586
FEDERAL REPORTER.
sustained. There is testimony that he requested to be taken to the' wharf, but it is met by testimony to theoontrary, to my mind, of greater weight. Aside from what the respondent's witnesses.say on the suLject, the probabilities are against the libelant. That he intended to pursue his way up the stream with the tide, can hardly be doubted. He had provided for doing so, in procuring a boat and anchor, and, as he doubtless believed at the time, a pilot familiar with the channel. As no motive whatever can be seen for refusing the alleged request, the inference is reasonable that ,it wquld not have been refused if made. Furthermore, it is not shown that the, situation in which the libelant was left was dangerous, even if. he proposed to go no further at the time. Sufficient has been said to indicate the court's reasons for the decree. It would be out of place to inquire into the railroad company'" liability under its contract, as shown by the ticket, or to enter upon the question whether the libelant's misfortune arose from failure to comply with the contract, or from fault of his own in neglecting to employ the pilot whose services were tendered, and attempting to pole hiB boat up a channel of which he was ignorant, or failing to seek the aill of the steam-barge, which passed him on the way. The libel must therefore be dismissed.
THE CLIFTON.
(DisfridOQurt, D. ]lew Jersey.
December 8,1882,)
1.
COLLISION-EIGHTEENTH SAILING HULE.
Where two vessels are approaching each other nearly end on, involving the risk of a COllision, the eighteenth sailing rule requil'cs that the helms of both vessels should be put to port so that ea<;h vessel 'should PllsS on the port side of the other, Ilnd the vessel failing to obey this rule will be held in fault in case of a'Collision, 2. WmSTLE:'-PILOT REGuLATIONS.
By the first rule of ., the regulations fOr the government of pilots" It is prescribed thllt when are approaching each ot·her head and. head, or nearly so, it shall be the putyof each steamer to pass to the right or.on the port side of each other, and the pilot of either st'eamer may be first in determining to pursue this course, and shall give; as' a signal of his Intention, one short, distinct blast of his steam-whistle; which the pilot of the other steamer shal answer promptly by a similar blast, and if the answer be two blasts of the steam-whistle, in res'ponse to a single blast, such steamer will be held in fault in case of a ·eollislon. .
III Admiralty.
Bedle, Muirheid ,f McGee, for libelant. Goodrich, Deady et Platt, for claimants. . . NIXON, D. J. This action is brought by the owners of the steamtug Johnson Brothers against the steam·tug Clifton for damages arising from collil:lion. The libel alleges that on the evening of thtl tenth of October, 1881, the tug-boat Johnson Brothers was steaming down the East river from Seventeenth street, New York city, bound for Jersey City; that said tug left Seventeenth street at 6 :30 o'clock in the afternoon on a that shortly afterwards she discovered a tug-boat coming up the river in shore with a sloop in tow, and so. shaped her course as to pass on the outward or eastern side of said tug and tow; that she then saw coming out from under her stern the tug-boat Clifton, showing a red light and a high white light. The Johnson Brothers immediately ported her helm and blew one whistle, and still seeing the red light of the Clifton and not hearing any answer to the whistle, put her helm hard a-port and again blew one long whistle, and the pilot rang four bells to stop, slow, and back said Johnson Brothers, which were at once obeyed. Upon the second whistle being blown the Clifton replied with two short whistles, and then swung around and showed both of her head-lights, and about five seconds afterwards struck the Johnson Brothers on the port bow, about four feet aft of her stem, and cut her about two-thirds in two, and left her in a sinking condition. The said collision occurred a few minutes after half·past 6 o'clock on the evening aforesaid, off Tenth street, in the East river, and on the New York side; that just previous to the collision, and immediately before putting her helm hard a-port, the Johnson Brothers was heading straight down the river; that it was not dark, but the weather wasfair,and lights at th.e lime could be plainly distinguished. It further a1ieged that at the time when the two vessels first came in sight of each other they were [neeting end on, or nearly end on, so as to involve risk of eollision, imd that if the Clifton had put her helm or if she had kept _ her course, or if she had backed or taken any of the precautions' to avoid a collision which the Johnson Brothers did, the collision would have been avoided. The answer of the respondents denies the statement of facts 'in libel,. and claims that on the evening in question the Clifton had landed riear the south ferry in New York and was going up the river to Twelftbstreet for water, and was running pretty close along the piers on the New York side; that when off Fifth or Sixth street she sighted ahead the tug-boat Sarah with a schooner in tow on her starboard side; that when the Clifton go(about off Ninth-
