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Appeal from the District Court of the United States for the Eastern 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, ran 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 a lso 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 tender 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, if they are sued alone to bring the bridge owners in under rule 59. Decree affirmed, with interest and costs.

THE FRED RICHARDS.

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

No. 191.

1. COLLISION (§ 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 (§ 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 & § 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.

WILLIAMS v. MOLTHER et al.

(Circuit Court of Appeals, Second Circuit. July 1, 1910.)

No. 332.

COURTS (424*)—FEDERAL COURTS-JURISDICTION-NAVIGATION INSPECTORS— EXAMINATION FOR PILOT'S LICENSE.

The federal District Court has no jurisdiction of an application to compel local inspectors of steam vessels to examine an applicant for a pilot's license, as authorized by Rev. St. § 4442 (U. S. Comp. St. 1901, p. 3037), without having complied with rule 5, § 46, of the board of supervising inspectors, making it a condition precedent to the applicant's right to examination that he shall have served a three years' apprenticeship in the deck department of a steamer, sailing vessel, or barge consort.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 424.*]

Appeal from the District Court of the United States for the Northern District of New York.

Petition by Frank R. Williams against John Molther and another, as local inspectors of steam vessels, to compel defendants to examine him as an applicant for a pilot's license. From an order denying the application, petitioner appeals. Affirmed.

Frank R. Williams, pro se.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge. The petitioner applied in his own proper person and in the most informal manner to the District Court of the United States for the Northern District of New York for an order directing the United States local inspectors of steam vessels for the district of Oswego, N. Y., to examine him as an applicant for a license to act as pilot, master, or mate on steam vessels under 100 gross tons from Ogdensburg to Detroit, on the St. Lawrence river, Lake Ontario, Niagara river, Lake Erie, and Detroit river, in accordance with section 4442, Rev. St. U. S. (U. S. Comp. St. 1901, p. 3037), which reads as follows:

"Sec. 4442. Whenever any person claiming to be a skillful pilot of steam vessels offers himself for a license, the inspectors shall make diligent inquiry as to his character and merits, and if satisfied from personal examination of the applicant, with the proof that he offers that he possesses the requisite knowledge and skill, and is trustworthy and faithful, they shall grant him a license for the term of one year to pilot any such vessel within the limits prescribed in the license; but such license shall be suspended or revoked upon satisfactory evidence of negligence, unskillfulness, inattention to the duties of his station, or intemperance, or the wilful violation of any provision of this title."

The inspectors refused to examine the petitioner, because his application did not show that he had the experience in the deck department of vessels required by rule 5, § 46, of the board of supervising inspectors, which provides:

"46. No original license for pilot of any route shall be issued to any person, except for special license for steamers of 10 gross tons and under, who has •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

not served at least three years in the deck department of a steamer, sail ves sel, or barge consort, one year of which experience must have been obtained within the three years next preceding the date of application for license, which fact the inspectors may require, when practicable, to be verified by the certificate, in writing, of the licensed master or pilot under whom the applicant has served, such certificate to be filed with the application of the candidate."

Section 24 of the same rule contains a similar provision as to engineers. The question sought to be raised is whether the inspectors' rule has the force of law under section 4405, Rev. St. U. S. (U. S. Comp. St. 1901, p. 3017), the material portion of which is as follows: "Sec. 4405. The supervising inspectors and the supervising inspector general shall assemble as a board once in each year, at the city of Washington, District of Columbia, on the third Wednesday in January, and at such other times as the Secretary of the Treasury shall prescribe, for joint consultation, and shall assign to each of the supervising inspectors the limits of territory within which he shall perform his duties. The board shall establish all necessary regulations required to carry out in the most effective manner the provisions of this title, and such regulation when approved by the Secretary of the Treasury, shall have the force of law. *

The petitioner insists that the rule in question is not required to "carry out in the most effective manner the provisions of this title," in that it restricts applicants, not in respect to their competency, which section 4442 was designed to insure, but to a smaller class of persons having had a particular kind of experience for a fixed length of time. Such or similar restrictions might easily be used to create a dangerous monopoly of the business of pilots and marine engineers. The question is therefore not deserving of serious consideration, but we are quite clear that the District Court of the United States has no jurisdiction in the premises. We do not feel called upon to express any opinion as to whether the Circuit Court in an equity proceeding could pass upon the petitioner's claim as a right founded on a federal statute, or whether the only remedy, if one is needed, is by application to Congress.

Order affirmed, without costs.

CENTRAL TRUST CO. OF NEW YORK v. THIRD AVE. R. CO. et al. (Circuit Court of Appeals, Second Circuit. May 2, 1910.)

No. 315.

SUBROGATION (§ 33*)—FORECLOSURE OF MORTGAGES-DEBTS ENTITLED TO PRI

ORITY.

The surety on an appeal bond given by a street railroad company on appeal from a judgment recovered by the city of New York for car license fees, which has paid the judgment and taken an assignment thereof, is subrogated only to the rights given by the judgment; and, there being no statute giving such judgment any lien or preference, it is not entitled to priority of payment over a prior mortgage on a sale of the company's property in foreclosure proceedings.

[Ed. Note. For other cases, see Subrogation, Cent. Dig. §§ 96-98; Dec. Dig. § 33.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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