THE FRANK P. LEE.

277

der assistance, even when no jeopardy of life is concerned. That must be met by a liberal allowance on the part of the court whose duty it is to consider all the circumstances of the case."

This rema.rk derives emphaSIS from the fact proved this case that four steamers in succession pasSed within sight of the Gallego's signals, and did not stop. In view of all these considerations, I am of the opinion that it will be proper in this case to award the libelants a salvage award of $25,00'0, to which must be added $2,451.96, being the amount expended by the salvors, and the costs of this action. The apportionment of the salvage among the various persons entitled to share will be made at the time of entering the decree.

THE

INsuRANCE

FRANK

P. LB.'

THE

FRANK

Co.

OF NORTH AMERICA tI.

P. LEB.

(DilWiet 001J,re,JP. D. P8M811"t1lania. March 18, 1887.)

1.

COLLISION-SCHOONERS.

to

The schooners A. and B. were sailing off CaIJ!l Cod. Betweek 9 and 10 o'clock at night both vessels were heading about W. byN., on their starboard tack, B. being a quarter to a half mile in the rear of A. The wind was comingfrom the N. N. W.. There was from five to seven miles of navigable water between the vessels and the shore. B. changed her course about two points southward, and ran under A/s stern. Soon after, B. again changed her courS'8 to go about, across A/s bows, missed stays, and before getting off was struck and sunk. No light was displayed from B,'s stern after passing A. Bela, that B. was guilty of negligence, and that there could be no recovery againstA. Failure to display a light or torch required by the statutes is negligence, it there is a possibility that a collision would have been avoided had the requirementl of the statutes been observed.

I:lAME-ABSENCB OF TORCH.

In Admiralty. Jr., Jc Htmry, for libelant. Mr. EdmundB, for respondent. BUTLER, J. The vessels (out of whose collision this suit arises) were .coasting schooners, bound from Elizabethport, New Jersey, to Boston, laden with coal. Having started March 22, 1886, they were at Cape Pogue on the morning of the 23d, and in the evening (between 9 Qnd 10 o'clock) were off the northern end of Cape Cod, where they collided, and the D. & J. Lee, with her cargo, was sunk. The suit is brought by insurers of the D. & J. Lee, who, having paid the amount insured, .are subrogated to her rights. A short time before the collision the vessels were J1eading about W. by N., on their starboard tack, and were
1 Reported

by O. B. Taylor, Esq., of the Philadelphia bar.

278

FEDERAL· ·lmpORTER.

near together; the D. &; J. Lee being in the rear, possibly a quarter to a half mile. The wind was coming from the N. N. W., and the sea rough and chopping. .The distance from the shore was probably five to seven miles, and the water for this distance appears to be navigable. Under these circumstances the D. & J. Lee changed her course about two points southward, and ran under the respondent's stern, passing at a safe distance. A short time later she again changed her course, to goo about, across the respondent's bows, missed stays, and before getting off was struck. No light was displayed from her stem after passing. She was at no time, however, entirely out of sight, her sails being visible, though her hull was not. Her change of course, in front, was not discovered by respondent until her green light came into view. Immediately on seeing this, respondent headed southward, to run under .. her stern. The faults charged against the respondent are (1) that she did not immediately go about, on her port tack, when the D. & J. Lee changed her course; and (2) that she had not a proper lookout, and consequently did not see the change of course as soon as she should: Although pressed with much earnestness and ability, neither charge is, in my judgment, well founded. Supposing the vessels to have been as far apart as stated by the libelant when the change of course occurred, the respondent's movement was entirely safe and proper. Her change of head would certa,inly have carried her under the D.& J. Lee's stern. As her starboard tack was not run out, Rnd might be prolonged for several miles, her maneuver was rational, and such as the vessel in her front should have expected. Supposing, however, the vessels to have been materially closer together than stated· by the libelant, is the t;espondent blamable for heading as she did? I do not think so. She was probably mistaken respecting the distance. The D. & J. Lee's act, in tacking, was of itself a forcible suggestion that the distance was a. safe one. EspeCially was it so in the absence of the statutory torch, or other signal of possible danger. Such mistake would involve no responsibility. Should the respondent, however, when approaching nearer the D. & J. Lee. and discovering the danger of collision, have reversed,and endeavored to go about? This was a question I could not answer from the testimony. To a seaman it . would present no difficulty; but I was uninformed respecting the distance within which the maneuver might have been safelyexecuter!. I have therefore taken the judgment ·of an assessor respecting it, and also respecting two or three other points, about which, however, I had no difficulty. His answers show that the collision could not have been avoided by attempting to go about after heading southward, and probably not before. . There is no evidence tending to support the second charge. On the contrary, the protest which the libelant put in evidence shows that there was no lack of vigilance in this respect. The inference (drawn from the collision itself) that the D. & J. Lee was not seen on commencing her change of head, because had she been, and the respondent then

THE FRANK P. LEE.

