$4,000. Instead of showing the cost of labor and materials, it proved that, shortly after the motor was shipped to Wilmington, it sent to defendant bills for the motor aggregating more than $4,000, and for extra work aggregating $936.59, and that defendant, having received and retained them, made no response until August 12th, when he wrote plaintiff, inclosing a statement of independent counter charges made by him, which statement and letter credited and admitted the $4,000 item for car "as per contract," and $388.68 of plaintiff's bill for extras. Thereupon the court charged the jury that in these circumstances, and upon defendant's admission that the $4,000 limit had been exceeded by said bills, and the concession of the $388.68, the plaintiff had made out a prima facie case for $4,388.68. The defendant contends that "the whole statement or admission must be submitted, both the favorable and unfavorable parts." The whole of said statement was admitted in evidence and submitted to the jury, except certain items for additional work to put the car in working condition, which were excluded on account of the acceptance by defendant already considered. The different parts of said account have no such connection that the admission of the amount due by defendant should entitle him to an allowance of the counter charges. The claim by defendant that he was entitled to the items therein in no way affects the admission of the correctness of plaintiff's charges. The judgment is affirmed. (113 Fed. 224.) THE AUREOLE. (Circuit Court of Appeals, Third Circuit. January 15, 1902.) 1. COLLISION-Overtaking VESSELS. Evidence considered, and held to show that a collision between two steamships, one of which had overtaken and was passing the other in the Delaware river at a place where the water was shallow as compared with the draught of the vessels, was due to the fault of the overtaking vessel in passing too close to the other, so as to create a suction which caused the overtaken ship, which was the smaller of the two, and had slowed to half speed, to deviate from her course and draw against the other. 2. SAME. Where an overtaking steamship is passing too close to another, so as to create danger of a collision, the latter is justified in slowing, or even in reversing, so as to shorten the time of passing, and such action cannot be charged as a fault by the overtaking vessel in case of collision. 3. SAME-CAUSE OF COLLISION-SUCTION. The force called "suction," exerted by one vessel on another, due to the creation of currents by a moving vessel, and the effect of which is apparently greatest when a larger and faster vessel is passing another moving in the same direction in shallow water and a narrow channel, has been recognized in many cases by courts of admiralty; and a court is not justified in refusing to consider it as a cause in a case of collision between two steamships, one of which had overtaken and was passing the other in a river at a distance of not more than 75 to 100 feet, and where, under the evidence, it appears that the overtaken vessel, though with her helm hard a-port, suddenly sheered to port, and struck the other after the latter had nearly passed. Appeal from the District Court of the United States for the Eastern District of Pennsylvania. J. Parker Kirlin, for appellant. Before ACHESON, DALLAS, and GRAY, Circuit Judges. GRAY, Circuit Judge. This is an appeal from a final decree in admiralty of the district court of the United States for the Eastern district of Pennsylvania (103 Fed. 699), made August 3, 1901, awarding to the libelant the sum of $21,986.05 for damages sustained by the steamship Willkommen in a collision with the steamship Aureole. The collision occurred on January 13, 1898, at about 2 p. m., in the Delaware river, between Pennsville and Newcastle. The Aureole is a British tank steamer, 345 feet long and 46 feet in the beam, and was outward bound with a cargo of crude oil in bulk, taken on at Marcus Hook, about 15 miles up the river from where the collision occurred. Her draught was 25 feet aft and 231⁄2 feet forward. The Willkom men is a German steamer, 325 feet long, 41 feet in the beam, and was also outward bound with a cargo of like kind. Her draught was 24 feet 3 inches aft, and 22 feet 5 inches forward. Both ships were in charge of regularly licensed Delaware Bay pilots. Both ships had weighed anchor at about noon on January 13th, and proceeded down the river in charge of their pilots. The Willkommen, starting first, had proceeded about a mile on her voyage before the Aureole left her anchorage grounds at Marcus Hook. The Aureole is the faster of the two vessels, and overtook the Willkommen at deep-water point, about eight miles from Marcus Hook, but, owing to a tow of barges then in the channel, was unable to pass the Willkommen until both vessels had hauled up on the deep-water-point range; the Aureole following in the wake of the Willkommen on the last-named range for nearly a mile, when she hauled out to the eastward to pass the Willkommen on the latter's port side. On this reach of the river, it appears from the evidence, as well as from the chart of these waters, made an exhibit in the case, that there was ample room for vessels to pass each other. According to the testimony of the pilot for the Willkommen, he ran the deep-water-point ranges a little open to the eastward; that is to say, it put his ship a little to the eastward of the range line. No whistles were blown by the Aureole as a signal that she intended to pass, and no signals were given by the Willkommen. No point is made of