander and the seamen, and the class of vessels and kind of voyages defined to which that requirement shall apply. By a subsequent part of the same Act (section six above quoted), we find certain rights conferred upon seamen and mariners as to demanding and receiving wages during the voyage, and certain regulations prescribed for the collection of what may be due them on the termination of the voyage, by the express reference to " the voyage," and " the contract." If section six stood by itself — if it was all there was of the Act — ^the language used, " the voyage," and " the contract," would at once suggest the idea of something lacking, and an incompleteness of expression and meaning. What " voyage ?" what " contract ?" We might infer, and should be under the necessity of inferring, however great a grammatical inac- curacy, it would involve, that it meant any voyage in which such ship or vessel was or had been engaged, and any contract relating to such voyage. But when we find section six em- bodied in an Act in other parts of which a certain class of voyages are defined, and a certain contract is prescribed and required to be entered into, the meaning of the language used in section six at once becomes plain, full, and consistent, and we are not only under no necessity of resorting to inference, but are not allowed to do so imder the well settled rule of con- struction above laid down. Sections one and six are but parts and parcels of one general system adopted by Congress for the government and regulation of seamen in the merchant service (as expressed in the entitling of the Act) in the class of cases therein specified. It is foreign to the plain object and intent of the Act, and it is unnecessary, unnatural, and far fetched to attempt to put upon section six any other construction. Section six, standing alone, is also incomplete and incon- sistent in another respect, but which incompleteness and in- consistency not only entirely disappear, but the provisions of that section become harmonious and perfect when interpreted in the light of the last clause of section one. Thus, the idea of the existence of a written or printed contract is so impressed upon section six by the language used throughout, that the EASTERN DISTRICT OF MICHIGAN. 295 The M. W. Wright. rights of seamen prescribed by, and the procedure provided for the enforcement of such rights, can hardly be conceived of xmder said section, in a case in which there is no such written or printed contract. It is impossible to read the section without that impression being produced upon the mind. It is spoken of as " the contract," and " his contract," as containing express stvpulations, as determining the amount due, as something to be produced, and of which the contents may be stated ; and it is so spoken of in the same manner and evidently in the same sense as it is in every other part of the Act, and in such parts, too, as without doubt relate to the written or printed contract prescribed in section one. There- fore, standing alone as a law to apply to all cases of collection of seamen's wages, the section is incomplete and inconsistent. Now let us interpret section six as a part of a system of which section one also constitutes a part. The last clause of section one provides as follows : "And such seaman or mariner, not having signed such contract, shall not be bound by the regulations, nor subject to the penalties and forfeitures contained in this Act." We can now see clearly why section six should, and is consequently made to cover only such cases as arise upon written or printed contracts, and why it makes no provision for any other class of eases. It is because, and only because, by the provisions of the clause of section one above quoted, seamen not signing such contract are not subject to any of the provisions of the Act of which section six is a part. Interpreting section six then as a part of one system, of which section one is also a part, it again becomes complete, harmonious and consistent (See also Cooley's Const. Limita- tions, 55, 57). I have been referred by counsel to no adjudicated cases involving the point under consideration, and it is believed there are none reported. Judges Betts, Oonkling, and Bene- dict have alluded to it, however, in their several treatises on Admiralty Practice. Judge Betts (Betts Adm. 67), adopts the construction that the provisions of section six refer exclusively to the class of cases specified in section one. Judge Conkling 296 DISTRICT COURT. The M. W. Wrisht. (2 Oonkling's U. S. Adm. 68), expresses a doubt, and on account of such doubt, and for reasons based upon certain provisions of the Act of February 26, 184:5, extending the jurisdiction of the District Courts to certain cases arising on the lakes, says he had applied the provisions of the sixth section indiscrimin- ately to all vessels embraced by the Act of 1845; that. is to vessels of twenty tons burden and upwards. He does not dis- t3uss the question at all independently of the provisions of the Act of 1845, and it is quite apparent that his doubt as to the true interpretation of section six, and his disagreement from Judge Betts in his practice under it, arose more on account of the dilEculties he thought he perceived in the application of Judge Betts' interpretation of section six to certain cases arising under the Act of 1845, than to anything found in section six independently of the Act of 1845. Saying nothing of the propriety or soundness of resorting to an Act of Con- gress passed fifty-five years after a former Act in order to arrive at the legislative intent of such former Act, I have simply to observe that it now being conceded that the Act of 1845 is obsolete, and that there is no distinction between the jurisdiction of the admiralty on the lakes and on tide water, it is to be presumed that that learned judge would now adopt the same reasonable interpretation of section six as that adopted by Judge Betts, and would conform his practice to such interpretation. Mr. Benedict (Benedict's Adm. 507), goes a little further than Judge Conkling. He says, speaking of the practice in cases for collection of seamen's wages, as founded on the Act of 1790, " This is believed to embrace all vessels not in the national naval service. The first three sections of the Act relate to vessels and voyages of a particular character, but other sections of the Act embrace ' any ship or vessel,' 'any seaman or mariner,' and the careful use of different phraseology for different purposes in the different sections, shows that the language, in every case, was intended to have its appropriate force." But then in this immediate connection the learned Judge adds : " The law as administered under this EASTERN DISTRICT OF MICHIGAN:. 297 The M. "W. Wright. Act in the Southern District of 'New York, will be found very fully laid down ia Betts' Practice, pages 59 to 68." Although the learned Judge comments somewhat further upon the practice as adopted by Judge Betts, he nowhere alludes to "the difference of views between them, as to the class of cases to which section six applies. This circumstance, as well as others which become apparent to any one examining the matter closely, such as the fact that the reference made is not to section six specially, but generally to " other sections of the Act" (other than the first three sections), while the question arises upon section six alone ; also, that the; language quoted by him as the words of the Act upon which he bases his opinion, are inaccurate as applied to section six, and the more important fact that he fails entirely to consider the language quoted, or any like language used in section six, ia connection with and in the light of the context, all tend strongly to show that this learned Judge and author did not bring to bear upon the question that close scrutiny and intelligent discrimination which usually characterize his writings and opinions. The subject-matter of section six is introduced as follows : " That every seaman or mariner " (general terms, it is true) " shall be entitled to demand and receive from the master or commander of the ship or vessel to which they " [he] " belongs, one-third part of the wages which shall be due to him at every port where such ship or vessel shall unlade and deliver her cargo be- fore the voyage " (qualification No. 1 — what voyage ? See section oiie) "be ended, unless the contrary he expressh/ stipulated' in the contract." (Qualification No. 2 — what contract? See section one.) And so throughout the whole section qualifica- tions occur which can be satisfactory explained and understood only by reference to Section one, and by the application of those old and well-settled canons of interpretation and con- struction of statutes to which I have already alluded. XTpon the whole, therefore, I am of the opinion, as to the first question stated, that the provisions of the sixth se'etion of the Act of 1790, for the government and regulation of seamen in the merchant service (1 Statutes at Large, 131), are 298 DISTRICT COURT. The M. W. Wright. to be considered as referring exclusively to those voyages pre- paratory to whicli the master or commander is required, by the first section of the Act, to make an agreement in writing with the seamen. From this it follows that the voyage or voyages in which the wages claimed by the libeHants in this case are alleged to have been earned, not being voyages from a port in the United States to some foreign port, or from a port in one State to a port in any other than an adjoining State, as specified in section one of the Act, but, on the con- trary, to and from ports in the same State, the case does not. fall within the purview of section six ; and hence that the ex- ception to article four of the answer is well taken. I am also of opinion, under the second question stated, that the proceedings prescribed by section six are merely cimiulative and optional ; and, consequently, even if the case were within the purview of section six, the exception would be well taken. But as the exception is disposed of upon the first question, I shaU not enter into any extended discussion of the second. It is an old and well-settled rule of construction, that " where a right or remedy exists at common law, and a statute is passed giving a new remedy, without any negative, express or implied, upon the old common law, the party has his elec- tion either to sue at common law, or to proceed upon the statute " (Sedgwick on Statutory and Constitutional Law, 93, 125, 401, 402, and the numerous cases cited). This rule is applicable to the remedies under the maritime law as well as the common law. When the Act of 1790 was passed, it was lawful for sea- men to commence suit in rem in the admiralty by hbel, and arrest the vessel in the first instance. The Act of 1T90 sim- ply makes it lawful, in certain specified cases, to proceed by summons in the first instance, as preliminary to the libel and arrest. There is no provision expressly negativing the old law, and the language used in conferring the right to such new proceeding is certainly very far from implying such negative. The rule of construction above quoted, therefore. EASTERN DISTRICT OF MICHIGAN. 299' The M. W. "Wright. applies with its full force. This same rule of construction has been applied in numerous cases to another branch of the Act of 1790, viz., that relating to desertion of seamen ; and it may be now regarded as well settled that the maritime law of desertion is not superseded by the statute, notwithstanding the latter defines and prescribes punishment for desertion in some respects different from the offense and its punishment as defined by the former ; and hence it is optional with the party injured to proceed under the maritime law, or under the statute. I can see no good reason why the same rule should not apply to the provisions of section six, so far as it prescribes. a mode of procedure for collection of seamen's wages. I hold, therefore, that the preliminary proceedings by summons, &c., prescribed by section six of the Act of 1790,. are cimaulative, and in addition to the ordinary proceedings by libel, according to the admiralty practice, and may be resorted to or not at the option of the libellant. See Judge Sprague'& opinion in the case of the ship William Jarvis (1 Sprague's Decisions, 485), in which this question is fully and ably dis- cussed, and the above views and conclusions are fully main- tained. The exceptions are allowed. Motion granted. 300 DISTRICT COURT. The H. P. Baldwin. THE H. P. BALDWIN. APRIL, nil. ■Collision. — Vbsbbls Close-hauled on Opposite Tacks. — Lookout. "Where a bark, close-hanled upon the starboard tack, was approaching a schooner close-hauled upon her port tack, at an angle of about six points, Seld, that the bark had the right to keep steadily on her course, so long as there was any room for doubt as to the intentions of the schooner. "The fact that the entire crew of the bark, including the lookout, were engaged, shortly before the collision, in tacking the ship, though a fault, was held not to haye contributed to the collision, as they had resumed their duties a suffi- cient time before it took place. The fact that the schooner was disabled, and partially unmanageable, did not impose upon the bark the duty of avoiding her, unless the disability was manifest to those upon the bark. The fact that the lookout of the schooner was engaged, with the remainder of the watch, just previous to the collision, in hauling down the flying jib, which had become disabled, was a fault directly contributing to the disaster. Lebbl and cross-libel for collision between tbe schooner Marquette and tbe bark H. P. Baldwin. The collision occurred between two and three o'clock in the morning of the 10th day of July, 18Y0, in the Straits of Mackiaaw, south of the center of the channel, and ofE from and a little west of " Old Fort Mackinaw," so called. Both vessels were bound up through the straits — the schooner on a voyage from Oswego to Chicago, and the bark on a voyage from Bay City to Chicago. The wind was west sotithwest, although some- what variable, and the night was clear, with occasional scud- ding clouds. When the two vessels first made each other, they were both close-hauled and running by the wind, but upon opposite tacks — the schooner on the starboard tack, and the bark on the port tack. On nearing each other, the bark, as was her duty, kept ofE a point or so and passed the schooner under her stem. Each vessel, having subsequently come about, EASTERN DISTRICT OF MICHIGAN. 301 The H. P. Baldwin. found herself again crossing the other's track, close-hauled and running by the wind as before, but on the opposite tacks, the bark now being on the starboard tack and the schooner on the port tack. It was while on these courses the collision occurred, the bark striking the schooner on her starboard side, just abaft ■the main rigging, and sinking her in about five minutes. Just before the collision, the flying jib pendant of the schooner was. carried away by a squall, and the flying jib had in consequence been hauled down. This gave the schooner a tendency to somewhat eat up into the wind, and made it more difficult to keep her away, but did not materially lessen her headway,, which was still about three miles an hour. Each vessel kept her course without anything being done by either to avoid a collision, until a collision was imminent (and in vievf of the manoeuvres then made by each was, in fact, inevitable), when the wheel of the bark was ordered hard up (astarboard), and that of the schooner was ordered hard alee (also astarboard). This order on the part of the schooner brought her up into the wind and stopped her headway, or nearly so, and it was while she was in this positidh that the bark came into her, as before stated. The faults charged in the libel against the bark were : 1. That she had not a proper lookout properly placed, and attentive to his duty. 2. That she had no competent officer on deck on watch at- tending to the safe navigation of the vessel. 3. That the proper measures were not taken and orders given in due and sufficient time to avoid the schooner as she lay helpless and disabled. 4. That she came too near the schooner before any efforts were made to avoid her as she lay helpless and disabled. The faults charged in the libel against the schooner are : 1. That she had no proper and competent lookout. 2. That she did not keep out of the way of the bark. 3. That she was not properly equipped and manned, and her officers and crew were not at their proper posts and atten- tive to their duty. 302 DISTRICT COURT. The H. P. Baldwin. Mr. TF. A. Moore, for the Marquette. Messrs. E.. B. Brown and O. V. N. Zotkrop, for the Baldwin. LONGTEAK, J. The evidence showed that each vessel, after she had come about the last time before the collision, laid her course by the wind, and was sailing close-hauled, the Bchooner on the port tack and the bark on the starboard tack, up to just before the collision, and that the schooner would sail within about six points and the bark within about five and a haK points of the wind. The wind being west southwest, the course of the schooner must have been about northwest, and that of the .bark about south half west. The two vessels were, therefore, crossing so as to involve risk of collision, and Article 12 of the Collision Act of April 29th, 1864 (13 Stat. 60), applies. By Article 12 it was the duty of the schooner to keep out of the way of the bark, and not hav- ing done so, the onus is upon her to show some fault on the part of the bark which caused, or at least contributed to, the collision, in order to a recovery against the bark {The Western Met/r&polis, 6 Blatch. 210, 214 ; The Black Prvnoe, 5 Legal Intelligencer, No. 8, p. 39). I wiU therefore proceed first to examine the allegations of fault on the part of the bark : 1. That the bark had not a proper lookout properly placed and attentive to his duty. 2. That she had no competent officer on deck or watch at- tending to the safe navigation of the vessel. These two allegations will 'be considered together. I do not think these allegations are sustained by the proofs. It is true that, on coming about, the entire watch, including the lookout and the officers of the deck, were engaged in that ma- nceuvre. While this was in and of itself a fault, it is not such a fault as will make the bark responsible, unless it was the cause of or in some manner contributed to the collision. I think there is a clear preponderance of evidence that the entire watch had resumed their respective duties, and were properly EASTERN DISTRICT OF MICHIGAN. 303 The H. P. Baldwin. attending to them a sufficient length of time before the collis- ion, to take away all probahility that their previous digression iiom. their proper duties contributed in any manner to the accident. The remaining allegations of fault on the part of the bark will also be considered together. They are as follows : 3. That the proper measures were not taken and orders given in due and sufficient time to avoid the schooner as she lay helpless and disabled. 4r. That she came too near the schooner before any efforts were made to avoid her as she lay helpless and disabled. These allegations of fault on the part of the bark necessarily assume : 1. That the schooner had become so disabled and helpless as to prevent her keeping out of the way of the bark, as was her duty. 2. That such disability occurred a sufficient length of time before the collision for the bark to have taken measures to avoid the schooner. 3. That the disability and helplessness of the schooner were known to those in charge of the navigation of the bark, or that the disability was of such a character that, by the exercise of ordinary care and watchfulness on board the bark, it could have been readily seen and its effect understood by them in season for the necessary measures to be taken on board the bark to avoid a collision. The fact that measures might have been taken, orders given, or efforts made, on the part of the bark, which would have pre- vented the catastrophe, is not enough. Circumstances must be shown that would make it the duty of those in charge of the navigation of the bark to take the measures, give the orders, or make the efforts ( Williamson v. Barre% 13 How. 109). It wiU be readily seen that, under this rule, aU the conditions as- sumed must have existed, in order to make out the allegations of fault last above recited. First, then, as to the character and effect of the disability : In consequence of the flying jib pendant being carried away by 304 DISTRICT COURT. The H. P. Baldwin. a squall, it became necessary to haul down the flying jib, and it was done accordingly, and this was the full extent of the disa- bility. The effect of it upon the navigation of the vessel was to make her less manageable, not to make her unmanageable. It gave her a tendency to eat up into the wind, and she would not keep away as quickly as she would with the flying jib up r it checked her headway, but did not stop it entirely, or even very nearly. In fact, the wheelsman had not noticed that it. had any effect upon the steering of the vessel. It was then but a partial disability at most — such an one as, while it did not render the schooner helpless, made it necessary for her to have more time to get out of the way of another vessel than she would have needed but for the accident. Secondly, as to the length of time between the accident and the collision : The evidence shows tnat the flying jib was hauled down immediately after the pendant was carried away, but how long the downhaul occupied does not clearly appear, but, from all the circumstances, it could have been only a very few minutes ; one of the witnesses who assisted thinks it was five minutes, I think it could not have exceeded that, at most. The evidence does, however, clearly show that the completion of the down- haul, the order of the master of the schooner, " ready about " and "hard alee," the coming up of the schooner into the wind and the collision followed each other in quick and rapid succes- sion — so quick and rapid as to leave but little room for doubt that the collision was inevitable at the completion of the down- haul. There may have been sufiicient time after the flying jib pendant was carried away, if that accident had been detected by those in charge on board the bark the moment it occurred, for such measures to be taken on board the bark as would have avoided a collision. "We will therefore pass to the consideration of the third condition named, viz., the knowledge of the disability of the schooner, or responsibility for want of knowledge of it, on board the bark, in season to adopt the necessary measures to- avoid a collision : That those in charge of the navigation of the bark did not,. EASTERN DISTRICT OF MICHIGAN. 305 The H. P. Baldwin. in fact, know of .the accident to the schooner's flying jib, the evidence is clear and uncontradicted. Was the accident, then, of such a character that, by the exercise of ordinary care and attention on board the bark, it could have been readily seen, and its effect understood by them ? It must be borne in mind that it was in the night, and although it was light enough so that outlines of a vessel could be seen at a considerable distance, yet it was not so light that it could be readUy distinguished how a vessel carried her sails ; and although perhaps unusual, yet it is not 80 unprecedented for a schooner of the size of the Mar- quette to be under way without her flying jib up, as to warrant the Court in holding, as matter of law, that an approaching vessel must take notice of a want of it, and that such want of it is evidence of such disability as to excuse the vessel from obeying the ordinary rules of navigation. But so it must be held, in order to hold the bark responsible for not taking no- tice of the accident to the schooner. But it is claimed that, laying aside the accident to the schooner, the bark had no right unnecessarily to run her down, even though the schooner may have been in fault in the first instance for not keeping out of the bark's way. This is no doubt correct. The evidence shows that the schooner's green light was made from the bark when from one and a half to two miles distant, and that the mate, on being interrogated by the master on two or three occasions whether the schooner was do- ing anything to keep out of the way, replied that he could not see as she was. Upon this it is claimed it became the duty of the master of the bark himself to take measures to keep out of the way of the schooner. But when did this duty begin ? It will not do to say that it began when it became probable that the schooner did not intend to get out of the way, because by Article 18 it was the duty of the bark to keep her course, and and it would not do for her to change it so long as there was any room for doubt as to the intentions of the schooner. So long as there was sufficient space left for the schooner to keep away and pass the bark on the port side, as it was fair to pre- sume she would do, it was not safe for the bark herself to keep 30 306 DISTRICT COURT. The H. P. Baldwin. away and attempt to pass under the stem of the schooner. And 80 long as the schooner kept her course, as she seemed disposed to do, it was not safe for the bark to come up into the wind, . because by so doing she would necessarily throw herself across the bows of the schooner, and at the same time become unman- ageable, thus placing herself in peril, a thing which the law never requires of one vessel in order to avoid danger to another. We see, then, that up to the very point where the space between the two vessels ceased to be suflScient for the schooner to keep away, and thus avoid the bark, all was in doubt and gross uncertainty to those in charge of the bark, as to what the schooner would do. Certainly, up to this point it cannot be said that any duty had devolved upon the bark to take meas- ures to avoid a collision. And who shall say just when that point was passed ? This Court cannot, and will not assume to say. The master of the bark stood there with aU the circum- stances before him, and no doubt used his best judgment, and acted accordingly. And although it is now quite apparent that if he had given the order he did give a little sooner, a collision would have been avoided, yet in view of the doubts with which the matter was surrounded at the time, I cannot say it was his duty so to have given the order, and that the bark is Uable be- cause the order was not so given. It is contended also that the order which was given on board the bark was the wrong order ; that it should have been " hard down," and the bark thereby brought up into 1;he wind, alongside the schooner, and a collision avoided. I think it is quite clear from the evidence that the order "hard up" was given on board the bark before the order " hard a-lee," which brought the schooner into the wind, was given. Hence, when the order was given by those in charge of the bark, it was stiU all in uncertainty with them what order would be given on the schooner, or whether any would be given at all. It is quite apparent now, that if no order whatever had been given on board the schooner, a col-, lision would probably have been avoided, or if not, the blow would have been a glancing one, and probably light ; and that if the opposite order had been given on the schooner to the EASTERN DISTRICT OF MICHIGAN. 307 The H. P. Baldwin. one which was given, and her stern thereby thrown away from the bark, a collision would, quite probably, have been entirely avoided. I think that the order given on board the bark, under the circumstances in which it was given, was the right order, and even if it was not, the circumstances of doubt under which it was given — circumstances for the existence of which the bark was not responsible — were such as to make it no fault. As we have already seen, the schooner was under headway Tip to the time she was thrown head to the wind, and that this occurred but a moment before the collision, and after the order ■" hard up " had been given on board the bark. Hence, up to that moment, the schooner must be considered as a vessel in motion, whose duty it was to keep out of the way of the bark, and the case comes clearly within the principle of those decis- ions cited by the bark's advocate, holding that where a vessel commits an error under impending danger, or in extremis pro- duced or brought about by another vessel, such error cannot be alleged as a fault by such other vessel. (See Bentley v. Coyne, 4 Wan. 509, 512 ; The Nichols, Y Wall. 656, 666 ; The FaA/r- lanks, 9 Wall. 420, 424 ; The City of Paris, Ibid. 634, 638 ; The Scranton, 5 Blatch. 400 ; The Western Metropolis, G Blatch. 210, 214.) I hold, therefore, that none of the allegations of fault against the bark are sustained. The remaining questions for consideration are those arising upon the Hbel of the owners of the bark against the schooner for damages sustained by the bark by the same collision. The allegations of fault on the part of the schooner, are : 1. That the schooner had no proper and competent lookout. 2. That the schooner did. not keep out of the way of the bark. 3. That the schooner was not properly equipped and manned, and that her officers and crew were not at their proper posts attentive to their duty. As to the first allegation, the only evidence there is upon the subject tends to prove that the schooner had on board a proper and competent lookout. Whether he was at his proper 308 DISTRICT COURT. The H. P. Baldwin. post and attentive to his duty or not is another question, and will be considered under the second clause of the third allega- tion of fault. The first allegation, therefore, is not sustained. As to the second allegation, there is no dispute as to the fact that the schooner did not keep out of the way of the bark, but it is sought to be excused on account of the accident to the flying jib pendant of the schooner, in consequence of which, it is claimed, she could not get out of the way. This excuse will now be considered in connection with the third and last allegation. As has already been seen in considering another branch of the case, the accident to the flying jib pendant of the schooner caused only a partial disability, and I think the evi- dence clearly shows that, notwithstanding the accident, the schooner could have kept away and avoided the bark if she had seen the bark in time to have effected the necessary ma- noeuvres for that purpose, and that the only reason she did not do so was, the close proximity of the bark when she was first seen from the schooner. I think it quite clear from the proofs that the schooner had not time, even if she had been in fuU trim, to make the necessary manoeuvres to avoid the bark after she first saw her. The closeness of the proximity, and the shortness of the time, are best determined by what occurred on board the schooner between the time the bark was first seen and the collision. Immediately upon seeing the bark the mas- ter of the schooner gave his order "ready about," and then, as soon as that order could be executed, which, of course, was almost instantly, came the order " hard a-lee," repeated three times in a loud voice, and then almost immediately came the collision. The extreme shortness of time between the last order and the collision is shown by the men who had turned in and were awakened by hearing the order. They had barely time to spring out of their berths and run upon deck when the collision came — in fact, one of them tells us that he was helped out of his berth by the force of the blow. The proof is satisfactory to my mind that the bark was in sight, and with ordinary care and attention on board the schooner might and would have been seen much sooner than. EASTERN DISTRICT OF MICHIGAN. 309 The H. P. Baldwin. she was, and in ample time for the schooner, slightly disabled as she was, to have kept out of the bark's way. Why, then, was she not seen sooner than she was ? I think this question is fully answered by two facts in the case. Captain Allen, master of the schooner, who was in charge of her navigation at the time, tells us that after the bark had passed him on her port tack, he " did not pay any attention to her, as I thought she was clear of us for the night." The other fact is that the entire watch on board the schooner, except the wheelsman, in- cluding the lookout, were engaged, just at the critical moment, in hauling down the flying jib. It was during this time, and while the lookout was thus' away from his post and attending to other duties, that the bark was allowed to approach to such fatal nearness to the schooner, and I think that to this fact the collision is justly attributed. The Supreme Court, in the case of The Schooner Catharme {17 How. 1.T7), makes use of the following language : " As to the Catharine, we are not satisfied that she had a proper look- out on the vessel at the time of the collision. The excuse given is, that all hands, a short time previously, had been called to reef the sails, and some evidence is given to prove that this is customary in vessels of this description. However this may be in the day time, we think that such a custom or usage can- not be permitted as an excuse for dispensing with a proper lookout while navigating in the night, especially on waters fre- quented by other vessels ; " and in this case it may be added, especially with the knowledge of the fact that the bark was somewhere in the vicinity, and might, at any time, come about, and be again crossing the schooner's course. I think, therefore, that the lookout leaving his post to aid in the flying jib downhaul was a fault, which directly contrib- uted to, if it was not the sole cause of the collision. What the schooner might or might not have been able to do to keep out of the way, if her lookout had been at his proper post, and the bark had been seen when still at a safe distance, is mere mat- ter of conjecture, and something with which we have no con- cern. The fault consists in the lookout not being at his post, 310 DISTRICT COURT. The Spaulding. and tlie bark not being seen. I suggest, howeyer, that if the' lookout had been at his post, and the bark had been seen in time, as she might, and no doubt would have been, for the schooner to hare made an effort to keep out of the way of the bark, and she had found such effort unavailing, or, knowing that she could not keep out of the way, have notified the bark by some signal of her disabled condition, as she in such case would have had time to do, she then would have done her- whole duty, and would have been excused. As it is, her excuse for not keeping out of the way is un- availing, and she must be held to respond for the damages done to the bark. A decree must be entered dismissing the libel of AUen and Burt against the bark H. P. Baldwin, with costs, and in favor of the KbeUant Hudson, against the schooner Marquette, for the damages sustained by the bark H. P. Baldwin, and for costs, and referring it to a commissioner to ascertain and com- pute such damages. Decree for cross-Uhellant. THE SPAULDING. JUNE, 1871. Marshaling of Procbbds. — Salvage Ranks General Average. In a distril3ation of proceeds, ealyage services, rendered in getting a vessel off a reef, are entitled^ to priority of payment as against a claim for general average arising from the jettison of a portion of her cargo. The fact that one of the salvors had the promise of a third party to pay him if he could not collect from the vessel, does not oust him of his priority. Motion for distribution of proceeds. The schooner was 6(AA, pendente lite, on the original libel. EASTERN DISTRICT OF MICHIGAN. 311 The Spaulding. of Ballentine and Mc Alpine, and the proceeds brought into Court, and now remain in the registry. Five intervening libels were filed against the vessel. The one first filed was by the Security Insurance Company of New York, and the Buffalo Insurance Co. of Buffalo, for general average on account of the jettison of a quantity of com. The other four intervening libels were filed subsequently and simultaneously, as follows : By "Wolverton for salvage services in getting the schooner off from a reef where she lay sunken and in a damaged condition, and bringing her to Detroit. By Campbell and Owen, for repairs to keep her afloat. By Desotell and Hutton, for use of wharf for same pur- pose. By Keith and Company, in part, for storage of a portion of the schooner's furniture and rigging. The proceeds were not sufficient to pay all the claims, and the contest was as to priority as between, the intervening libellants first named, and the other four. It appeared that in order to get the schooner off the reef, it was necessary to pump the water out of her hold, and that the loss of the corn upon which the claim for general average was based, was caused by the same being pumped out with the water. It was contended : 1st. That as the jettison of the com was a necessary con- sequence of the measures adopted for saving the vessel, the claim of libellants on account thereof is really a salvage claim, and hence of equal rank with the other four ; and 2d. That the libel for the same having been first filed, it should be first paid. 3d. At all events being of equal rank, it should be paid pro rata with the others. Mr. H. B. Brown, for the insurance companies. The vessel being ashore upon the reef, any expense incurred in getting her off must be contributed for ia general average. 312 DISTRICT COUKT. The Spaulding. and is essentially a salvage claim. We claim for the jettison of the com whicli lighted , the vessel and enabled Wolverton with his steam pump, to get her off. These are both salvage claims and are of equal rank. But we are entitled to priority of payment because our Hbel was first filed (The Gldbe^ 15 Law Eep. 421 ; The Triumph,Ib. ; The Adele, 1 Ben. 309). Claims for salvage takes precedence of all others except seamen's wages {The Elizabeth da Jane, 1 Ware, 43 ; The Pa/rago7i, lb. 331 ; The St. Jago de Cuba, 9 Wheat. 409). As against Campbell & Owen's libel, we are also entitled to priority from the fact that Dorr promised to pay for the repairs himself in case they could not be realized out of the vessel. They were made partly, at least, upon his credit, and we are entitled to the benefit of that in distribution (16 Law Eep. 13). Mr. W. A. Moore, for the intervening libeUants. LONGYEAR, J. It was conceded on the argument, and such is undoubtedly the law, that the lien for salvage takes precedence of the lien for general average. The libel of the insurance companies in this case is in terms for general average, and I can see nothing in the circumstances of the case to warrant the Court in holding it to be anything else, even if the Hbel had been otherwise. Without the salvage services the whole was a loss. With the salvage services the loss is reduced to a part bnly. In the former case there would have been nothing left upon which a lien for general average could attach. In the latter case it has something upon which it may attach, solely because of the salvage services ; and it would be not only contrary to the general rule of law above stated, but unjust and inequitable to place such lien as to the part thus saved, upon the same footing, as to precedence, as the lien for the salvage services. It was also claimed as to one of the libels, that of Campbell and Owen, that the libeUants had the promise of one Dorr, that he would pay them for the repairs done by them if they EASTERN DISTRICT OF MICHIGAN. 313 The Milwaukee. could not realize the same out of the vessel, and that tlieir claim being thus otherwise secured, the Court will not enforce their lien upon the vessel to the detriment of other lien holders. Dorr's promise was conditional, and it is not operative until Campbell and Owen have first exhausted their remedy against the vessel, which by their libel they are now seeking to do. The rule contended for therefore, although a correct one, does not apply to this case. I hold, therefore, that the respective claims of the several libellants, Wolverton, Campbell and Owen, and Desotell and Hutton, in whole, and the claim of Keith and Co., in part (as to which adjudication has been heretofore made), together with the costs of each, must be first paid before the claims of the Security and BufEalo Insurance Companies, and that those claims must be paid fro rata, share and share alike, in case there is not sufficient to pay the whole. In view of the dis- position which has been made of the first proposition on be- half of the insurance companies, consideration of their other two propositions has become unnecessary. Ordered accordingly . THE MILWAUKEE. JUNE, 18T1. Collision. — Steamers Meeting end on. — Rule of Supervising Inspeotoks. — Speed. It is not enough that Bteamers nayigating a narrow channel are in charge of oflSoers whose general coropetency is unquestioned ; they should have a pilot on hoard acquainted with the particular channel, and the want of such pilot is prima facie a fault, 7be absence of a lookout is not material, if the officer of the deck is in fall 314 DISTRICT COURT. The Milwaukee. posseasion of all the information a lookout could give him in time to avoid a collision. Rule ] of the superrising inspectors (1865) cannot be construed to authorize one steamer to dictate to another a departure from the rule prescribed by Article 13. The rule, howeyer, may be sustained as an authority for an ascending vessel to propose to a descending vessel to depart from the require- ments of the article, and for the descending vessel to accept such proposition, and to make such a departure, when thus mutually agreed upon, binding and valid. It is incumbent upon the vessel claiming the protection of the rule and a de- parture from the statutory requirement to show : (1) That a proposition to depart from the statute was made by her by means of the signals prescribed by Rule 1, and in due season for the other ves- sel to receive the proposition and act upon it with safety. (2) That the other vessel heard and understood the proposition thus made. (3) That the other vessel accepted the proposition. There is no general obligation upon vessels navigating rivers to keep to the right of the centre of the channel, and no such custom proven to exist upon St. Clair flats. The testimony of the officers and crew of each vessel, as to the number of whistles blown upon their own vessel, is to be believed in preference to that of an equal number of witnesses upon the other vessel. Ri-ik of collision begins the moment the two vessels have approached so near that a collision might be brought about by any departure from the rules of navigation, and continues up to the moment when they have so far progressed that no such result could ensue. Under such circumstances, vessels should adopt such a rate of speed as to be at all times under ready and complete control until the risk is passed. A steamer descending a channel 850 feet wide at 14-J^ miles an hour, and another ascending at 8^ miles, both condemned for too great speed under the circum- stances. Whether the relative duty of the steamships to slacken speed under Article 16 (when they are approaching each other so as to involve risk of collision), attaches the same moment the duty to port attaches under Article 13 (when they are meeting end on, or nearly end on, so as to involve risk of collision), considered and discussed. The collision occurred at about 6 o'clock in the evening, on the 23d day of JSTovember, 1866, in the St. Clair river, just above the flats, and in what is known as the Southeast Reach of the South Pass of that river. The Lac la Belle was a steam propeller, and of large size, being about 1,200 tons burden, and was engaged in the Lake Superior trade ; and at the time of the collision was bound EASTERN DISTRICT OF MICHIGAN. 315 The Milwaukee. down on a voyage from Lake Superior ports to Cleveland, in the State of Ohio. The Milwantee was a side-wheel steamhoat, of great strength and power, and was engaged in carrying freight and passengers across Lake Michigan, between the ports of Grand Haven, in the State of Michigan, and Milwaukee, in the State of "Wisconsin. She had been to Detroit for repairs, and at the time of the collision was bound up on her return tO' Milwaukee. The Milwaukee hit the Lac la Belle on her port side, just abaft the fore-chains, at an angle of about 45 degrees from the stern, cutting her very nearly in two, and sinking her in about two minutes. . The weather was fine, and it was a good night to see. This South Pass of the St. Clair river, above mentioned, is; a crooked channel, although between the two bends consti- tuting the " Keach " spoken of, and in which the collision oc- curred, the channel is nearly straight. The width of the channel, for some distance above and below the place of col- lision, varies from 450 feet above to 1,000 feet below, and within those limits there is always an ample depth of water for the largest vessels navigating the lakes. At the place of collision the navigable channel is about 850 feet wide, and the collision occurred within not to exceed 75 feet of the extreme northerly or American bank. The course of the river, from a considerable distance above the place of collision, is at first south southwest, and when it reaches a point a little over half a mile above the place of col- lision, it makes a sudden bend to the westward, which latter course it keeps until, at a point about half a mile below the place of collision, when it makes a sudden bend to about north- west. These two bends are from a mile to a mile and a quar- ter apart, and between them, the channel is nearly straight, with a slight indentation or curve, however, in the north bank to the northward, at just about the point where the collision occurred. Approaching vessels in the day time, and their- lights in a good night to see, are in plain sight of each other 316 DISTRICT COUET. The Milwaukee. across the low and marshy lands and shoal water within these bends, and for a considerable distance both above and below the bends. The proofs showed that both vessels were keeping nearer the American channel bank (which was the port hand bank to the Milwaukee and the starboard hand bank to the Lac la Belle), than to the Canadian bank ; that the Milwaukee turned the lower bend a little before the Lac la BeUe turned the upper bend, but so nearly at the same time as to be practically simultaneous ; that the lights of each vessel were first made from the other before either had turned the respective bends in the river, and, of course, the lights of the Lac la BeUe then made from the Milwaukee were the green or starboard light and the white light, and the lights of the Milwaukee then made from the Lac la Belle were the red or port light and the white light ; that when each so made the other's lights, they must have been about two miles apart, and when each turned the respective bends in the river, which, as we have seen, was nearly simultaneous, they were from a mile to a mile and a quarter apart, and were approaching each other at nearly or quite full speed — that of the Lac la BeUe being about 14J miles an hour, with the current (which at this point is 2i miles an hour) added, and that of the Milwaukee being about 8^ miles an hour, with the current deducted, making the aggregate speed with which the two were approaching each other by the land about 23 miles an hour, or one mile in 2 minutes and 36 seconds ; that these rates of speed were fully maintained by each until collision was inevitable, when the Milwaukee's engine was stopped and reversed, but not in time to produce any perceptible effect upon her speed before the collision occurred. How the two vessels approached each other, what signals were given by each, and some other facts involved in the case, are stated in the opinion of the Court. The faults specifically charged in the libel against the Mil- waukee were : 1. That she had no sufficient and competent officers and EASTERN DISTHICT OV MICHIGAN. 31 T The Milwaukee. crew acquainted with the channel and navigation of the St.. Clair river, and at their appropriate and proper placps. 2. That they did not answer the signals of Lac la Belle and keep to the right hand side of the river, as hoth the law and good seamanship require ; but, on the contrary, turned to the left, and attempted to pass to the left and to the west- ward of the said Lac la Belle, contrary to law and good sea- manship. 3. Other faults, etc., unknown to libellants, hut known to- the officers and crew of the Milwaukee, which, when discovered,, it was prayed might be inserted in the libel. The faults specifically charged in the cross-libel against the Lac la Belle were, in the words of the libel : 1. " That said propeller was coming at full speed and show- ing her green and white lights^ and as if to pass on the star- board hand side of the said steamboat. That while so running^, and when the said propeller had approached quite close, sud- denly she appeared to be swinging to starboard, as if under an order to port, and appeared to be attempting to pass across the bow, and on the port hand side of said steamboat, but on at- tempting to do so, she was made to run against and collide with the said steamboat Milwaukee." 2. " That although the master of the said steamboat had given his proper signals indicating which side he would pass,, and had received an answer to said signal, and when the said propeller had commenced swinging to starboard, as aforesaid,, and across the bows of the steamboat, the said master imme- diately stopped and backed his said steamboat, but so short, was the distance between the said propeller and said steam- boat, and so great was the speed of said propeller, that the said propeller came on and collided with the said steamboat. as aforesaid." The libellants against the Milwaukee laid their damages at the sum of $167,000, and the libellants against the Lac la BeUe. at the sum of $6,000. 318 DISTRICT COURT. The Milwaukee. Messrs. John 8. Newberry, George B. HMard, and Willey c6 Gary, for the Lac la Belle. Messrs. Alfred Russell and G. 7. N. Zothrop, for the Milwaukee. LOISTGYEAE, J. The first charge of fault against the Milwaukee is, substantially, not that her officers and crew were generally incompetent, but that they were unacquainted with the channel and navigation of the particular waters in which the collision occurred, and that they were not at their proper places. As an independent or abstract proposition, I think it is clearly proven that the officers and crew of the Milwaukee had but very little experimental knowledge of that channel. And I think the proofs upon this point are such as to justify the court in holding that their knowledge in this respect was in- adequate to the navigation of the difficult passes of the St. Olair river, especially in the night, and that such want of knowledge was sufficient, prima facie, to constitute a fault. Here was a large steamboat of great strength and power, to be navigated in the night time through a channel full of tortuous and narrow passages, difficult of navigation even in the day time, and requiring the highest degree of experimental as well as theoretical knowledge of those passages for safe navigation through them. "Wien we add to this the fact that these diffi- cult passages lie right in, and in fact constitute a part of the great highway of the entire commerce of the great North- western Lakes, and are consequently literally fiUed with vessels passing and repassing, both night and day, Captain Trowel's attempt to take his vessel through, without an experienced pilot, however competent he may be to navigate the open waters, certainly seems, like the very height- of presumption, and was an act deserving a stem rebuke, if nothing more. But the question, after all, is, was this want of knowledge on the part of the officers and crew of the Milwaukee the cause of, or did it contribute to the collision ? The theory advanced EASTERN DISTRICT OF MICHIGAN. 319 The Milwaukee. •on the part of the libellants against the Milwaiikee is, that when the lights of the Lac la Belle were first made from the Milwaukee, Captain Trowel's want of knowledge of the bends in the river between the two vessels, the lights made being the green and white, led him to the conclusion that the Lac la Belle was crossing the Milwaukee's course, instead of meeting her, and that she would naturally pass to his starboard; and it was assumed that it was this misapprehension that resulted in the collision. The assumed fact upon which this theory is based is, that Captain Trowel did not know of the existence of the bends in the channel. If this fact were sustained by the proofs, or if it were left without direct proofs, to be inferred from Captain Trowel's general want of acquaintance with the channel, the theory might have some plausibility. But, unfor- tunately for the theory advanced, what proof there is as to that fact is decidedly the other way. In the first place, Captain Trowel swears substantially that he was aware of those bends, and in the next place he must of course have been made aware of the existence of them when the two vessels had turned them, which was in time, with correct management, to have ' avoided a collision ; and finally, the signal given on board the Milwaukee, whether it was a single or a double blast of the whistle, was a signal given only when meeting, showing clearly that Captain Trowel understood at that time that they were meeting and not crossing. I think, therefore, that the theory advanced is rebutted by the facts proven. I shaU have occa- sion, however, to allude to this subject again in connection with another branch of the case. The only charge made under the 6ther division of the first charge of fault is that the Milwaukee had no lookout. It clearly appears, however, that the captain who was in charge of the navigation of the Milwaukee saw the Lac la Belle's lights and was in f uU possession of all the information that a lookout could have given him, in ample time to have avoided a collis- ion. It is, therefore, immaterial to inquire into the fact whether there was a lookout or not. The second charge of fault against the Milwaukee is, sub- 320 DISTRICT COURT. The Milwaukee. stantially, that she did not keep to the right, but turned to the left, and that this was contrary to law and good seamanship. The specific regulations, statutory and otherwise, involved in this charge of fault, are Articles 13, 14 and 18 of the Act of April 29th, 1864 (13 Statutes, 60, 61), which were then in force, and Rule 1 of the rules adopted by the board of supervising inspectors, October 17th, 1865, also then in force, which arti- cles and rule are as follows : . " Article 13. If two ships under steam are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other. " Art. 14. If two ships 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. " Art. 18. Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course," etc. "Ilulel. When steamers are approaching each other, the signal for passing shall be one sound of the steam whistle to keep to the right, and two sounds of the steam whistle to keep to the left. These signals to be made first by the ascending steamer. If the dangers of navigation, darkness of the night, narrowness of the channel, or any other cause, render it neces- sary for the descending boat to take the other side, she can do so by making the necessary signals, and the ascending boat must govern herself accordingly. These signals to be observed by all steamers, either day or night." The mancBuvring of the vessels which resulted in the col- lision commenced when each turned the respective bends in the river. This manoeuvring on the part of the Milwaukee,, was a starboarding, and running in toward the American chan- nel bank, and on the part of the Lac la Belle, a porting, and running in towards the same bank ; so that, as has been before stated, the collision occurred within 75 feet of that bank, and that, too, in a channel which at that point was at least 850 feet wide, and at that time unobstructed. It seems incredible that vessels commanded by competent . EASTERN DISTRICT OF MICHIGAN. 321 The Milwaukee. and intelligent officers should haye thus collided in such a channel, and upon such a night. Surely, a grave responsibility rests somewhere, and I think we shall find it resulted in large part from a misapprehension, or at least a misapplication of the articles and rules above quoted. It is contended on behalf of the Milwaukee that she gave the signals, viz : two sounds of her steam whistle, prescribed by Eule 1, for passing to the left, and that she was therefore right in passing to the left as she did. It is also contended, that the Lac la Belle responded by two sounds of her steam whistle, and that, therefore, for a still stronger reason, the Milwaukee was entitled to do as she did. On behalf of the Lac la Belle it is contended that Eule 1 is m conflict with the articles of the statute above quoted, as ap- plied to the facts of this case, and, therefore, affords no protecs- tion to the Milwaukee for starboarding and attempting to pass to the left as she did. The fact that the Lac la BeUe responded as alleged is also disputed and the contrary is contended. So far as the rule was in conflict with the Act, it was un- doubtedly of no effect ; and it was so in conflict so far as it might be construed to authorize one vessel, whether ascending or descending, to dictate to the other a departure from any rule prescribed by the Act. The rule may, however, be sus- tained (and I think this is the only effect that can be given to it), as an authority for an ascending vessel to propose to a de- scending vessel to depart from the requirements of the Act, and for the descending vessel to accept such proposition, and to make such a departure when thus mutually agreed upon binding and valid. In such case, and no other, the rule was a protection to a steam vessel departing from a statutory require- ment. In this view of the subject the burden is upon the vessel claiming the protection of the rule and against any departure from the statutory requirement, to prove aU the following facts : 1. That a proposition to depart from the statute was made by her by means of the signals prescribed by Kule 1^ and in due 31 322 DISTRICT COURT. The Milwaukee. season for the other vessel to receive the proposition and act. upon it with safety. 