THE A. W. THOlllPSON.
venient, require less time and less pressure, to use cement in forming them. The powder itself, however, if slightly moistened, or sufficiently compressed, will fill the role of a cement, as Dr. Sloane states. What the complainants discovered and secured by their patent is the use of artificially compressed lumps of bicarbonate of soda or other alkali in themanner and for the purpose described in the claim. What the respondent has done is an infringement upon the right thus secured. A decree will therefore be entered sustaining the bill.
(District Court, S. D. New York.
COLI,TSTON-STEAM AND SATL-·TACKTNH.
June 5, 1889.)
Where a steamer has shaped her course to keep out of the way of a sailing' vessel on the wind, the latter is bound to beat out her tack.
The steamer I.. going west in Long Island sound, and rounding Throgg's point. saw the schooner A. ·W. T. beating west on her starboard tack towards the south-westward, and when within a half or three quarters of a mile of her shaped her course to pass astern of the schooner. The latter soon after tacked to the northward across the steamer's course, and .collision ensued. There was nothing to prevent the schooner's continuing her former course at least a quarter of a mile further to the southward. HeLd, that the schooner was in fault for not beating out her tack. as in effect required by rule 24. The steamer was also in fault for not observing her tacking, and not keeping out of the way, as she might !lave done, notwithstanding the schooner's fault.
BY WRONGFUL ACT-CONTRIBUTORY NEGLIGENCE.
The captain was personally in charge of the navigation of the schooner, and was killed by the collision, In an action brought by his administratrix for loss of life under the statute of the state of New York authorizing suit where the deceased might have maintained an action if living, lteld, that whether or not a maritime cause of action. cognizable in an admiralty court, could be created by state legislation, this action would not lie, except under the conditions imposed by the statnte; and inasmuch as by the state law con· tributory negligence would bar the action in the state courts, the libel for the captain's death could not be maintained in admiralty.
In Admiralty. Edwin G. Da1J'is, for libelant. Butler,Stillman & Hubbard, and Wm. Mynderse, for claimants.
BROWN, J. On the 19th of March, 1887, as the libelant's schoonerA. W. Thompson was beating to the westward in Long IBland sound, against the wind from W. N. W., she was run into by the steam-boat Idlewild, also going west, about a mile this side of Throgg's Neck, off Whitestone docks, and about a half a mile from shore. The vessels met nearly at right angles. The master, who was at the wheel, was killed by the faIling spars, and his body picked up from the water. The above
suits are brought by his administratrix to recover in one suit, under the statute of this state, for the loss of life, and in the other for the loss and damages to the vessel and cargo, on the ground that the collision was the fault of the Idlewild. The Idlewild was on her accustomed route, and there is no reason to su ppose that she was materially oft' her course. This fixes with tolerable certainty the distance of the place of collision from shore, and both sides agree that it was abreast of Whitestone docks. As the steamer was going at the rate of about 15 knots with the tide, it could not have been n;ore than from 4 to 5 minutes from the time when the schooner was first seen when the steamer was rounding Throgg's Neck, until the collision. \Vhen first seen she was sailing S. W. towards the Long Island shore on her starboard tack. After the Idlewild had got around Throgg's Neck, and headed westerly on her usual course, she had the schooner on her port hand, going southward, and further away from the line of the Idlewild's course. The situation was, therefore, one of absolute freedom from danger, as the steamer's course took her astern of the schooner. Thereafter the pilot's attention was for a short time diverted from the schooner, and the second pilot was engaged in making up the log; so that when their attention was next directed to the schooner, it was observed that she had come about upon her port tack, and was sailing to the northward directly across the steamer's course, about 500 feet distant, and about two points on the steamer's port bow. The steamer's engines were immediately reversed full speed, and her helm put hard a-starboard, to endeavor to go under her stern, hut collisioll ensued. There was abundant water for the schooner for more than a quarter of a mile further to the southward. There were no other vessels in the way, and there were no circumstances that within rule 24 (new article 23) interfered with her continuing on herprevions starboard tack. Her change to the port tack must have been made withill less than three minutes of the collision, and within less than 300 yards of the steamer's course, and after the steamer's course was shaped so as to clear her. Such a change was a plain violation of the spirit of old rules 20 and 23, (new articles 17 and 22,) and of the unquestioned rule that requires sailing vessels in the near presence of other vessels bound to keep out of the way I to beat out their tacks, when the}'e are no exigencies of navigation to prevent it. The Emp'ire State, 1 Ben. 57, 61; The W. C. Redfield, 4 Ben. 227, 229; The Clara Davidson, 24 Feel. Rep. 763; The Bridgeport, 6 Blatchf. 3, The R. R. H-iggins, 1 Low. 290; The Isle of Pines, 24 Fed. Rep. 498, affirmed on appeal. The Idlewild also must be held to blame for not maintaining a proper lookout. Had this been done the schooner would have been observed when she first tacked, and the steamer would have had no difficulty in keeping out of the way by going either to the northward or to the southward of her. This fact, however, does not free the schooner from blame. There were no other vessels that required watching. The steamer had a right to assume that the schooner would keep on her former starboard tack. There was no danger from her whatever so long as she preserved that course. The. steamer was thereby misled as to the schooner's intentions. Wben the latter tacked, she adopted a maneuver
THE A. W.
