The following text may have been generated by Optical Character Recognition, with varying degrees of accuracy. Reader beware!

er; with her sails in this position, she could ot have gone off to the westward by the stion ofa northwest or north- north-west nd, unless her wheel had been put hard ver to port, which was not done; that is, [all the affirmative proof is that it was not | done, nor ordered to be done, and there was | no ceeasion for giving any such order. ype dle her in the sails carried by the Hayes r of the Hayes. referred to the commissioner | a f, and finds by his re- the Hayes was at fault and that 8 have excepted and the questions the commissioner, have been roof shows that the night was up to half past ten o’clock with but d, and that from nearly the same st; that all the schooners on the tow a part of their sails set but trimmed flat aft, so as not to impede the tug; that the Law was towed directly astern of the tug with about five hundred feet of line. The Crossthwaite directly astern of the Law with about the same length of line, and the Hayes with about the same line astern of the Crossthwaite. The Crossth waite being about 200 feet long, the distance between the stern of the Law and the bow of the Hayes would be about 1,200 feet. It is difficult to determine from the proof, with even proximate certainty, just how much warning the officers and crew in charge of the decks of these vessels had of the approach of the squall. But, it suffici- ently appears that there was some warning or indications of a thunder storm gathering in the northwest, and the crews of all the vessels seem to have done something toward taking in part of their sails. All agree that the squall was of very brief duration, and not very heavy or dangerous at any time. It seems undisputed also, that ‘‘the Crossth- waite’? ran up and passed the Law on the Law’s port side, sothat at the time of the collision the Law lay off starboard side of the Crossthwaite. It is considered on the part of respondents, that when the squall struck them, the Law had taken down her forward sails leaving her after sails up, or part of them, so that when struck by the squall from the north- north-west, she broached to, or came up toward the wind so as to lie directly athwart the course of the Hayes before the course of the Hayes could be sufficienUy changed to | avoid it, A careful study of the testimony satisfies me, that the head sails of the Law were taken in, and the mainsail and part of her mizzen were up when the squall struck her, and that with these sails trimmed flat aft, and the squall coming from the northwest, or north-north-west, the Law would naturally broach to or come up to the wind. The only force to prevent her from coming clear around being her tow line attached to the tug, and with the Crossth waite off to the eastward, er port side, her line would naturally help to hold the Law in this posi- tion, that of lying nearly broadside to the | wind. The proof from the tugis tomy mind | conclusive, that the Law did breach to, asis | contended on the part of the respondent, | and that while she lay thus broached to, the | The proper thing for the Hayes to do un- ‘der the cirumstances, was to follow as | vearly as she could in the line of the other tows ahead of her, and this the officer of her deck and ber wheelsman, testify they en- deavored to do, that is they kept their course, : For some unexplained reason, the line of the Hayes was cast off from the Crossth- waite, and I do not see that this in any way affected or brought on the collision; pro- bably when the officer in command of the Crossthwaite saw that he must change bis vessel’s course to avoid the Law, which had broached to ahead of him, he also thought the line of the Hayes would embarrass him in swinging clesr of the Law, and cast it off for that reason, but this is mere conjecture, as neither party deemed the matter of con- sequence enough to prove, or attempt to prove, why it was done. As I gather the facts from the testimony, it seems improbable to me that Captain Leith of the Law could have seen the Hayes off 100 feet tothe westward of him, and then /seen her change her course and come stem on toward the broadside of the Law. It seems to me much more probable that the Law lay broached to in the pathway of the Hayes, and while her officers and crew were engaged in their effort to get her mizzen and mainsails down, without being con- scious of the direction in which the Law was heading, they saw the Hayes coming di- rectly toward their broadside. If the Law had been heading to the south as she was when struck by the squall, the barges must have been coming from di- rectly toward the Law’s broadside, butif the Law broached to, asl conclude she had, then the Hayes, without change of course would be seen coming stem on to the Law’s broadside. The reliability of the testimony from the deck*of the Law is much shaken, to my mind, by the fact, that as soon as the Hayes was seen heading for the Law, her officers and crew took to their boats, and when the collision occured, there was no one on the Law except a seaman who had been sent to the mizzen crogs-trees to loose the mizzen halvyards that had got fouled there. The fact that these men fled so precipitately on the first appearance of danger, certainly very much weakens their reliability as witnesses as to what took place, either on their ship or on the Hayes. I therefore conclude, that at the time the collision occurred, the Law lay broached to in the course of the Hayes, and was held nearly stationary there by the action of the lines from her bow to the tug, and from her stern to the Crossth waite,and that her broach- ing to was in consequence of the