The master of a vessel had taken
up money on bottom ry. On the ar-
rival of the vessel at her port of des-
tination, a libel was filed against her
by the holders of the bottomry bond.
The master also filed a libel against
her, to recover a balance due him for
his own wages and for advances of
wages made by him to the crew. The
proceeds of the vessel not being suf-
ficient to pay both claims, an applica-
tion was made to the Court to settle
their priority, the bottomry holders
claiming that the master was liable
to them for any deficiency on the
bond, and that he could not, therefore,
claim a priority over them. The bot-
tomry bond did not contain any
covenant on the part of the master,
binding him personally for the debt:

Held, That, in the absence of such
an express covenant, the master
would not, by the maritime law, be
liable for a deficiency on the bond;

That, in respect to the bottomry
holders and the master, their claims,
in respect to order of payment, must
be subject to the general rule, by
which wages are entitled to be paid
in preference to bottomry claims.
The Irma,

See CHARTER, 2.

BROKER.

See BANKRUPTCY, 6.

C

CASES CRITICISED.

1

In re Crawford (3 Bank. Reg. 171), 150
Mitchell v. Great Works Milling &c. Co.
(2 Story, 648),
503

1. The owners of a vessel filed a libel
against a cargo of guano, which had
been brought in her, from Surrano
Cay to New York, under a charter-
party, to recover for demurrage in
loading her, and in discharging, and
to recover passage money, agreed in
the charter to be paid by the char-
terer. Detention of the vessel in
loading beyond the specified time was
admitted, but the charterer claimed
that it was caused by the master of
the vessel, in that he, without cause,
when she was partly loaded, changed
the place of anchorage of the vessel
to a greater distance from the spot
where her cargo of guano was being
loaded. On the arrival of the vessel
in New York, the master refused, for
several days, to sign bills of lading
for the cargo, because the charterer
would not admit the claim for demur
rage in loading. The charterer also
refused to pay the passage money, on
the ground that the fare was so bad
as to constitute a breach of the con-
tract:

Held, That, on the evidence, the
master was entitled to the presump-
tion that he knew best where his ves-
sel should anchor, and that his mov-
ing of his vessel was not, therefore, a
defence to the claim for demurrage in
loading;

That the master was not justified in
refusing to sign the bills of lading,
and the owners could not, therefore,
claim demurrage during the time of
such refusal;

That, on the evidence, the fare was
sufficient to entitle te owners to the
passage money. Three hundred and
ninety-three Tons of Guano,

533

half a mile off; that very soon after-
wards the schooner's red light disap-
peared, the green light remaining visi
ble, whereupon the steamboat's wheel
was starboarded to go under the
schooner's stern, and her engine
slowed; that thereafter the red light
suddenly came into view again, indi-
cating that the schooner had changed
her course; and that thereupon the
steamer stopped, but too late to avoid
a collision:

He'd, That, on the evidence, the
pilot of the steamer mistook the dis-
tance he was from the schooner, when
he starboarded to go between her and
Ward's Island, and was then too near
her to allow time for the schooner to
get off on the other tack;

That the schooner made no change
back to the port tack after having
come about on the starboard tack;

That, although the schooner's jib
was held up so as to keep her in stays,
yet that did not contribute to the col-
lision, and was done in the extreme
peril and alarm consequent on the
close approach of the steamboat head

on;

That the steamboat was solely lia-
ble for the damages. The Elm City,

58

2. A steamer, bound to the westward,
discovered the flash lights of a pilot
boat to the northward, about abeam.
She replied to them, indicating that
she wanted a pilot, and changed her
course to N. W. by N. The pilot boat
changed her course to the southward
and westward to meet the steamer,
showing her torches as she proceeded.
The wind was fresh. When the ves-
sels were four or five lengths apart,
the courses of the vessels were cross-
ing, and the starboard side of the
steamer was the lee side. She showed
a light on that side to guide the pilot
to his place, and a pilot left the pilot
boat in a yawl, having with him a
light, to board the steamer. The
steamer was kept in motion, and star-
boarded her helm, and, before the
yawl boat reached her, she ran into
the pilot boat and sank her. The
pilot boat had no masthead light, but
the light, which the pilot carried as
he went into the yawl, was seen by
those in charge of the steamer:

Held, That the steamer was in fault,

in not stopping still before she reached
the pilot boat, and also in starboard-
ing her helm;

That the burden was on the pilot
boat of proving that the absence of
the masthead light, which she should
have carried, did not contribute to
the collision;

That, as the exact position of the
pilot boat was known to those in
charge of the steamer, and as the ab-
sence of the masthead light was not
set up in the answer of the steamer as
an act of negligence, the absence of
the masthead light did not contribute
to the collision, and the steamer must
be held solely liable. The City of
Washington,

138

A propeller, bound to New York, was
coming through Hell Gate, with an
ebb tide, in the day time. A schooner
which was going through ahead of her
came to anchor off Hallett's Point, and
was struck by the propeller and sunk.
The schooner alleged that the wind
had died away, and that, finding she
was in danger of drifting on Hallett's
Point, she came to anchor, and had
been at anchor several minutes before
the propeller came in sight, and that
the propeller could have avoided her
by going on either side. The propel-
ler claimed, that the schooner was
slowly crossing the channel towards
Ward's Island, when the propeller
came to Negro Point, and that she
there took her course to go under
the schooner's stern, and between her
and Hallett's Point, and that, when
she was within five or six hundred
feet of the schooner, the latter sud-
denly came to anchor in midchannel,
right ahead of the propeller, and when
it was too late for the propeller to
avoid her:

Held, That the weight of the evi-
dence sustained the defence of the
propeller;

That, even if the schooner was in
peril of going on the rocks, by reason
of the dying away of the wind, which
led her to anchor when she did, she
voluntarily threw upon herself the
greater danger of anchoring in a nar-
row and dangerous tide-way, in the
course of the propeller coming with
the tide;

That the anchoring of the schooner
took place at a time and in a position

4. On the night of August 25th, 1871,
the Norwegian barque Anitas was
sunk by a collision with the steamer
Java, at sea. Of the twelve persons
on board of her, only one was saved,
and he was below, and did not come
on deck till after the collision. The
steamer was going at the rate of ten
knots an hour, and the night was dark,
with a drizzling rain. The weight of
the evidence for the claimant, how-|
ever, was, that the hull of a vessel
could be seen a quarter of a mile. The
lookout on the steamer saw a white
light about a point on her starboard
bow, which, he said, disappeared, and
he then saw a good red light. The
engine of the steamer was stopped and
reversed, but she struck the barque
stem on, on her port side, a square blow:

Held, That, if the night was a thick
night, with a drizzling rain, the speed
of the steamer was too great; and if,
on the other hand, the hull of a vessel
could have been seen a quarter of a
mile, and the steamer could be stopped
in less than a quarter of a mile, then
the steamer failed to see the barque as
soon as she ought to have been seen;

That the steamer had failed to es-
tablish that the barque did not have a
red light set, or changed her course
improperly, which was the only fault
she alleged against the barque, and
she was, therefore, solely liable for the
collision;

Where a vessel is found to have
been in fault in a collision, especially
where, as here, the effect of the collis-
ion was to destroy all the persons on
the other vessel who could have given
evidence as to her lights, clear and
satisfactory proof is required of the
absence of such lights, to inculpate
such other vessel in reference to the
lights. The Java,
245

5. A schooner was sunk, in Long Island
Sound, by a collision with a ship
which was at the time being towed at
the end of a hawser, by a tug. The
night was bright moonlight. The
wind was light, from a little west of

south, and the schooner was heading
about northeast, and going at the rate
of from two to three knots an hour.
The ship and tug were heading about
southwest. The schooner saw the
ship and tug a little on her port bow
at first, but the tug crossed to her
starboard bow when a short distance
ahead, and the schooner, keeping on
her course, came against the hawser
by which the tug was towing the
ship, and was then struck on her port
side by the ship's stem. The tug was
towing the ship at the rate of about
seven miles an hour. The ship and
tug claimed that the course of the
schooner was parallel to theirs, and
that, just as she passed the stern of
the tug, she ported her helm and so
came across the hawser and between
the tug and ship, and thus caused the
collision. The ship was under the
charge of a pilot, who was on board
of the ship, but he gave no order to
the tug. The hawser by which the
ship was towed was about two hun-
dred and fifty feet long:

Held, That the ship must be re-
garded as a ship under steam at the
place of collision, because she was
moving by steam alone, and her steam
power, though two hundred and fifty
feet away, was so by her option;

That it was, therefore, the duty of
the schooner to keep her course, and
the duty of the ship to keep out of
her way;

That, on the evidence, the courses
of the vessels were nearly end on,
and yet drawing across each other,
the tug and ship drawing across the
course of the schooner from port to
starboard;

That the burden was on the ship to
establish that the schooner changed
her course;

That, on the evidence, the schooner'
did not change her course;

That, in the absence of any special
instructions from the pilot who was
in charge of the ship, to the tug, as to
what was to be done on the approach
of the schooner, it was the duty of the
master of the tug to take care so to
navigate the tug and the ship as to
avoid a collision between either and
the schooner;

That both ship and tug were, there-
fore, liable. The Civilta and the Rest-
309

less,

He

6. A steamer and a schooner came in
collision at night in Long Island
Sound. The wind was southwest, and
the schooner was heading east, and
making nine or ten knots an hour.
The steamer was heading west by
south, making five or six knots an
hour. The schooner made no change
in her course. When the lights of
the steamer were first seen a little on
the starboard bow of the schooner, the
latter showed a torchlight on that side,
and afterwards showed it again shortly
before the collision. The master of
the steamer saw the torchlight, a little
on the port bow of the steamer.
also, at the same time, saw a red light
and several bright lights apparently
on a steamer on his port hand.
ported for a little time, and then
straightened up on his course again,
and, on seeing the torchlight again on
his port bow, ported again, as he said, 8.
because the pilot whom he had on
board said it must be on a pilot boat,
and he did not wish to be spoken;
and, on the re-appearing of the torch-
light a third time, still on his port
bow, he put his helm hard a-port and
stopped his engine, and then, seeing
the schooner's green light, reversed it,
but too late to avoid the schooner,
which was struck on her starboard
side and sunk:

He

Held, That the lighter was in fault
for changing her course, and was re-
sponsible for the collision.

When a change of course is admit-
ted or established on the part of a
vessel which is under obligation to
keep her course as against another
vessel which is bound to avoid the
former vessel, a very close scrutiny of
the conduct of the former vessel is
necessary.

The excuse for a change of course
by such a vessel, that the other vessel
was taking no steps to get out of the
way, is not to be favored.

It is the actual danger of collision
which determines the duties of both
vessels, and not the apprehension
merely. The Gen. U. S. Grant, 465

2. STEAMBOATS.

The steamboat S., coming down the
East river, saw on her starboard hand
the ferry-boat Q. lying in the river
waiting to enter her slip, and heading
down the river. The S. blew two
whistles and kept on her course. The
Q. started ahead, and swung in to go
to her slip, across the course of the S.,
and both vessels kept on without stop-
ping, till the S. was struck on her
starboard side by the Q.:

Held, That both vessels were in
fault, in keeping on, after each had
been notified that the other was tak-
ing a course which made a collision in-
evitable, if both kept on. The Queens
County,

146

Two steamtugs, the U. and the McC.,
were going down the East river, the
U. being ahead. The McC. gained on
the U., so as to lap her starboard side.
A ferry-boat coming up behind them
passed to the the starboard of both
tugs, and, as she was passing, the port
bow or stem of the McC. came in con-
tact with the starboard quarter of the
U., and she shot off to starboard, across
the bows of the McC., and struck the
port side of the ferry-boat, receiving
injuries, to recover for which a libel
was filed, in her behalf, against the
McC. No fault was charged by either
party against the ferry-boat:

Held, That the case was one to which
articles 17 and 18 of the Act of April
29th, 1864 (13 U. S. Stat. at Large,
61), apply. It was the duty of the McC.