Schenck v. Steamboat Fremont.

unnecessary, and apparently without excuse. That it was a principal cause of the collision is clear beyond controversy. But it is insisted that the Switzerland was also in fault in not coming down in the channel of the river, that being the proper place for a descending boat, and that this error contributed to the collision which occurred. In the consideration of this part of the case, I shall not advert to the evidence in relation to the signals given by these boats. This evidence is involved in such obscurity and doubt by the contradictory statements of the witnesses, that it is impossible to arrive at any satisfactory conclusion as to the facts. And if it is clear that the pilot of the Switzerland committed a culpable error in putting his boat in the wrong place, it is not, perhaps, material to ascertain what signals were given, or the order in which they were made. By the well-understood usages of the river, applicable, certainly, wherever the river is wide and affords a sufficient depth of water for its entire width, the place of a descending boat is in the channel, or that part where the current is the strongest. This is the rule sanctioned by the supervising inspectors, and is, in itself, reasonable. If, then, it is admitted that the Switzerland gave the first signal, indicating the purpose of the pilot to go down on the Kentucky side, it would seem, under the circumstances of this case, that he was asking what he had no right to claim. The width of the river opposite Vevay Island has already been stated, as also the fact that there was sufficient depth of water anywhere between the island and the Kentucky shore. The evidence is that the channel is about one-third or one-fourth of the width of the river from the Kentucky shore. For about half the distance down the island the channel would be from one hundred to one hundred and thirty yards out from that shore, and toward the lower end of the island, where probably the collision took place, from one hundred and thirty to one hundred and sixty yards out. Now, it is beyond all controversy that at the time of the collision the distance of the boats from the Kentucky shore did not exceed thirty yards.

Schenck v. Steamboat Fremont.

Without noticing the other testimony as to this point, there is one fact which seems to settle it beyond doubt. That fact is, that immediately after the collision, and as the result of the striking of the bow of the Switzerland against the Fremont, the latter boat was forced on to the shore, or so near to it that some of the crew jumped off without the aid of a plank. This could not have happened on any other supposition than that the boats were in close proximity to the shore. Several of the libellants' witnesses state the distance at from thirty to fifty yards, while those on the Fremont put it at twentyfive or thirty yards.

It results from this view, that when the collision occurred the Switzerland was about one hundred yards from the proper place of a descending boat. And it seems clear that this was such an essential departure from the settled rules of navigation as to justify the inference that there was a want of due vigilance, care, and skill on the part of those having the management of this boat. It is not excused by the fact that there was a barge in tow on the larboard side, as the evidence is that although it would be convenient to go down close to the Kentucky shore, to afford more room for rounding to at the Vevay wharf, there is no positive necessity for it, and it does not form an exception to the known and settled usages and rules of navigation.

There is another aspect of this case to which I will very briefly refer, which, in my judgment, affords a ground for the inference that there was a want of caution and care in the management of these boats which properly subjects both to liability for the injury sustained by this collision. It has been before remarked that the evidence in relation to the signals given is so conflicting and unsatisfactory as to preclude the possibility of knowing the truth in regard to them. After a very critical examination of the evidence, I confess I have not been able to reach any conclusion on this subject. There are, however, some general views which may be pertinently stated in reference to this

Schenck v. Steamboat Fremont.

part of the case, and from which the inference of mutual culpability in these boats may be fairly deduced. And, in the first place, I may remark that no omission of any act necessary to avoid a collision is justifiable. Notwithstanding the almost inextricable confusion in which the evidence has placed this case in reference to the signals, there are still grounds for the conclusion, either that all the signals given were not heard, or, if heard, were not understood by the pilots, respectively, of these boats. It was, then, obviously the duty of both, having reasonable grounds even for a suspicion that there was any misunderstanding or misconception on this subject, at once to have stopped their engines, or, if the case required it, to have backed, until they should know with certainty the safe course to pursue. These precautions were not observed by either of these pilots. If, as the libellants claim, the Fremont improperly started across the river, with the apparent purpose of crossing in front of the Switzerland, the pilot should instantly have stopped and backed. The distance then separating the two boats was such that this measure would most certainly have avoided a collision. The pilot of the Fremont, having reason to believe his signals were not heard, or not understood, and seeing the other boat persisting in her course, should also have stopped and backed. Now, although it is in proof that both boats did reverse their engines, it was when they were so near as to render a collision unavoidable.

