Opinion of the Court.

time, in the particular mentioned, cannot be imputed as a fault to the tug. The Benefactor, 102 U. S. 216; The Elizabeth Jones, 112 U. S. 514, 526, and cases there cited; The Maggie J. Smith, 123 U. S. 349.

As was held in The Bywell Castle, 4 Prob. Div. 219, "where one ship has, by wrong manoeuvres, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind."

It is not found as a fact that the collision would have been avoided or mitigated if the tug had stopped and reversed when she discovered that the ship had put her helm hard-astarboard and changed her course. On the contrary, finding 21 says that after the ship's helm was put to starboard, nothing that the tug could have done would have averted the collision; and finding 20 says that as soon as it was possible for those on board of the tug to discover that the ship had put her helm to starboard, everything was done on board of the tug to avoid the collision and lessen the damage.

We do not think that the decision in the case of The Mani

toba, 122 U. S. 97, applies to the present case. That was a collision between two steam vessels on Lake Superior. The two vessels saw the white and the green lights of each other, and only those lights, and continued to approach each other on nearly parallel courses. When they were about from 1 to 2 miles apart, the Manitoba had the Comet's green light about three-quarters of a point on her starboard bow, and then starboarded her wheel half-a-point and continued her course without change until just before the collision. In the meantime, the Comet ported her wheel for the second time half-a-point, and the two vessels thus continued to approach each other, showing their green and white lights only, until they had come within from 400 to 500 feet of each other, the Comet being then from 200 to 300 feet on the starboard side of the Manitoba. If each had kept her course, they would have passed without colliding; but at that juncture the Comet ported her wheel, displayed her red light and suddenly sheered across the course of the Manitoba, the latter thereupon starboarded

Opinion of the Court.

her wheel, and the collision ensued. The combined speed of the two vessels was about twenty miles an hour. Neither of the vessels sounded any signal of the whistle, indicating the side she intended or desired to take, nor did either of them reverse her engine or slacken her speed until the collision was inevitable; but the Manitoba reversed her engine just before or about the time of the collision. The fact that the two vessels were moving on nearly parallel, opposite, but slightly converging lines, was manifest to the officers of both for some considerable time before the Comet ported. The Circuit Court found as follows: "The relative courses of these vessels, and the bearing of their lights, and the manifest uncertainty as to the Comet's intentions, in connection with all the surrounding facts, called for the closest watch and the highest degree of diligence, on the part of both, with reference to the movements of the other; and it behooved those in charge of them to be prompt in availing themselves of any resource to avoid, not only a collision, but the risk of such a catastrophe. If the requisite precautions had been observed by both or by either of said vessels, the collision, in the opinion of the court, would not have happened." The Circuit Court found that the Comet was in fault for putting her wheel hard-a-port and endeavoring to cross on the port side of the Manitoba; that the Manitoba was in fault in ignoring the fact that the Comet was approaching under a port wheel, and that the courses of the vessels were convergent and involved risk of collision, and in failing to take proper precaution in time to prevent the collision; and that the Manitoba was further in fault in not indicating her course by her whistle, and in not slowing up, and in failing to reverse her engine until it was too late to accomplish anything thereby. It apportioned the damages. The Manitoba appealed to this court because she had been found to be in fault. As the answer and the cross-libel of the Manitoba charged as a fault in the Comet that she did not stop and reverse in approaching the Manitoba, when there was risk of collision, this court said, that if there was risk of collision in the approach of the Comet towards the Manitoba, prior to the sudden sheer of the Comet, it was a risk affecting

Syllabus.

the Manitoba equally with the Comet, and imposing upon her the same duties as it imposed on the Comet, of slackening speed, or, if necessary, stopping and reversing. This court affirmed the finding, as a conclusion of law, that the Manitoba was in fault in not indicating her course by her whistle, and in not slowing up, and in failing to reverse her engine until it was too late to accomplish anything thereby.

The difference between the case of The Manitoba and the present case involves the vital point, that, in the former, the question was between two steam vessels, while in the latter, it is between a steam vessel and a sailing vessel. In the case of The Manitoba, the courses of the two steam vessels were not such as to make it the duty of the one more than of the other to avoid the other, or to make it the duty of the one rather than of the other to keep her course; and there was, in regard to the courses of both the steam vessels, such risk of collision that the obligation was upon both to slacken speed, or, if necessary, stop and reverse. But in the present case, the duty was wholly on the ship to keep her course, and wholly on the tug to keep out of the way of the ship; and there was no duty imposed on the tug to stop and reverse until, as above shown, she was in the very jaws of the collision.