this, however, as both the pilot and the captain and the other officers of the Willkommen observed the Aureole hauling off to pass, and understood that she was about to do so. About the time that the stem of the Aureole lapped the stern of the Willkommen, the captain of the Willkommen was aft on the lower deck of the ship. He testified that he watched the Aureole, and knew what she was about to do, and that he waved his handkerchief to her captain, receiving a similar salute in return; that he then immediately went upon the bridge, where, besides himself, were the pilot and the first and second officers, and a competent and experienced man at the wheel. All the direct evidence tends to show that all were attentive to their duties; the second officer standing near the man at the wheel to see that the orders of the pilot were properly carried out, the first officer standing near the telegraph signal to the engine room, and the pilot watching the course of the ship. Upon the Aureole, the captain, pilot, and third officer were on the bridge, with a competent man at the wheel. All of them testified that they were attending to their duties and watching the ship. There is nothing in the testimony to convict the pilot or officers on either ship of unskillfulness or inattention, except the collision itself. The officers and men all testified strongly in favor of their own ships, respectively, and there is much variance in their testimony as to the facts and circumstances attending the collision. All the witnesses on the Aureole testify that, when she approached the Willkommen to pass, she was about 300 feet away, or about the ship's length away, and that while she was passing they continued at that distance apart on parallel courses, until the stern of the Aureole was about the bridge of the Willkommen, or between that and her fore rigging, when the latter ship suddenly sheered towards the Aureole, striking the Aureole with the bluff of her port bow, about 35 feet from her stern. The testimony, on the other hand, of those on board the Willkommen, as to the distance the ships were apart when the Aureole was passing, puts it, some at 150 feet; others, including the captain and pilot, at from 100 to 75 feet. The pilot of the Willkommen testifies (and there is no contradiction of his testimony) that before the Aureole's bow was opposite to the Willkommen's bridge he ordered the wheelsman to port the helm. He says he did this because he saw the Aureole was coming too close. When the Aureole's bow got abreast of his bridge, he says, he told the captain to slow the ship down to half speed, and that when her stern got somewhere about halfway between the Willkommen's fore rigging and the bridge he had the engine stopped; that he then asked the question if the wheel was a-port, and the chief officer replied that it was hard a-port; that he then went and looked himself, and found that it was so; and that the Aureole was at that time about 75 to 100 feet away. He also testifies that, when the Aureole's stern got forward of his bridge, her helm was either ported, or else the ship took a sheer towards him. The pilot of the Aureole, on the other hand, testifies that, when he got squared down on the deep-waterpoint range, he gave the wheelsman, as a point to steer by, the end of the jetty pier, a mile or two ahead, and which extended about three-quarters of a mile out from the eastern shore; that, when he came abreast of the Willkommen, the ships were about a ship's length apart, which would be something more than 300 feet; that the ships continued in parallel courses until the stern of the Aureole was ahead of the bridge of the Willkommen. He says that the first intimation he had of any danger was the captain's calling his attention to the Willkommen, and that when he looked she was taking a sheer over towards the Aureole; that she came at an angle of three or four points off the course on which she had been going. It may be noted here what the pilot of the Willkommen says in regard to the position of the pilot and captain, when their bridge was abreast or a little ahead of his, in accounting for the Aureole slanting across his bow: "Q. What was the reason, do you suppose, of the Aureole attempting to cross your bow in this slanting way? A. The only reason that I can see, the pilot must have thought he was a little too far to the eastward. He had his wheel a-port and gave the man a mark ahead to steer at, I guess, and went on the port side of the bridge,-he and the captain both. Q. Did you see them on there? A. I could not see them. They were behind the wheel house. Q. If they had been on the starboard side of the bridge, would you have seen them? A. Yes, sir. Q. You saw everybody else, did you? A. I did not see anybody. Q. On the bridge? A. Not a soul, because the man at the wheel was in the wheel house, and the captain and pilot were on the port side of the bridge, right behind the wheel house. It was right in range of us, and I never saw them until we caught the suction. Then the pilot walked on the starboard side of the bridge first, and saw it right away; and that is when I suppose they must have starb arded the Aureole's wheel, because the captain came right across as fast as he could get there. The next I saw of him, he was aft of the pilot house, throwing his hands and hallooing. That was just before we struck. Q. Your idea, then, is that he was attempting to get back into deep water from the eastern side of the channel with the Aureole? A. No, sir; he had fully as good water as we had,-if anything, better, maybe. He wanted to get ahead