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The Clematis.

The Rescue, 2 Ib. 16; The John Fraser, 21 How. 184; Sturgis v. Boyer, 24 How. 110; Sawyer v. R. & B. R. R. Co. 27 Vt. 377).

The following authorities indicate that, in cases like the present, an action would lie as upon a contract. Certainly it would, if the case has any analogy to those of common carriers (2 Red. on Railways, 14; The New Jersey Steam Nav. Co. v. The Merchants' Bank, 6 How. 344; Sanderson v. Lamberton, 6 Binn. 129).

LONGYEAR, J. The case has been argued and submitted on the exception, before proceeding to a hearing on the merits. Other objections to the libel were raised at the hearing, but as the above is the only exception found stated in the pleadings, it will be the only one noticed.

The argument in support of the exception proceeds upon the assumption that there is no privity of contract between the barge and the tug Clematis. The right of action in this case does not necessarily rest upon breach of contract. It has a sufficient foundation in tort. The casting off of the barge's line and abandoning her to her fate in time of peril, as charged in the libel, was a misfeasance. It was a violation of a duty toward the barge, which had become incumbent on the tug by her taking the barge's line and towing her to the place of danger, in which she is charged in the libel with having left the barge to her fate, without just cause. No matter whether the tug so took the barge's line and did such towing with or without a contract with the barge. In other words, after she had taken the barge's line and towed her to a place of danger, it was the tug's duty to retain the line and stand by her so long and so far as possible, and for a breach of that duty an action will lie (Sher. & Red. on Negligence, § 112; see, also, opinion of Justice Woodbury, 6 How. 418).

And even upon the basis of a breach of contract, I am inclined to think that, upon the authority of the decision of the United States Supreme Court, in the case of The New Jersey Steam Nav. Co. v. Merchants' Bank (6 How. 344, 380), the

The Masten.

action will lie. But from the view already taken, it is unnecessary to discuss this aspect of the case.

Exception overruled.

THE MASTEN.

JUNE, 1872.

COLLISION.-WEIGHT OF EVIDENCE.-SPEED IN ENTERING A HARBOR.

Evidence of verbal statements made in time of excitement and peril should be received with great caution, and when opposed to the direct and concurring testimony of many witnesses, is entitled to but little weight.

A sailing vessel entering a crowded harbor at the rate of six miles an hour, in addition to a favorable current of four miles, condemned for too great speed.

LIBEL for collision by Frederick H. Blood, owner of the schooner Maid of the Mist.

The collision occurred at about 2 o'clock in the morning of the 10th day of September, 1871, in the St. Clair river, a short distance below Port Huron, and opposite the Port Huron Middle Ground, so called. The schooner was lying at anchor, in about mid-channel, and the bark was coming down the river, bound on a voyage from Chicago to Buffalo, laden with wheat. The starboard bow of the bark struck the schooner on the starboard side, carrying away her jibboom and head gear, and her foremast head, breaking her starboard stanchions, and driving her anchor into her, and inflicted such injuries that she sunk in about an hour and a half. The night was dark, although it was a good night to see lights. There was a large

The Masten.

number of vessels at anchor in the river, variously estimated by the witnesses at from thirty to seventy or eighty. The channel was somewhat narrow, although there was ample room for vessels exercising ordinary care and skill to pass. The wind was blowing a stiff breeze down the river, and was consequently free to the bark. The current at that point was about four miles an hour. The bark had up her mainsail, mainstaysail, topsail, and three jibs, aad was running at the an hour through the water, and about Her mainsail was being taken in at the Thus far the facts were undisputed.

rate of about six miles

ten miles by the land. time of the collision.

Mr. H. B. Brown, for libellant.

The master was clearly in fault for running at too great speed.

The following facts are not disputed:

First-That the wind was blowing almost a gale from the northerly, and was a fair wind for the Masten as she came down the river.

Second-That she was passing through the water at six miles an hour.

