'XBE POTTSVILLE.·
631
the case of Thl, Enterprise, 1 Low. 455, partly because the vessel complained against was a British vessel, and hence subject to the English law, which postpones the lien of the seamen's wages to that of a libellant in a 'cause of damage, and partly upon the ground that Beamen have other available remedies for their wages, and because mariners of the wrong-doing ship may be supposed to share in the fault of the vessel. And the law is thus stated by the suprome court in Norwich 00. v. Wright,13 Wall. 122, where Mr. Justice Bradley, speaking for the whole court, says: "Liens for reparation for wrong done are superior to any prior liens for money borrowed, wage8, pilotage," etc. But, without dwelling longer over the case, I am of the opinion that a decree should be entered against the claimants for the value of the vessel, $472.83, and for the amount of pending freight, $69.50, making the aggregate $542.33; and that the libellant Thatcher is entitled to the same as against the claims of the other libellants for wages; and that when this sum is paid into court the owners of the Maria and Elizabeth should be discharged from all further liability Qn account of th.e collision. This view renders the motion of the proctor of the libellant to amend the pleadings so as to make the case a proceeding in per80nam as well as in rem unnecessary and futile, as he can have no further {llaim against the owners for the damage and loss sustained. See The Ma1'ia and Elizabeth, 11 FED. REP. 520, and note, 525.
THE 1.
POTTSVILLE.-
(District Oourt, E. D. PennsylfJania. May 5, 1882.) ADMIRALTy-COLLISION-NEGI,IGENCE-LoOKOUT.
A steam-ship moving at the rate of four miles an hour, in a rough sea and dense fog, on a frequented part of the Atlantic coast, collided with and sank a schooner. At the time of the collision the only lookout on the steamer was a boy 16 years of age, who had been upon the water but a few weeks. Held, ,that the steam-ship was liable forthe damage: First, because under the circumstimces the utmost caution was required, and four miles an hour was too great a speed, being more than was necessary for steerage way; and, second, because it was culpable negligence to have an inexperienced boy as lookou,t.
In Admiralty.
Libel for collision.
4l'Reported by Frank P. Prichard, Esq., of the Philadelphia bar;
632
FEDERAL REPORTER.
The facts were as follows: On June 9, 1881, at about 5:10 A. M., the steam-ship Pottsville collided with the schooner Joseph and Franklin in the Atlantic ocean, between Hereford inlet and Five Fathom bank light-ship. At the time of collision the course of the steam-ship was about S. W. by W.; that of the schooner N. N. E. The wind was light and from the eastward,; the sea was rough, and there was a dense fog. The schooner had a competent lookout, and the master himself was in charge of the deck. The fog horn was continually sounded. .The steamship was going at the rate of four miles an hOUl" and had but one lookout, a boy <Jf 16 years of age, who had had some five weeks' experience afloat. The whistle of the steam-ship was blown every minute. 'rhe direction of the wind was such as to increase the acoustic properties of the steam-whistle and to minish those of the fog horn. The whistle of the steam-ship was heard on board the schooner some time before the collision, and the course of the schooner was kept unchanged. The. fog horn of the schooner was not heard on the steam-ship until immediately prior to the collision, and was then promptly reported by the lookout. The schooner was seen an instant after, about 40 yards distant. The wheel of the steam-ship was put hard a-port, and she was stopped and backed under full speed. Immediately afterwards the schooner was struck and subsequently sank. The libellant contended that the steam-ship was going at a higher rate of speed than was necessary for steerage way or consistent with safety in such weather and locality, and that it was negligence, under the circumstances, to entrust the position of lookout to a boy of little experience. The respondents contended that the steam-ship could not have been handled at a less rate of speed; that the schooner was seen by the boy on lookout as soon as it was possible for anyone to have seen her; and that the collision was the result of inevitable accident, neither party being at fault.
Theodore M. Etting and Henry R. Edmunds, for libellant. Thomas Hart, Jr., for respondent. BUTLER, D. J. The burden of proof is on respondent. Having run the libellant down, she must prove it was not her fault. The answer charges it to libellant's failure to signal. On the argument it was attributed to this cause, and to inevitable accident. I cannot doubt that the schooner signaled, as required by law. Her testimony puts this beyond question. That the accident was inevitable I do not believe. It may properly be attributed, I think, to want of care in respondent. The circumstances were. such as to call for the highest degree vigilance. A dense fog prevailed, the sea was rough, and the respondent was steaming on one of the most frequented parts of the Atlantic coast, -momentarily liable to find vessels directly in her way. That she was not vigilant is clear. At the time of collision the only person forward, on deck, was a boy of 16 years, with no experience, having
THE POTTSVILLE.
