assumed the duty and risk of detaching the barge's bow mooring line, thereby exposing her to a flood tide, and upon the tug rested the responsibility of guarding her movements lest she injure other véssels. The tug failed in this duty, and is primarily liable. But should the tug be permitted to shift the liability to the barge because of the failure of the master of the barge to co-operate in the tug's intended maneuver? The careful argument of the claimant's advocate is quite logical, provided the premises be accepted that an arrangement was perfected between the tug and the master of the barge with reference to the part that the master should take in the maneuver. The question is not free from very serious doubt. The master of the barge testified that he did not understand that he was summoned to co-operate in adjusting the line at his bow. As the barge swung out her breastline was broken, and this probably disturbed and distracted the attention of the barge's master. The burden seems to be upon the tug to establish that the master of the barge was in fault, and, after careful consideration, it is concluded that the evidence does not show with sufficient clearness that the captain of the tug brought home to the master of the barge the duty which the latter was to perform to insure the safety of the maneuver. The tug backed out, allowed the barge to swing about, and to be carried by the flood tide against the libelant's vessel, her breastline meantime breaking, and the evidence does not show that the tug did anything to arrest the movement of the barge until after the collision. If the answer be that there was not time to do it, such reply indicates the dangerous opportunity that was given by the tug to the barge to do harm. The decree should proceed against the Guy G. Major alone.

THE MASSASSAGUA.

(District Court, E. D. New York. June 25, 1903.)

1. COLLISION-STEAM AND SAILING VESSELS CROSSING.

A steam vessel passing down East river with tows in the evening held in fault for a collision with a sloop which was crossing the river, without changing her course, and whose lights could have readily been seen by proper attention. The sloop also held in fault because the master, although warned by his lookout that the steamer was coming directly toward them, gave her no attention, although he might readily have avoided the collision by changing his course after he saw the negligent navigation of the other vessel.

In Admiralty. Suit for collision.

Owen & Sturges, for libelant.

Carpenter, Park & Symmers, for claimant.

THOMAS, District Judge. On December 3, 1903, shortly after 5 o'clock, the steam canal boat Massassagua, with two barges in tow on a hawser, collided with the oyster sloop Pell, which was crossing the East river on the port tack; the wind being about west or west north west. The wind was light, and the sloop was carrying mainsail, jib, and topsail, and side lights. Upon coming out of Buttermilk

124 F.-7

Channel, she laid her course diagonally across the river, and maintained it to the time of the collision. The tide was at the end of the ebb, but it was running slightly flood along the New York docks. The master of the sloop was at the helm, and his son, apparently about 18 years of age, was forward acting as lookout, accompanied by a boy whose presence then and evidence in court are unimportant. The son called the master's attention to the canal boat, and the latter then saw her side lights a quarter of a mile away. The sloop at the time was on a course from Governor's Island to Fulton Market, where she intended to make a landing. Later the son called out that the canal boat was heading for the sloop; but the master did not look, and kept on his course. Later the son called again, and the master looked and saw the canal boat's bow a few feet away, and the collision almost immediately occurred; the canal boat striking the sloop just att of amidships on the starboard side. Previous to the collision, the canal boat gave several toots of her whistle; but the master of the sloop paid no attention, upon the plea that he thought it could not have been intended for the sloop. The collision took place on the New York side of the center of the river. About 100 feet on the starboard hand of the canal boat was a tow going up the river, and it was the purpose of the master of the sloop to cross ahead of the canal boat and the up-going tow, and, if he could not cross the bow of the latter, to go around under her stern. The master of the sloop, although warned by his son, did not look at the canal boat from the time that he saw her, a quarter of a mile away, until she was 10 feet away. The evidence of the master of the sloop that he did not change his course from Governor's Island is sustained by the evidence of his son, and of the pilot of the tug boat and tow going up the river, who, however, places the accident very near to the New York shore.