bad sea- manship of her crew in tuking off her jibs, and leaving on her mainsail and mizzen. All the proof concurs that the wiud shifted to the northwest before the squall came up; a thunder shower was gathering in the northwest and the premonition therefore was that, if there was an increase of wind, it would be from that direction, and any sea- man ought to have known that by taking off his jibs and other forward sails, he was put- ting his ship in an unmanageabie condition, and all the testimony agrees that if the Law’s head gails were up and her after sails down she would have been unmanageable, and would have broached to. It is also urged that the want of a proper lookout on the Hayes contributed to this col- lision. The proof shows that the watch on deck consisted of the second mate, Wilson, and the wheelsman, and that Wilson acted as lookout. In a quiet night such as the proof shows this to have been, this would have been a sufficient watch for a vessel in tow of a tug asthe Hayes was. The captain of the Hayes was disabled by a sprained or broken aukle, and as soon as the weather became threatening, the first mate was called | who came at once on deck, and he and the second mate lowered the mainsail, and it was down fully five to ten minutes before the squall struck her; as soon as the main- sail was down, Lawson, the mate, went for. tos barbo rd the wheel came from the mat | on his sighting the Law broadside to ahead | penses of successfully defending against a of him, Wilson helped the wheelsman to | ¢/#im on a bottomry bond, the later. set up e| panies by cargo. ners to recever the ex- in defense the unseaworthiness of the vessel. promptly execute the order. what could have been done by more men if | not be regarded a3 being made in goo] faith they had been on deck than was done by | because it had not been made use of in the these toward averting the collision, ‘The | Previous litigation. Held, that as a defense ’ of unseaworthiness would not have been movement of the Hayes thr ugh the water material ia the former suits, and as the in- was probably accelerated by the wind, and surance companies had not at first known of the Law was seen by Lawson, acting as look- | this defence, and as libelants had not been out, as soon as tbe mist or fog would allow, , Preindiced by the assistance of the com- anies in the former litigation, th and more men pane ‘ gation, there was ane A n on deck would not have seen nothing which prevented an iHaevieelan thts ‘ The Hayes was a logy, dull| suit into the question of seaworthiness. sailer, that did not respond promptly to her} 3. As accidents happened to the vessel on wheel, but not to such an extent as to make | [he Voyage, which, unless explained, would z indicate unseaworthiness, and which were her a dangerous vesse! toward others in a not explained, held, that the vessel was un- tow that was properly handled. seaworthy when she sailed, the policies of It is true that for a few moments while the | M8Urance never atiached, and respondents Lean not see | Libelants claimed that this defense should | second mate was calling the first mate, and while they were taking in the mainsail the Hayes had no lookout, but this, it must be remembered, was before the sqnall struck her, and while all the vessels were in con- trol ot the tug, and in their proper places. With the squall ,there seems from the proof, were, consequently, uot liable to the owners of the cargo for the expenses of defending the former snits. Brown, J. : The above libel was filed to recover the expenses of defending a suis on a bottomry bond, under the “sue, labor and travel” Clauses of certain policies of insurance, to have come a blinding mist or fog, which, | issued by the respondents upon the cargo of momentarily, shut these vessels off from | the“Julia Blake” from Rio to New York. On sight of each other, and when this fog or| the voyage, the vessel put into St. Thomas mist passed by with the squall that brought| where extensive necessary, repairs were it, the witnesses from the Crossthwaite and | made, in order to procure which a bottomry the tug saw the Law lying with her head toj bond was given tothe bank of St. Thomas the westward of her, and the Hayes was ap-| upon her hull and cargo. The vessel with proaching her from the direction in which | her cargo uninsured subsequently arrived the tow had been running, and the collision| in New York. The vessel, freight, and occurred. If the Law had not been broached | cargo, was thereupon libeled for the en- to, it would seem hardly possible that the | torcement of the bottomry bond. Practically two vessels would have collided. What the] no defense in that suit was made as respects testimony shows as to the sailing and hand-| the ship and freight. The controversy as ling qualities of the Hayes confirms me in regards the cargo was earried to the Su- the conviction that she did not shoot off to| preme court, where the decisions of this court the west in a tangent from her regular course, | and of the circuit court were affirmed, re- and then as quickly change and come back | leasing the cargo on the ground that no com- toward the east, and collide with the Law |muncation was had with the owners of the but her very dullness would have helped to | cargo, prior to executing the bottomry bond keep her in place upon her course, while the| (the Julia Blake, 16 Blatch. 