It is, of course, idle for the tug to contend after this testimony, that the half-mile point was not reached and that she might have sig naled had not the Vulcan anticipated her. The evidence shows that the Vulcan waited till the last moment before indicating the course. She did not act in this regard until it was perfectly evident that the Genevieve intended to pass without signal of any kind. The Vulcan saw the Genevieve when the vessels were a long distance apart, the former being still on the Limekiln ranges. When the Vulcan had turned upon the Grosse Isle range and was coming up on a course a little to the westward of that range her attention was particularly directed to the Genevieve. According to the testimony on behalf of the Vulcan the tug was coming down on a course to the eastward of the course from Grassy Island to Mamajuda Island, showing both lights. After waiting for a signal until it was evident that none would be given the Vulcan blew two blasts and put her wheel to starboard as required by rule 23.

The Vulcan is criticised for starboarding before she received a reply to her signal. The answer is twofold: First, the time was so short that prompt action was imperative, there was no time for experiments; and, second, the Vulcan did precisely what the rule requires "two blasts to mean, I am directing my course to port.' The rule does not say that two blasts shall mean, "I intend to direct my course to port," or "I will direct my course to port if you agree to it." What it does say is this, "I am now, at the moment you hear this signal, swinging to port."

No fault can be imputed to the Vulcan in giving the signal. Upon her own testimony such a signal was not only proper; it was absolutely necessary. Not to have given it would have been gross negli

gence.

But even upon the testimony of the two witnesses for the Genevieve the Vulcan was not at fault. It is asserted that if the vessels had kept their courses both remaining silent they would have passed in safety. Conceding this to be so it would be a strange proposition to hold that it is negligence per se for a heavily laden upbound vessel to request the port side of the channel of a descending tug when there is absolutely no question that they can pass safely starboard to starboard. The Genevieve had indicated no preference and it was apparent that they would meet at or near a point where it was necessary for the Vulcan to swing to port in order to make the Grassy Island range.

The two-blast signal from the Vulcan was answered by the Genevieve by one blast, meaning, "I am directing my course to starboard," and her pilot immediately put her wheel to port. This was a cross signal forbidden by rule 26. But the witnesses for the tug assert that they heard but one blast. That two blasts were given is beyond dispute. The master, mate, lookout, engineer and a passenger on the Vulcan all swear positively to this and the subsequent signals.

If it be true that those on the tug did not hear the signal the question arises, why did they not hear? The night was clear, there was no wind, nothing in the elements prevented sounds from being heard,

and the Vulcan's whistle, in such circumstances, should have been heard miles away. If it were not heard because those in charge of the tug were deaf, or inattentive or in positions where it was impossible to hear, it was negligence for which the tug is responsible. That the situation on the tug was somewhat extraordinary in this respect is further evidenced by the fact that no one on the tug heard a twoblast signal which was given but a moment or two before the collision. But in no view of the matter can the Vulcan be charged with negligence because the Genevieve did not hear her signal. The Vulcan blew a proper signal and was answered by an improper signal. She knew then that the Genevieve intended to turn towards the same side of the river as herself and that prompt action only could avoid a collision. The Vulcan again blew two blasts, checked down, blew two more blasts and reversed. When the collision occurred the Vulcan had almost come to a standstill. The blow to the scow was a light one; it was hardly felt on board the Vulcan who received no injury save a cracked plate at the bow.

There were but two affirmative acts on the part of the Genevieve and both were wrong. She gave the wrong signal and turned in the wrong direction. No signal was given to the engineer of any kind and the tug kept on at full speed in defiance of rule 26, which commanded her master "to reduce his speed to bare steerageway, and, if necessary, stop and reverse." The excuse for this uncontradicted violation of the law is that the danger was so imminent that it would have done no good to stop and reverse. Having disobeyed the law the onus is strongly upon the tug to establish the truth of this proposition. This she has not done; on the contrary it is quite clear that if there had been any collision at all it would have been so slight as to cause little or no damage.

