speed of 13 miles or more, and passed the Mariposa safely, but about that time the Wilbur took a sudden sheer to port, and struck and sunk the Martha. The weight of testimony tended to show that when the signals were exchanged the Mariposa was about on the range line in the middle of the channel; that she then ported, and, on seeing that the two meeting steamers were abreast, ported again, the Martha following each time, and that at the time of collision they were each about 150 feet to the westward of the center of the channel; also that the Wilbur passed the Mariposa at a distance of about 50 feet, and was at no time east of the range line. She called to the Troy to stand off and give more room, which being refused, she slackened speed just before meeting the Mariposa, which brought her stern within the suction at the stern of the Troy, and caused the sheer. Held, that neither the Mariposa nor the Martha was in fault, it appearing that the latter ported again on seeing the Wilbur sheer, but could not then get out of the way, but that the collision was due to the fault of the Wilbur and the Troy, for coming up abreast, as they did, so near the center of the channel; the Troy also being in fault for unnecessarily crowding the Wilbur toward the meeting vessels.

3. ADMIRALTY-TRIAL-EXCLUSION OF EVIDENCE.

In the trial of an admiralty cause, where the testimony is taken before the court, all testimony offered, although objected to, should be admitted, subject to the objection for the benefit of the appellate court, unless so utterly irrelevant or immaterial that there can be no question of its inadmissibility.

Appeal from the District Court of the United States for the Eastern District of Michigan.

These are appeals from a decree of the district court, in admiralty, rendered in a cause of collision between the steamer E. P. Wilbur and the barge Martha on the evening of October 26, 1900, near the lower end of Lake St. Clair, and in a channel or cut extending from a point not far above the place where the waters of the lake pass down into the Detroit river, upward through the shoal water of the lake for several miles. The channel is straight, is 20 feet deep, and of the width of 800 feet. The Peche Island Range, running through its center, makes a course about two points to the left of the last course below on which vessels come up out of the Detroit river. The western side of the channel is marked by white lights a mile and a half or more apart. On the eastern side are red lights opposite to the others, and, of course, the same distance apart.

The steamer Mariposa, with the Martha in tow, on a line 600 feet long, both laden with iron ore, was coming down the channel on her way to Lake Erie ports. The Wilbur was going up, lightly laden, and was moving alongside the steamer Troy, also going up, lightly laden; the Wilbur being on the port side of the Troy. Signals were exchanged between the Mariposa and the Wilbur and the Troy in due season, while the two latter were below the cut, and nearly three-quarters of a mile distant from the Mariposa, signifying an agreement to pass on the port hand. The Mariposa was moving at a speed of about 7 miles an hour, and the up-bound steamers at a speed of 13 miles, or a little more. The Wilbur and the Troy passed the Mariposa at a safe distance and without trouble, but at that time the Wilbur took a sudden sheer to port, and, striking the Martha on the bluff of her bow, broke into that vessel for a distance of 26 feet, and beyond her collision bulkhead. The bow of the Martha immediately filled with water and sank to the bottom. The after part of the vessel floated for a brief time, and then went down. The damage from the collision to the Martha amounted to $43,000 and over, and the Wilbur sustained damage to the amount of over $15,000. The collision occurred about half past 9 o'clock, a half mile above the lights at the lower end of the cut. The night was somewhat dark, though the weather was clear and calm. There is a current in the cut of about a mile an hour. The Mariposa was 330 feet long. Her breadth of beam was 45 feet, and her draught 17 feet. The Martha's length was 352 feet, her breadth was 44 feet, and her draught 17 feet and 6 inches. The Wilbur was 290 feet long, 40 feet beam, and 14% feet

draught. The Troy was 402 feet long, 45 feet beam, and had a draught of 14 feet. More particular details of many of the principal facts are stated in the opinion, which follows.

The owner of the Martha, the Minnesota Steamship Company, libeled the Wilbur and the Troy for her damage; alleging that the misconduct of the latter contributed to the sheer of the Wilbur, whereby the mischief was done. The Lehigh Valley Transportation Company, claimants of the Wilbur, answered for that vessel, denying all fault, and, by cross-libel and petition, charged the Troy, the Mariposa, and the Martha with responsibility for the damages suffered by the Wilbur. The Western Transit Company, claimants of the Troy, answered, denying all fault, and by petition brought in all the other vessels; charging them with various faults, and praying that they be charged with the damages ensuing in exoneration of the Troy. Answers to the cross-libel and petitions having been filed, and testimony taken, the parties were heard thereon. By the decree the Wilbur and the Mariposa were condemned, and each decreed to pay one-half of the whole damage. The Troy and the Martha were exonerated. The Minnesota Steamship Company and the Lehigh Valley Transportation Company have severally appealed.

Hermon A. Kelley (Hoyt, Dustin & Kelley, of counsel), for appellant Minnesota S. S. Co.

John C. Shaw (Martin Carey and Shaw, Warren, Cady & Oakes, of counsel), for appellant Lehigh Valley Transportation Co.

