408 THE MANHASSET.1 THE PORTS;MOUTHAND BARGE
4-0.
LILLIST01'i" et V.THE AND THE PORTSMOUTH AND BARGE LILLlllTON v. SAME. COOPER v. SAM£. OWNERS OF THE MANHASSET V. THE -PORTSMOUTH AND BARGE 40.
40.
Uz.
(.DiBtrict Oourt, E. ,.D. fir,qinia. March 6; 1888.)
t.
COJ,LtSION:.LBETWEEN TuG ANnF:mnRy-BoAT-LooxOUTS.
of a lookout properly a steamer navigating a ;nighUlllmperative. AJerry-boat is not exempt from this obligation, anQ. has no special Privileges br exemptions not possessed by other steamers. " . . SIGNALS-OBSOURING LIGHTS.
2.
:. Atllg whic4,had placed herself O·n the wel!t side of car float, in stress of forced thereby leave a wharf. and attempt to reach another, hi whien position the colored lights of the tug were hid from a ferryboatappro8chlllg from the other sidehy the intervening barge; was not, under the cireUmstall,ces of the oase,.negligent fl;>r sodoing. A car-flOat ts not required by the rules of navigation to carry any light. One whlchW'as rigged with colored lights, but wall being towed backwards underthC:UlecIl8sities of tile occasion. thereby hiding her colored lights, and which, light on the,end wh!ch was mo,!ing was not, llnderthe'clrcumstances of ,the case, gUIlty of Ileghgence III the matter of lights. . . , SAMJ;ll-FERRy,BoATS"""'tRIGHT OF WAY. . . '. : . . .
8.
4.
Tllet\lg.1'nd barge were not bound to delay th,eir departUre from their wharf .till ferty-boat had arrived ather docl(. Ferrtboats have no prior rights of navigatIOn· over other boats. ., ·i .
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0; SAME.4CROllSING VESSELS. pnder the factI! the. pOllition of the colliding vessels WaS not a Case of cross, ing, and rule 19 /ioesnot apply. . 6. SAiI!:E-'-FAILtrn£ '1'0 SIGNAL. .. Nor was it M$'lIgence In the master of the tug not to have blown several . short dallger, 'Whistle$. : . 7. SAME-NEGLIGJ\lNCE. . ' . ' . ' On the whole facts of the case the ferry-boat was soleljo to blame for the collision. . " . . " T . '. '
In Admiralty. These were three libels'agaiust the ferry-boat Manhasset,the tug;Portsmouth, and the Barge 40, jointly,and one libel against the tug and barge. for damages from collision ,whichwere consolidated', and heard together. The evidence submitted in these cases fills 885 type-written pages of legal-cap paper, and is augmented in volume by the usual complement of 'documentary exhibits.' IIi the main, it is very conflicting,and an undue pl'oportion of it consists of tedious, unenlightening oross-examinations. In stating what I conclude to be the facts of the case, it would be well·if I could, in this paper, take up the evidtlnce bearing on each contested point, ,balance conflicting statements, and set out my reasons 1 Reported
by Robert M. Hughes, Esq., 01 the Norfolk bar.
'.rUlll MANHASSET.
for adopting the conclusions arrived at. As this would be impracticable, I must follow the method pursued by the supreme court of the United States in a case in which there were but 400 pages of evidence,C0hamberlai1l- v. Ward, 21 How. 558,) where it said: "A particular analysis of the testimony of each witness, and a comparison of their respective statements, will not be attempted, as its effect wOl}ld be ,to extend the investigation lJeyond all reasonable limits, without any practical benefit to either party. All that can be done will be to state the material facts proved. Conflicting testimony we have endeavored to reconcile, where it is possible; and when not so, we have drawn our conclusions from the weight of evidence, and the probabilities of the case. With these explanations we will proceed to state the material facts of the case." I shall follow, in dealing with the important ca:;;e before me, the authorexample of the supreme court. From a patient study of the vast mass of evidence presented, I derivethe following statement of principal facts, which includes some public facts, not in the record, but of which I take judicial notice. The upper part of Norfolk harbor is formed by the east and south branches of Elizabeth river, which flow into it from. the south, Norfolk lying on the north side, Portsmouth on the south side, and Berkeley betweenthe two rivers. The south branch passes the United States, navy-yard at Gosport, and the wharves of the Seaboard of Portsmouth on the south side, before entering the harbor; the wharves of the Norfolk Southern Railroad, and ofits coal pier, being on the opposite side, in Berkeley. The east branch passes the Wharves Norfolk & Western Railroad, and of the Clyde and Old DomInion Companies' steamers on the Norfolk side; and thewhllrves and slips of large saw-mills and other enterprises on the Berkeley side. A considerable trade from the of North Carolina conies into Norfolk hltrbor from the South Branch river, through the Albemarle & Chesapeake Navof light igation Line, and the Dismal Swamp canal, borne'in draft. A great portion of this commerce is brought into the harbor by tugs towing very often long lines of small sail-vessels. and barges, and rafts ofluq] ber and logs. This trade passes from south branch, between the wharves of the Seaboard Railroad on the side; and those of the Norfolk Southern Railroad on the other. The width of the navigation here is but about 210 or 215 yards, and this is not much less than the average width of the stream for half a mile above its mouth, including the navy-yard. This partof the river is narrow in respect to the size of the large vessels, and the number of small ones, and the heavy com'merce, which pass over or lie in it. The upper part of Norfolknarbor has an average width of about half a mile, and is less than a mile in length, from the front of Berkeley to Naval poirit, which latter pierces the harbor from the west. Before reaching Hospital point going north out of the upper harbor, the wharves of Town point, in Norfolk, are p\lSsed to the right; that occupied a year ago by the New York, Philadelphia & Norfolk Railroad Company, one of the respondents in these libels, nearest on t):leright;and distant from the seaboard wharf at Portsmouth about four-fifths of Ii. mile. or 1,400 yards. Contihuing be-
