THE VADERLAND, etc.

(District Court, 8. D. New York. December 29, 1883.)

ADMIRALTY PRACTICE-NEW TRIAL-APPEAL.

After a hearing in an admiralty cause in this court, and a decision rendered upon complicated questions of law and fact, the cause should not be reopened and a new trial had for the introduction of further evidence in this court, where there does not appear to have been any mistake or misapprehension in regard to the evidence taken and the facts proved; such relief should be sought upon appeal to the circuit, where the additional facts may be proved as a matter of right.

In Admiralty.

Rodman & Adams and R. D. Benedict, for Wolff & Co.

Edward S. Hubbe and John E. Parsons, for steam-ship company. BROWN, J. Upon the motion for a rehearing in the above case, (18 FED. REP. 733,) it does not appear to the court upon the evidence taken that any error was committed in holding the white damage to be within the exception of the bill of lading under the term "rust," in the absence of any evidence of the restriction of the meaning of that word by commercial usage to the rust of iron. If the court is in error in that respect, an appeal to the circuit court is the appropriate remedy. So far as the supposed error of the court rests upon the alleged commercial use of the word "rust" in a restricted. sense, if such restricted use can be proved through further evidence, that error can also be corrected on appeal by the introduction of the appropriate testimony to prove the fact; and relief must be sought in. that manner, and not by a rehearing, or by an opening of the cause for further evidence on a new trial in this court. The court, being unable from the testimony to find satisfactorily what was the actual cause of the white damage, or by whose fault it arose, was bound to examine and consider the terms of the bill of lading. The failure of counsel on both sides to aid the court by any consideration of the meaning of the word "rust," did not relieve the court from this duty. If any actual misapprehension or mistake in regard to the facts proved had appeared to have been committed, the court would gladly seek to correct it; but that does not appear.

According to the settled practice, therefore, the relief desired should be sought upon an appeal to the circuit court; and as such appeal would, doubtless, be taken by one side or the other, in any event, the final disposition of the cause will in fact be expedited by following the usual practice; and the motion for a rehearing should be denied.

THE ELVINE.

(District Court, S. D. New York. February 11, 1884.)

SHIPPING-SEAMEN-SHIPPING ARTICLES EVIDENCE.

Though shipping articles may be attacked by the seamen, and shown by parol, to be incorrect, fraudulent, or void; yet, in case of dispute as to the amount of wages agreed on, the shipping articles will control, the seaman being competent to bind himself thereby, unless the articles are shown to be invalid by a reasonable and satisfactory preponderance of evidence.

In Admiralty.

Beebe & Wilcox, for libelant.

Jas. K. Hill and Wing & Shoudy, for claimants.

BROWN, J. I have no doubt that the shipping articles of July 31, 1883, were signed by the libelant; the handwriting is admitted by the libelant to be like his, and a comparison with other signatures of his leaves, I think, no question on that point. These articles fix the rate of wages at $40 per month. Shipping articles are required to be signed under section 4520; and though their correctness may be attacked, and though they may be shown by parol to be incorrect, fraudulent, or void, (The Cypress, Blatchf. & H. 83; Page v. Sheffield, 2 Curt. 377, 381,) unless this be satisfactorily established, the seaman will be held bound by the terms prescribed in them. The Atlantic, Abb. Adm. 451; Slocum v. Swift, 2 Low. 212; Willard v. Dorr, 3 Mason, 161, 169. The intention of the master to pay but $40 per month is clear, not only from his own testimony, but from that of other witnesses. The testimony of the libelant and of other witnesses who corroborate him, that he declined to ship for less than $45 per month, produces no little embarrassment in the testimony; and in such a case the original articles, as they stand, must control. There is no such clear and satisfactory proof of either fraud or mistake as would justify the court in disregarding them.

