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Opinion of the Court.
The case of The Manitoba, 122 U. S. 97, distinguished.
and that Territory having become a State, the case was remanded to the Circuit Court of the United States for the District of Washington, (Act of February 22, 1889, c. 180, 25 Stat. 676, 682, 683, $8 22, 23,) for further proceedings according to law.
The case is stated in the opinion.
Mr. John B. Allen for appellant.
Mr. John II. Mitchell for appellee.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
On the 11th of June, 1885, about two o'clock in the morning, the steam-tug Tacoma was towing the bark Colusa, of about 1200 tons burden, laden with lumber and bound on a voyage to San Francisco, California, from Port Townsend, in the Territory of Washington, to Cape Flattery, the bark being towed by a hawser about 150 fathoms long, and the stern of the tug being about 750 feet ahead of the stem of the bark. When the tug and the bark were about four miles to the north of Ediz Hook light, in the Straits of Fuca, in the Territory of Washington, they were steering west-southwest half west, and moving along a path west half south, at the rate of about two miles an hour by the land. The ship Blue Jacket, of San Francisco, was on her way from that city to Seattle, in the Territory of Washington, and when she was about two miles from the tug, and showed her red light about three-tenths of a point on the port bow of the tug, she was sighted by the lookout on the tug. The weather was cloudy but the air was clear, with a fresh breeze blowing from the west-southwest; and the tide was flood, running up the Straits of Fuca at the rate of three miles an hour, from west-southwest or west-southwest half west. The ship's mean course was east-northeast, but her course was really along a swinging path, deviating alternately to starboard and port about one-half of a point each way from her mean course,
Opinion of the Court.
and crossing the same about every one-half mile, at intervals of about every four minutes. She was running with a fair wind and tide, and going ahead at the rate of about eight miles an hour by the land.
The lookout on the ship first sighted the tug about half an hour before the collision hereinafter mentioned, about half a point on the starboard bow of the ship and five miles away, showing two white mast-head lights to the ship at that time and at all times up to the collision, and the red lights of the tug and the bark being seen by those on board of the ship from 10 to 12 minutes before the collision. When the tug was so sighted, she was reported at once to the master and mate of the ship. Two and one-half minutes before the collision, the tug being about one-third of a mile from the ship and half-a-point off her port bow, the ship bearing about one and three-eighths points off the port bow of the tug, and showing both her lights to the bark and her red light to the tug, and the bark bearing dead ahead from the ship, the tug, for the purpose of avoiding the ship, put her helm hard-a-port and swung to starboard; but the ship immediately thereafter, instead of keeping her course or putting her helm to port, put her helm hard-a-starboard and kept it in that position until the collision occurred. Neither the tug nor the bark, at any time up to the collision, showed to the ship any side or colored lights except their red lights. By putting her helm hard-astarboard, the ship slewed rapidly around to her port until her course was changed to about north-northeast; and while the tug was still swinging to her starboard under a port helm, the two vessels came into collision, the ship striking the tug bow on, on the port side of the tug just abaft of midships, and damaging the tug seriously.
On the 3d of September, 1885, the Tacoma Mill Company, owner of the tug, filed a libel in rem against the ship, in the District Court of the Third Judicial District of Washington Territory, claiming to recover from the ship $12,000 as damages. Process was issued, and the ship was duly seized and due notice given. On the 4th of September, 1885, the master of the ship put in a claim to her, for D. O. Mills as her owner.
Opinion of the Court.
On the 29th of October, 1885, D. O. Mills, as such owner, filed a cross-libel in rem, in the same court, against the tug, to recover $900 damages. Qn the 29th of October, 1885, the master of the ship, on behalf of her owner, put in an answer to the libel of the Tacoma Mill Company.
On the 2d of April, 1886, the Tacoma Mill Company filed an amended libel against the ship, and on the same day the same company filed an answer to the cross-libel of D. O. Mills. The amended libel sets forth the particulars of the occurrences which preceded and attended the collision, and alleges that there was no negligence on the part of the tug, but that shortly after her helm was put hard-a-port, the ship, instead of keeping her course, as it was her duty to do, and which would have avoided the collision, negligently put her helm hard-a-starboard; that by that time the tug and the ship were so close together, and the course of the ship, then running free, was thereby so changed, that the tug could not keep out of her way; that the ship had not a proper lookout or watch; that no special circumstances existed which rendered necessary a departure from the steering and sailing rules prescribed by act of Congress; that the ship did not have her side-lights properly set, but they were so placed that they did not throw a uniform or unbroken light from right ahead to two points abaft the beam, or at all, and she did not, on the approach of the tug, show a lighted torch, as she should have done, on the point or quarter of the ship which the tug was approaching; and that, if those in charge of her, when they put her helm hard-a-starboard, had hauled her spanker boom midships and braced her after yards in on the port side, all of which they negligently failed to do, although they had abundant time so to do, the collision would have been avoided. The answer to the cross-libel makes the same allegations.