yond HpspHfloJ..point; we get .into the lower part of Norfolk harbor, into- ' :west1;lra.p.ch of river empties, and which extends about two .miles to tqe coal pier oftam bert's 'point. Continuing beyond Lambert's point fora few miles, lheElizabeth riverijows northward, until, in conjunction with James river, it forms Hampton roads; With increasing magnitude of its commerce, and the extraordirespect to nary dimensions of many of the ships entering it, the upper part of Nor-, folk harbor is constrained in ellpecially where the south branch enters it. Just at this point, arid ,next below the wharves of the Seaboard' Railroad, which have been mentioned, are the ferry slips of the Norfolk and Port..'mlouth ferry on the Portsmouth side; next below these slips,. to the north, one or two wharves, and north of these, the Portsmouth wharves of th,e, Old Dominion Steam-Ship Company. Finally, on tpe same side, is Robinson's wharf, north of which is the expanse of water callE1d ";Portsmouth F,latS," whlchll.re the principal anchorage ofthe upper extend toNava1 Hospital pointon'the west side, opharbor; posite TQwnpoint on the ,Nqrfdlk side,. Opposite the 'Portsmouth ferry slips, which been mElDti.oned,100king towards Norfolk, is another' <!alled Cl Berkeley Flat;s." .1.'he boats of the, anchorage in fiW?t of Norfolk and 'Pol.'tsm<:>uth ferry do not cross the harbor at right angles, but' they 0!1 line eastWll-rdly ofnorth 1,058 totbelr sh,{>s,litt,N?rfolk.. at Norfolk also run the ferry*' from over a course, about 550 yards, or about one-third· ora JUile, in length:' One boat, runs on each of these ferries, at intervals of 2.0 minutes ate/lch side, intheday-tinie,and 30 minutes in the night. These, two lines of 'ferriage both cross the mouth of the East Branch; and - the'Norfolkand:Portsrnouth'linea.lso ,croSses the mouth of the South : ,'niey the ingress and egress of all steam-ships, tugs; sail1;lll.rges,. a.nd other craft which belong to the navigation of those two rivers. 1'.qey)ie upon the vitalsof the upper Norfolk harbor. The ferry-boat lllies between Norfolk and Portstll0uth makes but a !!light offing in moving out of or into the Norfolk sliPi but in leaving and the slip at fortsmouth. she is obliged generally to make an offing as tW90rthree times her own length, or 'more than 300 feet, str.alghtout the slip. Her usual path hetween Norfolk and Portsmou.th is therefore on ll.line drawnfrom the outer end of Norfolk slip to a point directly out 300 feet from. the, outer end of the Portsmouth slip. The qsualtime consumed by t.he ferry-boat in making this trip i8 five !pillutes frorP.unhooking on one side to hooking on the other, or about foill' minutes, from the outer end of one slip to the outer end of the other, allowing half a, minute at each end fot leaving the slip, and getting under way; the djstance between the tW9 points last named being 1,058 yards, feet..). .The boat's of speed, while out in the harbor, (1;058 ya'rde in,four minutes,) is nine. miles an hour.. , On tbe28thof March, 1887, Portsmouth left Cape ,; ell-stM Chesa two very large barges in tow, which were loaded with railroad carS filled with freight. . The dars and barges Ware.."so, cOl1stnicted that the cars could be rolled from the railroad
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- TIlE MANHASSET.
411
wharf atilachendof thcHo\1te to the decks of the barges, and again from the' decks to the wharf. The barges which were -in tow of the Pottsniotrth'on this occasion were No.1 and No. 40. Ba.rge No. 1hild cars destined for the Norfolk Southern Railroad at its wharf in the South Branch river, at Berkeley; and barge No. 40 had 14 cars destined primarily for Town point, and then for the Norfolk & Western Railroad wharves on the East Branch, at Norfolk. The loaded cars each some .50,000 pourids, including freight. Barge 40 was 240 feet in lehgth and 36 feet in breadth, and drew 7 feet of water when loaded. Barge 1 was somewhat smaller in dimensions. The tug Portsmouth was 125 feet in length, and drew 10 feet of Water. During the passage ortug and convoy from Cape Charles city to Lambert's point, the tug had the barges in'tow, one ,behind the other. upon a long 80-fathom hawser. After turning Lambert's point, Capt. Cason, who was master of the tug, and had charge i of the took the two barges along-side and aport of the 'tug, barge 40 next the tug, and barge 1 on the port side of barge 40, all practically abreast. Before entering Hampton roads a high wind came down from the northward; and this wind acting on a flood-tide, which then had set iri,made t. "ery strQng current under the tug and barges proceeding southward, and made it quite a difficultfeat for Capt. Cason to take in his hawser and bring the huge with freight cars upon their decks,itlong-side of the tug. After succeeding in thus hanrUillgthe barges, and on approaching the wharves of the New York, Philadelphia & Norfolk Railroad Company, at Town point, at Norfolk, with the intention of temporarily leaving barge 40 there, and then proceeding with barge 1 to Berkeley, the passenger steamer Cape Charles, of the same company, which had just come in from across the bay heading southward, was seen vainly attempting to land, and much baffled in the effoi't by the extraordinary force of the wind and tide then prevailing. Capt. Cason, being himself under stress of wind and tide, deemed it impracticable and unsafe to attempt to land his own vessels then at Town point, and proceeded, looking out to port as he passed along the wharves of Norfolk for one at which to fetch uPi his barges being on the port side of the tug. None were observed on the Norfolk side of the harbor, and he found it necessary tocontil1ue on to the railroad wharf >at Berkeley, which was the destination of barge 1. There were a dredge and attendant mud-scows, a pile-driver and a small sail-vessel near the railroad wharf, which ohstructed the approach to it; and he was under the necessity of heading for the coal-pier wharf further on, and south of the railroad wharf. He succeeded in nearing the coal pier, and getting out and makfast his lines to it. The Phillips, a stout steam-tug belonging to the Norfolk Southern Railroad Company, lay at the time in the slip between the two wharves just mentioned. This slip was too short for the admission of either barge 40 or barge 1. Meantime the passenger steamer Cape Charles had failed to' effect a landing at Town 'point because of the force ·of wind and tide from the north in her rear, and had come on to Portsmouth, intending to land there first, andretunl to Town point, -where she expected to efi'ecta landing more easiljrwhen she shouldap-
412
FEDERAL REPORTER.