588
street pier she was close behind the schooner; that the .Clifton, as soon as she passed Ninth street, hauled a little to port, intending to pass inside the schooner; that before the Clifton thus hauled in she had seen the green light and not the red light of the Johnson BrotherR; that if the Johnson Brothers had kept her course she would have gone considembly to the starboard side of the Clifton, the vessels Leing neither end on nor head to head, nor nearly so, but that just about the time the Clifton had hauled to port, after passing Ninth str' d, the Johnson Brothers gave one blast of her whistle, which was instantly answered' by the Clifton with two blasts of her whistle; that thereupon the Johnson Brothers gave another single blu:>t, wluch was also answered by the Clifton with two blasts, when suddenly and for the first time the red light of the Johnson Brothers came into view, and the engine of the Clifton was stopped and reversed, and her wheel hove hard a-starboard; but that almost immediately the collision occurred, the starboard bow of the Clifton and the port bow of the Johnson Brothers coming into violent collision. . ,. After examination of the voluminous and contradictory testimcny, I !tm 6f the opinion that the Clifton was in fault, and that the collision would not have occurred if tllose managing herhad observed ttie rul8s of riavigation applicable to the case. The two vessels approaching each other nearly end on, involving the risk of coming together. The eighteenth sailing rule (section 4233, Rev. St.) requiros, under such circul1lstances, that the helms of both vessels should be put to p<>rt, so that each vessel may pass on the port side of theothe1'. The John8011 Brothers obeyed this rule, but the Clifton did not. Her determined to pass the Sarah and her taw on t,he larboard or N,ew and in do this sh El her helm, aItllough by so doing she was. brought across the track of the Johnson Brothers, arid came into collision with her. Besides,the Clifton was in fault in answering the single whistle of the Johnsbn Brothers with t}Vo whistles. By the first rule of regulations for the govern"tberit of pilots, adopted by the board of supervising inspeptors in June, 1$'71, and amended 1875," it is prescribed that "when steamers are approaching each otIler head aqd he,ador ne!j,rJy so, it shall be the ,duty of to pass to the, right pr the. port sideo! each pilot ,of Eiither stealIler may»e ,first in to pursue, and shall give as, a signalo! intention one·short. and. blast, of his steam-whistle, 'which the pilot of the other steamershall answer promptly hy a sim-
589 Dar blast of his steam-whistle, and thereupon such steamer shall pa.ss to the right or on the port side of.each other." The pilot of the JohnBon Brothers was the firat to determine the course, a.nd by one whistle gave notice to the Clifton to port her helm and pass to the right. But the pilot of the Clifton, wishing to go into the Twelfth-street dock by the shortest way, declined to accede to the arrangement, andreplied with two whistles rather than one. It was as if he had said to the Johnson Brothers: "1 hear your single whistle, but I give you notice, by returning two whistles, that I do not mean to comply with your request and go by you on your port side. I prefer to hug the wharves, and pass you on yourstarboard side,although the first rule or regulation, governing both of us, gives the pilot of either steamer the right of first determining on which side he. will pass the other, and when he has given the notice of his determination by a single whistle, th e othermust accede by returning sarile ing'to the right, or on the port side pf each other." '. ,. There must be a. decree for the libelants_ and'a referenoe '\oI:£Boertam the damages. . ,
,TIlE ·FEnRERI.·
(Uireuit Oourl. E./J. New York. December 14, 1882.) CONVEltSION-JUUIflDICTJON-CASll: AFFIRMED. , '. . ::,1,
Decision of the district court. in the liame caaeaJlfrmed. FED. HEI'. 468. . , ,', : I '," '; ; '.', r;
TMFfI"'tJrl. II " ..'\ l . _
In Admiralty.' . j::, fP.". W. Goodrich, ·fol' Uhelan:ts.' , . . :'; . alto; for claiw,llont. , ' " . \BLA'J;CHFOJ,m, Justice. I have- eareftilly examined thepmQfll:in thE!se cases, and considered ,the questione' argued 'atthe bar., I :\Fhe opinion of the fQr,th the f-acts cur in :tbe; pt.Qof-s show .80 ,right· in the libelants:to lIuit in rem "gaillllt' th.Q:v6sBel the resin; that, unMr, tbe averments in,theliqel,and.iiaprayerj ,a"cleoree for for caQ.; be ,suBt11ined,; . and: that a right to requirE! the si-gnin8 of the; billo! which they {romtl1e master. : tbe;yhad ,B. right ,to "hLiin, the benefit Of tbEl. contract of ship:Ql&J;lt ma.de by Miohel ,with th&,Yessel ,is I
-Reported by R. D.
W.rllys..Bcnedict..