The decree of the Supreme Court of the Territory of Washington is

Affirmed, and the case is 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, §§ 22, 23,) for further proceedings according to law.

WATERMAN v. BANKS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 190. Argued March 7, 8, 1892. - Decided March 28, 1892.

J. S. W. having advanced to his brother R. W. W. moneys to aid him in developing mines, the title to which was in dispute, and being about to

Statement of the Case.

advance further sums for the same purpose, the latter executed and delivered to him an agreement as follows: "San Bernardino, Cal., May 14th, 1881. For and in consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I hereby agree that at any time within twelve months from this date, upon demand of J. S. Waterman or his heirs, administrators or assigns, I will execute to him a good and sufficient deed of conveyance to an undivided twenty-four onehundredths () of the following mines, known as the Alpha, Omega, Silver Glance and Front, each being 600 feet wide by 1500 ft. long, and the same interest in all lands that may be located or has been located for the development of the above mines, with such machinery and improvements as is to be placed upon same, all subject to the same proportion of expenses, which is to be paid out of the development of the above property, all situated near the Grape Vine, in the county of San Bernardino, State of California." Held,

(1) That, taken in connection with the evidence, this conveyed to J. S. W. no present interest in the property, but only the right to acquire such an interest within a period of "twelve months from this date."

(2) That time was of the essence in such a contract for acquisition. The principle that time may become of the essence of a contract for the sale of property from the very nature of the property itself is peculiarly applicable to mineral properties which undergo sudden, frequent and great fluctuations in value, and require the parties interested in them to be vigilant and active in asserting their rights.

THE Court stated the case as follows:

This appeal brings up for review a decree requiring R. W. Waterman, the original defendant, to convey, free from incumbrance, to Abbie L. Waterman, the original plaintiff, and the widow and assignee of J. S. Waterman, an undivided twenty-four one-hundredths of certain mining property in San Bernardino County, California, and, also, to pay to her the sum of $42,987.22, which was adjudged to be the amount of profits derived from that property, with the interest that accrued thereon prior to January 10, 1888. 27 Fed. Rep. 827.

J. S. Waterman and R. W. Waterman were brothers; the former, of large wealth, and a citizen of Illinois, and the latter, of limited means and a citizen of California, engaged with one Porter in "prospecting" and developing mining property. R. W. Waterman and Porter having acquired certain mining claims or interests in San Bernardino County, California, the

Statement of the Case.

former wrote a letter to his brother, under date of April 5, 1881, which seems to be the beginning of the transactions out of which the present litigation arose. The writer said: "Porter finished assay yesterday, and will start in tomorrow. The mine improves all the time. It goes beyond our most sanguine expectations. The chimney will extend somewhere about 800 or 1000 feet, and is worth itself millions. The assay for the dump, after picking out the best ore and assay, the average of the poorest is over $50 and, so far as we can see, the entire mass is very rich. Now, we can fight all of them, pay all expenses and make a million a year, but I don't anticipate much, if any trouble. You let Mr. Porter have some money to pay his expenses without his asking for it. He is one of the most modest men I ever saw. I want you to have a talk with Jane about your joining me and having an interest in the mine. It will include the four claims, the Alpha, Omega, Front and Silver Glance. They are what there is of it, and either one is enough to form a company. I propose to let you have of my interest of 7-you give up my indebtedness and give me to pay off any debts that I have incurred in mining, say $2000. That is worth $250,000, and may be a million to sell outside of this. All the money you get to buy machinery or advance in any way shall be paid from the first earnings of the mill. You might be at the head of the affair financially, and otherwise; each one of us to have his part, but you be at the head. . . You speak

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to Porter about our partnership. I know he is all O. K. and will not pretend to own but ; yet try him. I presume he would give you a share of his if you raise the money for us."

It does not appear that any formal reply was made to this letter. But it does appear that J. S. Waterman was in California the succeeding month, and took from his brother an obligation of which the following is a copy:

"SAN BERNARDINO, CAL., May 14, 1881. "For and in consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I hereby agree that at any time within twelve months from this date, upon de