proach' the wharf with bow to the wind. and tide. This expectation was realized. Oapt. Cll$On lay with his tug and barges at the Berkeley coal pier f;Jr an llour, hoping for an abatement of the wind, which increased, rather thl'l-ll diminished, during the period. The night had become very dark, !lnd there were squalls of rain. Fearing at length to lie longer there with both barges, he determined to leave barge 1, and return both barges at the coal with barge 40 to Town point. His fear to pielarose from the fact thatthe bottom near that pier had not then been dredged to its present except hnmediately in front of the pier along a distance but half the length. of his barges. He found that if one end of barge!" which was next the pier, should ground, it would be impracticable .to prevent barge 40, under the chafing that would ensue, froI!l breaking loose; in which there was danger of her being driven by.the storm up the south branc):!, and drifting against the naval and other vessels that were anchored in that direction. . He therefore determined to return with barge 40 to origina.l destination at Town point; leaving barge 1 where she was. In this design he turned bis tug around, with bow to tbe wind and tide, heading towards Town point; and made fast ,to barge 40, his starboard to her starboard, and his bow towards her stern. It was important; in order to his effecting an easier landing at Town point that he should have his tow on his starboard, the wharf at which he was to land being outhat side. The evidence shows, what,reflection makes obvious, that it was impracticable to turn so long, bulky, and heavily loaded a vessel ,as the barge, in that place at that time, in the face of the wind and tide then prevailing, except at unwarrantable risk. The evidence also shows that it is customary in Norfolk harbo,r for lIlrge ,barges to be frequently towed stern foremost. The limited of the upper part of the harbor seem to render such a mode of,tpwing,!1necessity of frequent recurrence in the navigation of & Norfolk Railthis poz:t.. 'il'lleparges of the New York, ,compllny are built with bow. and stern; but .the usual method of building; Pa!'iiesis with the two ends alike. Complj.ratively few of them are built and bow; and jt is shown in the evidence that those which are soqqilt are towed, the tugs are along-side of them,) with .as much facility ·when moving!stemforemost as when moving bow foremostjand are even more manageable when thus moving, if circumstances allaw :rudder to be hl'ought into ,play· It is only when towed with' tlw form bow and stern is important in barges. Capt; Cason kne)V the time-schedule on which the Jerry-boat ran between Norfolk and Po,rtsmouth. This boat, the Manhasset, whose owners are hath libelants andrespondellts in this trial, left Norfolk then at 15 minutes before and 15 minutes after ell,ch hour; and left Portsmouth at each hour and half-lJ.our when running·Jl.t night. Several minutes before the departure of the. Manhasset from Norfolk on the night of. the 28th of March last, on her 15 minutes, befor.e9 o'clock trip, Capt. Cason, with his tug to windward of barge 40, and in tow of her, the tug's stern nearly even with the hindmost end of the barge, or projecting not more than five or six feet beyond that end, pushed off' from the coal pier at Berkeley,
or
THE MANHASSET.
413
and; after an offing into mid-channel in the direction of the ferry which was 2BB yards distant across the channel, headed for Town point; having the barge stern foremost on his starboard side in tow. All the tug's lights were in their places and burning properly, namely, her colored side-ligh,ts, and her central range-lights, consisting of a white light on the stem in her bow, and two white lights, one above the other, at the usual elevation on a staff above the after-part of the deck. Although barges undel,' tow are not required by any rule of the road or law ofnavigation}o carry colored side-lights, and few of them ever have these lights, yet it had been the practice to carry side-lights on bllrge40 similar to those required by law on sail-ve::y;els. But, inasmuch as this; barge was then :Q1ovingstern foremost, her colored side-lights, which,were in place and properly burning, did not, and from their structure could not, show forward in the direction in which Lhe tug and barge were now moving. No light at all was shown on the barge to the front, except the white light of a large lantern that was placed on the end of one of the ' railroad cars nearest the foremost end of the barge as it moved. On setting out from the coal pier Capt. Cason had left his mate, Richardson, at the wheel in the tug's pilot-house, and had himself taken position as lookout on top of a railroad car at the foremost end of the barge; whose master, Capt. Stokely, was on the bridge erected at an above the tops of the cars adjoining the pilot-house in the aft part of the barge. Stokely had qecketed the barge's helm in such manner that it could be instantly let loose and brought into use whenever occa!;lion should ,require. Below Capt. Cason, and near him, on the foremost end of the as she was moving, a colored deckhand, Reeq." was on the deck of the barge. ,The usual of crew were on the tug Portsmouth. Along the wharves of Portsmouth, from that of the on to Robinson's, are powerful electric lights, erected by th(iowQers of the wharves for the purpose oflighting up that part of tqeparbpr. When the eyes are looking towards these lights in a ,dark l)ight, intervening objects, and lights from oil lamps, are!.tlways more, or dhumed or obscured by the glare of the electric lights. After pul1iI;lg, out into the channel and getting his heavy barge, moving .against wind an,d, tide, under headway, aud after passing the Portsmouth ferry slip" Capt. Cason for Town point, bearing more or less towards the PClrtsmouth shore, to get the protection of its warehouses from ,the force of the wind. ' In passing the Portsmouth slip he crossed the usual pathway of the ferry-boat, and was proceeding on the westof it, in to Town point, at a speed of about two miles an, hqur, when he saw the green light of the Manhasset after she had COme out from her Norfolk slip. He very soon afterwards saw both of the, Manhasset's lightl;l. Desiring her to pass to starboard, he blew two whistles, but received no reply. After half a minute he again blew two whistles, and then. ordered his tug's engine first to reverse, and then to ba'Ck with full power, orders were obeyed, and thereby the headway of the and barge were checked up. The Manhasset had continued her course until she crossed the Berkeley flats, and until she had l,lomewithin
bargeahd: shortly after.wards,was lD contAct wIth the on Its corner.' ,Smith and Capt. OaE'on say in their protest made nextdity,tJ:lat;the Manha:sset was 20. yards off when she blew 'one whistle. The: joiner's work of the: cabin,forward of the port wheM of the Manhass(lt,' ,raked and destroyed by a gliding blow, the cabin itself was staved in; ',ller port wheel was disabled, and besides other damages to' thehurricatie deck, a piece of timber from it was driven into ane of the railroad cars on the barge in such a manner as to hang and barge togethElruptil theybeqame separated by the the grounding' o,f the barge and tug lJho'ltly afterwards,' near Thomas' which are south ofthe Berkeley coal pier. The maSter and pilot of the Manhass'et, Capt. Smith, in 'his protest entered 'on 'the day after the collision, says, arilOng other things: "All his lights ,were burning. The wind was due north, and the weather cloudy and very dark, blowing a strong gale. After crossing Berkeley flats, saw a bright light, and thought it was the stern light of the; rt.ug] Phillips towing a barge; hls boat down iminediately,soas to let her go by; gave one whistle; there being no response, stopped the engine. and immediately afterwards the steamer was struck by the barge. Just as she struck he saw the lights of the tug, which up tothat time had been hidden from view by the intervening'barge, which was loaded with