633
been upon the water but a few weeks. To entrust the responsible and delicate duty of lookout, in such weather, and in such a place, to this raw youth, was culpable negligence. It is said, however; that this had no influence upon the result, or accident, that he saw the schooner as early as she could be seen through the fog, and heard her horn as soon as it was blown. If this were true, the fact would remain that respondent had been negligent of a most important duty, under circumstances requiring the greatest care, justly casting serious doubt over the entire defence. I do not, however, believe it is true. An experienced seaman, alive to the dangers of the situation, and the necessity for extraordinary vigilance, would doubtless have discovered the schooner's presence in time to avoid the collision. In respect to speed also, I believe the respondent failed in duty. It cannot well be doubted that she was moving at the rate of four miles an hour, and I think upwards, while her progress should have been no greater than was actually necessary to afford steerage way. It is true her witnesses say her speed was no greater than necessary for this purpose; but I think the conclusion is quite reasonable that she might have controlled her course at a lower rate. Whether under the peculiar circumstances of weather and place, it was her duty occasionally to stop, as the captain of the Arbutus, who was a short distance off did, need not be determined. It very clearly was her duty to proceed with the utmost caution, feeling her way. and endeavoring by every practicable means to avoid the dangers known to be in her path. In this duty I believe she failed. A decree must be entered for libellant with costs. The court propounded certain questions to a nautical expert called as an assessor, which, with the answers thereto, were as follows: First. Under the circumstances stated by the Pottsville's officers, at and preceding the collision involved in this case, was it prudent to entrust the duty of lookout to a boy of 16, with but a few weeks' experience on the water? Answer. There are no circumstances under which a vessel can be placed that require more vigilance on the part of the lookout than in a dense fog, as is described by the officers of the Pottsville, and she, being at the time in the track of vessels bound up or down the coast, the danger of collision was great, and too much precaution could not be taken; it was therefore imprudent tC' entrust the duty of lookout to an inexperienced boy. On the contrary, under the circumstances, more than ordinary caution should have been used. To detect an Object through a fog, the range of vision should be confined to as narrow a limit as possible. It would therefore have shown no extraordinary caution had two men been placed on the lookout, one looking from each bow. In fact, in a dense fog. all the watch on deck should constitute a lookout.
634
Second. Would an experienced seaman have been likely to see the schoonel' or discover her presence earlier than this boy? Answer. An experienced seaman, accustomed to looking for and seeing vessels under all circumstances, and listening for signals in fogs, would be more likely to see a vessel and distinguish a signal, and locate the direction from which the sound came, than an inexperienced person. Third. Do you know the Pottsville? Answer. r know the steamer Pottsville. Fourth. If you do, state whether under the circumstances detailed by her officers, as existing at the time, she could or could not have controlled her course at a lower rate of speed than four miles an hour? Answer. In regard to the rate of speed under which the Pottsville could have controlled her course, under the circumstances as stated, I see no reason why the steamer going three miles an hour should not have been under perfect control.
THE
PLYMOUTH ROOK,
ete.
(Diaerict CO'lu·t, ti. D. NetJJ York. 1. TOWAGE SERVICES-PASSENGER STEAMER.
June 12,1882.)
To entitle a libellant to recover salvage compensation for towage services the claimant's vessel must be shown to have been in either actual or apprehended danger at the time the services were rendered.
2.
PRACTIClIl--COSTS.
Where salvage compensation was claimed for towage services, and the . answer admitted the claimant's liabilitj' for a reasonable towage compensation, the libellant recovered a reasonable sum for towage, without costs, and was adjudged to pay the United States marshal's costs.
In Admiralty. This was a libel filed by the master and owner of the steam-boat City of Richmond, to recover $5,000 as salvage compensation for assistance rendered to the steam-boat Plymouth Rock, under the circumstances described in the opinion of the same court, reported in The Plymouth Rock, 9 FED. REP. 413, 415, et seq. Lorenzo Vllo, for libellant. Sidney Ohubb, for claimant. BROWN, D. J. When the aid of the City of Richmond was requested by the captain of the Plymouth Rock, the latter, as I find upon the evidence, was neither in actual nor apprehended danger, being in tow of the Germania, which was fully able to take care of her. The request for aid was merely to expedite her passage and to take off her passengers for their more convenient landing. It is not, therefore, a case of salvage.
NOTES OF DECISIONS.
635
The libellant is entitled to a reasonable sum for towage and taking passengers. If the parties do not agree, a reference on that point may be taken. The costs up to this time are allowed, and the libellant should pay the disbursements on the arrest of the vessel.
Bonds in Aid of Railroads. TOWNSHIP OF NEW BUFFALO 1'. CAMBRIA IRON Co., Sup. Ct. U. S. Oct. Term, 1881. Error to the circuit court of the United States for the west-ern district of Michigan. Plaintiff, in the court below, recovered judgment <m certain bonds which were issued to a railroad company by the plaintiff in error to aid in the construction of a railroad, and by the railroad company transferred to defendant in error. The bonds had been issued to the railroad company under authority of an act of the legislature of the state. On the part of the plaintiff in error it is contended that by the settled law of the state as it existed willen the bonds were issued they were void. The decision of the supreme court of the United States was rendered on March 27, 1882, Mr. Justice Harlan delivering the opinion of the court affirming the judgment of the circuit court. Where, by the law of the state as expounded by its supreme court and acted upon by its legislative and executive departments, bonds issued to a railroad company were held valid obligations of the municipality by whom they were issued, this court will not feel bound to follow later decisions of the state supreme court modifying their former opinions. The defendant in elIClr is a bona fide holder for value, and his rights and obligations depend upon the same rule. In the absence of constitutional provisions making a distinction between municipal subscriptions to stock and municipal appropriations of money or credit, there is no solid ground upon which the legislature can rest such a distinction. That the bonds were voted to one <railroad company, and were delivered to a consolidated company, will not invalidate them, as they must be deemed to have been given in view of the then-existing statute authorizing two or more railroad companies forming a continuous or connected line to consolidate and form one corporation and investing the consolidated company with the powers, rights, property, and franchises of the constituent companies. H. F. Severens, for plaintiff in error. W. J. Smiley, for defendant in error. Cases cited in the opinion: As to constitutionality of state law, Taylor v. Ypsilanti, 4 Morr. Tr. 326, followed; and People v. Salem, 20 Mich. 452; Bay State v. State Treasurer, 23 Mich. 499; Thomas v. City of Port Huron, 27 Mich. 320, not followed. Rights of holder for value: Railroad Co. v. National Bank, 102 U. S. 14. Donations and descriptions: Railroad Co. v. County of Otoe, 16 Wall. 674; Olcott v. Supervisors,16 Wall. 678; Town of Queensbury v. Culver, 19 Wall. 91. Consolidation of railroads: County of Scotland v. 'fhomas,