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The Steamer Queen.

head and head with the steamer in a line. This is also the testimony of the pilot of the steamer, who says that by porting the helm of the steamer when he first saw the schooner he swung the steamer off about two points and brought the schooner about two points on the port bow of the steamer. The chief officer of the steamer says that when he first saw the steamer (and it was he who reported her), she bore right ahead and, if any thing, on his port bow. The defence of the steamer is put on the point that, after the steamer had ported so as to bring the schooner two points on the port bow of the steamer, the schooner suddenly starboarded ber helm at so short a distance from the steamer that the collision could not be then avoided by the steamer, and that it was the fault wholly of the schooner. The pilot of the steamer says that the schooner starboarded at a distance of six hundred feet from the steamer, and that he immediately ordered the wheel of the steamer to be put hard a-port and her engine to be stopped and backed at full speed. As a reason for this order to hard a-port the pilot of the steamer says that after he first ported he gave an order to steady, but that, before that order was obeyed, he saw that the schooner had starboarded and gave the order to hard a-port; that there was not time to put the helm of the steamer to starboard ; and that he does not think the order to hard a-port affected the motion of the steamer at all before the collision. The master of the steamer says that the order to hard a-port and stop was given when the schooner was about one thousand feet off from the steamer. The first officer of the steamer says that the schooner was six hundred feet off when she starboarded. Alltree, the second mate of the steamer, says that when the order to hard a-port was given on the steamer the schooner was six hundred or nine hundred feet off. Whalen, a seaman who was at the wheel of the steamer, says that the first order was steady port, which means port a little; that he

The Steamer Queen.

changed the steamer's course by porting a point and a half; that, some time after the order to port was given, an order came to hard a-port; that, after the hard a-port, the schooner made her appearance on the port bow of the steamer, heading across the bow of the steamer ; that on the first order to port he put the wheel over ten degrees of the tell-tale, hard a-port being fortyfive degrees, and held it there until he was told to steady ; that when the order to steady came he eased the wheel back to midships ; that. the next order was hard a-port as hard as they could give it to her; that they put the wheel right hard across ; that they had held the helm hard a-port for from five to eight minutes, as near as he can recollect, before the collision ; and that they held the wheel hard to port to the time of the collision. The master of the schooner, who was at her wheel, says that he made no change of his wheel on seeing the steamer, or at any time up to the collision; and that he saw the steamer a half a mile or a mile off. He also says, that the steamer struck the schooner about fifteen to twenty feet forward of the main rigging on the starboard side, angling aft.

The schooner's position and course being seen by, and known by, the steamer, and it being the duty of the steamer to keep out of her way, and the duty of the schooner to keep her course, the burden of proof is on the steamer to show that the schooner did not keep her course, and that, if she changed her course, she did so at such a time and under such circumstances that the steamer could not keep out of her way. For if, after the schooner starboarded her helm, as alleged, she and the steamer were then proceeding in such direction as to involve risk of collision, it was as much the duty of the steamer then to keep out of her way as it was before the schooner starboarded. On all the evidence I am unable to resist the conclusion that the steamer has failed to establish that she could not have kept out of the way of

The Steamer Queen.

the schooner. She struck the schooner on the starboard side, about amidships, angling aft. It is manifest from this that a very slight starboarding of her helm on the part of the steamer would have caused her to clear the schooner, even if the schooner did, as alleged, starboard her helm and change her course. Assuming that the schooner did so, the steamer, by her own showing, persisted in porting from a midships helm to hard a-port, after the schooner starboarded. She thus threw herself directly toward and not away from the schooner. The testimony of the pilot of the steamer that he could not have starboarded when the schooner did so, is wholly contradicted by the testimony of Whalen, who was at the wheel of the steamer, and who shows that when the schooner starboarded and the order was given to hard a. port the wheel of the steamer, her wheel was amidships. It was therefore as easy to have starboarded the helm of the steamer at that time as to have ported it hard a-port. The error of the steamer was in then porting. The schooner, when she starboarded, if she did so, was far enough off, six hundred to one thousand feet, as shown by Whalen, to allow the steamer's wheel to be put from midships to hard a-port and remain there for some time before the collision. The same time would have sufficed to starboard the wheel enough to avoid the collision. Even if the steamer had not then starboarded, but had simply stopped and reversed without porting or starboarding, there would undoubtedly have been no collision. A steamer, when there is risk of collision, is required to stop and reverse. There is no obligation upon her to port rather than starboard, or to starboard rather than port her wheel, unless the porting or the starboarding is the proper manæuvre whereby to avoid the collision, and whichever is such proper manæuvre she is bound to follow it. I have observed, in collision cases between steamers and sailing vessels, a propensity shown on the part of the steamer very often to port her helm, when