cars." The evidence shows that there was no lookout on the Manhasset, on this trip. It usually had two deckhands. but one of these had purposely remained on shore, and the other, after, the boat had left the wharf, had, gone into SOlDe room. amidships, and stood bya There was a de9k-officer charged with police duty; but he had passed rapidly the cabins when the boat had left the wharf, and then gone into a shelter having in it a stove. No person having duties to perform on this ferry-boat, was' on its deck during this trip, except one man, Capt. Smith, and he was performing alone the duties of master and pilot'in the pilot-house. The evidence ther shows, on this la,tter point, that the bridge aDd pilot-house of the barge, which were at an, elevation above *e tops of the railroad cars, had probably prevented the towing lights Of the tug Portsmouth on the flag-staff of her rear deck from being seeuby the Manhas'set. Before the time of the collision. the' Manhasset had been moving under her usual power of steam in her engine which produced her customary speed· of nine miles an hour. On the occaSiOll under consideration this speed had been accelerated by the flood-tide on which she was moving; and by the "strong gale" of wind from the D:orth, which was in<lreasing her speed. A "gale of wind," according to. the signal service classification, is one which bldws at a minimum speed of 40 miles an hour. I stated above that a "high wind" was blowing, the minimum of is 25 miles an hour. I" think it is a reasonable estimate to suppose that the speed of the in' crossing from Norfolk on thilJ occasion, was accelerated at least by 3 mUes an. hour, and therefore tha.t she was moving at the rate of 12 miles an hour. rEld
415
The point at which the collision occurred is fixed by the evidence !\t the figure 26, marking tbat depth of water on the chart of the. harbor, filed.withthe evidence, that is to say, at the number 26, which is on jl. line drawn from the end of the ferry slip at Be*eley to the Old wharf on the Portsmouth side. . This point falls on the .letter "R" intlie word "RoutelJopthesmaller chart of the harbor. The dEfDcesh,ows this point to be'threlrfourths of the distance of 1,058 yards between tlleends of the of the Norfolk and portsmouth ferry; or 763 from the Norfolk ,slip, and 265 yards from that of Ports.At rate of 12 miles an hour, the Manhasset had made. this 793 yarl;lsin 2 minutes and 15 seconds, and, allowing her half a minute for clearing the slip and getting under headway, the Manhasset reached the point of collision in rather less than 3 minutes from the time of leaving her Norfolk wharf. "But if she moved at the rate of only 9 miles an hour, than she moved 793 yards in 3 minutes, a.nd reached the pc;>int minutes. after her wharf,. The timewhichtht had in J;ellching the point of coWsion after leaving thecoa:l pier at Berkeley may be accurately ascertained in like manner. The point of collision yards from the Portsmouth ferry slip, and that slip being 233 Yll:rds from the coal pier, the aggregate of these distances is 498 yards, so that the distance traversed by the tug and barge on the curved line pursued could hardly have been less than 380 requiredfor mpving over this distance at the rate of tWQ miles an' hour was six minutes and a half; and if we add one minute for the tilllenecessary for coal pier and getting under headway, the time consumed ip going from the pierto the point of collision was seven.Winutes and a half. It thus appears that the tug and barge coal pier in Berkeley four or fou.r and a half minutes before the Manhasset.left her wharrat.Norfolk. It is for this reason that it has been stated above that the POl'tsmouth anr{ barge 40 leftthe coal pier several minutes before the Manhasset left Norfolk, and had crossed' the usual ferry-boat when the latter boat came out of her Norfolk slip, and'shortly at'terwards showed her green light. The shipyardaqd. stqcks of Tho1ll8S& Co. are south of the coal pier, 'on the Berkeley side ,of the South Branch, in the directjon of the navy-yard. The protest of Oapt. Cason, made on the day after the collision,after other recitals, proceeds: "The Manhasset in colliding was considerably" damaged., and, became unmanageable; tried to put her in at ways, but (}fe) grounded before reaching the ways; not being able tug properly while both boats were, foul, [me!lning the to, Manhasset and barge 40,) baving also caught a log in her wh;eel. Between the 13erkeley and Th()mlls' ways the tug grounded with ,the barge, and the M/lnhasset got clertr of her. After. getting clear, the tug went along-side of the Manhasset, took off the passengers, an,d landed them' at. the steam-boat wharf, [meaning the Seaboard wharf.)!' ". In this narration,,, Capt. Cason pmits to mention what the evidence taKen supplies....,.that:afterhe got from the so,uth j up the The Berkeley ferry,.,boat went after her,
416
to give relief, but failed in this'purposeafter coming'in contact or more I).aval vessels anchored in the South Branch river. Capt. Cason, after getting clear of the Manhasset, the wind having greatly moderated, succeeded in depositing theharge at the Seaboard wharf; and, being nbW free of incumbrances, followed the Manhasset up the 'river, until ,he in tow he brought her to found her helpless and aground. Taking Portsmouth,and succeeded in landing her passengers, and relieving them from the fears and dangerS to which they hadbeeI). sUbjected. Besides the, injuries which· the Manhasset had sustained'in the collision the casualties of the occasion were very serious. Mrs.' Cooper, the wife of one of the libelants here, who was sitting in the port. cabin of the Manhasset,forward of the wheel, was killed outright. Damages for her loss have been sought by her husband in a common-law court. Cooper himself was seriollsly injured, and in one of the libels now under trial hedemands damages for these personal injuries, and their consequences to himself. Mrs. Lilliston, wife of T. M. Lilliston, both of whom are libelants in one of the libels now under trial, was very painfully, dangerously, and well-nigh fatally, injured. Walke &: Old and R. C. Marshall, for libelants. J. F. Orocker and G. H. Gorrrian, for the Manhasset. ' Sharp &: Hughes, for tug and barge. HUGHES, J., (after stating JdctB asdbove.) There <Jan be no doubt that the libelants that have been entitled to If the boat was in fault they had coritl;actual relations with it which justify they are entidamages for injuries. If the tug and barge were tled to recover damages from them as for tort; and f)O I owUI first dispose of that part of the case before eptering upon the qu'estionof fauit. The <lase of Mrs. Lillistqn is the most serious one: Shewasdangerouslyand painfully injured, though, fortumitely, as has turned out, not permanently so. Shesuffeied excruciating' agonies for a seriesqf Ihany days. She was prostrated and helpless for months. Her injuries 'would doubtless have proved fatal, but for the skill of her physician, the recuperative enand assiduous nursing of .ergies of a strong constitutibn,l1nd the friends. I will sign a decree aWl1rding her $2,500, and one in favor of her husband individually, for the amount of her, m'6dical bill, and for ifhe sum of $200 besides. This latte'r amouut is intehd'ed to cover loss of timefroillwork, and expenses incidental to the illness of Mrs. Lillistou. I will signa decree in favor of Cooper for $750, plus . the amount of his medical bill,--the first sum to stand for loss of time and the expenses incident to his wounded condition. I come now to pass crucial question in this trial, namely, whose was the fault which caused the collision? The causeofthe accident be stated. in a nutshell. ' That 'cause was the mistake made by Capt. Smith in supposing the white light which he saw before him was that of the tug Phillips moving from him, and in porting his helni in order to let it pass, out of his way. Instead of that being the case, the light was upona'barge moving towards him when first seenj and l1lo'Ving'in such
'!'HE MANHASSET.