In the argument, it was insisted by the proctor for the respondents that the doctrine of the maritime law, which recognizes the rule of a division of the damages in a case of mutual fault, had not been authoritatively sanctioned by the courts of admiralty in this country. It is, however, well known that this principle has prevailed for many years in the courts of the Eastern districts of the United States. It has not, till recently, been distinctly affirmed by the Supreme Court of the United States. In the case of The Schooner Catharine v. Dickinson et al., 17 Howard, 170, the

United States v. Smith.

court say: "Under the circumstances usually attending these disasters, we think the rule dividing the loss the most just and equitable, and as best tending to induce care and vigilance in navigation.

But, without taking more time in presenting my views of this case, I will state that on the grounds indicated, it seems to me, it is one of mixed or mutual fault, justifying an equal apportionment of the damages susfained between the two boats, and such is the decree in this case.

(DISTRICT COURT.)

THE UNITED STATES V. CHARLES K. SMITH.

In a suit by the United States to recover a balance due on the books of the treasury department, the defendant can not give in evidence, as a set-off, a claim against the government, which has not previously been presented to, and disallowed by, the proper accounting officer, without proving that it was not before in his power to produce the voucher for such claim, and that he was prevented from exhibiting it, "by absence from the United States, or some unavoidable accident." The rejection of an account or claim against the United States, by an accounting officer of the government, authorized by a special act of Congress to adjust the same on equitable principles, does not preclude the defendant, when sued, from setting up such rejected claim or account as a set-off.

There is no authority, either in the executive or judicial department of the government, to allow a claim against the United States, which is prohibited by law.

The legislation of Congress prohibits any extra compensation to an officer for services performed, properly pertaining by law to his office. The defendant, as secretary of Minnesota Territory, having a fixed salary as such, was not entitled to claim, in addition thereto, the salary of governor, during the absence of that officer; as the act organizing the Territory made it the duty of thesecretary, "in case of the death, removal, resignation, or necessary absence of the governor," to discharge the duties of that office, without any provision for an increase of compensation to the secretary.

United States v. Smith.

The proviso in the second section of the act of September 30, 1850, expressly prohibits the allowance of double salaries in all cases.

The act organizing the Territory of Minnesota, made the secretary the disbursing officer of the territorial government, and he can not claim a commission on such disbursements.

Where an officer, with a salary payable quarterly, is appointed for four years, "unless sooner removed by the President," and a removal is made during a current quarter, he is not entitled to his salary to the end of the quarter.

By the organic act of Minnesota Territory, the general government became pledged to defray "the expenses of the legislative assembly, the printing of the laws, and other incidental expenses;" and the defendant is entitled to a credit for services rendered, or expenditures made, within the fair scope and meaning of these terms, so far as they did not pertain to the office of secretary of the Territory; but the words "other incidental expenses must be restricted to such expenses as were incidental to the legislative assembly and the printing of the laws.

The second section of the act of August 29, 1842, which applies to Territories, then or afterward to be organized, provides that no act of the legislature of a Territory shall be deemed of sufficient authority for a payment by the national treasury, and requires proper vouchers and proof of the same to be exhibited to the accounting officers of the proper department.

In a judicial case involving the accounts of a former secretary of a Territory, in which credits are claimed which have been rejected by the treasury department, the fact that such credits have not been embraced in the estimate required by the organic act of the Territory, to be previously made by the secretary of the treasury, does not preclude their allowance by a jury, if not objectionable on other grounds.

D. O. Morton, District Attorney, for the United States.

Corwin & Probasco, Judge Johnson, and Mr. Spooner, for defendant.

CHARGE OF THE COURT:

This suit is brought on the official bond of the defendant, as late secretary of the Territory of Minnesota, dated March 31, 1849. A balance of $4,078.41 is claimed as due to the United States; and treasury statements are in evi