J'EDERAL REPORTER,
vol. So.
LACOMBE, eircuit Judge, (concurring.) This case is very fully set forth in the opinion oUhe'district judge. There can be no doubt that when the policies on sO'-caUed "advances" were issued both the assured and the insurers undertook to describe some interest other and different from the ownership of hull and machinery. It seems also very evident that, besides their pad ownership of the rea, the managing agents, who earn intereE.'t andcom·missions on all moneys they advance from time to time, not for' repairs, but to ketp the vessel in service, deriving a profit to themselves from such advances, controlling the vessel and her earnings so as to secure their repayment from her profits, and finding their business in such management ofthe ship, have an interest in her, not identical with that which they have as part owners, entitled to share in her profits if she' makes any.,in· her proceeds if sold, or her insurance if lost. It is not in this case to determine whether such interest was insurable, or whether the policies on advances did insure it. If they were wager. policies or the payments under them a gift, that is no defense to the claim on the policy in suit here. They were 110t intended to be hull policies,. nor paid because they were construed to be. As they purported to cover a different interest from the one defendant has insured, their payment cannot avail to relieve him from liability_
Tmc NEBSMORB. PERRY
et ale
t1. THE
N ESSMORB.
(Ctrcuoft Court, D. Maryland. .May Ill, 1899.) L:CoLL'mOlt....iS'{JIAK AND SAIL-NIGHT-LOOKOUT.
.
, ,
L8AME-:ExulluTION Ol!' FALSE LIGHTS;
Appeal from the District Court of the United States for the District oi Maryland,' , In Admiralty. Libel by Olivl:lr H. Perry and others, as owners of the schooner Joseph Wilde, against! the steamer Nessffiore for collision. Decree below holding the Nessmoresolely in fault. Decree for divided damagea.
THE NESSMORE.
617
Frank Goodwin and Ettgene P. Carver, for libelants. Brown &: Brune, for respondent. BOND, Circuit Judge. The facts in this case are fully set forth in the opinion filed by the district judge. The Nessrrwre, 41 Fed. Rep. 437. The principal facts are there stated, and all that is necessary to repeat is that on the night of the 25th of August, 1889, the steamship Nessmore, having left Baltimore for Liverpool in charge ofa pilot, and nearing Cape Henry at the entrance of Chesapeake bay, was anxious to discharge the pilot, and put him aboard a pilot boat. Those boats generally lie off Cape Henry, inside the mouth of the bay, and when: the Nessmore reached the proper place for so doing, a blue light was burned over her port sideunder her rail, to give notice to any pilot boat there in waiting that she was desirous of putting off her pilot. The Joseph Wilde, a large schooner, was on a voyage from Bangor, Me., to .Richmond, Va. The vessels were on intersecting courses. Those on board the steamer, though the night was not very dark, the stars occasionally shining without a moon, did not see the schooner's lights, which, I think, as the district judge fonnd, were set and burning. One of them .(her starhoard light) was burning after the collision, and this is the light, in the position the vessels were, that ought to have been seen from the Nessmore. Why those in charge of her did not see it the district judge has endeavored to form a theory, but, whether his suggestions are true in point of fact or not, they do not excuse the Nessmore, for it is upon those in charge of her to show affirmatively a good reason for not seeing them. I agree with the district judge that this they have not done, and are in fault. Those in charge of the Nessrnore signaled with a blue light for a pilot boat. Upon so doing they saw in the direction from which the pilot boat was expected to come a bright flash light, which they took to be an answer to their signal. At this time the Nessmore had greatly reduced her speed, in order not to pass by the pilot boat, which was supposed to be under steam, approaching her. Then there appeared a white light, which those in charge of the Nessmore took to be a stern light of a vessel going in the same direction as the Nessmore. Both these lights were exhibited on board the schooner, and not on the pilot boat. Not seeing her regulation lights in the rigging, and seeing the other two lights, those on the Nessmore were deceived into thinking that it was the steam pilot boat ahead of them, and not a sailing vessel. The burden rests upon the schooner to show that her exhibition of' the lights mentioned, which was forbidden by law, (Act March 3, 188.5, c. 354, 23 St. at Large, p. 438,) was not one of the causes ofthe collision, which shortly afterwards-in a few minutes, indeed-took place. I am of the opinion that both vessels were in fault, and the damagesshould be divided. A decree will bl: passed accordingly.
REPOnTEB,
vol. 50.
THE KQMUX.
; THE DON JUAN.
Low !
tl.
T:HE
KOMUK AND THE DON JUAN.
(Dfstrict Oourt< B.D. NuwYork. May 7,1892.)
The tug D. r. backed out of. a slip without presence.or Biinals the tug K.· awroaching near., The K. recl>glllze? the risk of but not reverse. Ht!ld, that the K. in voluntarily gomg near the piers, had no priority in the right of way the D.;J.,.though on the D. ... atarboard hand. and both were held forneghgent navigal;ion. till months·.costs dl!\allowed.
,SAJOI-NOTIOB 0' CLADI__LAQllEB. . On a sllgbtcollision, aM i10 notice of claim or of survey until six warde, and after a S88S01,)'8 running of tbeboat and without repair,
months afterlibel not illed
In Libel by Mortimer E. Law against the tug Komuk and the tug D\>n Juan for collision. Decree for libelant against both vessels. ' Hyln.ndc!c for libelant. Chrytmter·fl Mosher, for the Komuk. Wilcox, c!c Green, for the Don Juan. BROWN, Pistrict Judge. At about 5:40 P. :M. on March 28, 1891, as the tug K<;>D1Qk was going up the East river in the flood tide with two canalboats in tow on her port side, the libelant's boat being the outer of putting them in a tow to be. made up off port boat, fOr pier 9, the boatwa13 run into, off the slip between piers 7 and 8, East riveri:by,tbe tug Don Juan, which was backing out of the slip by,which it is alleged two planks oOhe libelant's with a boat were broken. The libel was not filed untll December, 9,1891. No notice of survey was giv-en until six montb,s. after the ,accident, nor any claim for damages made.. All: the witnesses from the Don Juan testify that they had .;10 o£811Y collision at all, and have no recollection of the alleged occurrence. The witnesses from the KOtnuk,however, examined for the libelant, testify to the collision, and identify the Don Juan as the ,bqat that backed into the. tow. 'The Komuk had taken the two (lanaI boats. from the, slip below, betweEfD piers 6 and 7 I and proceeded up tbeEast river about or 350 feet Only from the ends of the-piers. .Her, that. h4:l' did. not. see the Don·.Juan coming out of the slip until she. was near .its mouth an<1about 250 feet above him; that he gave her a signal of one whlstle, got no answer, then stopped his engine, repeated the signal, and hailed the Don Juan's pilot, who gave him no response but kept on backing. This proves negligence in the Don Juan.