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ISION IN THICK FOG—QUESTION TO IDENTITY OF COLLIDING VESSEL. District Court, Eastern District New York. ogg vs. Pennsyvania Annex No. 3. . On February 6, [884, about 6:50 in the evening, in the midst of a ‘dense black .”? the steamer Western Texas, which as lying moored on the north side of Pier 9, East River, bows out, was struck on her “port bow by some unknown vessel and seri- - ously damaged. At about the same time the Pennsylvania Annex boat No. 3, on her way Brooklyn to Jersey City, collided “with something on the westerly side of the river. The Annex boat was sued by the owner of the Western Texas for the damage to the steamer, and the defence set up by _ the former was that she was not the boat that did the damage; thie was the only question at issue in the suit; the contro- yersy over this was severe, and the testi. | mony voluminous. : ‘The libellant produced two witnesses who were on the schooner Jordan L. Mott, which was lying in the same slip as the Western Texas,at the time of the collision, who swore that the colliding vessel was a ferry boat, a ferry boat with an iron gate cressing the bow, a ferry boat with peculiar hoods on the upper deck, and a ferry boat that had on its side in large gilt letters NEX. Libellant also sought to fasten the collision on Annex No. 3 by arguments Jrawn from the course of the ferry boat, the direction of the blow, and the character of the fracture, all of which it was alleged were exactly such as would be made by the guard of this ferry boat, in the course on which she was alleged to be, and by splinters taken from the broken plate of the Western Texas, which it was asserted, corresponded in color with the red uard of the Annex. For the claimant, on the other hand, evi- ~ dence was given that what the Annex boat collided with on the night in question was a pier, probably Pier 3 3 that the colliding boat must have been going at a high rate of speed, While the Annex was moving very slowly by hand; that the colliding boat had different lights trom the Annex; that she was loudly and profanely hailed by the mate of the Western Texas, while the Annex was nailed by no one, and that the colliding ves- sel struck a violent blow, accompanied by a Joud crash, while the Annex lightly and almost in silence touched the pier, leaving | scarcely a scratch on the iron band around her bows. : Claimant also produced the records kept of the times when the ferry boat left Brook- lyn, and arrived in Jergey City, which put the departure from Brooklyn at 6:30, and the arrival in Jersey City at 6:52. These records were challenged by libel- Jant, who asserted that they had been altered and fabricated for the purposes of this suit. There was an admitted alteration in the rec- ord of the time of leaving. Three edges of the leaf on which was the record of the time of arrival were green and the fourth was white, as though it were taken from a took with green edges; the libellant contended that this proved that it had been fraudu- lently inserted in the record. In answer the claimants pointed out other alterations in figures that had no bearing on this case, and other leaves with green edges in the records of other months. Held on the evidence, that libellant had not proved that the colliding vessel was Annex No. 3, and that the libel should be dismissed. Benedict, J. This action is to recover of the ferry boat Annex No. 8 the damages sustained by the steamer Western Texas by being run into on the evening of February 6, 1885, while lying alongside Pier 9in the East river. At the time this damage was done to the West- “ern Texas, a fog of extraordinary density wee prevailing, and the only question at issue is whether the boat Annex No, 8, here proceeded against, was the boat by which the damageyin question was done. Over this question the contest has been severe, and a large amount of testimony has been taken.’ I have given this testimony a caretul ex- amination, aided by elaborate briefs from the advocates, and my conclusion is that the libéllant has not proved that the damage in question was done by Annex No, 3. My view respecting some of the positions | tallen in behalf of the libellaunt may be stated, it being conceded that in this same fog Annex No. 3 made a trip from Brooklyn to Jersey City, and during the trip came in contact with something, within a short dis- tance of the place where the Western Texas lay when struck, it is claimed to be a singu- lar coincidence. There should be nothing unusual 1n two or more ferry boats even passing down the East river at nearly the same time, and nothing strange, if, in such a fog, more than one of them should bring up in the locality where the Western Texas was moored. Unless persons who were | passengers on the Annex No. 3 on the trip | she made, who have no interest in the con- | troversy, have sought to mislead the Court | as to what occurred on the trip, it seems impossible that such a blow as was received by the Western Texas wasdelivered by An- | nex No. 3 during that tup. Every passen- | ger called, save one called by the libellanr —as to whose veracity there is cause of . 