The evidence as to the articles signed at Fernandina is equally conflicting. It is unfortunate that the original document is not produced by one of the parties. The certified copy could not furnish any information by inspection as to whether the original articles had been altered from $45 to $40 per month. The certified copy of the articles is made competent evidence by section 4575, and the burden. therefore seems to be upon the libelant to prove that it is incorrect. The original articles, however, signed in New York, and bearing no marks of alteration, give the libelant's wages as $40 only; and these articles were designed to cover the whole period of the libelant's services. On the whole, I think this original must be held to be controlling, and that the libelant should be entitled to a decree at the rate of $40 per month only.

THE GARDEN CITY, etc.

(District Court, S. D. New York. January 31, 1884.)

1. COLLISION-RIVER AND HARBOR NAVIGATION-RIGHT OF WAY.

A steamer meeting another in the fifth situation, and bound to keep out of her way,-if able to do so through stopping and backing,-has no right to go to the left and attempt to cross the bows of the other when there is not sufficient time or space to pass in that manner without a collision, unless the other vessel cither stops or changes its course; the latter has the right of way, and the right to proceed on her course without obstruction.

2. SAME-SIGNALS-TIMELY NOTICE.

In river and harbor navigation, although for good reason a vessel may, under the inspectors' rules, signal that she will go to the left, instead of the right, these rules require early notice of such intention, and such a notice is not carly or timely when it would compel the other vessel to stop in order to avoid a collision, unless in a situation where the former vessel has no other alternative.

3. SAME-INSPECTORS' RULES.

Under the inspectors' rules the vessel signaled is bound to give an answer promptly, either of assent or dissent.

4. SAME-MUTUAL FAULT.

Where the ferry-boats G. C. and R. were approaching each other in the East river in the fifth situation, and the latter being on the former's starboard hand, and the G. C., instead of stopping and backing, as she might have done, signaled with two whistles, and at the same time starboarded her helm so as to cross the R.'s bows, and the latter made no answering signal, and the G. C., after going about a length under a starboard wheel, again signaled with two whistles, to which there was no response, and she then stopped and backed until the collision, which happened shortly after, and the evidence being contradictory as to the other details of the maneuvering of the two vessels, held, that both were in fault; the G. C., for undertaking to pass to the left and cross the R.'s bows without assenting signals, and the latter for not answering as required, and thereby preventing the embarrassment and confusion of the G. C., which in this case plainly contributed to the collision.

5. SAME-EXCUSE-DEPARTURE FROM Rules.

Though the G. C. ran in connection with railroad trains, and the avoidance of unnecessary stops was desirable, and though the usual course of the R. at this point was to swing to port, held, that these facts, though a sufficiently good reason for the signal of two whistles, given by the G. C., regarded merely as a proposition or request to pass to the left, were not a justification for any departure from the rules of navigation, without assenting signals from the R. in reply.

In Admiralty.

Benjamin D. Silliman, for libelant.

Shipman, Barlow, Larocque & Choate, for claimant.

BROWN, J. This action was brought to recover damages for a collision between two ferry-boats-the Republic and the Garden Cityabout 4:30 o'clock, in the afternoon of August 17, 1878, off Catharine street, in the East river. The day was fair, the wind light, the tide three-quarter ebb. The Republic belonged to the Catherine-street ferry, and was proceeding across the river towards Main street, Brooklyn. The Garden City was coming down the river from Hunter's Point, with the tide, to her slip at James street. At the time of collision the Garden City was heading nearly down the river, but a little v.19,no.7-34

toward the Brooklyn shore; the Republic was going nearly across the river, but heading a little downward. The starboard bow of the Garden City, which was much the larger boat, struck the port bow of the Republic, and her guards ran over the deck of the latter, inflicting some injury. The blow was comparatively a light one, as both boats were nearly stopped.

