8'ltpra. And if it be true, as suggested, that the selfishness of men is such that juries will declare any difference in rates to be unreasonable that operates to the disadvantage, or is supposed to operate to the disadvantage, of themselves or the community to which they belong, that is obviously a criticism of the law, and merely proves that questions of fact such as were tried in this case, which certainly demand for their solution special knowledge, and ahove all impartial consideration, 01lP-J.t to be 811 hllJitted to some other tribunal than a jury of the locality \V 11ere the alleged grievances exist. The motions are overruled.
(lJistrirt Court, E. lJ. Michigan.
A steam·barge, cuming down Lake Huron with three schooners in tow, allowed herself to approach so near a lee shore that. in endeavoring to turn about, the rear vessels drifted to leeward, and were stranded. Held, the propeller was in fault for not keeping further out into the lake. (Syllab'.l8 by tlie Court.)
Tow AGE-STRANDI1W Tuw.
In Admiralty. These were libels for negligence in the loss of the schooners Acontias and A. H. Moss. The facts of the case were substantially as follows: On the 28th of October, 1887, at about 7 :30 P. M., the steam-barge Elfinmere left Cheboygan, Mich., bound for Toledo, with the schooners Nellie Mason, A. H. Moss, and Acontias in tow, in the order named. The wind was then light, and the weather somewhat hazy. Towards midnight the wind shifted to the north-east, and began to blow hea vily; the sea inereased, and snow fell in flurries during the night. The tow passed Presque Isle light about 2 o'clock in the morning, at a distance variously estimated at from a quarter of a mile to a mile and a half. Shortly after passing this light, land was dimly seen off the starboard bow. The lead began to indicate shoaler water, and the steamer's wheel was put hard starboard, with the intention of heading the tow into the wind, and holding the schooners until daylight, or until the storm abated. In so doing, however, the Acontias and the l\Ioss took the ground, the line between the first and second schooners was either cut or parted, and the Acontias and Moss went ashore, and became a total loss. The court was assisted upon the argument by Commander Elmer, of the United States Kavy, and Capt. Joseph Nicholson, of the Lake Marine. H. H. Swan and F. H. Canfield, for libelants. J. W. Finney and H. C. Wisner, for claimant.
BROWN, J., (orally.) I have felt no particular doubt as to what the result of this case should be, but on account of the large interests involved, and because I thought it possible there might be some question
of s,etullf\!:mhip u.p(m which Jsbpu1d be. glad taka their· opinion, l ha.ve called to myassistancethe.experienced gentlen1enwhohave kindly' cOWlented my., Weare quite agreed as to the proper disposition to be qJadeof the case. ' : We, think the libelants make'!J. prima facie case in showing that the :IJ:lfinnwre was a new, large, and powerful steamer, perfectly competent to handle the tow that she had taken in'chargej that she came down the lakes from the Straits of Mackjnaw orfrom the ordinary course, nothing unusual occurring untn they reached Pre!"que Isle. On the way down, and during the evening,the ,vind, which appears to have been a light breeze from the north or north· west, settled down into a stiff gale from the north-east; the weather became hazy, and snow began to fall so thick as at times to obscure the lights. They seem, however, to have passed Presque Isle light at a convenif'nt and safe distance, we will say from a mile to a mile arid a half, and while running about six miles an hour, and "as shown by the charts, about six miles distant from abreast of the light, two of her schooners were found ashore. This six miles she covered in an hour, or somewhat We think this statement makes lj. p:liima facie case of in the conduct of the tow, and throws upon the steam-barge the duty of explanation. The defense in this case-and it h"s been elabomted with a great deal of ingenuity-is that, after passing .'resque Isle light, the lights of the stern vessel, the Ac:ontias, disappeared, indicating to the master of the steam-barge that she had len tha,! the towclinehad been broken, cut, or thrown off, and that there was great danger that the remainder of the tow would he lost, unless, extra9rdinary measures were taken to keep the vessels ofl'the shore;. al1d that,' ,vith that in view, the master undertook to make the lee ofFalse Presque Isle, and get into the harbor under the island. . ' There are three bordinat,e', questions arising in this connection: (1) Whether this course was by reason. of the apparent loss of the Acontias; (2) whether it was pruqent to attempt to make False Presque prevailed that night j (3) whether the Isle harbor in the weather attempt in a prudent ,YVlj.y. In regard tothe first of the connection between the loss of tlle Acontias and the taking of this course, I have 8till some doubt. At first it seemed ,to me quite 'clear that it was a defense that had its origin in the imilgination of rather than the facts of the casej but there is undou btedl}' some reasoll saying that the master became alarmed light, and his mind that at the disappearance of some precautions were necessary, but whether this be so or not we do not regp,rd as very material. There can be question that they pa&sed within sight of the range lights of Pre$que Isle,which are conand, as the tow mllst at that siderably to the westward of the time have been three miles and a halt' t6 four miles'froin these range lights, it is not, as it seems to us, that the cre)vs of the tow may have seen the land j that is, that the snow may have lifted so much as to have enabled them to see the shore. It does not seem to us that their
THE ELFIN MERE.