The Steamer Queen,

that was not the proper manæuvre to avoid the collision, and when the porting was clearly improper. When two steamers are meeting, end on or nearly end on, so as to involve risk of collision, the helms of both must be put to port.

But when a steamer and a sailing vessel are proceeding in such directions as to involve risk of collision, the steamer must keep out of the way of the sailing vessel, and if to do so a movement of her helm is necessary, there is no more obligation on her to port than there is to starboard, unless porting rather than starboarding will avoid the collision. The erroneous idea seems to prevail on the part of those directing the movements of steamers, that they will be free from blame if they port on meeting a sailing vessel with risk of collision ; and I have had several cases before me recently of collisions between steamers and sailing vessels, where, as in the present one, the collision would not have happened, if the steamer had not persisted in porting instead of either starboarding or making no change at all in her wheel.

No fault, contributing to the collision, is shown on the part of the schooner, and there must be a decree for the libellants with costs, with a reference to a Commissioner to ascertain the damages caused to the libellants by the collision.

E. H. Owen, for the libellants.

C. Donohue and J. Chetwood, for the claimants.

In the Matter of Beverly Clark, on Habeas Corpus.

NOVEMBER, 1868.

IN THE MATTER OF BEVERLY CLARK, ON

HABEAS CORPUS.

HABEAS CORPUS.--EXAMINATION BEFORE COMMISSIONER.—EVIDENCE.

-INDICTMENT IN ANOTHER DISTRICT.

Where, on writs of habeas corpus and certiorari to a United States Commissioner,

it appeared that the Commissioner had issued a warrant to arrest the petitioner, on a charge of conspiring to defraud the United States, in the Eastern District of Michigan, who had been arrested and brought before him, and demanded an examination, and on the examination the evidence consisted of an indictment found against him in the Eastern District of Michigan, and proof that on that indictment the District Court of that District had issued a warrant for his arrest, the indictment averring that the prisoner, with certain others named, did, at the city of Washington, conspire, combine, confederate, and agree together to defraud the United States, in a manner particularly set forth, and that one of the parties to said conspiracy, named Lee, at Detroit, in the Eastern District of Michigan, in pursuance of said conspiracy, did do an act to effect the object of said conspi. racy, said act being particularly set forth, and on such proof the Commissioner committed the prisoner for trial in the Eastern District of Michigan, and thereupon this habeas corpus was issued, and the discharge of the prisoner claimed, on the sole ground that the indictment produced did not aver that an offence against the United States had been committed in the Eastern District of Mich

igan: Held, That the question whether the indictment sufficiently averred an offence

committed in the Eastern District of Michigan should not be prejudged on a

proceeding like this; That on such a proceeding the indictment must be considered sufficient, unless it

be so defective in its material averments that it would be the manifest duty of a court before which it was presented by a grand jury to decline to take action

upon it;

That this indictment was not of that character.
Whether, in such a proceeding before a Commissioner, such an indictment can be

examined, and its sufficiency passed upon-quere.

BENEDICT, J. The prisoner, Beverly Clark, being detained in custody by the marshal of this district, has been brought before me by a writ of habeas, corpus and by a writ of certiorari. The proceedings before Com

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