2. That the other vessel heard and understood the proposi- tion thus made. 3. That the other vessel accepted the proposition. And these facts musb be made out by clear and satisfactory proofs. They must not be left to inference. The statute in question is one of vital importance for the protection of life and property upon the waters, and it wiU not do to hold a party blameless for a departure from its plain provisions, upon a plea of an agreement or license to do so, except where such agreement or license is admitted, or is made out beyond all reasonable doubt by clear and satisfactory proof. Where the agreement is denied, and the evidence is conflicting and con- tradictory, and does not clearly preponderate in favor of such agreement, the statute must govern, and the responsibility of parties must be determined accordingly. In this case it is all the same whether the vessels were ap- proaching each other end on, or nearly end on, and so within Article 13, or crossing, and so within Article 14 ; for, in either case, the Milwaukee departed from the statutory requirements, to justify which she must prove an agreement authorizing her to do so. If they were meeting end on, or nearly end on, it was the statutoiy duty of both, under Article 13, to port, which the Milwaukee did not do, but, on the contrary, starboarded. If they were crossing, they were doing so on such courses that the Lac la Belle had the Milwaukee on her (the Lac la Belle's) starboard side, and under Article 14 it was the statutory duty of the Lac la Belle to keep out of the way of the Milwaukee (which she had the right to do by taking either side of the latter), and under Article 18 it was the statutory duty fof the Milwaukee to keep her course, which she did not do, but starboarded. I find, however, from the proofs that, as matter of fact, the two vessels were meeting end on, or nearly end on, within the meaning of Article 13. That they were so meeting, and in EASTERN DISTRICT OE MICHIGAN. 323 The Milwaukee. such a manner as to involve risk of collision, is evident from the following considerations : 1. From the nearness of their respective courses to the American channel bank. Each vessel was keeping the American channel bank com- paratively close aboard, and was running by it instead of by the compass. When the Milwaukee turned the lower bend, she was, by the estimates of those on watch on her at the time, about 200 feet from the shore, and circimistances seem to warrant that the estimate is very nearly correct. When the Lac la Belle turned the upper bend, she was, in the opinion of those on watch on board of her at the time, not beyond the center of the channel, but in fact between that and the Amer- ican channel bank, and the circumstances seem to warrant that this estimate is also very nearly correct. As we have seen, the channel at this point was not to exceed 450 feet wide. At all events, it was not to exceed 500 feet so that, allowing the widest latitude, the Lac la Belle was not to exceed 250 feet from the American channel bank at this point. Between these two points (and as we have before seen, the two vessels were at these points at practically the same moment of time), the general courses of the two would be on straight lines, which lines, from the above data, could not be more than 50 feet apart, and might be, and probably were, less than that. The two vessels were then from a mile to a mile and a quarter dis- tant from each other. By actual measurement it wiU be found that at this stage they could have varied but a very small frac- tion, not to exceed one-tenth of a point from dead ahead of each other. Even if we place the Lac la Belle within 100 feet of the extreme opposite bank, they would not vary more than one-third of a point from dead ahead. This is certainly as nearly end on as vessels usually approach each other. At all events, it is far within the definition which has been given by the Courts of what is " end on or nearly end on," within the meaning of Article 13. It can make no difference, in this connection, that the lights of the Lac la Belle, first seen from the Milwaukee, were the 324 DISTRICT COURT. The Milwaukee. green and wMte lights only. This would necessarily be the case until the Lac la Belle had turned the upper tend. In de- termining how vessels are approaching each other in narrow, tortuous channels like the one here in question, their general course in the channel must alone be considered, and not the course they may be on by the compass at any particular time while pursuing the windings and turnings of the channel. It is too late, however, to claim that Trowel was misled, by any such appearance of the lights of the Lac la Belle, into the supposition that she was crossing the course of the Milwaukee, because the signal he gave and the manoeuvres he made are both inconsistent with such supposition. If the Lac la Belle had been crossing the course of the Milwaukee, and Capt. Trowel had so understood, then any signal to turn to the right or to the left would have been uncalled for and unnecessary, and, of course, would not have been given ; he would have simply kept his course as required by Article 18. It is proper, perhaps, to remark here that I do not sub- scribe to the doctrine advanced on behalf of the libeUants against the Milwaukee, that vessels navigating rivers must, in all cases, when meeting, keep to the right of the center of the navigable channel. I know of no such law in this country, and there is no such custom in the navigation of the channel in question. Yessels navigating rivers in this country, like vehicles in a highway, may use any part of the channel they may see fit, observing, however, in all cases when meeting or passing other vessels, the ordinary rules of navigation. 2. That the two vessels were so meeting — end on, or nearly end on — so as to involve risk of collision, is clear from the evident understanding on the part of each at the time, else why the signals and the manoeuvres by each ? If there was no risk of collision, there was certainly no necessity and no excuse for any signal by either to go to the right or to the left, nor for the Milwaukee's starboarding as she did, or the Lac la Belle's porting as she did. The fact that each gave a signal intended to be given only in case of risk of collision, and that each changed her course with intent to avoid a col- EASTERN DISTRICT OF MICHIGAN. 335 The Milwaukee. lision, makes it clear that in the judgment of each there was. such risk. Articles 13, 14, and 18, and Kule 1, have no opera^ tion except in case of risk of collision. But independently of this, the idea that there was no risk of a collision is fully exploded by the fact that there was a collision. I find, therefore, as matter of fact, that the two Tessels were meeting end on, or nearly end on, so as to involve risk of collision, and hence that the case falls primarily under Arti- cle 13, which requires each to put her helm to port so as to pass on the port side of the other. The proofs show that the Lac La Belle did so put her helm to port, while the Milwau- kee put hers to starboard, and that the collision was brought about solely by these joint manoeuvres. I have also found, as matter of law, as before stated, that the Milwaukee having thus departed from the statutory rule, she is prima facie in fault, and that the burden is upon her to show that an agreement was entered into imder Eule 1 for such departure, and that to this end it was necessary for her to prove : 1. That she gave the proper signal, viz., two blasts of her steam whistle, proposing such departure, and in due season ; 2. That such signal was heard and understood ; and 3. That the proposition was accepted by the Lac la Belle. As to the first proposition, there is a conflict between the testimony of the officers and crew of the Lac la Belle and those of the Milwaukee, as to what signal was heard by the former, and what was actually given by the latter. The testi- mony of those on board the Milwaukee is all agreed that the signal actually given by her was two blasts, and from their better means of knowledge as to what was done on board their own vessel, under a weU-known and recognized rule for weigh- ing conflicting testimony in cases of this sort, it must be held as proven that two blasts of the whistle were given by the Milwaukee, and that they were given so as to indicate the de- sire and proposition on her part to depart from the statutory requirement of Article 13, and to pass to the left, as provided in Eule 1, instead of to the right, as provided by said article. 326 DISTRICT COURT. The Milwaukee. In the view I shall take of the two remaining propositions, which I shall now proceed to consider, it is unnecessary to dis- cuss the question whether the signal so made by the Milwau- kee was made in due. season. In point of fact, the signal was given at about the time the two vessels turned the respective bends in the river, and, consequently, when they were a mile to a mile and a quarter, or, in point of time, two minutes and a half apart. This would, no doubt, be in season under ordi- nary circumstances, but in consideration of the speed of the Milwaukee — 11 miles through the water, and eight and a half by the land — which, under the circumstances that it was in the night time and in a narrow and crooked channel, of which the officers and crew in charge had comparatively no practical knowledge, was, to say the least, extraordinary, and also in consideration of the further fact that the approaching steam- er's lights had been in sight for some time previous, and that it must have been evident to those in charge of the navi- gation of the Milwaukee that the other vessel was so approach- ing, also at a high rate of speed, it might be contended with much plausibility that the Milwaukee's signal ought to have been given sooner than it was. But without deciding that point, I pass to the consideration of the two remaining propo- sitions, viz. : Whether the Milwaukee's signal was heard and understood by the Lac la Belle, and whether the proposition thus made was accepted by her. In this connection it must be borne in mind that the bur- den was upon the Milwaukee to maintain both these proposi- tions. In departing from the statutory regulations, she assumed the entire risk of her signal being heard and understood by the approaching vessel, and of herself hearing and understand- ing the reply. {The St. John, T Blatch. 220 ; The Atlas, 4 Ben. 27 ; The Washington, 3 Blatchf. 276.) Here again the testimony of the ofhcers and crews of the respective vessels, as to what was actually done upon the one and heard and understood upon the other, is in direct conflict the one with the other. We might stop right here, and say EASTERN DISTRICT OF MICIHGAN, 327 The Milwaukee. that the witnesses standing in the main on an equal footing as to credibility, and disagreeing as to the main facts, the propo- isitions are not proved; that under the rule heretofore laid down, the proof taken as a whole is not of that clear and satis- factory character necessary to make out a justification for the Milwaukee's departure from the statutory requirement. But this is unneeessai-y. Applying the same rule as was applied above to the testi- mony of the officers and crew of the Milwaukee as to what •signal was actually given on board of her, to the testimony of the officers and crew of the Lac la Belle, as to what signal was heard on board the latter, and what signal was given by her, the evidence is overwhelmingly preponderating that the , signal of the Milwaukee was actually heard and understood on the Lac la Belle as one blast of the steam whistle, instead of two, and that the signals given by the Lac la Belle were signals of one blast only, although repeated, thus clearly show- ing that the signal of the Milwaukee was not correctly heard and understood by the Lac la Belle, and that the proposition of the former to depart from the statutory rule was not ac- -■eepted by the latter. It was contended, on behalf of the Milwaukee, that, her whistle being a very loud one, if she gave two sounds, two must have been heard on the Lac la Belle. This is an infer- ence merely ; of course it is not conclusive as against positive, ■ unimpeached testimony as to what was in fact heard, although it might, and no doubt would, be controlling in the absence of , such testimony. The proof shows that the signal of the Lac la Belle was repeated, and it was contended on behalf of the Milwaukee that the two sounds of the steam whistle thus given were given so nearly together in point of time as, in fact, to constitute but - one signal of two sounds within the meaning of Eule 1 ; or, at least, that the one followed the other so closely as to justify the Milwaukee in assuming, as she did, that they constituted but - one signal, and as such indicated an acceptance by the Lac la , Belle of the Milwaukee's proposition to go to the left. 328 DISTRICT COURT. The Milwaukee. By the proofs there can be no 'doubt that the two sounds given by the Lac la Belle were intended for separate signals, each as a signal to adhere to the statutory rule, to keep to the right. Yet, if they were given in such a manner as, in fact, to constitute but one signal of two sounds, the Lac la BeUe must be held to respond accordingly, regardless of her intentions. It is not sufficient that they were so near together as to create a doubt merely as to which was meant, because in that ease the Milwaukee had different duties to perform under other rules (2d and 10th Hules of October 17th, 1865), which duties there is no pretense of her having performed. The two sounds meant by liule 1, as a signal, are well un- derstood by all steam navigators, and in fact by all persons at all accustomed to hearing that signal given, to be two sounds in quick succession, constituting a sort of double sound or blast. The witnesses on the part of the Lac la Belle, the mate who gave the sounds, and a large number of the officers and crew who heard them, are fully agreed that the sounds were not of that double character. Estimates of time I place but little re- liance upon. But we are not left to rely upon such estimates- alone. Many of the witnesses teU us what they were doing, where they went, etc., between the two sounds, showing clearly that a considerable time must have elapsed, and amply sufficient to deprive the two sounds of the character claimed, and to show that the second sound was really such as was intended by the mate of the Lac la Belle then on watch, viz. : a repetition of the former signal of one sound to go to the right. This con- clusion is strengthened by the testimony of Durling, the pro- fessional pilot of the St. Clair Flats, who was listening to the sounds for a purpose connected with his professional employ- ment, and who had no part or interest whatever in the affairs or navigation of either vessel. I find therefore that the Milwaukee has failed to justify her departure from the statutory rule to port, and that there- fore in this respect she was in fault. I think the Milwaukee was also in fault in respect to her EASTERN DISTRICT OF MICHIGAN. 329' The Milwaukee. speed. Article ,16 of the Act of April 29th, 1864 (Stat. voL 13, p. 61), provides as follows : " Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if neces- sary, stop and reverse," etc. This rule is but a re-enactment of what was the law before,, and the law so re-enacted is but the embodiment of the dictates of common prudence. Under it a steam vessel is not permitted to approach anqther vessel, whether propelled by steam or other- wise, whether meeting or overtaking, so near that a collision is inevitable, or even dangerous, before taking the prescribed precaution. HisJc of collision is sufficient to bring such steamer under the rule, and there is always risk of collision in case of vessels meeting or passing in a crooked and compara- tively narrow channel like the one here under consideration.. This the Milwaukee did not do, although she saw the Lac la Belle long before they came together. But, on the contrary,, she was kept at quite or nearly her full speed up to but a mo^ ment before the collision, when her .engine was stopped and reversed, but too late, and of course to no purpose. This ex- cessive speed on the part of the Milwaukee was aU the more reckless and inexcusable, and makes the fault all the graver and more reprehensible, for the reason that, as we have seen, her officers and crew were unacquainted with the channel, and for the further reason that such speed was entirely unneces- sary. She was going against the current, and nothing like her rate of speed was necessary for steerage way. ' It is, of course, impossible to lay down any precise rule a& to just what rate of speed steam vessels shall adopt under such circumstances ; but it is perfectly safe to say that they should adopt such a rate of speed as to be at all times under ready and complete control until the risk is fully passed, and this is cer- tainly not the 11 -knot speed of the Milwaukee, if we take it through the water, or her S^knot speed, if we take it by the land. But I shall notice this subject of speed further when considering the charge of excessive speed made against the Lac la Belle, which I shall now proceed to do. 830 DISTRICT COURT. Tho Milwaukee. The faults charged against the Lac la Belle, briefly stated, are substantially : 1. A sudden and unexpected change of course to starboard. This charge is fully disposed of in favor of the Lac la Belle in what has already been said. 2. Excessive speed. The speed of the Lac la BeUe, as we have seen, was about twelve miles an hour through the water, and about fourteen -and a half miles by the land. That of the Milwaukee was a,bout eleven miles through the water and about eight and a JhiaM by the land. The Lac la Belle was moving with the cur- rent, and therefore not so readily controlled nor so easily stop- ped as the Milwaukee, which was moving against the current. She was aware of the approach of the Milwaukee in ample time to have adopted the precautions dictated by Article 16 above ■quoted, as well as by common prudence, by checking her speed so as to be under ready control. The same risk of collision, and the obligations thereby imposed, were upon her as were upon the Milwaukee. Ajid yet we find her dashing down the current at nearly or quite her greatest rate of speed — a rate of -speed, too, which is nearly, if not quite, equal to that of the fastest steamers navigating the great lakes, and keeping up that rate of speed with all the risk and danger fair before her, with- out check or diminution, up to the very moment of collision. If we may recognize degrees of fault in such cases, the fault of the Lac la Belle in this respect, notwithstanding the greater familiarity of her oflBcers and crew with the channel, was even greater than that of the Milwaukee. It was claimed that the obligation to cheek did not attach to the Lac la Belle, because but for the mistake of the Milwau- kee in starboarding when she ought to have ported, there was no danger of collision — ^that the Lac la Belle had a right to as- sume that the Milwaukee would obey the law, and if she had done so there would have been no collision, notwithstanding the excessive speed complained of. This doctrine, carried to its ultimate results, would avoid all rules having for their ob- ject the enforcement of precautionary measures for prevention EASTERN DISTRICT OF MICHIGAN. 331 The Milwaukee. of collisions, and would recognize the right of a vessel, herself technically obeying the rules, unnecessarily to run another ■down, which, accidentally or otherwise, might come in her way in consequence of some non-observance of those rules, neither of which results would for a moment be recognized as law by the learned advocates who advanced the doctrine stated. Conceding, however, all that is claimed, the Lac la Belle was still in fault for not slackening her speed. The moment the Milwaukee starboarded and showed her green light to the Lac la Belle, there was danger of collision. This occurred, as we have seen, when they were a mile or a mile and a quarter apart. It then, if not before, certainly became the duty of the Lac la Belle to slacken speed. I think, however, it is open to discussion under Article 16 whether the obligation of a steamship approaching another vessel to slacken speed does not attach the moment risk of col- lision is involved, and whether, under that article, it is allow- able for such ship to wait to see if there is absolutely danger of collision before doing so. Danger of collision is, of course, included in risk of collision, but it is not all there is of it. There is never danger of collision other than by inevitable or inscrutable accident, where all fully and completely obey the law. Danger of collision begins only when one vessel or the other begins to depart from the rules established by law. Risk of collision begins the very moment when the two vessels have approached so near each other and upon such courses, that by & departure from the rules of navigation, whether from want of good seamanship, accident, mistake, misapprehension of sig- nals, or otherwise, a collision might be brought about. It is true, that, prirna facie, each has a right to assume that the other will obey the law. But this does not justify either in shutting his eyes to what the other may actually do, or in omitting to do what he can to avoid an accident, made immi- nent by the acts of the other. I say the right above spoken of is prima facie merely, because it is well known that depart- ures from the law not only may, but do, take place, and often. Risk of collision may be said to begin the moment the two vessels have approached so near that a collision might be 332 DISTRICT COURT. The Milwaukee. brought about by any sucb departure, and continues up to the moment when they have so far progressed that no such result could ensue {The Nichols, 7 Wall. 663). The language of Article 13, prescribing the condition in this regard, in which the helm of each shall be put to port, and that of Article 16, prescribing the conditions, under which they shall slacken speed, is precisely the game " so as to involve risk of collision." From this it would seem to follow that the ob- ligation to slacken speed attaches the moment the obligation to port attaches, and that the former obligation continues while the latter continues — or, in other words, that the obligation to slacken speed under Article 16 always co-exists with the obliga- tion to port under Article 13. The doctrine here asserted is forcibly illustrated by the case now under consideration. ISTo one will contend for a moment that Capt. Trowel, of the Mil- waukee, intended to disobey the law, but, on the contrary, I think, all must concede that he intended to obey it. He evi- dently misconceived his legal rights, and probably misappre- hended the signals of the Lac la Belle, which misconception and misapprehension, and his consequent starboarding instead of porting, as we have seen, was the primary cause of the col- lision. The Milwaukee is held in fault in this respect, not be- cause Capt. Trowel's departure from the law was willful or ia- tentional, but simply because it was unauthorized. Such misconception of law and misapprehension of fact are occurring upon the waters daily and nightly, and it is to them that the great bulk of collisions is to be attributed, and the risk of coUisiohs from these causes constitute by far the larger portion of the risks of navigation growing out of collisions ; and, I think it may be assumed that when risk of coUision is spoken of in the law, it includes this risk as one of its princi- pal elements. But as we have already seen, it is not necessary to go to that extent in this case. It cannot be successfully claimed on either side that the failure to slacken speed did not contribute to the coUision. The aggregate of the speed of the two was about twenty-two miles an hour, or one mile in a little over two minutes and a half. If the speed of each had been slackened to even one- EASTERN DISTRICT OF MICHIGAN. 333 The Milwaukee. half what it was (and I think it ought to have been slackened more than that), each would have been afforded an opportunity to fully comprehend the mistake which had been made, and to provide against it. It is fair to presume that if this had been done we should not now be considering one of the most, if not the most calamitous and deplorable collisions ever recorded as happening upon the Great Lakes and their connecting waters. I find, therefore, that the collision was caused primarily by the unauthorized departure of the Milwaukee from the statu- tory rule prescribed by Article 13 of the Act of 1864, requir- ing each vessel, in the situation in which the two then were, to 3)ut her helm to port so as to pass on the port side of the other, and that a contributing cause of the collision, and without vrhich it is fair to presume it would not have occurred, not- withstanding such primary cause, was the gross and inexcusa- ble failure on the part of each vessel, and more especially the Lac la Belle, to slacken speed as required by Article 16. It re- sults, therefore, both vessels being in fault, that there must be a division of damages. The importance of this case not only to the parties imme- . diately interested in respect to the amount involved in dollars and cents, but also to the interests of commerce and naviga^ tion in respect to the principles involved, has led me into a close and careful scrutiny and consideration of the facts in the case, and of the able and exhaustive arguments and briefs of the learned advocates on both sides, from which I have derived much aid in my investigations — such a scrutiny and consideration as those interests, both private and public, seemed to demand. I have been led also into a somewhat extended elucidation of my conclusions, thereby the more thoroughly to test their correctness, and also in order that if either party, or both, feehng aggrieved by my conclusions, shall desire a re- view, the appellate Court may have before it my reasons in full, and be thus enabled the more readily to judge of their sound- ness or unsoundness. Decree for a division of damages. Note. — For a full diacusaion of the question of speed, see The Free Slate, ante, p. 261. 334: DISTRICT COURT. The General Cass. THE GENERAL CASS. JUNE, ISTl. Jurisdiction. — Navigable Waters. — Character of Vessel. — Lighters. — Lien for Towage in Home Port. Saginaw river, though wholly within the State of Michigan, is a public navi- gable stream, and within the admiralty jurisdiction. If the business or employment of a vessel appertain to travel, or trade and com- merce on the water, it is subject to the admiralty jurisdiction, whatever may be its size, form, capacity, or means of propulsion. Such jurisdiction extends to lighters employed in carrying lumber out to ves- sels lying in deep water. The fact that these lighters are not enrolled or licensed does not affect the ques- tion of jurisdiction. A lien attaches for towage services rendered in the home port. Libel for towage, by George P. Felclier, owner of the tugs Challenge and Kate Felcher. The third article of the answer of William Mitchell, claim- ant and owner of the scow, alleged, " That the said scow is a mere float or lighter, has no means of propelling, neither sails, anchors nor chains ; has never been enrolled or Hcensed, and is employed solely in the navigation of the Saginaw river to float lumber thereon over the bar and shallows, in tow of tugs and steamers ; " and the jurisdiction of the Court was there- fore denied. LibeUants excepted to the said third article and moved ta expunge the same. Hearing upon the exception and motion. Mr. H. B. Brown, for libellant. Mr. Wm. A. Moore, for respondent. EASTERN DISTRICT OF MICHIGAN. 335- The General Cass. LONGTEAE, J. The question of jurisdiction raised by tlie third article of the answer, is : 1. As to the -waters upon which the service was rendered, the Saginaw river being wholly within a State, and a tributary merely, emptying into the lakes but constituting no part of them, or of their connecting waters. 2. As to the character of the craft, the same being a mere float or lighter, with no means of propulsion of its own, etc. 3. As to the necessity of enrollment and license in order to bring a vessel under the admiralty jurisdiction of this court. First. Since tide water has been ignored as the test of ad- miralty jurisdiction under the Constitution and the judiciary Act of 1789, the Act of 1845, purporting to extend a limited jurisdiction in admiralty over the lakes and their connecting waters, no longer has any influence in determining the extent of admiralty jurisdiction over the northern and northwestern lakes and rivers. The test of such jurisdiction as to the waters over which it extends, now is, that they are public navigable waters {The Genesee Chief, 12 How. 443 ; The Eagle, 8 Wall. 25). Those waters are navigable in law which are navigable in fact, and those are public navigable waters which are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water (^Ae Daniel Ball, 10 "Wall. 657). That Saginaw river, from Saginaw City to its mouth, upon which the towage services are claimed to have been rendered, fully answers the description above given, there is and can be no dispute. It is therefore public navigable water, and i& clearly within the admiralty jurisdiction of this Court. Second. The true criterion by which to determine whether any water craft, or vessel, is subject to admiralty jurisdiction, is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than its size, form, capacity, or means of propulsion. (The Kate Tremaine, IS. Y. Trans. Mar. 30th, 1871 ; s. c. 4 336 DISTRICT COURT. The Geseral Cass. Am. Law T. 92 ; 1 Conk. Adm. 27-30 ; Ben. Adm. sees. 31Y-221). A test is to be applied liere similar to that above applied in determining tbe extent of admiralty jurisdiction over the waters upon which vessels are used. If the business or em- ployment of vessels appertain to travel, or trade and commerce on public navigable water, it is sufficient, and the jurisdiction attaches. This test is based upon principle, while any test based upon size, form, capacity or means of propulsion must, from the nature of the case, be entirely arbitrary. The for- mer is also certain and reasonably well defined, and hence, if generally adopted must have the same application everywhere, while the latter admits of no well defined line of distinction, and, being arbitrary in its application, would be subject to the mere caprice of the different judges by whom it is applied. The lumber of the Saginaw valley, as an article of com- merce, passing down and out of the Saginaw river, on its way to the lumber marts of other States and countries, constitutes one of the greatest interests of its kind in the world, and ia its transportation employs vessels of aU sizes, forms and capacities, and all kinds of propelling power, from the insignificant scow, like the one here in question, to the largest sized vessels and steamers that float the lakes. The business and employment of each, irrespective of the accidents of size, form, capacity or 3)ropelliQg power, appertains equally to trade and commerce, and all are therefore equally subject to the jurisdiction of this court. Large sized vessels cannot pass out of Saginaw river with full loads on account of a bar or shoal at the mouth, where it empties into Saginaw bay. Such vessels, consequently, after taking on part of a cargo in the river, pass out over the bar, and then complete their loading from scows or lighters, upon which it is brought to them. These lighters seldom belong to the vessels, but generally to either the lumber dealers upon the river, or — which is more often the case, and is understood to be the case here — to persons who own neither vessel nor lum- ber, but who make this species of transportation their principal EASTERN DISTRICT OF MICHIGAN. 337 The General Cass. or sole business. They have no propelling power of their own, but depend entirely upon being towed to and fro by tugs and steamers. The business and employment, therefore, ^of these scows consisting, as it does, in the transportation of lumber, an article of commerce, a part of the way on its road to market, by water, clearly appertains to trade and commerce, and thus far, at least, they are clearly within the jurisdiction. But it is said that because they have no prc^eUing power of their own, they are not themselves engaged in navigation, and are therefore not vdthin the jurisdiction. I do not think this proposition a sound onfe, for' various reasons. The application of steam to navigation has upset many of the old theories upon which admiralty jurisdiction was based, and materially modified others. Before this event, commerce upon the water depended almost exclusively upon the utiliza- tion of the wind, by means of masts and sails. When steam power made its advent upon the water, it was as a stranger thrust in upon the maritime family, and the Admiralty Courts looked at it askant, and hardly knew where to place it, or whether to recognize it at all. But so rapidly did it gain in favor, and so soon did it obtain a commanding position in the commerce of the world, that it was speedily taken in and do- mesticated in the admiralty fold, without further question, let or hindrance, on account of its not being graced with the tra^ ditional masts and sails, or of its being the mere invention of man, to take the place of the free winds of heaven. The use of steam upon the water soon wrought other inno- vations upon ancient usage, among which was the use of ves- sels commonly called barges, with no propelling power of their own — ^neither the traditional masts and saUs, nor steam — ^hav- ing capacity merely, and none of the means of navigation ex- cept the ordinary steering apparatus, depending for locomotion upon steam power, it is true, but applied by means entirely outside themselves. Commerce upon the lakes and rivers of this country is now largely carried on in this class of vessels ; and it is perhaps safe to assume that nearly one-half the vast carrying trade in iron, copper, grain and lumber, upon the 22 • 338 DISTRICT COURT. The General Cass. great lakes and their tributaries, is now carried on in tliem ; and they are rapidly increasing in numbers and capacity. This character of craft was also a stranger in the maritime family, and at first was also looked upon with distrust by the Admiralty Courts. But so prominent a place do these vessels now occupy, that like their progenitor, the steamboat, of which ■ they are in fact, a mere excrescence, they too must be, as they already in fact Jiave been, taken in and domesticated in the admiralty fold. And this jurisdiction is maintainable on prin- ciple, as well as from necessity. There is certainly no reason, why it is not navigation, all the same whether a vessel is pro- pelled by a steam engine placed within her hull, or by the same engine by means of a tow line. It is, in fact, one of the revolutions wrought by the use of steam, that it has abolished all distinctions as to propelling power in determining admiralty" jurisdiction. But these barges and the scows upon Saginaw river, of which the one here in question is a sample, are equally engaged in a business or employment appertaining to commerce, and each is equally dependent upon the same means of locomotion. The service rendered by each does not differ Qne iota in kind,, but only in degree or extent. The service being maritime, as- we have seen, no criterion of jurisdiction founded upon the mere accident of the degree or extent of it, can be recognized. No such line can be drawn without legislation, however desir- able it may be to rid the Court of cases involving small amounts, and concerning petty crafts. Hence, if jurisdiction is denied as to the scows, it must be as to the barges, and being recognized as to the latter, as we have seen it is, it must be as to the former. Another consideration upon which some emphasis may be laid, arises out of the fact that water crafts of the description here under consideration, are recognized, by necessary impli- cation, as vessels, by, and as such subject to, the navigation laws of Congress. By the Act of July 20th, 1846 (9 Stat. 38), " Canal boats without masts or steam powep,^^ are expressly exempted from... EASTERN DISTRICT OF MICHIGAIT. 339 The General Cass. payment of the hospital tax required of registered, or enrolled and licensed vessels, and also from liability to attachment for seamen's wages. If such boats, "without masts or steam power," were not included in the general provisions of law re- quiring the tax, or of the maritine law making them subject to attachment, what was the necessity of the exemption ? By sec. 1 of the Act of March 2, 1831 (4 Stat. 487), " Any raft, flat, ioat or vessel of the United States, entering other- wise than by sea, at any port of the United States on th& rivers and lakes on the northern, northeastern, and northwest- em frontiers," are expressly exempted from levy of custom house fees from and after a certain then future date. If such craft were not subject to such levy under the general laws in relation to vessels, then certainly there was no necessity for the exemption, or, at all events, there would have been no sense in postponing such exemption to a future day. So, too, by a provision at the end of the liability limitation Act of March 3, 1851 (9 Stat. 636), it is enacted that " this Act shall not apply to the owner or owners of any ca/nal-'boaty iarge, or Ughier, or to any vessel of any description whatso- ever used in rivers or inland navigation." ISTow, the general terms used throughout the act are, " ship or vessel." Here is a clear implication, therefore, that Congress understood " ship or vessel" to include the craft named in the proviso. See, also, sec. 47 of the Act of February 28, 1871, " to provide for the better security of life on board of vessels," &c. (16 Stat. 464), in the provisions of which water craft of the kind here under consideration are expressly included. (See, also, O'lMons v. Ogden, 9 Wheat. 1 ; The Kate Tremaine, above cited ; Ben. Adm. sees. 219, 220.) I am aware that there has been some wavering on the part of some of the Courts upon this question of jurisdiction in such cases; and the Court was cited to several decisions, especially in the eases of the Coal Barges (3 Am. Law Eeg. 391, 394) and The Farmer (Gilpin, 524), seeming to bear against the conclusions above arrived at. In the case of the Coal Ba/rges, it is to be observed that the things which were called 340 DISTRICT COURT. The General Cass. " barges " were mere temporary boxes, in wbich coal was to be transported to its destination, and were then to be broken up and sold for lumber. They were, to aU intents and purposes, like the bales or boxes in which goods, wares, and merchandise are ordinarily transported, the only difference being in the mode in which the boxes were carried, being towed through the water by the vessel, instead of being placed upon it — a very different case from the present. And in the ease of The Farmer, it appears that the learned Judge had announced his decision before he wrote his opinion, and from his acknowl- edged inability to draw a line upon which to base his decision, and from the dissatisfaction expressed by him as to his con- clusions, one can hardly read the opinion without coming to the conclusion that if the opinion had been written first, the decision would have been the reverse of what it was (see 1 Couk. Adm. 28, 29). Numerous cases might be cited in which the jurisdiction has been maintained in cases in many respects similar to this one. (See especially The D. G. Salisbv/ry, Olcott, 71 ; The Flora, 3 Chicago L. N. 130 ; The Canton, 1 Spr. 437.) I iihink the weight of argument is entirely with this latter claas •of cases. Third. Admiralty jurisdiction exists and is exercised in the United States, under and by virtue of the Constitution and the Judiciary Act of 1789, and independently of the navigation laws of Congress. It therefore has no regard to registry, or enrollment and license. The notion that upon the lakes and rivers the jurisdiction depended upon registry or enrollment and license, was derived entirely from the provisions of the Act of 1845, by which the jurisdiction was expressly limited to vessels of that character, and the clause of sec. 9 of the Act of 1789 relating to " seizures under the laws of impost, navigation and trade of the United States," both of which — the said Act of 1845 and the said seizure clause — are now ob- solete {The Genesee Chief, 11 How. 458 ; The Coal Barges, 3 Law Eeg. 393, 394 ; The Flora, 3 Chic. L. N. 130 ; The Eagle, 8 Wall. 15). EASTERN DISTRICT Of MICHIGAN. 341 The General Cass. It is, therefore, a matter of indifEerence whether the scow in this case was enrolled and licensed or not, so far as the ques- tion of the jurisdiction here invoked is concerned. Another question was raised and discussed at the hearing, which, although not involved in the exceptions and motion, yet for the purpose of disposing of all prelimiaary questions, wiU now be considered. The learned advocate for the respondent contends that the towage services having been rendered in the home port, no lien attaches, and that, therefore, this Court has no jurisdiction in rem. I do not consider the position a sound one. So complete seems to have been the acquiescence of the bar in the doctrine that a lien for towage does attach under such circumstances, that the question does not appear to have been raised, or, if raised, that the decision of it does not seem to have been con- sidered of sufficient importance to be reported. It has been assumed, however, by high authority, that such lien does attach. (See 1 Conk. Adm. 28, note ; The Sa/rah Jane, 2 Law Rev. 455 ; The Kate Tremaine, JST. T. Trans. Mar. 30, 18T1, p. 3 ; s. 0. 4Am. L. T. 96.) The inclination of the Courts is not to circumscribe the class of maritime contracts on account of which a lien shall be held to attach, but rather to enlarge it. It is now well settled that a hen attaches for contracts, in the home port, of affreight- ment, for pilotage, for seamen's wages, and for wharfage, and why not for towage ? It has the same elements as the others, and the same tests are applicable to it — ^it is to be performed on maritime waters, and in relation to a business appertaining to trade and commerce {The Canton, 1 Spr. 439 ; Be Lovio v. £oU, 2 GaU. 398 ; The Belfast, 7 Wall. 624, 637; I^. K Ins. Co. V. Dunham, 11 "Wall. 1). But, it is said, no lien attaches by the maritime law to con- tracts for supplies and repairs furnished in the home port, and it is asked why should it attach to the contract for towage made in the home port ? The question is a pertinent one ; but it may be asked as well in regard to the contracts of affreight- 542 DISTRICT COURT. The Masters and Raynor. ment, for pilotage, and for seamen's wages. The answer to the question must be that there is no reason for the discriminar tion. But I think that answer furnishes an argument rather in favor of abolishing that unjust discrimination against con- tracts for supplies and repairs, than for extending it to other subjects ; and I expect, at no distant day, to see it wiped out by Act of Congress or otherwise. It is also said the amount involved is small, and the vessel is a petty craft, and if this jurisdiction is entertained, it will bring upon the Court a flood of petty cases. I do not appre" tend any serious embarrassment from this source. Neverthe- less, the full and complete answer to the suggestion is, as has been already intimated, that no line can be drawn defining just where jurisdiction shall begin, and just where it shall end, in respect to the matters named, without legislation. The exception to the third article of the answer is sustained, and the motion to expunge the same is granted. Motion granted. THE MASTEES Kmy EAYNOE. JULY, 1871. Collision with Vessel at Anchor. — Proper Anchorage. — Anchor Watch. In the absence of a law or custom prohibiting vessels from lying in a channel, anchorage there is not necessarily improper because the chaoanel is narrow at that point, and vessels are constantly passing and repassing, if room be left for vessels and tows to pass in safety. In such an anchorage, however, a vig- ilant anchor watch is imperatively necessary. Libel for a collision between the bark Fame and the schooner Wm. Eaynor. EASTERN DISTRICT OF MICHIGAN. 343 The Masters and Raynor. On the 8th day of October, 1868, about seven o'clock in the evening, the bark Fame lay at anchor in the St. Clair river, a little below Port Huron, and just opposite the foot of the middle ground (so called), which is on the Ammcan side of the river. As she so lay at anchor, the tug I. U . Masters came down the river with a tow of four vessels, the fourth vessel in the tow being the schooner Wm. Eaynor. The tug undertook to pass the bark on the American or port side oi her, and be- tween her and the said middle ground, and in doing so the schooner sagged off to port and came in collision with the bark's jibboom, carrying it away, and doing other damage. The current at this point is about four and a haK miles an iour, and the wind was blowing quite strong, nearly down the river, but varying a little across the current from the Amer- ican side. The bark was lying with her bows up stream, but the wind had swung her stern a little — not to exceed one point, and probably less — ^toward the Canadian side of the river. The course of the tug, in attempting to pass the bark as she did, was a little across the wind and the current, and the imm,ediate cause of the coUision was the tail of the tow being carried down against the bark by the wind and current. Mr. W. A. Moore, for libeUant, claimed : (1) That the bark lay bow up stream, with sails furled, light properly placed and burning, steady at anchor, and occu- pying not over 35 feet in width. (2) That the channel was from one-quarter to one-third of a mile wide, and not difficult of navigation. . (3) That it is usual for vessels driven in by stress of weather to anchor in a channel of that width. (4) That two-thirds of the navigable channel lay on the starboard side of the bark. (5) That if she lay nearer the middle of the river, the tug had sufficient room to pass on the American side. • (6) That, so far as the schooner was concerned, the accident was unavoidable, and the tug is responsible. 344 DISTRICT COURT. The Masters and Rayaor. Mr,. H. B. Brown, for the tug. A vessel colliding with another at anchor vn a proper place- is prima fade in fault, but if she be anchored in an improper place she cannot recover, unless the other vessel has grossly neglected her duty in passing her {Si/rout v. Foster, 1 How. 89 ; Knowlton v. Sa/rvford, 32 Me. 148 ; The Ma/rcia Tnloriy 2 Sprague, IT'; 0']^eil v. Sears, Ibid. 52). The bark ought not to have anchored in the narrowest part of the channel^ without some good reason, when there was plenty of room above and below. The bark was also in fault for not having a proper anchor watch (Buzzard v. Scow Pet/rel, 6 McLean, 491). LONGYEAK, J. There was no satisfactory proof before me as to the exact width of the river at the point in question, but it is near enough for the purposes of this case to assume, and such, I think, the proofs tend to show, that it is from one- fourth to one-half a mile wide. The proofs are contradictory as to the precise point where the bark lay in the river, varying from one-third of the distance from the American channel bank (the middle ground before spoken of) to the middle of the channel ; but there is no dispute but that there was room on both sides of her for vessels and tows to pass, and that is sufficient for the purposes of this case. The proofs show that the schooner was in no manner in fault for the collision, and the case against her was m effect aban- doned at the hearing. The libel must therefore be dismissed as to her, and the case will be considered as against the tug alone. Where a vessel at anchor is collided with by a vessel in mo- tion, the latter is always prima facie in fault, provided the former is anchored in a proper place, and herself observes the law. In order to exonerate the tug from this prima fade liability, it is contended that the bark was anchored in an improper place — that the channel is narrow, and vessels and tows are constantly EASTERN DISTRICT OF MICHIGAN. 346- The Masters and Raynor. passing and repassing, and owing to a curve or bend in tlie river just above, and the strength of the current, the whole channel is needed for safe navigation, unobstructed by vessels lying at anchor. Many witnesses were sworn on both sides as to the safety and propriety of a vessel lying at anchor at the point in question, but I think their testimony may all be summed up in this : that there are safer places for vessels to lie at anchor, and where they would be a less obstruction to navigation, both above and below the place in question, and which the bark might have reached if. she had chosen to do so. 'No law or custom was shown, however, prohibiting vessels from anchor- ing there, but, on the contrary, it appeared that others had an- chored there, and the legal right to do so was conceded. It also appeared from the proofs that there was room on both sides the bark for vessels and tows to pass in safety, by the ex- ercise of due care and diligence. I must hold therefore that the bark had a legal right to lie at anchor where she did. While so holding, however, I must also hold that, having selected a comparatively insecure and inconvenient place to lie at anchor, no matter whether from necessity or from choice, she was bound to exercise the greatest degree of care and dili- gence in keeping watch and ward for her own safety and the safety of passing vessels. A vigilant anchor watch was essen- tial under the circumstances, and the want of it would consti- tute a fault which could not be overlooked. Had the bark such a watch ? The only man on deck was Druillard, the pilot, and he was. not there in the capacity of or on duty as a watch at aU. In fact, the purpose for which he was there, as stated by himseK, shows that there was not only no watch as such, but that there was no pretense of any. He says, in substance, that he was there for the purpose of keeping himself warm by walking. It is true, when he accidentally, or otherwise, noticed the clos& proximity of the tow, he called the mate to put the wheel to port, but even this was not done in time to effect anything. If there had been a vigilant watch on board the bark, such as. the circumstances in which she had voluntarily placed herselt 346 DISTRICT COURT. The Masters and Eaynor. imperatively demanded, the danger wonld have been seen and the helm put to port, and thus by the force of the current the stem of the vessel would have been worked over against the wind, and the jibboom turned o£E to starboard in time, in all probability, to have cleared the schooner entirely, or, at aU events, so nearly as to have much lessened the damages. If, in addition to this, the cable had been allowed to run out and the vessel to drop down the stream with the current, the collis- ion would have been avoided with almost absolute certainty. Because the bark had not such a watch, and did not take any effective measures to avoid the collision, she must be held in fault (see 1 Pars. Ship. & Adm. 676, 577, and cases cited iu note upon p. 577). But this does not exonerate the tug from inquiry into her conduct, or from responsibility, if she was also in fault. It is contended, on behalf of libellant, that the tug ought to have taken the Canadian side of the river, where there was more room, and where the wind and current would have carried the tow away from the bark, instead of bringing it directly down upon her. The excuse made on behaK of the tug for not tak- ing the Canadian side is that there were other vessels within that space at the time, making it dangerous to take that side. I do not think that it appears by the proofs that the position of those other vessels was such as to make it any more danger- ous to pass on that side than on the. other. But, as we have seen, there was room to pass on either side, and the tug, no doubt, had the right to pass on either side which in the best judgment of her master was the most feasible under the circum- stances as they appeared to him at the time. Having made his choice, however, and that choice involving, as it did, the neces- sity of crossing the wind and current, the inevitable effect of which was as apparent then as it was afterwards, it became the duty of the master of the tug to make due allowance for that effect. This, of course, he did not do, or the collision would not have ot3curred (see The New Philadelphia, 1 Black, 76). The tug is therefore held also in fault. Both vessels being in fault, it follows that each must bear EASTERN DISTRICT OP MICHIGAN. 347 The Arctic. a moiety of tlie damages. A decree must be entered in favor of libellant against the tug for a moiety of his damages and costs, referring it to a commissioner to ascertain and report the -damages, and dismissing the libel as against the schooner. THE AECTIC. NOVEMBER, 1871. Practicb. — Security for Costs in Wages Cases. A seaman suing for Ms wages cannot be compelled to give security for costs for the sole cause that the amount claimed is small, and the indebtedness is de- nied in the answer. Motion for security for costs. The libel in this case was for seaman's wages. The answer denied there was anything due to libellants. The claims, as set up in the libel, were for small amounts, being for $5, and $11 46, respectively. The motion was founded upon the facts that the claims set up are smaU. in amount, and the denial of any indebtedness contained in the answer. Mr. W. A. Moore, for the motion. Mr. E. E. Kane, contra. LONGYEAE, J. It is conceded that imder Rules 9 and 10 of this Court, this motion is addressed exclusively to the discretion of the Court. Unless the Court is prepared to say that in all such cases where the amount claimed is smaU and the indebtedness is denied, without any showing of improvi- dence or bad faith in the bringing of the suit, security for costs shaU be given, the motion in this case cannot be granted. The exemption of seamen from giving security for costs in 3i8 DISTRICT COURT. The Arctic. suits for wages, under the proviso to Rule 9, is general. No distinction is made as to the amount claimed, and I can find no authority for the Court to make any such distinction with- out an amendment or abrogation of the proviso. And to say that security shall be required in all cases where the indebted- ness is denied by the answer, without any showing of bad faith, would be a practical abrogation of the proviso in a great majority of cases ; because, that is usually the very question involved, and to try which the suit is brought. Common seamen are often transient persons, having no fixed place of residence, and generally of no pecuniary respon- sibility, and therefore unable to give security. It is upon this presumed inability that the exception is founded. To require them to give security in aU cases would be a virtual denial of justice, and would place them at. the mercy of their employers. They must not, however, abuse the privilege ; and in aU cases where the presumption of their inability to give security is overthrown, or it is satisfactorily shown that bad faith has been practiced in bringing the suit, or that the suit was unneces- sarily brought, the Court would not hesitate to exercise the dis- cretion reserved by Eule 10, and require security to be given (See WheaUey v. Hotchkiss, 1 Sprague, 227). Motion denied. EASTERN DISTRICT OF MICHIGAN. 349 The Silver Spray's Boilers. THE SILVER SPEAT'S BOILEES. FEBEUAEY, 18Y2. Salvage under Contract. — Limitation to Amount agreed on. — subsalvors. Services rendered in pulling boilers ont of a navigable river, into which they had fallen from a steamboat, are salvage services. An agreement for a specific sum dependent upon succeas does not alter the na- ture of the service as a salvage service, but only furnishes a rule of compen- sation. Such an agreement will not be set aside and a commensurate salvage awarded because it proves to be a hard one for the salvor. A person hired by the salvor to assist him, with knowledge that his employer is operating under a contract, is also limited in the amount of his recovery by the contract price, and the fact that he is misinformed as to the terms of the contract, creates no additional liability on the part of the property or its owners. On the libel of David Beard and Robert McArthur, for salvage. The Ubel alleged the loss of the boilers from the wreck of the Silver Spray, in Lake Huron, while the wreck was being raised (the vessel having been sunk by a collision), the aban- donment of the boilers by the owners and insurers, and the raising and saving of the same by the libellants ; that the value of the boilers was $2,000 ; and that the value of the HbeHants' labor, time, skiU, expenses and use of machinery and teams were, in all, $1,825, for which they claim a lien on the boilers. The answer of John H. Moore admitted the boilers dropped into the water from the wreck while being raised, substantially as alleged in the libel, except that it happened in St. Clair river instead of Lake Huron, but denied that the same were lost or abandoned, as alleged ; admitted that libellant McArthur raised the boilers and put them on shore, and at some trouble and expense, but not to the value and amount alleged, and 350 DISTRICT COURT. The Silver Spray's Boilers. denied that the boilers were worth $2,000 ; alleged that the boilers were so raised by express agreement with said McArthnr to do the same for $100, and a tender of that sum before the libel was filed. On the facts, which wUl appear in the opinion of the Court so far as necessary, it was contended on the part of the respondent : 1. That there was a contract with the libeUant McArthur to i-aise the boilers and put them on shore for $100, and no more. 2. That there being such contract the claim was not a salvage claim, and that, therefore, the libel must be dismissed. 