that was certain to result in collision, unless the steamer at once adopted new measures to avoid it. Both, therefore, .were guilty of fault directly contributing to the co1lision,-the schooner in not beating out her tack, and thereby misleading the steamer; the steamer, for not maintaining a constant lookout, which the law and the policy of navigation require shall be rigidly enforced. For the damages to vessel and cargo the libelant is, therefore, entitled to half damages. As respects the. claim for the loss of life, I do not find it necessary to consider the question reserved in the cases of The Harrisburg, 119 U. S. 199,7 Sup. Ct. Rep. 140, and The Alaska, 130 U. S. 201, 9 Sup. Ct. Rep. 461,-whether a libel in rem will lie for a loss of life through negligence under a statute like that of New York, which gives an action for damages not exceeding $5,000 and interest, to be recovered by the personal representatives, in a case like this, where the negligence and the death arose upon navigable waters within the limits of the state. Nor is it necessary to consider whether an act of negligence which by the maritime law of this country, as declared by the supreme court, constitutes no maritime tort as respects the libelant or any survivors of the deceased, can under the United States constitution be made a maritime tort cognizable in the admiralty by state legislation; or whether, if an action in personam Wfre maintainable in the admiralty under such statutes, on the ground that the negligence was thereby made a maritime tort as respects the libelant, the remedy for such a tort in the courts of admiralty might not be in rem also, in accordance with the ordinary course of remedies under the maritime law of this country. Holmes v. Railway Co., .5 Fed. Rep. 81; The Garland, Id. 924; The Clatsop Chief, 8 Fed. Rep. 163; The E. B. IVard, 17 Fed. Rep. 456; The Mrlnhassei, 18 Fed. Rep. 920; 'l'he Sylum Glen,\:) Fed. Rep. 335; The Cephalonia, 29 Fed. Rep. 334; Butler v. Steam-Ship Co., 130 U S. --, 9 Sup. Ct. Rep. 612, 619. The action rests entirely upon the state statute. Any defense, therefore, that would bar recovery in the state courts, with reference to which the statute must be deemed enacted, must be held equally good in the admiralty. Besides this, the very language of the New York statute contains the proviso that the wrongful act, neglect, or default shall be "such as would, if death had not ensued, have entitled the party injured to maintain an actiOll to recover damages in respect thereof." Laws N. Y. 1847, p. 575; c. 450; 4 Edm. St. 526; 7 Edm. St. 591. As the action rests upon the statute it cannot lie except under the conditions which the statute .imposes. The Edith, 94 U. S ..518. The well-settled law of this state at the time the statute was passed, and now, forbids a recovery of damages by a plaintiff chargeable with contributory negligence. In this case the master was at the wheel,und in command. He was perSOllally chargeable with the negligence for which I have held the schooner liable. It therefore. follows that the action for loss of life must be dismissed. Decrees may be taken accordingly.
FEDERAL REPORTER, vol. 39. CHURCHILL et al. v. THE AI.TENOWER. ADAM et al. v. THE ONTARIO.
(Circuit Court, E. D. Louisiana. June 13,1889.
COJ,J,TSION-STEAMER AND VESSEL AT ANCHOR.
The bark O. was anchored III the South pass of the Mississippi river.' Miont mile above the jetties. close to the eastern bank. in the usual and proper place for vessels anchoring in the pass. She lay with helm lashed aud bare masts. The steamer A. was coming down the pass in the middle of the channel, and when one-fomth of a mile above the O. the A's steering apparatus became deranged. because a nut worked off from one of the buckle screws attaching the starboard rudder chain. She became unmanageable and sheered towards the O. Her engines were reversed. and she was backed. but her headway was not lessened. and she struck the O's bow. causing damage to both vessels. The A. was furnished with an additional and after-steering gear, ready to be used, and taking but a moment to be put in gear for use. provided a man was standing by to put in the necessary pin. On this occasion no one was by, and, although it was connected before the collision, it was too late to have any effect. Held, that the A. was in fault. because her steering gear was not properly secured, watched. or inspected, and because she did not keep her after steering gear in readiness for instant use; and that the O. was not in fault.
SAME-DUTY OF VESSEL AT ANCHOR.
As the A. approached the O. the master and others on board the A. called out to the 0. to payout her cable so as to drop astern, out of the way. but there was no watch on the O. to take such steps. The A. was nearly straight with the 0" and the A's pilot. who was in charge of her navigation, gave no order to the O. to payout cable, but was sailing the A. to pass the O. as she lay, and on the supposition that the latter should not move. Under the evidence it was doubtful whether dropping astern by the O. would have avoided'the collision, or would have made it more certain and Held that. although the O. was in fault in not having an anchol' watch, thlS did not con tribute to the collision.
In Admiralty·. James JfcConnell, for libelants. Joseph J\ Hornor, for claimants and cross-libelants. Before LAMAR, Justice, and PARDEE, J. FINDIN CiS OF FACT. PER CURIAM. These causes came on to be heard on the libel, crosslibel, answers, record, and evidence, and were argued; whereupon the court doth find the following facts: FiTst: The Ontario, a British bark of - - - tons burden, and 170 feet in length, on her first voyage to the port of New Orleans, being in ballast and seeking a cargo, arrived at the mouth of the South pass of the Mississippi river on Friday, February 11, 1881; was towed in through the jetties and into South pass under the guidance of a bar pilot, and was by him placed and anchored, with a single anchor and chain, in said pass, about a mile above the jetties, close to, and broadside with, the eastern bank, not less than 500 yards above the light-house, and below the island at the head of the pass, in the usual and proper place for all vessels anchoring in the pass, and as required by the rules