417
a manner that when he did make his tardy movement, that movement rendered the collision inevitable. If the light had been moving from him, his determination to pass under the stem of the supposed vessel was, no doubt, right enough; but the light being in fact on a vessel that was approaching him, his movement was an attempt to cross her bow when he was already upon her, and the collision was rendered an absolute certainty. Therefore, the real question to be considered is, through whose fault was it that Capt. Smith made the mistake that has been described? It may have been his; it may have been Capt. Cason's; itmay have been the fault of both. First, as to the Manhasset. She was moving, in that dark, rainy night, across a·harbor navigated day and night by many vessels,at· the rate of 9 to 12 lDiles an hour, before a strong wind and tide. without a lookout or a deckhand above decks to serve as eyes and ears, except the man at the wheel, who was acting, alone and singly, as master, pilot, wheelsman, and lookout, all in one. Moving, thus blind and deaf, with such force and rapidity, in a harbor, in the dark, loaded with passengers, with but one solitary man above decks, such was the condition in which she encountered disaster. There are cases in which res ipsa loquitur,-fault is self-proclaimed. In respect to lookouts, the law is positive and absolute. The decisions of the courts are replete with admonition of the necessity of the lookout as a sine qua non of safe navigation. It were vain to devise laws of navigation. or to agree upon rules of the road, if ships were not required to keep one or more lookouts constantly and properly posted during the time they are in motion. The specific duty of the lookout is constantly to search the horizon for objects that may affect the navigation of his ship, and to report the varying conditions the ship finds herself in in relation to other vessels in the same waters, in order that she may be navigated in obedience to the law or rule of navigation applicable to the conditions reported. The lookout's duty is distinct and different from that of the navigator. He is in a different position on deck. His mind and eye are differently occupied; his work and duty as different as that of one man can well be from the work and duty of another. The lookout of a ship is its eyes and ears; without him, she is blind and deaf. There is close and responsive relation between him and the pilot. His eye constantly and searchingly scans the face of the water hefore and on either bow of his ship and his voice is prompt to warn of every object that presents itself to. the vision. The pilot's mtnd is intently upon the lookout, and his hand on the wheel intuitively responds to the lookout's voice. A lookout is only a lookout thus attracting the pilot's constant attention when he is regularly on duty. There is no such thing as an amateur or volunteer lookout. Such person has not the ear of the pilot, and his communications to him are little better than an impertinence and distraction. The real lookout and the pilot are essential counterparts of each other. In the absence of a pilot, the lookout's office is useless. In the absence of the lookout, the pilot is helpless, except to the extent that he subordinates his proper duty in order to act as lookout away from the lookout's proper position. v.34F.110.5-27
418
FEDERAL,REl'ORTER.
the iorw;atd part of the deck. The pilot-house.in the night, especially the view by clouds in .the distance. was not the Rroper the windows werl:! up or down: A competent and ilant lookout'stationed at the forward part of' the vessel, and in a position best adapted t6 d6!icry vessels apptoa.ching at the earliest moment, is indispensable to exempt the steam-boat from blame in case of accident in the nighttime, while n8Yigating waters on which it is a custointo meet other water craft."
Neither can: dtli Qis own duty in the absence ofthe'otberj and without a pilot a steamerds, a blind and deaf' engine of mischief threatening every object initBpathway. I repeat that the language of the admiralty courts on the 8ubjectdsclear, positive,and ,unqualified.; It admits no dO)lble interpretation. '.' ,The supreme conrtor the United held in the case of Newtonv.Stebbins, 10 Row. 607, that a steamer was in fault in not having a proper.lookout at the for,ward part of the vessel, there being no one ,but the man at the wheel on deck. The supreme court said in the case of St, [John Y.. Paine, ld. 585: . "The steam-boat was in fault in not keeping on deck at the time a proper
The supremecour&saidin The ·GeM88ee Ohief, 12 How. 463: "It is the dl1ty,ofevery steanl-hoat traversing waters where sailing vessels are often met with., to have a t1'u8tworth1 and constant lookout, besides the helmsman. It is impossible for to steer the vessel, and keep a proper watch in'his wheel-house. His position is unfavorable to it, and he cannot safely the to give notice w,hen it becomes necessary to check suddenly the speed of the boat. And a collision happens with a sailing 'Vessel, and it appears that there was no other lookout on board the steam-boat but the helmsman, or t11atsuch lookout was not placed il) the proper place, or not actually and.vigilantly employed in his duty, it must be regarded as prima ,facie evidence that it was by her fault. "
Thesupretnecourt,in The Chtluztine,17 How. 177, speaking out on a Bail-vessel, said: "Custom or usage cannot be permitted as an excuse for dispensing with a proper lookout while navigating in the night, especially on waters frequented by other vessels. Under such cjrcumstances. a competent lookout, stationed uppn a quarter of the vessel affording the best opportunity to see at a distance those meeting her, is indispensable to. safe oaYigation·. and the neglect is. as ,a fault in the The supreme court said, in Chamberlain v. Ward, 21 How. 570: , ,"Steamers naVigating in t)le thor()ughfares of commerce must have con· stant and Vigilant lookouts stationed in proper places on the vessel, and charged with the duty for whiQh lookouts are reqUired, andthey must be actually emp\oyedlli the performanCeQf the duty to which they are assigned. To constitute a,compliance with the requirements of law. they must be persons of suitable experience, properly stationed on the vessel, and actually and iIantly employed in the perforrnanceof their duty; and for a failure in either those particulars, ,the vessel and her owners are responsible."