3. That if a salvage claim, notwithstanding the contract, then the decree must be for the $100, and no more. 4. That there having been a tender after suit brought, costs could be awarded only up to. the time of such tender. On the part of libeUants it was conceded that there was a contract with McArthur, but it was contended : 1. That such contract was for " $100 and salmage." 2. That if the contract was as contended by respondent, for $100 and no more, then, the amount being so grossly inade- quate to the amount of labor, skill, and money actually ex- pended, the Court would disregard the contract and award a proper sum as salvage. 3. That the libellant. Beard, not being a party to the con- tract, was entitled to salvage without reference to it. Mr. John Atlcinson, for libellant. Mr. W. A. Moore, for claimant. LONG-YEAK, J. It being conceded that there was a con- tract, the point to be determined is what was the compensation agreed on, that being the only point in dispute in this regard. Tbe bargain, whatever it was, was made before anything had been done toward raising the boilers. Moore, the claimant, testifies that the bargain was for $100 EASTERN DISTRICT OF MICHIGAN. 3ol ^ — — — . , The Silyer Spray's Boilers. for all services and expenses in raising the boUers and putting- tliem on shore. McArtliur testifies that it was for $100 " and salvage " — that the $100 Airas for finding the boilers, and that for raising them and putting them on shore he was to have a fair salvage compensation. McArthur's son testifies that he was present during a portion of the conversation, that he heard his father say he must have salvage, that he heard some- thiuk said about $100, but did not understand what it was for. A Mr. Eeilly, who had been acting for Moore in the matter, was also present, and he testified that he heard nothing said about salvage in addition to the $100, but he understood that amoxmt to be in full for aU services and expenses in raising the boilers, but as he was quite hard of hearing his testimony is not entitled to very much weight as to verbal statements, al- though he is an intelligent and a credible witness as to all facts within his knowledge. The statements of Moore and McArthur are positive and in direct conflict, and that too in regard to a matter of fact in regard to which there should be no dispute between them. This being the case, the surrounding circumstances become of great importance. The boilers dropped from the wreck, and filled and went to the bottom very near where they dropped. This was of course in presence of persons in charge of the wreck, and being in a narrow river and in only about 20 feet of water, the finding of them by those interested could be no very diflB- cult task. McArthur testifies that he discovered them acci- dentally while crossing the river in a skiff. Moore testifier positively that he knew where they were before he learned it from McArthur, and that, although the owners had abandoned the wreck to the insurers, the insurers, for whom he was act- ing, had not abandoned the boilers, but were intending to re- cover them, and in these statements Moore is in no manner contradicted. Is it probable that McArthur would claim, or Moore agree to pay, $100 for information which thus accident- ally fell in the way of the former, without any expenditure of labor, skill, or money, and which was already in possession of 352 DISTRICT COURT. The Silver Spray's Boilers. the latter, or which was at all events of so easy access ? I think not. This is rendered stUl more improbable, and the true nature of the agreement becomes stiU more apparent, when we consider what transpired before Moore and McArthur met. It appears that Eeilly, who lived near where the boilers wrere, and knew McArthur, wrote to Moore, who lived in Buf- falo, recommending McArthur as a proper person to employ to get the boilers out. Moore, in reply, wrote to ReOy, under date of May 19, 1870, as foUows : " I am informed it will not cost over $30 to drag the boilers on shore. Simply throw chains or ropes around them, and put a snatch-block, vidth a horse, and drag them ashore in half a day. But if your man win take them on shore, up on the bank of course away from the water, I will give him $100. * * * Please write me what the man says, or let him do it." Eeilly testifies that, after he received Moore's letter, he had an interview with Mc- Arthur, and read the letter to him, which is also admitted by McArthur in his testimony. Eeilly further testifies that, im- mediately after this interview, he wrote to Moore, which let- ter, under date of May 23, 1870, was piit in evidence, and as the statements in • it correspond with EeiUy's testimony, and are entitled to some additional weight because they were made while the facts were fresh in the writer's memory, I quote from it. Eeilly, in this letter, says : " I have seen and read your letter to McArthur. He will go to work in a few days and see what he can do. The weather does not permit just yet. I think that there wiU be a little more difficulty than you think about drawing the boilers on shore, on the ground that there is a steep bank which they have to be dragged over, and that bank is a bank of sand. However, I told him that no matter how much work he done that he would get nothing for it unless that he took the boilers clear away from the water." Eeilly further testifies that in his negotiations with Mc- Arthur the latter set up no claim, nor even mentioned any claim, for finding the property, nor for salvage, in addition to or otherwise than at the price proposed by Moore in his letter. EASTERN DISTRICT OE MICHIGAN. 353 The Silver Spray's Boilers. but, on the contrary, what took place between them, and the Tesult of it, is substantially set forth in his (Keilly's) letter to Moore. It was in this state of the ease, and under these circum- stances, that Moore and McArthur met, some four or five days after the' intei-view between Reilly and McArthur, and the bargain was concluded. These circumstances strongly cor- roborate Moore's statement that nothing was said about salvage in addition to, or otherwise than the $100, and my mind is led irresistibly to the conclusion that the contract was that the $100 was to be in full for all services, time, labor, skiU and expense in getting the boilers out and putting them on shore, and that such was the clear understanding of its terms by both parties at the time. Another consideration adds much strength to this conclu- sion. If the contract was for $100 and salvage, as now claimed by Ubellants, why did they not set it up in their libel as the basis of their claim ? That they did not do so, but set up a claim for salvage merely, is a circumstance of great weight, tending to show that at that time they had no such under- standing, and that the claim now set up is an after-thought.. The theory of the libellants in filing their libel undoubtedly was the same which the Court is now asked to adopt, viz. : That the contract, having turned out in the event to be a hard one for the libellants, it would be disregarded, and salvage proper be awarded. I find, therefore, that the service was rendered under a specific contract with McArthur, to be paid $100, in case of success, in full for all labor, time, skill and money, expended in the premises. Beard's relation to the matter will be no- ticed hereafter. The second point made by respondent's advocate was not insisted on, and indeed it is well settled in England and in this coimtry that an agreement for a specific compensation does not alter the nature of the service as a salvage service, but only furnishes the rule of compensation ; especially where, as in this case, the right to receive the compensation agreed on 23 354 DISTRICT COURT. The Silver Spray's Boilers. was made dependent upon success (2 Pars. Ship, and Adm. 309, and notes 1 and 2 ; The Wm. Zushington, 7 Ifotes of Cases, 361 ; 2^he Catharine, 6 Notes of Cases, Supp. XLm, li, where the question is quite fully discussed ; The A. D. Patchm, 1 Blatchf . 414, 424 ; The Emulous, 1 Sum. 20Y, 210 ; The Whitdker, Sprague's Decisions, 229, 282 ; The Independence, 2 Curt. 350 ; The Jermy Lind, 1 Newb. 443, 447, 448). That the nature of the service was a salvage service, I thint, admits of no doubt, even though the property saved may not have been derelict (2 Pars. Ship, and Adm. 291). It was mari- time property, and it lay sunken in maritime waters. In The Emulous (1 Sum. 210), Judge Story says : " I take it to he very clear, that wherever the service has been rendered in saving property from the sea, or wrecked on the coast of the sea, the service is, in the sense of the maritime law, a salvage service " (see also cases cited supra). The third point made by the respondent, and the second point made by libellants, will be considered together. On the part of the respondent it is contended that the compensation must be limited to the contract price, and, on the part of the libellants, the Court is asked to disregard the contract, and award them a sum as salvage somewhat commensurate to their expenditures. As the matter turned out, it was no doubt a hard bargain for the libellants. But I do not understand that a Court of Admiralty will set aside a contract for that cause alone, where it is free from all fraud, deception, mistake, or circumstances of controlling necessity. McArthur had ample time for consideration, and there is no pretense of any fraud or deception on the part of Moore or his agent Reilly, or that McArthur did not know aU about the situation, and the difficulties in the way of getting the boilers out, and there was no controlling necessity, of duty or other- wise, to undertake the job. The contract appears to have been entered into openly and fairly yo, all respects, and there is no principle or authority upon which the Court can disregard it, or make a new contract for the parties. It must, therefore, be EASTERN DISTRICT OF MICHIGAN. 355 The Silver Spray's Boilers. enforced as it stands (see 2 Pars, on Ship. & Adm. 307, and notes 2 to 5 ; The True Blue, 2 W. Eob. 1T6, 180, a case -very much like the present, except that in that case the expense was largely increased by a storm having come on, and yet the con- tract was enforced although the disparity was great ; also The Henry, 2 Eng. L. & Eq. 664 ; The Phantom, Law Reports, 1 Adm. 59 ; The Salasia, 2 Hagg. 262 ; The A. D. Patchvn, 1 Blatchf . 422, 423 ; The Whitaker, Sprague, 229, 282, a case very much like the present ; Bearse v. Pigs of Copper, 1 Story, 314, 323). McArthur was under no obligation to continue the work after he saw it mnst be a losing operation. His compensation was dependent upon success, and he was at liberty to abandon the work at any time. Parties, after having entered into a deliberate and explicit agreement, must not be encouraged to make large expenditures beyond the contract price at the ex- pense of the owners, by the Courts, loosely or without the most cogent reasons, disregarding contracts thus entered into, and free from all circumstances of fraud, deception, mistake, or oppression existing at the time the contract was made. Parties must understand that contracts fairly entered into will be strictly enforced in admiralty, as well as elsewhere. But it is contended that the libellant Beard, not being a party to the contract, is entitled to salvage, without reference to the contract. I do not think this position can be main-- tained. Beard was hired by McArthur, and was informed by the latter that he was operating under a contract. If McArthur misinformed him as to the terms of the contract, that is a matter between them, and such misinformation cannot operate to create any additional liability on the part of the property or its owners. McArthnr was not, by virtue of his employment, an agent of the owners to create any liability beyond that for which he had contracted. The case of The Whitaker (cited supra) was very much like the present case, except in that case the original contractor Holbrook gave np the job entirely to Otis, who undertook and performed it. The Court refused to decree in .favor of Otis, without Holbrook being first made a 356 DISTRICT COURT. Tlie Ottawa. party libellant with him; and then, although Otis had ex- pended between $2,000 and $3,000 in that service, the Court limited them to the contract price, which was only $900. . Beard's compensation, like McArthur's, was dependent upon success. He, therefore, stands in as good position as McArthur as to lien, but no better as to amount. As suit was brought immediately after the service was completed, and without any demand or refusal to pay, no in- terest can be allowed. The tender was made September 10, 1870, which was after this suit was commenced. Costs must, therefore, be allowed up to, but not after that date. As the money tendered was not brought into Court, a decree must be passed in favor of Hbellants. Let a decree be entered in favor of libellants for $100, and costs up to September 10, 1870. Decree for libellants. Note. — See The Marquette, post, p. 364. THE OTTAWA. FEBRUARY, 18'72. Jurisdiction. — Injury to Whar,f. An action will not lie in admiralty against a vessel to recover damage done by her to a wharf projecting into navigable water. Wharves are but improvements or extensions of the shore, and injuries done to them, no matter by what agency, are injuries done on land, and do not con- stitute maritime torts for which an action in the admiralty can be maintained. This was a libel in rem, by "Wm. P. Stafford and Clark Haywood, lessees of a wood dock or wharf, extending from the shore some distance over the water, at Port Hope, on Lake Huron, for a collision with, and damage to, their wharf by the propeller Ottawa, on the 6th day of November, 1869. EASTERN DISTEICT OF MICHIGAN. 357 The Ottawa. The propeller stopped at Hbellants' wharf for a supply of wood. After she had obtained a supply, the agent of Hbel- lants in charge of the wharf, fearing damage from a storm which was then threatening, requested the master of the pro- peller to leave the wharf with his vessel. To this the master consented, but his engineer, fearing the storm, refused to work the engines, and the vessel remained moored to the wharf, the master saying to the agent he would pay for any damage she might do. The storm came on, and the propeller, by pound- ing against the wharf, and otherwise, damaged the same to the amount of $154 45. Mr. 77. B. Brown, for libellants. Mr. W. A. Moore, for claimants. LONGYEAR, J. The only question in this case is whether a lien exists and a libel in rem can be maintained against the propeller for the injury and damage complained of. The criterion of admiralty jurisdiction in cases of tort is locality. That is, the injury must be done on maritime waters, or, as applied to the lakes and to rivers, navigable waters. Lake Huron comes within this category. Therefore, if the in- jury done to the wharf may be considered as done upon the waters, the libel will lie. If, on the contrary, a wharf is to be considered as land, as real estate, or on the land, or in fact the shore, then the libel will not lie. It is of no consequence that the damage was done by a maritime thing, the vessel, if it was not also done upon the water {The Plymouth, 3 "Wall. 20; Ransom v. Mayo, 3 Blatch. 70 ; 23 How. 215. The English cases cited by libellants' advocate. The TJhla, reported in a note to The Sylph (Law Eep. 2 Adm. and Ec. 28); TJie Excelsior (lb. 268); The Sylph (lb. 24); may aU be dismissed with the single remark, that they are refer- able to an Act of Parliament known as the Admiralty Court Act of 1861, by which jurisdiction in the admiralty is expressly S58 DISTRICT COURT. The Ottawa. conferred in case of "any claim for damage done by any ship," etc., and in regard to which Dr. Lnshington, in the case of The Uhla, remarked : " I take it to mean any case of dam- age done by a ship ; there is no limitation, no restriction ex- pressed." These cases, therefore, throw no light upon what is maritime law upon the subject. Mr. Parsons, in his work on Shipping and Admiralty, at page 599, says, " It not imfrequently happens that vessels are injured, or cause injury, by striking upon wharves, or coming into contact with incumbrances in the docks beside or between the wharves. Such cases give rise to questions concerning the rights, duties, and liabilities of the vessels, or their owners, on the one hand, and of the owners of the wharves, on the other." He then cites several cases in which actions have been enter- tained in the Courts of common law in the United States, but none in the admiralty, for injuries of this character. No ease of this character in the Admiralty Courts of the United States was cited upon the argument, and it is believed that, aside from the English cases referred to, none can be found in the books. It is clearly a case of first impression, so far as any reported adjudicated cases in this coimtry are concerned. May we not apply the language of Justice Nelson in the case of The Fly- mouth (3 "WaU. 35-37), in regard to a similar dearth of reported cases in that case, and assume with him that the reason of it is, that the case " is outside the acknowledged limit of admiralty cognizance over marine torts, among which it has been sought to be classed," and that " the remedy for injury belongs to the courts of common- law ? " There are, however, several reported adjudications of the Courts in this country from which we may derive aid in deter- mining this question. In the case of The Plymouth (3 Wall. 20), the packing- houses, for the loss of which by fire negligently communicated by a vessel lying at the wharf, a libel in rem had been filed, stood whoUy upon the wharf, and the Supreme Court held that the damage dpne by their destruction was a damage done wholly on land (pages 33, 36), that the remedy belonged to the Courts EASTERN DISTRICT OF MICHIGAN. 359 The Ottawa. of common law, and dismissed the libel. In that opiaion the wharf is spoken of in the same connection with the buildings, and evidently as of the same character. In the Rook Island Bridge Case (6 Wall. 213, 216), Jus- tice Field, in deliyering the opinion of the Court, makes use of the following language : " A maritime lien can only exist upon things which are the subjects of commerce on the high seas or navigable waters. It may arise with reference to ves- -«els, steamers, and rafts, and upon goods and merchandise car. ried by them. But it cannot arise upon anything which is fixed and immovable, like a wharf, a bridge, or real estate of any kind. Though bridges and wharves may aid commerce by facilitating intercourse on land, or the discharge of cargoes, ' they are not in any sense the subjects of maritime lien." And why not ? Clearly, because they are fixed and immovable — in fact, real estate — and are not the subjects of commerce on the high seas or navigable waters. They are, in fact, here spoken of as contradistinguished from such subjects. ITot that they may not, in some sense, be subjects of commerce, but that they are not such on the waters, in the sense in which admi- ralty jurisdiction attaches. Being fixed and immovable — in fact, real estate — and not being subjects of commerce on the water, how can an injury to a wharf be said to be an injury -done on the water ? The place or locality of the injuiy is the place or locality of the thing injured, and not of the agent by which the injury is done(l%e Plymouth, supra). In the case of the brig Empire State (1 Wewb. 541), my predecessor, in an able opinion, held, and no doubt correctly, that a wharf built at the termtous of a street is but an exten- sion of the street, and subject to the same easements, rights and liabilities of a street or public highway, and nothing more. So, by parity of reasoning, a wharf, constructed by an indi- vidual proprietor, is but an extension of the shore, and as such subject to the same rights and liabilities as any real estate, so far as trespasses or other torts upon it are concerned. It is for the convenience of commerce, it is true, but in the same sense any other improvement of the shore for the same purpose 360 . DISTRICT COURT. The Ottawa. would be. In the case of tlie Asa B. Swift (1 Newb. 553, 554),, the same learned judge says : " He" (the owner of a wharf). "is only a lessor for the time being of a part of his real estate,, to be used as a moorage." No language can be plainer, and, I think, no conclusion sounder. The case of The Philadelphia, Wilmvngton <& Baltimore- Railroad Company v. The Philadelphia db Mamre de Or ace Tow-ioat Company (23 How. 209), was a libel m personam by the tow-boat company for an obstruction to navigation on navigable waters, an injury having resulted therefrom to one of the boats of the company. The obstruction was no part of a bridge, wharf, or any structure whatever. The spile had been diiven there for engineering purposes in building a bridge. When work on the bridge ceased, its use's and pur- poses were at an end, and it was cut off below the surface of the water, and the stub was left standing, and became a simple obstruction to navigation, and nothing more nor less, the same to aU intents and purposes as any obstruction to navigation without authority, right or legal purpose whatever (see p. 216). There the injury was done to the vessel on navigable waters. Here it was done to a fixed and permanent structure, real es- tate, and to all intents and purposes on the land, as held by the Supreme Court in the case of The Plymouth (cited supra). If the action in this case was against the wharf owners for an obstruction to navigation caused by their structure, and an in- jury resulting therefrom to a vessel, upon the water, it would be more nearly analogous to the case last cited from 23 How- But even then the two cases would not be alike, because in the one case the obstruction was no part of any structure whatever, for the purposes of commerce or otherwise, while in the other it is an improvement of the shore by extending it out over the water to aid and facilitate commerce. Upon a careful consideration of the question, and of the authorities bearing upon it, I must hold that a wharf is but an improvement or extension of the shore ; that it is real estate, and that an injury done to it, whether through negligence or design, no matter by what agency, is an injury done wholly on- EASTERN DISTRICT OF MICHIGAN. 361 The Skylark. land and not on the water, and, therefore, does not constitute a marine tort. It necessarily follows that the remedy for such injury cannot be sought in the admiralty, but must be found in the Courts of common law. Z,ibel dismissed. Note. — See The Neil Cochran, ante, p. 162. THE SKTLAEK. FEBRUARY, 1872. Bill of Lading. — Vessbl not Liable tor Stone Purchased as. Cargo. A document purporting on its face to be a bill of purchase by a vessel of certain stone, and signed by her master (the stone being delivered to her as cargo), has none of the elements of a bill of lading, and cannot be interpreted as sucH.. Nor is the vessel holdeu for stone purchased by her master as cargo. Libel for breach of contract of affreightment. The libel alleged the shipping by libellant of a quantity of building and limestone on board the schooner at Marblehead, in the State of Ohio, on the 23d day of July, 1867, consigned to "William Becker, of New Baltimore, in the State of Michi- gan, and that the hbeUant received " from the master of said schooner a bill of lading, a receipt and a contract whereby the isaid master charged the said vessel with the performance of said contract." The libel further alleged a breach of the con- tract and a conversion of the stone by the master to his own use, and that the same was worth $111 50, for which amount,, with interest, the UbeUant claimed a decree against the vessel. AH the material allegations of the libel were denied by the answer ; and it was averred that claimant became the purchaser 362 ■ DISTRICT COTJKT. The Skylark. of the scliooner in good faith after such alleged contract and breach, and for a valuable consideration, and that libeHant's claim, if he ever had any, had become stale by lapse of tune, and ought not now to be enforced. Mr. E.. B. Brown, for hbellant. Hr. W. A. Moore, for claimant. LOISTGYEAE, J. The shipping of the stone and the bill •of lading and contract being denied, it was incumbent on the libellant. to sustain the same by a preponderance of proof. The libeUant Conrad was sworn as a witness, and after testify- ing to the shipping or placing on board the schooner a load of stone, produced as and for the " biU of lading, receipt and con- tract " mentioned in the libel the following document : " Maeblehead Island, O., July 23, 1867. Schooner Skylark, of New Baltimore, Bought of Michael Groh & Co., Dealer in Building, Blockstone and Limestone. To W. Becker. 25 cords lime and buUding stone. 16 cords of building stone, $5 not paid, amount to. . . $80 00 And $3 50 for limestone 31 50 9 cords limestone $111 00 (Signed,) PORTEE OHORTIE." This document is partly printed and partly written, and the written portion bears upon its face strong evidence of having been written at different times. The words " to W. Becker" (inserted in the manner above indicated), in pencil, especially have that appearance. It is due, however, to Conrad to state that he testified that those words were there when Chortie signed it. But this paper bears no resemblance to and contains none of the elements of a bill of lading or contract of affreightment. EASTERN DISTRICT OF MICHIGAN. 363 The Skylart It is quite unnecessary to specify what it lacks, because it lacks everything going to make up such a document. It is not even signed by Chortie as master, although it was proven that he was master and owner of the schooner at the time. It is sim- ply an acknowledgment by Chortie, in plain and explicit terms, that he had bought the stone of libeUant at the prices named, and that the same was not paid for. It is true that Conrad testified that they usually took their bills of lading in that form, although he 'produced none, but even if that is so, it does not make it a bill of. lading, or entitle libeUant to use it as such for any purpose whatever. And then what he said to War- wick, the claimant, as testified to by the latter, that he had sold a load of stone to Chortie, and that- he must have his pay for it from Chortie or from Warwick, is consistent with the docu- ment as it reads, and is therefore entitled to much weight. And the circumstance that libeUant did not send a biU of lad- ing or any notification whatever to the person to whom it is now claimed the stone was shipped, taken in connection with the fact testified to by that person, that he had not ordered the stone, is utterly inconsistent with the idea that the transaction was considered a shipment as freight at the time. To my mind it looks very much like this : that the transac- tion was a sale of the stone to Chortie, and that the libeUant supposed that by making out the bill of sale to the schooner by name and obtaining the signature of Chortie, the master and owner at the time, the vessel would be holden for the purchase price ; but having ascertained that no such result would f oUow, he now seeks a change of base by treating the transaction as one of afEreightment. This, of course, cannot be allowed to be done. The preponderance of proof, instead of being in favor of the libeUant, I think is largely against him. Lihel dismissed. 364 DISTRICT COURT. The Marquette. THE MAEQUETTE. FEBRUARY, 1872. Salvage. — Special Contract por Proportion of Property Saved. — How far a Salvor is an Agent of the Owner. A wrecking company which had undertaken to raise a sunken schooner and deliver her at Detroit for six-tenths of her value when so delivered, hired of lihellant, for a fixed compensation, certain divers, diving armor, and wreck- ing apparatus. Held, that libellant, having knowledge of the contract be- tween the wrecking company and the owners of the schooner, could not main- tain a libel m rem, and that the subsequent ownership of six-tenths' of the schooner by the wrecking company could not relate back to the time of its contract with the owners, so as to affect their interests. A salvor by contract is not an agent of the owners, and cannot create against them or the property saved, any liability beyond the contract price. A contract for a compensation to be paid at all events, whether the property is saved or not, creates a mere personal obligation, and no lien attaches on account of it. The Marquette was sunk in the Straits of Mackinaw by a collision, and abandoned by her owners to the underwriters, and there lay sunken in about fifteen fathoms of water. The underwriters contracted with the Northwestern Wrecking Company, a corporation organized under the laws of Ohio for the raising of sunken vessels, to raise the Marquette, and place her in Clark's dry dock, in the city of Detroit, for six-tenths of the vessel. The Northwestern Wrecking Company entered upon the performance of their contract under the charge and supervision of Milo Osborne, and after working at the wreck for several days, found that on account of the great depth of water in which the wreck lay, the services of a diver were nec- essary. The libellant, who was also in the wrecking business, was then engaged in raising a wreck in Beaver Harbor, near Beaver Island, a few miles distant from the wreck of the Mar- quette. He had divers in his employ, and owned and had in use the necessary diving armor and apparatus, a hand pump, a EASTKRN DISTRICT OF MICHIGAN. 365 The Marquette. steam pump, etc., adapted to the purposes of wrecking. He was also the patentee of a new invention for raising sunken vessels, which consisted mainly in sinking casks filled with water, and then, after being fastened to the vessel, inflating them with air by the use of a steam pump and connecting tubes or pipes, and thus expelling the water and giving the casks a lifting power. Osborne, who was in charge of the work for the Northwestern Wrecking Company, applied to and obtained of the libellant a diver and the necessary armor and apparatus, including a hand pump. After working a short time it was found that the hand pump was not sufficient for the divers to operate with safety in so great a depth of water, and Osborne returned the hand pump and obtained libellant's steam pump. After working a few days longer, and not mak- ing much progress, Osborne returned to libellant with the . 438 DISTRICT COURT. The Masten. LONG-YEAE, J. The main and only disputed essential fact in the case is, whether the schooner had up her proper anchor light ; and it is conceded that if she had, then the bark is in fault, and must respond in damages. Too great speed is also charged as a fault against the bark ; but this can be of importance only in case it shall be found that the schooner had not up her proper light, and then only on a question of division of damages. The question as to the schooner's light will, therefore, be first considered. The testimony on the part of the libeHant shows that from the force of the wind and current the schooner dragged her anchor a considerable distance before she came to, and that she came to only a few minutes — fifteen or twenty — ^before the coUision. John Jones, master of the schooner, testifies that imme- diately upon coming to anchor, he took in the colored Kghts, and hung a bright light in the fore-rigging on the port side. He then describes the lamp or lantern, and its height from the deck, &c., but as no question is made iu these respects, it is unnecessary to repeat his testimony. Hannah Dell, the cook, testifies that she trimmed the bright light, and handed it to Capt. Jones, in the cabin, when he brought in the colored lights. James M. Jones, son of Capt. Jones, and who was on the lookout on the schooner, testifies that he saw his father hang up the Hght, and that it burned brightly. Oscar Hill testifies that he was on deck several minutes after the schooner came to anchor, and that he distinctly saw the light; that he went below before the collision, but on hearing the alarm, came on deck, and at the time of the col- lision was standing near the fore-rigging ; that when the fore- mast head was carried away, the fore-riggiag came down with a run and the lamp with it, that the lamp hit him on his back, and that it was then stiU burning. Henry Sageman testifies that he was also on deck when the schooner came to anchor, and saw the Hght hung in the rig- ging, and that it was burning good. EASTERN DISTRICT OF MICHIGAN 439 The Masteu. Now these five witnesses testify with a particularity of de- tail which precludes the possibility of their being mistaken. One of two things must be true, either that the schooner had a proper and suflSicient anchor Hght, or that each of these five witnesses has sworn falsely, willfully and deliberately. In answer to this array of testimony, respondent produces the following : James Kendrick, master of the bark, testified that he was standing forward near the lookout, when the latter reported to him that he saw a vessel ahead ; that by the aid of his glass he distinctly saw a vessel, which proved to be the Maid of the Mist, a little over his starboard bow, and only about 100 feet off, and that he saw no light on her ; that he immediately ordered his wheel hard arstarboardj and the collision occurred almost immediately after. He also testifies to a conversation with Capt. Jones, master of the schooner, in which he said to the latter, that it would not have happened, if he, Capt. Jones, had had a light out, and that Capt. Jones replied that he ordered the boys to put one out. Two others of the crew of the bark testify to having heard Capt. Jones make the same statement. George Johnson, the lookout on the bark, testified to seeing the schooner, and reporting her to Capt. Kendrick, and that he saw no light on her. The wheelsman on duty, and several others of the crew of the bark, on deck at the time, also testify that they saw no light on the schooner before the collision, but it does not ap- pear that any of them saw the schooner, and I am satisfied they were not in a position to have seen her, or any light there may have been upon her at any time before the collision occurred. All the witnesses on the part of the bark testify that the first light they saw on the schooner was a light coming out of her cabin soon after the collision. Besides the above testimony on the part of respondents, a statement made by Hannah Dell, the cook on the schooner, in her testimony, to the effect that when the lamp was brought 440 DISTRICT COURT. The Masten. into the cabin after the collision, it was burning dimly and the glass was smoky, is alluded to as evidence that even if a light was out, as testified by the witnesses on the part of the schooner, it was not a sufficient one. I shall take up and consider the points involved in respond- ent's testimony in the inverse order in which they are above stated. The condition of the light when it was brought into the cabin after the collision, as stated by the cook, is easily attribiitable to what happened to it by the collision, and there- fore does not necessarily conflict with the statements of the witnesses on the part of the schooner, that it was burning brightly before the collision. The only thing that appears strange to me is that it was not extinguished entirely. The fact that those on board the bark did not see the light immediately after the collision is, in my opinion, to be attributed to the fact that it came down with the rigging, and was thereby hidden from their view. The statement sworn to by Capt. Kendrick and two other vritnesses on the part of respondents, as having been made by Capt. Jones, that he told the boys to hang out a light on the schooner, is attempted to be explained by Capt. Jones. He says that after the collision he did tell the boys to hang out the light again, and that although he has no recollection of making the statement testified to by Capt. Kendrick and the others, yet if he did make it, it must have been made in refer- ence to that circumstance. Besides this, testimony of verbal statements made and heard in time of excitement and peril must be received with much caution, and when opposed to the direct and positive concurring testimony of many witnesses can have but little weight. If the fact of light or no light rested on Capt. Jones' uncorroborated testimony, then the statement might have considerable force ; and perhaps in the light of the testimony of Capt. Kendrick and the lookout on the bark, that they saw no light on the schooner, it would outweigh Capt. Jones' testimony entirely. But Capt. Jones is fully cori'obo- rated by the testimony of three eye-witnesses as to the fact of the light being there in its proper position in the rigging, and EASTERN DISTRICT OF MICHIGAN. 44:1 The Hasten. these witnesses stand perfectly fair before the Court. Capt. Jones' testimony may be thrown entirely out of the case, and still there is ample proof that the light was there, by whomso- ever it may have been placed there. There is more force, however, in the statements of Capt. Kendrick, of the bark, and his lookout, that they saw no light on the schooner. It was their business to look for hghts, and it is a fair and even strong presumption that there was no light where they saw none. After all, it is a presumption merely, and cannot have the effect in this case, of outweighing satisfactory positive proof of the existence of the fact itself, viz., that there was a light. Capt. Kendrick and the lookout, in making their statement that they saw no Hght, do not stand in the same position of Capt. Jones and his men in their state- ment that there was a light. The latter could not be mistaken, while the former might be. The alternative presented in the case of the witnesses for libeUant is not presented here. There may have been a light on the schooner, as testified by libel- lant's witnesses, and still it may be true that Capt. Kendrick and his lookout did not see it, as testified by them. Why they did not see it is not necessary for us to inquire. It is sufficient for our present inquiry that there is a strong preponderance of proof that the schooner had a proper and sufficient anchor light. That it was the legal duty of the bark to avoid the schooner under the circumstances found to exist is, of course, conceded. Not having done so the bark was in fault, and must respond for the schooner's damages. Having arrived at the above conclusion, it is unnecessary to consider the question of speed. But I deem it a duty, as a caution to navigators, to express the disapprobation of the Court of the almost reckless speed of the bark under the cir- cumstances. Capt. Kendrick testified that the bark was quick to mind her helm, and it is preposterous to say that a speed of six miles an hour through the water was necessary for steerage way, when beyond aU question one-half that spee^, or even less, was amply sufficient for the purpose. Here was a large 443 DISTRICT COURT. The Roscius. vessel, heavily laden, coming down the current and before a strong wind, in a comparatively narrow channel in which were numerous vessels at anchor, carrying canvas sufficient for the open water in such a breeze, and rushing along at a speed en- tirely unnecessary for her management, and which, under the circumstances, seemed entirely regardless of danger to herself or to other vessels. It was clearly her duty, on coming into the river, to have taken in her canvas until her speed had been slackened down to just what was absolutely necessary for steer- age-way. The excessive speed of the bark was a gross fault, and one for which she must have been held responsible in any event. Decree for liiellant. THE EOSCIUS. FEBRUARY, ISTS. Peactiob. — Opkning Dbpositiows out of Coubt. DepoBitions opened out of Conrt and without the consent of the oppoBite party cannot be read in evidence. Such consent to publication out of Court should be in writing. Motion on the part of claimant to open the decree, and for a new trial, on the ground that certain depositions on behalf of claimant, which arrived after the hearing and decree, showed a complete defense, and that the same were not received in time to be used on the hearing, on account of unavoidable delays. The motion was opposed on behalf of libellants on the ground that the depositions were not entitled to be read in evidence, and that, therefore, a new trial would avail the EASTERN MSTEICT OF MICHIGAN. 443 The Boscius. claimant nothing. The following objections to the depositions were specified : 1. That the requisite notice of taking the de- positions was not given. 2. That the depositions were opened out of Court. 3. That the certificate of the ofiicer does not state that the depositions remained in his possession until they were sent to the clerk of the Court. Messrs. J. W. Firmey and E. B. Brovm, for Ubellants, as to the question of notice, cited the Act of Congress of May 9, 1872, entitled " An Act to perpetuate testimony in the Courts of the United States," by which the rule as to notice prescribed by section 30 of the Act of 1789 (1 Stat. 88) was changed so as to require notice. in all cases, and that the same be given by the party or his attorney, instead of the officer, as provided in certain cases by the last-named Act, and as was done in this case. And as to the opening of the depositions out of Court, they cited the provision of the said section 30 of the Act of 1789, requiring that depositions shall remain under the seal of the officer taking the same, " until opened in Court," and also the decision of the Supreme Court, in the case of Beale v. Thompson (8 Cranch, 70). And as to the sufficiency of the certificate, they cited 2 Parsons on Shipping and Admiralty, 445, note 3, and Shanwiher v. Heading (4 Mc- Lean, 240). Mr. W. A. Moore, for respondent, contended that the notice, although signed by the officer, was actually served by the attorney, and that the same was therefore, in fact, given by the attorney, to aU intents and purposes, within the meaning of the Act of 1873. And in reply to the objectioii that the depositions were opened out of Court, he produced an indorsement, signed by the clerk of this Court, upon the envelope, as follows : " Keceived from P. O., Detroit, this 18th day of February, 1873, and opened by con- sent and filed." And as to the alleged insufficiency of the certificate, he contended that there was nothing in the Act re- quiring that the certificate should state that the officer retained the depositions in his possession, etc., and that, until the con- 444 DISTRICT COURT. The Koecius. trary is shown, the officer must be presumed to have done his duty in that regard. LONG-TEAK, J. Being of opinion that the second ob- jection (that the depositions were opened out of Court) is well taken, it is unnecessary to consider the other two, and no opinion will be given as to them. Thfe requirement of the Act that depositions shall remain, etc., " until opened in Court," may, no doubt, be waived by a consent to their being opened out of Court. But, in my opin- ion, such consent should in aU cases be evidenced by writing duly signed, and filed or indorsed upon the depositions — ^which does not appear to have been done in this case. On the con- trary, it transpired at the hearing that no consent whatever, verbal or otherwise, was in fact given, so far as MbeUants were concerned, the indorsement by the clerk to that effect having been prematurely made, under the expectation or mistaken supposition that such consent would be, or had been given. This very case well illustrates the policy and necessity of the rule above suggested, that such consent should always be in writing, and on file, before depositions are allowed by the clerk to be opened out of Court. The bare question, then, is presented as to the effect of the unauthorized opening of depositions out of Court, upon their admissibility in evidence. This question, in view of the peremptory character of the statutory requirement, scarcely admits of discussion or doubt. "Whether it does or not, however, is not an open question for this Court, the Supreme Court, in the case cited by libeUants' counsel {Beale v. Thompson, 8 Cranch, 70), having decided, in a case almost exactly like the present, that depositions which have been thus opened are not admissible. That decision is decisive of the present case, and leaves nothing further to be said. The depositions not being admissible in evidence, there is no ground for a new trial. Motion denied. EASTERN DISTSICT OF MICHIGAN. 445 The Toledo. THE TOLEDO. MARCH, 1873. The 53d Rnle in Admiralty, requiring the respondents in a cross-libel to give security to respond in damages as claimed in tlie cross-libel, applies as well to actions in rem as to those in personam. Motion to vacate an order requiring libellant to give secu- rity to answer tte cross-libel, and for stay of proceedings. Mr. S. B. Brown, for the motion, cited The Bristol (4 Ben. 55). Mr. W. A. Moore, coni/ra. LO]!TGTEAE, J. Rule 53, under which the question pre- sented arises, reads as follows : "Whenever a cross-libel is filed upon any counteB-elaim arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security, in the usual amount and form, to respond in damages as claimed in the said eross-Hbel, unless the Court, on cause shown, shall otherwise direct ; and all proceedings upon the original Ubel shall be stayed until such security shall be given." Timothy Crowley, master of the scow Snow Bird, filed his libel Ml rem against the propeller Toledo, for collision. The propeller having been seized, the Union Steamboat Company, a corporation organized and existing under the laws of the State of Il^^ew York, owner of the propeller, put in its claim and answer, admitting the eoUision as alleged, but denying that the propeller was in fault, and alleging that the collision was caused solely by the fault of the scow, and setting up a counter-claim for damages on account of the same collision, in 446 DISTRICT COURT. The Toledo. the sum of fTOO, for tlie recovery of which the respondent filed therewith its cross-libel against the scow, and prayed for a stay of proceedings upon the said original libel, until security should be given as required by the said Eule 63. No process has been issued upon the cross-libel, but an order was granted staying proceedings upon the original libel, conditionally, as prayed in the answer, and to vacate which this motion is now made. The ground of the motion is that Eule 53 applies to libels and cross-libels in personam only, and not to those in rem. The language of the rule used in describing the subject- matter to which it relates is certainly broad enough to cover both classes of cases ; and, looking to that, and to the evil which the rule was evidently intended to remedy, it does not seem to me to admit of a doubt that such is the scope and effect of the rule. Before the rule, no security could be ob- tained, or proceedings had upon a crossrlibel without the issu- ing and service of process. On this account, it often resulted that any remedy by cross-libel was impossible, on account of . the libeUant in the original libel, in an action in personam, or the vessel represented by the libellant in an action in rem, being and remaining beyond the same jurisdiction. This often resulted in the grossest injustice and oppression, equivalent in some cases to an absolute failure of justice. The respondent or claimant in the original suit in such cases, was obliged to follow the libellant, or the vessel, into other, and often foreign jurisdictions, involving ruinous outlays and delays. And often, when arrived where the libellant or the vessel was, he found there was no admiralty jurisdiction of the particular. cause of action in question, on account of which he was deprived of the ,power to obtain security by a seizure of the vessel, and was obliged to resort to an action at common law, or forego any remedy whatever ; and that, too, while his opponent had the full benefit of security by seizure under our admiralty jurisdic- tion. For instance : In the British American Provinces, the admiralty and maritime laws of England prevail. By those laws there is no admiralty jui-isdiction beyond tide-water, and EASTERN DISTRICT OF MICHIGAN. MY The TWedo. hence none upon the waters of the great lakes, and their con- necting waters, and the St. Lawrence atove tide-water — which are nearly equally divided between those Provinces and the United States, and constitute the boundary between the two countries to a vast extent, being not far from 1,500 miles in all. All the waters named being public navigable waters, and it being now well settled that the English rule as to tide-water, does not obtain in this country, and that the jurisdiction of the United States Admiralty Courts extends over all public navi- gable waters, our Courts have and entertain jurisdiction over the waters named. Now, in case of a colUsion between an American and a Canadian vessel on some of those waters (which is exactly the present case), the Canadian owner may libel the American vessel in our Courts (just what was done in this case), and obtain security for the damages he may recover by a seizure of the vessel — a privilege which is denied the American owner in the Canadian Courts, notwithstanding the collision may have been caused in part, or even whoUy, by the fault of the Canadian vessel. In my opinion it was to remedy this class of evils that Rule 53 was made. If I am correct in this, then it would deprive the Kule of its chief est virtue to limit it to actions m personam, alone. And I can see no good reason in the nature of the eases to which it relates for so limiting it in its application. The cases to which it relates are described in the rule as being those of cross-libels filed upon any oovnter-claim arising out of the same cause of odAon for which the original libel was filed. It must be, then, a cross-libel filed upon a claim arising out of a contract, tort, or other cause of action of which the Court al- ready has jurisdiction by the original libel. In case of a coun- ter-claim being set up, a cross-libel is necessary, not to give the Court jurisdiction of the subject-matter — it already has that — but in order to entitle the party setting up such claim to affirm- ative relief; such relief, when granted, however, must, from the nature of the case, be such and such only, as, in the lan- guage of the Ktde, as well as upon those familiar general prin- ciples governing cross-actions, arises " out of the same cause of 44-8 DISTRICT COFRT. The Teledo. action for whicli the original libel was filed." A seizure is therefore not necessary to give the Court jurisdiction of such counter-claim, independently of Kule 53 ; and before that Eule a seizm-e was necessary only as a security for the enforcement of the remedy. The means of obtaining that security, without the necessity of process and a seizure, is provided for by the Kule, and I can see no good reason, constitutionally or other- wise, why it may not be done in that manner. ISTeither can I see anything in the language of the Eule by which its application is necessarily limited to actions m per- sonam. The Court was referred, upon the argument, to a re- cent decision in the District Court for the Southern Dis- trict of N^ew Yol-k (The Bristol, 4 Benedict, 55), holding that Eule 53 is limited to suits vn personam, as is here con- tended. The learned judge in that case seems to lay considerable stress upon the use in the Eule of the expression, " respond- ents in the cross-libel," as implying a suit in personam,. I can agree with him so far as to concede that a more fortunate ex- pression might have been used to indicate what I conceive must be its meaning. Libellants in an original libel, whether in per- sonam, or in rem, must, of necessity, become " respondents in the cross-libel ; " and I think that is all that is meant by the ex- pression. And I think this meaning is further indicated by the provision of the Eule for a stay of proceedings ; because it would be unjust to the libellarit in the original libel that all proceedings upon the original libel should be stayed until such security shall be given, as the Eule provides, if he is not the person meant. An examination of others of the Admiralty Eules shows that the terms " respondent " and " defendant " are used indiscriminately, as having the same meaning, with a seeming disregard for exact technical nicety m the use of terms, and as equally applicable to suits in rem and in personam. At all events, I do not think there is sufficient in the use of that expression to do away with what is, to my mind, the evident object and purpose of the rule. I entertain a high respect for the learning and ability of the judge who delivered the opinion above referred to, and have EASTERN DISTRICT OP MtCHIGAN. 449 The Victor. derived miieli aid in the past, as I expect to in the future, from his pubhshed opinions. It is very seldom I have occasion to differ with him, and when I do so it is with the greatest reluct- ance. In this case, for the reasons given, I am compelled to do so. I hold, therefore, that Eule 53 applies to suits in rem as weU as to suits in personam. Motion denied. THE YICTOE. JULY, 18T3. Collision. — ^Tug and Tow.— Manning and Equipment op Tugs. A tug, having a schooner in tow, ran aground upon the bank of Detroit river, and the schooner ran into her : Held, that the tug was in feult, because the officer of the deck was also acting as wheelsman, and that the want of a proper lookout on the schooner did not contribute to the collision. A steamtug, whose master also acts in the capacity of wheelsman, is insuffi- ciently manned. This was a libel for a collision between the schooner Victor and the tug Clara, which, at the time of the collision, was tow- ing the schooner through the Detroit river, having taken her at Port Huron, under an agreement to tow her to Lake Erie. While passing Detroit, about midnight, the master of the tug made the green light of a propeller so near ahead that he de- cided to starboard his helm to pass her. After he had passed the propeller, he endeavored to port his wheel, and resume his course down the river, but, owing to the breakage of the links of her port wheel chain, the tug failed to obey her wheel, and before she could be stopped, ran ashore upon the Canadian side of the river — the schooner coming on without changing her 29 ''450 DISTRICT COURT. . The Victor. course, and striking the tug upon her starboard quarter, withiu •a few feet of lier stem. As soon as he discovered her failure 4o obey the wheel, and before the tug struck the bank, the master ran aft and hailed the schooner to port, and avoid strik- ing him, but the hail was not heard upon the schooner. The tug, at the time of the collision, was under the charge of the master and wheelsman, nor was there any one upon the deck of the schooner except the wheelsman at the helm, and the mate, who was walking upon the cabin, aft. Neither vessel had a lookout. Mr. H. B. Brown, for the libellants, argued that the col- lision was owing to the want of a lookout upon the schooner, and her consequent failure to hear the hail of the tug, and to port her wheel in time to prevent the collision. If a vessel be shown to be in fault for want of a lookout, every doubt with regard to this having contributed to the col- lision must be resolved against the vessel so in fault {The Ari- Melm£, 13 Wall. 475 ; The Genesee Chief, 12 How. 443, 463). The tug was not in fault for running aground, if it was ■owing to the breakage of her machinery, and the Court finds she was provided with proper appliances for navigation — ^in other words, was seaworthy (1 Pars. Mar. Ins. 372-376). Mr. L. 8. Trowbridge, for the claimant, argued that the tug was insufficiently manned, her officers incompetent, her mar chihery defective, and that no proper signals of danger were ■given, and that the want of a proper lookout on the schooner did not contribute to the colhsion. LONGTEAE, J. The principal fault urged against the schooner is that she had no lookout man on duty. Such ap- pears to be the fact. Did this contribute to the collision ? The tug and tow were proceeding down the river at a speed of eight miles an hour. The tow line was 52 fathoms in length in all. Making a reasonable allowance for portions taken up at each EASTERN DISTRICT OF MICHIGAN. 