But the question of reasonable safety in navigating around Pollock Rip lightship and in the channel to the north of it during dense fog, is manifestly dependent on the provision that is made for giving notice of the position of the tow to other vessels that are about to round the lightship from the opposite direction. Both vessels, in rounding, must keep within range of the lightship's signals, or else all. knowledge of their position is lost; and it is doubtless impossible that a tow of several boats in thus swinging around nearly a right angle, should be kept in line; particularly the hinder boats; so that if no means are provided of signifying to an approaching vessel the position of the hinder boats, such navigation in dense fog seems to me in the highest degree dangerous, and unjustifiable, as the respondents' witnesses contend. From time immemorial it has been the usage of seamen in the presence of recognized danger from other vessels, to give signs of warning; such as by shouts, by a gun, by a drum, or by any other means available. The Bay State, 1 Abb. Adm. 239, Fed. Cas. No. 1,148. And where a steam whistle is on board, as on the Shamokin, I can see no reason why that whistle should not be availed of, as the readiest and most effective instrument to give such warning. The twenty-fourth rule expressly provides that "nothing in the rules shall exonerate any ship from the consequences of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case." No rule or regulation prohibits the use of a whistle; while the new rules of 1890 (article 15) provide that a specified signal of three blasts "may be given by the tow." This provision could only have been made. because it was known that there were situations in which it was necessary that a tow should give notice of her position in order to prevent disasters; and I cannot conceive of any situations in which such a notice is more imperatively necessary than in situations like the present, if such navigation is to be permitted at all. Had the Shamokin given notice of her bearing by this perfectly simple and practicable method, showing her position much off on the Whitney's port bow, the Whitney would have had earlier notice of her peculiar and dangerous proximity and would naturally have reversed at once, probably in time to prevent collision. If the Whitney ought to have reversed when the convergence of her course upon that of the tow was discoverable, still there was nothing to lead her to suppose that the Shamokin lay two points still further to the eastward; and if the Shamokin had been in line with the tug and tow ahead of her, probably no collision would have occurred. Evidently no arrangement, and no provision, were made by the International that the Shamokin should use her whistle, or give any warning signals, whatever her position, or whatever the danger to herself and to other vessels might be. Such navigation continued voluntarily, and without necessity, under circumstances like those in the present case, I must find to be highly dangerous, and unjustifiable. Without some such provision for signals from the Shamokin to indicate her position, the tug was, I think, bound to come to anchor. The Sylph, 4 Blatchf. 24, Fed. Cas. No. 13,711; The Raleigh, 41 Fed. 527, affirmed 44 Fed. 781; The Girolamo, 3 Hagg. Adm. 174; The Lancashire, L. R. 4 Adm. & Eccl. 198. In the case of The Raleigh, 44 Fed. 781, the tug Niagara had anchored in thick fog in the North river, a little below the Englewood dock, with a flotilla of canal boats stretching behind her about 800 or 1,000 feet. Upon appeal, Judge Wallace, in his opinion, says: "Having a flotilla stretching out 800 or 1,000 feet behind her in the navigable channel, common prudence required the Niagara to adopt needful measures to signify that state of things to approaching vessels, because such vessels hearing fog signals on board the Niagara would look for danger at the location of the signals and deem themselves safe in crossing the river to the eastward or the westward on a course much nearer to her than 800 or 1,000 feet.” And in that case the Niagara was held in fault, though she had herself given the required signals, because she did not provide that her helper, the Easton, which had a steam whistle, should give additional fog signals to indicate the position of the tow. Such sig. nals were still more imperatively required by "common prudence" in the present case, because the tow here was still farther behind the tug; because the tow in motion was more dangerous than one at anchor; and because navigation by other vessels, which was to be looked for in going around Pollock Rip lightship, was far more dan gerous than in the straight channel of the North river. In the same case, it was further held under a somewhat liberal construction of the state statute, and for the purpose of securing safety, that the tow boats themselves were also required to give fog signals; and the libelant's recovery was on the latter ground reduced one-half. In the present case, though there was no statute requiring the tow to sound her whistle, the reasons upon which the statute is founded, apply in a more urgent degree, for the reasons above stated; and the requirement of "common prudence" that the tug International should have arranged and provided that the Shamokin should sound her whistle in such situations in order to give notice of her position was greater than that the Niagara should provide that the Raleigh should give signals at the end of her tow. In the case of The City of New York, 49 Fed. 956, the circumstances were different in several respects. There is no intimation in that case that it was intended to overrule the decision in the case of The Raleigh, to the effect that it is the duty of a tug under circumstances of special danger to make provision for giving fog signals by whistles, where such means are available to indicate the position of the tow far astern. I think I should follow that case, believing it to be sound in principle, and correct in application, in both cases alike. I find, therefore, that it was the duty of the International either to anchor in a safe place, as she might easily have done before rounding Pollock Rip lightship, or else before proceeding on, to arrange for the giving of suitable fog signals by the Shamokin to indicate her position, some 1,200 feet astern. Having done neither, I must find her in fault for dangerous and unjustifiable navigation; and the damages are, therefore, divided. A decree may be entered accordingly, with a reference to compute the damages if not agreed upon. MEMORANDUM DECISIONS. BALTIMORE & O. R. CO. v. FRIEL. (Circuit Court of Appeals, Third Cir- PER CURIAM. This case is disposed of by the opinion filed herewith in the case of the same plaintiff in error against Friel, defendant in error. 77 Fed. 120. The judgment is affirmed. BALTIMORE & O. R. CO. v. FRIEL et ux. (Circuit Court of Appeals, Third Circuit. December 2, 1896.) No. 31, September Term, 1896. In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. Before DALLAS, Circuit Judge, and BUTLER and WALES, District Judges. PER CURIAM. This case is disposed of by the opinion filed herewith in the case of the same plaintiff in error against Friel, defendant in error. 77 Fed. 126. The judgment is affirmed. FULLER & JOHNSON MANUF'G CO. v. BENDER et al. SAME ▼. NAGLEY et al. (Circuit Court of Appeals, Second Circuit. January 7, 1897.) These are appeals from decrees of the circuit court, Northern district of New York, dismissing complainant's bills. The suits were for alleged infringement of letters patent of the United States No. 423,200, issued March 11, 1891, to Charles G. Alward, for a transplanting machine. Chas. H. Duell, for appellant. Chas. W. Smith, for appellees. Before LACOMBE and SHIPMAN, Circuit Judges. PER CURIAM. The decrees in both causes are affirmed, with costs, upon the opinion of the circuit court (69 Fed. 999, 1001), in which we entirely concur. STIRLING CO. v. PIERPOINT BOILER CO. et al. (Circuit Court of Appeals, Third Circuit. November 30, 1896.) Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. For opinion of circuit court, see 72 Fed. 780. Chas. Heebner and Ephraim Banning, for appellant. Thomas W. Bakewell, for appellees. No opinion. Cause remanded to circuit court, with instructions to grant a rehearing, and enter such order or decree as the parties may agree upon or said court consider proper, pursuant to written request and consent of counsel. UNITED STATES ▾. JOHNSON. (Circuit Court of Appeals, Second Circuit. PER CURIAM. The questions of law arising in these cases will be certified to the supreme court. Counsel may prepare and submit proposed statements of facts in the usual form, such statements to contain, in substance, the findings of the circuit court, and also the facts touching adjustment of the claim relied upon as a counterclaim. END OF CASES IN VOL. 7% 78 |