279

turned southward, the collision would have been avoided, is not justifiable. The fact that the maneuver did not avoid the accident can more ,reasonably and safely be accounted for by supposing the vessels to have been nearer together when the D. &. J. Lee changed, than the officers supposed. This is a subject about which they might readily be mistaken, while the officers of the respondent (who say in their protest that' the lookout was vigilant, and the vessel ahead continually seen) could not be mistaken. Furthermore, all proper inferences touching the subject tend to show that the vessels near together at the time. The circumstances that the collision occurred notwithstanding the respondent's prompt change of head; that the master of the D. & J. Lee hallooed to the respondent to" go about" at the time of ordering his own vessel about, and hesitated respecting further movements until he saw what the respondent would do; and that the collision occurred almost directly after the change of course,-seem to leave no room for doubt that the vessels were very near together when the change of course occurred,-so near, indeed, that the attempt to croBS the respondent's bows was hazardous and unjustifiable. It may be suggested that it is unreasonable to suppose the. D. & J. Lee would thus attempt to cross the respondent's bows. This would have much force, in the absence Of evidence tending to show she did. Like most other men, masters of vessels are not always considerate and prudent. The fact that this master ran past the respondent, (with whom ,he had been sailing all day, and proposed accompanying to the end of his voyage,) with intent to cross her front, without materially lengthening his tack, while he might (without serious disadvantage) h.ave tacked before passing, or, afterwards without crossing, by SImply shortening sails, allowing respondent to continue her course, and tacking astern, tends forcibly to show that he was not considerate or prudent. It is probable, however, that he was mistaken in the distance between the vessels. The difference in speed was not great. The testimony shows that considerable time was occupied (and some slight difficulty experienced) in getting past. How much space he gained, and how much time was occupied after passing. and before tacking, he does not know. Neither he nor his officers could have told, had their attention been called to it before the collision. What they say now is little better than guessing. The references to time and distance in their testimony, and in the protest, are estimates and approximations, merely: That the D. & J. Lee was in fault in more than one important respect, I do not doubt. Intending to tack so soon, Bhe should not have passed the respondent, but have gone about on overtaking her. Having passed, she should have continued her course until far enough ahead to go about with absolute safety,-whether the respondent should turn southward or hold her course, Crossing the latter's bows where she attempted was a grave fault, and the primary cause of the accident. She was, however, guilty offault in failing to display a torch or white light, in coming up to the wind, in the respondent's front, and virtually stopping in her track,-as required by the statute. It is impossible to say that such a light would not have tended to avoid the collision. The

\
280 FEDERAL REPORTER.

assessor thinks it would, and his' conclusion is reasonable. It is snfficient, however, that it might possibly have done so. The Pennsylvania., 12 Fed. Rep. 916j The Excelsior, ld. 203; The Heretde8, 17 Fed. Rep. 606. For the reasons above stated, the libel is dismissed,with costs.

THE HOWARD. THE JAMES RUMSEY. VROMAN

V.

THE HOWARD and another.

(District Oourt. B. D.New York. March 24, 1887.)

1.

CoI,LISION-FoG-PIEIUl AND SLIPs-TuG-FERRy-BOAT-MODERATIIj SPEED.

While a tug taking a tow to her customary place to He up for the night is not blamable, in a dense fog at night, for going near to the piers andelips, she is bound to use a corresponding degree of caution, and ferry-boats are bound to the same caution, and to use moderate speed in approaching and entering their slips.

2. SAME-CASE' STATED. The ferry-boat J. R., from Hoboken to the Twenty-third street slip, New York, in a dense fog at night, in the flood-tide, crossed the river under slow bell. On making the lights of her ferry-slip she found herself a little above her slip, and thereupon ported, and rang her bell to go full speed. Soon after a and tow were seen crossing her feny-slip entrance, and, not· withstandmg reversal, a collieioll ensued. Held, both in fault,-1he tug, for too great speed, for having her red light hid, and for not sounding fog signals, and for inattention and want of lookout in' not hearing the fog-bells and whistles 'whichwere sounded near her; the ferry-boat, for going under full speed when near her slip, notwithstanding the liability of other vessels being unavoidably near in the fog, and full speed not being necessary to enter her slip. 8. SAME-DAlIfAGES-OLD BOATS-NoTICE. The recovery in favor of an old boat is not to be limited to half her damages, unless there is some fault on her part, actual or constructive, such as the failure to give notice of her weakn.ess, where there is opportunity to do so, in a place of risk, or where her exposed position is of her own selection. In a collision that is wholly unexpected, and without any fault on her part, she is entitled to full indemnity, and to repair corresponding to her preVIOUS con· dition.

Gilbert D. Lamb, for libelants. Carpenter &: Mosher, for the Howard. John O. Be88on, for the Rumsey.
BROWN,J. On July 5, 1886, at about 10:30 P. M., as the ferry-boat James Rumsey, from Hoboken, was approaching her slip at Fourteenth street, North river, she came into collision with the barge Moses H. Grinnel1, which was going up river lashed to the port side of the tug Howard, arid projecting some 30 feet ahead of the latter's bow. The weight' of evidence, particularly the testimony of Robertson; the ferry-