451 The Victor. end, the length of the line between the two could not have ex- ceeded 45 fathoms, or 270 feet. The proof shows that it would take about haK a minute to put the schooner's wheel over hard aport, and that it would take about as much longer for her to begin to swing, making one minute in all. During this period the schooner, at her then rate of speed, would pass over a space of a fraction over 700 feet, or a little over two and a half times the distance between her and the tug. So that even if the tug ran once and a half the distance between the two, or about 400 feet, after the hail was given warning the schooner to port her helm and keep clear, and before the tug grounded, it could have been of no avail if a lookout man had been on duty and had heard the hail and promptly reported the same. The proofs do not show how how far the tug did run between the hail and the grounding, but I think it reasonably certain that she did not run more than 400 feet — probably less that. So that, conceding that the hail given was a proper one, and that it would have been heard and heeded on the schooner if she had had a lookout nfian on duty, it seems the collision would still have been inevitable, so far as the schooner was concerned. But the hail or signal given was not the usual one in such cases, the usual signal being a blast or blasts from the tug's steam whistle, and the hail given being by the master shouting to the schooner. Besides being unusual, it was evidently much less effective than the usual signal, considering the distance and that the wind was blowing fresh against the direction of the sound. It was not heard on the schooner, and I think it rea- sonably certain from the proofs that it could not and would not have been heard by a lookout man if one had been on duty on her at the time. , But it is claimed that if there had been a lookout man on duty, the disabled condition of the tug would have been discovered ■on the schooner sooner than it was by the slacking of the line. But it does not appear that the line slackened perceptibly be- fore the tug grounded, but, on the contrary, I think it reason- ably certain from the proofs that such was not the case. It is 452 DISTRICT COURT. The Victor. true, the tug's engine was stopped when it was first discovered that she did not mind her helm, but was started agaia almost instantly, and at full speed. The headway of the tug could hardly hare been checked at all. But when the tug grounded the vessels were only about 270 feet apart, as we have seen, a distance at which, as we have also seen, it was impossible for the schooner to have avoided the tug, at her then rate of speed. I think, therefore, that the want of a lookout man on the schooner did not contribute to the collision. The master of the tug, then in charge of her navigation, was also acting as wheelsman. I think this was a fault, and one not without significance in this case. The responsible character of the occupation of tugs requires that there should be some competent person in charge of their navigationj sep- arate and distinct from the wheelsman, and who has no other duties when the tug is in actual service. The master testifies, that after having starboarded to pass another vessel, and after having put his wheel aport as it was before, it was some ten minutes bef qre he discovered that the tug was not minding her helm and was running in towards the shore ; and as appears with reasonable certainty, she was already almost upon the channel bank when he did make the discovery. If his indi- vidual attention had been directed to the navigation of the tug, as it ought to have been, and he was competent for the posi- tion, he would certainly have made the discovery at once, and a collision would probably have been avoided. IMel dismissed. EASTERN DISTRICT OF MICHIGAN. 463 The Oiarlotte Raab. THE CHAKLOTTE EAAB. JULY, 1873. Collision. — Vessel in Stays. — Burden of Proof. If an injured vessel is shown to hare been in stays at the time of the collision, the burden of proof is upon the colliding vessel to show that she was not in fault. 'The master of a vessel approaching another while in stays, has no right to speculate upon the chances of her coming completely about, getting under headway and avoiding him. This was a libel for a collision in the straits of Mackinac, between the schooner Charles WaU, of 691 tons, and the Charlotte Raab, a small three-masted schooner. The collision occurred about ten o'clock in the evening. The night was dark and somewhat cloudy, but not foggy, and the outlines of either vessel could be seen from the other at some distance. Eor an hour before the collision, both vessels had been sailing upon a course northeast by north, close-hauled upon the starboard tack, the Kaab being about three points upon the weather quar- ter of the "Wall, and about half a mile distant from her. The wind was due east, and the speed of both vessels was from 5 to 6 miles per hour. "While sailing in this manner, the watch of the "Wall dis- covered ice, as they supposed, on their lee bow, and immediately put their ship in stays to come about upon the port tack. "While coming about they exhibited a torch to the Eaab, and -as she came near, shouted to her to keep out of the way. She came on, however, without changing her course, and a collision ensued by which the jibboom and head gear of the "Wall were carried away, as well as the foremast and mainmast of the Eaab. On the part of the "Wall, it was alleged that the collision occurred while she was in stays, helpless and nearly motionless, while the cross-libel of the Eaab charged that the "Wall was 454 DISTRICT court; The Charlotte Raab. under headway on the port tack, and that her duty to keep out of the way of the Eaab, under the 12th Article, had become operatiTe. Mr. M. B. Brown, for the Charles "Wall. Mr. W. A. Moore, for the Charlotte Eaab. LONGTEAE, J. In the case of The Sea Nymph (Lush.. 23), Dr. Lushington laid down the following rule : " A vessel proceeding in k cause of collision, and alleging herself to have been in stays at the time of the collision, and therefore help- less, is bound to prove in the first instance that such was the fact. The burden of proof then shifts, and the other side must then show that the collision was occasioned by the vessel proceeding being improperly put in stays, or was an inevitable^ accident." It is undisputed that the "Wall did go into stays and came about, and that the Eaab did not avoid her. But it is con- tended : 1. That the WaU was improperly put in stays, and 2, that she had in fact filled away, and was actually imder way on the port tack before the collision, and that it had therefore be- come her duty, under Article 12, to keep out of the way of the Eaab. First. There is no allegation of fault in the- answer or cross-libel upon which to base the first-named defense. But even if there were, it is not sustained by the proofs. The course of the WaU, while on the starboard tack, was toward a shoal, and while it is clear that in the absence of any other cause for coming about, she had not run out her tack, it is rendered reasonably certain by the proofs that there was a field of ice iu such proximity to that course, if continued, as to justify the master of the WaU in his apprehensions of danger, and in ar- riving at and acting upon his determination to come about when he did. Neither were the proximity and relative posi- tion of the Eaab such as to render it improper for the Wall to come in stays, the Eaab, by all the testimony, with a single EASTERN DISTRICT OF MICHIGAN. 455 The Charlotte Eaab. exception, being at least half a mile behind, and from two to three points to the windward of the "Wall, affording her ample space, time and means of avoiding the Wall, either by keeping away or coming about herself . Second. That the "Wall had some headway at the time of the collision I think is reasonably certain from the character of the injury inflicted upon the Kaab. But whether it was the result of her sails having filled on the port tack, or whether of her not having entirely lost her headway in stays, is not so easy to determine, the proofs being somewhat complicated. But I do not consider it necessary to a decision to determine that point, because, even if it be true that her sails had taken the wind on the port tack before the collision (as to which, to say the least, there is very grave doubt), it was so short a time before, and the Wall had gained so little headway on that account, that it was impossible for her by that means to have avoided the Kaab, on account of the nearness to which the latter had then approached, and therefore the WaU had not come within the operation of Article 12 when the collision occurred. I regard it of no consequence whether the Wall did or did not exhibit a light just before or at the time of coming in stays, because it is clear to my mind, from the proofs on the part of the Kaab, that the Wall's coming in stays was reported to the master of the Kaab, and that the latter fuUy compre- hended the situation in ample time to have avoided the WaU. The master of the Kaab chose to take the risk of the Wall get- ting around on the port tack in time to keep out of his way. The result shows he was mistaken. It is not a sufficient an- swer to this that the WaU was longer in coming about than vessels of her size usually take, as attempted to be shown by the experts, because her slowness does not appear to have been the result of her not being in ordinary trim or of want of good seamanship on the part of those in charge of her navigation. On the contrary, it does appear that she was in ordiaary trim, and that her slowness was the result rather of her not being ordinarily handy or quick in coming about, which we have 456 DISTBICT COURT. The Coleman and Foster. high authority for holding cannot be attributed as a fault {The Argo, Swabey, 462; 1 Pars. Ship, and Adm. 575). In 'any view of the case, I am satisfied that the master of the Eaab was not justified in taking the risk he did. It results that, under the rule laid down by Dr. Lushington, in the Sea Nymph, just quoted, in which I full concur, the Kaab must be held wholly in fault (see also The PrisdUa, L. K. 3 Adm. & Eccl. 125; The Nellie D. 5 Blatch. 245; Lowndes on Collisions, 61). DeGreefor the Cha/rles Wall. Note. — The case of the Priscilla, here cited, was affirmed by the Privy Council (1 Asp. Mar. Law Cas .468, note ; see also The Palatine, same page). THE COLEMAN AND EOSTEK. SEPTEMBEE, 181S. Collision. — Insufficient Equipment. — ^Respective Liabilitt of Tug and Tow. — Pleading. A tug, whose chief officer also acts as wheelsman, is Insufficiently manned, and every doubt as to her being in fault wUl be resolved against her. The fact that she is fully manned, according to the custom of tugs plying on those waters, is no excuse. In case of uncertainty or irreconcilable conffict of testimony between a tug and her tow, as to their respective manoeuvres, the fact that the tug is inaufBciently manned will be regarded as a fault contributing to the collision. Where the persons in charge of a tug and tow jointly participate in their con- trol and management, the tug and tow are jointly liable for an injury done to a third vessel. Objections to a libel for want of specific allegations of fault should be taken by exceptions, and if taken at the hearing, an amendment wUl be permitted. An omission to state in the libel a material fact, peculiarly within the knowledge of the opposite party, as that one of the colliding vessels was improperly manned, will not be allowed to work an injury to the libellant, if the Court can see there was no design on his part in omitting to state it. EASTERN DISTEICT OF MICHIGAN. 45Y The Coleman and Foster. This was a libel in rem, promoted by Michael B. Kean, owner of the schooner Ayr, for collision. On the 11th day of May, 1872, the schooner Ayr lay aground and helpless on the easterly channel bant of the dredged channel at the mouth of the Saginaw river. On the same day, while the Ayr so lay aground, and in the day time, the tug Coleman came down the same channel, with the schooner Foster in a tow by a linie or lines astern. Although the channel is narrow, yet there was sufficient room for the tug and tow to have passed the Ayr in safety. The Foster, how- ever, when a little above where the Ayr lay, came near grounding on the opposite or westerly channel bank, and in the effort to keep her off, she was made to run into and collide with the Ayr, doing her considerable damage. The contest was mainly between the tug and the tow as to which should pay the damages done to the Ayr, there being no serious dispute as to the right of the Ayr to recover against the one or the other. On the part of the Foster it was insisted that she was with- out fault, and that the collision was caused wholly by the mis- management and fault of the tag, and the following were insisted on : 1. That the threatened grounding of the Foster was caused by the tug towing her imnecessarily near the channel bank. 2. That in attempting to keep the Foster off the bank, the tug swung out into and across the channel further than was necessary, involving, as it did, the ultimate necessity of coming completely about and taking the Foster about with her, in at- tempting to do which the Foster was made inevitably to run into and collide with the Ayr as she did. 3. That the tug was not properly officered and manned. On the contrary, it was insisted on the part of the tug that she was without fault, and that the collision was caused solely on account of the following faults on the part of the Folter: 458 DISTRICT COURT. The Coleman and Foster. 1. That her threatened grounding was catifled by her sheer- ing and not following in the wake of the tug. 2. That she was unseaworthy, in that her steering gear was out of order. 3. That she did not follow the tug in the attempt of the latter to keep o£E the channel bank. Mr. H. B. Brown, for the libellant. Mr. TT. A. Moore, for the Foster. Messrs. F. E. Canfield and G. V. iT. Lothrop, for the tug Coleman. LONGYEAR, J. A large number of witnesses were ex- amined, and a great amount of testimony taken on the part of each, the tug and the tow ; and I believe it is safe to assert that, aside from the fact of the collision, there is but one other fact material to the controversy, as to which the testimony is not in the most direct and irreconcilable conflict. That one fact is, as to the manner in which the tug was officered and manned ; and as that fact is, ia my opinion, decisive of the case, I shall not make the attempt to find where the truth hes as to the other points in the case. I abandon such attempt all the more willingly, because I am satisfied it could only end in failure, or result at best in great doubt and uncertainty. The persons in charge of both the Coleman and the Foster knew the Ayr was aground, and were f uUy cognizant of the difficulties to be encountered, and ought to, if they did not, have fully comprehended the care and skill necessary, the one to tow and the other to be towed, in safety to themselves and the Ayr. The master of the tug remained on shore, and the ' towing was undertaken with the mate in command. This alone would not, however, necessarily constitute a fault. But the tug was without a wheelsman, the mate attempting to dis- charge that duty, beside that of master for the time being.' In the case of The Victor, recently decided, this Court EASTERN DISTRICT OF MICHIGAN. 4-5& The Coleman and Foster. held this to be a fault, and used the following language : " The responsible character of the occupation of tugs requires that there should be some competent person in charge of their navigation, separate and distinct from the wheelsman, and who has no other duties when the tug is in actual service." I have seen no occasion since to doubt the correctness of that decision. On the contrary, since making it, my attention has been called to three decisions of this Court, namely, The Zouave {cmte, p. 110) ; The ArmsProng {ante, p. 130), and The John Fretter, holding the same doctrine — ^the first two by my pre- decessor, and the last one by Associate Justice Swayne. In the last-named case Judge Swayne made use of the following strong language, which I can adopt in its full force. He said : " It is impossible, in the nature of things, that the cap- tain or mate can perform properly his other duties and also that of lookout, and they ought not to attempt it." The same is certainly true, with equal if not greater force, in regard to wheelsman. In the same case he further says, " that in such a case every doubt is to be resolved against the vessel committing such a fault." . As we have already remarked, the grossly conflictiag and contradictory character of the testimony leaves it in great doubt and uncertainty as to what particular manoeuvres of the two vessels, or of either, and which one was the immediate cause of the collision, in consequence of the unseaworthy con- dition of the tug in respect to her equipment of officers and men at the time. The doubt must be resolved against her, unless the answers contended for on the ^argument are suffi- cient to defeat a recovery against her on that account. Before noticing their answers, however, I will consider the case on the part of the Foster. In St/urgis v. Boyer et al. (24 How. 110, 121, 122), the Supreme Court made use of the following language, the case being in some of its aspects very much like the one now un- der consideration : " Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision ; as when those in charge of the respective vessels 460 DISTRICT COURT. The Coleman and Foster. jointly participate ia their control and management, and the master or crew of both vessela are either deficient in sMll', omit to take due care, or are guilty of negligence in their navi- gation. Other cases may well be imagined where the tow alone would be responsible ; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessel from one point to another, and both ves- sels are exclusively under the control, direction and manage- ment of the master and crew of the tow. * * * jgut whenever ^e tug, under the charge of her own master and <;rew, and in the usual and ordinary course of such an employ- ment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one joint to another, over waters where such accessory power is necessarily or usually employed, she must he held responsible for the proper navigation of both vessels. * * * Assum- ing that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unseaworthy con- dition, and the tow, imder the circumstances supposed, is no more responsible for the consequences of a collision than so much freight ; and it is not perceived that it can make any dif- ierence in that behalf, that a part, or even the whole officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and •equipped for the enterprise," etc. To apply these doctrines to the present case ; In the first place, those in charge of the respective vessels jointly participated in their control and management, or, in other words, each vessel was in the immediate charge and con- trol of her own officers and crew, and so, under the law as above laid down, this comes within the class of cases in which both the tow and the tug may be jointly liable. In the second place, the tug, as we have seen, was not properly manned for the enterprise, and so this case comes also within the class of cases in which the tow may be held in fault for employing a EASTERN DISTRICT OF MICHIGAN. 461 The Coleman and Foster. motiTe power whicli was in an imseaworthy condition. That the tow should be held in fault, especially in view of the great doubt and uncertainty before mentioned concerning her con- dition and her conduct, I think scarcely admits of doubt. It results that both the tow and tug must be held jointly liable for the consequences of the collision, unless the answers to the above positions set up on the argument, which will now be considered, are sufficient to defeat a recovery. The first objection to a recovery on the ground stated, viz : that the tug was not properly manned, is that there is no such specific fault charged or set up in the libel or other pleadirtgs.. It is true, the libel contains no specific allegations of fault against either vessel, the charge in that respect being in the most general terms imaginable, that the collision was caused " through the negligent and insufficient management of said tug, and schooner Foster." There are, however, two complete answers to the objection on this ground. . Firstly, no excep- tions having been taken to the libel, and the case having evi- dently been fully and fairly presented, so far as the matter in question is concerned, the Court would direct the libel to b& amended, if necessary to sustain a decree in favor of libellant. Secondly, in the case of The Syracuse (12 Wall. 16Y, 173), the Supreme Court, in deciding an objection precisely like this one, and where it was expressly held that the libel was defective for want of such specific allegation, laid down the following rule : " But in admiralty, an omission to state some facts which prove to be material, but which cannot have occasioned any surprise to the opposite party, wiU not be allowed to work any injury to the libellant, if the Court can see there was no design on his part in ofnitting to state them {The Quickstep, 9 "Wall. 670 ; The Clement, 2 Curtis, 366). There is no doc- trine of mere technical variance in the admiralty, and subject to the rule above stated, it is the duty of the Court to extract the real case from the whole record, and decide accordingly." As in that case, so in this, it is very clear that the libellant had no design in view in omitting to charge specifically as a fault, that the tug was not properly manned ; and it is equally clear 462 DISTEICT COURT. The Young America. that the proof on that subject, coming, as it did, from the op- posite parties, could not have operated to confuse them. The remaining objection to a recovery is that, as appears by the proofs, the tug was fully manned according to the custom in this respect of tugs plying on those waters. The rule re- quiring that tugs, while in active service, should have a wheels- man separate from the officer in charge of her navigation, and that such officer have no other duties to perform, is a salutary one for the protection of life and property and inseparable from the very nature of the service, and no reckless and un- sanstioned usage to the contrary can be allowed to do it away or modify it. If such a custom, as is contended, prevails at the mouth of Saginaw river, the sooner it is abandoned the better for the interests of commerce, as well as of tug owners them- selves. Decree for lihellant. THE YOUNG AMEKICA. •JANUARY, 1874. Pleadings. — Amendment. — Joinder of Actions in Rem and in Personam. It is not competent to amend a joint libel against three ressels, by substituting the name of the owner of one vessel for the vessel, so as to change it from a libel in rem to one in personam. A libel in rem cannot be changed into a libel in personam against the owner. A joint action for collision cannot be maintained in rem agunst one vessel, and in personam against the owner of another. Libel for collision, by Frederick H. Blood, against the tug Young America, the schooner Home, and Francis K. P. Oot- trell, owner of the scow Wilcox. EASTERN DISTRICT OF MICHIGAN. 463 The Young America. i ^ Case came up on motion by the respondent Cottrell to dis- miss the citation as to him, and to vacate the order allowing an amendment to the original libel upon which the citation was issued. The original libel was filed against the tug, schooner and scow, in rem, for an alleged joint liability for damages on ac- count of a collision. The tug and schooner were arrested and bonded. The scow was not arrested, on account of her being and remaining out of the jurisdiction, and no appearance was entered or bond given on her account. In this state of the case, the libellant presented his petition, setting forth the foregoing facts, and alleging that the respond- ent Cottrell was owner of the scow at the time of the collision, and praying " that the said libel may be amended, and so far as concerns the said scqw may be turned into a libel m per- sonam, and that your said libellant may be permitted to pro- ceed against the said Cottrell, as owner of said scow, instead of proceeding against the said scow herself, and that the said Cottrell may be cited," etc. The Court at the time expressed serious doubts as to the regularity of such a proceeding, but finally, without a critical examination of the subject, made an order in accordance with the prayer of the petition. A citation having been issued and served on Cottrell, he now moves to dismiss the same, and to vacate the order amending the libel, and allowing the citation to issue. Mr. JF. H. Canfield, for the motion. The amendment changes the form of action from one in rem to one in personam. The Court has no power to allow such an amendment {The 8. C. Ives, 1 ]S"ewberry, 214 ; see, also. The North Carolina, 15 Pet. 40 ; The John Jay, 3 Blatch. 67 ; The Bichard Doane, 2 Ben. 111). The amendment is open to the further objection, that it Tvorks a complete change of parties, and is in fact the institu- tion of a new suit. 464 DISTRICT COURT. The Young America. At common law, the rule is well settled that the Comi has' no power to amend, by adding new parties, or by changing the form of action ( Wmslow v. Merrill, 11 Me. 12Y ; Atkinson V. Clapp, 1 "Wend. 73 ; Wimm. v. Amrill, 24 Yt. 283 ; Emer- son V. Wilson, 11 Vt. 357; Bmnman v. Stawell, 21 Vt. 309; State V. CooJc, 32 N. J. 347). No case can be found sanctioning the practice attempted here, and thie absence of authority is an argument against its adoption. Mr. H. B. Brown, contra. Anj amendment is allowable in admiralty which does not change the cause of action. Improper parties may be stricken out {JVewell v. JVorton, 3 Wall. 257, 263). New ones may be added {The Comman- der in Chief, 1 Wall. 49). A libel may be turned into an in- formation ( IT. S. V. Four Pieces Cloth, 1 Paine, 435 ; see^ also, Dunlap's Adm'ty Prac. 87, 129, 213 ; 2 Pars, on Ship. 429, 431). An amendment was refused in the S. C. Ives (Newb.), because an entire change in the nature and character of the action was proposed (See, also, 2 Conk. Adm. 258, 415 ; The Harmony, 1 Gall. 123 ; Davis y. LesUe, Abb. Adm. K. 123 ; Nevitt v. Clarke, Olcott, 316 ; The Richard Doa/ne, 2 Ben. Ill; The City of Paris, 1 Ben. 529; The Henry EwbamJc, 1 Sum. 400). It is settled that a Court of Admiralty is governed by the same rules of practice as a Court of Equity. In equity the name of a plaintiff may be changed (1 Dan. Chan'y Prac. 402, 404 ; Jennings v. Springs, 1 Bailey's Eq. 181). The amendment is in furtherance of justice, as it is more equitable that the owner should pay, than an innocent purchaser of the vessel. We might discontinue against the Wilcox, and file an original libel against her owner, setting forth that his vessel was in fault, and the Court would order the causes to be tried together. What may be done indirectly may be done directly. EASTERN DISTRICT OF MICHIGAN. 465 The Young America. LONGrYEAE, J. The question presented involves two considerations : 1. As a libel against the scow alone, coidd the Court allow it to be changed by amendment from a libel m rem against the vessel to a Ubel m personam against the owner ? 2. In case of a joint liability of two or more vessels for a collision, can a joint action be maintained wv rem against one or more of the vessels, and im personam, against the owners of the others? Fvrst. Touching the first question, the counsel on either side have not referred the Court to any reported or unreported decision in point ; and after a pretty thorough investigation I am satisfied that none exists. This would seem to indicate that the matter is so well understood at the bar that the ques- tion has never been raised, or if it has, that it has not been considered by the courts of sufiBcent importance to demand the promulgation of an opinion. But upon which side of the question does this seeming acquiescence of court and bar bear ? This question must be answered, if at all, by ascertaining what the courts have de- cided in cases involving principles lying at the foundation of the question under consideration. In several instances in England and in this coimtry the questions has arisen in collision cases, as to the right to in- ' graft upon or blend with an action i/n rem a proceeding m per- sonam for the recovery of a deficiency against the owner, where the proceeds of the vessel were not sufficient to meet the damages pronounced for ; and also whether an action in rem against the vessel, and an action in personam against the owner, could be joined in the same libel. In the United States, however, the latter question was settled by a rule of the Supifeme Court in 1845^ (Admiralty Eule 15). Since that time the decisions in'^this country have aU turned upon the construction of the rule, and therefore throw but little light upon the question, and will not be noticed. The first case in England which has come to the notice of the court was The Triune, in 1834 (3 Hagg. 114). In this case Sir J. Mcholl granted a monition to the owner, who had 30 466 . DISTRICT COURT. The Young America. intervened and bonded the vessel, to pay a deficiency, failing to do which he was imprisoned upon an attachment. "When the motion was made, Sir J. Nicholl put this pertinent inter- rogatory to counsel : " Is there an instance of a warrant of arrest under circumstances such as are in this case, against the master and part owner ? " The interrogatory does not appear to have been answered, but at a subsequent date he allowed the process to issue. The matter does not appear to have been discussed or very much considered, and altogether the report of the case is quite unsatisfactory. The question next arose in England in 1840, in the case of Th0 Hope (1 W. Eob. 155). In this case Dr. Lushington de- cided directly the contrary to Sir J. Nicholl in The Triime, and held that it was not competent for the court to ingraft upon a proceeding in rem a personal action against the owner to make good the excess of damage beyond the proceeds of the ship. His attention had not at that time been called to the decision of Sir J. I^ichoU in The Tri/u/ne. Subsequently, how- ever, in the case of The Volant, in 1842 (1 W. Eob. 383), where the same question was again presented, his attention was called to Sir J. NichoU's decision. Dr. Lushington then went over the subject quite fully, and finally disagreed entirely with Sir J. NichoU, and fully adhered to his former opinion in the case of The Hope; and such appears to have been the settled doctrine in England ever since. In The Citizens' Bank y. The Nantucket Steamhoat Com- jparvy, in 1841 (2 Story, 16, 57, 58), Judge Story held that in collision cases it was not competent to proceed in the same suit m rem against the vessel and in personam against the owner. And this appears to be the only reported case in which any question of this kind arose in the courts of the United States before the promulgation of Eule 15. But we are not concerned here so much with the particular points decided in those cases as we are with the reasons upon which the decisions were founded. In the case of The Hope (1 "W. Eob. 155) Dr. Lushington held substantially that, look- ing to the general principles upon which the proceedings in EASTERN DISTRICT OF MICHIGAN-. 46Y The Young America. admiralty are conducted, it was wholly incompetent to ingraft a proceeding in personam against the owner npon a proceed- ing m rem against the vessel for the recovery of a deficiency. Applying that declaration to the present question, it may be remarked that, if in view of those general principles, it is wholly incompetent for the recovery of a part of the damages only, that is, the excess of damages over value of vessel, for a still stronger reason it is incompetent to change the whole proceeding from one m rem to one in personam, in which, the owner may be made liable for the whole damages without regard to the value of the vessel against which the Hbel was. filed. In the case of The Volant {1 W.Eob. 383), Dr. Lushingtoii. says : " The jurisdiction of this Court does not depend upon, the existence of the ship, but upon the origin of the question, to be decided, and the locality. Looking to a proceeding by the arrest of the vessel, it is clear that, if no appearance isi given to the warrant arresting' the ship, there can be no pro- ceedings against the owners, for the Court cannot know who the owners are; the Court cannot exercise any power over persons not before the Court and never personally cited to ap- pear." That is to say, in a proceeding m rem, for a collision, in which the owners are never personally cited to appear, there is no process or proceeding by which the Court can obtain jurisdiction of the owners, or know who they are, even in cases where the vessel has been arrested, other than by their voluntary appearance. This doctrine commends itself to my judgment, and, applied to the present case, it seems to me un- answerable. How can it be said that, in a case like the present, where the vessel has not been arrested even, and there has been no appearance, the Court can change the proceeding m rem against the vessel to a proceeding in personam against the owner, of whom the Court has acquired and can acquire no jurisdiction, and whom the Court does not and cannot know, by virtue of any process or proceeding incident to the pro- ceedings m rem f . The allowance of the amendment making ''4'B"8 DISTRICT COURT. The Young America. ■ the change, on the petition of the libellant, necessarily involved • a determination by the Court of the fact as to who was the 'owner, thus giving judgment beforehand, in an ex parte pro- ^ceeding, and in a proceeding m rem, as to an essential and traversable fact in actions in personam in like cases — ^a thing no Court ever does wittingly, and which, having done, through inadvertence or for want of due consideration, will be at once undone on attention being called to it. In The Citizens^ Bank v. The NanPackei Steamboat Otrm- pany (2 Story, 58), Judge Story says : " In cases of col- lision the injured party may proceed in rem, or m personam, or successively in each way, until he has full satisfaction. But," he says, " I do not understand how the proceedings can be blended in the Hbel." And in another place, in the same opinion, he says ; "In the course of the argument it was in- timated that in libels of this sort the proceedings might be properly instituted both in rem against the steamboat, and in personam, against the owners and master thereof. I ventured at the time to say that I knew of no principle or authority, in the general jurisprudence of Courts of Admiralty, which would justify such a joinder of proceedings, so very different in their nature and character and decretal eflEect. On the con- trary, in this Court, every practice of this sort has been con- stantly discountenanced as irregular and improper." It wiU be observed that the ground upon which the objec- tion to joining the two proceedings in one libel was sustained by Judge Story was that the two are so very different in their nature and character and decretal effect. The same objection, as it seems to the Court, appKes with increased force to chang- ing the one proceeding into the other by way of amendment. And besides that, there is what seems to the Court the further unanswerable objection that such change involves an entire change of the party proceeded against. It is, in fact, the in- stitution of a new suit by way of amendment, a proceeding never tolerated, I believe, in this or any Court. Second. The foregoing considerations, I think, are equally conclusive against joining in one suit proceedings in rem EASTERN DISTRICT OF MICHIGAH". 460 The ■Watchful. against the two vessels and in personam against the owner of the other. The original libel was brought against the three vessels, upon the theory, of course, that they were guilty of a joint tort. .The action was joint as to the three. "With the amend- ment, the action remains joint as to the two vessels which were arrested, but has necessarily become several as to the owner of the third, because, -as an action mj- personam, it in- volves other and additional proof, and a different decree. The amendment has, therefore, wrought a palpable misjoinder of actions. But in the view taken as to the first point, it is unnecessary to elaborate this one further for present purposes. It results that the amendment was irregular, and therefore that the order allowing the same must be vacated, the amended libel taken from the files, and the citation be dismissed, with costs of the motion against the HbeUant. Motion granted. THE WATCHFUL. FEBRUARY, 18'74. General A vee age. — Contribution for Loss of Deck Load. Where by the bill of lading it is agreed that a portion of the cargo shall be car- ried on deck, the vessel must contribute for the loss of tie deck load by jettison. On exceptions to the libel of the Frankfort Iron Company for general average. October 23d, 1871, libeUant shipped on board the schooner Watchful, at Frankfort, Michigan, 160 tons of iron ore for 4Y0 DISTRICT COURT. The 'Watchful. Detroit. By the bill of lading it was provided that twenty-five "tons of the ore should be carried on the deck. The schooner proceeded on her voyage with twenty-five tons of ore stowed on deck accordingly, and when on Lake Huron, o£E Saginaw Bay, she encountered a storm, on account of which she was obliged to throw the deck load overboard for the safety of the vessel, and the same was whoUy lost. The schooner arrived at Detroit in safety, and the balance of the ore was delivered to the consignee and the freight paid. There is no question but that the jettison was necessary, nor but that the loss of the ore, xmder the circumstances, would constitute a claim for general average, but for the fact that it was stowed on deck. Mr. John Atkinson, for the exceptions. The libel seeks to hold the vessel on two grounds: First, that by the custom of her trade ; and, second, by ex- press agreement in the biU of lading, it was provided that the iron jettisoned should be carried on deck. Where an agreement is express and unambiguous, custom cannot be shown. The object of usage is to interpret the lan- guage of contracts, in the absence of express stipulations, or when the meaning is equivocal and obscure (1 Greenl. Ev. § 292 ; 2 Bouvier's Law Die. 615 ; The Reeside, 2 Sum. 567 ; see also, Taylor v. Briggs, 2 0. & P. 525 ; Smith v. Wilson, 3 B. & Ad. Y28 ; Hone v. Mut. Safety Ins. Co. 1 Sand. [S. C] 137 ; Ware v. Hayward Rubber Co. 3 AUen, 84 ; Symonds v. Lloyd, 6 C. B. [N. S.] 691 ; Winn v. Chamberlain, 32 Vt. 318 ; Ray V. The Milwauhee Belle, 3 Am. Law Times, 65 ; Sayward v. Stevens, 3 Gray, 103). If these cases are law, the libeUant is remitted to its contract alone for relief. Under the English law, until the case of Goidd v. Oliver (4 Bing. N. 0. 134) arose, it was a weU recognized rule that no contribution could be had for goods carried on deck by the owner's consent (Lowndes on Gen. Av. 45 ; 1 Pars. Mar. Law, 185, 307). The case of- Lawrence v. Minturn (17 How. 100) ias no bearing upon the question in this case. Smith v. Wright EASTERN DISTKICT OF MICHIGAN. 471 The Watchful. {1 Caines, 43) is directly in point (see also Dorsey v. Smith, 4 La. 211 ; Hmnpton v. Brig Thaddeus, 4 Mart. La. 582 ; Cram V. Aiken, 13 Me. 229 ; Sproat v. Donnell, 26 Me. 185). Bay T. The Mihjoaukee Belle (3 Am. Law Times E. 65), is decisive of the case at bar. In this case the contract was ex- 3)ress, but no custom was proved. The doctrine upon which these cases rest seems to be that where the shipper consents to have his goods laden on deck, it is, of course, at reduced freights, in return for which he runs the risk of having his goods jettisoned without compensation (3 Kent's Com. 240 ; Lenox v. United Ins. Co. 3 Johns. Cas. 178 ; Dodge v. Ba/rtol, 5 Greenl. 286). In the English cases, beside the custom to carry on deck, another custom was shown that such goods were carried at the risk of the owner, and upon this evidence the more recent cases seem to have turned {Oould v. Oli/ver, 2 M. & G. 208 ; Lowndes' Gen. Av. 42 ; Miller v. Titheri/ngton, 6 H. & N. .278 ; Johnson v. Chapman, 19 C. B. [N". S.] 563 ; Cory v. Roh- Q/nson, Miller v. Chappie, cited in Lowndes, p. 42). Mr. JS. B. Brown, contra. The jettison of a deck load has been held to give no claim to contribution solely because of the ancient rule of the mari- time law that goods shall not be carried on deck (2 Pars. Mar, Ins. 218 ; Mar. Ord. of France, tit. 8, sec. 13. Wherever, by contract or custom, goods are carried on deck, the vessel must contribute for their loss. Cessante rati- one cessat ipsa lexi (2 Pars. Mar. Ins. 219, 221, 223, 224; Gould V. Oliver, 4 Bing. IST. 0. 134 ; Brown v. Corrmell, 1 Eoot, 60; Toledo Ins. Co. v. Speares, 16 Ind. 52; Milward\. Eibbert, 3 Q. B. 120 ; Dixon on Gen. Av. 32 ; Dixon on Ins. & Av. 87). The decision in Smith v. Wright (1 Caines, 43) was placed upon the ground that there was a usage proven against the allowance of such average. If goods are stowed on deck with- out the consent of the shipper, and are lost, the vessel is liable 472 DISTRICT COUET. The Watchful. for their full value {The Waldo, Daveis, 161 ; see 1 Pars, on Ship. 352). It is conceded that where goods are carried on deck under a contract between the master and shipper, this would not ren- der the innocent owners of goods stowed in the hold liable tO' contribute for their loss unless a custom to carry on deck was proved, of which the owners of goods in the hold might be presumed to be cognizant. Some of the eases apparently against have taken this distinction. In Rogers v. Mechanics^ Insurance Co. (1 Story, 603), Judge Story held that blubber stowed on deck was not covered by insurance, but was to be contributed for. In the case of Lawrence v. Minturn (lY How. 100) the Supreme Court expressly disclaims any inten- tion of passing upon the right of contribution (p. 115). The case of Johnson v. Chapman (19 C. B. [N. S.] 563), is decisive of the point at issue (see, also. The Delaware, 14 Wall. 579, 598, 604 ; Harris v. Moody, 4 Bos. 210 ; s. c. 30 I^. Y. 266). The English and continental law is fully discussed iu Lowndes on Gen, Av. 40-50, xxviii. Where by the custom of France smaU craft engaged in the coasting trade {petit cabo- tage) carry goods upon deck, they are contributed for in case of loss (Valin, Droit de la Marine, Lib. 2, tit. 1, art. 12 ; Caumont Dictionnaire de Droit Maritime, 405, T28). LONGYEAR, J. It is an ancient and general rule that no portion of the cargo is allowed to be carried on deck, for the reason that it renders the ship more unmanageable in a storm, and involves a liability to be jettisoned, which would not exist if stowed under deck. By that rule, carrying cargo on deck is a fault on account of which, in case of loss by jettison,, the vessel is liable, not for contribution or general average, but for the entire loss (1 Pars. Sh. and Adm. 352, and cases there cited). There are, however, exceptions to the nile, and it has been held not to apply, 1. Where, in a particular trade, or un- der certain circumstances, it is the custom to carry goods on deck. 2. When so carried by consent of the shipper., 3. In EASTERN DISTRICT OF MICHIGAN. 473 The Watchful. the case of steam vessels (1 Pars. Sh. & Adm. 352 to 359, and notes). In all these cases, it is said, the vessel is not liable for the entire loss, hecause the carrying of the goods on deck can- not be attributed as a fault, but if liable at all, it is for contri- bution, or general average merely. As to liability to contribution under the case first stated — that of carrying goods on deck according to usage — ^there has been much controversy in the Courts and considerable contra- riety of decision. I shall, however, pass this by for the pres- ent, for the reason that the case falls clearly within the second ease stated, the ore having been carried on deck by the express consent and agreement of the master of the schooner and the libellant. As The Watchful was a saiKng vessel, we have nothing to do with the third case stated. Being carried on deck was undoubtedly the cause of the necessity for the jettison; at least such is the presumption; and being so carried was no less a fault because by consent, as to all persons interested not parties or privies to the agree- ment. The vessel, and her owner and master, must however be held to be bound by the agreement, and as between them and the shipper the fault must be held to have been waived. As to them, therefore, the fact of the ore being carried on deck instead of under deck, must be held to be out of the question. Any other rule would make the shipper run the entire risk in a matter in regard to which the benefits are mut- ual, which would be unjust. The shipper, by his consent, waives all claim to entire compensation in case of the jettison of the goods. The master, by taking the goods on board as freight, assumes for the vessel all the ordinary relations be- tween ship and cargo, among which is the liability to contribu- tion in case of loss by jettison. The only variation from the general rule wrought by the agreement of the shipper, that the goods may be carried on deck, is that, in case of loss by jettison, the vessel shall not be liable for the entire loss, a variation wholly in favor of the owners. Mr. Parsons, in his work on Shipping and Admiralty, vol. 1, p. 35Y, says : " The ' owner of the ship of course knew that 474 DISTRICT COURT. The "Watchful. the goods were carried on deck, for we should say, on this point, that the knowledge of his master was his knowledge " {citing The Paragon "Ware, 335, and The Rebecca, Ware, 194); "and," he adds, "if it was not right to carry them there, the ship was as much in fault as the shipper, and we know not why the ship should not contribute for their loss, if saved by their jettison." And Mr. Lowndes, in his work on General Average, p. 43, in laying down and remarkiag upon the rule as established in England in the leading case of OovM V. Oliver (4 Bing. N. 0. 134, and 2 Mann. & G. 208), says.: ■" Whenever, as very generally was the case, a provision for the carrying of a deck load is inserted in the charter party, the jettison of such deck load is replaced by a contribution between the shipowner and the owner of the deck load. This contribu- tion is adjusted precisely in the same manner as a general aver- age would be, but is called by a difEerent name. It is called a * general contribution.' Payment of ' general contribution ' is enforced from no one who has not by express contract made himseK a party to the stowage on deck. * * * The prin- ciple of these adjustments is that, as between assenting parties to such stowage, the deck must be taken to be a proper place for parrying cargo, and what is thrown from thence is to be treated as if it had been below deck ; but as regards all parties who have not assented, the old rule remains in force, and for Ihem there is no general average for deck-load jettison." These views are peculiarly applicable to the present case, and they have my full concurrence. In Lawrence v. Mintum {11 How. 100), the Supreme Court (p. 114) cite approvingly the following from the opinion of the Court in Gould v. Oliver, supra : " ITow, when the loading on deck has taken place with the consent of the merchant, it is obvious that no remedy against the shipowner or master, for a wrongful loading of the goods on deck, can exist. The foreign authorities are, indeed, express on that point ; and the general rule of the English law, that no one can maintain an action for a wrong, where he has consented or contributed to the act which occa- sions the loss, leads to the same conclusion." But at page 115 EASTERN DISTRICT OF MICHIGAN. 475 The Watchful. the Court say : " His right to contribution is not involved in this case ; " thus recognizing a distinction between the ship- per's right to compensation for the entire loss, and his right to contribution in case of jettison of goods carried on deck by his consent, and that the determination of the former does not necessarily determine the latter under the same state of facts. And well may it be so, for, as before remarked, while it would be clearly unjust that the ship should bear the entire loss, where it occurs by the mutual fault of shipper and master, it would be equally unjust that the shipper should bear the entire loss under the same circumstances, the risk having been for the mutual benefit of both. In the one case no recovery can be had, because it must be based upon a mutual wrong. In the other it can be had because it is based upon a mutual risk for a mutual benefit. In the former the action is for a tort, and in its nature ex delicto. In the latter it is based upon the con- tract of affreightment, and is in its nature ex contractu {Diir 2>ont de Nemours v. Vance, 19 How. 168 ; Lowndes on Gen. Av. 43, 44; 2 Pars. Mar. Ins. 218, 224). In the case of The Milwaukee Belle (3 Am. L. T. Hep. 65), the facts of which were very much like those of the pres- ent case, decided in the District Court for "Wisconsin, in 18Y0, the learned judge seemed to have lost sight of the foregoing distinctions, and he dismissed the libel on the authority of La/wrence v. Mmturn {supra), giving for his principal reason, that the hbellants, by knowingly shipping the goods on deck, had thereby consented " that the vessel might thereby be ren- dered less manageable, and more liable to labor in a storm." But the master was equally consenting, and, the sacrifice being . for the salvation of the vessel, why should not that which was thus saved contribute to make up the loss thus made necessary by mutual consent ? Counsel on both sides in this case exhibited a commendable zeal in the preparation and argument of the question involved, and referred the Court to and remarked upon a large number of authorities, ancient and modem, and in whieh nearly every phase of the general question of a shipper's right to general 476 DISTRICT COURT. The Melissa. average, or contribution for loss by jettison of deck-load cargo, is discussed. The Court has derived much aid from their able and enlightened presentation of the question. It is to be' ob- served, however, that most of the authorities cited bear upon the light as based upon custom or locality, or both, and but very few of them upon the right as based upon express agreement, as in the present case. It would nevertheless have been a pleasure to trace those authorities down to the present time, and note how the Courts have become gradually more and more liberal in their views, and disposed to decide each case upon its own peculiar merits, rather than by any rigid, unbendiag rule. But it would have been extending this opinion to an unwar- rantable length, and was unnecessary to a decision of the pres- ent case. ExeeptimiS overruled. THE MELISSA. FEBRUARY, 1874. Wages. — Stalk Claim. — Pleading. — Infancy. — Costs. The defense of stale claim must be set up in the answer, and will not avail where the owner has retained a portion of the purchase money in his hands, and the suit is defended in the interest of the vendor. A minor may recover for his wages where the contract was made personally with him, and it does not appear that he has any parent, guardian, or master enti- tled to receive his earnings. Qiicere — Whether the defense of infancy can be made available otherwise than by a plea to the competency of libellant to sue in his own name ? Costs were awarded where the suit was defended in the interest of a former owner, though no demand had been made of the claimants. Libel for wages. The libel was filed October 6, 1873, and is based upon a due bill for $44 75, for services as seaman in the season of EASTEEN DISTRICT OF MICHIGAN. 477 The Melissa. 1871, bearing date June 3d of that year. The answer ignores the facts alleged as to the services rendered, and the giving of the due bill, and alleges the purchase of the scow in 1873 by the claimants ; that the scow was within the jurisdiction of the Court during the whole . time between the giving of the due bill and the claimant's purchase, and therefore, as to them, libellant's claim has become stale, and is no longer a lien upon the vessel. No other defense is set up in the answer. Mr. Jno. C. Donelly, for libellant. Mr. Z. S. TrovJbridge, for claimants. LONGYEAE, J. In order to maintain the defense of stale claim it is necessary to allege and prove that the respond- ents are purchasers in good faith, for a valuable consideration, and without notice of the existence of the claim. The answer contains none of these allegations. The defense set up might, therefore, be overruled without further remark. But as proofs were taken as though the defense had been sufficiently al- leged, the case will be considered briefly in view of what was proven. The proofs show that the claimants bought the vessel of one Brown, April 8, 1873, for $1,425, of which $600 was paid in cash, and the balance was secured by a mortgage on the vessel, to be paid in two years from that date. Brown to pay all claims then existing against the vessel; and that the claimants are defending this suit for and in the interest of Brown. There is no pretense that the claim of libellant was not good against the vessel in Brown's hands at the time of the sale by him to respondents; and, the suit being defended in fact by Brown, and the respondents having fuU protection by means of the balance of purchase money stiU unpaid, against any decree which may be made against the vessel, the defense eet up is wholly untenable under the proofs. The proofs were all taken by deposition, and certain objec- 4-78 DISTRICT COUET. The Meliaea. tions taken by respondents before the commissioner were in- sisted upon at the argument. The above facts, however, are all arrived at without resort to the testimony objected to, and for that reason the objections are not noticed. Libellant was examined as a witness, and on his cross-- examiaation it came out that when this suit was coromenced he was, and that he still is a minor ; that he was twenty years of age on the 18th day of November, 1873. He further tes- tified that his father had been dead ten or twelve years, but that his mother was still living. On this proof it was contended, upon the argument, that the libel must be dismissed, for the reasons : 1. That libellant's mother was entitled to his earnings, and was the only person who could sue therefor ; or, 2, that if libellant could bring the suit, he could do so only by next friend. I think the objection comes too late. 'No such defense is set up in the answer ; and I think it exceedingly doubtful, even if a legal defense, whether it could be made available otherwise than by a plea to the competency of the libellant to sue in his own name ( Wicks v. MUs, Abb. Adm. E. 444). Even if a proper foundation had been laid, however, I do not think the defense would have been good in this case. The contract was made with libellant in person, payments were made to him, and the due biU for balance due him upon which this suit is founded, was given to him, and a payment made to him upon it, and the matter had lain upward of two years be- fore the libel in this case was filed, and the mother nowhere appears as setting up any claim. Under these circumstances, I think she would be estopped from setting up a claim after the recovery against the vessel by libellant. There is no rule in the Admiralty Courts requiring minors to sue by next friend. Their right to sue in the admiralty for wages has been fully recognized ( Wicks v. Ellis, Abb. Adm. E. 444 ; The David Faust, 1 Ben. 183 ; The Mm, Ware, 476). The general rule seems to be this : That a minor may recover in the admiralty for wages, where the contract was made personally with him, and it does not appear that he has any parent, guardian, or master entitled to receive his earn- EASTERN DISTRICT OF MICHIGAN, 4:19 The Melissa. ings (2 Pars. Adm. 372, and note 3 ; Wicks v. Ellis and The David Faust, supra). And, in Wicks v. Ellis, on a motion by respondent to be discharged from arrest on the ground, among others, that the libellant was a minor, and no next friend had been appointed, &c.. Judge Betts held that it could not be demanded as a matter of right, that a minor, suing in the admiralty for wages, should sue by next friend ; and, also, that if his so doing in his own n^me, without the appointment of a next friend, was a legal defense in any case, the respondent must be put to his plea to the competency of the libellant. Minors suing in admiralty for wages become peculiarly the wards of the Court, and the Court wUl go to the utmost limit consistent with the interests and rights of respondents in pro- tecting and enforcing their rights {The Etna, "Ware, 476). In this case, the rights of the respondents can be in no man- ner jeopardized by a decree in favor of libellant, on account of any danger of having to pay the claim to the mother of the HbeUant, because, as has been abeady remarked, she must be held, in any suit she might bring for that purpose, by hav- ing permitted libellant to contract in his own name, to receive wages, and delayed so long to set up any claim on account of the balance here sued for, to have abandoned all claim thereto in her own right. There is no dispute that the amount due libellant is the amount of the due bill, and interest from its date, less $10 paid June 8, 1872 : Due bill dated June 3, 1873 $44 75 Interest to June 8, 1872 — 1 year 5 days 3 17 $47 92 Paid June 8, 1872 10 00 $37 92 Interest from June 8, 1872, to date, February 23, 1874 4 25 Balance due libellant $42 17 And for which he must have a decree. 