·'.The supreme court, in Han'fJyv. Packet 00., 23 How. 292, used this language: "The captain of a steamer, whose theory of action appeII.l'S from his own testimony to bethat all small vessels are bound at their peril to get out of the way of a large stf.lamer carrying the tJnitedStates mail, although he had seen
·'THE .MANHASBll:T. · the sChooner; aridkne'W that
were approximating at 'the' rate of twenty miles an hour, retired tobis cabin. He left on deck one man, besides at the to.act·8S pilot, lookout, and officer of the deck. These two. persons constituted the whole crew on duty, besides firemen and engineers.. This person who perform these treble functions was the second mate. His theoIj is that the best place for a lookout·is in the pilot-house, where, he says, ·I generally lean o:ut of the window, and have an unobstructed view.' Accordingly as pilot he remained in the pilot-house, to direct the steersman; and, as lookout, he occasionally leaned Olit of the window." After speaking thus derisively of master and second mate, and after repeating the law of the duty oflookouts, the supreme court held that it was "the captain's duty to' have been on deck, which he was not; and that the only man on deck, acting as pilot, lookout, and officer of the deck, was not in the proper place for a lookout to be when he was in the pilot-house." The supreme court in the case of The Ottawa, 3 Wall. 268, held that "lookouts must be persons of suitable experience, properlystationed on the vessel, and actually and vigilantly employed in the performance of their duty; andthat the master of a steamer, when acting as officer ofthe deck, and having charge of the navigation of the vessel, is not a proper lookout, nor is the helmsman." The circuit court of the Northern district of New York, in The Northern Indiana, 3 Blatchf. 92, held that in a steamer running along a track frequented by sail-vessels, the inside of a pilot-house in a dark night is not the proper position for a lookout. Adopting the rulings of the English high court of admiralty, Mr. Justice NELSON held that "the want of a lookout; detailed and stationed for that specific duty, is in itself a circumstance of a strong condemnatory character, and exacts in all cases from the vessel neglecting it, clear and' satisfactory proof that the misfortune encountered was in no way attributable to her misconduct in that particular." In none of the decisions of the courts enforcing the duty of having competent and vigilant lookauts properly stationed on steamers while in motion, is any exception made or implied in favor of ferry-boats. The circuit court of the United States for the Southern district of New York. in the case of The America, 10 Blatchf. 159, held that "in the navigation across the crowded channel of the East river at New York a most vigilant lookout from some place on the ferry-boat is required." The district court of the Southern district of New York, in the case of The Monticello, 15 Fed. Rep. 474, held that a ferry-boat was liable for a collision which occurred about 140 feet outside of her slip, where she started without a lookout upon her bows. The district court of New Jersey, in the case of The Ant, 10 Fed. Rep. 294, held that steamers navigating on the thoroughfares of commerce are bound to have a lookout, independently of the helmsman. English and other American authorities on the subject might be multiplied indefinitely, if it were necessary. It is safe to say that no rule of navigation is more thoroughly established than that which requires every moving vessel to have a lookout, specifically charged with the duties of lookout, and none other, and to have him properly stationed. There can be no rules for the government of ferryboats varying from those prescribed for shipping in general. The laws
400
I'EDERAL REPORTER.
of navigation universal, and are binding on all water craft. Ferryboats usually ply in harbors, and the' existence of dilferentrules of navigation fOf different vessels in the same harbor would be fruitful of calamity·· There, was once a provincial notion that vessels carrying the United States nlll.ils were entitled to the right of way; but it has been scoffed Qut of the code of navigation. The idea that a ferry-boat has an exclusive right of way ina harbor,and is exempt from the conventional canons of navigation obtaining all the world over, is a provincialism unworthy of an enlightened age, and pregnant with disaster to life and property. There would be no use for settled and universal canons of navigation, if vessels were not required to have competent lookouts, properly stationed, whenever they were in motion. Rules would be a dead letter, and unsusceptible of application, if there were no lookouts. They are the key to the whole code of navigation. The Manhasset was fearfully in fault in having no lookout on the unfortunate trip which we are considering. Who can say that, if she had had a special and vigilant lookout when she emerged from her Norfolk slip, charged with the special duty of closely and timely scanning the whole harbor from the outset, he would not have discovered Capt. Cason's barge's light in the distance, and narrowly studied it from the moment of first seeing it? Could such a lookout, intent upon the special duty of interpreting such a problem, have supposed that a light which was approaching him steadily for two and a half or three minutes, was a light on the stern of a receding vessel, brightening as it receded? Is it possible that his ears set for the reception of sounds could have failed to hear two loud, coarse whistles sounded and afterwards repeated, which were heard by as many as three passengers on his boat, and were heard all around the harbor by every man whose business led him to expect the tug which gave them, and whose attention was on the alert in regard to them? I am firmly persuaded that if there had been a special, experienced, vigilant lookout on the Manhasset on the night in question, proper attention would have been given in time to the light of the barge, and proper response made to the double whistles, repeated, which were sounded by the tug. I am persuaded that Capt. Smith's mistake in supposing an approaching light was a receding one, and the consequent collision, was due to the want of a keen-sighted and sharp-eared lookout on the Manhasset. The Manhasset was in fault in respect to the lookout, and is responsible for the collision, unless it can be shown that the tug and barge were also in fault, and by their fault contributed to the accident. I come, therefore, to deal with this tu quogue plea. The principal complaint against the tug and barge is in regard to their lights. As to the tug, the charge is that, although she n1ay have had the regulation lights in their places, and burning, yet she ,took a position bethe barge which prevented them from being seen by the ferry-boat. The law, in rules 3 and 4 of navigation, not only defines the number and kind of lights to be carried by a steamer in towing another vessel, but fixes with precision the places at which these lights are to be carried. Its requirements were complied with by the tug. The same law forbids
421
the carrying of any other signal-lights than those designated, and, in doing so, forbids by necessary implication any change in the position of the lights it provides for.