3 upon what she struck, was altogether too | light to do damage, and there is testimony given to prove as a fact, that what Annex No. 3 touched was a pier. Great reliance is placed by the libellant upon the testimony of two witnesses who were upon the schooner’ Jordan 1. Mott, a vessel lying in the same slip with the Western Texas at the time she was damaged, and who saw the boat that did the dainage. But these witnesses testify to seeing more than I think it possible for them to.bave seen, considering their posi- tion and the density of the fog. It is dit- ficult to understand, how there could have been any collision at all, if it were possible to see as well as these witnesses say they saw. Besides, one of them says that piecés " of wood were knocked off the boat that ran into the Western Texas and fell into the water, and that he vainly endeavored to se- cure one of them. No pieces of wood were broken off Annex No. 3, as is plainly proved. Again, it is argued, from the strength of the tide and the testimony of those on Annex No. 3 respecting her speed, and an estimate of her weight, that she would have delivered a blow of 8,000 tons weight. If this be so, it seems to my mind impossible that Annex Ne. 3 could have delivered a blow upon the rigid iron side of the Western Texas, lying alongside a pier, not only without injury to herself, but also leaving her bow free from any marks indicating that she had been in collision. I gain no light upon the question at issue from the testimony respecting the direction of the blow received by the West- ern Texas, nor from the testimony showing want of anxiety on the partof those on An- nex No. 3 to learn what object she came in contact with, nor from the sbreds picked trom the broken plate of the Western Texas. The testimony respecting the hail from the Western Texas and the lights seen on the boat that did the damage, makes against the libellant, as it seems to me. The testimony raises a doubt in my mind whether the boat that struck the Western Texas had the iron folding barrier which is upon the Annex No. 3, although there is no doubt that there was some sort of a fence upon her. There remains to allude to what should, I think, be considered decisive of the case—namely, the record of the ferry boat’s time of departure from Brooklyn and her arrival at Jersey City on the trip, when it is claimed by the libellant that she ran into the Western Texas. Such records were kept at both places in the regular course of the business of the ferry. They are produced by the claimant to show, as they do show, that Annex No, 3 was not in the neighborhood ot the Western Texas at the time she re- ceived the damage in question. These rec- ords, as they stand, are conclusive against the libellant. But these records are chal- lenged by the libellant. The one showing the time of departure, it is insisted, has been altered in the figures, thé other, show- ing the time of arrival, it is insisted, has been fabricated for the purposes of this suit. The charge that the figures showing the time of the boat’s departure from Brooklyn have been tampered with, has for its basis an apparent alteration in a figure in the en- try of the time of the departure. But alter- ations in other figures are apparent else- where in the record, and a change of a figure in an entry of this character may easily occur, and is not by itself sufficient to prove a fraudulent intent to falsity the record. The effort to conceal the change in the figure, which is greatly relied upon as being proved by the paper itself, is not apparent to me. I see no material difference between this entry and other entries in the same record, where there is no reason to doubt that the figure was changed at the time of making the entry, to make the entry correspund with the facts, ‘he charge that the record of the boat’s arrieal in Jersey City on each trip is a tabrication has for its basis the fact that the edges of that one of the sheets pro- duced which contains the record of the day in question show a green stain, such as would appear on a sheet that had been once bound in a book, and there are’ indications that the sheet in question had been trimmed, whereas the records at Jersey City were kept on loose sheets, and not bound in a book, while the records kept at Brooklyn only were bound in a book. Here the difficulty is, that other sheets of | the records kept at Jersey City, having no | bearing whatever on this controversy, and which, as produced, could not have been substituted for the purpose of affecting the present suit, are similar to the sheets in dis- pute, In the March records there are three such sheets Undoubtedly the peculiarity in the disputed sheet entitled the libellant to require positive proof of its genuineness and accuracy. That proof has been fur- nished by the testimony of those who made the entries and produced the sheets, and office where the blank sheets were printed, tending to show how sheets like this might be prodneed without ever having been bound in a book, although, of course, there is no evidence from the printer in regard to these particular sheets. Notwithstanding, there- fore, the bold assertion that these sheets convict the claimants of endeavoring to es- cape liability in this action by ‘‘fraud, per- jury and forgery,” I am of the contrary opinion. To my mind, these sheets alone prove that the libellant has mistaken the vesse! to proceed against, and compel a de- cision of this case adverse to the libellant. February 27, 1886. REPORT OF PRESIDENTS. D. CALD- WELL. To the Members of the Lake Carriers’ Asso- ciation. GENTLEMEN: I have the honor to submit, on behalf of your board of managers, my first report as president of this association. The Lake Carriers’ Association was organized in May, 1885, its purpoge being, as explained in its constitution, *‘to consider and take action upon all general questions relating to the navigation and carrying busi- ness ef the great lakes, and the waters tributary thereto, with the intent to improve the character of the service rendered to the public, to protect the common interest of lake carriers, and promote their general welfare.”