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PENNSYLVANIA STEEL 00. et al. V. NEW YORK CITY RY. CO. et al. (Circuit Court of Appeals, Second Circuit. May 2, 1910.)

No. 317. STREET RAILROADS (8 55*)_FORECLOSURE OF MORTGAGES-RECEIVERSHIP-IN

PROVEMENT OF PROPERTY.

A court of equity, which through its receivers is operating an extensive system of street railroads pending the foreclosure of mortgages and liens on its various parts, has power in its discretion to authorize the ex. penditure of money by the receivers in the completion of car houses, which were being rebuilt or enlarged on certain of the lines, where in its judgment such expenditure is necessary to meet the requirements of the system and render adequate service to the public, leaving the question of the distribution of the expense as between the different mortgagees to be determined on a final accounting.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 134; Dee. Dig. $ 55.*] Appeals from the District Court of the United States for the Southern District of New York.

Suit in equity by the Pennsylvania Steel Company and another against the New York City Railway Company and others. With this case were heard suits in equity by the Morton Trust Company, by the Guaranty Trust Company of New York, and by the Morton Trust Company against the Metropolitan Street Railway Company and others. From an interlocutory order of the Circuit Court (171 Fed. 1019) the Morton Trust Company and the Guaranty Trust Company appeal. Affirmed.

Bronson Winthrop, Charles T. Payne, and George Roberts, for Morton Trust Company.

Julien T. Davies and Brainard Folles, for Guaranty Trust Company.

Arthur H. Masten, William M. Chadbourne, and Ellis W. Leavenworth, for Joline and Robinson, receivers.

Before COXE and WARD, Circuit Judges, and HOLT, District Judge.

WARD, Circuit Judge. These are appeals from an order of the Circuit Court authorizing the receivers of the Metropolitan Street Railway Company to expend some $400,000 out of income for the completion of three certain car houses, one of which had been destroyed by fire, all three of which were being reconstructed on a larger scale. The appellants are respectively the trustee under the general mort. gage of the Metropolitan Street Railway Company to the Guaranty Trust Company and the trustee under the refunding mortgage to the Morton Trust Company. Both mortgages are being foreclosed. The car houses are being erected on ground covered by the latter mortgage only. Both trustees object that there is no sufficient proof that such extensive construction is necessary. The necessity of car houses is quite clear; also that they should be erected on the ground •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Inderes

on which they originally stood; and also that, when erected, they should be sufficient for the requirements of the system which the receivers were operating. We think that it was within the sound discretion of the Circuit Court, in view of all the circumstances, to say how extensive the improvements should be, and are not disposed to interfere with its conclusion on this point.

The other objections arise out of the competition between the two mortgages. The trustee of the general mortgage insists that these ar houses directly benefit the refunding mortgage, which alone covIs the premises, and therefore the receivers should be reimbursed or the expense of construction out of the property covered by it. n the other hand, the trustee of the refunding mortgage says that is a first lien only upon real estate, which, instead of being imoved in value, is injured by the erection of the car houses, especially it be sold to a person not purchasing the railroad system, upon ich the general mortgage is a first and the refunding mortgage a Ond lien. Therefore it is contended that the expense of construc

should be imposed upon the property of the Metropolitan Street way Company, for whose benefit, as a railway system, it is ined. ich appellant contends that the order should be amended to cover ontention. The Circuit Court and this court have persistently that the disposition of all competing equities is to be reserved the final distribution of the whole fund. Judge Lacombe's memum, handed down with the order appealed from, shows plainly his was his intention. An application to him for a resettlement

certainly have resulted in the insertion of a provision that payut of income in the first instance should not prejudice the claims one upon final distribution. order is affirmed, but, as some of the parties think that, as it will finally conclude the matter, with instructions to the Cirurt to resettle it in this particular, if application to that end

THE CHRISTIANIA BAIRD.

(Circuit Court of Appeals, Second Circuit. May 2, 1910.)

No. 215.

11*)COLLISION BETWEEN Tows-Fault or Tug. 5 passing down the Passaic river with a scow on one side and a r in tow on a hawser, held liable for a collision between the tows issing through the draw of a railroad bridge, on the ground that er failed to signal the bridge in time and while waiting for the of the draw after the passing of trains permitted the tug to drift the bridge and too close to one side, by reason of which the scow e trestle on that side, breaking the lines and causing the colli

the following schooner. »te.-For other cases, see Towage, Cent. Dig. 8 19; Dec. Dig.

see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from the District Court of the United States for the Easte:n District of New York.

Suit in admiralty by Mary F. Schultz against the steam tug Christiania Baird; the Passaic River Towing Line, claimant. Decree for libelant (169 Fed. 217), and claimant appeals. Affirmed.

Martin A. Ryan, for appellant.
Peter Alexander, for appellee.
Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD, Circuit Judge. February 14, 1907, the tug Christiania Baird, bound down the Passaic river from Newark to Hoboken with the light barge Brimstone on her port side and the light schooner Annie E. Webb astern on a hawser about 125 feet long, approached the trestle bridge of the Central Railroad of New Jersey which spans Newark Bay between Bayonne and Elizabethport. There is an abutment in the center of the channel dividing the bridge into two draws, the floor over either of which can be lifted after the manner of bascule bridges by machinery on the abutment. The tide was running strong ebb with a set to the westward. The semaphore on the abutment indicated that vessels bound down should go through the eastern draw. The regulations of the Secretary of War require vessels wishing the draw opened to blow a signal of three blasts, and the bridge tender to answer with a signal of three blasts, if it can be done, or two blasts if it cannot. When about a quarter of a mile away and proceeding with the tide about six miles an hour, the tug blew three blasts. Receiving no answer, and seeing two trains about to cross the bridge in opposite directions, she slowed down. When they had passed she started up and blew a second signal of three blasts, to which she received no answer. Seeing another train approaching from the west, the tug when about 600 feet above the bridge slowed down again and drifted. The draw was opened when she was about 150 to 200 feet off and a little to the eastward of the center of the draw in order to counteract the set of the tide. It being impossible to stop and round to, the tug started up under a jingle bell with her helm hard aport, but having no steerageway. The barge struck the trestle on the eastern side, parting the lines to the tug, swung around into the draw while the schooner, the tug having cast off her hawser, fan into the barge and swung around under the influence of the tide against the trestle to the east of the draw, sustaining the damage complained of.