480 DISTRICT COURT. The Ontario. It was claimed, on the argument, that costs ought not to be awarded against respondents, because no demand had been made of them before the libel was filed. But, as we have seen, the respondents are fully protected, and the suit is defended in the interest of the former owner, Brown. So far as the question of costs is concerned, the case must be treated as though Brown was the responsible party respondent, and as against him the Court has no hesitation in awarding costs. Decree for Vhellami. THE ONTAEIO. MARCH, 1874. Damages Proximate and Remote, — Loss or Iksurancb. The master of a barge,, having an order for a cargo of coal, was directed by the- shipper to go to an upper dock, take on 300 tons, and then to return to the shipper's own dock and receive the residue of the cargo. Having taken on the 300 tons at the upper dock, he immediately put to sea, without calling for the residue as agreed, without signing bills of lading, or reporting his de- parture, and the barge and cargo were lost by a peril of the sea. An under- standing between the consignee and shipper was shown, that the shipper should insure all cargoes shipped upon vessels of that class for the benefit of the consignee. Beld, that the owner of the barge was not liable for the loss of such insurance by reason of the neglect of the master to report his depart- ure, he having no knowledge of the understanding between the shipper and consignee. The failure to report in such case cannot be deemed the proximate cause of the loss of the insurance. Action in personam by Chas. E. Letts et al. against Eobert J. Hackett. The libel was based upon a contract of affreightment of a cargo or cargoes of coal to be transported in respondent's ves- EASTERN DISTRICT OF MICHIGAN. 481 The Ontario. sels from Cleveland to Detroit in November, 1872. A part of one cargo, 295 tons, was taken on board respondent's barge Ontario, and the weather being threatening and the closing of navigation imminent, the barge put to sea, and together with the cargo, was lost. The loss was clearly by a perU of the sea, and no damages are claimed on that account. The cargo was not insured, however, and it was claimed on the part of libel- lants that the failure to insure was owing to the neglect and misconduct of the master of the barge, and it was to recover •damages on this account the suit was brought. LibeUants were coal dealers in Detroit, and as such pur- chased coal in large quantities of the Pennsylvania Coal Com- pany, in Cleveland ; and they had a standing arrangement with the agent of the company there to insure for libellants aU car- goes of coal shipped to them in vessels of a certain class, and to which class the barge Ontario belonged. On application of the master of the barge to the agent of the coal company for a cargo for libellants, he was sent up the river to take on a part of a cargo at the " Mahoning chutes," so called, and was then to return to the company's docks near the mouth of the river, and complete his lading, which was to be 400 tons. After taking on about 295 tons at the Mahoning chutes, the barge came down for the purpose of completing her load, but could not lie at the company's dock for that pur- pose on account of the weather, and so laid up to a dock fur- ther up the river to await the abating of the storm. During the f ollowiag night, the storm having abated, the master of the barge was notified by the tug Torrent, upon which he de- pended to make the voyage, that if he went with her he must get ready and put to sea at once. Close of navigation by the setting in of winter being imminent, the master of the barge decided to go with the Torrent, that being, as he believed, his only chance to reach Detroit (his home port) that season, and he did so next morning. The barge so left without complet- ing her load, without a bill of lading, and without notifying the agent of the company ; and the agent testified that he had 31 482 DISTRICT COURT. The Ontario. no knowledge of her having left until he heard of the catas=- trophe by which she was lost ; and no insurance was effected. The question was, is the respondent liable for the loss on account of the failure to insure ? Mr. E. B. Brown, for libellants. Without reference .to his contract to call and take on the residue of the cargo, the master has no right to slip away from a port without giving the shipper notice of his departure (2 Pars, on Ship. p. 3). If he fails to give such notice, he is liable for any damage naturally resulting therefrom. If the shipper has thereby lost an opportunity to insure, i. e., has lost his insurance, the ship is responsible (HutoMngs v. Zadd, 16 Mich, 493 ; Bussell v. Livingston, 16 N. Y. 515 ; Hadley. V. Baxendale, 9 Exch. 341). It is enough to show that the cus- tom to insure is so general that the master must be presumed to know that the cargo might he i/nsured and also to show that it was the custom of the shippers in this case to insure. The evidence upon this point is full and conclusive. Mr. W. A. Moore, for respondent. The only question is whether the failure to obtain the bill of lading by the master before leaving Cleveland, so that the consignor would have knowledge that the barge was to leave, and therefore insure the coal, is such negligence on the part of Hackett as will make him liable for the loss of the coal. The agent of the coal company admits they did not get the invoice of the coal until after he heard of the loss of the barge. He admits he did not know the class of the barge, that he neither asked the captain nor consulted his register. Libellants make no charge of violation of duty on the part of respondent, which caused the loss of the coal. LONGTEAE, J. The alleged faults upon which this action is based are all summed up in the failure of the master EASTERN DISTRICT OF MICHIGAN. 483 The Ontario. of the barge to notify the agent of his leaving, so that he could at once have effected an insurance on the cargo, as it is claimed it was his duty to do. It was said it was the duty of the master to complete his lading. This is important only because, in that case, the agent would probably have known of his leaving, and the amount of cargo to be insured. It was also said that it was the duty of the master to sign a bill of lading before leaving; but this was important only for the same reason as the other. Let it be conceded, therefore, that the duties of the master of the barge were as claimed ; that he failed to discharge those duties without legal excuse ; and that, the failure to obtain insurance on the cargo was wholly owing- to such failure on the part of the master (as to which latter- proposition, however, I think there is doubt) ; and the impor- tant question which meets us at the threshold is, are the dam- ages sustained by Kbellants legally chargeable to respondent, under the allegations and proofs in the case ? "Whatever difficulty there may be, and it is often great, in. determining what damages arising out of breach of contract are sufficiently direct and immediate, and what are too remote to be allowed against a party so in default, the rule of law is well settled that the damages must, in all cases, be "such as must have been in the contemplation of the parties when the contract was entered into (Sedg. on Dam. 63 to Y6 ; 2 Greenl. Ev. § 256, and note 6 ; Fox v. Ewrding, 7 Gush. 516 ; Badley V. Baaiendale, 9 Exch. 341, 354 ; Rutohmgs v. Ladd, 16 Mich., 493, 505). The aiTangement between libellants and the agent of the coal company, in regard to insurance, was entirely separate- from and independent of the contract of affreightment ; and. there is no allegation, and no testimony even tending to prove that respondent was informed or knew of its existence when the contract was made, or afterward. Under these circum- stances, it cannot be said that damages arising out of a failure to insure could have been in the contemplation of the respond- ent when he entered into the contract of affreightment. Under 484 DISTRICT COURT. The Ontario. the foregoing rale of law, therefore, respondent cannot be held liable for the damages complained of. But even if the facts were such as to bring the libellants' case within the rule of law above stated as to damages, I think the libellants could not recover, because it is by no means cer- tain that the insurance would have been effected if the barge had waited to complete her lading^ or the agent had been noti- fied of her leaving when she did leave. In order to insure, it was necessary, of course, that the agent should ascertain the number of tons on board. The master of the barge testifies that when he had taken on what he did take on at the Mahon- ing chutes, he requested of the weigher a statement of the number of tons, and was informed by the weigher that he could not give it to him there, but it would be sent down to the coal company's office. This was not done until the next day, or next but one, after the barge had left, and after the catastrophe had happened, when, of course, it was too late to insure. It is true, if the barge had waited to complete her lading, the information might have been received before she left ; but the Court would hardly hold a party liable upon a mere probability of that sort, especially in view of the appar- ent urgency of the necessity of the barge leaving when she did, and without completing her lading. But it is not neces- sary to put the decision upon this point. The first point is clearly sufficient to dispose of the case adversely to the libellants. lAhel dismissed. EASTERN DISTRICT OF MICHIGAN. 485 The Prindiville. THE PEmCIVILLE. MARCH, ISIi. Pbactice. — Amendment of Claim. A motion to strike the claim and answer from the files, on the ground that it appeared on the hearing that the claimant had no interest in the property at the time the answer was filed, will not be entertained. If the claim ia not put in issue, and libellant goes to a hearing upon the merits without objection, it is a waiver of such preliminary inquiry, and an admission that the claimant is rightly in Court, A party will not be permitted to amend his claim by setting forth that at the time the cause of action arose, he was the true and bona file owner of the ves- sel, and had agreed with the present owner to discharge all liens against her. The right of a party to appear and defend a suit in rem must be put in contesta- tion, if at all, before the hearing, and then only by way of exception if the disability appear upon the face of the claim, or an exceptive allegation putting the right in issue if it does not so appear. Motion of libellants to strike the claim and answer of Andrew B. Crawford and Jacob Crawford from the files, and the counter motion of 'the respondents to amend their claim. The tng was HbeUed and arrested at the suit of Mary Jane Peach, for repairs, in the sum of $1,275 35, and thereupon was bonded by and delivered to one George E. Broekway, as claim- ant. Subsequently Andrew B. and Jacob Crawford put in their claim and answer on oath, by the first article of which it was alleged " that these respondents are the true and lonafide owners of said tug, and no one else is the owner thereof." The case was then brought on for hearing, and witnesses were sworn and examined on both sides touching the merits of the controversy. It came out in evidence on the hearing, that, although the Crawf ords were the owners of the tug when the repairs were made, they had subsequently, and before the fil- ing of the libel in this suit, sold and transferred the tug to George E. Broekway, so that the Crawfords, at the time of 486 DISTRICT COCTRT. The Prindiville. ^filing the libel and of putting in their claim and answer, had 310 right or title to, or claim or interest in or lien upon the said lug. It further appeared, however, that in the sale and trans- :fer to Brockway, the Crawfords had agreed and bound them- iselves to pay off and discharge all claim^gainst and liens upon the tug then existing. After the proofs were all in and the evidence closed, coun- sel for libellant moved to strike the claim and answer of the said Crawfords from the files, for the reason that having no title to or interest in the tug, they had no standing in court and no right to defend ; and for a decreets confesso; and the counsel for the Crawfords moved for leave to amend their ■claim, so as to set up their relations to the tug and the subject- matter of this suit substantially as above recited. Both motions were heard together, and are now for de- cision. Mr. H. B. Brown, for libellant, cited in support of his motion Admiralty Eules, 25, 34 ; 2 Conk. Ad. Pr. 203, 205 ; Ben. Ad. Pr. sees. 461, 463 ; "WiUiamfi & Bruce's- Ad. Prac. 199, 200 ; The Packet (3 Mason, 256, 25Y) ; The Boston (1 Sum. 328) ; The Idaho (4 Ben. 272) ; The KiUarney (Lush. 427, 435) ; The Cargo ex Galam (Browning & Lush. 167). Mr. W. A. Moore, for respondents, cited The Mary Ann (Ware, 104). LONGYEAE, J. Libellant's motion to strike the claim and answer from the files comes too late ; and even if it had been made in time, it seems it would not be the proper mode of raising the question. The right of a party to appear and defend a suit in rem in admiralty must be put in contestation, if at all, before a hearing or other proceeding founded upon the claim and answer, and then only by way of exception if the disability appear upon the face of the claim, or an excep- tive allegation putting the right in issue if it does not so ap- pear. Such issue would then be formally heard and decided ibef ore a hearing upon the merits. If the claim is not thus put in issue, and the HbeUant goes to a hearing upon the merits EASTERN DISTJRICT OF MICHIGAN. 487 The Prindiville. without objection, it is a waiver of such preliminary inquiry, and an admission that the party is rightly in Court and capa- ble "of contesting the merits. This identical question came before the Supreme Court as early as in 1828, in the case of The United States v. 422 Cashs of Wine (1 Pet. 547, 549), and was then decided. I quote from the language of Story, J., in delivering the opinion of the Court, not only to reproduce the argument upon which the decision was based, but because of the bearing that argu- ment has upon the respondent's motion to amend. Justice Story there said : " This objection is founded upon a mistaken view of the time, nature and order of the proceedings proper in suits in rem, whether arising on the admiralty or the ex- chequer side of the Court. In such suits the claimant is an iictor, and is entitled to come before the Court in that charac- ter, only by virtue of his proprietary interest in the thing in controversy. This alone gives him a persona stcmdi in judi- cio. It is necessary that he should establish his right to that character as a preliminary to his admission as a party ad Utem capable of sustaining the litigation'. He is therefore, in the regular and proper course of practice, required in the first in- stance to put in his claim upon oath, averring in positive terms his proprietary interest. If he refuses so to do, it is a suflBcient Teason for the rejection of his claim. * * * jf t]jj[g fg -^q^ Hooper, 3 Sumner, 286 ; Jay v. Allen, 1 Sprague, 130 ; The Oeneral Jackson, 1 Sprague, 554 ; Benedict's Admiralty, 575 j 2 Parsons on Shipping, 361). LONGYEAE, J. I. There is no direct evidence that "Whitbeck had notice of the particular liens in question at the time of his purchase. The fact, however, that he took the precautions he did to protect hims6K against liens affords a strong presumption that he knew there were liens then in ex- istence, and to a considerable amount, in addition to the chattel mortgage ; and if he knew that much, it would be but a short and reasonable step further, to hold him responsible for the additional knowledge of what those liens were and by whom EASTERN DISTRICT OF MICHIGAN. 493 The Atalanta. they were held, especially in the absence of all proof that he made any effort to gain such knowledge, or that it was with- held or concealed from him. But, as we shall presently see, it is unnecessary in this case to resort to such presumptions. II. Notice to the purchaser while a sufficient amount of the purchase money remained unpaid to meet the liens, is as effectual to keep the liens aUve as it would be if he had such notice at the time of such purchase, especiaEy where, as in this case, the balance of purchase money was not secured by negotiable paper. At the time Whitbeck took up the two $1,000 non-negotiable notes and gave negotiable notes in lieu, for the purpose of raising money to pay on these claims, there was then still remaining unpaid on the purchase money an amount more than sufficient to pay the balance of these claims in addition to the chattel mortgage. Then, if not before, he had notice of the existence of these specific claims. But he insists that, because only $2,000 was then demanded of him, he had the right to suppose that the claims represented by Connors, with whom he did the business, were no more than that in amount, although he makes no' pretense that any such representation was made "by Connors, or that the payment then made was understood to be in full. On the contrary, Connors testified that he thought, as it is quite reasonable he would have done, that he told Whitbeck at the time what the claims amounted to. This was not positively denied by Whit^ beck, although he said he did not recollect the fact, and thought it was_not so. At all events, and this is conceded by Whitbeck, he was then informed, and knew, if he did not be- fore, that the claims were on file ia the Probate Court, where they were readily accessible to him at any time he might de- sire to examine them. He also admitted that he may have gone to the Probate Office and examined the claims, but as to whether he did or did not, his recollection was again quite indistinct. He knew, however, that the information was within his reach, and that it was readily accessible, and if he failed to avail himself of it, he must suffer the consequences of his neglect, and be held responsible for the knowledge he 4:94 DISTRICT COURT. The Atalanta. would have gained if lie had made the requisite examination. Finally, taking all the proofs together, and taking into con- sideration the nature and character of the transactions in ques- tion, and in view of what a reasonable business man, engaged in an important business transaction, would naturally and almost inevitably do in the same circumstances, the Court can- not avoid the conviction that Whitbeck not only must be pre- sumed to have known, but that he actually did know that there were balances of these claims unpaid, before he paid the remaining two $1,000 notes to the administrator. Therefore, upon all considerations, Whitbeck cannot be granted any exemption from the liens claimed by libellants, for want of notice. III. Laches on the part of libellants in prosecuting their liens could be made available, if at all, in this case, only in case of want of notice of the liens to Whitbeck as a subsequent purchaser. As the Court has already decided that Whitbeck is chargeable with such notice, a consideration of this point is unnecessary. It results, that libellants must have decrees in their favor for the balances due them respectively, including interest to this date, and for costs. Decree for libeUants. EASTERN DISTRICT OF MICHIGAN. ■i9& The Iosco. THE IOSCO. JUNE, ISH. Materials. — Construction of Vbssel. A hull completed at the place of launching received a small cargo of flour as ballast, was towed with her spars on deck to another port, where her masts were stepped, and the vessel put in condition for navigation: Reld, that the work was done in hdlding the vessel, and that admiralty had no jurisdiction. Libel for repairs and materials. The hull of the schooner was hidlt at Alabaster, in this dis- trict, and put into the water. The hull was then towed to Bay City, with her topmasts, booms and gaffs on deck, and towing her two masts, to have the same put in place, and to be other- wise completed in the several appointments of a completed vessel, at the latter place, where the same was done by the libellants, and the doing of which constitutes the cause of ac- tion in this case. When the hull was so towed from Alabaster to Bay City, it had on board, for ballast, a quantity of flour,, some shingles and some knees, to be used so far as necessary in completing the construction of the vessel. The only question in the case is whether libellants have a lien and an action m rem in the admiralty. Mr. W. A. Moore, for the MbeUant. Mr. ll. B. Brown, for claimant. LOl^GTEAE, J. "Whether the claim of libellants arises out of a maritime contract, and whether they have a right of action in this Court vn rem, depends upon the question of fact whether what libellants did and furnished were to and for a vessel already in existence, or whether they were so done and 496 DISTRICT COUKT. The Iosco. furnished in part to bring her into existence as a complete thing. If the former, then the action will He. If the latter, it will not lie, and this Court has no jurisdiction. It was so settled fuUy and definitely by the Supreme Court in December term, 1857, in the case of People^s Ferry Compcmy v. Beers (20 How. 393), and reaflirmed in December term, 1859, in the case of Roach v. Chapman (22 How. 129). In the mind of the Court there is no room for doubt or discussion as to the question of fact. What libellants did and furnished were clearly by way of completing the construction of the vessel, and constituted in no sense within the meaning of the maritime law, repairs and materials, and for which by that law an action m rem will lie. It mafces no difference that the vessel was in the water. It is always the case that a portion of the construction of a vessel is done after she has been put in the water. Neither is there anything in the position of libeUant's advocate, that the schooner had to all intents and purposes assumed the position and liabilities of a vessel by taking in and transporting freight on her trip from Alabaster to Bay City, and that therefore what was done and furnished to and for her at the latter place by libellants, must be deemed as repairs, etc. The undisputed testimony is that the flour, etc., were taken as ballast. But even if this were otherwise, the position could not be main- tained, because it clearly appears that the vessel was not so far completed at the time as to enable her to discharge the functions for which she was intended, and that the sole purpose of the trip was to avail her owners of the greater facilities of Bay City to complete her construction, and that the taking on of the flour, etc., was a barely incidental matter. I hold, therefore, that libellant's claim is for cofistmction merely, and consequently, upon authority of Peoples Ferry Company v. Beers {supra), an action m rem will not lie. Zibel dismissed. Note, — See contra, Tlte Eliza Ladd (8 Chic. Legal News, 98). EASTERN DISTRICT OF MICHIGAN. 497 The Illinois. THE ILLINOIS. AUGUST, 18'74. Pleading. — Necessary Averments in Libel. — Act of 1845. A libel sufficient under the general maritime law is sufficient in cases arising upon the lakes, and no averment is required to bring it within the Act of 1845. It is unnecessary to aver that the vessel in question is engaged in navigation, or capable of being so employed. The libel was in personam against the respondent as owner of " tlie barge Illinois, her boats," etc., for supplies. There was no other or further description of the vessel set up in the libel than that quoted. The grounds of demurrer were : 1. That it was not alleged in the libel that the vessel was of 20 tons burden or upward ; 2, nor that the vessel was en- rolled or licensed for the coasting trade ; 3, nor that the vessel was employed in the business of commerce and navigation, or was capable of being so employed ; 4, nor in any manner that the vessel, her boats, etc., were of such a maritime character as to entitle the Court to entertain jurisdiction in the premises. Mr. i^. ZT. Ccmfield, for the respondent. Mr. H. B. Brovm, for libeUant. LONGYEAE, J. The libel is in the usual form of libels in personam, under the general maritime law (2 Conk. Adm. 478, et seq. 482, 488; Ben. Adm. 484, No. 83). The allega- tions, the absence of which constitute the first three grounds of demurrer, were necessary in order to confer jurisdiction un- der the Act of Congress of February 26, 1845 (5 Stat, at Large, 726), entitled " An Act extending the jurisdiction of the Dis- trict Courts to certain cases upon the lakes and navigable waters connecting the same " (2 Conk. Adm. 491 and note a). But the Supreme Court in the case The Eagle (8 WaU. 15), adopt- ing the only logical conclusion from their earlier decision in 32 498 DISTEICT COURT. The lUinoia. the case of The Oenesee Chief (12 How. 443), authoritatively decides that general admiralty jurisdiction was not limited in this country to tide waters, but extended to the lakes and the navigable waters connecting them, and hence that the Act of 1845 was inoperative and ineffectual, with the exception of the clause which gives either party the right of trial by jury when requested. Since that decision the limitations as to jurisdiction imposed by the Act of 1845, have had no existence, and the necessity of inserting in the libel the, allegations in question" has ceased ; and consequently, a libel which is sufficient under the general maritime law is now sufficient in cases upon the lakes and their connecting waters (see The General Cass, ante, p. 334). The first, second and third grounds of demurrer are therefore not well taken; As to the fourth ground of demurrer, I find no adjudica- tions or opinions of text writers upon the point ; but judging from the forms adopted and universally used from an early period in admiralty jurisprudence down to the present time, it seems to have always been considered sufficient to describe a vessel in a libel, whether in rem or in personam, as the ship, bark, sloop, schooner, steamboat, steamer, barge, or as the case may be, giving her name, without further specification or qualification (see 2 Conk. Adm. 490, note a). These terms seem always to have been considered sufficient to denote the maritime character of the subject. In their ordinary meaning they signify maritime things, and, independently of the con- sideration of long usage, the use of those terms alone is no . doubt sufficient to confer jurisdiction without further descrip- tion or qualification. The rest follows by necessary implication. If the fact be different, it must be taken advantage of by way of special allegation, and cannot be by way of demurrer. The fourth ground of demurrer is, therefore, also not well taken. The demun-er must be overruled, with costs of the demur- rer to libellant, with leave to respondent to answer the libel, on condition of payment of the costs of the demurrer, including a counsel fee of $10. Demurrer overruled. EASTERN DISTRICT OF MICHIGAN. 499 The Clematis. THE CLEMATIS. AUGUST, 18M. Desertion ot Tow by Tug. — Judgment of Master. Where a tug abandons her tow of bargea during a storm, the burden is upon the tug to show a sufficient excuse for such abandonment. Much, however, must be left to the judgment of competent officers in such an emergency, and such judgment formed upon the spot and acted upon in good faith will not be impeached, except upon a clear preponderance of proof that it was erroneous. Where it was shown that the tow-line parted in the night, during a storm of great severity, and that the master of the tug was unable to pick up the line, to discover the lights of the tow, or to make any effijrts to regain it with- out great danger to the tug: Held, he was justified in abandoning it. This was an action for breacli of duty, resulting in tlie loss of the barge Mohawk, by reason of the alleged unlawful deser- tion of the same during a storm in Lake Huron. On October 30th, 1870, the tug Zouave left Saginaw with six barges in tow, bound to Cleveland. On arriving off Pointe aux Barques, the weather became rough, and the tow put into Port Austin Bay for shelter. Here they found the Clematis. The tow was then divided, and, at the request of the master of the Zouave, the Clematis took three of the largest barges, of which the Mohawk was one, and put to sea, about half past seven in the evening. Although the storm continued to increase in violence, every- thing went well, the barges losing none of their deck loads, until about eleven o'clock, when the line connecting the tug with the forward barge parted, and set the tow adrift. The tug turned around, but failing, as her officers alleged, to see the lights of the tow, made 'no efforts to pick them up, and in a few minutes resumed her course down the lake. During the night, the Mohawk went to pieces, and was lost, with a part of her crew, Messrs. H. B. Brown andTF". A. Moore, for libellant. Mr. Alfred Russell, for claimant. 600 DISTRICT CODRT. The Clematis. LOl!fGYEAE, J. The libel, as amended, contains one, and only one, charge of fault, viz. : That the tug negligently deserted the tow ; which charge, as set up in the amended lihel, is in the following words : " That after taking the said barges in tow as aforesaid, and upon the night of the said 30th of October, the said barges Mills, Mohawk and Holland, being attached to said tug by lines astern in the order last above stated, the said tug Clematis, when ofE and about abreast of Pointe aux Barques, the lake being then somewhat rough, and the said barges being then solely dependent upon the said tug :^or their safety, and the line connecting her with the said barges having parted, without rounding to or stopping, negli- gently deserted said barges, with their cargoes and crews, and left them to their fate." Upon the argument, other faults were sought to be pointed out, and were urged with some earnestness, but, as the above is the only fault charged in the Hbel, it is the only one that can be considered. The answer admits that the tug left the tow after the line had parted, but denies that she did so without rounding to or stopping, or negligently, as alleged ; and avers that she not only rounded to, but for about an hour made exertions to find and secm-e the tow, and that she left only when it was found to be impossible, on account of the darkness of the night and the severity of the storm. The answer also alleges that the barge was unseaworthy in several respects, and that she failed to ride out the storm, and was lost on that account. It is undisputed that, when the line parted, a storm was in progress of greater or less severity, but at all events of such severity as to endanger the safety of the vessels composing the tow if left to their fate (being vessels of the kind called barges, and dependent solely upon towage, instead of any efficient means of propulsion of their own) ; also that the tug did in fact fail to regain the tow, and did leave the vessels composing it to their fate. In view of these undisputed facts, the burden was on the tug to show a sufficient excuse for such failure and ■ abandonment ; and it is to this one point that the issue in the case is really narrowed down. EASTERN DISTRICT OF MICHIGAN. 501 The Clematia. There is a preponderance of proof that after the line .parted, the tug, after keeping on her course a short distance, rounded to, and for a short time, variously estimated by the witnesses at from fifteen minutes to an hour, stood up toward where she left the barges, and then, not finding them, and not seeing any lights by which to determine their whereabouts, and the dark- ness being such that except by means of lights they could not be seen from the tug until the tug should be too near them for safety in such a storm, and the tug's captain, for these reasons, deeming it useless and unsafe to attempt to find the barges, and if found, to attempt to approach them so as to regain the line, without further efEort abandoned the attempt, and came in toward the land for shelter, and made, no further effort to rescue the barges until the next day, in the afternoon, when the storm had abated. It certainly would have been more sat- isfactory if the tug had made a more persistent effort to find the barges and pick them up ; yet, if the storm -^as in fact of such severity as to render such further effort hopeless under the circumstances, the want of it cannot be attributed as a fault. The business of towing by steam vessels has come to con- stitute one of the great interests of navigation — so much so upon the great lakes and their connecting waters that it has brought into existence a class of vessels of great carrying ca- pacity dependent almost solely upon being towed as a means of propulsion. Hence steam tugs,t making the towing of vessels a business, often necessarily assume great responsibilities ; and it is but fair and right that they should be held to a strict ac- count in the manner of the discharge of their important duties. It will not do to hold that they may excuse themselves and abandon the safety of interests, and often of lives, intrusted to and dependent upon their coui;age and fidelity, for slight causes, or on account of even ordinary obstacles. The causes must be ample, and the obstacles ia the way of performance must be at least of an extraordinary character, if not absolutely insurmountable. Questions of this character are, however, often among the most difficult to determine. Of the truth of 502 DISTRICT COURT. The Clematia. this the present case is a marked instance. Storms and their severity are so variable in degree, and the opinions of even competent and experienced seamen in regard thereto in any given «ase are often so conflicting, as is the case here, that in most cases it is exceedingly difficult to decide in regard to them with any degree of nicety or satisfaction. In aU such cases much must be left to the judgment of the officers in charge during the emergency. They have the circumstances then aU before them far more clearly and intelligibly than they can possibly be reproduced in Court ; and when such officers are able, competent and experienced navigators, a judgment formed upon the spot, and acted on by them in good faith, ought not to be impeached or disregarded, except upon a clear preponder- ance of proof that it was erroneous {Lawrence v. Minturn, IT How. 109, 110). The general ability, competency and experi- ence of Capt. Kumage, of the tug, is in no manner questioned nor assailed. It is in evidence that in his judgment at the time, the severity of the storm, combined with the darkness of the night and the absence of lights by which the whereabouts of the barges could be determined, rendered it impossible for him to regain them, and extremely hazardous to make the at- tempt, and the good faith of that judgment is not impugned. Its correctness only is questioned. Capt. Ellery, of the Mills, the head barge, and to which the tug's line was attached, seems by his actions to have entirely coincided with Capt. Kimiage ia opinion, in this, that he made ^o preparations, and was in fact entirely unprepared to second any attempt to regain the tow should any such attempt be made by the tug, but, on the con- trary, confined his exertions entirely to means of safety at his own command. I have examined and analyzed with care the voluminous and somewhat conflicting testimony upon this point, and the able and exhaustive arguments of the learned counsel on both sides, but shall not extend the opinion by going .into that anal- ysis here. It must suffice here to say that while 1 am in some doubt, I fail to find in the proofs that clear preponder- ance necessary, in my opinion, to overcome the opinion and EASTEEN DISTRICT OF MICHIGAN. 503 The Thomas A. Scott. judgment of Capt. Eumage formed upon the spot and acted on by him, and that I therefore consider it my duty to give him the benefit of the doubts I entertain. In this view of the case, it is unnecessary to notice the ques- tion of the unseaworthiness of the barge, raised by the answer. Libel dismissed. THE THOMAS A. SCOTT. AUGUST, 18M. Collision with Vessel aground. — Narrow Channels. — Stopping. — Judgment or Master. A vessel can be held in faiilt for her conduct only to the extent of risk or dan- ger of collision with another vesBel, as indicated by the relative situation of such other vessel at the time she determines upon a particular course of action, making proper allowance for the probability of a change in the relative sit- uation of such other vessel. It is not improper, under any and all circumstances, for a steam vessel to enter the old channel of St. Clair flats, and attempt to pass through, while another vessel is aground upon one of its banks. It depends upon the apparent sit- uation and Circumstances of the vessel aground. ' A vessel aground in a narrow channel, but in a situation to admit of other vessels passing her in safety, should, on the approach of another vessel, cease her efforts to get off until such other vessel has passed. Where a schooner aground upon St. Clair flats, upon an even keel, with room for other vessels to pass, saw a large propeller approaching, and did not cease her efforts to get off, but swung partly across the channel : Held, (1) That the propeller was not in fault for coming down the channel with the intention of passing the schooner while aground. (2) Nor was she in fault for pushing on and attempting to pass the schooner on her starboard side, instead of stopping and backing. (S) Having been placed in sudden peril by the fault of the schooner, the master of the propeller could not be blamed when, in the exercise of his best judg- ment, he adopted a course which may have been erroneous. 504 DISTRICT COURT. The Thomas A. Soott. Lebel for damage done to schooner Fred. A. Morse, by a collision upon St. Clair flats. The schooner Morse, of 592 tons burden, arrived off the entrance to the flats, in tow of the tug Brockway, at Y a. m., and lay there about two hours, waiting for the propeller Yan- derbilt, then aground on the flats, to get off. As the propeller floated, she passed up the channel ; and the tow supposing her bound up, entered it. The Yanderbilt, however, after passing the range lights, winded around, and came down the channel, meeting the tow about the middle stake. The swell was so great, she forced the Morse aground, on the starboard side of the channel, about 100 feet above the middle, where she lay on an even keel till just before the collision. Several propellers were lying at the Club House above the flats, waiting for the Vanderbilt to get off. The Thomas A. Scott, among the rest, had lain there two days. Seeing the Yanderbilt released, they all started down, the Fisk and Gould ahead. These two, as well as the bark Erastus Corning (a large grain vessel), in tow of a tug, passed the Brockway and Morse on their port side. The Scott followed, and after passing the range lights, observing the bow of the schooner swing two points to the port, whistled twice ; the Brockway responded, and the Scott starboarded, and attempted to pass the tow on its starboard side, grounded a little below the stem of the schooner, forced her off and across the channel. The current swung her stern into the schooner and damaged her. Mr. n. B. Brown, for libellant. The propeller was in fault — (1) In entering the channel at all while the .schooner was aground. It is admitted the master of the propeller saw the schoonei aground, and the tug at work upon her. He was bound to know the tug would pull her off some time, and that in swing- ing off, her bow would obstruct the channel more or less. If the master insisted upon going down and encountering this EASTERN DISTRICT OK MICHIGAN. 605 The Thomas A. Scott. contingency, he took upon himself the risk, and must answer for the consequences [Ths Milwaiikee, ante, 313 ; The Viclcs- hurg, 3 Ben. 298 ; The Helen E. Cooper, 2 Ben. 6T ; The Geo. Lorn, 3 Ben. 396 ; The St. John, Y Blatch. 220 ; The Oermania, 3 Mar. Law Oases, 269). In this connection, I refer to the rules of the supervising inspectors for the Western rivers, which forbid vessels enter- ing narrow channels while others are passing through in an opposite direction. Though not in terms applicable to St. Clair fiats, it is but an enunciation of a general rule as to navi- gation in narrow channels. (2) In going at too great speed, and in not stopping and backing before the peril became imminent. Her actual rate through the water is of small consequence. She was bound to keep herself entirely under control {The Alleghany, 9 Wall. 622). Precautions to avoid a collision must be seasonably taken {The Yanderhilt, 6 Wall. 225 ; The Russia, 3 Mar. Law Cases, 290). A vessel has no right to thrust herself into danger, and then complain that the consequences were inevitable. Best evidence of the speed of the propeller is the fact that, although she drew nearly two feet more water than the Morse, she did not fetch up until she had passed the stern of the Morse (then hard aground) from 20 to 50 feet. Mr. W. A. Moore, for the claimant. There was no fault on the part of the propeller, and the collision must have been the result of inevitable accident {The City of London, Swabey, 300 ; The Marpesia, L. R. 4 Priv. Council, 212 ; The Morning Light, 2 Wall'. 550 ; The Grace Girdler, 7 Wall. 203). Burden of proof, where inevitable accident is charged, is upon the pa^ty seeking to hold the other in fault {The BoUna, 3 JS'otes of Cases, 208 ; 1 Pars, on Ship. 527). LOIIfGYEAE, J. 1. In the absence of positive law ap- plicable to the case, a vessel can be held in fault for her con- ' duct only to the. extent of risk or danger of collision with another vessel, as indicated by the relative situation of such 506 DISTRICT COURT. The Thomas A. Scott. other vessel at the time she determines upon the particular course of action in question, making all proper and reasonable allowance for the probabilities of a change of the relative sit- uation of such other vessel. It was not contended, and if it had been, I should not be prepared to hold that, as applied to the particular locality here in question (the old channel on the St. Clair flats), it is improper, and a fault under any and all circumstances, for a vessel, especially a steam vessel, to enter the channel, and attempt to pass through, while another vessel is aground upon one of the channel banks; and the above rule is enunciated as applicable to this case, on the as- sumption that is not improper, under any and aU circum- stances ; or, in other words, that it may be proper or improper, a fault or not a fault, according to the situation and circum- stances of the vessel aground apparent at the time of entering the channel. What, then, was the apparent situation of the Morse when the Scott entered the channel ? She was bound up,- and was aground on the, to her, starboard channel bank, on an even keel, lying paraUel with the channel, and leaving ample room for vessels of the largest size to pass her ia safety. This was not only apparent from observation, but it had been made certain to the Scott by the fact that three vessels, each one as large as herself, had just passed through. Thus far, therefore, there was no impropriety in entering the channel and making the attempt to pass through. But it was said the efforts to get the Morse off then in progress were also apparent ; and it was claimed that a probability of the position of the Morse being changed before the Scott could pass her ought to have been also taken into consideration, and that such probability rendered it improper to enter the channel while those efforts were going on. To that proposition I cannot give my un- qualified assent. I think it more reasonable and consonant with the interests of navigation to hold that a vessel aground in a narrow channel, but in a situation to admit of other ves- sels passing her in safety, should, on the approach of another vessel, cease her efforts to get off until the other vessel has passed. To require other vessels, under such circumstances, EASTERN DISTRICT OF MICHIGAN. 507 The Thomas A. Scott. to await the result of such efforts, woul4 be contrary to uni- Tersal practice, would tend to a serious hindrance to navigation, and would often occasion serious detriment to. vessel owners who are in no manner in fault for the obstruction to the chan- nel. A vessel aground in a situation not admitting of other vessels passing her in safety, presents, of course, a very different case, and one to which the foregoing has no ap- plication. The Scott was, therefore, not in fault for entering the channel as she did, and the first charge of fault is not sus- tained. 2. That the Scott's speed was too great under the circum- stances. I think there is a decided preponderance of proof that as soon as the Morse swung out into the channel, the speed of the Scott was checked down to not exceeding four miles an hour, and that, having decided not to stop entirely, but to make the attempt to pass^ the Morse on her starboard side, her engine was stopped and reversed as soon as it was safe or necessary to do so. To have gone at a much less speed would have endangered her steerage way and her fetching up on the bank, and to have stopped and reversed sooner would have tended to swing her bows against the Morse. The second charge of fault is, therefore, not sustained. 3. That the Scott did not stop and reverse her engine until a collision had become inevitable. As we have already seen, the Scott was rightfully in the channel. If the Morse, when she saw the Scott approaching, had, as I think she ought to have done, desisted from her effort to get off until the Scott had passed, the accident would have been avoided. But she continued her efforts, and by doing so, threw herself athwart the channel and across the bows of the Scott, and that was the primary cause of the col- lision. Notwithstanding that, however, it was the duty of the Scott to avoid her if she could. Libellants' advocate eon- tended that good seamanship required that the Scott should have stopped at once when she saw the Morse swing out across the channel. That it was within the power of the Scott to stop in time clearly appears by the proofs — the proofs 508 DISTRICT COURT. The Thomas A. Scott. showing that when the Scott saw the Morse swing out, the two vessels were from 500 to 600 feet distant from each other, and that the Scott, at the rate she was then running, could he stopped in about 200 feet. But it must' be borne in mind that she was going with the current, and that the channel was too narrow to turn round with safety, and if she stopped, she was in danger of drifting upon the bank and getting aground her- self. The master of the Scott, taking in the whole situation, and using his best judgment, as matters then and there ap- peared to him, thought that by checking and changing his course, he could safely pass the Morse on her starboard side, instead of on her port side, as he had intended, but which, on account of the manoeuvres of the Morse, had become impos- sible, and he acted accordingly. The result proved his judg- ment correct, so far as to his being able to get his vessel by the Morse, between her and the starboard channel bank ; and it is evident that he would have gone entirely clear, if the bow of the Scott had not brought up on the bank before she had entirely passed the Morse, causing her stem to swing round against the Morse, and doing the damage complained of. It may be that if the Scott had stopped, instead of making the attempt to pass after the Morse had changed her position, any accident to either vessel would have been avoided. But that is merely conjectural and speculative, and it must be borne in mind that the emergency was brought about by the Morse herself ; that the master of the Scott had but a few moments in which to deliberate ; that he had the circumstances and situ- ation aU before him, and in view of them decided upon his course — a decision which the result showed was at least not an unreasonable one — and the accident happened, as we have seen. Under all these circumstances, it would not be reasonable or just to charge the. Scott with fault for doing as she did instead of stopping, even if the probabilities were stronger than they are that by stopping the accident would have been avoided. The third charge of fault is therefore not sustained. Li^el dismissed. EASTERN DISTRICT OF MICHIGAW. 509 The Sweepstakes. THE SWEEPSTAKES. SEPTEMBER, 181i. Collision. — Tug and Tow. — Division and Order of Tow. — Fastening of Line. A request by the masters of a tow to divide the vessels composing it, and take them separately through a narrow channel, wonl(^ not create an obligation on the part of the tug to do so. It is the duty of the master of the tug to make up the tow, and he is entitled to exercise his judgment in that regard. In arranging the order of vessels in tow, regard should be had to dangers inci- dent to any portion of the route covered by the undertaking, and in passing through the channel of St. Clair flats the vessel of heaviest draft should be placed last. The rule of the supervising inspectors requiring ascending vessels to stop before entering narrow channels, and wait till a descending vessel has passed through, does not apply to the lakes and their connecting waters. In the absence of usage or positive law, it is not a fault for a tow to enter the channel of St. Clair flats while another tow is coming througb in an opposite direction. It is the duty of the tug to see that the tow-line is securely fastened, so as to hold in all emergencies likely to happen, ordinary or extraordinary, and the fact it does not so hold is the best evidence the duty is not performed. Tugs are prima facie responsible in all cases for damages resulting from the slipping of the Une. On libel for towage and cross-libel for collision. H. ISTorton Strong, owner of the tug Sweepstakes, since de- ceased, libeled the schooners Dobbin and Atmosphere, in- sep- arate suits, for towage services in the sum of $109 in the case of the Dobbin, and $81 in the case of the Atmosphere. The services were for towing the schooners as alleged in the same tow and in company with a third vessel, the schooner Qouch, on the 14:th and 15th days of October, 1872, from Lake Eri'e to Lake Huron. Thereupon Frank Perew, owner of the Dobbin, and Valen- tine Fries and Malcolm Stalker, owners of the Atmosphere, respectively put in their answers and filed cross-libels against 510 DISTRICT COURT. The Sweepstakes. the tug. By their answers and cross-libels they admitted the undertaking on the part of the tug, and the prices agreed on, as alleged, but charged fault and negligence on the part of the tug, and the consequent grounding of the head vessel in the tow in the channel on St. Clair flats, by which the vessels were caused to collide With each other, resulting in damages to the Dobbin in the sum of $8,000, and to the Atmosphere in the sum of $2,1G0, as claimed. The cross-libels charged the tug with the following specified faults : 1. That she did not divide the tow and take the two schooners through the channel separately from the Couch, as her master was requested to do by the masters of those schooners. 2. That she did not arrange the tow so as to have the h'ghtest draft vessel first. 3. That she did not stop and wait at the lower end of the channel for a descending tow to pass through. 4. That she did not properly and securely fasten her end of the tow line, but negligently permitted it to slip ofE. Libellant Strong having died pending the litigation, his executor, Thomas Pitts, was admitted to prosecute the suits. Both suits and the cross-libels were heard together, and upon the same proofs. Messrs. F'. H. Canfield and O. V. W. Lothrop, for the tug. Messrs. W. A. Moore and H. B. Brown, for the schooners. LONGTEAK, J. 1. As to the first charge of fault, in not dividing the tow, I am aware of no positive rule upon this sub- ject, and no general duty in this regard, growing out of usage or otherwise, was shown, nor is it believed to exist. Whether it was a duty or not, therefore, depended, as it must depend in all cases, upon the special circumstances of the case in hand. A request on the part of the vessels comprising the tow would not of itself create a duty. The tug master was as much entitled to his opinion, as to the necessity, as were the vessel EASTERJT DISTRICT OF MICHIGAN. 611 The Sweepstakes. masters to theirs — in fact more so, because it was his right to say how the tow should be made up and taken through. Whether his decision was right or wrong, and if wrong, a cul- pable fault, depended upon the appearances when it was made, and not by what happened afterwards, unless what so happened might and ought to have been anticipated, and was in fact the result of taking the three yessels through together. But it no- where appears that the grounding of the Couch was caused by there being three vessels in the tow instead of «only two. Non constat, the same thing might have occurred if the Dobbin and Atmosphere had been taken through without the Couch, as requested. , The first allegation of fault is therefore not sustained. 2. As to the arrangement of the vessels in tow with refer- ence to their difference in draft. The case of The Zouave and Rich {ante, p. 110), decided in this Court by my learned predecessor, the late Judge Wilkins, was, in its facts and incidents, almost identical with the present case in regard to the point now under consideration. In that case it was held that it was not good seamanship, and was a fault for the tug master to so arrange his tow, in towing over the St. Clair flats, as to have the vessel of heaviest draft first in the tow. The only difference between that case and this is, that then the tow was going down, and here it was going up. No distinction, however, is noted on that account, neither do I presume that any exists in principle. It is true, in coming down, the current would add so much to the velocity and mo- mentum of the vessels, and make it more difiicult for those in the rear to steer clear of those forward of them, and to strike harder and do more damage in case of a grounding and collision. But the difference is not radical — ^it is only in degree. The current is very weak there, not exceeding two or two and a half miles per hour, and not sufficient to overcome the mo- mentum of vessels moving against it in a tow at an ordinary and allowable rate of speed, so as to prevent a collision by the rear vessels in case of the grounding of any of the forward ones, especially so when, as in the present case, there was a brisk 512 DISTRICT COURT. The Sweepstakes. wind directly up tlie channel, or very nearly so. At all events, the current did not stop the rear vessels in the present case in time to prevent a collision and serious damage. In the present case the vessel of greatest draft, the Dohbin, was placed second in the tow ; the next heaviest, the Couch, first, and the lightest, the Atmosphere, last. But the Couch alone grounded, and the arrangement of the vessels in the tow being proper as between her and the Dobbin, nothing can be claimed under tljis charge of fault on account of damage done the Dobbin by her running into the Couch. But the arrange- ment was .not a perfect one as between the Couch and the At- mosphere, the former being of the greater draft, and being placed forward of the latter in the tow. Therefore, as far as the Atmosphere was concerned, the tug committed a fault in this respect, which, on the authftrity of The Zouave {supra) — to the reasoning and conclusion of which I agree — would make the tug liable, so far as concerns the damage done to both the Dobbin and the Atmosphere, by the latter running into the former, unless the Atmosphere could have avoided the Dobbin, of which, however, I believe there is no pretense. • Tugs have the right to direct how their tow shaU be made up. In aU cases, in arranging the order of the vessels in the tow, the tow should be made up with reference to dangers in- cident to any portion of the route covered by the undertaking. Here the St. Clair flats were so covered, and the tow should have been made up with the same care in this regard as if the undertaking covered that portion of the route only; or, at least, if not so made up originally, it should have been changed to meet the case when the Flats were reached. The channel on St. Clair flats is quite narrow and some- what crooked — vessels do sometimes ground there. There is, to say the least, a liability to ground or risk of grounding there ; and that is suflacient to impose the duty now under considera- tion. That vessels usually or frequently ground there was not necessary to be shown. The second allegation of fault is therefore sustained. 3. In not waiting for the downward tow to pass through before entering the channel. EASTERN DISTRICT OF MICHIGAN. 513 The Sweepstakes. The rule of the supervising inspectors, requiring that when two vessels are about to enter a narrow channel at the same time, the ascending vessel shall be stopped below such channel until the descending vessel shall have passed through it, etc., has no application ex propria vigrore to the lakes and their con- necting waters, and therefore not to the present case, as was contended. It applies only to the rivers flowing into the Gulf of Mexico and their tributaries (see Rules of June 12th, 1871, " For Western Rivers ; " also caption to " Pilot Rules for Lakes and Seaboard," of June 10th, 1871). No such rule, I believe, exists by virtue of any positive law or regulation, or by the decisions of Courts, in regard to the lakes and their connecting waters ; no good reason is apparent,- however, why, on principle, it should not apply as well to nar- row channels, of which there are many connecting the lakes, and through which the path of a vast navigation lies, as to Western rivers. However, in the absence of positive law and of any common usage to support it, I do not conceive that the Court can lay down any general rule upon the subject. Each case must be governed by its own peculiar circumstances. Certainly no Court would hold a tug blameless that should recklessly, whether ascending or descending, lead a tow into a narrow channel, like that on the St. Clair Flats, when crowded with vessels moving in an opposite direction. But I think the Court would hardly be justified in applying such a rule to even an ascending tug, when, as in this case, another tug was about entering or even had entered the channel from the opposite direction with a single vessel in tow. It would be contrary to common usage to require a tug to wait under such circum- stances ; neither is it hazardous to any considerable extent for tugs with even more than one vessel in tow, if properly ar- ranged and properly managed by all concerned, to attempt to pass each other in that channel, nor is it so deemed by compe- tent navigators. The third charge of fault is, therefore, not sustained. 