THE ASBURY PARK.

(District Court, E. D. New York. June 7, 1905.)

SHIPPING INJURY TO TOWS FROM SWELL-NEGLIGENT NAVIGATION OF STEAMER.

A large steamer passed a tug with two mud scows in tow in New York Harbor at a distance of from 300 to 500 feet, and caused such a swell that the scows were thrown against each other and one was injured. It was shown that when the speed of the steamer was properly reduced and when she passed at a proper distance from a tow she produced no injurious swell. Held, that the fact that she did so on this occasion showed that she was not navigated with proper care, and that she was liable for the injury caused.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Shipping, § 345.]

In Admiralty. Suit for injury to scow.

Peter S. Carter, for libelant.

De Forest Bros. (R. D. Benedict, of counsel), for claimant.

THOMAS, District Judge. The tug Brown was going to sea, having in tow the mud scow McGirr No. 22, and, eight or ten feet aft thereof, the scow No. 38E. When in the middle of the channel, and 1,500 to 2,000 feet below the fort at Governor's Island, the swells of a steamer passing on the tow's starboard side so disturbed the scows that the stern of scow No. 22 got under the timber across the bow of No. 38 and lifted it, and for such injury the libel is filed. The master of scow No. 38 was not produced, as he was in California. Pirro, master of No. 22, testified that a steamer "going rather fast" passed the tow 200 or 300 feet away, and "made the sea big, swell, and it went under the stern of the scow 38." Erickson, captain of the tug, says that the Asbury Park passed the tug 400 or 500 feet off; that she was going about 12 miles an hour, although he would not swear that she was going more than 10 miles; that when he looked back the scows were "jumping in the sea, in the swell," and that the steamer was then 2,000 feet aft the tow; and that, using glasses, he saw her name under the stern. The captain and pilot of the steamer state that the name is under the fantail, and that when the propeller is in motion it would be very difficult, if not impossible, to see the name at a considerable distance. The captain of the tug places the accident between 3:30 and 4 p. m. Anderson, the engineer of the Brown, confirms the captain's statement that the tug slowed down, and that shortly he got a bell to stop and to go ahead again, and that as he went about he did not see the steamer, but did see the swells breaking all over the scows. The claimant's witnesses, Braisted, the captain, and Martin, the pilot, of the Asbury Park, gave evidence to the effect that the Asbury Park left Atlantic Highlands at 2:33 p. m., and reached the pier in New York at 3:35 p. m., passing Governor's Island about 3:28. Neither of them have any recollection of the tug and scows or of the accident. They state that in the neighborhood in question, before reaching such a tow, and when two, three, or

four lengths away therefrom, they customarily reduce their full speed of 18 or 19 miles an hour to 8 or 10 miles an hour, and pull away as far as they can get from her, and that with such speed the swells are not injurious to tugs and tows.

The evidence establishes (1) that swells did affect the dumpers so as to cause the injury; (2) that the swells were caused by the Asbury Park; (3) that if the speed of the Asbury Park is properly reduced, and if she passes at a proper distance from a tow, she produces no injurious swell. As she did cause an injurious swell, it is inferable that she was not observing the customary care which she had theretofore deemed requisite for safety.

The claimant bases an argument upon discrepancies in the statements of the libelant and its agents and servants as to time. But experience teaches that misstatement of time and distance is a common error, and departure from accuracy in such regard in this case is not sufficient to override the evidence that the offending vessel was the Asbury Park.

The libelant should have a decree.

HARTFORD & N. Y. TRANSP. CO. v. UNITED STATES.

(Circuit Court, D. Connecticut. June 13, 1905.)

SALVAGE-LIABILITY OF UNITED STATES-ASSISTING BURNING AMMUNITION SHIP.

A tug which went to the assistance of a United States vessel having on board ammunition for delivery to a war ship, in answer to her signal for help, and aided in putting out a fire which had broken out on such vessel, at considerable risk to the tug and crew on account of the nature of the cargo, the service lasting half an hour, held entitled to a salvage award of $500 on an implied contract, under the provisions of the Tucker act of March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752].

[Ed. Note.-Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]

Wilcox & Green, for libelant.

F. H. Parker, U. S. Atty.

PLATT, District Judge. The petition in this proceeding was filed to recover a judgment for $5,000 for salvage services rendered by the steam tug Sachem to the United States vessel Pontiac and government property on board the latter, under the circumstances set forth in the findings of fact hereinafter made. It has been determined that services of this character give rise to an implied contract, within Act Cong. March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752], commonly known as the "Tucker Act." U. S. v. Morgan, 99 Fed. 570, 39 C. C. A. 653; Cornell Steamboat Co. v. The United States (D. C.) 130 Fed. 480. The facts herein establish a claim which would sustain a suit in admiralty for salvage against a vessel owned by a private party, and, under the authorities above cited, the petitioner is entitled to a judgment in its favor.

The following findings of fact and conclusion of law are made, as required by the act referred to:

Findings of Fact.