It will be remembered that the Vulcan checked and reversed in rapid succession as soon as the peril became apparent, and yet it is charged against her as a fault that she did not do this sooner. "The Vulcan was in fault," says the brief, "for not stopping and reversing immediately upon getting the single blast. The mate did not stop to reverse, he merely checked, and it was only after he had repeated his signals that the engines of the Vulcan were reversed upon the captain's order to the mate. This was inexcusable.”

To the mind of the court it seems somewhat inconsistent to assert, on the one hand, that the delay of a few seconds in reversing was inexcusable fault on the part of the Vulcan and, on the other, that the Genevieve, with the same danger confronting her, was absolutely free from fault although she did not check or reverse at all but rushed ahead at full speed.

Upon the proof there can be no question as to the negligence of the tug. Two open and flagrant violations of law are established without dispute. She omitted the signal required by rule 24; she failed to reduce her speed, stop and reverse, as required by rule 26. It is, therefore, unnecessary to examine the other faults alleged against her.

An able and ingenious argument is advanced on behalf of the tug to convince the court that the Vulcan should be inculpated also. The faults charged against her are as follows: First. That she crowd

ed upon the course of the tug. Second. That after giving the first signal she should have waited till the tug answered before changing her helm. Third. That the second signal of two blasts was a cross signal forbidden by the rule. Fourth. That she did not reverse soon enough. Fifth. That she did not sound an alarm. Sixth. That she did not keep out of the way of the tug. Seventh. That she should have signaled, if at all, for the right instead of the left side.

Some of these accusations have already been answered, others are based upon the hypothesis that the court will accept the uncertain and, in some respects, contradictory statements of the two witnesses for the tug, denied as they are by the witnesses for the Vulcan, and others still are unimportant for the reason that by no possibility could the omissions have changed the result. The entire testimony has been read with the result that the court is unable to point out any act or omission of the Vulcan which, considering the well-recognized rules of maritime law, can be regarded as a fault. Both Capt. Pratt and Capt. Day admit their unfamiliarity with the navigation of the Detroit river. Their lives as mariners have been spent principally upon other waters and their trips on the river of late years have been casual and infrequent. The statement made by Capt. Pratt at Detroit, immediately after the accident, differs, in at least two important particulars, from his testimony in court. It is thought that an impartial reader of the record will find it impossi ble from the testimony of these two witnesses to locate with accuracy the course of either vessel after they came within sight of each other. It is conceded on all hands that after the tug replied with one blast and put her wheel a-port, the danger was so near that the rule of in extremis applies. Both Pratt and Day testify that when they heard the second signal from the Vulcan they could do nothing to avert the accident; they had turned to the right and could not get back again. The signals from the Vulcan at this time were, in fact, an alarm. They were two blasts followed immediately by two more blasts. In this way the Vulcan was enabled to convey to the tug not only the idea of immediate danger, but also the information that the Vulcan was swinging to port, and so those on the tug understood it.

The Vulcan must be judged not in the light of the facts as they now appear but in the light of the facts as they appeared to her master and mate as they stood upon her pilot house on the morning in question. The conduct of the tug was surely sufficient to puzzle the most accomplished and prudent mariner and the court is convinced that the Vulcan did everything which was possible in the circumstances to prevent the collision. The City of New York, 147 U. S. 72, 85, 13 Sup. Ct. 211.

The Lorain Steamship Company, the owner of the Vulcan, is entitled to a decree.

George Clinton, for appellants.

John C. Shaw, for appellees.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Decrees of district court affirmed on opinion below.

(106 Fed. 989.).

THE WEST BROOKLYN.

(Circuit Court of Appeals, Second Circuit.

COLLISION-EXCESSIVE SPEED-FOG.

No. 113.

March 11, 1901.)

A tug returning from sea with two dumps in tow on a hawser collided at about 12 midnight, in a thick fog, with a ferryboat. Both boats gave proper signals, which were heard by each some four or five minutes before the collision, which occurred at about right angles. Each claimed that his own boat was stopped at the time of the contact. This evidence was rendered improbable from the severe injuries suffered by both vessels. The lights of the colliding vessels were discovered at a distance of from 100 to 200 feet. Held, that both vessels were in fault, in not sufficiently reducing their speed so as to have been able to come to a full stop after the discovery of the lights.