4. In not properly fastening the tow line. If the charges of fault were to be determined solely by the expert testimony S3 514 DISTRICT COURT. The Sweepstakes. as to the mode of fastening adopted, it would have to be de- cided that the line was properly fastened, as far as the mode of fastening is concerned. But the question raised goes beyond the mere mode of fastening. Conceding the mode to have been correct, the real question is, was it properly and securely fastened according to that mode. Undoubtedly'it was the duty of the tug to see that the line was securely fastened, no matter what mode of fastening was adopted, and so as to hold in all emergencies likely to happen, whether ordinary or extraordinary ; and the fact that it did not so hold is the best evidence that the duty was not performed. I know of no safe rule other than to hold tugs responsible prima facie in all cases, for injuries resulting from the tow line slipping or giving way from its fastening upon the tug. The expert testimony shows, and without it common sense teaches, that a tow line can be fastened so that it will not slip, and therefore the above rule is not unreasonable {The Quick- step, 9 Wall. 665 ; The OUve Baker, 4 Ben. 173). This view of the matter naiTows the controversy upon this point down to the question whether the Couch grounded before the line slipped, or whether the line slipped first and the grounding was on that account ; because, if the former, then the slipping of the line cannot be attributed as the cause of the disaster, although it may be evidence of a faulty fastening ; but if the latter, then it may have been the direct cause, and the fact of slipping alone sufficient, unexplained, to hold the tug responsible for all the unavoidable consequences of the grounding. As to this very material point, the testimony was conflicting. That of the ofBcers and men upon the tug, on the one side, and of those upon the Couch and the other vessels composing the tow, upon the other, were in direct and irreconcilable contradic- tion of each other. These extremes stand upon an equality as to interest, those upon each side being anxious and desirous, of course, to fasten the blame upon the other, and if there were no other testimony it would be excedingly difficult to come to EASTERN DISTRICT OF MICHIGAN. 515 The Sweepstakes. anything like a satisfactory conclusion. But there was other testimony, and that must turn the scale. The officers and men upon the Lion and the Perew, the passing tug and tow, fully corroborated those upon the Couch, and the other vessel composing the tow. Their witnesses had an opportunity of observing, equal at least to those upon the tug, and greater than those upon the Dobbin and the Atmos- phere, and they had no interest to see things as they were not. Their testimony is therefore entitled to the greater weight. It must be borne in mind, also, that the officers and men upon the Couch were in a better situation than any of the others to know what occurred first, and therefore their testimony, asid6 from the question of interest, which as between them and those upon the tug is equal, is of greater weight. There is, therefore, a preponderance of evidence that the line slipped before the Couch grounded, although I must confess it is not free from doubt. The only remaining question is whether the grounding of the Couch was in consequence of the slipping of the line. I think it quite evident from the position of the tow in the chan- nel while passing the downward tow, and considering the great breadth and flatness of bottom of the Couch, that she was "smell- ing" the bank and tending toward it, nothwithstanding the starboard helm, when the line slipped, and in the absence of evi- dence to the contrary, I think it fair to assume that if the line had not slipped the tug would have overcome that tendency and prevented the grounding. The grounding of the Couch must, therefore, be held to have occurred in consequence of the slip- ping of the line, and the fourth charge of fault is sustained. The tug is, therefore, held in fault in two particulars : 1. In not so arranging the to was to place the lightest draft vessel, the Atmosphere, first instead of last. 2. In permitting the line t'o slip. It is nowhere made to appear, neither is it claimed, that the Dobbin would have avoided the Couch, or the Atmosphere the Dobbin after the Couch had grounded. The tug must, therefore, be held liable for the damages caused by the collision. 516 DISTRICT COURT. The Union Express. 5. As to the tug's claim for towage services. The contract was to tow to Lake Huron. She towed the Dobbin to Port Huron, near the entrance to the lake. Here the Dobbin was obliged to stop and lay up for repairs. Ordinarily a contract to tow to Lake Huron would require that the tow should be taken into the waters of the lake ; but, under the circumstances of this case it must be held that the contract was substantially performed. The wind being favorable, the Atmosphere sailed up from the flats or a little above, but the tug was ready and willing to tow her up, if the Atmosphere had seen fit to avail herself . of the tug's services. The Atmosphere can therefore claim no exemption from paying the full amount of the contract price. The tug must, therefore, be allowed the contract price for towing in each case, viz : $109 against the Dobbin, and $81 against the Atmosphere, to be ofEset against the damages sus- tained by each. Decrees accordingly. THE UNION EXPEESS. SEPTEMBER, 18T4. Salvage. — Contract with Owner of Cargo. TVhere a barge without small boat, provisions, sails or other means of propul- sion, was adrift upon Lake St. Clair, although she had come lo anchor, and the weather was good, Held, that she was in a situation to have salvage serv- ices rendered her, but that an adjustment of the same made by the owner of ' the cargo, was sot binding upon the vessel. This was a libel in rem by Alexander Tregent, owner of the tug Gem, for towage and salvage services, on the nights of June iTth and 18th, 18Y3. On the 17th of June the barge took on a cargo of 250 EASTERN DISTRICT OF MICHIGAN. 517 The Union Express. cords of slabs at Belle river, on Lake St. Olair, in the Province of Ontario, for transportation to Sandwich, on Detroit river, in the same Province, for one John Holgate. She had no sails or other means of propulsion of her own, and no small boat. After taking on her cargo, she broke loose from her moorings, and, with her crew on board, drifted out into the lake, what distance from shore did not appear, and finally came to anchor in about twelve feet water. The slabs constituting the cargo, belonged to one Mather, but Holgate, in whose name they were shipped, held a contract, in writing, by which Mather agreed to sell them to him for six shillings per cord, but to re- main the property of Mather until paid for. After the barge had gone adrift, and in the afternoon of the same day, Holgate, not then knowing the whereabouts or situation of the barge, except that she had gone adrift with her cargo on board, applied to libellant to send his tug Gem to her rescue, and bring her and cargo into Detroit, which libellant consented to do ; and it was then agreed that the compensation for that service should be at the rate of $7 per hour for the time necessarily spent, and that libellant should look to the cargo and barge for his security. The tug left Detroit on that service the same evening, and returned to Detroit with the barge and cargo between five and six o'clock the next morning. At j ust what hour the tug left D etroit did not clearly app ear. All that appears is that it was " after tea," which would make the time of leaving probably six, or between six and seven o'clock. Although the night was dark, the tug had no difficulty in find- ing the barge ; and after lying by her one or two hours, to give the men on her time to prepare and take supper from provis- ions furnished them from the tug, the barge having no pro- visions on board, she took the barge's line and proceeded at once to Detroit. When the tug came up to the barge, her master, Moses Kobarsh, who was also equitable owner, then on board of her, said to the master of the tug, he was glad he had come for them, and on being informed that the tug was at work by the hour, at once passed his line to the tug, and as soon as the §18 DISTRICT COURT. The Union Express. men were ready, the journey to Detroit was at once com- menced and carried to the end without further trouble or delay. It did not appear that Eobarsh was informed of the rate of compensation agreed on, but only that the tug was at work by the hour. Mather, the legal owner of the cargo, was with Holgate when the bargain for the tug was made, but whether he took any part in it or not did not appear ; but it did appear that he was informed and knew of the terms agreed on. After the barge was brought to Detroit, and on the same day, Holgate gave to the master of the tug an order or draft on John Pridgeon, to whom the cargo was soon after trans- ferred, for $98, being for 14 hours' services at $7 per hour, but payment was refused. Before this writ was brought, both vessel and cargo had been transferred to the said John Pridgeon, and he is the claimant in, and is defending this suit. There 'was some testimony tending to show that Holgate was intoxicated so as to be incapacitated to do business when he made the bargain with libellant for the use of the tug, but not at the time he gave the order on Pridgeon. Some further facts in the case will appear in the opinion of the Court. Messrs. H. H. Swan and J. W. Finney, for libellant. Messrs. Alfred Sussell and ,5'. Larned, for respondent. LONGTEAE, J. The first question that will be considered is, whether the service rendered by the tug was a salvage service. I think the barge and cargo were in a situation to have a salvage service rendered for them. They were adrift and utterly help- less, and night was coming on ; and, although the barge came to anchor, she was in danger of being broken by any storm which might come on ; the men were without provisions, aud they had no small boat or other means of escape to the shore. Jt is true, there was no particular peril to the tug or her crew, nor any special difficulty or enterprise in the undertaking; but EASTERN DISTRICT OF MICHIGAN. 519 The Union Express. those considerations do not necessarily determine the charac- ter of the service as a salvage service or not ; they bear more directly upon the quantum or measure of compensation to be allowed, where more has been agreed on. I hold, therefore, that, the service being a salvage service, libellant has a Uen therefor on both vessel and cargo enforceable in this Court, in- dependent of any effect that might be given to the contract between libellant and Holgate. It is not important or necessary to consider whether Hol- gate's agreement with libellant was valid or invalid, or whether, if valid, it bound both vessel and cargo, or cargo only if either ; because, as already seen, a lien exists upon both independently of it ; and for the further reason that I am satisfied that $7 per hour, the rate of compensation agreed on, is a fair and reasonable compensation on a quantum meruit. All that re- mains, therefore, is to determine the number of hours for which libellant is entitled to compensation. It was concluded that the draft given by Holgate was evi- dence of a settlement and of an adjustment of the amount in controversy. "While that is correct, it is equally true that it is prima facie only, and it is not even that as to the vessel, for Holgate was interested in the cargo only, and he had no power to bind the vessel in that manner. And, in addition, it ap- pears by libeUant's own testimony, that the data upon which Holgate made the adjustment were erroneous. He allowed the tug for 14 hours. The longest time that can be made by the testimony, is from 6 p. m. to 6 in the morning, which would be 12 hours. I think the most reasonable data, from the testimony, are 6^ p. m. to ^ in the morning— eleven hours instead of fourteen as allowed by Holgate. The distance was only 18 or 19 miles, and notwithstanding the tug was obliged to ruD at a low rate of speed after she arrived in the vicinity where it might be expected the barge would be found, and also that she laid by the barge an hour or so waiting for the men to get supper, I think even eleven hours an unreason- able time. The only explanation of the extraordinary amount of time consumed is that, owning to some derangement of the 520 DISTEICT COURT. The Champion^ tug's boiler, a sufficient amount of steam could not be made to enable her to make better time. But the time lost on that account must be held to be the loss of the tug, and therefore cannot be charged to the vessel and cargo, especially in the ab- sence of all proof that the condition of the tug was known to the parties interested when she was engaged and her services accepted. I think nine hours a liberal allowance as to time, and libeUant's recovery must be upon that basis. 9 hours' services at $7 per hour $63 00 Int. June 18, "13, to date, Sept. 14, 'Y4, at 7 per cent 5 48 Making a total of $68 48 For which amount libellant must have a decree, with costs. Decree for libellant. THE CHAMPIOK SEPTEMBER, 1874. SuppLiKB Furnished in Canada. — Eight of Assignee to Sue. By the law of England previous to the statute of 3 and 4 Vict., no lien existed for supplies furnished domestic vessels. Whether such lien existed with respect to foreign vessels, or whether the Court of Admiralty had jurisdiction to enforce it, seems never to have been settled prior to the passage of the Act of 3 and 4 Vict. This statute was, however, simply declaratory of the maritime law with respect to the existence of the lien as it was prior to its passage, and vested jurisdiction to enforce it in the Admiralty Courts. Want of jurisdiction to enforce a lien in any particular locality is not fatal to the existence of the lien. The lien exists by virtue of the general maritime law — ^it follows the ship wherever she goes, and may be enforced wherever there is jurisdiction to enforce it. There is a lien in Canada for supplies furnished an American vessel, and a Court of Admiralty has power to enforce this lien. A lien for supplies is divested by an assignment of the claim. EASTERN DISTRICT OF MICHIGAN. 521 The Champion. This was a libel m rem by James O'Leary for wood supplied the tug Champion by the libellant at Lampton, on St. Clair river, in the Province of Ontario, in October and November, 1871. The tug was a vessel of the United States, and owned and registered at Detroit, in this District. The libellant was a citizen of Ontario and a subject of Great Britain. Before the suit was brought, O'Leary had assigned his claim to Johnson & Co., brokers and bankers, of Port Huron, in this District, and the suit was brought at their instance and for their benefit. The claim was evidenced by drafts drawn by the master of the, tug upon the owner. After the suit had been commenced, and before the hearing, Johnson & Co. withdrew the drafts from the hands of their proctors, and, without further consul- tation or co-operation with them, made a settlement with and received payment from the owner of the tug, but not includ- ing costs, and without any reservation as to costs, and delivered up the drafts. The proctor's costs have not been paid. Libellant's proctors now ask for a decree for the same. This is opposed on behalf of the owner of the tug, on three grounds : First. That by the laws of the Province of Ontario, where the supplies were furnished, there was no maritime lien for the same ; and that therefore libellant had no right of action m rem, and the Court was without jurisdiction in the prem- ises. Second. That any lien which may have existed in favor of libellant ceased on the assignment of his claim to Johnson & Co. Third. That in any event, the proctors having voluntarily delivered up to Johnson & Co. the evidences of claim, and thus enabled them to make a full and complete settlement with the owner, the proctors cannot now, without proof of collusion, look to the tug or her owner for their costs, but must look to Johnson & Co. alone. Upon the question of lien, it is conceded that if a maritime 522 DISTRICT COUET. The Champion. lien for supplies had an existence in Ontario in any case, it had in this. There are several other suits against the tug in behalf of Canadian parties, for supplies, depending substantially upon the same questions as the present case ; and the decision in this case was to determine the others. ' Mr. L. 8. Trowbridge, for the libellant. (1) The question of jurisdiction in cases of supplies fur- - nished in Canada is conclusively settled in the ease of Tlie Maggie Hammond (9 Wall. 451). It is not a question of jurisdiction, but of comity. This case was followed by the Circuit Judge of this Circuit in that of The Avon (ante, p. ITO). (2) The question of assignment is not free from doubt. The authorities are conflicting, but upon principle the lien should be preserved. In other cases an assignment of the debt carries with it the security, as in case of indorsement of note secured by mortgage. Conceding the lien to be a per- sonal right, -frhy should it be lost by assignment? The want of power to assign by so much lessens the value of the lien {The Boston, Blatch. & How. 325 ; Th^ General Jacksmi, 1 Sprague, 554 ; The Wasp, L. K. 1 Ad. & Ec. 367 ; Sorley v. Brewer, 1 Daly, T9). In the following cases a mechanic's lien was held assigna- ble : laege v. Bossieux (15 Gratt. 98) ; Tuttle v. Howe (14 Minn. 145) ; Gof^. Papin (34 Mo. 180). It is a general rule well settled that whatever rights of ac- tion survive to an executor are assignable {I'he People v. Tioga Com.. PI. 19 "Wend. tS; Sears v. Conover, 34 Barb. 330 ; Hoyt v. Thompson, 1 Selden, 320). Mr. F. H. Canjidd, for claimant, (1) This being a proceeding m rem,, the jurisdiction de- pends upon the existence of a Hen in favor of the libellant EASTERN DISTRICT OF MICHIGAN. 523 The Champion. against the tug {The Rook Island Bridge, 6 Wall. 213 ; Gardner v. The Neio Jersey, 1 Pet. Ad, 223 ; Rarmcr v. Bell, 7 Moore, 26Y; 2 Pars, on Ship. 172 [a. 2], 322). A maritime lien is defined in The Young Mechanic (2 Curtis, 412). If the debt in these eases created a lien, that lien existed, and was in full force at the moment the supplies were placed on board the vessels while they lay in the Canar diah port. If thp liens did not exist then and there, they never existed {The Two Ellenn, 1 Asp. Mar. Law Cases, 208-211). This action being founded in contract, the existence of the lien depends upon the law of Canada — the lex loci coni/ractus (Story Conf. of Laws, §§ 321, 322 1 ; Whiston v. Stoddard, 8 La. 95, 134 ; The Avon, ante, p. 170 ; The Peerless, Lush. 30). Whether there was a lien created depends upon the intention of the parties ; they contracted with reference to the law of the place, and that law became part of the contract. By the law of Canada no such thing as a maritime lien for supplies exists. It is not merely the want of a Court capable of enforcing it. The only expert sworn so testifies. The fact that no such lien exists is fully shown by the authorities. By the law of England no such lien existed till 3840 {The Nep- tune, 3 Knapp P. C. 84 ; Abbott on Shipping, 142-144, and cases cited ; Tfue Txoo Ellens, 1 Asp. Mar. Law Oases, 40, 208, 210). By virtue of the conquest, and subsequent Acts of the British Government, the law of England, as it then existed, became the law of Canada (1 Cooley's Blackstone, 108 ; Baldwin v. Gibbon, Stuart's Low. Can. p. 72 ; Hamilton v. Fraser, Ibid. 21 ; 1 Chitty's Com. Law, 638 ; BlamJca/rd v. Galdy, 4 Mod. 222 ; 16- Am. State Papers, 36; Campbell v. Hall, Cowp. 204 ; Mitchell V. U. S. 9 Pet. 748). The recent English statutes do not apply to Canada. The Act of Parliament under which the Government of Canada was organized, expressly provides that the English statutes shall not apply to the Canadas unless they are named or referred to by necessary intendment. These colonies have full power of local legislation upon this subject (1 Cooley's Black. 109 ; 7 and 8 William III). In 1791 Canada was divided, and in October, 1792, the Legis- 534 DISTRICT COURT. The Champion. lative Council of Upper Canada, by express enactment, de- clared tlie laws of England should be the rules of decision in aU civil cases (see Consol. Stats. Up. Can. p. 30). The recent English statutes on this subject do not apply to the upper province. It would seem, also, they do not apply to the lower province (see The Ausbralia, Swabey, 480-488, where it is held the jurisdiction of the Vice- Admiralty Courts remains as it was previous to 1840). By the law of Canada, fuU power of legislation is given to its parliament in respect to navigation and shipping (Debates on Confederation of Prov- inces, p. 1029 ; Laws Up. Can. 448, 456, 535). The English Courts of Admiralty, in cases arising in the colonies, are bound by the local law {The Peerless, Lush. 30). (2) If any lien ever existed, it was divested by the assign- ment of the claim to Johnston (Cross oa Liens, 48 ; The Yankee Blade, 19 How. 82 ; Logan v. The ./^lian, 1 Bond, 267 ; Rush v. The Freestone, 2 Id.' '2A%;TheA.D. Patchin, 12 Law Eep. 21 ; The Geo. Nioholaus, Newb. Ad. 449 ; Reppert V. Robinson, Taney's Dec. 492-498 ; PearsonsY. Tinckner, 36 Me. 384 ; Eays v. The Columbus, 23 Mo. 232 ; Steamboat White V. Levy, 5 Ehg. [Ark.J 411). Same rule applies to mechanics' liens {Lmett v. Brown, 40 N. H. 511 ; 2 Kent's Com. 635, note). The right of stoppage in transitu can only be enforced as between the buyer and seller (Pars. Mer. Law, 60 ; Siffken V. Wray, 6 East, 3Y1). Mr. L. S. Trowbridge, in reply. Claimant's counsel assumes the position that by the con- quest of Canada the French or civil law was superseded by the law of England. If this position be untenable, his whole ar- gument falls to the ground. While under the dominion of France, there is no question that the general maritime law prevailed there, and that by it a lien existed in favor of material-men. The conquest did not alter this, and the same general maritime law prevails there, unless changed by positive enact- EASTERN DISTRICT OF MICHIGAN. 525 The Champion. meiit. Blackstone, in speaking of the colonies of the mother country, makes a nice distinction between colonies that are established by discovery anfl those which are gained by con- quest. As regards the former, all the laws of the mother country in being at the time of the establishment, are immedi- ately in force in the colonies. " But in conquered or ceded countries, that have already laws of their own, the king may, indeed, alter and change those laws, but till he does actually change them, the ancient laws of the country remain, unleSs such as are against the law of God, as in the case of an infidel country. Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not inquire), or by treaties. And therefore the common law of England, as such, has no allowance or authority there, they being no part of the mother country, but distinct though dependent dominions " (Oooley's Blackstone, vol. 1, pp. 107, 108). While the opinion of the learned author might be ques- tioned, as to the statement that American colonies (i. e., those not included in the United States) were obtained by conquest, instead of discovery, no question can arise as to the Canadian colonies. The case cited by counsel from Stuart's Lower Canada Reports (p. 12), does not conflict with the above. It was there held that the French law was suspended by the con- quest, and the establishment of an Admiralty Court, the very thing which Blackstone says the king can do, but until he does it the ancient law remains. There has been no such act regarding Upper Canada, and the conquest alone would not have the efEect to supersede the Freuch law. Messrs. J. W. Firmey and H. H. Swan, on same side. (1) The lien exists by the general maritime law, even in thfe absence of a remedy in rem for its enforcement {Farmer V. Dmies, 1 T. E. 109 ; Eieh v. Coe, Cowp. 639 ; Abbott 526 DISTRICT COURT. The Champion. on Shipping, p. 157; The Bebecca, 1 "Ware, 191, 192; 3 Kent's Com. [8th ed.] 281 ; The Fho&le, 1 Ware, 268, 271 ; The China, 7 Wall. 68 ; Dupont v. Vance, 19 How. 171). The jurisdiction to enforce this lien was formerly denied in England, but in this country has always been admitted {La Constanoia, 2 W. Kob. 487 ; Briggs v. The Light Boats, 11 Allen, 158 ; The Siren, 7 Wall. 152 ; The Davis, 10 WaU. 19 ; The Maggie Hammond, 9 WaU. 451 ; The JerusoHem, 2 Gall. 349 ; The Bark Chusan, 2 Story, 466). (2) The contract of the master here is governed by the general maritime law, and not by the kx loci {Pope v. Nioker- son, 3 Story, 477 ; Story's Conf . of Laws, § 286 5 ; The Nelson, 1 Hagg. 169, 175, 176). (3) The Act of 3 and 4 Vict. ch. 65, enlarging admiralty jurisdiction, extends to the colonies, though not named, and impliedly repeals the statute of 1792 {The Wataga, Swabey, 165). LONGYEAE, J. The argument of respondent's advocate in support of the first ground of defense — that there was no lien by the lex loci contractus, and therefore no right of action in rem in this Courtr— is based upon the following propo- sitions : First. That the laws of France which prevailed in Canada at the time of its conquest by England, and by which there was a lien for necessaries supplied to a ship, had been super- seded by the laws of England. Second. That a Hen for necessaries supplied to a ship, whether domestic or foreign, never had an existence in En- gland until it was created by Act of Parliament. Third. That the Act of 3 and 4 Victoria, ch. 65, sec. 6 (in 1840), creating a lien in such cases, had no operation in Upper Canada, now Province of Ontario, because not so ex- pressly named and provided. Fourth. That such was the state of the law in the Province of Ontario in October and November, 1871, when the cause' of action in this case arose. EASTERN DISTRICT OF MICHIGAN. 527 The Champion. The arguments were confined to these propositions, and ■were conducted on both sides with commendable zeal and ability, and elaborate research. I have also received much aid from an instructive brief of Messrs. H. H. Swan amd J. "W. Finney, proctors and advocates for libellants in another suit now under advisement, and in which this same question is in- volved. It will be seen that the second proposition lies at the foundation of the entire ai-gument; because it is only by maintaining it that the others are of any consequence. The second proposition will therefore be first considered. In con- sidering this proposition, it must be borne in mind that the Champion was a vessel of the United States, and therefore for- eign to the place where the necessaries were supplied. It is too well settled and understood to need citation of authorities or admit of discussion, that, as to domestic vessels, jurisdiction to enforce the lien accorded by the maritime law to material-men, by action in rem in the admiralty or else- where, was long since overthrown and denied in England, and the lien itself held never to have Jiad any existence there. Such has hitherto always been the rule in the United States also, where the maritime law was at first adopted as it was ad- mi uistered in England, together with all its inconsistencies and incongruities as applied to the condition of things here. The incongruity' of limiting the jurisdiction to tide water has already been abandoned, and has ceased to mar the harmony of the system ; and, judging from the recent amendment of Ad- miralty Eule 12 by the Supreme Court, and certain foreshad- owings by recent enunciations from the bench of that Court, and to which may be added a recent decision by the District Court for the Eastern District of Missouri, it is evident that this other is about to meet the same fate ( Wilson v. BeU, 6 Chic. Leg. News, 261 ; The Commonwealth, 20 Int. Eev. Kec. 64; s. 0.^6 Chic. Leg. News, 334). But it is by no means so well settled, although seemingly so understood, that the denial of jurisdiction in the admiralty to enforce liens of material-men extended to necessaries sup- 528 DTSTEICT COURT. The Champion. plied in England to foreign vessels, and much less so in regard to the existence of the lien in such cases. It is true it seems to be assumed by Mr. Abbott, in his excellent work on Shipping (pages 142 to 150), and it was no doubt held by the Court of King's Bench, that the denial went to that extent, both as to the jurisdiction and the existence of the lien. To my mind, however, it is apparent from the notes to those pages of Ab- bott, and the cases there cited and commented on, in both text and notes, that the controversy in this respect between the admiralty and common law Courts of England, never was en- tirely settled and determined, the one way or the other ; that, in fact, that controversy continued as to foreign vessels, until it was finally disposed of and determined in favor of the ad- miralty, by the statute of 3 and 4 Yict. supra. The High Court of Admiralty did not understand the denial to have gone to the extent claimed, certainly as late as 1834. In that year, in the case of The Nept/une (3 Hagg. 129-140, 8 Eng. Adm.), Sir John NichoU, delivering the opinion of the Court, says: "In England, then, the law of nations, of which the lex meroatoria is a branch, forms part of the common law, unless it be altered or controlled by Parliament or the Munici- pal Courts. It is clear that, by the civil law, and by the gen- eral law of other nations, when uncontrolled, persons who have furnished materials for the fitting out of a ship, have a lien upon the ship itself, and, if so, upon the proceeds of the ship. If an English ship were repaired in France or in Holland, material-men might there arrest and enforce payment'against the ship itself. How far a foreign ship repaired here might not be subject to the same right is a question into which it is not necessary now to inquire, for the Neptune is a British ship, and in such case the Municipal Courts of this country have so far departed from the rule of the civil law that they have held that the lien does not extend to the ship itself ; atid so far, therefore, this Court is restrained ; but they have not gone further." It is true The Weptune, being a domestic ship, and the repairs having been done in England, and the application in that case being to participate in surplus proceeds, EASTERN DISTRICT OF MICHIGAN. 529 The Champion. and not a proceeding against the ship itself, the point thus discussed was not directly involved ; but what was said none the less shows that, in the opinion of Sir John NiehoU at least, the question of lien for necessaries supplied to a foreign vessel in England had not then passed beyond controversy in her Courts. The judgjjient in that case was afterwards reversed by the Privy Council (2 Knapp's Cases, 84), on the ground that it allowed a party to participate in proceeds who had no lien upon the vessel itself. It became a leading case, and waa deemed a final determination of the question of lien for nec- essaries supplied in England, so far as it related to domestic ships. The statute of 3 and 4 Vict, {supra) must be regarded, I think, as declaratory, or at least as a recognition merely, of what the maritime law then was, so far as concerned the ques- tion of lien for necessaries supplied to a foreign ship, wlfether within the body of a county or upon the high seas, and not as introducing a new principle into English jurisprudence. This, I think, is abundantly evident from the language of the enact- ment itself, which is as follows : " The High Court of Admi- ralty shall have jnrisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any Ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof, whether such ship or vessel may have been within the body of the county, or upon the high seas, at the time when the serv- ices were rendered or damage received or necessaries furnished in respect of which such claim is made " (Abb. on Ship. 150). It will be noticed that the Act does not purport to create a lien. It leaves that question just where it stood before, and, of course, to be determined by the maritime law. It seeins to assume the existence of the lien, and then simply restores to the admiralty a jurisdiction in relation to it, of which it had been deprived by the Municipal Courts. That this is the light in which that Act waa regarded by the High Court of 530 DISTRICT COURT. The Cliampion. Admiralty is evident by the subsequent decision of that Court jn at least two cases — one, The Alexander (1 W. Eob. 288), soon after the Act went into operation ; and the other, The Wataga (Swab. 165), at a later period (1856), holding that the jurisdiction conferred by the Act extended to claims for neces- saries supplied to a foreign vessel in colonial as well as in British ports. , In the case of The Alexander the libel was in rem against a If orwegian ship, for necessaries supplied to her in England in 1835, five years before the Act went into operation. The jurisdiction of the Court was contested on the ground that the Act did not affect past claims ; but the Court held the con- trary, and maintained the jurisdiction. In the course of the opinion (p. 294), Dr. Lushington said : " Now the action in the case is brought in virtue of the particular statute recently enacted, and without that statute the Court would not have beett justified in entertaining the suit at all ; for, although the subject-matter clearly falls within the original scope of the maritime law, before the passing of the statute, the Court might have been prohibited from proceeding in the cause, on the ground that the common law had narrowed the general jurisdiction originally belonging to this Court. Such prohibi- tion is now taken off by the statute ; but looking to the words of the Act, I do not find any expressions limiting the jurisdic- tion of the Court to cases accruing subsequent to the period when the Act came into operation." The learned doctor treated the statute simply as an act of delivery of the admi- ralty from the thraldom in which it had been held by the common law courts ; and he maintained the jurisdiction, not because the statute created a lien, or that the claim or cause of action had any foundation in it, but because the lien, claim, and cause of action clearly fell " within the original scope of the maritime law," and had their foundation in it. I consider the learned doctor's position entirely sound, and am not aware that its soundness has ever been questioned. In the case of the "Wataga, the application was for payment out of the proceeds of an American ship for necessaries sup- EA^ERN DISTRICT OF MICHIGAN. 531 The Champion. plied to her in 1856, at the Cape of Good Hope, a British pos- session — the ease being, in its incidents, almost identical with the one now under consideration. The application was op- posed on the ground that the statute of 3 and 4 Vict. ch. 65, sec. 6, was not intended to apply to the case of necessaries supplied to a foreign ship in a port at a distance from England, though a British possession. But Dr. Lushington, by whom this case was also decided, held otherwise, and maintained the Jurisdiction. The decision in that case would maintain the jurisdiction in this in that same Court. At the close of the opinion (p. 167), and after quite fiiUy discussing the object and purposes of this Act, he throws out the follow- ing significant intimation : " This claim must be maintained ; but I am by no means clear, even if I am mistaken on the point of colonial ports, that it could not be supported under the narrower interpretation." The High Court of Admiralty seems in fact never to have relinquished its claim, that under the general maritime law there was a lien for supplies, whether to domestic or foreign vessels, or whether within the body of a country or upon the high seas, only so that they were necessary and were furnished upon the credit of the ship. It simply surrendered to the superior jurisdiction and powers of the common law Courts, and ceased to exercise the jurisdiction to enforce the lien. "When Parliament in part took off the prohibition imposed by the common law Courts, by the statute of 3 and 4 Yict., the High Court of Admiralty to that extent simply resumed that which it had all along claimed as its right, and proceeded at once to enforce a lien which it assumed, and no doubt right- fully, had simply been in abeyance. That the lien for necessaries supplied to a ship, recognized by the general maritime law, always existed in England as to foreign ships, before as well as after the Act of 3 and 4 Vict., was assumed by our Courts from the earliest period of the ex- ercise of admiralty jurisdiction here, for while adopting in the main, the admiralty jurisprudence of England as there exer- cised, the Supreme Court of the United States from the be- ginning assumed and fully recognized the existence of the 532 DISTEICT COURT. The Champion. maritime lien for necessaries supplied to a foreign ship in all cages, and the jurisdiction of the Federal Admiralty Courts to enforce it (see General Admiralty Rule 12). This rule, from the beginning, and all through its various modifications by amendments or otherwise, has always assumed the existence of the lien, and provided for its enforcement. This has always been true of it as to foreign ships, and recently it has been so amended as to drop all distinction in that regard. Maritime liens for necessaries supplied in England to a foreign ship, I am satisfied, have always had an existence there. Jurisdiction to enforce them was alone prohibited. It is well settled, however, that want of jurisdiction to enforce a lien in any particular locality is not fatal to the existence of the lien itself. The lien exists by virtue of the maritime law, and it follows the ship wherever she goes, and may be enforced wherever there is a jurisdiction to enforce it {The Maggie 'Hammond, 9 Wall. 435, 451 ; The Avon, ante, p. 170). And this applies as well to the objection that there is no jurisdiction to enforce a maritime lien in the Province of Ontario, where the cause of action arose. The question of lien in this case, therefore, in the absence of any positive enactment to the contrary, must be determined by the general maritime law, and by that law there was a Hen, and also jurisdiction in this Court to enforce it. No objection was made that the necessaries in question were not supplied upon the high seas, or upon tide water, as those terms are understood in English admiralty jurisprudence, and that therefore there could be no lien ; it is therefore unnecessary to consider it. The omission of learned counsel to make that objection was undoubtedly for the very good reason that since the decision of the United States Supreme Court in the case of The Eagle (8 Wall. 15), and of the United States Circuit Court for the Northern District of Ohio, by Emmons, Circuit Judge, in the case of 2 he Avon {ante, p. 170), that objection has no longer any force in our Court . This may be said to be especially so under the authority of the Supreme Court in the case of The Eagle {liupra), in a case like the present, arising upon the great EASTERN DISTRICT OF MICHIGAN. 533 The Champion. boimdary waters between this country and British North America, constituting as they do great national thoroughfare's, international in their character, and common to the vessels of both countries. There are many decisions of the Admiralty Courts of the United States which have a bearing upon the questions pre- sented by the defense here under consideration ; but it would serve no useful purpose to enter into an analysis of them here. A few of the leading ones, as far as I have taken the time to examine them, are, however, here cited : The Eagle (8 Wall. 16) ; The Maggie Hammond (9 lb. 435, 451) ; The Avon {ante, p. 170); The Rebecoa (Ware, 191, 192); The Phmbe (Ware, 267, 268, 271) ; Dupont v. Vance ( 19 How. 171) The Boston (Bl. & Howl. 325) ; The Siren (7 Wall. 156, 158) The Jerusalem (2 Gall. 349; The Vhvsan (2 Storj', 466) Po'pe V. NickeTson (3 Story, 477) ; see, also, Abb. on Ship. 142 to 150 ; 2 Kent's Com. 8th ed. 281 ; 2 Pars, on Ship. & Adm. 322 ; Story JConfl. of Laws, ■§ 286 c. The second proposition of the argument in support of the first ground of defense, viz., that there was no lien, and there- fore no right of action in rem in this ease, is not sustained ; and with that the whole superstructure of the argument in sup- port of that defense falls. • 2d. The lien and Jurisdiction to enforce it being main- tained in favor of the original creditor, was the lien divested by the assignment of the claim ? Upon authority, I am clear that this question must be an- swered in the affirmative. It has been so held id every case in the Federal Admiralty Courts to which my attention has been called, in which the discussion was not evidently influenced by special circumstances. In the case of The Patchin (12 Law Eep. 21), Judge Conkling, in a well-reasoned opinion, so held in regard to mariners' wages. He notices a distinction between liens for wages and upon bottomry bonds and bills of lading, which are assignable, on the grounds that the bond is an express hypothe- cation, and binds the ship to the lender and his assigns ; and 534 DISTRICT COURT. The Champion. that the bill of lading is negotiable, made so bylaw for the benefit of trade, and its transfer carries with it the title to the goods shipped, and of course the right to maintain a suit upon it in case of their loss ; while, on the contrary, the right of the . mariner to proceed against the ship in specie, is conferred upon him for his own exclusive benefit, and arises by implication merely. He held that liens of the latter character are strictly personal. He recognizes that the claim or debt may be law- fully transfer;:ed, but holds that the lien does not follow. ; In the case of HeppertY. Holinson (Taney's Decisions, 492, 498-9), the libel was in fersonain for repairs and supplies. In delivering his opinion, Ch. J. Taney said : " But if it appeared upon the proceedings that when the suit was brought Hamilton held this due bill as assignee, and the proceedings were insti- tuted for his benefit, I do not think the admiralty jurisdiction could have been maintained ; the right to sue in admiralty upon claims of this description is personal, and is maintained upon principles and for reasons which do not apply to the assignee." Certainly if no jurisdiction in personam,, there can be none in rem. In the case of The Geo. Nicholaus (Newb. 449, 454 to 457), the libel was in rem for salvage, and Judge McCaleb held that the same rule applies to liens for salvage as to those for wages, and that they are not assignable, citing, with approbation, Judge Conkling's opinion in The Patchin {supra). In the cases of The Julian (1 Bond, 267), and The Free- stone (2 Bond, 234, 242), the libels were in rem for wages, and Judge Leavitt held the same as Judge Conkling in the Patchin and Judge McCaleb in the Freestone. These are all the cases in the Federal Admiralty Courts in which this doctrine has been maintained, to which my attention has been called, or that have fallen under my notice. There are, however, several cases in State Courts, arising mostly un- der State statutes, conferring liens where none existed by the maritime law, and in favor of mechanics and others, in which the same doctrine has been held {Piersons v. Tincker, 36 Me. EASTERN DISTRICT OF MICHIGAN. 535 The Champion. 384, 386 ; Hays v. Steamboat Columhus, 23 Mo. 233 ; Lovett V. Brown, 40 If. II. 611 ; Steamboat White v. Levy, 5 Eng. [Ark.J 411). The casQS in the Federal Admiralty Courts which seem to hold the opposite doctrine wiU now be considered. In the case of The Boston (Blatchf . & Howl. 325), the libel was in rem for repairs, and Judge Betts held that an assignee of the debt for a full consideration, who became such at the express instance of the master, was entitled to all the legal remedies possessed by the original creditors, including the right to proceed against the vessel. There can be no doubt that the fact that the transfer was made at the express instance of the master, had its influence, although it is not so stated in the opinion. At all events, it affords a reasonable explanation for the difference of opinion between the learned judge and I the others whose opinions have been cited. In the case of The General Jackson (1 Sprague, 554) the libel was in rem for supplies, and Judge Sprague held that " the assignment of the claim, as security for a debt which has since been paid, would not of itself be a waiver of the lien." What his opinion would have been if the assignment had been absolute instead of for security merely, the case does not in- form us. These are all the cases in the Federal Admiralty Courts to which my attention has been called, or which have fallen under my notice, which even seem to hold that the lien is not divested by the assignment of the debt; and as to each of these cases it is to be observed that the decision was evidently influenced by special considerations. . As on the other side of the question, so here there are also several State decisions, based in like manner on State statutes, holding the same way as the judgments last cited {Hoyt v. Thompson, 5 IST. T. [1 Seld.] 320, 327; Sears v. Conowr, 34 Barb. 330 ; Sorley v. Brewer, 1 Daly, 79 ; laege v. Brossieux, 15 Gratt. 83, 88 ; GqfY. Fapin, 32 Mo. 180; Tuttle v. Jlowe, 14 Minn. 145). It is seen, therefore, that the decisions of our own Admi- 536 DISTRICT COURT. The Champion. ralty Courts upon this question are substantially all one way ; and they fully sustain the position that the lien which a mate- rial-man has is strictly personal to himself, and. does not pass to his assignee ; that it is, in fact, extinguished by the assign- ment of his claim, so that neither he nor his assignee can come into a Court of Admiralty for its enforcement. I have not the time to devote to a discussion of the soundness of those decis- ions. It has, however, been so fully done by the learned judges in the opinions I have cited that there really does not appear to be much left to be said upon the subject. Even if I doubted the soundness of those decisions, I should hesitate long before ■ venturing an opinion in opposition to so formidable an array of experience, learning and ability. At all events, I should not do so except for cogent and conclusive reasons. Until over- ruled by higher authority, the rule of those cases will be the rule of decision in this Court. In England the question does not seem to have been much discussed as applied to maritime liens ; at all events not suffi- ciently to have established a rule upon the subject. See Cross on Liens, 48 (18 Law Lib.) as to assignments of liens in gen- eral, and The Wasp (L. K. 1 Ad. & Ec. 367), as to assignments of maritime liens. The proofs in this case showed that before this suit was brought, libellant had sold and transferred his claim to John- son & Co., and that the suit was instituted by them, in libel- lant's name, but for their benefit. The lien was thereby lost, and the suit cannot be maintained. In this view of the case a consideration and decision of respondents' third ground of defense has become unnecessary. Libel dismissed. EASTERN DISTRICT OF MICHIGAN. ' 537 The Union Expreaa. THE UNION EXPEESS. SEPTEMBER, 1814. Lien tor Monet Advanced on Eequest of Owner. — Necessaries FuENISHED IN IIoME PoRT. A maritime lien exiats for moneys advanced to purchase or pay for necessaries supplied to a ship wherever it would exist for the necessaries themselves. • Such lien exists for necessaries furnished upon request of the owner wherever it is shown affirmatively they were furnished on the credit of the vessel. Where money was advanced by one who held the legal title to the vessel under a bill of sale given to him as security for the indorsement of a note which had been paid by the maker and the bill of sale thereby extinguished ; Held, the lien was not thereby defeated. Where, however, Ebellant was jointly interested with the equitable owner in the profits of one trip, Held, he could not recover for advances made during that trip. Parties may stipulate for a lien for necessaries, notwithstanding that no such lien is implied by the law of the place where such necessaries are furnished. By the general maritime law a lien exists for necessaries furnished a domestic vessel, even though by the law of the place there may be no jurisdiction to enforce it. This was a libel in rem brought by John H. Eakin against the barge Un^on Express, a Canadian vessel, for moneys ad- vanced by him to procure and pay for necessaries supplied to the barge, partly at Detroit, in this State and district, and partly at Windsor, in the province of Ontario, the home port of the vessel. The facts appear, so far as necessary, in the opinion of the Court. Messrs. J. W. Finney and H. B. Swan, for libellant. (1) Money advanced for the purchase of supplies consti- tutes a hen upon the vessel, equally with the supplies and re- 538 DISTRICT COURT. The Union Express. pairs furnished directly to the vessel {Thomas v. Osborn, 19 How. 28 ; The Lulu, 10 WaU. 203 ; The Gra/peshot, 9 Wall. 141 ; The Emily B. Souder, 3 Beo. 159 ; The Kalorama, 10 Wall. 204). (2) Libellaat is not deprived of his lien by the fact that the advances were made to the owner, since credit was not given to him {The Guy, 9 WaU. 758 ; The Kalorama, 10 Wall. 213). (3) This lien exists for advances made in Canada (see brief in preceding case). Mr. Alfred Russell, for claimailt. (1) Granting that Eakin was not the owner, but that Robarsh was, we say that no lien is implied from contracts made by the owner in person (Conk. Adm. Y, 59 ; The St. Jago de Cuba, 9 Wheat. 416, 417 ; Beldon v. Campbell, 6 E. L. & E. 473 ; Pratt v. Reed, 19 How. 361 ; The Sophie, 1 W. Eob. 369; Thomas \.Oslorn, 19 How. 29, 38, 40, 43). (2) A person who loans money to be used in repairing a vessel is not a material-man, and can have no lien upon the vessel {Zawson v. Higgwis, 1 Mich. 225 ; 2 Pars, on Ship. 148, n. 4). (3) Credit given to the builder or owner creates no lien {The Ably Whitmam,, 11 Law Rep. 322). (4) For aU advances on this side the river iibellant took* notes of Eobarsh, which are not produced or surrendered to be canceled (2 Pars, on Ship. 153, n. 1). (5) Charges for telegrams are not liens {The Jos. Cunard, Olcott, 120). As to the necessity which wiU give a lien for borrowed money, see The Rainbow (Bee, IIY) ; The Per- severance (1 Blatch. & How. 388) ; The MaiUand (2 Biss. 201). LONGYEAE, J. The position of respondent's advo- cates, that there is no lien by the maritime law for moneys advanced to purchase or pay for necessaries supplied to a ship EASTERN DISTRICT 01' MICHIGAN. 539 The Union Express, in any case, has been fully disposed of against the proposition by numerous decisions of the Supreme Court ; and it may be regarded as well settled law, that a maritime lien exists for such advances, in aU cases where it existed for the necessaries themselves [Thomas v. Osborne, 19 How. 22, 28). In this ease, Mr. Justice Curtis, delivering the opinion of the Court, says : " It is not material whether the hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money on the credit of the vessel, in a case of necessity, to pay such furnishers." And since that decision, the same doc- trine has been frequently reiterated and applied by that Court, down to a very recent period [The Grapeshot, 9 Wall. 129, 141 ; The Lulu, 10 Wall. 192, 203 ; The Emily B. Souder, 3 Ben. 159 ; s. c. 8 Blatch. 337). The position of respondent's advocates that no lien arises or is implied for necessaries supplied on request of the owner, has also been fully settled against the proposition by the same high authority ; and it is settled law that a lien may arise or be applied as well in such a case as where they were supplied on request of the master, in the absence of the -owner, the only difference being that where supplied on request of the owner, the facts that the supplies were necessary and that they were furnished on the credit of the vessel as well as of the owner, must be made to appear, while in the other case those facts are presumed {The Guy. 9 Wall. 758 ; Tlie Kaiorama, 10 Wall. 204, 213). In the case of The Kaiorama, the Court say : " Implied liens, it is said, can be created only by the master ; but if it is meant by that proposition that the owner or owners, if more than one, cannot order repairs and sup- plies on the credit of the vessel, the Court cannot assent to the proposition, as the practice is constantly otherwise." " Un- doubtedly," say the Court, " the presence of the owner defeats the implied authority of the master, but the presence of the owner would not destroy such credit as is necessary to furnish food to the mariners, and save the vessel and cargo from the peril of the seas." " More stringent rules," they say, " apply as between one part owner and another, but the case is free 540 ■ DISTRICT COURT. The Union Express. from all diflSculty if all the owners are present, and the advancei are made at their request or by their direction, and made oi agreement, express or implied, that the same are made on th( credit of the vessel." (See, also. The CornmoivweaUh [Easterr District of Missouri], 20 Int. Kev. Kec. 64.) In the present case, the proofs showed the following facts That the repairs, materials, &c., to pay for which libeUant's ad Tances were made, with two or three unimportant exceptions were necessary to enable the barge to prosecute her business that Robarsh, the person on whose request the advances wen made, was the equitable owner as well as master, during the whole time the advances were being made, although the lega title was in another person ; that Robarsh was utterly irre sponsible and without credit ; that libellant made the advance! on the express understanding and agreement with Eobarsl that he should have a lien on the barge therefor, and the ad- vances were accordingly charged by libellant, upon his books, directly to the barge, by name. Here are all the element combined necessary to create a lien (see authorities above cited). It was claimed that libellant held the legil title of the ves- sel, as security, by a bill of sale or mortgage, and it was con tended that therefore any lien he may have was not a maritime lien, enforceable in this Court. The facts in that regard are as follows : Previous to the transactions here in question, Eakii had indorsed Eobarsh's note for $150, and to secure himsel: had taken a bill of sale of the barge from one Shipley, in whon the legal title then stood. The note was afterwards paid witl Robarsh's money, and Eakin never became liable or sufferec any loss on account of the transaction. Afterwards, when th( advances here in question were in contemplation, Eakin re fused to make them on Eobarsh's personal responsibility, anc it was agreed that he should have a lien upon the barge for th( same. The bill of sale, although extinguished by the paymen of the $150 note, still remained in Eakin's possession, ane Eobarsh indorsed upon it a sort of release to Eakin of all hi interest, right and title in and to the barge, both parties sup EASTERN DISTErCT OF MICHIGAN. 