FEDERAL REPORTER,: vol.
49.
The amount claimed by the libelant as compensation for his injuries the steam-ship had solely in fault this would be a I shall divide this amount, and award him $1,500. The 'only testimony on behalf of thE! steamcship is the depositions of r.he master and mate, taken at Beaufort,S. C., to which port the steamer had gone for a cargo. The depositions were ,taken on September 22d, onder a notice served on libelant's proctor, in Baltimore, on September 19th. This was not a reasonable notice, as it did not allow sufficient time for the libelant to be represented at the examination and to crosswitnesses. The depositions were returned to this court and opened on September 25th, and upon motion of the libelant's proctor the heMifig'of the case was' set for October 22d. The motion to su ppress the. depositions was not made until. the' hearing. Under the circumstances, r hold .that the motion to suppress was made too late, and I the depositions. Tbe of the Q}aster and mate is very guarded and formal, and not sufficient to affect my mind on the question of the unsuitableness of the winch for the purpose to which it wasput. -I will sign a decree for $1 ,500 and half the costs.
THE TRANsFEB,. No.5. NORWICH &:
N.
Y.;,PROPELLER
Co.
11. THE TRANSFER
No.5.
(Dt8t1r£ct 001&"" & D. New, York. ' January 22, 1899.) Bows WJ'TIIOUT ANSWER TO SIGNAL. , ,,' , ' The tug Ttallsfer:No.5,Wlth a car-float along-side, had come up the East river at night, and was in the of HeUGate, in the neighborhood of the Astoria fer!}", an,d about 150 feet from the Lonll' Island shore. The steamer comlUg westj rounded Hallet's point, and went'down the east channel. Seemg the grlilen light" of: tbE!' tug, she ,hastily assUIlied that the tug .was crossing towards ;Horn's hook,blew two whlstles,and, without waiting for, an answer, stal'boarded. , The tug st-oppell, slowed, and reversed. hut the Boat and the Delaware came In col· lIslon. Bel(l, that the l'ollision WlliS solely que to the Delaware's f,ault in changing her course, and running into. the tug's water on her own signal, without waiting for anaullwer, and on a false assumption as to the tug's course, which she made at , her own risk. ASSUlf1"J'JON OJ'COURSE-CIIANGB OJ' COURSB-CBOSStNG
In Admiralty. Suit to reoover damages caused libelant's steamer by collision with afloat in tow of the Transfer No.5. \ lor Page «'rq.,jt and Robert D. Benedict, for claimant. J:BROWN,Dis.triotJudge. About 3 o'clock in tllemoming of June 9, 1891, the tide being ebb, asthesteam.tugrrransfer No.5 was proceeding eastward through the easterly channel Of' Hell Gate near the Astoria shore, having a C81-tioat loaded: with cars lashed to her ,port side and
: THE TRANSFER No.5.'
projecting ahead of her about 75 feet, the float came in collision with the libelant's steam-propeller Delaware coming westward, striking the latter upon her starboard aide about 20 feet from her stem, and inflicting considerable damage, to recover which the above libel was filed. There is some dispute as to the preciae.place of the collision; otherwise, there is less contradiction than usual in collision cases. I find the following facts: . (l) The collision was about abreast of, and not below, the small point on which a derrick was located, about half-way between the Astoria Point light, and was within, or along, the margin of ferry lind the eddy, which upon the ebb-tide makes up along the Astoria shore, extending out from 50 to 150 feet from the shore. (2) The tug had come up through the southerly channel by Blackwell's island and had passed quite near the[ Astoria ferry for the evident purpoSe of obtainillg the·benefitof the slack-water or upward current of the eddy near that shore, instead of going out in the channel where the , tide would be about four knots against her. (3) The Delaware '. was a steamer, about 126 feet long., and of 81 Jeet draught; she passed ,Negro point about two or three hundred· feet from' the' shore, .ahaped her course nearly due west so as to pass aboutthe:samediatallee from Hallet's. swung to port to godown the easterly channel in, her usual oourse ,stage of the tide, thatia, aboutone.thitd the distance across to Flood rock, or about 200 or 250 Jeet from the Astoria ahore. When!, she got straighteqed the east ohannel so as to hea:d:for the Blackwell's Island light, and being about abreast of'Hallees point,or a little below it, she,first saw the green light, and her vertical lights indicating a tow. a little on the Deland estimated their position to,be.a little below the Astoria {err,y within 150; feet of the shore, and judged them to be bound for the Harlemriver,.by way 'of Horn's hook and designing to cross the the Delcourse QOha Delaware 'to the westward.. On, aware gave Jl signal of two whistles, and without, waiting for any answer starboarded her wheel so as to haul a point to port,and head a point towards the AstOl'ia shore, which brought ;the tug's green .light a little on ·the Delaware's'starboard bow.; she received no immediate answer, and heard no whistle from the tug, until she had got about 700 feet below .Hallet's point, w.hen did hear a whistle or whistles from. the tug, .:then about 200, feet di$tant,and replied with two whistles, put her belm hard a-starboard, and reversed; but thev.essels weJe then too near to avoid collision. (4) At collision the tug and the Delaware were both heading somewhat towards the Astoria shore; the Delaware's bow was within the eddy so as to be carried round to the northward towards Hallet's point. and in that direction she rounded and afterwards went down river by the no'rtherly, or main ship channel. . (5) The red light of the Delaware was seen from the tug a little on her starboard bow before the former had rounded Hallet's point. The tug .thereupon gave her a signal of one whistle, which was not heard by the
400
FEDERAL REPORTER,
vol. 49.
