THE HARRISBURGH.
169
Philadelphia for a license; * ... and that it shall be the duty of at least three of the said wardens to examine every person so applying, ... ... * and to grant licenses to all such as they shall deem qualified. * * *" The act of assembly of of February 4, 1846, (P. L. 30,) provides: " If any person ... ... shall undertake to pilot any vessel in the bay or river Delaware ... * without a license duly granted by the board of wardens of- the port of Philadelphia, ... ... ... every person so offending shall, upon conviction thereof, be imprisoned for not less than one month 1101' more than one year, and be fined any sum not exceeding $200, at the discretion of the court." , The, act of assembly of Pennsylvania of March 24, 1851, (P. I,. 229,) provided that II every vessel arriving from or bound to any foreign port ... ** shall be obliged to take a pilot., * * *" ' The act of assembly of the state of Delaware of April 5, 1881, provided inter alia.. That any person exercising the profession of a pilot on the bay and river Delaware shall * * ... apply in person to the board of pilot commissioners for a license, * * ... and that it shall be the duty of at least three of said board to examine every person so applying, lit * and to grant· licenses to all such as they shall deem qualifled; * ... and if any person shall ... ... ... exercise the profession of pilot in the bay and river Delaware without such license, ... he shall forfeit for every vessel which he shall undertake to pilot $30, together with the pilotage to which he would be otherwise entitled. ... ... That every ship or vessel ... ... ... passing in or out of Delaware bay by the way of Cape Henlopen shall be obliged to receive a pilot; ... ... ... that the pilot who shall first offer himself to anr. inward-bound ships or vessels shall be entitled to take charge thereof. ... ... ... '
THE HARRISBURGH.·
(Oircuit Court, E. D. Pennsylvani(t. 1.
October 10,1881.)
ADMIRALTY-COLLISION-DuTY OF STEAM-SHIP APPROACHING SAILING-VESSEL -PRESUMPTION AS TO LATTER'S COURSE.
When a steam-ship and a sailing-vessel are approaching each other, it is to be presumed the latter will pursue the customary course, at that point, of vessels bound in the direction in which she is sailing j and if that course would cause the vessels to approach on intersecting lines and create danger of collision, it is the duty of the steam-ship to make such timely reduction of her speed or change of her course as would avoid such danger. A failure to do this will render the steam-ship liable in case of collision.
Appeal from the Decree of the District Court. This was a libel by the owners of the schooner Marietta Tilton against the steamship Harrisburgh to recover damages for the loss of the schooner by a collision. The facts are sufficiently set forth in the opinion. The district court, in an opinion reported 36 Leg. Int. 66, dismissed the libel, and from that decree the present appeal was taken. "Reported by Frank P. Prichard, Esq., or the Philadelphia bar.
170
FEDERAL REPORTER.
Ourtis Tilton and Henry Flanders, for appellants. Thomas Hart, Jr., and J. Warren Ooulston, for appellees. MoKENNAN, C. J. Finding of facts by the court: (1) On the evening of the sixteenth of May, 1877, Ii little before 9 o'clock, a collision occurred between the schooner Marietta Tilton, of which the libellants were owners, and the steamer Harrisburgh, which resulted in the entire loss of the schooner and her cargo, and in the drowning of six of'her crew,all but two of those who were aboard of her. (2) The place where the collision occurred was within 100 yards of Cross Rip light-ship, off the coast of Massachusetts. (8) The night was unusually clear, the moon shining in her first quarter, and objects were tUstinctly visible at a long distance, the vessels having actually sighted each other when they were about foul' miles apart. (4) At the point where the collision occurred the channel was nearly a mile wide, the light-ship being on the southern border of it, and there being a sufficient depth of water for the passage of the steamer in any part of it. (5) The steam-ship was pursuing a westwardly course, heading for the light.ship upon a straight line which would pass slightly north of it j or, in the language of the mate, "I ported my bow and headed myship for the lightship, keepinl{ the light a little on my port bow." This course she maintained without any deviation or reduction of her speed. (6) The schooner was sailing eastwardly, and when she was first seen by the steamer her position was cohSiderably (not less than a half mile) north of the line of the steamer's progress, and so north-westward of the light-ship. When the vessels were at a safe distance apart the schooner luffed a little to the windward, and thence, sailing on the wind, which was from the southwest, she pursued a course directly towards the light-ship, upon a line which was oblique to that of the steamer's course, exposing her port light to the steamer. This was the course la.id down in the sailing directions for vessels bound eastward, and she kept it steadily. (7) The courses of the vessels thus converging to the light-ship, they must necessarily have moved upon intersecting lines. (8) When they were within three or four hundred feet of each other, and the peril was imminent, the schooner podell and the steamer starboarded her helm, and ran stem on into the port sille of the schooner and sank her. OONCLUSIONS OF LAW.