of us, and hauled down on a line, and maybe thought he was a little further to the eastward than he wanted to be, I suppose; but, if the pilot and captain of the Aureole would have been on the starboard side of the ship's bridge when they got to our fore rigging, then they could have seen how close they were. Q. You are sure there was nobody on the starboard side of their bridge? A. No, sir; not when she got forward of our beam. Q. You mean there was not anybody there when you say, 'No, sir'? I asked you whether there was or was not anybody on the starboard side of the bridge? A. Not when she got forward of our beam. Q. Did you at any time see anybody on the starboard side of their bridge until after they got forward of your beam? A. Yes, sir; before they got up abeam of us they were on the starboard side of the bridge. Then when they got up abeam of us they walked on the port side of the bridge. Q. Then, when they got forward of the bridge, they were not there? A. No, sir. * Q. What is your theory of this collision? How do you say it occurred? A. The ships came too close, and we took her suction and drawed right together." The testimony of the pilot of the Aureole, as well as that of the captain, seemed to confirm this statement, in so far that they were not in a position, when the stern of the Aureole had just passed the bridge of the Willkommen, to observe the latter vessel, by reason of the intervening pilot house of the Aureole. The pilot of the Aureole, as well as the wheelsman and officer on the bridge, testified that the Aureole was kept straight on her course, and did not go to starboard until she was struck by the Willkommen. The Willkommen struck a glancing blow upon the starboard quarter of the Aureole about 35 feet from the stern. The wind was blowing fresh from the northwest, which would be on the starboard bows of both ships, and the set of the flood tide was also somewhat against the starboard bows. The Willkommen and Aureole coming together in the manner described, the collision must have been caused either by the Aureole sheering to starboard at an angle that would take her across the Willkommen's bows (and the pilot and officers of the Willkommen testified that this did occur), or the Willkommen, from faulty steering or from some other cause, turned from her parallel course towards the Aureole. The pilot and officers of the Aureole emphatically deny that the former was the case, and say that they observed the Willkommen, after the stern of the Aureole had passed her bridge, sheering at an angle towards the Aureole. Nothing could be more emphatic and specific than the testimony of the pilot, wheelsman, and first and third officers of the Willkommen as to the correct steering of their ship. The third officer testified that he stood near the wheel for the purpose of watching the direction of the indicator,-to see that the wheelsman obeyed the orders of the pilot. The pilot says that he was steering on the ranges, having them open a little to the eastward, and had given the wheelsman a clump of trees on the western shore to steer by. These were evidently the trees spoken of by the wheelsman, and about which, in his imperfect command of English, there was some confusion when he spoke of them as on the eastern shore. As the river, shortly ahead of the ship, turns sharply to the southeast, which was the eastern bank might for the moment be mistaken by a man unacquainted with the locality. Counsel for respondent dwell much upon the fact that the wheelsman of the Willkommen, under cross-examination, said that, some two minutes before the stem of the Aureole came opposite to the bridge of the Willkommen, he had a starboard helm of about an inch on the indicator. This was afterwards sufficiently explained by the testimony that, as a matter of common knowledge among seamen, in steering a ship upon a straight course the wheel is never at rest, and is constantly moved a little a-port or a-starboard, to meet and counteract the sheering of the ship one way or the other. At all events, the testimony is positive, and as specific as human testimony can be, that the ship was kept upon her course parallel with the deep-water-point ranges, until just before the collision. The pilot of the Willkommen then says that, with his wheel hard a-port, the ship slowed down, and, with the engine stopped, she took a sheer to port, which immediately brought her in contact with the Aureole, which had sheered slantingly across the bow of the Willkommen, and thus diminished the distance between the two ships. This sheer of the Willkommen the pilot accounts for by what he calls "suction"; that is, the Aureole, by passing the Willkommen at full speed through shallow water, with so little distance between them, produced a current which drew the Willkommen's bow towards the Aureole with such a force as to overcome the influence of the helm hard a-port. This theory of the pilot of the Willkommen in accounting for the collision seems to us to accord more nearly with the probabilites created by the testimony than any other. Whether the Aureole had sheered to starboard or not, it would seem that the testimony of the Willkommen's officers as to the distance between the two ships is supported by this theory; and the testimony of the pilot and captain of the Aureole, when they suddenly saw the Willkommen coming at an angle towards them, is thereby explained. On the face of the direct testimony as to the steering of the Willkommen, it is impossible to believe that the collision was caused by any mistake in that respect. She was not steered into the |