Third-That, with the addition of the current, she was actually approaching the schooner at ten miles an hour.

Fourth-That no sails had been furled from the time she entered the river, and only a reef taken in her topsails.

Fifth-That there were from fifty to eighty sail in the river, that had taken refuge there from a storm in the lake. These vessels were lying upon both sides and in the center of the river.

It was the duty of the bark to furl all her canvas, except what was absolutely necessary to preserve her steerage way, or to come to anchor before she reached the schooner (The Morning Light, 2 Wall. 550, 558; The Virgil, 2 W. Rob. 202).

Mr. W. A. Moore, for claimant.

Mr. Moore's brief discusses simply the question of fact.

The Masten.

LONGYEAR, J. The main and only disputed essential fact in the case is, whether the schooner had up her proper anchor light; and it is conceded that if she had, then the bark is in fault, and must respond in damages. Too great speed is also charged as a fault against the bark; but this can be of importance only in case it shall be found that the schooner had not up her proper light, and then only on a question of division of damages. The question as to the schooner's light will, therefore, be first considered.

The testimony on the part of the libellant shows that from the force of the wind and current the schooner dragged her anchor a considerable distance before she came to, and that she came to only a few minutes-fifteen or twenty—before the collision.

John Jones, master of the schooner, testifies that immediately upon coming to anchor, he took in the colored lights, and hung a bright light in the fore-rigging on the port side. He then describes the lamp or lantern, and its height from the deck, &c., but as no question is made in these respects, it is unnecessary to repeat his testimony.

Hannah Dell, the cook, testifies that she trimmed the bright light, and handed it to Capt. Jones, in the cabin, when he brought in the colored lights.

James M. Jones, son of Capt. Jones, and who was on the lookout on the schooner, testifies that he saw his father hang up the light, and that it burned brightly.

Oscar Hill testifies that he was on deck several minutes after the schooner came to anchor, and that he distinctly saw the light; that he went below before the collision, but on hearing the alarm, came on deck, and at the time of the collision was standing near the fore-rigging; that when the foremast head was carried away, the fore-rigging came down with a run and the lamp with it, that the lamp hit him on his back, and that it was then still burning.

Henry Sageman testifies that he was also on deck when the schooner came to anchor, and saw the light hung in the rigging, and that it was burning good.

The Masten.

Now these five witnesses testify with a particularity of detail which precludes the possibility of their being mistaken. One of two things must be true, either that the schooner had a proper and sufficient anchor light, or that each of these five witnesses has sworn falsely, willfully and deliberately.

In answer to this array of testimony, respondent produces the following:

James Kendrick, master of the bark, testified that he was standing forward near the lookout, when the latter reported to him that he saw a vessel ahead; that by the aid of his glass he distinctly saw a vessel, which proved to be the Maid of the Mist, a little over his starboard bow, and only about 100 feet off, and that he saw no light on her; that he immediately ordered his wheel hard a-starboard, and the collision occurred almost immediately after. He also testifies to a conversation with Capt. Jones, master of the schooner, in which he said to the latter, that it would not have happened, if he, Capt. Jones, had had a light out, and that Capt. Jones replied that he ordered the boys to put one out. Two others of the crew of the bark testify to having heard Capt. Jones make the same statement.

George Johnson, the lookout on the bark, testified to seeing the schooner, and reporting her to Capt. Kendrick, and that he saw no light on her.

The wheelsman on duty, and several others of the crew of the bark, on deck at the time, also testify that they saw no light on the schooner before the collision, but it does not appear that any of them saw the schooner, and I am satisfied they were not in a position to have seen her, or any light there may have been upon her at any time before the collision

occurred.

All the witnesses on the part of the bark testify that the first light they saw on the schooner was a light coming out of her cabin soon after the collision.

Besides the above testimony on the part of respondents, a statement made by Hannah Dell, the cook on the schooner, in her testimony, to the effect that when the lamp was brought

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