The Sunnyside.

should agree with in the circumstances of that case. The Scotland (1 Ben. 295), a vessel whose duty it was to keep out of the way, was guilty of manifest irregularities in such ample time before the collision, that had they been known to the officer on the other ship, ordinary prudence would have demanded a deviation. The lookout signally failed to do his duty. The case is but a common illustration of principles we fully concede. With some of the arguments in the opinion, if, as we much doubt, it is intended to sustain the inferences which counsel sought to draw from it, we should not agree. The C. C. Vanderbilt (Abb. Adm'y 361), The Hope (1 Wm. Rob. 157), are like cases. 1 Pars. Adm. 580, and notes, refers to the leading cases, holding that a rule of navigation should not be stubbornly adhered to. He remarks that The Oregon (18 How. 570), Crockett v. Newton (18 How. 581), take a somewhat different view. If it is supposed that tribunal has decided a rule of navigation may be stubbornly adhered to, we do not so understand them, and certainly proceed in no such notion now. If there be any difference between the English and American rulings upon this subject, the former are more rigid in insisting upon adhesion to rules of navigation.

We think the judgment referred to and the rules best for the safety of navigation, establish the right of the Sunnyside in the circumstances which were presented to her lookout to keep her course up to the point when collision became inevitable. She then did all in her power to avoid it. We find that there was no fault in the master for returning to his post, or in the lookout, standing on the forecastle of his heaving ship, in the night, with no guide object between him and the light, that he did not discover the difference between a movement of two miles an hour and five, or in distance between six hundred feet and two. Carelessness on the part of the libellants, which, if life had been lost was undeniably criminal, can cast no such extraordinary duty upon the approaching ship.

Decree for the cross-libellant.

NOTE.-This case is now pending on appeal in the Supreme Court.

The Free State.

Affirmed, 91

THE FREE STATE.

APRIL, 1873.

91us.200.

COLLISION. STEAMER AND SAILING VESSEL.--CONSTRUCTION OF ARTICLES 13 AND 16.--RISK OF COLLISION.--OBLIGATION TO SLACKEN SPEED.

A propeller descending the Detroit river at her usual speed, made the green light of a scow very nearly dead ahead, and about the same time the red light of a steamer a little upon her port bow; the steamers exchanged single whistles and passed each other to the right; while passing the ascending steamer the propeller starboarded to avoid the scow; when very near the propeller, and about one and a half points on her starboard bow, the scow ported, and threw herself across the propeller's course, and thereby came into collision with her and was sunk. Held, the scow was in fault for changing her course, and that the propeller was not in fault for failing to slacken speed before the scow exhibited a red light.

A propeller meeting a sailing vessel in a clear night with plenty of sea room, is under no obligation to slacken speed so long as the sailing vessel is apparently keeping her course, and no danger is apparent.

The words "risk of collision" are not used in the same sense in Articles 13 and 16 of the Collision Act; in the latter they apply only to cases of manifest danger of collision, and the obligation to slacken speed under Article 16 was not intended to be contemporaneous with the duty of porting under Article 13.

The cases upon the subject of speed reviewed and criticised.

LIBEL for collision, by August F. Ludwig and others, against the propeller Free State, the Western Transportation Company, claimant.

The collision occurred between three and four o'clock in the morning, on the 17th day of August, 1870, in the Detroit river, just above Amherstburg, in Canada, and between the main land and the head of Bois Blanc Island. The scow was bound up with a load of building stone. The propeller was bound down, also loaded. The weather was fair, and it was a

The Free State.

good night to see lights. The scow had the wind free, and a little over her port quarter. The propeller struck the scow on the port side, a little forward of the main rigging, crushing her in and causing her to sink almost immediately. The specific faults with which the propeller was charged were five in number, and were as follows: 1. Want of proper lights. 2. No lookout. 3. Did not keep her course and pass on port side. 4. Did not slacken her speed. 5. Not fully equipped. The answer denied the faults charged, and that the collision was caused in any manner by fault or negligence on the part of the propeller, and claimed that the same was caused solely by fault and negligence on the part of the scow, and specified the following: 1. That the scow had no lookout. 2. She did not keep her course. 3. Officers and crew not at their proper posts, &c.

The following opinion was delivered by the District Court (Judge Longyear).

There is no pretense that the first, second, and fifth charges of fault against the propeller, and the first and third against the scow, are sustained by the evidence. The case, therefore, stands for decision on the remaining charges only:

The law governing the case is found in articles 15, 16; and 18, of the Act of April 29, 1864 (13 Stat. 60, 61), as follows:

Article 15. If two ships, one of which is a sailing ship and the other a steamship, are proceeding in such a direction as to involve risk of collision, the steamship shall keep out of the way of the sailing ship.