1. The petitioner is a corporation organized under the laws of Connecticut, is a resident of that state, and at the times hereinafter mentioned owned the steam tug Sachem, which was equipped with fire and wrecking pumps, and had a crew of nine besides the master. 2. In the morning of August 21, 1903, said tug was off Tompkinsville, Staten Island, in the upper bay of New York, and the steam vessel Pontiac, owned by the United States and used for the transportation of ammunition by the navy department, was lying about a quarter of a mile away from the Sachem, with a red flag flying from her foremast. The flag indicated that the Pontiac had explosives aboard, and it was dangerous for other vessels to approach her. She was carrying a quantity of ammunition which was intended for delivery to a United States war ship lying off Tompkinsville.

3. While the Sachem and the Pontiac were in said relative positions a fire broke out aboard the Pontiac, and thereupon several blasts were given by her as a signal for assistance, and those on board the Sachem saw smoke issuing from her. The Sachem at once went to the Pontiac and assisted in extinguishing the fire.

4. Although the time consumed by the Sachem did not exceed half an hour from the time the alarm was given by the Pontiac, the services which she rendered were meritorious, and were extended under circumstances which justified the Sachem's crew in believing that they were exposing both themselves and their tug to grave danger because of the nature of the merchandise which the Pontiac was carrying.

5. Under all the circumstances, $500 will be a fair sum to allow for such services.

Conclusion of Law.

The petitioner is entitled to judgment against the United States for the sum of $500, but without interest or costs.

THE BELLINGHAM.

THE DODE.

THE FLYER.

(District Court, W. D. Washington, N. D. June 7, 1905.)

Nos. 2,610, 2,604.

1. COLLISION-STEAMERS CROSSING IN SEATTLE HARBOR IN FOG-EXCESSIVE SPEED AND NEGLIGENT NAVIGATION.

The steamboat Bellingham, with a tow alongside, left the docks at Seattle in the morning in a dense fog, and, after two or three stops, straightened out on a course to the northwest. At about the same time the Flyer, a fast passenger steamboat, making four regular trips daily to Tacoma and return, left the docks further to the north, and took her usual course to the southwest, attaining a speed of not less than 10 miles an hour in 3 minutes, when a collision occurred between her and the Bel

lingham and tow, which struck her on the port side with great force. Both vessels were sounding fog signals, but when they first saw each other the Bellingham was about 85 feet from the point of collision, making a speed of 3 knots or more, and the Flyer was about 140 feet from the same point. The master of the Bellingham knew the position of the Flyer's slip, her time of departure, and her usual course across the bay, and also heard her whistle for starting. Held, that both vessels were in fault-the Flyer for excessive speed in a fog in a bay where there were other vessels moving and anchored, and the Bellingham for failing to take warning of the Flyer's approach and to wait for her passage before approaching her course; that the Flyer was liable for one half the damages, and the Bellingham and her tow (which belonged to the same owner) for the other half, including damages for injury to an anchored vessel which was struck by the Flyer in consequence of the collision.

[Ed. Note.-Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532].

2. SAME-EXCESSIVE STEAMERS.

SPEED-RULES APPLICABLE ΤΟ REGULAR PASSENGER

The law makes no exception in favor of passenger steamers running regularly on schedule time on an established route, and, for injuries resulting from excessive speed in violation of the rules prescribed to insure safety to vessels and passengers, they must render compensation to the injured.

In Admiralty. Counter-suits for damages on account of collision. Decision on the merits, and decree for a division of damages. E. M. Carr, for owner of the Flyer.

Charles F. Munday, for owner of the Bellingham and the Dode.

HANFORD, District Judge. The proctors for the respective parties have taken extraordinary pains in the preparation and argument of these cases. The arguments, both oral and written, were very able and complete in discussing all the minute details of the testimony, and the propositions of law contended for. They have not, however, succeeded in obscuring or in excusing the mutual faults, which appear to be glaring, in the light of the testimony of every important witness. The simple facts are that on a foggy morning the steamboat Bellingham (having the steamboat Dode in tow) and the steamboat Flyer started to make their way out of Seattle Harbor on crossing courses, and a collision happened, by which all three of the steamers and the ship Chili, which was moored to a buoy in the harbor, were injured. For convenience, the Bellingham and the Dode will be hereafter referred to as if they were one vessel, as they were lashed together and commanded by one captain, and the Dode was without independent motive power. The Bellingham was the first to get away. Leaving her berth at the Colman Dock, she proceeded to where the Dode was moored, on the north side of Pier C, which is south of the Colman Dock. Then, with the Dode secured by three lines on her starboard side, the Bellingham backed out into the harbor sufficiently to clear the dock in making the turn necessary to come around on her course out of the harbor, which was west by north, her destination being Bellingham. The fog was very dense at the time, so that objects could not be seen at a greater distance than about 200 feet. After backing sufficiently to get away from the dock, she made a horse

shoe curve partly around the revenue cutter Manning, which was anchored at the place indicated upon the annexed outline map of the harbor:

A period of from 10 to 12 minutes elapsed while the Bellingham was executing her movements in backing and curving after hooking on to the Dode, and before the collision occurred. This consumption of time is accounted for by the fact that she made three full stops after having started her engine to working ahead, and while the Manning was visible from her pilot house. During this time. diligent use was made of her whistle, giving the blasts required to be given in foggy weather by a steamer burdened with a tow. When the Flyer came into view, the Bellingham had completed her curve, and was headed on her own course, and at right angles to