· The tug, therefore, had no right to elevate her lights above their legal position, and, if she had done so, her lights would· have been misleading, false, and unconventional. Therefore the objection to the manner in which the tug carried her lights resolves itself into an objection to her taking position on the west side of the barge, where the ferry-boat could not see them, and not on the east side, where that boat could have seen them. But the tug had sufficient reason for placing herself to leeward of the barge. The wharf to which she was towing the barge was on the side on which she placed it; and the tug was exclusive judge of the position she should occupy towards the barge. Her lights were visible to all the vessels she would pass lying on her port side; all the vessels which might be at the Portsmouth wharves; all that might be at anchor on the Portsmouth flats; all that she might pass or meet on her port side, coming in from or going out to the lower harbor. To say that she should have ignored all this shipping, and, at great inconvenience, changed sides with her barge, and crossed over to Town point in a manner to make it difficult to land the barge at that wharf, is virtually to say that she should have navigated the harbor, not with reference to other shipping, but exclusively with reference to the ferry-boat; not with reference to the facility of effecting the landing which she had in contemplation, but solely with reference to meeting the ferry-boat. Such a contention is only another fruit of the theory that the ferry-boat has some special rights and importance in the harbor superior in dignity to those which attach to other vessels. I cannot recognize such pretension. There was no obligation upon the tug to place herself .on the east side of the barge in order that her lights might be visible to the Manhasset, rather than to all the vessels she might pass on her Portsmouth side. She was not in fault in the fact of her lights being on the side of the barge where the Manhasset could not see them. The case of Chamberlain v. Ward, 21 How. 564, is not in point. The court held there, simply, that the lights of a vessel must be kept trimmed and replenished with oil, and not permitted to grow dim and go out by midnight. . It is complained, as to the barge, that her side-lights were visible only from her wake and were invisible from the direction towards which she was moving. This was not fault. 'l'here is no law of navigation requiring side-lights to be carried on barges under tow, and the side-lights of this barge, on the night under consideration, were, to all vessels ahead of her, as no lights at all. As to white lights, the navigator of the barge had no right to improvise a set of lights to serve the purposes of that particular occasion. No signal-lights are of value, and I might add, of legality, in navigation, except the conventional lights known and understood of all mariners, prescribed by law and the rules of the road. The barge had a right to move stern foremost, especially under the necessities which then required it; and one thing only was legitimate for her to do, in moving in that manner, which was to display one white light in a
Il1anner ;nQf to be .mistakert for; any rregulation light, and so placed as· to warn aU comers that it ma,rkedtin object on the water. A plain white light; whether on land or on water. whether on a street or a country road, in an anchorage, orin a channel of navigation, ineansalways, "Take care, for there is something he1'e:you must not run againstl" Its pmpose and universal effect is to put every cameron inquiry. That was the meaning of the single white light on the barge. It was visible to the Manhasset; and if she had had eyes on the outlook, vigilant eyes searching the harbor in the calm .moments of the beginning of her voyage; experienced,expert eyes to peer into the darkness, and wrest from it its inconspicuous as well as its conspicuous objects,-that single white light would have been seen and understood; and the lookout would have been cautioned' by it, and put upon inquiry, and would have discovered that it was approaching him; and Capt. Smith would have been prevented from mistaking it for the stern-light of a familiar tug going off into the railroad slip at Berkeley. It riot fault in the barge to have displayed this light. Nor was it fault in her to have had no other visible lights upon her. The laws of navigation, by an omission that ought to be supplied, fails to require other lights on barges under tow; and if others had been displayed, they would have been anomalous, unintelligible to navigators, misleading, and probably illegal. Much stress of objection is laid upon the fact that Capt. Cason knew the night schedule of the Manhasset, and that she would be on her passage to Portsmouth before he could get away from her route. I atGach no importance, in this connection, to the fact, arithmetically shown, that he left the wharf of the coal pier four minutes or more before the Manhasset embarked from Norfolk. Vessels having occasion to move in this harbor are under no obligation of either morals or law to delay their departures until a ferry-boat shall have made a trip. The harbor is free to all, and the laws of navigation are as democratic as cosmopolitan. They recognize no privileged characters, and stand upon the catholic principle of equal rights and common duties. 'Ihe barge and tug of the respondents here had the absolute choice of the time of setting out on their trip to Town point, and the unqualified right to choose it at their own will. If the vessels having the right to navigate this harbor were bound to stay five minutes for the ferry-boat to cross it in one direction, and five minutes also to cross in the other during every 20 minutes of the day, they would have but half the time to move in; and if another. boat were added to the ferry service, the upper part of Norfolk harbor would be closed to general navigation. This pretension thus resolves itself into an absurdity; and cannot bo countenancc:d. But it is claimed that, though the right to move at will might have belonged to the tug, yet prudence should have counseled delay for the passage of the ferry-boat in view of the danger of encountering her; and that venturing out at that particular time was fault in the tug and barge. If my duty calls me into a public street, where a strong man claims special occupancy, discretion or cowardice might dissuade me from venturing forth; but if, exceroisingmy right, I do go into the street, and the strong man assaults
·;TltE MANHASSET.
me and gets hurt, surely the fact of my beirig dn that street is not to be deemed the fault of the occasion.' Surely the prudential argument is untenable. Besides, why should the ferry-boat alone be given the ,wide berth? The only possible' answer is, that she alone of the vessels of the harbor is likely to run into vessels crossing her pathway, and is the most dangerous one to encounter. Such a pretension is not flattering to the reputation or the character of a ferry-boat, and may be dismissed for that reason alone. It is urged that the tug and barge were in fault in having disregarded rule 19 of navigation. That rule declares that "if two vessels onder steam are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way oJ the other.» The rule applies to vessels that are on courses which crosa each other. The tug left the Berkeley coal pier about four minutes before the Manhasset left Norfolk. She had less than 233 yards to go before ing the USllal route pursued by the Manhasset in coming into her mouth slip. The ferry slip was 233 yards from the coal pier. The tug and barge, as I have already estimated, did not approach within 100 yardso! the slip. Shehad j therefore, but 133 yards to movefroIU ·the coal pier before crossing the route of the ferry-boat. At the rate of two miles an hour, she made these 133 yards in two minutes five seconds after getting under way from the coal pier, and allowing one minute and a halffor getting under way, then the tug and barge had crossed ,the route of the ferry-boat in three minutes and thirty-five seconds,afterleaving the coal pier, and fully one minute before the Manhasset had leftber Norfolk slip. The case is therefore not one of crossing courses, and rule 19 has no application. The tug and Manhasset, after the latter left folk, were pursuing courses that did not cross, and that involved nOMnger of <lOlHsion, if each vessel held its course, and neither adopted any eccentric movement. They were on courses that naturally required each vessel to leave the other on its own starboard; in other words, to pass to the left. And accordingly, as soon as Capt. Cason saw both lights of. the Manhasset, he blew two whistles, and half a minute afterwards blew two more, adtnonishing the Manhasset that he proposed to pass to the left. He received no response from the Manhasset, until the two vessels were within 20 yards of each other, approaching at the rate of 11 to 14 miles an' hour; that is to say, were within 3 to 5 seconds of collision. It is also urged that Capt. Cason did not obey the requirements of rulj:} 3 of pilot regulations, which provides that "if, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by givingseveral short blasts of the steam-whistle; and if the vessels shall have approached within half a mile of each other," etc. It is complained that Capt. Cason did not give these alarm blasts. The rule applies to vessels which are far enough distant from each other for such blasts to avail when the pilot who first signllled discovers that the other has misunderstood him, or proposes some other movement.' In
424
FEDERAL: REPORTER.