Article 16. Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, if necessary, stop and reverse; and every steamship shall, when in a fog, go at a moderate speed.

or,

Article 18. Where, by the above rules, one of two ships is to keep out of the way, tho other shall keep her course, etc.

The mere fact of collision between a steam vessel and a sailing vessel is, as a general rule, prima facie evidence of fault and negligence on the part of the steam vessel, it being made her duty, by article 15, to keep out of the sailing vessel's way; provided always, however, that the sailing vessel is herself without fault. In such cases, therefore, unless it shall ap

The Free State.

pear that the collision was in fact the result, in whole or in part, of fault on the part of the sailing vessel, the steam vessel must bear the loss. Hence it becomes important, in this case, in the first instance, to inquire into the charge of fault made against the scow.

By article 18, it was the duty of the scow to keep her course, and the charge of fault made against her is that she did not do so.

By the evidence adduced on behalf of the scow the following facts are established: After entering Detroit river, the scow kept up along nearer to the Canadian (her starboard) bank. Just after passing Amherstburg the steamer Jay Cooke passed the scow on her starboard side, or between her and the Canadian bank. As the Jay Cooke was passing her, the scow came up (starboarded) one point, or thereabouts, in order, as the witness said, to give the Jay Cooke more room. After the Jay Cooke had passed, the scow ported, in order to get into the wake of the steamer. It was while she was sailing under this port order that the propeller came down upon her. When the collision became inevitable, the scow's helm was put hard aport, and the collision occurred.

Here, then, by her own showing, were at least two changes in the scow's course. Did these changes, or either of them, occur after it had become the duty of the scow to keep her course? And, if so, did such changes cause, or contribute to, the collision?

I think the proofs show that the propeller had been made from the scow before the Jay Cooke passed; at all events, she was made aware of the approach of the propeller when she and the Jay Cooke exchanged signal whistles, which occurred just as the Jay Cooke was passing the scow, and, of course, before the latter had ported to get into the Jay Cooke's wake. The proofs further show that when the two steamers blew their signal whistles, the propeller and scow were not to exceed a half a mile apart, and were probably considerably nearer than that; and that when the scow ported, the distance between them was only some 300 to 400 feet.

From these facts, it is clear that the proximity of the two vessels was such that the duty of the scow to keep her course had attached before she had made either of the changes mentioned.

Now let us see what effect these changes had in bringing about the collision.

The proofs on the part of the propeller show that the scow

The Free State.

was first made from the propeller at or about the time the Jay Cooke was passing the scow, and that then the scow showed to the propeller her green or starboard light. This must have been after the scow had starboarded to give the Jay Cooke more room; because, owing to a bend in the river between the two vessels, and their position in the river, the starboarding of the scow would have the effect to shut in her red and open her green light to the propeller. It also appears by the proof that the propeller's course was laid to avoid the SCOW, while the latter was under the starboard helm, and still showing her green light; and I think the conclusion irresistible that, but for the scow's porting as she did, the propeller would have gone entirely clear of her, and there would have been no collision. The propeller, of course, had the right to pass the scow on either side she chose, and, in laying her course, she had the right to presume the scow would keep her course.

From the above premises two things are apparent :

1. That, if the scow had kept the course she was on when the Jay Cooke overtook her, and had not starboarded as she did (and there is nothing to show that such starboarding was at all necessary to avoid collision with the Jay Cooke), the propeller would not have been misled as to the scow's ultimate intentions, and would have had no excuse for attempting to pass her on her starboard side.

2. If, after the scow had starboarded, she had then kept her course, there would have been no collision, and hence that the immediate cause of the collision was the scow's porting as she did.

In arriving at the above conclusions I have found it unnecessary to resort to that portion of the testimony on the part of the propeller in relation to the situation of the two vessels in the river, and relatively to each other, which was so ably and severely criticised by the learned advocate for the libellant. As to the movements of the scow I have drawn my conclusions solely from the libellant's own testimony, and have resorted to the testimony on the part of the propeller only for the purpose of ascertaining when the scow was first made from the propeller, what light of the scow was then seen, and what action on the part of the propeller was predicated thereon.

Having found that the scow must be held responsible for the immediate cause of the collision, it remains to inquire into the conduct of the propeller, and see if she was guilty of any fault which contributed to the result.

The speed of the propeller, as we have seen, was nine