The cross-libel against the tug alleges that the latter, when about 1000 or 1500 feet away from the ship, and about two points off her starboard bow, hard-a-ported her helm and unskilfully threw herself across the bows of the ship, and rendered a collision imminent; that the tug had no colored lights set, and it was not discovered by those in charge of the navi
Opinion of the Court.
gation of the ship that the tug had changed her course until she was within about 275 or 300 feet of the ship, and steering directly across her bows; that it was then apparent to those in charge of the navigation of the ship that if she kept her course or ported her helm she would collide with either the tug or the bark and perhaps both, and they, thinking and believing that those in charge of the navigation of the tug would stop and reverse her engine, which they should have done and which would have avoided the collision, the helm of the ship was immediately put hard-a-starboard, for the purpose of rendering the blow and the damages as light as possible, in case the vessels collided, and because it was believed that by so doing the ship would clear the tug; that that was all it was possible for the ship to do toward avoiding the collision, which occurred within two or three minutes after it appeared to the ship that the tug had changed her course; that the tug should have kept her course and passed to the starboard of the ship, which would have avoided. the collision; that the tug should have exercised precautionary measures to prevent the collision from the time she sighted the ship, which she did not do; that the tug placed the ship in such a position that it was impossible for the ship to do anything that would avoid a collision; that the tug, when she saw that the collision was probable, should have stopped and reversed her engine, which she did not do, and which would have avoided the collision ; that the tug should have had her green and red lights set, which she did not have, and which would have enabled the ship to observe her change of course; that the tug should have indicated her course by signals on her steam whistle, which she did not do; that at the time of the collision and for some time prior thereto, the person acting in the capacity of first officer of the tug had charge of her navigation and was acting also as wheelsman and lookout, and had no officer's license, and was so acting in violation of law, and was wholly incompetent and not a suitable person to occupy such a position; and that the tug did not have, before or at the time of the collision, a wheelsman or proper lookout to guard against the danger of a collision.
Opinion of the Court.
It also alleges that the collision was due to the negligence of the tug, and that there was no fault on the part of the ship. The answer to the libel contains substantially the same allegations as the cross-libel.
The record properly omits the proofs, but shows that on the 7th of March, 1887, the cause having been heard on the pleadings and proofs, the District Court filed its findings of fact and conclusions of law. The findings of fact were 29 in number, and were verbatim the same as the first 29 findings hereinafter set forth, made by the Supreme Court of the Territory on appeal. The first, second, and fourth conclusions of law made by the District Court were in terms identical with the first, second and fourth conclusions of law of the Supreme Court of the Territory, hereinafter set forth. The third conclusion of law made by the District Court was that the Tacoma Mill Company was entitled to recover from the claimants of the ship $11,043.75 and costs, and was entitled to a decree that the stipulators for the claimant of the ship pay that sum into court within ten days, with the costs; and that, in case they failed so to do, the company was entitled to a summary judgment against them, and each of them, for said amount and costs, and for an order for execution.
Prior to the filing of the findings of fact and conclusions of law by the District Court, proposed findings appear to have been presented to that court by the Tacoma Mill Company on behalf of the tug, and brought to the attention of the counsel for the ship, because on the 28th of February, 1887, a petition for a rehearing was filed in the District Court on behalf of the ship, and on the 4th of March, 1887, exceptions were filed by the ship to the whole or parts of findings of fact Nos. 3, 5, 6, 9, 10, 11, 12, 14, 16, 17, 20, 21, 22, 23, 24, 25, 26 and 27, and to all of the conclusions of law.
On the 8th of March, 1887, a decree was entered by the District Court, with the title of the libel and the cross-libel, dismissing the cross-libel at the cost of the cross-libellant, and decreeing that the Tacoma Mill Company recover from the claimant of the ship $11,043.75 and costs, and that the stipulators for the claimant of the ship pay that sum and the costs