Before the Honorable SAMUEL R. BETTS, District Judge.

THE SHIP WARREN.

EXTRA PILOTAGE-DISABLED VESSEL.

The ship Warren had lost her rudder, bowsprit, foretop-gallant-mast, main-topgallantmast, and had rigged temporary substitutes. A pilot took charge of her 60 miles outside Sandy Hook, bearing E.S.E., and navigated her to within 15 miles of the Hook, when a steamboat took her in tow. The ship had on board some sixty passengers. Held, That the pilot was entitled to $100 over and above the regular off shore pilotage, on account of superadded responsibility, hazard and risk, resulting from the disabled condition of the vessel.

The facts appear in the opinion of the Court.

W. Q. Morton and H. Morton, for the Pilot.

Peter Y. Cutler and Charles II. Hunt, for the Ship.

BETTS, District Judge.-The libellant is a pilot following the business of piloting vessels to sea from the port of New York, and from sea into that port.

Whilst cruising in pursuit of vessels wanting a pilot on the 21st of March, 1851, he fell in with the ship Warren, sixty miles east-southeast off Sandy Hook, bound to this port. No flag was flying for a pilot, and no application was made to the libellant to come in aid of the ship; but the libellant boarded her, and offered his services as a pilot, and was accepted as such by the master.

U. S. District Court.-The Ship Warren.

The ship had then been over one hundred days at sea on her voyage from Glasgow to New York. Soon after leaving port she had encountered violent weather, and had lost thereby her rudder, bowsprit, foretopmast, foretop-gallant-mast, maintop-gallant-mast, and head of her maintop-mast. A temporary rudder had been rigged with hawsers, planks, &c., with which she was steered by tackles and guys geered to the wheel. A spar had been substituted for the bowsprit, which was broken short off, and a jury foretop-mast and topgallant-mast had been rigged. With these arrangements the ship could tack and wear and had been navigated over twenty-eight hundred miles.

The ship, after being taken charge of by the libellant, was navigated with some delay and difficulty to within about 15 miles of Sandy Hook, when the master employed a steamboat to tow her into port.

The libellant demands for his services ordinary off-shore pilotage to the amount of $52 44, and, in addition thereto, $100 as extra pilotage, compensation in the nature of salvage. The master of the ship was ready and offered to pay the ordinary off-shore pilotage, admitted to be $52 44 but refused to pay extra pilotage. That amount was duly tendered and paid into Court.

A libel was thereupon filed and process taken out against the ship in rem and in personam against the master to recover those demands. It is in proof that the ordinary voyage of a ship like the Warren, from Glasgow to New York, in the winter season, if in a seaworthy condition, would be forty days, and fifty days would be a long voyage.

It is also in proof that in her crippled state the ship would be in imminent danger in approaching land if the weather was unfavorable, and that there would be great difficulty and hazard in working her off the coast in a gale, and that additional delay, hazard and responsibility would be imposed on a pilot bringing her in, during ordinary weather, as she was found.

No contract being made between the master and the libellant, these considerations afford a proper ground for claiming extra compensation for services which are not merely those of pilotage.

In the case of the Dido in this Court, the Circuit Court on appeal allowed extra pilotage, and awarded $162 compensation for towing her into port by the pilot boat, because her rudder was lost and there was difficulty in steering her by sails.

The Dido was a smaller vessel and much nearer the port, and was brought to anchor within six or seven hours after the pilot took pos

session of her.

The Warren is a large ship, and the libellant was occupied a day and night in working her up to where the steamboat took her in tow. The general principle is that double pilotage is payable for conducting a vessel in a crippled state (2 Hagg. 178, note), or a remuneration equivalent to the extra service, including the distance, labor and hazard of the piloting service. (The Dido, U. S. Circuit Court, Dec. 1849, South. Dist. Ñ. Y.)

Double pilotage over mere pilot ground would not in my opinion

U. S. District Court.-J. Chapman, et al., v. The Steamboat Empire State. be a reasonable reward for the time and risk involved in those services. But I do not find in the proofs evidence of that extraordinary degree of skill or benefit bestowed by the libellant which should give him a right to a compensation of a special magnitude, nor even equal to what would have been readily paid by owners or insurers to a steam vessel for taking the ship in tow at that point.

I think, considering the defective condition of the ship, the season of the year, her proximity to the coast, and the distance she had to be navigated under circumstances of serious disadvantage, that the libellant is entitled to receive one hundred dollars in addition to the sum paid into Court.

Decree for $152 44, with taxed costs.

The above case was argued on appeal before the Hon. Samuel Nelson, Circuit Judge, and the Decree affirmed, Sept. 6, 1853.

U. S. District Court.

[Southern District of New York.]

Before the Honorable CHARLES A. INGERSOLL, District Judge.

THE STEAMBOAT EMPIRE STATE.

COLLISION IN HELL GATE-DUTY OF ONE VESSEL IN PASSING ANOTHER.

A steamboat having a vessel under canvass in full view is held "prima facie,” responsible for steering clear of her.

Under the circumstances, held that a steamboat was wrong in persisting in her course, under the expectation that the sailing vessel would change hers; the latter not having given any indication of her intending to do so, up to the last moment.

The material facts appear in the opinion.