Harvey D. Goulder (S. H. Holding and F. S. Masten, of counsel), for appellee Western Transit Co.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. SEVERENS, Circuit Judge, having made the preceding statement, delivered the opinion of the court.

The outline of the controversy, as above shown, indicates that we should first consider the case of the Wilbur, whose sudden departure from her course was the immediate cause of the disaster. Having regard to the general facts already stated, without more, a presumption of fault on the part of that vessel arises, which she takes the burden of dispelling. She is bound to explain how it was that, in ordinary weather, in a fairly ample space for navigation, and being under no stress of circumstances occurring without her fault, she should have been suffered to go off on so dangerous a course. The Olympia, 61 Fed. 120, 9 C. C. A. 393; The F. W. Wheeler, 78 Fed. 824, 24 C. C. A. 353; The Mitchell Transportation Co. v. Green, 120 Fed. 49, 60, 56 C. C. A. 455; Davidson v. American Steel Barge Co., 120 Fed. 250, 56 C. C. A. 86; The Australia, 120 Fed. 220, 222, 224, 56 C. C. A. 568.

She has endeavored to explain, by charging that her sheer was produced by the improper conduct of the Troy and the Mariposa, in that those vessels wrongfully and unlawfully maintained a course so close to her, on either hand, that she could not control her own movements, and was powerless to avoid the disaster to which those vessels impelled her. But her answer gives color for a belief which is abundantly confirmed by the testimony that the Wilbur and Troy had been coming up the river ever since they left Detroit, eight miles below, at a rapid gait abreast of each other, "neck and neck," as one of the officers of the Troy expresses it in his testimony, apparently struggling for precedence. It appears that, when the vessels arrived at Detroit, the Wilbur was ahead, but that she stopped or slackened speed there momentarily, to pick up the mailboat, and the Troy got by her, or nearly by her, before

she got under full speed again. At all events, she drew up alongside of the Troy, and the vessels maintained that position, at varying distances apart, going up the river at a pace so rapid as to attract the attention and remark of those they passed, and exciting apprehension of danger to other craft which they met or passed. The court below was complaisant enough to accept the statement of the officers of the Wilbur and the Troy that they were not racing. But it matters little by what expression their conduct is characterized. We are convinced that the purpose of those on each of the steamers was that the other should not be allowed to get ahead of her, and that they were more intent on that purpose than to observe the habits of prudent navigation of their ships. The officers of the Wilbur say that she came around for the entrance of the cut only a few feet-30 to 50-from the lower white light on the west side, and the Troy was about the same or a little further distance off on the starboard hand of the Wilbur. We are not prepared to say that, if these vessels had been proceeding separately, their speed was improper; and there is no reason to suppose in the present instance that, if the vessels had come up singly, the disaster would have occurred. But they had no sufficient reason for supposing that those coming down would know that they were coming up in that form, and would make preparation to give them a wide berth. The danger of sudden sheers from passing other vessels, especially when going at great speed, is well understood; and the danger is increased when two vessels are moving in the same direction, close to each other, but at varying speed, so that the stern of the one is liable to fall into the trough behind the other. The result in this instance is one of which there was risk. A prudent navigator would have taken account of it. A giddy one, intent on a contest of speed, might not. The captain of the Wilbur testifies that he was conscious of the risk; that he did not like to have the Troy so near him; that he felt uncomfortable; that he checked twice to permit the Troy to go ahead before they entered the channel, but that she did not, and came up into the cut not more than 100 feet away from the Wilbur. But he also says that there would have been no difficulty in checking the Wilbur to the extent necessary in order to follow the Troy, and it is manifest this was so.

When the captain of the Wilbur testifies, as he does, that his sense of the danger he was in became so great after the two steamers rounded to, and were about to meet the down-bound vessels, that he checked his own vessel, and that she immediately began to sheer, and he was unable thereafter to stop her until the collision happened, the immediate cause of the disaster becomes clear. The Troy was considerably larger than the Wilbur. The sterns of the vessels were opposite. The stem of the Troy was 100 feet in advance of that of the Wilbur, and the two vessels were on parallel lines, and about 40 feet apart. When the Wilbur checked, her stern was sucked into the wake of the Troy by the inflowing waters at the stern of the latter; and this influence, combined with the impact of the water displaced by the bow of the Troy upon the forward starboard side of the Wilbur, and the high speed at which the vessels were moving, would naturally effect the uncontrollable sheer which the captain of the Wilbur says his vessel experienced. As the speed of the vessels was still nearly alike, these

influences were not momentary, but were sustained for a time. It is contended on the part of the Wilbur and the Troy that the Mariposa produced, or at least contributed to produce, the sheer of the Wilbur. But that vessel, by the account of the Wilbur herself, was nearly twice as far away from her as the Troy. Besides, she was a meeting vessel, and in such case her influence was only momentary; and, her speed being moderate, the suction at her stem could not have been greatnot greater than would be frequently experienced in ordinary navigation.