472; 107 U. §. Law, being a quick handler, and carrying a| 418.) ; Sue large amount of sail for her size, would, with her head sail off and her after sails set, come | and counsel to defend against the claims 0 up in spite of her rudder by the action of | bottomry. They appeared for the ownel : the wind from the northwest. the vessel and answered in his behalf as: It, therefore, seems to me, that no such] er; and also as agent, or carrier in behalf of ps fault can be properly charged to the Hayes|the cargo, Some months afterwards the as contributed directly to bring about this | owner ef the cargo himself intervened and collision, and I feel compelled to sustain the | answered separately, by proctors and counsel exceptions to the commissioner’s report, and | of his own; and after the decree of the dis- to find the respondents in no way at fault|trict court, he represented mainly if not for the damages sustained by the Law. solely the interests of the cargo in that suit. I may add, that it seems to me the com |The insurance companies had previously missioner arrived at his conclusions by plac- | #&teed to pay any sum which might be fixed ing an undue weight upon the mere opinions | bY the average adjusters as general average. of the witness Wilson, the second mate of| The libelants now sue for their expenses the Hayes. When this witness testifies as to | 80d counsel fees in that litigation, facts within his knowledge, he seems to be} 1 the present action the respondents have unusually intelligent and accurate, but when | Set up ia defense the unseawortiness of the he attempts to express his opinions as to| Vessel when she left Rio, and allege that the whether the deck of the Hayes had a suifi-| Policies consequently never attached. As cient complement ot men to ensure her safe | the claim in suit rests upon the stipulation navigation, those opinions seem colored with | f the policies only, there can be no re- some peculiar views of his own as to the| covery if the policies never attached, or be- number of seamen that every vessel ought | Came Operative as respects the cargo. It ia by law to be compelled to carry. urged that this defense ought not to be re- The commissioner has also attached, as it garded as made in good faith, because no seems to me, undue weight to the statement euch ground was taken. in the previous of Fitzsimmons, one of the mates of the litigation ; and because the insurance com- Law, that the mainsail of the Hayes was sede t did not agt.upon that theory, ba up when he came on deck just ‘before the duriug the progress of the action, in the dis collision; as this witness had no better op- trict court at least, were active in defeating portunities for knowing this fact than sev- the bottomry bond upon other grounds, Two eral others who have testified that it was | @@8Wers are given to this contention which down—the mere fact that the deposition of E think are sufficient, No issue of unsea- this witness was taken by respondents after worthiness would have been material in the libellant had failed to take it, should not, as former action. On the PoDprarys. Lng More it seems to me, endow his testimony with ungea worthy. Ane ship, the greater would be any more character for truthfulness than if her need of repairs at St. Thomas, where it had been taken by the libellants. In fact the Pottomry pend we exponen. Fae Faote I can not see that the question whether the affecting the question. ef she, unses worthi- Hayes’ mainsail was up or down is control- | "°88 of the abip at Hie were not. at, res ling, as with all her forward sails set, the known to the insurere. When they Were. mainsail alone without aid from the rudder In 4 measure, apprised of the facta, this ques- would not have caused her to ran off to the| “02 was stated to the libelants by the westward, as described by the captain of the counsel of the insurers, as an existing ques- res tion affecting their liability for insurance, I regret to be compelled to overrule the although not envolved in the pending litiga- finding of the commissioner, as no one more tion, But that merely afforded to the in- fully than ‘myself appreciates his pains-|SU™nce companies an additional ground ot taking analysisof testimony, and his usually defense, as agalnat the SRERO. Considering accurate, conolusions as to the facts of ¢ the difficulties of establishing that defence tien before a jury, the insurance companies could The exceptions are sustained not be considered as wholly indifferent, The finding will, therefore, be that the whether the claim of bottomry was defeated collision did not occur by reason ot the tault | UP? another ground. The assistance of the At first the insurers employed proctors _ ew lookout of the Hayes when from 300 to 400 | ward as lookout and remained there till the feet from ber, saw her position when the | collision occurred; the second mate remain wheel of the Hayes was put to starboard for ing near the wheelsman, and when the order ot those In charge of the Hayes, and the libel is dismissed. Robert Law, Jr, } Wm. &. Condon,s Robert Rae. m Gia) Kiames, t For Respondents For Lebellants, POLICY OF INSURANCE—"“SUE AND LABOR’’9 CLAUSE—UNSEAWORTHINESS OF VESSEL— —DEFENSE IN PREVIOUS SUIT—EXPENSES. U. S. District Court, Southern Distr New York. 1. A policy of insurance does not attach if the vessel is unseaworthy when she sails. insurance companies in the former litigation for a time, in no way misled the libelants, or induce them toincur any expense which they would not otherwise have incurred. There is no element, therefore of estoppel in the case, nor do I find anything in the cir- cumstances which precludes an inquiry into | the seaworthiness of the vessel, which is for the first time presented in this suit. On that point the evidence of the master, whose tt Of | deposition was taken in this suit, but who was not examined in the former suit, is very strong, and shows clearly that the vessel was 2. On suit brought against insurance com- | grossly unseaworthy when she sailed. There a