Most of the facts found aboye are undisputed. Those which are of decisive significance have been the subjects of very earnest and exhaustive contestation, and the evidence touching them is, to some extent, conflicting. It has, therefore,heen the duty of the court to 'collate and consider carefully this evidence; and it is believed that the facts found are the result of the preponderating weight of it, and of the inherent probability of their truth. It would be superfluous to vindicate these conclusions by a detailed discussion of the evidence,
'.rIlE HARRISBURGH.
171
because they are not subject to review. It is enough to state them, and apply the law to them. That'ia simple and well settled. It gave the right of way to the schooner, and required her to keep her course, which she did; it imposed upon the steamer the duty of slowing up, stopping, or changing her course, neither of which she did. The adoption of either of these precautions would have averted the disaster. The circumstances were such as to make this duty imperative upon the steamer. She sighted the schooner at a distance of four miles, again at a distance of two miles, and observed that the schooner was sailing on the wind and 80 south-easterly. She ought to have presumed that the schooner would pursue the customary track, at that point, of vessels bound eastward, and a proper observation of the actual direction of the schooner's course ought to have warned her seasonably that they were approaching each other on intersecting lines, and that she was bound to regulate her movements in such an emergency to avoid all danger of collision. A timely reduction of her speed, or a slight change in her course, would have accomplished this, but she directed her course, with undiminished speed, to pass between the light-ship and the schooner, and so brought herself in contact with the latter. This was her avoidable mistake, and so she must be held solely accountable for the consequent loss. The theory propounded by the respondents' counsel does not furnish a satisfactory solution of the problem. It rests upon the hypothesis that the v.esselS were sailing upon parallel lines, sufficiently far apart not to involve any danger of collision, and that, when they were within three or four hundred feet of each other, the schooner suddenly luffed across the steamer's bow, and thus brought them in contact; but it is unsupported by sufficient evidence, is against the decided weight of evidence in the case, is inherently improbable, and, in the judgment of experienced seamen, is perhaps entirely impracticable. There must be a decree for the libellants, and a reference to a commissioner to ascertain and report the damages.
172 THE ALCONA. (District COU1't, E. D. Itlinoz's. 1. GENERAL AVERAGE.
1881.)
Where a vessel, in the course of her voyage, hecomes stranded upon the bank of a river or harbor, and the circumstances are such as to show there is no danger to be apprehended from her lying t.here, the expense of getting her off is not the subject of a general average contribution.
In Admiralty. This was a libel in personam by Charles Bewick et al., owners of the propeller Alcona, against the Detroit FiJ;e & Marine Insurance Company, to recover for a general average contribution. The policy insured the propeller against total loss and general average only in the sum of $10,000. The answer denied that the libel set up a proper claim for general average. Bya stipula. tion of facts it appeared that the Alconar a cargo of 37,000 bushels of corn, left Toledo, Ohio, for Buffalo, and while proceeding down the Maumee river, when on the range stakes, brought up on the bottom, anc;l was unable to get off without assistance; that she lay about 20 feet outside of the channel; that while she was thus stranded it was deemed advisable to lighten her ofa· portion of her cargo, and accordingly about 5,000 bushels were removed from the propeller to a bai'ge, and the propeller was then doated by the assist· ance of the propeller Alpena and certain tugs.
Otto Kirchner, for libellants. F. H. Canfield, for claimants. BROWN, D. J. So far as the.facts of this case are concerned, I am satisfied that there is no evidence which would be proper to go to a jury that the Alcona was in any danger of total loss or serious damage to herself or cargo. There is no allegation to that effect in the libel. She lay upon an even keel, upon a bank of sand, clay, and mud, several miles from the mouth of the Maumee, protected from the heavy winds and sea of the open lake. A rise in the water would have floated her off without assistance, and it was very improbable that any such fall would occur as would put her in any serious peril. She was a little out of the channel, and there was plenty of room for other vess6ls to pass witlJOut fear of collision. The weather was good, and for all that appears she was as safe as if she were lying at her own dock. Nor should I be justified, from the testimony, in finding the existence of a usage of insurance companies to treat expenditures of this kind as general average. It is true that evidence was offered tending to show that in a number of similar cases, running through J, series of years, expenses incurred under like circumstances had been allowed; but there is nothing to show a. uniform 'and certain