The influences which operated here, and which are so constantly observed by intelligent seamen, were discussed and in great measure explained by this court in the case of The Alexander Folsom, 52 Fed. 403, 3 C. C. A. 165. And in several cases since we have had occasion to observe their decisive effect in contributing to disastrous collisions. The Ohio, 91 Fed. 547, 33 C. C. A. 667; The Fontana, 119 Fed. 853, 56 C. C. A. 365; The Australia, 120 Fed. 220, 56 C. C. A. 568.

When the steamers came around into the channel, they knew what the position of the Mariposa and her tow was. If there was danger, they could see it. They were three-quarters of a mile off. But they at no time gave any signal to the Mariposa of apprehended danger. For reasons which we shall state hereafter, we are convinced that the Mariposa and the Martha were for some distance, before they met the upbound steamers, on the western side of the middle of the fairway or dredged channel. It is certain, and it is the one thing about which there is no dispute, that the Wilbur and the Troy were advancing abreast and very close to each other-not more than 40 feet apart. Those on the Wilbur called to the Troy to stand off and give the Wilbur more room, or to check her speed. This request was met by an obstinate refusal. The Troy justifies herself by the allegation that she was already well over to the eastern side of the channel, and could not prudently give more room. Moreover, the captain of the Troy testifies that there was ample distance between the Troy and the Mariposa and her tow to allow the Wilbur free passage by, with proper management. And here we stop to notice the attitude of the Troy and her testimony in making her defense. Her officers are responsible for the story that, at the time the Wilbur sheered off, the Troy was about 40 to 50 feet from the eastern side of the channel; that the Wilbur was abreast of her (that is, their sterns were opposite each other); that the Mariposa was on a course 250 feet westward of the Troy. This would bring the Mariposa considerably east of midchannel. We think this testimony savors of a self-serving purpose, and, in respect to the Troy's position in the channel, it is so opposed to the weight of the testimony, and the probabilities arising from facts which we feel quite sure of, that we are constrained to regard it as unreliable. We refuse to believe that the Troy was where she says she was, and are convinced that the complaint of the Wilbur that during the critical period the Troy wrongfully crowded her too far over to the westward is well founded. As will be shown later on, sufficient reasons appear for believing that the collision occurred quite to the westward of the middle. of the channel, and at a place where the Wilbur had no right to be; and, further, that she has not excused herself for being there. We

think the Wilbur was at fault in not taking counsel of her fear, and in going up alongside of the Troy at the speed they were moving-a menace to meeting vessels. We do not say that of itself her checking her speed in extremis was an actionable fault. But she voluntarily placed herself in a position where she was liable to be in extremity. She cannot, therefore, plead the peril she came into as an excuse. The Australia, supra; 7 Cyc. 309.

From the necessity of the case, we have been obliged, in discussing the conduct of the Wilbur, to deal with the conduct of the Troy also. We think she shared in the fault of the Wilbur in going up the channel in the relation with her that she held, and at the speed they maintained, and that she unnecessarily crowded the Wilbur into too close proximity with the course of the Mariposa and the Marthawhether from perversity or recklessness, we do not say-and refused to give room, when she had ample opportunity for doing so without danger to herself, when she knew of the straits the Wilbur was in. Her fault was even greater than the Wilbur when the final catastrophe was brought on.

When we say the Troy crowded the Wilbur into too close proximity with the Mariposa and the Martha, we have in mind the speed of the Troy and the Wilbur, and their relation to each other.

Counsel for both the Wilbur and the Troy have given considerable space in their briefs to the question as to which of those two vessels was to be regarded as the one overtaking the other, with a view to claiming for their respective vessels the privilege given by rule 22 (Act Feb. 8, 1895, c. 64, 28 Stat. 649 [U. S. Comp. St. 1901, p. 2891]), to the one overtaken. The claim of the Troy is that she passed the Wilbur while the latter was under check at Detroit, and thus gained the favored position. For the Wilbur it is claimed that the Troy came up only to a position where she lapped the Wilbur, and did not deprive the Wilbur of the leading position. We do not feel called upon to decide this question. A disagreement over such a matter furnished no apology for engaging in a reckless contest in navigable waters, and putting others who were exercising their lawful rights therein to hazard and ultimate loss; nor did it give either the right to obstinately persist in a course which would bring the other into peril.

It remains to consider what judgment ought to be pronounced in regard to the Mariposa and the Martha. If the testimony of the officers. of these vessels is to be believed, there is no reasonable ground for thinking that either of them was at fault. From that it would appear that, in coming down through the cut, they first met the Majestic, a steamer going up, and, turning to starboard, passed her by the port hand. Thereupon they swerved back toward the range line, when, the signals for passing the steamers below having been given and answered, they again turned out to starboard, and proceeded on that course until they saw the vessels coming up abreast of each other, when the Mariposa ported again; the Martha following her. The steamers passed the Mariposa safely, the Wilbur being rather close and already beginning to sheer. Nothing could then be done. Only the fraction of a minute elapsed after the Wilbur passed the Mariposa before the crash. came. Meantime the Martha, seeing the Wilbur coming, had vainly