Delaware; but after an interval somewhat longer than usual for answering, a signal of two whistles was heard from the Delaware, which waa understood by the tug as an answer,and which I find to be the signal given by her when abreast of Hallet's point or a little below it. The tug, which had previously reduced her speed to slow, thereupon reversed cuntil collisi9n, having given several whistles in the mean time. (6) When the Delaware gave her first signal of two whistles, the tug was not below or abreast of Astoria ferry, but within 100 or 200 feet of the small .point on which the derrick is situated, and within the eddy, or the IrlJ1rgin of the eddy; she was then heading a trifle off the Astoria shore, just enough to clear the derrick point, and consequently showed her green light to the Delaware; and afterwards, in order to keep close to the shore and in the eddy, she hauled to starboard under a port ' wheel flO as to show her red light shortly before the collision. , Upon these facts I find the Delaware to be alone in fa111t for the collision.The Delaware haduo right to assume that the, tug was going across to Horn's hook. She was not at all in the position in which the Delawl1re's witnesses now;say they thought her to be, but far nearer to the :Delawl1re. In the situation where the tug was, so near the Astoria 'shore and so much, above the Astoria ferry, she could DOt rationally be supPOJledto by Horn's hook; and the mere fact that she showed her green light was no indication!whatever that'she was designand' was in no way incompatible with her design to 'ing tog(j,that pursue' hel' usual course towards the Harlem' river by way of the east channehc In acting on the contrary assumption, if such is the fact, the ;Delawatencted at her own risk. was so near the shore that it was het right and duty to keep there on the starboard side. It was not tobesup!posed that the Delaware would attempt to run in between her and the: shore.- Even under the common rules, the Delaware, having the tug on her port hand and seeing the tug's green light, but very near the shcire, was required 'to "keep her course." Had she done so, there would have been no collision. The collision was caused solely by her change of course to port and running across the tug's bows and into her signal of. two whistles without waiting for any answer or perwater mission wdo so, and upon the false assumption which she made at her own ,. ' : The tug,is without fault, ,because as soon as apprised of the Delaware's movetorport under her starboard wheel. she reversed; and she could not ' otherwise have avoided collision.
APPOLOS ApPOLOS et al. (Circuit C01lh't Qf DECISION.
V.
BRADY. BRADY et aI.
tJ.
Eighth C1Ircuit. Febl"Uary 8,1892.)
L INDIAN TERRITORy-ADOPTION OJ' ARKANSAS STATUTES-FOLLOWING ARKANSAS
9.
In construing the statutes of Arkansas which were extended over the Indian Territory by Act Congo May 2, 1890, the federal courts will follow the decision of the supreme court of that state. In determining whether a given instrument is an assignment credito.rs, under the law of the Ind ian Territory as adopted from is, according to tbe settled rule of Arkansas decisions;whetber tion of the parties to divest the debtor of the title, and to make of the property to raise a fund to pay debts. for the benefit of Arkansas, the test it was the intenan appropriation
AsSIGNMENT FOR BENEFIT OF CREDITORS-CONSTRUCTION OF DEED.
8.
,
SAME.
Under this rule an instrument conveying property to a trustee, empowering him to take possession, sell at private sale, pay certain debts from the nroceeds, together with all expenses, and then to turn over the remaining property and proceeds to the grantor, is an assignment. since no equity of redemption is reserved. While it'is proper, in determining whether a given instrument is an assignment for benefit of creditors, or merely a mortgage, to show the intention of the parties by parol evidence of their situation, and of their acts in connection with the transaction, yet they themselves cannot be allowed, as against third persons, to testify as to what they had in mind when execnting the paper. In tb.eJndian Territory an assignment for the benefit of oreditors is void when the trustee is directed to sell at private sale, and when no bond is filed, as required by the Arkansas statute. ·
.. SAMI!-PABOL EVIDENOE.
II.
SAME-VALIDITY.
In Et:ror to the United States Court in the Indian Territory. J. B. Brady, D. C. BraclY, and H. Brady, commenced byattlJ.chtDent, against A. M. Means and J. S. B. Appolos, intervener. Verdict and judgment sustaining the attachment. Defendants bring error. Affirmed. W. ,0. Davis, for plaintiffs in error. A. Eddleman and A. a. Cruce, for defendants in error. Before CALDWELL, Circuit Judge, and SHIRAS, and THAYER, District Judges. SUIRAS, District Judge. The defendants in error brought an action at Iawin the United States court in the Indian Territory against A. M. Means to recover theamount due upon a draft drawn upon and accepted by him, gnd caused a writ of attachment to be issued and levied upon certain articles of personal property. The defendant below traversed the facts relied upon as grounds for the issuance of the attachment, and one J. S. R Appolos intervened in the cause for the purpose of asserting h,is rights to the attached property, based upon a written instrument execotedtohim as trustee,and which he averred was in fact a mortgage given to secure the claims of the firms named therein, to whom A. M. Means was indebted. The case went to trial before the court and jury upon these issues, with the result that the attachment was sustained, and the claim of the intervener was defeated on the ground that the in. strumentunder which he claimed the attached property was an assignV.49F.no.6-26