testimony in this connection is at all incredible, and we think they may have seen the land for some time before they struck. But the important questions are, was the master justified in attempting to seek this harbor that night? and did he do it in a proper manner? With regard to the first question we have great doubt whether he was justified in attempting to enteran unlighted harbor ina snow-storm, and in the night, when his only guide must have been the lights at the entrance of the harbor, which in that state of the weather it was difficult, if not impossible, for him. to see at the ordinary distance. \Ve have very grave doubt whether prudence should not have dictated to him to keep out into the lake upon a course south-east by enst, half a point or a point further to the southward than he did,-a course which would have carried him clear of the land. As to the question whether he used proper precautions in attempting to make False Presque Isle harbor, we have no doubt whatever. We think there was gross negligence in taking the course he did after passing Presque Isle light. Whether he took a course which pointed directly to the shore, as claimed by the libelants, and which ultimately led him so near the shore as to entail the loss of his two rear vessels, we have considerable doubt. We can hardly believe that he would take a course so far to the southward as that, but it is very evident that he took a course which soon carried him within sight of the shore, and when within sight of it, it was obviously too late to do anything, because, whether he turned sharp around and headed into the wind, or made a slow turn, in either case the tow would have tailed so far to the shore that the rear vessel would inevitably have got aground before he could get them off. If he had made up his mind to make False Presque Isle harbor that night, it seems to us that he should have kept on a course that would have kept him out of sight ofland, making ample allowance for leeway, and should, by gauging the distance upon the chart with his mileage per hour. have continued on that course long enough to have gotten well below the island, and then to have ported and come around in the lee of the land. If he were steaming at the time at the rate of six miles an hour, and had continued upon a course south-east or south-east by east for two hours and a half or three hours, he might then, with probable safety, have ported and come around, and found smooth water under the lee of the land. But the course that he did take was altogether, as it seems to us, too near the land, and was one which could hardly fail, under the circumstances existing that night,-the thickness of the weather, and the direction and velocity of the wind,-to have taken the tow ashore. I have not changed the opinion at which I arrived last winter when the testimony was taken: that a grave fault was committed by the propeller in taking a course too near the shore. We think it was her duty beyond all question either to have headed into the wind, in the first place, or to have kept so far from the shore that she could get her tow into the wind without danger of the rear schooner's tailing and drifting upon the shore. A decree will be entered for the libelants, with the usual reference to a commissioner to assess the damages.
P., M:. & O. Ry.
(Circuit Court, W': D. Wisconsin.
In Equity. Lamb & Jones, Ewing & Southard, and J. R. Doolittle, for complainant. Pinney & Sanborn, for defendant.
HARLAN, Justice. 'The plaintjff recovered in this rourt, January 31, 1887, a judgment against the Chicago, Portage & Superior Railway CUlllpany for the sum of$205,883.19, damages and costs. Execution having been issued and returned unsatisfied, this suit was instituted for the purpose of reaching and subjecting to the satisfaction of that judg: "nt the same lands as are in controversy in the suit in this court just determined, of Trust Co. v. Railway Co., ante, 143, and all notes, bonds, or moneys arising from sales, rents, stumpages, license charges, or proceeds of .!ale of such lands, in the hands either of the corporation last above named or of the judgment debtor. The allegations of the present bill are substantially the same as in the bill .filed in the other suit. For the reasons stated in the opinion delivered in the suit brought by the Farmers' Loan & Trust Company, the court holds that the Chicflgo, Portage & Superior Railway Company has no interest in said lands which can be subjected in satisfaction of the above judgment against it. The demurrer is sustained, and the bill must be dismissed, with costs to the defendant. It is so ordered.
SAME V. FITCH. SAME V. VAN SA'\IE SAME v. HOWLAND. SAME V. WHl'l'J£ et al.
(Circuit Court, N. D. New YorT..
question presented in Hayes v. No distinction was made against any of these defendants upon the argnment or in the printed briefs. There was an implied understanding, at least, that the cases should stand or fall together. It is therefore unnecessary to file a separate <1ecision in each case. In some of these cases the facts are stronger for the defendant than in the Shoemaker Case. In the case of Hayes v. they are not so strong; but after a careful examination of the entire testimony I am con vinced that all the cases are within the principle of Whitney v. Butler, 118 U. S. 655, 7 Sup. Ct. Rep. 61, and that in each a judgment must be entered for the dt!fendant.
Shoemaker, ante, 319.
J. These causes involve the
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