541 The Union Express. posing and intending that the Shipley bill of sale was thereby- made a continuing security to Eakin ; ' and so matters remained during the whole time the advances were being made. After the advances had all been made, Eobarsh, without the knowl- edge or consent of Eakin, sold the barge, and caused her to be duly and legally conveyed to John Pridgeon, claimant and re- spondent in this suit, and he claims to own the barge, free and clear of any lien whatever in favor of Eakin. The grounds upon which this claim is based are : 1. That by virtue of the bill of sale from Shipley to Eakin, the latter was legal owner of the barge while the advances were being made, and no lien could accrue to the owner ; or, 2. If not owner, he was at least a mortgagee for security of the advances, and his only remedy is by foreclosure of his mortgage, which cannot be accomplished in this suit or Court. In the first place, the bill of sale being for security merely, it was extinguished and ceased to be. of any force or effect whatever by the payment of the note to secure which it was given ; and, in the second place, it was not in Eobarsh's power to revive it or confer upoij Eakin any right or title under it, as mortgagee or otherwise, without the co-operation and deed of the person who held the legal title. ' The transaction, how- ever, makes it evident that it was the understanding between Eobarsh and Eakin that the advances in question were made by the latter on the credit of the barge, and so it supports Eakin's claim to a maritime lien, and a right of action hi rem in this Court {The Kalorama, 10 Wall. 213, 214). As master and equitable owner, it was competent for liobarsh to bind the vessel to that extent, but he could convey no legal title by way of mortgage or otherwise, because he had none himself. The proofs show that during a portion of the time the ad- vances were being made, Eakin was jointly interested with Robarsh in the operativ-ns of the barge. The joint interest, however, extended to only one trip and cargo. The items of libellant's claim arising out of that joint transaction amount in the aggregate to $136 23. This amount was ■ withdrawn by libeUant at the hearing, and must be deducted from libellant's 542 DISTRICT COURT. The Union Express. claim. The amount so withdrawn includes an item for ton- nage duties, and nearly all the items for telegrams embraced in libeUant's account, and on account of which it was claimed no lien could arise ; and it also includes the only item for which , Robarsh's note was taken by Eakin, and not delivered up at the hearing, and therefore the questions raised as to all those items have become immaterial. A few items of the same char- acter, mostly for telegrams, remain in the account, but they are insignificant in amount, and although standing alone, they would probably create no lien, yet they seem to have been in- timately connected with transactions for which there is a Ken, and they will not be rejected. A portion of the supplies for which libellant made advances, amounting in the aggregate to $98 50, were furnished at Wind- sor, opposite Detroit, and in the Province of Ontario, and while the barge was at that port. Windsor was the home port of the barge at the time, and it is contended that as to this amount at least libellant had no lien, for the reason that none exists in such cases by the maritime law as administered in England, and that the laws of England were .the laws of Ontario ; and the argument is, there being no liens for the supplies them- selves, there could be none for advances made to pay for them. The conclusion stated undoubtedly follows from the premise stated ; but I think the premise cannot be maintained, for two reasons : 1. It was expressly agreed between Eakin andKobarsh, who, as we have seen, was entirely competent to make the agree- ment so as to bind the vessel, that Eakin should have a lien upon the barge for all advances made by him to pay for sup- plies, without any exception or limitation as to the place or places where the supplies themselves should be furnished or the advances should be made. 2. By the general maritime law there is a lien for necessaries supplied to a domestic as well as a foreign ship, the only difference being that, in regard to a domestic ship, the necessity and the fact that the supplies were furnished on the credit of the ship must be proven, while, in regard to a foreign ship, those matters are presumed (see au- thorities before cited, and especially The Commonwedlth, 20 EASTERN DI8TEICT OF MICHIGAN. .543 The UuioQ Express. • Int. Rev. Eee. 64). This Hen in fact exists in places subject to the laws of England, notwithstanding the jurisdiction to en- force it there is denied {The Champion, decided by this Court at the present term). And since the recent amendment of General Admiralty Kule 12, the general maritime law prevails in and is administered by the Admiralty Courts of the United States in regard to liens for supplies in a domestic as well as in a foreign port ; and this, notwithstanding there may be no ju- risdiction to enforce them in the locality where the supplies were iyxnmh.QA {The Maggie Hammond, 9 "Wall. 435, 481,482; The Commonwealth and The Champion, supra). It is true, in cases where the parties, the vessel and the place of the contract or port are all foreign, the entertainment of jurisdiction by our Courts in any case is a matter of comity, and not a matter of right ; and where in such case they are all sub- jects of the same foreign country, and in which there is no ju- risdiction to enforce such liens, and citizens of the United States could not have the same remedies there as are accorded to such' foreigners here, our Courts will not in general entertain the jurisdiction, but they may do so in their discretion {The Maggie Hammond, supra). In the present case the libellant is described in the libel as a citizen of Detroit, in this District, and no issue was made as to that allegation. The claimant is also a citizen of the United States. From what has been said, it results that the objection ■to the allowance of a lien for the advances made to pay for nec- essaries supplied in the Province of Ontario is not well taken. Four items of credit were claimed — one of $300, one of $21, one of $50, and one of $84 68. The item of $300 was satisfactorily shown to have been entered by the book-keeper by mistake, and cannot be allowed. The item of $50 related to the joint adventure, and must be rejected with the a,ccount relating to that matter. The remaining items, amounting to $105 68, must be allowed. The whole amount of advances made by libellant, after de- ducting the amount arising out of the joint adventure, is $63Y 17, as proven. Deducting the credits allowed, the bal- 544 DISTEICT CO CRT. The Senator. ance in favor of libellant is $531 89, on whicli amount interest must be allowed at seven per centum per annum for one year and nine months, that being a fair average of the time the advances have run. Balance of debt ■ $531 89 Int., 1 year and 9 months, at 1 per cent. 65 16 Making a total of . : $597 05 For which libellant must have a decree, with costs. Decree accordingly. THE SENATOK. FEBRUARY, 18T6. Towage. — Master's Certificate. — Duress. — Power of Usder- WRiTER OF Cargo to Bind Vessel. A master's certificate as to the amount agreed to be paid for services will not be set aside, unless it appear clearly and satisfactorily that the sum named is so unreasonable as to raise a suspicion of fraud. The malring of such certificate under a threat to attach the vessel is not such duress as will avoid its effect. The underwriter, where there is no abandonment, has no authority to direct the master, or to contract for the vessel. James Moffat and Alonzo N. Moffat libelled the schooner Senator upon a claim and account certified by her master as correct, for $400, for towage services August 14th, 1873. The defenses set up will appear in the opinion of the Court. Mr. H. B. Brown, for libellants. Mr. W. A. Moore, for claimant. EASTEKIT DISTRICT OF MICHIGAN 546 The Senator. LONGrTEAE, J. It is conceded that the master's certifi- cate was within the scope of his authority as master, and if made voluntarily and without coercion it was binding on the vessel and owners. But it was contended that it was made under coercion and not voluntarily. The only coercion pretended was that testified to by the master, viz : A threat by libellants to libel and attach the ves- sel in the Eastern District of Michigan, where she then was, if he refused to sign the certificate ; and that he signed it in consequence of such threat in order to avoid being detained and delayed in the completion of the voyage then in progress. Libellants testified that no such threat was made; but, if it was made, it was simply to take a strictly legal step to litigate th6 matter in controversy, which was, not whether anything was due libellants, but how much ; and the making of the cer- tificate by the master was simply the exercise of a choice on his part, to submit to what he was not willing to concede to be right, jather than take the risks and incur the trouble, delay and expense of a law suit. Such settlements are of frequent occurrence in business matters, and are always upheld when untainted by fraud, mistaJie or unfair dealing, as in this case ( Wilcox v.. Howland, 23 Pick. 167 ; Waller v. Crolle, 8 B, Mon. 11 ; Eddy v. Serrin,11 Me. 338 ; Alexander v. Pi&rce, 10 K H. 494). Another ground urged for setting aside the certificate was, that the amount was grossly exorbitant for the service rendered. In order to defeat the certificate on this ground it was neces- sary to make it appear clearly and satisfactorily that the amount allowed was so unreasonable as to raise a presumption, or sus- picion at least, that the certificate was fraudulently or mali- ciously made (2 Pars. Ship. & Ad. 10). Have we here such a case made out ? The service had already been rendered and the dispute was as to how much it was worth. The amount certified by the master was $400, and the estimates of the wit- nesses ranged all the way from $500 down to $75. This certainly fails to make out such a case as was necessary, under the rule above laid down, to set aside a settlement deliberately made. 89 546 DISTRICT COUKT. The Senator. Another ground urged was that the matter had been re- ferred for settlement to one Guyle, an agent for the under- writers on the cargo, aiid he had instructed the master to pay no more than $50. In the first place, this is not consistent ■with the concession of the master's authority in the premises, already alluded to. In the next place, there is no proof of any such reference. There is some proof that Guyle was some- what consulted in the matter, but none that it was referred to him for settlement, either formally or informally. In the next place, Guyle had no authority simply by yirtue of his agency for the underwriters to direct the master what to do or what not to do in the premises, there having been no abandonment to and of course no acceptance by the underwriters. Insurers are mere strangers, and are not entitled to be heard under such circumstances {The Pack^, 3 Mason, 255, 258 ; United Ins. Co. V. Scott, 1 Johns. 106 ; see, also, I'he Boston, 1 Sum. 328, 332). And finally, even if Guyle had any authority in the premises, it extended to the cargo only, and this suit is against the vessel alone. It results that libeUants must have a decree for the biU as certified, with interest from date, and costs of suit. Decree for liieUants. EASTERN DISTRICT OF MICHIGAIf. 647 The Magnet. THE MAGISTET. FEBRUARY, 1S15. Wages. — Forfeiture for Desertion and AJ^sconddct. Where a seaman employed upon a Bteamboat by the month, left before the ex- piration of the month he was then serving, Seld, his entire unpaid wages were forfeited. Where the seooiid engineer is employed by the first engineer, the latter has a right to discharge him for good cause, without, and even against, the consent of the master. Where an engineer wilfully deranged his engine, in order to compel the boat to stop at a certain port at which he desired to leave, it wasTield such miscon- duct as worked a forfeiture of wages. The libel was fQed by John B. Howard for a balance due him as wages for services as first engineer on the steamer dur- ing a portion of the navigation season of 18T1. The balance claimed to be due was $175. The defense was desertion and im- proper conduct, which more fuUy appears in the following; opinion. Mr. H. B. Brown, for Kbellant. Mr. W. A. Moore, for claimant. LONGTEAE, J. The law of this case was determined by this Court in the case of The John Ma/rtin (2 Abb. U. S. 172). It only remains to determine whether, xmder the law, the proofs make out a case of desertion and forfeiture of That libellant left without the . consent of the master, and with the intention not to return, was fully proven, and was not disputed. The only questions therefore are, whether he had the right to leave when he did, under his contract ; and if not, then whether he had just cause for leaving. MB mSTRICT COURT. The Magnet. At the hearing there was some dispute whether the hiring of libellant was, expressly for the entire season of navigation, or by the month simply, without any express understanding as to the term of service. I think the latter is suBtained by the proofs ; but it is of no great importance which it waa, because it waB clearly proven and was undisputed that libeUant left be- fore the expiration of the month upon which he had then en- tered. This, as was decided by this Court in the case of The John Mobrtm (s?<;p7"a), was a leaving before the term of service agreed on had expired. Libellant, therefore, had no right to leave when he did, under his contract. Had libellant just cause for leaving ? The only cause urged or pretended was that he was dissatisfied with his second en- gineer on account, as alleged, of his habitual drunkenness, and that the master refused to discharge him. The proofs show that libellant as first engineer, had the right to employ his second, and that he actually exercised that right in the employ- ment of the second engineer, in regard to whom the above mentioned complaint was made. This carried with it and vested in libellant the right to discharge the second engineer for good cause, without, and even against, the consent of the master ; and habitual drunkenness would be good cause, if such was the fact. There was, however, a preponderance of evi- dence that such was not the fact, but that libeUant, having made up his mind to leave, the complaint as to the second engineer's habits was a mere excuse for leaving. I think, therefore, for both reasons, there was no just cause for libel- lant's leaving. Libellant so left during a voyage, after the steamer had left her home port, and at a place where it was difficult to supply his place, causing considerable delay in the prosecution of the voyage, and thus resulting in damages to the owners to an amount much larger than the balance of wages then due. Un- der all these circumstances it must be held that libeUant's leav- ing was a desertion, within the meaning of the maritime law, and that the same worked an entire forfeiture of the balance of his wages then due. EASTERN DISTRICT OF MICHIGAN. 649 The Tonng America. There was, however, still another cause of forfeiture inde- pendent of the desertion. By a preponderance of evidence it appeared that on the way from Detroit to Port Huron, where libellant left, he wilfully, and for the purpose of com- pelling the steamer to stop at Port Huron, deranged the en- gine. It was conceded at the hearing, and as is no doubt the law, that if so found by the Court, this fact alone would be sufficient cause of forfeiture of wages. Libel dismissed. THE YOUNG AMEEICA. FEBRUARY, 18'76. Collision. — Insufficient Manning Pkksdmption op Fault. Where the master of a small tng was also acting as wheelsman and lookout, tut it was clear this fact did not contribute to the collision, Held, the tng was not thereby chargeable with a fault. But where the master, even of a small scow, was acting as wheelsman and look- out, and the proofs left it doubtful whether this contributed to the collision, the scow was held liable. This was a libel, by the same libellant, in rem against the tug Young America and scow Home, and in personam, against Francis B. Cottrell, owner of the scow "Wilcox, for the same collision, and the two causes were heard together. The collision occurred about noon on the 22d day of I^o- vember, 18T1, at the lower end of the new canal on St. Clair Mats, by the libellant's vessel, the scow Liberty, first bringing up against the lower end of the pier on the- port side coming down, and the scow Wilcox running into her stem while she lay against the pier, causing injury to both her stem and stem. The scow Home was in tow of the tug coming down, and 550 DISTRICT, COURT. The Young America. the other two vessels were under sail also coming down, the tug and Home ahead, the Liberty next, and the Wilcox in the rear. Xhe faults charged against the respective vessels appear in the following opinion. Mr. H. B. Brown, for libeUant in both cases. Mr. W. A. Moore, for the tug Young Aifierica. Mr. Jno. Atkinson, for the scow Home. Mr. F. E. Canfield, for respondent Cottrell. LOISTGYEAR, J. I. The only faults charged against the tug are : 1. Casting off the line of the Home while still in the canal, and without any warning to the other vessels, and 2. "Want of necessary officers and crew. 1. The first charge is not only denied by the answer and not sustained by the proofs, but is unquestionably negatived by the proofs. 2. The second charge is sustained by the proofs in this, that the master was acting as wheelsman, and there was no lookout man on duty (The Victor, decided by this Court, July 29, 18Y3). But no liability can be attached to the tug on this account in this case, because it is clear from the proofs that this fault did not contribute to the collision, as will appear hereafter when considering the case of the other two vessels. II. The only charge of fault against the Home was for paying off when her line was dropped by the tug so rapidly that the Liberty could not pass her, whereby the latter was caused to collide with the pier. This is clearly not sustained by the proofs. The Home did pay off, as a matter of fact, not in consequence, however, of her line being dropped by the tug, because her line had not then been dropped, but in consequence of a puff of wind driv- ing her up on to the tug, and obliging her to pay off to avoid EASTERN DISTRICT OP MICHIGAN. 551 The YouDg America. running into the latter. The same pnfE of wind drove the Liberty at the same time up alongside and to leeward of Ae Home. The vessels having the wind from the starboard and nearly arbeam, the sails of the Liberty were becalmed by the wind being taken from them by the sails of the Home, and in •order to extricate her the helm was put to starboard, and other measures taken to make her pay o£E still more. At first she did not seem to mind her helm, but when she did she payed off very suddenly and very rapidly, and although strenuous efforts were made to bring her back on her course, she proved to be unmanageable, and kept on quite sharply across the channel, and ran against and collided with the pier near its lower extremity, on the port side coming down. She struck the pier at an angle of from two to three points from the line of the channel bank, and did considerable injury to her port bow. The proofs showed that there was ample rooni for her to have passed between the Home and the pier, and that she could and would have done so with safety, but for her bad steering qualities or some mismanagement on board of her, or 3)erhaps both. There was, therefore, no case made out against the Home. HI. The allegations of fault against the Wilcox are : 1. No lookout ; 2. Not properly manned ; 3. No proper precau- tions to avoid the. Liberty ; 4. Not coming to windward far enough to avoid the Liberty. The first and second allegations of fault are fully sustained by the proofs. There was no lookout man on duty, and the master was acting as wheelsman. These are positive faults for which, in case of collision, a vessel will.in all cases be held responsible, unless it can be shown by the vessel so in fault, clearly and satisfactorily, that such faults did not contribute to the collision. This was not so shown in this case. The most' that can be said is that it was left in doubt whether the Wil- cox could or could not have avoided the Liberty after it be- came certain that the latter could not be brought back on her course, and was in danger of colliding with the pier, even if ihe former had had a lookout man on duty, and the master 552 DISTRICT COURT. The Young America. had been giving his undivided attention to the navigation of his vessel. The rule above alluded to applies especially to ves- sels navigating narrow channels, with other vessels ahead in the channel, and in their immediate vicinity, involving the risks of emergencies, as was the case here, requiring intelligent and prompt action on the part, of the officer in command {The Genesee Chief, 12 How. 443, 463 ; The Victor, supra). The case against the defendant Cottrell is therefore sustained. IV. The only remaining question is whether the Liberty was herself free from fault. This must be held in the^negar tive, for the same reasons and on the same grounds for which the Wilcox has been held liable. The libeUant is therefore entitled to recover against the respondent Cottrell for a moiety only of the damages done to the stem of the Liberty. The damages done to the bow of the Liberty were done by her colliding with the pier, for which the Wilcox was in no man- ner responsible. Libel against the Young America and the Home dis^ missed, with costs to claimants. Decree against Cottrell for a moiety of the damages occasioned by the injuries done to the stern of the Liberty by the collision, and referring it to a com- mission to ascertain and report the same. Costs reserved till the comiug in of the commission's report. Ordered accordingly ~ EASTERN DISTSICT OF MICHIGAN. 553 Gillet a. Pierce. JOHN E. GILLET et al. v. JEROME PIEECE et ai. FEBRUARY, 1875. ft Practice. — Eight to Jury Trial under the Act of 1845 akd THE Revised Statutes. Unlesa giTen by statute, there is no right in admiralty to a trial by jury. The Act of 1846 was passed upon the assumption that, by the Constitution and Judiciary Act of 1789, admiralty jurisdiction was limited to tide waters ; that cases arising upon the lakes were cognizable only in the common law courts, and were consequently triable by jury under the Constitution ; and that Congress could not transfer the jurisdiction in such cases to Courts of Admiralty, with- out " saving to the parties the right of trial by jury." Congress did not in- tend by this clause to grant a new right, but to save one already supposed to exist. The assumption upon which the Act was passed having been declared to have had no existencfe, the entire Act, including the saving clause of a right to a trial by jury, became inoperative. By the Revised Statutes, however, the law is changed, and the right to a trial by jury is erpressly given in the class of cases specified in the Act of 1846. The party demanding a jury must bring himself by his pleadings within the provisions of the Act. Motion of libellanta to strike from respondents' answer a demand for a jury trial. The action was in personam on a contract for towing certain rafts of timber for the respondents from various places on Lake Huron to Buffalo. The answer admitted the contract, but alleged, by way of defense, negli- gence and damages in the performance of it, and contained a request that the issue thus joined be tried by jury. Mr. H. B. Brown, for libellants. Mr. W. A. Moore, for respondents. LONGYEAE, J. It was conceded th^t the right of trial by jury, in civil causes of admiralty and maritime jurisdiction, 554 DISTRICT COURT. GiUet V. Pierce. does not exist unless it is expressly given by some statutory enactment ; but it was claimed tbat it is so given by the Act of Congress of February 26th, 184:5, entitled " An act extend- ing the jurisdiction of the District Court in certain cases upon the lakes and navigable waters connecting the same " (5 Stat. Y26), as retained and embodied in the late revision of the stat- utes of the United States (sec. 566). The history of this legislation is very peculiar. The Act of 1845 was passed, as is well imderstood, on the assumption, and as had been up to that time held by the Supreme Court, that by the Constitution and the Judiciary Act of 1789, admi- ralty jurisdiction was limited to tide water, and consequently did not extend to cases arising upon the lakes and navigable waters connecting. the same. From this assumption it followed, as a matter of course, that at the time of the passage of that act all such eases were cognizable in the common law Courts alone. From this followed, equally of course, the further as- sumption that the Constitution (article 7 of amendments) guar- anteed the right of trial by jury in all such cases. And from this followed, equally of course, the further assumption that Congress could not transfer the jurisdiction in such cases from the common law to the Admiralty Courts, without saving that right to suitors, and so the language of the provision in ques- tion as originally enacted clearly indicates, " saving, however, to the parties the right of trial by jury of aU facts put in issue in such suits, where either party shall require it " (5 Stat. 727). It is therefore clear to my mind that it was the in- tention of Congress by the clause not to grcmt or confer a right which had no existence without it, but simply to save a right which it was assured was already in existence, and which they had not the power to abrogate. It was a mere saving clause, necessary to make the Act constitutional upon the aforesaid theory on which it was based ; and it was undoubt- edly for that purpose, and that alone, that it was inserted, and not as a positive enactment. Looking at the clause in this light — and I do ngt see how it can be looked at in any other — it cannot be assumed for a moment that Congress had the re- EASTERN DISTRICT OF MICHIGAN. 555 Gillet I). Pierce. motest idea or intention of making a positive grant of a right not already in existence. But the theory upon which the Act of 1845 was based, and consequently the theory upon which the clause in question was made necessary, and the purpose for which it was inserted, have been decided by the Supreme Court to have had no existence (Tha Oenesee Chief, 12 How. MS), and hence that the Act itself, as an Act extending admiralty jurisdiction as indicated by its title, was inoperative and of no effect {The Eagle, 8 Wall. 25). In these cases the Supreme Court decided that admiralty juris- diction in this country was not limited to tide water ; but on the contrary, that by force of the Constitution and Act of 1Y89, it extended to the lakes and navigable waters connecting the same. From this it followed that at the time of the pas- sage of the Act of 1845, the very cases provided for by it, and as to which it assumed to confer jurisdiction upon the Admi- ralty Courts as a new jurisdiction, were already cognizable in those CourtSj.and hence that the constitutional provision guar- anteeing the right of trial by jury in suits at common law had no application to those cases. In the case of the Genesee Chief, it is true, the Court upheld the Act, notwithstanding the opinion then promulgated, that the jurisdiction existed inde- pendent of it ; but in the later case of the Eagle, the Court yielded to the only logical result of their former decision, and held that the Act itself was useless for the purpose expressed in its title, and for which it was passed ; and that inasmuch as the only effect it would have if- enforced at all would be to Umit instead of extend jurisdiction, contrary to its plain intent and purpose, it was held to be inoperative and of no effect so far as it related to the question of jurisdiction. This left the clause in question in this shape : In its incep- tion it was the mere saving of a supposed constitutional right ; and the necessity of it was because of the supposed pre-exist- ence of such right. Inasmuch, therefore, as no such right did in fact exist, as we have already seen, the clause had noth- ing to act upon, could save nothing, and, in fact, was inopera- tive and of no effect, equally with the other provisions of the 566 DISTRICT COURT. Gillet V, Pierce. Act. Tliis conclusion seems to me an inevitable and incon- testible logical necessity. • I am not unmindful that in the ease of the Eagle, the Su- preme Court expressly excepted the clause in question from the effect of their decision holding the Act inoperative and of no effect, and that the language made use of by the learned judge who delivered- the opinion (the late Judge Nelson), may admit of the construction that the Court considered the clause as giving the right of a jury trial in the cases specified in the Act. But it is to be observed that the question of the effect of that clause was not directly before them ; and it must be presumed that it did not receive that consideration it would have received if it had been before them and fuUy presented. I think the greatest effect that can be given to that exception is, that the question as to the effect of that clause, or whether it could be given any effect standing alone as it was left by the decision, was left open and undecided. If this were all, I should have no difficulty in holding that the clause in question was inoperative and of no effect, and that the libellant's motion to strike out and deny respondent's request for a jury trial ought therefore to be granted. But in the late revision of the United States statutes the revisers and Congress, probably looking alone to the language used by the judge in excepting the clause in question from the effect of the decision of the Supreme Court in the case of The Eagle {supra), have sought to retain it as an existing, effectual enact- ment, and as an express grant of the right in the cases speci- fied in the Act of 1845. In the revision it is embodied in the same section with the general provision of the Act of 1789, in relation to trials of issues of fact in the District Coui"ts, and the whole section is made to read as follows : " Section 566. The trial of issues of fact in the District Courts, in all causes except cases in equity and cases of ad- miralty and maritime jurisdiction, and except as otherwise pro- vided in proceedings in bankruptcy, shall be by jury. In causes of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any ves- EASTERN DISTRICT OF MICHIGAN. 557 Gillet V. Pierce. el of twenty tons burden or upward, enrolled and licensed for he coasting trade, and at the time employed in the business )f commerce and navigation between places in different States md Territories upon the lakes and navigable waters connect ng the lakes, the trial of issues of facts shall be by jury when jither party requires it." It will be observed that the language,' and, it is respectfully suggested, the entire tenor and effect of the clause is wholly md completely changed from what it was in the act of 1845. [n that act it was the mere saving of an erroneously supposed are-existing right. In the revision it is an express grant of a right not previously existing. It is conceded that if retained it aU, such change was essential to give the clause any force or affect whatever. The necessity for such change, however, furnishes to my mind an unanswerable argument why it ought aot to have been retained, and why it ought to have been omitted from the revision as obsolete and of no effect. The embodiment of the provision in the revision in its changed form furnishes a remarkable instance of the manner in which Laws may and sometimes do get upon the statute books with- out ever having been deliberately enacted. Being there, how- ever, under the forms of legislation, it has become a law of the land, and as such, it must be obeyed. It is respectfully suggested, however, that, without further legislation, it is a mere excrescence upon the jurisdiction of the Admiralty Courts, partial in its provisions, impracticable of application in many of the cases sought to be provided for by it, and in some respects impossible of execution so as to do complete justice, for want of the necessary machinery to carry it out to its proper and legitimate results. It is partial, because it in- cludes only a portion of the causes cognizable in the admiralty, and as to those it is limited to such only as arise in a restricted locality. It is impracticable in many cases, becausQ in cases arising upon contracts or torts upon or concerning two or more vessels where one is within the class of vessels specified in the provision and the other is not, as frequently occurs here upon these border waters, two trials may be made necessary, one 558 DISTRICT COURT. Gillet V. Pierce. with a jury and one by the Court without a jury, and that upon the same state of facts, and often resulting perhaps in different and opposite judgments, and thus, involving inextri- cable confusion. In some respects it is impossible of execution so as to do complete justice, because no provision is made for a review of cases thus tried, and it thus defeats a valuable ' right which a party feeling aggrieved would otherwise have. By the Constitution (Art. 7 of Amendments), " no fact tried by jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." By these rides the only mode known by which facts tried by a jury may be re-examined, other than by granting a new trial by the Court where the issue was tried, is by the award of a venire facias de novo by an appellate Court, for some error of law which intervened in the proceedings (2 Story on the Constitution, 3d ed. 548 ; Insurance Company v. Comstocle, 16 "Wall. 258, 269) ; which mode, however, is not known to proceedings in admiralty, and can have no applica^ tion to such proceedings without express legislative enactment. The only provision in existence for the review of judgments and decrees in the District Courts in civil causes of admiralty and 'maritime jurisdiction is by appeal (eec. 21, Act of 1789, 1 Stat. 83) An appeal entitles the parties to a full rehearing upon the facts as well as the law, which, however, cannot be had by the rules of the common law in a case tried by a jury- in the District Court, and by which rules alone, as we have seen, a case so tried, can be reviewed. The imperfections and incongruities of the provision have doubtless arisen in a large degree from the mistaken theory upon which the Act of 1845 was based, and the peculiar cir- cumstances under which the enactment has found its way into the revision. It is to be hoped that the attention of Congress will be speedily called to the matter, when they will undoubt- edly repeal the provision or make it general and uniform, ap- plicable alike to all cases and all localities ; and at the same time make ample provision for a review of cases thus tried. If trial by jury in admiralty causes is to be allowed at all, EASTERN DISTRICT OF MICHIGAN. 659 GUIet V. Pierce. either under tjie present limited or more extended provisions, It would, if permitted, suggest that it be left to the discretion of the Court in each individual case ; and that it be accom- plished by making up an issue under the direction of the Court and sending the same to be tried by a jury on the common law side of the Court, as is done in equity causes, and also, I believe, in the English Admiralty. This course would do away with some of the difficulties above suggested. The pleadings do not bring the present case within the provisions of the enactment, it nowhere appearing by the libel or the answer that the "vessel concerning which the contract in question ai'ose was " enrolled and licensed for the coasting trade." The motion must, therefore, be granted and a trial by jury denied. Motion granted. DISTRICT COURT.. EASTERN DISTRICT OE MICHIGAN. Hon. henry B. BROWN, Distkiot Judge. THE HEEOULES. SEPTEMBER, 1876. Stale Claim. — Limitation op Actions as against bona fidb purchasbbs ■without noticb. Creditors of ressels plying npon the lakea must enforce their liens, as against bonajide purchasers without notice, during the current season of nayigation, or within such reasonable time after the commencement of the next season as may be necessary to arrest the vessel Circumstances may occur, which would greatly abridge or lengthen this time. The fact that the former owner of the vessel told the buyer, whin purchasing her, that there might be some small claims against the vessel, which he would pay — ^that he did not know what the cl^ma were, or who held them — would not in the absence of negligence affect the purchaser with knowledge of any particular claim. The fact that the purchaser takes a mortgage upon another vessel, indemnifying him agMust any claims upon the vessel purchased, does not operate to extend the time within which creditors should pursue their claims, or deprive him of his rights as a bona fide purchaser, without notice. Nor can mere notice of the existence of a certain claim affect his rights, unless such notice be had at the time of purchase or of payment. WTiere a claim accrued in August, 1873, and the libel was not filed untU September, 1874, and the vessel in the mean time was easy of access, and several times in the port where the supplies were furnished : Held, that as against a person who bought and paid for her in January, without notice of the claim, the lion must be deemed waived. EASTERN DISTRICT OF MICHIGAN. 561 The Hercules. On August 13th, 1873, certain fuel was furnished by libel- lant at Samia, in the Province of Ontario, to the tug Hercules, then owned by one McCarthy, a resident and citizen of Michi- gan. Ifo effort was made to enforce collection of the claim during that season, and on the 19th of January, 1874, the tug was sold to William A. Mills and Sarah E. Mills, claimants, resident in Detroit, who paid for her $6,000 in cash, taking a mortgage on the barge Eliza, to indemnify them against any biUs that might be outstanding against the Hercules, and which should appear to be liens upon the tug in their hands. Libel was filed on the 10th of September, 1874. No question was made as to the value of the fuel, nor that the same was neces- sary and was furnished on the credit of the vessel. The answer averred, however, that the claimants were hona fide purchasers of the tug without notice of libellant's claim, and that the same had become stale by reason of his neglect to enforce it. This was practically the only defense set up in the case. Mr. J. G. Donelly, for libeUant. Mr. H. H. Swcm, for claimants. BROWN, J. Much discussion is found in the elementary books upon the question, when a claim against a vessel be- comes stale as against a iona fide purchaser without notice. So* much depends upon the facts and circumstances of each case, that it is exceedingly difficult if not impossible to lay- down any general rule applicable even to a particular class of cases. The rule obtaining upon the seaboard, which forbids the libeUant pursuing his claim, as against hona fide purchasers, after the end of the voyage next succeeding the contracting of the debt, served a good purpose when applied to the long voyages of sailing vessels, but is iU adapted to the exigencies of steam navigation, and I believe has become practically obsolete. 562 DISTRICT COURT. The Hercules. Of coTiTBe such a rule would be wholly inapplicable to lake navigation. Indeed, the short trips made by vessels here, can hardly be dignified with the name of voyages. Some other rule must be adopted, and it should be so weU understood that persons giving credit may know how long it is safe to delay enforcing their claims without prejudice to their rights as against hcmafide purchasers without notice. In the case of The BueJceye State (Eewh. Ill), Judge Wil- kins, of this district, refused to enforce a claim that had laia dormant for three years, and observed that there was " great reason to limit these tacit liens to the season of navigation, and not to extend their obligation beyond a year. If in the com- merce of the ocean the lien cannot with propriety be extended, except under special circumstances contradicting the presump- tion which delay creates, beyond the voyage and the return to the home port where it may be enforced, with equal propriety should a season on the lakes, embracing the whole year, be con- clusive, especially where the right of a purchaser without no- tice intervened." In the case of The Dubuque (2 Abb. U. S. 20), my learned predecessor also refused to enforce a lien for wages after three seasons had elapsed, and held as a general rule that " a delay to enforce a maritime lien, after a reasonable opportunity to do 60, shall be taken and deemed as a waiver of the same, as against subsequent purchasers or encumbrancers in good faith without notice, unless such delay is satisfactorily explained." I think, however, that this hardly gives sufficient latitude, as a reasonable opportunity may occur within a week by the return of the vessel to the port where the debt was contracted. In the case of The Favorite (1 Bissell, 525), the District Court of Wisconsin refused to enforce a libel for the loss of goods, filed two years and ten months after the loss, and after a honafide assignee of the bill of lading had seized the boat. The whole subject received an elaborate consideration at the last June term of this Court in the case of the barge De- troit, decided by Mr. Justice Swayne {ante, p. 141). A' claim for towage accrued against a vessel in May and June, 1865, EASTERN DISTRICT OF MICHIGAN. 563 The Herculea. while she was in the hands of a person who had contracted to purchase her. Having failed to fulfill his contract, she was re- turned to her owner, who took Jaer to Canada within a month or two after the services were rendered, where she remained until June 27th of the following year. She was then resold to a hona fide purchaser without notice, who brought her within the jurisdiction of the Court, and kept her during the residue of the summer. On October 6th, the libel was filed and the vessel attached. Held, that the Hen was waived and that the action could not be entertained. The learned justice says: "In the case of the Buckeye State and the Dubuque a rule applicable to the lakes is laid down, that where the vessel has passed into the hands of a hona fide purchaser, claims of this character should be prosecuted within the current season of navigation, or at least within a year. I think this rule is founded upon the most solid consid- eration of good sense." In fixing the time within which creditors of lake vessels must pursue their claims as against hona fide purchasers, I think it should be borne in mind : 1. That the credit given to vessels for supplies and towage is often extended through the winter following the contracting of the debt, and until the opening of navigation in the spring, though this can hardly be called the general custom. 2. That transfers of vessels are usually made during the winter season. The first consideration will lead the buyer to believe there may be outstanding claims against his vessel, and to protect himseK accordingly ; the second will induce the creditor to take prompt measures for the collection of his claim after the opening of navigation in the spring. In view of these facts, I think it reasonable to hold as a rule applicable to vessels plying upon the lakes, that lien holders should have the current season of navigation to enforce their security, and such reasonable time after the commencement of the next season as may.be necessary to arrest the vessel. This would not ordinarily extend the time beyond the 1st of June 564 DISTRICT COURT. The Hercnlee. of the following year. Circumstances, of course, may occur, which would greatly ahridge or lengthen this time. If the deht were contracted early in the season, and the vessel were immediately sold with the knowledge of the creditor, it might he inequitable to postpone collection after the close of the cur- rent season. If, on the other hand, the debt were contracted late in the season, and the vessel were not readily accessible, a further time might be allowed. Whether it would be the duty of the creditor to pursue the vessel into other districts than his own it is not necessary to determine. Much wiU depend upon the circumstances of each case. Applying this rule to the present case, it is clear that, as the debt was contracted in August, 1873, and the libel was not filed until September, 1874, the lien must be deemed waived as against the claimant, unless excusatory circumstances exist, taking the case out of the general rule. Such circumstances are claimed to exist in this case. 1. Although the present owners had no notice of this claim at the time of the purchase, McCarthy did teU them there were a few claims against the vessel of smaU amount, which he agreed to pay. He also said he did not know what the claims were, or who held them. To ascertain these claims Mr. Mills caused notices to be published for two weeks in two daily papers in Detroit. It would seem, although the evidence on that point is somewhat conflicting, that libellant or his agent had seen this notice or heard of the change of owner- ship. But whether this be true or not, I do not think the general notice that there were small debts agaihst the tug is sufficient to affect Mills with knowledge of the claim in ques- tion, in view of his efforts to ascertain such claims. 2. Although the purchase money was fully paid, there was a mortgage taken on the barge Eliza, to indemnify MiUs against any claims which might be outstanding against the tug. There is certainly much force in the argument, that, as the requirement of diligence is solely to prevent injury to innocent third parties, if the Court can see that the third party is indemnified and cannot be injured, the rule should not apply. EASTEBiSr DISTRICT OF MICHIGAN. 565 The Hercules. In the case of the Detroit, above mentioned, the collateral guaranty of a third party was taken to secure the purchaser against outstanding claims, and this same consideration was urged upon the learned judge who decided that case. He pronounced it unsound, however, and observed in his decision : " It is held in the authorities upon that subject that the very fact that the vendee accepts a quitclaim deed is strong evi- dence that he is not a T)ona fide purchaser, and such I conceive to be the law. I do not understand that a person, by taking the warranty of his vendor, or of a third party, loses the pro- tection of the law applicable to })(ma fide purchasers." This question did not arise in the case of The Melissa [ante, p. 476), as the proof showed that the suit was defended in fact by the vendor, and that the claimants had full protec- tion by itieans of a balance of purchase money stiU remaining unpaid against the vessel. I see no reason why the remarks made in the case of the Detroit with respect to guaranties are not equally applicable where the guaranty is in the form of a mortgage. The diffi- culty in libellant's position is this : The mortgage is taken for the protection of the purchaser, and not of the creditor. It is takpn, not to extend the time within which, claims may be en- forced, or to furnish an excuse for delay, but to protect the buyer against claims which may be presented within the time allowed by law. It is, in fact, something with which the creditor has nothing at aU to do. To give it weight might in- volve the buyer in litigations which he would otherwise have avoided. I must hold, therefore, that it has no bearing upon the present case. 3. About the middle of May, 1874, one Hartness, an agent of the libellant, came to A. H. Mills' office in Detroit, ai\d said he had a bill from Mr. Keys against the tug Hercules for wood bought in 1873. In reply Mills told him that the boat had changed hands, and he must look to the previous owner. He said he knew she had been sold, and had seen the notice in the paper, and wanted to know where he could find Mc- Carthy. MUls then showed him the barge which was lying 666 DISTRICT COUET. The Hercules. opposite Detroit, on the Canadian side of the river, and told him McCarthy, the late owner, was living on board. He said he would go and present the bill, and as he left Mills told him to return and let him know whether the bill was paid or not, and if not, he would see about it. He promised he would, but did not return. I think his conduct was such as to mis- lead Mills and induce him to believe he no longer looked to him for payment of the claim. Had he at once returned, and upon Mills' refusal to pay libelled the vessel, I should have held his claim still in force. 4. On July 9th, the tug being at Samia, the bill was pre- sented to William A. Mills, one of the claimants, who told libellant the boat had been sold, and that he had nothing to do with the bills. He replied he knew it, and had seen it in the paper. Mills then told him that he was part owner ; that he had bought her clear of debt, but that McCarthy and his boat were in Detroit, and that if he would send his bill to the tug office, care of A. H. Mills, McCarthy would straighten it. This was the first intimation that "W. A. Mills had of the claim. On July ITth, HbeUant sent the claim to A. H. Mills, saying, " The captain of the tug Hercules instructed me to send the enclosed draft to you for collection." In reply Capt. Mills wrote him, under date of Jiily 20th, that the " reason that the captain of the Hercules told you to send the draft to me was because Capt. McCarthy was in Detroit at the time with his barge, in dock ; also that the Frankfort was there to get a new wheel, and was there for nearly a week ; however, if you wiU send your bill to Mr. McCarthy, if it is correct, he will pay ; he is, I consider, an honest man, and has paid all biUs that come within his notice, etc." " If you have the draft in Detroit, I could try and see him about it." I do not know that it appears directly that Mills returned the draft in his letter, but such I think is the infer- ence from the facts hereinafter stated. The claim appears to have been soon afterwards placed in the hands of an attorney in Port Huron, with instructions to present it, but not to sue it After some ineffectual corre- EASTERN DISTRICT OF MICHIGAN. 667 The Hercules. epondence, he drew a libel and forwarded it to Detroit, Septem- ber lOtb, when this suit was commenced. After the debt was contracted, and during the residue of the season of 1873, the tug was plying upon Detroit river, occasionally stopping at this port. During the season of 1874, and prior to her seizure she was plying between Lake Erie and -Lake Huron, and stopped at Samia no less than six times, her halts being from half an hour to three hours in length, and always in the day time. McCarthy received $6,000 in cash for her in January, and appears to have been in good credit, with money on deposit in Detroit until July or August. I think it is shown by a preponderance of evidence that libellant knew of the change of ownership shortly after it occurred. It was his duty under the circumstances to act with promptness in proceeding to enforce his lien. He should have filed his libel immediately after his interview with A. H. Mills in May, if not before. It is true that Mills had then, and also in July, notice of this claim, but I do not understand that mere notice can affect the rights of a honafidi purchaser, unless such notice be had at the time of purchase, or of payment {Blancha/rd v. Tyler, 12 Mich. 339). If any equities at all were raised by reason of the mortgage on the barge Eliza, they ceased by her disappearance from these waters, at or about the time the libel was filed. It would seem that Mills made persistent efforts to find her, and that she was reported lost. Upon the best consideration I have been able to give this case, I think it would be inequitable to enforce this Hen, and the libel must therefore be dismissed with costs. lAbel dismissed. INDEX. ABANDONMENT. See Inbubeb, 1. ACTION. See Towage, 16. ADMIKALTY. See JuEiSDiCTiON. HATEBIAI.-lifEir. colijsiok. Affreightment. Lien. Salvage. Towage, 1. Genebal Avbbagb. Seaman's Wages. ADMISSIONS. See Etidbnce, 3, 5, 6, 8. AFFREIGHTMENT. 1. A master who lays his vessel up for the winter, with cargo on board, is bound to take precau- tions to prevent injury from dampness or mold, and to pro- tect his deck load from the effects of snow and ice. . The Tan Baric Case, 151 2, When, by his negligence, the cargo is exposed to injury by an excepted peril, the carrier is liable. He is bound to take such precautions as he can foresee are necessary under the circumstances of the case. ibid. See Lien, 5, 6. AGENCY. See Mabshal, 1. Matbeial-men, 1. Lien, 10. AMENDMENTS. 1. The Court will allow amend- ments upon terms, even iin the hearing of an appeal. T/ie Mor- ton, 137 3. A Court of Admiralty has no power to permit a libel to be amended by striking out the name of a sole libellant and substituting another in its place. Such amend- ment is virtually the institution of a new suit, and discharges the sureties upon the stipulation. The Detroit, 141 3. It is the duty of the claimant, however, to put his objections upon the record, and unless he does so, he will be deemed to have waived them by appearing, examining witnesses, and con- testing the case upon the merits. ibid. 4. Where the original libel set up a grossly false case, and an attempt 570 INDEX. has been made to support it by in- herently incredible proof, al- though an amendment has been allowed in the Court below, al- leging a right of recovery upon wholly different grounds, these facts may rightly be looked to on appeal, in denying relief by a division of damages, in favor of a libellant who thus concealed his own wrong, and sought a re- covery in full from the respondent. The Sunnyside, 337 6. It is not competent to amend a joint libel against three vessels, by substituting the name of the owner of one vessel for the vessel, so as to change it from a libel in rem to one in personam. The Young America, 463 6. A libel in rem cannot be changed into a libel in personam against the owner. ibid. 7. A party will not be permitted to amend his claim by setting forth that at the time the cause of action arose, he was the true and iona fide owner of the vessel, and had agreed with the present owner to discharge all liens against her. The Prindiville, 485 iSs« Pbactice, 17. ASSIGNMENT. ! Pkaotice, 10. L/EN, 18. B BILL OF LADING. . The bill of lading, though not conclusive, is very strong evi- dence of the apparent condition of the cargo. The Tan Bark Case, 151 2. A document purporting on its face to be a biU of purchase by a vessel of certain stone, and signed by her master (the stone being delivered to her as cargo), has none of the elements of a bill of lading, and cannot be interpreted as such. The Skylark, 361 See Limitation oi' LiABiLiTT, 1. General Avbkage, 1. BONA FIDE PURCHASER. See Stale Claim, 3, 4, 5, 6. Lien, 8. BURDEN OP PROOF. See Towage, 17. CERTIFICATE OF PROBABLE CAUSE. ! Practice, 1, 3. Etidencb, 1. CLAIM. See Pbactice, 33, 33. COLLISION. WITH VESSEL AT REST. 1. Where a tug is working at a ves- sel aground in the channel of St. Clair flats, it is her duty to ob- struct navigation as little as pos- sible, and to give way to passing vessels, though it may require a temporary suspension of her ef- forts. The Napoleon, 38 3. In approaching a tug so en- gaged, the master of a steamer has a right to rely upon her ob- INDEX. 571 servance'of this duty, and the same precautions are not de- manded of him as would be if no such obligation rested upon the tug. Md. 3. A tug coming' down a river one mile m width, and encountering a vessel anchored upon the wind- ward side of the channel, was held in fault for not passing the anchored vessel to leeward, it ap- pearing that about three-fourths of the navigable water was upon that side. The Lyon, 59 4. An improper order given in a moment of imminent peril is no fault. TJie Zouave and Bich, 110 5. A schooner lying at anchor with her sails up, in a channel 1,500 feet wide, was damaged by a steamer coming down the chan- nel at the rate of 13 miles an hour, and endeavoring to pass be- tween the schooner and another vessel which lay about 400 feet ahead of her. Meld : (1) That the schooner had a right to lie where she did with her sails up, though there was a pvffy wind. (2) That no anchor watch was necessary in the day time. (3) That the steamer was solely in fault for not giving the schooner a wider berth. The Planet, 134 6. A tug lying in the open lake, waiting for a tow, and exhibit- ing colored lights, is held to the responsibility of a steamer under way. The Sunnyside, 337 7. Where a steamer in the open sea, lying at rest directly in the path of a sailing vessel, exhibited colored lights, as if she were under way, and the latter watf guilty of no negligence in not discovering the false indication of the lights in time to avoid a collision, she was held faultless in keeping her course, although the steampr was sunk by the collision. ibid 8. In the absence of a law or custom prohibiting vessels from lying in a channel, anchorage there is not necessarily improper because the channel is narrow at that point, and vessels are constantly passing and repassing, if room be lelt for vessels and tows to pass in safety. In such an anchorage, however, a vigilant anchor watch is imperatively necessary. The Masters and Baynor, 343 9. A sailing vessel entering a crowd- ed harbor at the rate of six miles an hour, in addition to a favor- able current of four miles, con- demned for too great speed. The Maaten, 436 10. It is not improper, under any and all circumstances, for a steam vessel to enter the old channel of St. Clair flats, and attempt to pass through, while another ves- sel is aground upon one of its banks. It depends upon the apparent situation and circum- stances of the vessel aground. The Thomas A. Scott, 503 11. A vessel aground in a narrow channel, but in a situution to admit of ether vessels passing her in safety, should, on the approach of another vessel, cease her efforts to get off until such other vessel has passed. ibid. 13. Where a schooner aground upon St. Clair flats, upon an even keel, with room for other vessels to pass, saw a large propel- ler approaching, and did not cease her efforts to get off, but swung partly across the channel ; Beld : (1) That the propeller was not in fault for coming down the chan- nel with the intention of passing the schooner while aground. (3) Nor was she in fault for push- 572 INDEX. ing on and attempting to pass the .schooner on her starboard Bide, instead of stopping and backing. (3) Having been placed in sudden peril by the fault of the schooner, the master of the pro- peller could not be blamed when, in the exercise of his best judg- ment, he adopted a course -which may have been erroneous, ibid. BETWEEN STEAMERS. IS. It is not enough that steamers navigating a narrow channel are in charge of officers whose gener- al competency is unquestioned; they should have a pilot on board acquainted with the particular channel, and the want of such pilot is prima facie a fault. The Milwauhee, 313 14. The absence of a lookout is not material, if the officer of the deck is in full possession of all the in- formation a lookout could give him in time to avoid a collision. ibid. 15. Rule 1 of the supervising in- spectors (1865) cannot be con- strued to authorize one steamer to dictate to another a depart- ure from the rule prescribed by Article 13. The rule, however, may be sustained as an authority for an ascending vessel to pro- pose to a descending vessel to depart from the requirements of the article, and for the descend- ing vessel to accept such propo- sition, and to make such a de- parture, when thus mutually agreed upon, binding and valid. ibid. 16. It is incumbent upon the ves- sel claiming the protection of the rule and a departure from the statutory requirement to rhow : (1) That a proposition to depart from the statute was made b^ her by means of the signals pre- scribed by Rule 1, and in du6 season for the other vessel to receive the proposition and act upon it with safety. (3) That the other vessel heard and understood the proposition thus made. (3) That the other vessel accept- ed the proposition. ibid. 17. There is no general obligation upon vessels navigating rivers to keep to the right of the centre of the channel, and no such custom proven to exist upon St. Clair flats. ibid. 18. Risk of collision begins the moment two vessels have ap- proached so near that a collision might be brought about by any departure from the rules of navi- gation, and continues up to the moment when -they have so far progressed that no such result could ensue. Under such cir- cumstances; vessels should adopt such a rate of speed as to be at all times under ready and ccpi- plete control until the risk is ibid. 19. A steamer descending a chan- nel 850 feet wide at 14^ miles an hour, and another ascending at %\ miles, both condemned for too great speed vmder the circum- stances, ibid. 30. Whether the relative duty of the steamships to slacken speed under Article 16 (when they are approaching each other so as to involve risk of collision), attach- es the same moment the duty to port attaches under Article 13 (when they are meeting end on, or nearly end on, so as to involve risk of collision), considered and discussed. ibid. BETWEEN SAILING VESSELS. 