W. Q. Morton and W. J. Hasket, for libellant.

D. Lord, for claimants.

INGERSOLL, D. J.-This libel is filed by the owners of the sloop New York against the steamboat Empire State, to recover damages which they have sustained by a collision between their sloop and the Empire State, which took place in the month of July, 1853. The colli

U. S. District Court.-J. Chapman, et. al., v. The Steamboat Empire State. sion occurred at a little before six o'clock in the afternoon, at a point in the East River a little to the east of Pot Rock, in Hell Gate, at about the middle of the river, between Negro Point on Ward's Island and Woolsey's Dock, near the bath-house on Long Island shore. The sloop was loaded with a cargo of coal on freight, and the collision, soon after it took place, caused her to sink with the coal on board. She was bound from New York up the Sound to New Haven. The steamer was also bound from New York up the Sound to Fall River. The guards of the steamboat came in contact with the shrouds of the sloop as she was passing her on the starboard side, which forced out her bolts, thereby causing an opening in the side of the sloop, by which she soon filled with water. The wind at the time was light and baffling, and was from the eastward of south, and was at the rate of from one to two knots. The tide was flood, at the rate of from four to seven knots. At the time the sloop was heading with the tide from a place nearly opposite Negro Point to a point near Woolsey's Dock, on the Long Island shore. From the time the boat was opposite Hallet's Point the sloop had not altered her course. From Negro Point the tide sets over to Woolsey's Dock. Often there will be two contrary whirls of the tide near the place where the collision happened. When the two vessels came together, the sloop was not far from the middle of the true tide. The sloop, when she was approaching near to Negro Point, was seen by the captain and pilot of the boat, before the boat passed Hallet's Point. The sloop had a little steerage way on her. From the time the sloop was first seen by the boat, she continued to keep her course. When the sloop was first seen by those having charge of the management of the boat, they assumed that she could bear away after passing Negro Point, and hug the shore of Ward's Island. Whether she could or not, in season to have got out of the way of the steamboat, with the wind light and battling as it was, and the tide strong as it was, does not satisfactorily appear. She did not, however, hug the shore of Ward's Island, but kept on without altering her course in the true tide. When the pilot of the boat first saw the sloop, before the boat passed Hallet's Point, he made up his mind to pass the sloop on her starboard side, and directed the movements of the boat with that view. In passing Hallet's Point, the boat was slowed, and approached the sloop nearly in her wake, toward her starboard side. As the boat came near the sloop, the engine of the boat was stopped. The headway which she had on brought her up broadside to the sloop. The bells of the boat were then rung to go ahead, and in passing the sloop the boat crowded the sloop; her guards pressed against the standing rigging of the sloop with such force that the injury was occasioned which caused her to sink. The captain of the boat thought he could pass the sloop without touching her, and supposed at the time that he had so done. At the time the bells of the boat were rung to go ahead, the boat was drifting with the tide towards the shore, and there was danger that she would have gone on shore if she had continued to drift with the tide. The boat could have passed

U. S. District Court.-J. Chapman, et. al., v. The Steamboat Empire State. the sloop in safety on her larboard side, if the captain of the boat had directed the movements of the boat with that view. He did not, however, so direct her movements, supposing that the sloop would hug the shore of Ward's Island, though the captain of the sloop gave no indications that he would do so. The ordinary course of navigation for sailing vessels in going up the Sound, with the wind from a point east of south, was, after passing Negro Point, to bear away some if they could.

The captain of the sloop did not see the boat until the boat had passed Hallet's Point and was approaching the sloop. The sloop was in no fault, unless keeping her course is to be considered as a fault.

In

In the case of the Jamaica steam ferry boat, (New York Legal Observer, vol. II, p. 242,) the District Judge, in giving his opinion, says: "A steamboat having had a sailing vessel in full view, time enough to have avoided her, is to be held responsible prima facie for steering clear, without requiring the latter to do anything." the case under consideration, the steamboat had the sloop in full view before the boat came up to Hallet's Point, and in time to have avoided her, by pursuing a different course, and the sloop did nothing but keep her course.

In the case of the Naugatuck Transportation Company vs. The Steamboat Rhode Island, 7 N. Y. L. O. 39, tried before Judge Nelson, which was a case of collision happening near the place where this collision occurred, the Judge, in giving his opinion, remarks as follow: "Upon the evidence, I should feel bound to hold any vessel responsible for a collision that occurred in attempting to pass another, while struggling in this dangerous strait, there being no fault on the part of the leading vessel."

It is claimed on the part of the Empire State, that after she came near the sloop she could not with safety back, or remain with her engine motionless, and that the only course she could pursue with safety to herself was to go ahead. The remarks of Judge Nelson, in the case of the Rhode Island, are a sufficient answer to this claim. He says:-"The pretext set up for exposing the Naugatuck to the hazard is, that the slowing or stopping the Rhode Island after she had passed Flood Rock would greatly endanger her own safety, and the safety of the lives of the passengers. The answer is, if this be admitted, it was her own fault that she was brought into the dilemma. The Naugatuck was seen in time to have avoided it. Neglecting to avoid it subjects the Rhode Island to all the consequences that followed." And as there was no fault on the part of the sloop in this case-keeping her course while close-hauled not being considered a fault-the Empire State must be helden responsible for all the consequences which followed the collision.

The order of the Court, therefore, is, that the libellents recover the damage which they have sustained by the collision, and that it be referred to a commission to ascertain and report what that damage is.