The evidence on the part of the canal boat is that she was coming straight down the river, and that she saw a sloop in the neighborhood of Governor's Island headed directly upstream, and that she came forward until she was about 200 feet away, when she swung to port; that the canal boat tooted a whistle, whereupon the sloop, when 75 or 100 feet away, swung directly across the bow of the canal boat. The evidence of every person connected with the canal boat and the two boats in tow was to this general effect: That none of such witnesses saw the lights of the sloop, save one witness on one of the boats in tow, who testified that he saw her red light until it shut in as the sloop crossed the canal boat's bow. It is claimed that it was light enough to see the vessel herself; but it is most singular that the sloop's lights were not seen, and it is evident that the pilot of the canal boat did not use the lights for the purpose of determining on what course the sloop was sailing. The destination of the sloop would take her obliquely across the river. The wind was fair for such direction, and the evidence shows that such was her general direction; and the failure of the canal boat to see the lights and be governed thereby indicates that there was lack of attention.

But what shall be said of the master of the sloop, who paid not the slightest attention to his lookout's warnings, and who held his

course, unprepared for the emergency which arose. His action is incomprehensible. He would not be forewarned, and when the collision was at hand he was unprepared to act. The wind was such that he could have avoided the tow when he saw the continuance of her negligent progress toward him. If it were certain that the canal boat was trying to crowd the sloop out of the way, the case might be different. But the probabilities are that the pilot on the canal boat relied upon the loom of the sloop and was misled thereby. The master of the sloop testified that, when the canal boat was first reported, he looked under the beam and saw her, and that he did not look at her again until his son reported the third time, and said, "She is coming into us," and that the vessels were then 10 feet apart. The following illustrates his view of his duty:

*

"Q. You hadn't seen her during that time? A. I didn't want to see her. Q. If you had seen the boat coming toward you in a way that involved risk of collision, couldn't you have done something to avoid that collision? A. Oh! I could have went out of the river, I suppose. Q. You could have headed so as to avoid collision? A. I could went the other way; but I wasn't going that way. I was going to Fulton Market. The first time when he first spoke to me, then I looked; but the second time I didn't pay any attention. I says: 'You don't want to monkey under a steamer's bow. Let him know where you are going, and they will keep clear.' Q. Did he report her the third time? A. Yes, sir; when she got close to us he said, 'She is coming right into us.' Then I said: 'I can't help myself. If he wants to hit us he will have to hit us, because I can't get out of his way.' Q. How far from you was he then? A. I don't suppose over 10 feet. * * * Q. It is your idea that it is not your duty to keep watch of a steam vessel approaching you after you have warning that that vessel is coming down upon you? A. I did have two forward. He was watching her all the time. Q. But he reported, and you didn't pay attention to it? A. The second time I did not because I put all confidence in the world in the man going clear. I looked and see how he was coming, and thought, 'He will come close to us and sheer off. Q. You proceeded on the theory that every man would do his duty? A. Yes, sir."

The direct question is raised whether it was the duty of the master of the sloop, after repeated warnings from his son, from which he must have known that the canal boat had changed her course, or at least was coming toward him, to be attentive to her, or whether he could hold his own vessel on her course and be blind to the threatened collision? The view of the master of the sloop is not approved. It is quite evident that he was in a position to avoid the injury that befell him, had he been less obstinate in adhering blindly to his primary right of way.

The damages and costs will be divided.

1. SHIPPING-LIABILITY OF SHIP FOR INJURY OF SEAMAN-NEGLIgence. Libelant, a seaman, after being ashore on his own business in the evening when the ship was in port, returning about 11 o'clock, while passing in the dark over some coal which had been stowed in a passageway on deck of which he had knowledge, was injured by the slipping of the coal under his feet, which caused him to fall. Held, that the ship

was not liable for the injury, being under no duty to keep the deck lighted at that hour of the night for the benefit of members of the crew who were not on duty.

In Admiralty. Suit by seaman to recover damages for personal injury.

Campbell & Hance, for libelant.

Convers & Kirlin, for claimants.