the present Instance, Capt. Cason was not informed by the whistle of the Manhasset that she rejected his signal to pass to the left, and substituted a movement to the right, until the two vessels were within 20 yards,. or 5 seconds, of each other; and the rule did not admit of compliance. The case came within navigation rule 24, which admits ,a departure from all rules in moments of immediate danger. Lex non cogit ad i'lllpossibilia. Not only with reference to pilotlule 3, quoted above, but to navigation rule 19, previously quoted, it is to be considered that the tug and barge were moving against wind and tide,-a mammoth barge, heavily loaded, in tow of a tug, in sore stress of water and weather;. while the ferry-boat was moving free bf1fore both wind and tide, in perfect command of helm, side-wheels, and course. When vessels are in such relative conditions. a court of admiralty will not be exacting in regard to mere technical shortcomings on the part of a vessel moving with heavy incumbrances. even though they were apparent; as they are not in this case. I do not discover fault in the management of the tug and barge after they had crossed the usual route· of the ferry off her Portsmouth slip, and had got under way for Town point. It remains for me only to notice, in closing this discussion, the contention of proctors for the Manhasset, that the absence of a lookout on their boat was immaterial in this case, because the collision was not due to such absence; inasmuch as he could not have seen the lights or ht>ard the whistles of the tug, though he had been in place. In answer 1 have to say that there were at least three persons on· the Manhasset; one of whom both saw the light on the barge and heard the four signal whistles, and all three of whom heard the whistles. The witness who saw the light seems to me to have established his claim to credit with exceptional strength. Under a severe cross-examination in an uncharitable direction, he told truths extremely disagreeable to himself in a very manly manner; and we have a right to conclude that if a witness will adhere to truth under such an ordeal in matters of deep personal interest to himself, he may be believed implicitly, when testifying to facts which he has no interest in concealing; The proof is positive that whistles were blown, and the white light shown; and the necessary inference is that if the Manhasset had had a vigilant lookout properly stationed, he would have heard and seen, and the collision thereby avoided. I there.fore, on the whole Cllse, find that the tug and barge were without fault, and that the Manhasset was solely in fanlt, in not having had a lookout properly stationed, who would have so informed Capt. Smith of the barge's light and the tug's whistles, that he would not have made the mistake of crossing the tug's bow at the critical moment of the occasion. I will decree in accordance- with this finding. It will have been Observed that I do not object in what has been said to the speed at which the Manhasset was running. It is doubtless true that 12 in a crowded harmiles an honr is too rapid a speed for a bor; but I do not think that 9 miles is too The ex-. cess of speed on this occasion was due wholly to the wind and tide; and I do not think, when the usual speed of a vessel is thus accelerated,
THE HELENA.
425
that the fact calls for animadversion from an admiralty court. That speed, thus produced, is not itself criticised in the present discussionJ except so far as it aggravates the negligence of the want of a lookout. No steam vessel ought to move in any navigated water fast enough even to give her steerage-way, without a lookout, who is its eyes and It is the absence of a lookout that was the presumptive cause of this collision, and I have treated the rapid speed of the ferry-boat only as an aggravation of that cardinal fault.
THE THE THE
HELENA.!
LoRD
O'NEIL!.. LoRD
HELENA V.
THE
O'NEILL.
(Ol'1'cuit Oourt, E. D. Pennsylvania. March 10, lll88.) COLLISION.....,BETWEEN STEAMERS-CRoSSING VESSELS.
The steamers A. and B. were sailing down the Delaware bay, the A. being a tew miles ahead of the B. When the A. arrived at the breakwater. she signaled for a boat to take off her pilot. None responding. she determined to Dut back up the btty & few miles, and anchor for the nig-ht, it being then about '7.45 P. M. The A. selected an anchorage east of the regular channel for outbound steamers, and was slowly proceeding to it, with all lights burning brightly, and obeying every requirement of the law touching the mode of giving notice to vessels. She discovered another steam-vessel approaching on her port side, Involving danger of collision. and kept her course as required by the rules of navigation. The B.'s officers saw the A.'s lights, but mistakenly supposed them to be those of another vessel passing down ihe' bay, and did not discover their error until to,o late to avoid the collision.. Held" that. the B.,'s officers were guilty of carelessness or recklessness, and that the B. must be held accountable for the consequences.
In Admiralty. Cross-libels for damages. On appeal from district court. 26 Fed. Rep. 463. M. P. Hf/Ilry and H. R. Edmunds, for the Lord O'Neill. Oharla Gibbon8, Jr., for the Helena. McKENNAN, J. These are cross-libels for damages resulting from a collision between the Helena and the Lord O'Neill, each vessel insisting that the other was solely in fault. On the afternoon of February 13, 1885, were steaming down the Delaware river from Philadelphia, tbe Helena on ber way, in ballast, to Baltimore, and the O'Neill, with a full cargo on a voyage to Liverpool. The tide was flood. The O'Neill was in tbe lead. She was followed by tbe Agnes, a sister ship of the Helena, and the Helena was in tbe rear. As the nigM closed in, the O'Neill was over four miles in advance of the Helena, and, as the faster vessel, was increasing this distance; and the ,Agnes about two miles and a half allead
lReported by C. Berkeley Taylor, Esq., of the Philadelphia bar.