According to the account given by the pilot of the Republic, as he was about clearing his slip on the New York shore he was obliged to stop to allow the steam-boat Superior to go up the river just in front of him. As she passed him he saw the ferry-boat Alaska about 600 feet up river, off Market street, coming nearly directly down river, but heading a little to the westward, and estimated to be about 300 feet off the New York shore, and the Garden City, as the pilot estimated, about six or seven lengths-that is, about 900 feet-astern of the Alaska, and nearly in her wake, but about half a breadth further out in the river. He testified that as the Superior passed him be gave one whistle, intended for both the Alaska and the Garden City, which, the pilot says, was replied to with one whistle by both; that he then went ahead; that the Alaska slowed and stopped, passing astern of him; that the Garden City, instead of stopping or slowing, sheered out into the river when about five or six lengths off—i. e., about 700 feet-and blew two whistles; that he then stopped his own engines, but did not blow any whistle in reply to this signal of the Garden City; that then the Garden City stopped her engines; that he then started ahead, and blew one whistle simultaneously, being then about a length from the Garden City, and that the latter thereupon started ahead, blowing two whistles; that he then stopped and backed until the collision; that he was obliged to go ahead in order to get out of the way of the Alaska; that there was not room to swing round up river and go between the Alaska and the Garden City; and that the collision was about 300 feet off the New York shore, or at least not more than one-quarter across the river.

The pilot of the Garden City testifies that he was about 100 feet further out in the river than the Alaska, and considerably astern of her; that he heard the signal of one whistle from the Republic and the Alaska's reply of one whistle; that he did not understand that signal to be intended for him, and gave no whistle in answer to it, and that he did not blow one whistle at all; that when about off pier 37 or 38, and some 500 or 600 feet distant from the Republic, and five or six seconds after her one whistle, he gave her a signal of two whistles and immediately starboarded his helm, to which the Republic made no reply; that four or five seconds afterwards, and after passing about another length, and when off pier 37, he blew two whistles again, and at the same time stopped and backed, and kept backing with his helm to starboard till the collision; that the Republic did not, after she had signaled the Alaska, make a stop, as alleged, and then go ahead a certain time with one whistle; that he himself

did not, as alleged, go ahead after stopping and backing; that the Republic did not whistle at all after her first whistle to the Alaska; that under his own reversed engine he got seven or eight turns backwards, and would probably have been entirely stopped by another turn; that when he blew his second two whistles and stopped and backed off pier 37, the Alaska was about half a length out and away from the slip, and about 300 feet from him, and that the Republic was also about 300 feet from him, and nearer the New York shore, heading a little up river; that the usual course of the Catharine-street ferry-boats at that time of tide was to come out from the slip under a starboard helm and go up the river, swinging within a space of about 300 feet.

The other witnesses called upon each side, though differing in some details, generally corroborate the account given by the respective pilots, as above stated, the greater number of experienced nautical men being undoubtedly on the side of the libelants. The pilot of the Alaska states that the Garden City was about 400 feet astern of him when the Republic's one whistle was given, and about 50 to 75 feet further out in the river; that the Republic passed from 200 to 300 feet ahead of the Alaska; that she could not have swung round so as to go, as the Superior did, between the Alaska and the Garden City; and that the latter might have avoided the collision by slowing and backing, as the Alaska did.

Without considering more minutely the differences in the accounts given by the respective parties, nor relying much on the various estimates of distance given, it seems to me clear that the chief responsibility for this collision must rest with the Garden City, and that there are several distinct faults with which she is chargeable.

1. There were no such obstructions as to prevent the application of the ordinary rules for the navigation of the East river. The Garden City in coming down had the Republic upon her own starboard hand; the latter was seen in sufficient time for the Garden City to avoid her, and, by the statutory rule, the Garden City was therefore bound to keep out of the way, leaving the Republic free to keep her course. The evidence, as it seems to me, leaves no doubt that had she slowed and backed, as the Alaska ahead of her did, there would have been no difficulty. The two vessels being in the fifth situation, the ordinary course required of the Garden City by the inspectors' rules was to pass to the right; that is, astern of the Republic. There was no controlling reason compelling her to adopt the exceptional course of going to the left and attempting to cross the bows of the Republic. This departure from the ordinary rule was clearly the primary cause of the collision; and where such departures. are not called for by any controlling necessity, and are adopted upon the mere option of the vessel bound to keep out of the way, they ought to be held to be at the peril of the vessel adopting them, un