Appeal from the District Court of the United States for the Southern District of New York.

This was a libel by the owner of the tug J. A. Dumont to recover damages for a collision. This appeal is from a decree for libelant for half damages.

The opinion filed below, and here reprinted from 106 Fed. 751, was in full as follows:

BROWN, District Judge. The collision occurred in the main ship channel, off the lower end of Governor's Island, at about 11:45 p. m. of December 9, 1897, in thick fog. The libelant's tug, J. A. Dumont, was returning from sea, with two dumps in tow upon a hawser. The ferryboat was bound from the Battery to Thirty-Ninth street, South Brooklyn. She met with thick fog before reaching Port William, passed to the westward of it on her usual course, and soon heard the fog signals of the Dumont a little on her starboard bow. Her signals were one long and two short whistles, indicating a tow. The ferryboat gave the proper signal, and both sides agree that these signals were heard by each, some four or five minutes before the collision. The collision occurred at about right angles, as both also agree. Each side claims that his own boat was stopped in the water at the time of contact, and each contends that it did not change much from its proper course. The tug admits porting a point or two. Both agree that the lights could not be seen above 100 or 200 feet off.

I have carefully considered the evidence on all the contested points. I am satisfied that neither boat was stopped at the time of collision. Had the tug been stopped, as contended, it is impossible that such a dent could have been made in the side of the ferryboat as was made in the wearing piece of the guard; had the ferryboat been stopped, it is impossible that such marks could have been made near the tug's bitts, or so much broken and carried away of her stem and starboard bow.

2. The pilot's testimony is very positive that at the time of collision, he was heading S. W., and that the place of collision was too much to the northward to admit of turning to port to make the course

towards the Brooklyn landing. In that situation, had both vessels kept their ordinary courses, the angle of collision would not have exceeded one or two points at most. It is in the highest degree improbable that the ferryboat at that place should have been turned so as to run upon the flats near Governor's Island; and I have no doubt, therefore, that the principal part of the change in order to make the collision nearly at right angles, was due to a change of course by the tug; and the evidence indicates that this may have been in part, at least, owing to inaccuracy in the compass, the deviation of which was not known to the pilot of the tug.

The collision was partly due, therefore, to the course of the tug too much to the eastward, either by some general error in her course, or, as is more probable, from porting when the pilot thought he heard the ferryboat's whistle on his port bow. There is great liability to err in locating the position of sound in fog (The Lepanto [D. C.] 21 Fed. 651, 657); and if the tug had been on the proper course upstream in that locality when the ferryboat's whistles were first heard, the whistles must have been either nearly dead ahead, or a little on the starboard bow instead of on the port bow. But besides this, the tug in so dense a fog and with a tow on a hawser behind her, ought to have proceeded more slowly after the ferryboat's whistles were heard, so as to be able to come to a full stop in the water before collision after the ferryboat's lights were seen 100 or 200 feet distant. The same obligation rested on the ferryboat also. The fact that the collision was at right angles and not nearly head and head, made it easier for each boat to come to a full stop in the water before collision. There was abundant time for this after the signals were heard by each. Had either sufficiently reduced her speed, as she was bound to do, it is plain that upon a right-angled collision no serious damage could have been done by either to the other.

The libelant is therefore entitled to a decree for half damages only. Le Roy S. Gove, for appellant.

James K. Symmers, for appellee.

Before LACOMBE and SHIPMAN, Circuit Judges.

PER CURIAM. Affirmed on opinion of district judge.

(105 Fed. 733.)

HAUSS v. LAKE ERIE & W. R. CO.

(Circuit Court of Appeals, Sixth Circuit. January 14, 1901.)

1. EMPLOYERS-DUTY TO EMPLOYE.

No. 831.

A railroad company which is constructing new switches does not owe the duty to a brakeman of blocking a frog, which is a part of the new construction, during progress of the work; it being impracticable to block it till the tracks are ballasted and the alignment of the rails of the frog is perfected. Giving him such notice and warning as will put him on his guard against the dangers from use of the track while the work is in progress is enough.1

1 See note at end of case.