21. In a collision between two sail- INDEX. 573 ing vessels, one close-hauled and the other with the -wind free, the latter was held in fault for an in- sufficient lookout, and for failing to give way in time. The Doug- Uss, 105 23. A lookout must be constantly at his post, and must not be in- terrupted in the periormance ot his duty. ibid. 23. "Where a bark, close-hauled upon the starboard tack, was approaching a shoooner close- hauled upon her port tack, at an angle of about six points. Held, that the bark had the right to keep steadily on her course, so long as there was any room for doubt as to the inten- tions of the schooner. The H. P. Baldwin, 300 24. The fact that the entire crew of the bark, including the lookout, were engaged, shortly before the collision, in tackmg the ship, though a fault, was held not to have contributed to the collision, as they had resumed their duties a sufficient time before it took place. itdd. 25. The fact that the schooner was disabled, and partially unman- ageable, did not impose upon the bark the duty of avoiding her, unless the disability was manifest to those upon the bark. «6ii. 36. The fact that the lookout of the schooner was engaged, with the remainder of the watch, just previous to the collision, in hauling down the ilying jib, which had become disabled, was a fault directly contributing to the disaster. ibid. 27. If an injured vessel is shown to have been in stays at the time of the collision, the burden of proof is upon the colliding vessel to show that she was not in fault. The Oharlotle Saab, 453 28. The master of a vessel ap- proaching another vrhile in stays, has no right to specu- late upon the chances of her coming completely about, get- ting under headway and avoid- ing him. iMd. STEAMBB AND SAILING VESSEL. 39. A tug having vessels in tow, when meeting a sailing vessel, is subject to the rules applicable to ordinary steamers. The Nabob, 115 30. A tug having only a mate and wheelsman on deck is insuffi- ciently manned. A lookout is absolutely necessary. ibid. 31. A propeller descending the Detroit nver at her usual speed, made the green light of a scow very nearly dead ahead, and about the same time the red light of a steamer a little upon her port bow ; the steamers exchanged single whistles and passed each other to the right ; while passing the ascending steamer, the pro- peller starboarded to avoid the scow ; when very near the pro- peller, and about one and a half points on her starboard bow, the scow ported, and threw herself across the propeller's course, and thereby carae into collision with her and was sunk. Held, the scow was in fault for changing her course, and that the propeller was not in fault for failing to slacken speed before the scow exhibited a red light. The Free Slate, 251 33. A propeller meeting a sailing vessel in a clear night, with plenty of sea room, is under no obliga- tion to slacken speed so long as the sailing vessel is apparently keeping her course, and no dan- ger is apparent. ibid. 5T4 IITOEX. 33. The words "risk of collision" are not used in the same sense in Articles 18 and 16 of the Collision Act; ii^he latter they apply only to casei 01 manifest danger of col- lision, and theobligation to slack- en speed under Article 16 was not intended to be contempora- neous with the duty of porting under Article 13. ibid. 34. The cases upon the subject of speed reviewed and criticised. iMd. 35. A propeller of 1,400 tons bur- den, navigating Lake Huron in the usual track of vessels, in a dense fog, should have at least two men at the wheel, and two competent lookouts, experienced in the navigation of those waters. The Colorado, 393 36. A steamer should adopt such a rate of speed in a fog as will place her headway under such easy and ready command that she can be stopped within such distance as other vessels can be seen from her, on the assumption that such ves- sels will do their duty in appris- ing her of their proximity, ibid. 87. The chief officer of a steamer running in a fog should be so placed that he can have instant access to and command of the signals to the engineer. itnd. 38. An erroneous order, given in the midst of confusion and con- sternation incident to sudden peril, is not a fault. Udd. 39. A crew cannot be held in fault for abandoning a vessel when her injury is of such a character as to afford reasonable apprehension that all efforts to save her 'will be unavailing and perilous. iUd. WITH TBBSEIB IN TOW. 40. A vessel in tow is bound to pre- vent a collision if she can, or to make the damages as light as Tlie Morton, 137 41. A tug, having five vessels in tow, while running down a nar- row, crooked channel, at a speed, with the current, of about seven miles an hour, overtook and at- tempted to pass a raft of timber in tow, moving at the rate of four and a half miles an hour, and oc- cupying about one-half the width of the channel. One of the ves- els grounded upon the port bank, and the one next astern ran into and injured her : Seld, that the tug was in fault : (1) For not sooner discovering the raft, and that it was in mo- tion ; (3) For attempting to pass it in a narrow channel. Seld, also, that the colliding vessel, not being affirmatively shown to have been negligent, cannot be Btld in fault. The David Morris, 373 43. A tug, having a schooner in tow, ran aground upon the bank of Detroit river, and the schooner ran into her: Seld, that the tug was in fault, because the officer of the deck was also acting as wheelsman, and that the want of a proper look- out on the pchooner did not con- tribute to the collision. The Yietor, 449 43. A steam-tug, whose master also acts in the capacity of wheels- man, is insufficiently manned. , iMd: 44. A tug, whose chief officer also acts as wheelsman, is insufficient- ly manned, and every doubt as to her being in fault wiU be resolved against her. Th* Coleman and Foster. 456 45. The fact that she is fully man- ned, according to thecustoni of INDEX. 575 tugs plying on those waters, is no excuse. 'ibid. 46. In case of uncertainty or irrec- oncilable conflict of testimony between a tug and her tow, as to their respective manoeuvres, the fact that the tug is insufficiently manned will be regarded as a fault contributing to the collision. ibid. 47. Where the persons in charge of a tug and tow jointly participate in their control and management, the tug and tow are jointly liable for an injury done to a third ves- sel, ibid. 48. A request by the masters of a tow to divide the vessels cpmpos- ing it, and take them separately through a narrow channel, would not create an obligation on the part of the tug to do so. It is the duty of the master of the tug to make up the tow, and he is entitled to exercise his judgment in that regard. The Bweepstakes, 509 49. In arranging the order of ves- sels in tow, regard should be had to dangers incident to anyportion of the route covered by the under- taking, and in passing through the channel of St. Clair flats the vessel of heaviest draft should be placed last. ibid. 60. The rule of the supervising in- spectors requiring ascending ves- sels to stop before entering narrow channels, and wait till a descend- ing vessel has passed through, does not apply to the lakes and their connecting waters. Hid. 51. In the .absence of usage or pos- itive law, it is not a fault for a tow to enter the channel of St. Clair flats while another tow is coming through in an opposite direction. ibid 52. It is the duty of the tug to see that the tow-Une is securely fast- ened, so as to hold in all emer- gencies likely to happen, ordinary or extraordinary, and the fact it does not so hold is the best evi- dence the duty is not performed. ibid. 53. Tugs are prima facie responsible in all cases for damages resulting from the slipping of the line. ibid. MISCELLANEOUS. 54. When a light has once been announced to the officer in charge of a vessel obliged, under the rules, to keep- her course, and he has carefully observed its charac- ter, bearing, and course, and all apparent conditions indicate ab- solute safety if the law is com- plied with, he may leave the future watching of such a light to an experienced lookout, in confi- dence that the vessel bearing it will be guilty of no gross negligence. Especially he may return to his other necessary duties midships. The Sunnyside, 327 55. If any circumstances suggest danger, or a depa;rture from the ordinary rules by the other vessel, then the duty of greater watch- fulness is imposed upon the master, and he would not be authorized to leave to an unas- sisted lookout the duty of deter- mining when a reannouncement of the light was necessary. Oiid. 56. If, in these circumstances, the duty of watching a light has been fairly performed, the Court should not severely criticise the best exercise of an officer's judg- ment, although believed to be erroneous. Especially should it not be deemed a fault when the conduct of the other ship has been gross aud unwarrantable. ibid. 576 INDEX. 2. But Tvhere the master, even of a small scow, was acting as wheels- man and lookout, and the proofs left it doubtful whether this con- tributed to the collision, the scow was held liable. ibid. 67. Where the libellant has been guilty of gross fault, and that of the respondent is in any degree doubtful, a decree for division of damages should not be rendered. ibid. 58. It is not the duty of a loolrout to reannounce a light, unless some new conditions occur which an intelligent officer of the deck would not anticipate, and in reference to which some new or- der would be given. In this case, the continuous bearing of the tug, which indicated her to be at rest instead of under way, did not present such conditions, as the fact was common, and did not suggest the slightest danger or difficulty. ibid. 59. Cases upon the subject of speed, reviewed and criticised. The Free State, 351 60. A vessel can be held in fault for her conduct only to the extent of risk or danger of collision with another vessel, as indicated by the relative situation of such other vessel at the time she de- termines upon a particular course of action, making proper allow- ance for the probability of a change in the relative situation of such other vessel. The Thomas A. Scott, 503 61. Where the master of a small tug was also acting as wheelsman and lookout, but it was clear this fact did not contribute to the collision : ■ Held, the tug was not thereby chargeable with a fault. The Young America, 549 See Towage, passim. Jurisdiction, 6, 7, 18. Lien, 7. Damages, passim. CONSTITUTIONAL LAW. See Natigation Laws, 1. CONSTRUCTION. See JuBisDiCTioN, 20. CONTRACT. See Damages, 1. Seaman's Wageb, 5, 6. COSTS. 1. Where the libellant claimed $70, and recovered but 30 cents, and the respondents claimed a larger amount of damages than they were able to prove: Seld, that neither party should recover costs. The David Morris, 273 2. Costfi are recoverable where the suit is defended in the interest of a former owner, though no de- mand had been made of the claim- ants. 2Tie Melissa, 476 See Pbactioe, 18. CUSTOM. See Demubbage, 2. Towage, 2. CRIMINAL LAW. 1. The great lakes are not "high seas " within the meaning of the Act of July 29, 1850, punishing the burning of vessels. Henry Miller'' s Case, 156 INDEX. 577 D DAMAGES 1. Where the master of a schooner who had taken passage on a steam- er to rejoin his vessel, was carried past the place for which he had bought his ticket, and at which the steamer usually stopped, he was held entitled to recover not only for his personal expenses and loss of time, but damages in the nature of demurrage for the de- teiftion of his vessel. The Can- adian, 11 2. The libellant in a collision case, when successful, is entitled to re- cover the full amount of his dam- ages, notwithstanding he may have received partial indemnity from the underwriters. The Avon, 170 3. In the absence of a market value for the use of vessels, the value of such use to the owner, in the business in which she was en- gaged at the time of the collision, is a proper basis for estimating damages for detention. The May- flower, 376 4. The books of the owner, showing previous and subsequent earnings, are competent evidence of the probable earnings during the de- tention, ibid. 5. The party in fault should bear whatever inconvenience or hard- ship there may be in proving the exact amount of damages sus- tained, ibid. 6. In cases of conflicting testimony as to amounts, where the prepon- derance is not palpable, the find- ing of the commissioner will not be disturbed. Aid. 7. The services of an agent em- ployed in settling and paying 37 bills is not a proper item of dam- ibid. 8. Estimates of the cost of repairs, though competent in absence of better evidence, are not so where the repairs have been actually made. ibid,' 9. In case of total loss by collision, the market value of the vessel just before the collision is the measure of damages. The Colo- rado, 411 10. The market value is not what she would have brought at forced sale, but in the ordinary course of the sales of such property. Mi. 11. Prom the gross freight should be deducted the probable future expenses of earning the same. ibid. 13. Where a tug injured by a col- lision was a member of an associ- ation, into which each boat was put at an appraised valuation, and each drew its pro rata share of the net earnings of the whole, according to its valuation, the dividends paid by the association during the time the tug was laid up for repairs were held to furnish a proper basis for demurrage. ( The Sunm/side, 415 13. Demurrage cannot be allowed for unnecessary or unexplained delays. Md. 14. The salary and board of the master while superintending the repairs was also held a proper charge. iMd, 15. When the contract for raising the tug was let at a specific sum, with the proviso that the con- tractor should have the use- inci- dentally of any other tugs belong- ing to the association, the services of these tugs were held a proper item of damages. ■ md. 578 IM)EX. 16. Where a vessel is ground amid- ships, and in danger of springing a leak, and wetting a valuable cargo, Courts will noiij as against the party by whose negligence she was grounded, scrutinize very closely the expense of get- ting her off, provided the master has acted in good faith. The Michael Oroh, 419 17. The expense of a protest made before unloading will be allowed, though it proves to be unneces- sary. Md. 18. The master of a, barge, having an order for a cargo of coal, was directed by the shipper to go to an upper dock, take on 300 tons, and then to return to the shipper's own dock and receive the residue cf the cargo. Having taken on the 300 tons at the upper dock, he immediately put to sea, with- out calling for the residue as agreed, without signing bills of lading, or reporting his departure, and the barge and cargo were lost by a peril of the sea. An undergtanding between the con- signee and shipper was shown, that the shipper should insure all cargoes shipped upon vessels of that class for the benefit of the consignee. neld, that the owner of the barge was not liable for the loss of such insurance by reason of the neglect of the master ta report his departure, he having no knowl- edge of the understanding be- tween the shipper and consignee. The Ontario, 480 19. The failure to report in such case cannot be deemed the proxi- mate cause of the loss of the insurance. ibid. DECREE. Bee Pbaoticb, 8, 4, 6. DEMURRAGE. 1. Where no "lay days" are pro- vided in the charter party or bill of lading, and there is no express stipulation as to the time of un- loading, the consignee is not liable for delays occurring with- out his fault. The Glover, 166 S. If it is a custom at the port of delivery for vessels to be un- loaded through an elevator, each vessel waiting its turn, such cus- tom becomes part of the contract, and the master takes upon* him- self the risks and delays incident to such a method of unloading. iMd. See Dahaqeb, 3, 4, 12, 13. DEPOSITION. See Phactice, 7, 11, 13, 13. DESERTION. See Seaman's Wages, 7, 8, 9. DURESS. See Master, 2. E EVIDENCE. . The fact that the claimant was selling goods supposed to have" been smuggled, at a low price in an obscure town, declaring them to have been imported, and that duty had been paid upon only a small jportion, was held sufficient to justify their seizure. The Qala "' " 1 , But little credence can be given to the testimony of a sailor who INDEX. 5Y9 contradicts statements deliber- ately made by him, in writing, immediately after the collision. The Douglass, 105 5. Great weight should be given to the admissions of the master of a colliding vessel, though not upon deck at the time of collision, who states to the injured party that his own vessel was in fault, and promises to pay the damages done by her. iftiti. 4. The opinion of the master and crew of a tug, that their vessel was properly managed, and that the accident was inevitable, is entitled to very little if any weight. The Armstrong, 130 6. The admissions of a party to a suit may be given in evidence as independent testimony, though he has been sworn as a witness, and no impeaching questions asked him. The Stranger, 281 6. The statute permitting parties to be swoi^ has not changed the practice in this regard. iMd. 7. The testimony of the officers and crew of each vessel, as to the number of whistles blown upon their own vessel, is to be believed in preference to that of an equal number of witnesses upon the other vessel. The Mihcaakee, 313 8. Evidence of verbal statements made in time of excitement and peril should be received with great caution, and when opposed to the direct and concurring testimony of many witnesses, is entitled to but little weight. The 486 i Bill of Lading, 1. Amendment, 4. Baiiaoes, 4-6. FEES. See Marshal, 2. , FOREIGN LAWS. See Lien, 3. FREIGHT. See.IXEix, 5, 6. G GENERAL AVERAGE. 1. Where by the bill of lading it i» agreed that a portion of the car- go shall be carried on deck, the vessel must contribute for the loss of the deck load by jettison. The Watchful, 469 See MABBHALma of Liens, 3. IMPORTATION. See Revenue Laws. INFANCY. See Seaman's Wages, 10. Pkactice, 21. INSPECTION. See Navigation Laws, 1. INSURER. 1. The underwriter, where there is no abandonment, has no author- ity to direct the master, or to contract for the vessel. The Senator, 544 INTERVENTION. See Pbacticb, 15. 580 INDEX. JETTISON. See Gknekal Ayebagi!, 1. JURISDICTION. 1. Though a Court of Admiralty is not bound to take jurisdiction of controversies growing out of con- tracts between foreigners having a domicile in this country, it may lawfully exercise it, and ought to do so, where justice re- quires it. The Sailor't Bride, 68 2. It has jurisdiction in a case of salvage rendered by an American tug to a British vessel in Canadi- an waters. ibid. 3. Admiralty has jurisdiction of a suit to recover for services of a tug in hauling off a vessel aground, though the same do not amount to a salvage service. The Clar- ion, 74 4. Admiralty and maritime juris- diction is possessed by the Dis- trict Courts of the United States, on the Western lakes and nvers, under the Constitution and Act of 1789, independent of the Act of 1845, and unrestricted there- by. Bevemie Cutter No. 1, • 76 5. The District Courts of the United States having, under the Consti- tution and Acts of Congress, ex- clusive original cognizance of all civil causes of admiralty and maritime jurisdiction, the Courts of common law are precluded from proceeding in rem to en- force such maritime claims. The JidbaOa, 96 6. The admiralty has jurisdiction of a collision between a canal-boat and a tug engaged exclusively in harbor service, and occurring upon navigable waters wholly within the body of a county. The Volunteer, 159 7. An action will not lie in admi- ralty against a vessel to recover for damage done by her to a bridge thrown over a navigable stream. The Neil Coehram, 163 8. The waters of the WellandCanal, as now used for international commerce, are within Anferican admiralty jurisdiction. The Suez and other canals, and all the im- proved navigation of the world, have been, and from the nature of their use should be, as much subject to admiralty jurisdiction as waters in natural ' channels. The Avon, 170 9. While a natiu-al thoroughfare, although wholly within the do- minion of a government, may be passed by commercial ships of right, yet the nation which con- structs an artificial channel may annex such conditions to its use as it pleases. ibid. 10. When it may be inferred that the maritime law sought to be applied is excluded by the lex hci, the remedy in rem should be denied. If from the circumstances a contrary presumption arises, the principle of the maritime law in- volved should be enforced, ibid. 11. It is not enough per se to de- prive a Court of admiralty juris- diction, that collision happens where there is municipal power to exclude the maritime rule. It must further appear that it has actually been done. The mere absence of a tribunal to enforce the maritime law has never been admitted as sufficient evidence of intention to exclude it. ^>id. 12. No argument can be drawn from the fact that the Welland Canal is a tidelea water, and that INDEX. 681 therefore the authorities which sustain admiralty jurisdiction over torts and contracts, in foreign waters, do not extend the maritime law over it. Ad- miralty Courts have taken juris- diction wholly irrespective of the fact of a tide. ibid. 13. Inapplicahility of the lex loei contractus, the fee m dtm, and the lex loei delicti, where obliga- tions growing out of international commerce are to be adjudicated with reference to the maritime law, considered. ibid. 14. Saginaw river, though wholly within the State of Michigan, is a public navigable stream, and within the admiralty jurisdiction. The Qeneral Cass, 334 15. If the business or employment of a vessel appertain to travel, or trade and commerce on the water, it is subject to the admiralty jurisdiction, whatever may be its size, form, capacity, or means of propulsion. ibid. 16. Such jurisdiction extends to lighters employed in carrying lumber out to vessels lying in deep water. ibid. 17. The fact that these lighters are not -enrolled or licensed does not afifect the question of jurisdiction. ibid. * 18. An action will not lie in admi- ralty against a vessel to recover damage done by her to a wharf projecting into navigable water. The Ottawa, 356 19. Wharves are hut improvements or extensions of the shore, and injuries done to them, no matter by what agency, are injuries done on land, and do not constitute maritime torts for which an ac- tion in the admiralty dan be maintained. ibid. 30. A hull completed at the place of launching received a small cargo of flour as ballast, was towed with her spars on deck to another port, where her masts were stepped, and the vessel put in condition for navigation : Seld, that the work was done in building the vessel, and that admiralty had no jurisdiction. The Iosco, 495 See Towage, 2. Cbimenaij Law, 1. Lien, 14, 15, 16, 17. JURY. 1. Unless given by statutei, there is no right in admiralty to a trial by jury. CHlletY. Pierce, 553 3. The Act of 1845 was passed upon the assumption that, by the Con- stitution and Judiciary Act of 1789, admiralty jurisdiction was limited to tide waters ; that cases arising upon the lakes were cog- nizable only in the common law courts, and were consequently triable by jury under the Consti- tution ; and that Congress could not transfer the jurisdiction in such cases to Courts of Admiral- ty, without "saving to the parties the right of trial by jury." Con- gress did not intend by this clause to grant a new right, but to save one already supposed to exist. ibid. 3. The assumption upon which the Act was passed having been de- clared to have had no existence, the entire Act, including the saving clause of a right to a trial by jury, became inoperative, ibid. 4. By the Revised Statutes, how- ever, the law is changed, and the right to a trial by jury is express- ly given in the class of cases specified in the Act of 1845. ibid. '582 INDEX. 5. The party demanding a jury must bring himself by his plead- ings within the provisions of the Act. ibid. LEX LOCI. See JuBlSDiCTioN, 10, 11, 13, 13. LIEN. 1. The clerk of a steamboat is a mariner, and entitled to a lien for wages, ITie Sultana, 13 5. There is no lien for wharfage. 7he Gem, 37 3. There being no lien by the local law for repairs furnished in Can- ada, no proceeding in rem can be maintained here to enforce the payment of such repairs. TJie Mermaid, 61 '4. The purchase by the Government of a vessel for the revenue service does not divest the same of valid liens existing at the time the title WHS acquired. The Government takes cum onere, and the liens may be enforced by the ordinary methods. Secenue Cutter No. 1, 76 6. The delivery of a cargo to the consignee without demanding freight or notifving him of the master's lien therefor, will, in the absence of special agreement or local usage to the contrary, dis- charge such lien. The Tan Barh Oiue, 151 6. The mere intention of the mas- ter to retain his lien is not suf- ficient as against a consignee who has bought and paid for the cargo. ihid. 7. The general maritime law uni- versally recognized by civilized nations gives a lien for a marine tort upon the offending vessel, and this lien travels with the ship into whosesoever hands she may go. The proceeding in rem, to enforce such a lien, is not process. In no sense is it remedy only, or a part of the lex fori, but is the enforcement of a proprietary in- terest. The Avon, 170 8. This lien or proprietary interest is not divested by a sale to a iona fide purchaser without notice, un- less had by virtue of a judicial pro- ceeding in rem. A transfer with- in a jurisdiction where the offend- ing ship is not subject to seizure does not constitute an exception to this rule. ibid. 9. A tug was hired at 1300 per day to go to the assistance of a vessel which had been reported aground on the shore of Lake Huron. On arriving on the spot, it was found the vessel had been gotten off, and the tug returned home without rendering her any actual assistance : Held, a proceeding in rem would lie to recover the stipu- lated compensation. The Wil- liams, 208 10. All maritime contracts made by the master, within the scope of his authority as master under the maritime law, ^er ae hypothe- cate the ship, and performance, in whole or in part, does not affect the question of jurisdiction generally, or the character of the proceeding, whether in rem or in personam. ibid. 11. A libel in rem for salvage serv- ices will be sustained, though the contract was for a per diem compensation, not contingent up- on success. ibid. 13. The nature of maritime liens INi)EX. 583 discussed, and the authorities reviewed. ibid, 13. A vessel is not liable in rem for a cargo purchased by the master, although the bill is made out against the vessel, and signed by the master, who is also owner. The Shylarh, 361 14. By the law of England previous to the statute of 3 and 4 Vict., no lien existed far supplies fur- nished domestic vessels. The ChoMipion, 530 15. VThether such lien existed with respect to foreign vessels, or whether the Court of Admiralty had jurisdiction to enforce it, seems never to have been settled prior to the passage of the Act of 3 and 4 Vict. This statute was, however, simply declaratory of the maritime law with respect to the existence of the lien as it was prior to its passage, and vested jurisdiction to enforce it in the Admiralty Courts. ibid. 16. Want of jurisdiction to enforce a lien in any particular locality is not fatal to the existence of the the lien. The lien exists by vir- tue of the general maritime law — it follows the ship wherever she goes, and may be enforced where- ever there is jurisdiction to en- force it. . iUd. 17. There is a lien in Citnada for supplies furnished an American vessel, and a Court of Admiralty has power to enforce this lien. ibid. 18. A lien for supplies is divested by an assignment of the claim. ibid. 19. A maritime lien exists for mon- eys advanced to purchase or pay for necessaries supplied to a ship wherever it would exist for the necessaries tliemselves. The Union Eaypress, . 587 30. Such lien exists for necessaries fiirnished upon request of the owner wherever it is shown affirm- atively they were furnished on the credit of the vessel. ihid. 31. Where money was advanced by one who held the legal title to the vessel under a bill of sale given to him as security for the indorsement of a note which had been paid by the maker and the bill of sale thereby extinguished : Held, the lien was not thereby defeated. Und. 23. Where, however, libellant was jointly interested with the equita- ble owner in the profits of' one trip: Held, he could not recover for advances made during that trip. ibid. 28. Parties may stipulate for a lien for necessaries, notwithstanding that no such lien ia implied by the law. of the place where such necessaries are furnished. ibid. 24. By the general maritime law a lien exists for necessaries furnish- ed a domestic vessel, even though by the law of the place there may be no jurisdiction to enforce it. ibid. See Towage, 15. STAiB Claim, 1. Mahshaling op Liens, 1,3. Matehial-men, 2, 3. LIUHTBRS. See JuEisDicTioif, 15, 16, 17. LIMITATION. See Stale Claim. LIMITATION OF LLA.BILITY. 1. Libellant's agent, who was in- 584 INDEX. tending to take passage on a steamboat from Detroit to a Can- adian port, intrusted a quantity of gold coin to the master before the vessel started, without taking a bill of lading or delivering a note in writing. On returning on board, the coin was missing: Held, the vessel was not liable. The Island Queen, 379 LOOKOUT. See CoUiisiON. M MARSHAL. 1. The marshal has no authority, as such, to direct repaii's to a ves- sel beyond what are necessary to her preservation while in his custody; but if repairs are fur- nished upon the order of the master, the fact that he was, without the knowledge of the libellant, holding the vessel as custodian for the marshal, will not prevent alien attaching. TTie Sultana, 85 2. The marshal is entitled only to his actual necessary expenses for ship-keeping, which must be es- tablished by vouchers or other- wise to the satisfaction of the Court. The I¥ee Trader, 72 MARSHALING OF LIENS. . Strictly maritime liens have pri- ority over mortgages, without reference to the period of time when they accrued. Material- men, having liens by local laws, have priority over mortgagees in the distribution of the surplus. In this case, the Court ordered the different classes of liens paid as follows : Mrat, Maritime Uens. Second, Liens given by State laws. ThArd, Mortgage liens. Fourth, The assignee in bank- ruptcy of the owner. The St. Joseph, 202 2. Advances made by a mortgagea to subsisting lien holders at the time of taking possession under the mortgage should be paid in the order in which the liens themselves would have been paid. 3. In the distribution of proceeds, salvage services, rendered in get- ting a vessel off a reef, are entitled to priority of payment as against a claim for general average arising from the Jettison of a pcrtionr of her cargo. The SpauCiing, SIO 4. The fact that one of the salvors had the promise of a third party to pay hmi if he could not collect from the vessel, does not oust him of his priority. ibid. MASTER. . A master's certificate as to the amount agreed to be paid for services will not be set aside, unless it appear clearly and satis- factorily that the sum named is so unreasonable as to raise a sus- picion of fraud. The Senator, * 544 . The making of such certificate under a threat to attach the vessel is not such duress as will avoid its effect. ibid. See Evidence, 3, 4. Lien, 10. MATERIAL-MEN. 1. Where coal was bought for a tug, then lying at a distant port, by INDEX. 585 one who -purported to be the master and owner, held that the eeller was bound to ascertain the the extent of the purchaser's authority, and the necessity for the purchase of the coal. ITie Hamilton Morton, 40 . No unforeseen and unexpected emergency need be shown to war- rant a lien in favor of a material- man. Where the master obtains supplies, they are generally sup- posed to be sold on the credit of the vessel, and in such cases the vessel is liable. The St. Joseph, 202 . A part owner and general agent and superintendent of a line of boats, of which the respondent was one, has no lien for materials, but must be regarded as having given credit to the company. Hid. See "Whaiifagb, 2. Lien, 3, 14, 15, 19, 20, 21, 22, 23, 24. JUBISDICTION, 30. MORTGAGES. i Pbactioe, 15. Seaman's Wages, 2. Marshaling of Liens, F NAVIGATION LAWS. 1. A small steamer was engaged in transporting freight and passen- gers upon Grand River, between Grand Rapids and Grand Haven, in the State of Michigan. Although her route was wholly within the State, she carried freight con- signed to and from other States, which was transhipped at Grand Haven. She also carried passen- gers on their way to and from Chicago and Milwaijkee. In the opinion of the Court, she was subject to inspection and license imder the navigation laws of the United States, but as a different view of the law had been taken in the same and other districts : Held, out of deference to these opinions, and for the sake of uniformity, the libel should be dismissed. The Daniel Ball, 193 NEGLIGENCE. i Affbeightmbnt, 1, 2. Towage, 16. Salvage, 14. Collision, passim. PART OWNER. See Material-men, 3. PLEADING. 1. The fact that prior to the col- lision, an interest in the injured vessel had been transfeiied to an alien, and a forfeiture thereby t incurred, does not prevent such alien owner from joining in the libel, the forfeiture never having been judicially declared by a condemnation. The Nabob, 115 2. The allegations and proofs must coincide ; and the Court cannot consider evidence not in accord- ance with the issues made by the parties. The Morton, 137 3. An omission to state in the libel a material fact, peculiarly within the knowledge of the opposite party, as that one of the colliding vessels was improperly manned, will not be allowed to work an injury to the libellant, if the Court can see there was no design 586 INDEX. on his paijt in omitting to state it. TJie Ooleman & Foster, 456 4. A libel sufiScient under the general maritime law is sufficient in cases arising upon the lakes, and no averment is required to bring it within the Act of 1845. The Illinois, 497 5. It is unnecessary to aver that the vessel in question is engaged in navigation, or capable of being so employed. . iMd. See Amendment, 1. Practice, 6, 23. Stale Claim, 3, PKACTICE. 1. A motion for a certificate of probable cause of seizure may be made subsequent to the decree, and upon the hearing of such motion the Court is not limited to the evidence introduced upon the trial, but may receive any evidence tending to show that the collector acted upon a reason- able suspicion. The Qala Plaid, 3. In determining the question, th^ Court is not at liberty to consider the fact that the seizure was made at night, without proper proper warrant, and that the con- duct of the officer was otherwise oppressive and cruel, as his cer-. tificate would not protect him in an action for a personal trespass. The Court can only consider whether his action was malicious and groundless, or whether he acted upon a reasonable suspicion that the goods were smuggled. ibid. 8. It seems a Court of Admiralty has no general power, at least after expiration of the term, to set aside a final decree on the ground of oversight, inadvert- ence, or mistake. The Illinois, 13 4. The ten days allowed by Rule 40 for setting aside a decree, are restrictive, and a motion made after this time cannot be enter- tained, ibid. 5. A vessel, bought with the money ■ of C, was enrolled in the name of M., as owner and master, he agreeing to hold her in trust for C. until all his advances had been repaid. While in the hands of M,, who was navigating her for charterers, she was attached, condemned, and sold at marshal's sale, without the knowledge of C, and was bid in by the char- terers. Upon learning of the sale, G. came into Court, filed his" petition for the remnants, and six weeks afterwards withdrew this, and filed another praying that the sale and decree of condemnation might be set aside, and he be per- mitted to intervene and defend. The vessel in the mean time had been delivered to the purchasers, who had taken her to Canada and repaired her, and the claims upon which she was libelled had been paid. Petition denied. The Kaloolah, 55 6. A simple allegation of fraud in a petition to set aside a sale, with- out setting forth the facts which constitute the fraud, is insuffi- cient, ibid. 7. A deposition, entitled in _ the District Court, but nol^ received by the clerk until after the trial there, and not sent up as a part of the record of that court, can- not be read on appeal. The Buck- eye State, 65 8. The giving of a stipulation to answer judgment is a waiver of an illegal service of process. The Aeadia, 73 INDEX. 58T 9. A tender after suit brought must include costs, though the process has not been served. The Sun- shine, 75 10. The assignment, by the builders of a vessel, of the moneys to become due on the building con- tract, invests the assignee with no such proprietary interest as ■will enable him to* appear as claimant and defend.* Bevenue Cutter No. 1, 76 11. Though a deposition be taken under a stipulation waiving "all objections as to the form and manner of taking," it must still be returned to Court in all re- spects as provided by law. LiBingston v. Pratt, 66 12. Where a deposition so taken was left for several months in the hands of defendant's attorney, and was not placed on file until the morning of the trial, it was held it could not be read. ibid. 13. Depositions opened out of Court and without the consent of the opposite party, cannot be read in evidence. The Bosma, 443 14. Such consent to publication out of Court should be in writing. 15. A mortgagee of a vessel has a right to intervene in an admiralty suit for the protection of his in- terest. The Old Concord, 370 16. A vessel, discharged from ar- rest upon giving bond or stipula- tion, returns to her owner forever discharged from the lien which was tiie foundation of the pro- ceedings against her, and the Court has no power to order her rearrest. ^d. 17. It seems where the sureties be- come insolvent, the Court may require the claimant to furnish new sureties, on penalty of con- tempt, or of being denied the right to appear further and con- test the suit. ibid. 18. A seaman suing for his wages cannot be compelled to give secu- rity for costs for the sole cause that the amount claimed is small, and the indebtedness is denied in the answer. The Arctic, 347 19. Objections to a libel for want of specific allegations of fault should be taken by exceptions, and if taken at tlie hearing, an amend- ment will be permitted. ' The Coleman and Foster, 456 30. A joint action for collision can- not be maintained in rem against one vessel, and in personam against the owner of another. Th^ Toung America, 463 31. Quare — Whether the defense of infancy can be made available otherwise than by a plea to the competency of libellant to sue in his own name ? Th^ Melissa, 476 33. A motion to strike the claim and answer from the files, on the ground that it appeared on the hearing that the claimant bad no interest in the property at the time the answer was filed, will not be entertained. The Prindi- 485 33. If the claim is not put in issue, and libellant goes to a hearing upon the merits without objection, it is a waiver of such preliminary inquiry, and an admission that the claimant is rightly in Court. ibid. 34. The right of a party to appear and defend a suit in rem must ba put in contestation, if at all, before the hearing, and then only by way of exception if the dis- ability appear upon the face of the claim, or an exceptive alle- 688 INDEX. gation putting the right in issue if it does not so appear. ibid. 25. The 53d Rule in Admiralty, requiring the respondents in a cross-libel to give security to re- spond in damages as claimed in the cross-libel, applies as well to actions in rem as to those in per- sonam,. The Toledo, 445 See Ajiendments, 3, 5, 6. Sb AM Air's Wages, 4. Stale Claiu, 3. Jury. PROBABLE CAUSE. See Pbacticb, 1, 3. Evidence, 1. E REPAIRS. See MabshaIi, 1. REVENUE LAWS. 1. Where a vessel and cargo appears by her manifest to be consigned to an American port, parol evi- dence will not be permitted to control the intention so expressed, and to show that the cargo was, in fact, destined to a Canadian port. The Fame, 43 3. Under the first section of the ^ct of 1831, the master of a ves- sel entering a port of the United States, with merchandise subject to duty on board, and consigned to such port, is bound to deliver his manifest, notwithstanding he may intend such merchandise to be returned to Canada. ibid. 3.' The transhipment of a cargo from one vessel to another, while lyiiig at a wharf in port, is an unlading and delivery within the meaning of the 50th section of the Act of 1799. ibid. 4. Innocence of an intent to defraud the revenue will not prevent a forfeiture where a violation of the statute is clearly proven. ibid. 5. Under section 38 of the Act of 1799, the ^reception by one vessel of goods unladen from another without a permit, subjects the receiving vessel to forfeiture irre- spective of a fraudulent intent on the part of her officers. The Ploughboy, 48 6. The fact, that eflforts were made to find an officer, which were unsuccessful on account of the lateness of the hour, and that the master was impatient to proceed, furnish no legal excuse. ibid. 1. A person who goes to a foreign country for the purpose of buying clothing, is not within the pro- visions of section 3, of the Act of March 3d, 1857, providing for the free entry of "wear- ing apparel in actual use * * * of persons arriving in the United States," notwithstand- ing he wears the same in return- ing home. Simmons Case, 138 SALVAGE. 1. In stripping an abandoned vessel of her apparel and furniture, sal- vors are bound to the exercise of reasonable care, and gross neglect or wanton injury of the property saved works a forfeiture of all claims for salvage, and renders them liable for the damage. The Sumner's Apparel, 53 3. It is the duty of salvors to land the property saved at the nearest INDEX. «89 port of safety, and see that it is properly cared for. ibid. 8. Where salvors stripped a vessel, having her name and port painted on her stem, and carried the property saved directly past her home port : Seld, they were guilty of em- bezzlement, and forfeited their right to compensation. ibid. 4. Salvage being the compensation allowed to persons by whose as- sistance a ship or cargo is saved from impending peril, if the prop- erty is not benefited by the ex- ertions of the salvors, they can claim no compensation as salvage. The Smlor'a Bride, 68 6. But if an effort be made in good faith, with means believed to be adequate, the salvor may recover something in the nature of a quantum meruit, though his efforts are unsuccessful. ibid. 6. Services rendered in pulling boilers out of a navigable river, into which they had fallen from a steamboat, are salvage services. The Silver Spray's Boilers, 349 7. An agreement for a specific sum dependent upon success does not alter the nature of the service as a salvage service, but only fur- nishes a rule of compensation. ibid. 8. Such an agreement will not be set aside and a commensurate sal- vage awarded because it proves to be a hard one for the salvor. ibid. 9. A person hired by the salvor to assist him, with knowledge that his employer is operating under a contract, is also limited in the amount of his recovery by the contract price, and the fact that he is misinformed as to the terms of the contract, creates no ad- ditional liability on the part of the property or its owners, ibid. 10. A wrecking company which had undertaken to raise a sunken schooner and deliver her at De- troit for six-tenths of her value when so delivered, hired of libel- lant, for a fixed compensation, certain divers, diving armor, and wrecking apparatus. ffeld, that libellant, having knowledge of the contract be- tween the wrecking company and the owners of the schooner, could not maintain a libel in rem, and that the subsequent ownership of six-tenths of the schooner by the wrecking com- pany could not relate back to the time of its contract with the owners, so as to affect their inter- ests. The Marquette, 364 11. A salvor by contract is not an agent of the owners, and cannot create against them or the prop- erty saved, any liability beyond the contract price. ibid. 13. A contract for a compensation to be paid at all events, whether the property is saved or not, creates a mere personal obligation, and no lien attaches on account of it. ihid. 13. A vessel and cargo, valued at $5,000, were found in Lake Erie, waterlogged, abandoned, and apparently, though not in fact, derelict. A portion of her cargo . was taken off and put upon the salving vessel, a steam barge, by which she was towed to a place of safety, the whole time occu- pied by the service being six hours : BJdd, that, under the circum- stances, $75 was a proper salvage compensation. The Senator, 373 14. Salvors are liable for damage done to the sails of the vessel 690 INDEX. saved by being negligently left exposed to sparks from the salv- ing vessel. iMd. 15. Where a barge, without small boat, provisions, sails or other means of propulsion, was adrift upon Lake St. Clair, although she had come to anchor, and the weather was good, ffeliJ, that she was in a situation to have salvage services rendered her, but that 'an adjustment of the same made by the owner of the cai'go, was not binding upon the vessel. The Union Maypress, 516 See Jurisdiction, 3. Lien, 9, 11. MABSHALINa OF LlENS, 3, 4. SEAMAN'S WAGES. 1. The engineer of a steamboat has no authority to make any alter- ation in the engine at the home port without the consent of the owner, and his conduct in so • doing will work a forfeiture of his wages. The John Martin, 149 2. A mortgagee in possession is liable for seaman's wages. The Bramen, 161 3. The provisions of section 6 of the Merchant Seamen's Act of 1790, with respect to the recovery of wages, apply only to the classes of vessels enumerated in the first section of the Act. The M. W. Wright, 290 4. The proceedings by summons to the master, provided for in section 6, are cumulative and optional, and the party may re- sort to an attachment in the first instance. Und. 6. Where a seaman is hired at a certain sum " for the season " of navigation, the presumption, is that the ser\'ice is for the entire The Balise, 424 season. 6. The ' ' season of navigation," as understood upon the lakes, com- prises the eight months com- mencing April 1st, and ending November 30th. ibid. 7. Leaving a vessel before the ex- piration of the time of service, without the consent of the master, with the intention not to return, constitutes desertion by the mari- time law. Und. 8. Such desertion works a forfeiture of all antecedent wages, unless a reasonable excuse be shown, founded upon gross misconduct or harsh usage. Wd. 9. Slight and transient causes, such as the fact that the meat used on board was for a short time slightly tainted, do not constitute such an excuse as to relieve from forfeit- ure, ibid. 10. A minor may recover for his wages where the contract was made personally with him, and it does not appear that he has any parent, guardian, or master enti- tled to receive his earnings. The 476 11. Where a seaman employed upon a steamboat by the month, left before the expiration of the month he was then serving. Held, his entire unpaid wages were forfeited. The Magttet, 547 12. Where the second engineer is employed by the first engineer, the latter has a right to discharge him for good cause, without, and even against, the consent of the master. ibid. 13. Where an engineer wilfully de- ranged his engine, in order to compel the boat to stop at a cer- INDEX. 59] tain port at which he desired to leave, it was held such miscon- duct as worked a forfeiture of wages. »6i(?. dee Lien, 1. SEIZURE. See Probable Cause. SMUGGLING. See Retenoti Laws. STALE CLAIM. 1. A claim for towage accrued against a vessel in May and June, 1865, while she was in the haijds of a person who had contracted to purchase her. Having failed to fulfill his contract; she was returned to the owner, who took her to Canada within a month or two after the services were ren- dered, where she remained until June 27th, of the following year. She was there resold to a honaflde purchaser, without notice, who brought her within the juris- diction of the_Court, and kept her during the'remainder of the Bummer. On October 6th, the libel was filed and the vessel at- tached. Held, That the lien was waived, and the action could not be main- tained. The Detroit, 141 2. A Jona^e purchaser under a bill of sale does not lose the protection of the law by taking the collateral guaranty of a third party, indem- nifying him against liens. ibid. 3. The d.efense of stale claim must be set up in the answer, and will not avail where the owner has retained a portion of the purchase money in his hands, and the suit is defended in the interest of the vendor. The Melissa, 476 4. Where the buyer of a vessel whc had given non-negotiable notes for the purchase money, advancec $3,000 on account of certair claims against her, taking up hii notes to this amount, and neglect ed to ascertain the nature and full amount of the claims, whicl information was easily accessible it was Held that, in suits for the resi due of the claims, he did no stand in the position of a bom fide purchaser without notice ■ though he had paid for the vesse in full. The Atalanta, 481 5. The purchaser of a vessel is bounc to the exercise of reasonable^dili gence to ascertain the nature anc amount of liens against her. ibid 6. Notice to a purchaser, while i Bufiicient amount of purchas money remains unpaid to mee the liens, is as effectual to kee] the liens alive as it would be i he had such notice at the time o such purchase. ibid 7. Creditors of vessels plying upoi the lakes must enforce their Uen as against bona fide purchaser without notice, during the cui rent season of navigation, or with in such reasonable time after th commencement of the next seaso: as may be necessary to arrest th vessel. The Hercndes, 55 8. Circumstances may occur whic would greatly abridge or lengthe; this time. ibic 9. The fact that the former owne of the vessel told the buyer, whe purchasing her, that there migl be some small claims against th vessel which he would pay^tha he did not know what the clain: were or who held them — woul not, in the absence of negligenci affect the purchaser with know edge of any particular claio 692 INDEX. 10. The fact that the purchaser takes a mortgage upon another vessel, indemnifyiDg him against any claims upon the vessel pur- chased, doos not operate to ex- tend the time within which creditors should pursue their claims, or deprive him of his rights as a bona flde purchaser without notice. Md. 11. Nor can mere notice of the ex- istence of a certain claim affect his rights, unless such notice be had at the time of purchase or of payment. €)id. 12. Where a claim accrued in Au- gfist, 1873, and the libel was not filed until September, 1874, and the vessel in the mean time was easy of access, and several times in the port where the supplies were furnished. Held, that as against a person who bought and paid for her in January, without notice of the claim, the lien must be deemed waived. ibid. STATE COURTS. See JuKisDicTiow 5. STATUTES CITED AND CON- STRUED. 1789, Sept. 24, Depositions de hem esse, 442,66 1789, Sept. 24, Admiralty Jurisdiction, 340,86 1790, July 20, Merchant Seamen's Act, 290 1792, Feb. 12, Enrollment of Vessels, 117 1799, March 2. Certificate of Probable Cause, 1 1799, March 2, Search War- rants, 6 1799, March 2, Unloading on Importation, 42 1799, March 2, Receiving Goods without Permit, 48 1804, March 26, Arson upon- High Seas, 157 1807, Feb. 24, Certificate of Probable Cause, 1 1815, March 3, Seizures of Smuggled Goods, 6 1821, March 2, Importation of Goods, 42 1831, March 2, Custom House Fees, 389 1838, July 7, Steamboat Act, 1 93 1842, Aug. 23, Rules in Admiralty, 27 1845, Feb. 25, Admiralty Jurisdiction, 96, 87, 93, 497, 335, 159, 157 1846, July 20, Payment of Hospital Tax, 338 1847, March 3, Admiralty Practice, 271 1850, July 29, Arson upon High Seas, 157 1851, March 3, Limitation of Liability, 280, 339 1853, Feb. 26, Fees of Mar- shal, 72 1857, March 3, Entry of Wearing Apparel, 129 1864, June 30, Duty on Clothing, 139 1864, April 29, Collision Act, 227, 251, 800, 313, 398, 453 Ohio. 1840, Watercraft Law. 101 1843, March 11, Watercraft Law, 78 1848, March, Watercraft Law, 102 1853, March 12, Watercraft Law. 78 1858, April 12, Watercraft Law, 101 England. 3 and 4 Vict. (1840), Admiralty Court Act, 526 STEAMBOATS. See Navigation Laws, 1. INDEX. 593 T TENDER. See Pkacticb, 9. TOWAGE. 1. Where a number of vessels, con- nected by long lines, are towed astern of a tug, they are to be considered as under the govern- ment and control of the tug, and for any damage done by them, ty the want of ordinary care on her part, the tug is responsible. The Lyon, 59 2. Towage services are maritime in their character. The Acadia, 73 3. The contract of towage implies knowledge of the channel and ■safe pilotage. Tlte Zouave & MA, llO 4. Good seamanship requires that vessels of heavy draft should be placed behind those of lighter draft. Md. 5. A tug, whose master also acts as pilot and engineer, is not prop- erly manned. The ArmsiroTig, 130 6. It is the duty of a tug towing a vessel through a narrow channel and encSuntering a, snow storm so heavy as to obscure the sight, at once to stop and cast anchor. ibid. 7. The want of a competent look- out is a fault of the grossest de- scription, ibid. 8. A tug is bound to the exercise of ordinary care in taking up, ar- ranging and managing the tow. The Morton, 137 9. Having full control of the ves- sels towed, she must direct as to 88 the length of their lines, the or- der in which they shall be towed, and prudence requires that the heavier draft vessels should be placed behind those of lighter draft. ibid. ■10. The tug is bound to know the channel, and to keep the tow in the deepest water. ' Hid. 11. If the ordinary lights or land- marks are obscured, the tug should provide for the emergency by slowing or stopping the en- gine, and sounding the channel. ibid. 13. Tugs, though not liable as com- mon carriers, are bound to the exercise of ordinary skill and diligence in taking up, arranging and managing their tows. The 281 13. It is also the duty of vessels in tow to use all possible means to avoid injury, and where injury ensues, to do all in their power to make the damages as light as possible. ibid. 14. A fug, using ordinary care, is not liable for f he sudden and un- explained sheei-ing of the tow to the right or left. ibid. 15. A lien attaches for towage serv- ices rendered in the home port. TTie Oeneral Caas, 334 16. Where a tug, which had agreed to tow a barge from Saginaw to Cleveland, was compelled by stress of weather to turn the barge over at an intermediate port to ttie master of another tug, by whose negligence she was lost : Held, that the owner of the barge could maintain an action for negligence against the second tug. Qutere: Whether he could not also support an action for breach of contract. The Clematis, 433 594 INDEX. 17. Where a tng abandons her tow of barges during a storm, the burden is upon the tug to show a sufficient excuse for such aban- donment. The Ohmatis, 499 18. Much, however, must be left to the judgment of competent offi- cers in such an emergency, and such judgment formed upon the spot and acted upon in good faith will not be impeached, except upon a clear preponderance of proof that was erroneous. W,d. 19. Where it was shown that the tow-line parted in the night, dur- ing a storm of great severity, and that the master of the tug was unable to pick up the line, to dis- cover the lights of the tow, or to make any efforts to regain it without great danger to the tng: Held, he was justified in aban- doning it. ibid. Bee JTrEiSDiOTiOH, 3. w WATEECRAPT LAWS. See jTrRiSDirTios, 5. WHARFAGfE. . Wharfage is the use of a wharf by a vessel for the loading or un- loading of goods or passengers. Mere anchorage at a wharf is not wharfage. The Oem, 37 3. The use of a wharf is not " mate- rial " for a ship, within the mean- ing of the 13th Bule, nor is a wharfinger a material-man. ibid. 3. yhe maritime law does not give a lien for wharfage. iMd.