The Ship British America. after the tack was completed, and before the collision. The man to whom the wheel was surrendered estimates that he had the wheel five minutes before the ship's light was reported. This estimate is doubtless too high; but that some time elapsed after the brig filled away, before the collision, is clearly proved. From all this evidence I conclude that no injustice will be done the ship by the finding that the red light of the brig was visible to her for a period of at least five minutes before she struck the brig. This conclusion is supported by other facts proved in the case, which may now be noticed. Of course, from the time the ship's light was reported by the lookout of the brig, the master and mate then both on deck, as well as the crew, knew that the ship was approaching on the opposite tack, and yet the announcement of the light caused no alarm whatever on the brig. It is impossible to doubt, therefore, that those on board the brig, having the ship's light then in view, and called on to form a judgment as to the distance, concluded that there was then sufficient distance between the vessels to enable the ship to avoid them. This conclusion, shown by the conduct of every person on the brig's deck, and formed at the time by seamen who knew that their vessel was upon a course crossing that of the ship, goes a great way to prove the fact that the distance was sufficient. Again, a comparison between the alarm displayed by those on board the ship when they saw the brig's light, and the absence of alarm on the brig when the ship's light was there reported, makes it plain that the distance between the vessels at the time the brig saw the ship's light, was to an important extent greater than the distance between the vessels when the ship's lookout first saw the brig's light. It would seem, therefore, that some negligence on the part of the ship's lookout must be conceded, and the fact is suggestive. The Ship British America. Not only was there no alarm felt on board the brig when the ship's light was seen, but it is proved that when the brig's lookout, observing that the ship did not alter her course, became alarmed, the chief mate went forward and then expressed the judgment that there was room for the ship to clear them as it was her duty to do. Furthermore it is proved that after the light had been announced the second time by the lookout of the brig, and the chief mate had returned aft, the master directed him to light the torch, and accordingly he left the deck and lit the torch, and returning to the deck, waved it towards the ship. It is difficult to believe that the master would have given that order unless the distance between the two vessels at that time was sufficient to enable the ship even then to avoid the brig. This circumstance in regard to the torch, which is proved to have transpired on board the brig, not only after the vessel had gathered headway on the starboard tack, but after the ship's light had been twice announced, also shows that up to that time the brig's light had not been seen by the ship, because the ship was being closely watched from the brig, and it is not conceivable that the master would have directed the torch to be lighted, or that the mate would have waved it, if any change in the course of the ship had up to that time been seen. The change of course made by the ship-which was immediately upon seeing the brig's lightdid not occur until the torch was waved on board the brig. And finally it may be remarked that the argument made in behalf of the ship, based upon the presumption of a performance of his duty by the lookout of that vessel, has far greater force when applied to the master of the brig. On board the brig the duty of observing whether there was any vessel near and astern to make it dangerous to tack, attached not to the man stationed to look out ahead, but to the mas The Ship British America. ter, who had charge of the deck, and who alone was to determine when to tack. For the master to tack in that locality and wind, without first making careful observation whether any vessel was near enough aft him to render such a manœuvre dangerous, would be great negligence; and in view of his responsibility for the property in his charge, the presumption against such neglect on the part of the master is much stronger than any presumption that a seaman stationed on the lookout performed that duty with vigilance. In the present case, the testimony of the master is wanting, for the master as well as the steward was lost when the brig went down. The chief mate, however, who was also on deck, swears that he looked before the tack was made and the ship's light was not then in view: which is evidence to confirm the position of the libellants, that when the brig tacked the distance between the vessels exceeded a mile. The circumstances which I have thus noticed, coupled with the evidence before alluded to, force the conclusion that the brig's red light was displayed to the ship for a period of at least five minutes before the collision, during which time the ship sailed three thousand feet or over by her own showing, and in which time she could certainly have avoided the brig. There would be no doubt, I take it, as to her negligence, if the ship, sailing six or seven knots an hour in a strong breeze, had run into the light-ship, having seen it at the distance of 3,000 or even 1,000 feet; but the brig was moving to the westward from the time she filled away, and by so much reducing the space necessary to enable the ship to clear her. I cannot doubt, therefore, that, upon the evidence as it stands in this case it is my duty to decide that negligence on the part of the ship in not seeing the brig in time to clear her caused the collision in question. The Steam-tugs James Bowen and L. P. Dayton, and the Scow Number Four. Having reached this conclusion from the testimony to which I have referred, it is unnecessary to consider the other fault claimed on the trial, but not set up in the answer, that the ship was also in fault for the manner in which her lights were set. For libellants, Scudder & Carter. Southern District of New York. MAY, 1879. THE STEAM-TUGS JAMES BOWEN AND L. P. DAY TON AND THE SCOW NUMBER FOUR.* COLLISION IN HUDSON RIVER. PLEADINGS.-TUG AND TOW. The barge C., being towed down the North River alongside of the tug D., came in collision with a scow in tow of the tug B., which was going up the river. The owner of the barge filed a libel against the two tugs and the scow to recover the damages sustained by her. Each of the vessels filed a separate answer. Each tug denied any fault on its part and charged that the collision was due to fault of the other tug. The case was submitted to the court on the pleadings alone: Held, That the fact of the helplessness of the barge was prima facie evidence that the collision was caused by the negligence of one or the other or both of the tugs, but was not prima facie evidence of the negligence of either tug alone; *Affirmed on appeal, 18 Blatch. 411. The Steam-tugs James Bowen and L. P. Dayton, and the Scow Number Four. That the answers of the tugs were not evidence against each other; That there was therefore on the facts admitted no presumption of fault against either tug; That the answer of neither tug admitted that the tug was acting in violation of the 18th rule of navigation; That the question whether that rule imposes on the two vessels an obligation to port her helm depends partly on the distance between the two courses on which the vessels are proceeding, and the rule does not preclude the vessels from passing on the starboard side, if the movement for that purpose is seasonably commenced and executed; That the libel therefore must be dismissed against all the vessels. CHOATE, J. This is a libel brought by Thomas McNally, the master and owner of a barge called the Centennial, to recover for the loss of the barge and her cargo by collision. The case has been submitted on the libel and answers. The facts admitted by the pleadings are that the Centennial was, on the evening of February 14th, 1879, after dark, which was the time of the collision, in tow of the L. P. Dayton, being lashed to the steam-tug on her starboard side, and her stem projecting about twenty feet ahead of the bow of the tug; that the tug had another barge or canal boat outside of the Centennial, and a third lashed to her port side; that the L. P. Dayton with her tow was bound down the North River to the Erie Basin, Brooklyn; that the steam-tug James Bowen, from Williamsburg, bound up the North River to some point in Jersey City, had the scow Number Four in tow, lashed to her port side; that about off pier One, North River, the Centennial and the scow Number Four thus in tow of said tugs respectively came in collision, by the effect of which the Centennial was so injured that she and her cargo were totally lost. The libel charges various acts of negligence on each of the tugs. It contains no averments of negligence against the scow Number Four. An answer has been put in for the scow, denying any negligence or responsibility for the collision, |