The trial judge found that the draw was open in time and that the tow would have passed through safely, but for the fact that the tug had kept too far to the eastward, as the result of over estimating the set of the tide. We think she was more at fault for not signaling sooner and stopping. If negligent in both or either of these respects, it is no defense to her that the bridge tender was also at fault. The claimant defends as it is said principally that a rule may be laid down whether tugs which get no reply from a bridge t'ender have a right to proceed on the assumption that the draw will be open. It would be impossible to lay down an absolute rule that a

tug discharges its duty to its tow if it proceeds upon this assumption. Every case must depend upon its own circumstances. The best way to arrive at complete justice in such cases will be for the tugs, either as bailees of the tow, to sue the bridge owners, or, are sued alone to bring the bridge owners in under rule 59.

Decree affirmed, with interest and costs.

if they

THE FRED RICHARDS.

(Circuit Court of Appeals, Second Circuit. May 2, 1910.)

No. 191.

1. COLLISION (8 66*)—-TUG WITH TOW AND SAILING VESSEL MEETING-FAULT

OF TUG.

Evidence considered, and held to show that a tug with a tow on a long hawser was solely in fault for a collision at sea in the night between her tow and a sailing yacht, which met on nearly parallel courses.

(Ed. Note. For other cases, see Collision, Cent. Dig. § 84; Dec. Dig. $ 66.*

Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.) 2. COLLISION (8 77*)–FAULT-LOOKOUT.

The fact that the lookout on a yacht was a Central American Indian incapable of speaking English did not impair his efficiency as a lookout, nor in itself constitute a contributing fault on the part of the yacht for a collision brought about by improper navigation by the other vessel.

(Ed. Note.-For other cases, see Collision, Cent. Dig. $$ 140-149; Dec. Dig. § 77.*] Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by Margaret S. Brandreth, as owner of the yacht Taormina, against the steam tug Fred Richards. Decree for libelant, and claimant appeals. Affirmed.

Wing, Putnam & Burlingham (James Forrester, of counsel), for appellant.

James J. Macklin (De Lagnel Berier, of counsel), for appellee.
Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD, Circuit Judge. February 3, 1907, about 9:40 p. m., the yawl-rigged yacht Taormina, bound from New York to Newport News, came into collision with a barge towing astern of the tug Fred E. Richards on a hawser 200 fathoms long. The tug and barge belonged to the claimant, and were bound from Philadelphia to Boston. The jibboom and headsails of the yacht were carried away, and she began to leak considerably. Under these circumstances it was perfectly natural that signals of distress should have been displayed on the yacht, as her witnesses testify they were. The witnesses from the tug say that they stood by half an hour (although they did not know there had been a collision until they arrived next morning at Whitestone, Long Island), and saw no distress signals. We do not credit •For other cases see same topic & S NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

their testimony on this point, and are satisfied that they did not lay by at all, and failed to see the distress signals because of gross negligence, or willfully disregarded them. The trial judge held that the tug's failure to stand by raised a presumption under the act of September 4, 1890, that the collision was caused by her fault, and we think he was right in so doing. But we arrive at the same conclusion on the testimony.

There is, as usual, great contradiction between the witnesses; but certain significant facts are admitted, viz.: The wind was northwesterly; the yacht was proceeding down the coast upon a course S. by W. 14 W.; the tug and tow were proceeding up the coast on a course of N.N. E.; the vessels were going at about the same speed, and there was but a difference of three-quarters of a point between their courses. The yacht passed the tug close to, port to port, and struck the starboard side of the barge an angling blow, without fouling the towing hawser. As she drew with her fin keel some 12 feet, it is obvious that the towing hawser must have been slack, and that this must have been caused by the stopping of the tug. As the barge was considerably on the port quarter of the tug and the wind was from the westward, the tug must either have ported or the barge starboarded.

We believe the vessels were approaching each other nearly head on at about the same rate of speed, so that their courses would cross at a point where they would be very near each other. It was for this reason that the tug stopped to let the yacht cross her bow, and that the yacht, seeing herself in such close proximity to the tug, put her helm down, so as to come up into the wind several points and give the tug and tow safe clearance. When, however, she discovered the barge on her starboard hand, she at once put her helm up rather than take the risk of crossing the bow of the barge, and scraped along her starboard side. The yacht did not change her course until the tug was in such close proximity to her that any change was an act in extremis, for which she is not chargeable with fault.

We do not attach much importance to the fact that the second officer, who was in charge of the yacht at the time of the collision, and the lookout, were not examined. The former was drowned before the trial, and the latter was a Central American Indian, quite incapable of speaking English. This would not prevent him from being an effective lookout.

The claimant relies upon The City of Rio de Janeiro, 130 Fed. 76, 64 C. C. A. 410, 69 L. R. A. 71, which does not seem to us applicable. In that case the owners were denied the benefit of the law limiting liability, because they had manned their vessel with a Chinese crew, who had been given no training in launching boats, and, because of their inability to understand orders after the stranding, the loss of life and baggage was greatly increased.

Decree affirmed, with interest and costs.

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