THOMAS, District Judge. On June 12, 1900, the libelant engaged as cook on the steamship Californian, which was taking coal and cargo at her dock in New York. On the evening of that day he went ashore for his own purposes, returned at about II o'clock, and went up on the bridge deck. Before the libelant went ashore coal had been stowed in the passageway on the bridge deck, and over this the libelant was obliged to walk. The coal was held in place at either end by two temporary bulkheads, about three feet high, and when the libelant attempted to step from the coal to enter to his quarters the coal slid under his foot, and he was carried forward and down so violently as to produce a rupture. On the following morning he had some pain, but made no complaint until the ship was at sea. Thereafter the captain was advised of his infirmity. The ship went to San Francisco, where the libelant visited a surgeon at the hospital, who advised him to have an operation performed; but the captain dissuaded him from it, and the surgeon later concurred in the captain's wish. He arrived in New York in January. He did his own and sometimes extra work during the voyage, and, after securing several employments, in October submitted to an operation which resulted in a practical cure. The dock was covered, and inside were electric lights, some 20 feet high, which could shine through the large door, if the same were open, and, as the bridge deck was approximately 8 feet above the dock, the tide being low, the light would be sufficient. The libelant states that the light did not reach the coal, and that it was totally dark at that place, and in this he is corroborated by the companion who was with him. The probable fact is that the libelant walked over the coal without serious difficulty, and that when he came to the end the coal yielded under the pressure of his foot, and he was injured as stated. The question is whether the ship was, negligent in leaving the only entrance for the libelant in such condition, in view of his opportunity to see, that he might be hurt by the coal giving way at its extreme limit.

The inquiry whether the door on the dock was open so as to allow the electric light to come to the passageway need not be determined. It was not the duty of the master to keep the ship lighted for him at that hour of the night, and had it been so lighted it does not appear that he would have avoided injury from the coal yielding under the pressure of his foot. The evidence plainly shows that the men knew that they were at the point where they were to step off from the coal on to the deck, and some of them did it in safety. The libelant's foot slid on the coal. It is possible that a good light would have enabled him to adjust his foot with reference to the coal so that it would not yield under him. But it is quite questionable. It is pre

ferred, however, to put the decision distinctly upon the ground that it was not the duty of the master to furnish the libelant, returning at a late hour at night, with a light that would enable him to make a better adjustment of his foot to the condition of the coal. The ship was obliged to furnish a light to the libelant while he was engaged in the performance of his master's duty, but not to light him to his quarters after he had spent the evening, to a late hour, ashore for his own pleasure or convenience. The evidence tends to show that until half past II o'clock on that night work was proceeding on the vessel in No. 2 and No. 3 holds. In that case there were electric lights both forward and aft of the place where the accident happened, and it would be inferable also that the door of the dock. was open. If, however, such was not the case, if everybody had retired for the night, if the lights upon the vessel used for working were extinguished, and if the door leading into the dock was closed, it was past the time when the master was obliged to illumine passageways for the safe adjustment of the feet of belated sailors to the coal which was necessarily stored upon the deck. In such case, if the libelant found that all work was at an end and lights extinguished, and the door to the dock closed, and that the way was dark and dangerous, he was at liberty to call the watchman to open the door.

It seems that the libelant was called upon to do very hard work through the voyage; that he not only did his own work, but extra work; and that he was constrained to remain with the ship when he desired to go to the hospital as advised by the hospital surgeon; and that the attention that he received upon the vessel was not adapted to his case. It is probable that the captain did as well as the circumstances permitted while the man was on shipboard, but he did not receive necessary treatment, and was induced not to seek it at San Francisco. The claimants are under a strong moral obligation to make compensation for this added suffering of a faithful sailor. The libel is dismissed, without costs.

In re STARIN.

(District Court, E. D. New York. July 23, 1903.)

1. SHIPPING-LIMITATION OF LIABILITY-WAIVER OF RIGHT BY LITIGATION IN STATE COUrts.

A shipowner, by defending an action brought against him in a state court to recover damages for injury to a passenger, and by appealing from the judgment rendered against him therein, does not waive his right to petition a court of admiralty for à limitation of liability; nor is he debarred of the right to invoke such remedy because there is but a single claimant.

2 SAME-EXTENT OF LIMITATION-JUDGMENT FOR INJURY TO PASSENGER.

Where a passenger injured through the negligence of those engaged in the navigation of a tug and barge, without the privity of the owner, recovered judgment therefor and for costs against such owner in the state courts, the owner is entitled to a limitation of his liability to the value

11. Limitation of shipowner's liability, see note to The Longfellow, 45 C C. A. 387.