? Organizations of this sort have existed heretofore in the trans-Atlantic trade and the ocean coastwise trade, and have been very effective in systematizing and perfecting the ocean carrying business, and protecting it trom adverse legislation. Nothing of quite this nature has existed on the lakes, however. There have been com- binations of lake carrying interests for particular purposes, to prevent competition to control rates, etc,, but nothing created, like this association, to deal only with gen- eral questions, affecting the entire lake carrying marine, : The need of some association of the kind will be generally admitted. The lake: car- riers represent important interests upon which the commercial and industral pro- gress of the country is largely dependent; but, owing to lack of organization, their position and inflnence have not been pro- perly recognized. It is the purpose of the Lake Carriers’ Association to concentrate teis influence, so that it may be used effect- ively in encouraging and directing proper legislation and appropriations in the interest of lake navigation by the National Govern- ment; and in other directions that may be for the general good of the lake carrying service. In 1884 (the figures for 1885 are not yet accessible) 46,939 vessels, representing 19,- 645,271 tons, passed down the Detroit river. This is five times the combined tonnage of the Mississippi and Ohio rivers for the same period. Yetthe appropriations from Con- gress in the last ten years (1876-1885,) cover- ing all the improvements on the Great Lakes during that time, including harbors, locks, and canals, have been $9,000,000, while the apprepriations for the Mississippi alone, for this same ten years, have been $25,000,000. There are constantly arising complicated questions regarding marine laws, and the rights of vessel Owners, which it is difficult for individuals to adjust satisfactorily with- out great expense and trouble, but which this association, aided by the counsel and combined experience of its members, can handle successfully, economically and rapidly. A brief record of the work of the association during the past year will show some of the more important of these ques- tions taken up, questions which it would be difficult for any vessel interest to handle singly, but on which the I.ake Carriers’ Association, as a body, can exert a powerful influence. CANADIAN WRECKING LAWS. In October, 1885, this association, bellev- ing the present interpretation of the Ca- nadian wrecking laws to be unjust to Amer- ican vessel interests, obtained from com- petent Canadian counsel an abstract of all the Canadian laws bearing on the subject. A set of questions was then framed, and answers te them obtained from three eminent Canadian advocates. The answers have been printed in pamphlet shape and distributed to the members. They show conclusively | that an American vessel may tow another | vessel, wrecked, stranded, or in distress in Canadian waters back into the waters of the | United States, and that assistance may also be rendered b@ lightering, under certain re- strictions fully explained In the pamphlet. A communication on this subject was ad- | dressed December 15, 1885, to President} Cleveland, calling bis attention to the act of Congress passed in June, 1878, which! authorized him to extend free wrecking might grant the same to us; and respectfully requesting him to renew negotiations with that government in the matter. A re- ply was received saying that the matter would be brought to the attention of the Secretary of State. We have since then been in active correspondence with Secretary Bayard, and he informs us, under date March 5, that he has brought the ques- tion, urgently, to the attention of the British Minister at Washington, with a view to reaching an understanding with her Britan- nic Majesty’s Government for the mutual benefit of the important interests con- cerned. If no change has been made in the laws by the time navigation opens, the associa- tion contemplates making a test case, under the Canadian opinions obtained, and push. ing it to an issue in the Canadian courts. SAULT CANAL RESOLUTIONS. In August, 1885, the board of managers passed a resolution setting forth the im- portance of the immediate construction of a new and larger lock at Sault Ste. Marie, and the improvement, now in progress, ot the Hay Lake channel, and urging liberal ap- propriations from Congress. ‘These resolu- tions were sent to the Secretary of War, and to the Governors, and Senators and Repre- sentatives in Congress of New York, Pennsylvania, Ohio, Michigan, Illinois, Wisconsin and Minnesota. As rehearsed in the resolutions, the Hay Lake channel will render the eutire St. Mary’s river navigable by night, and will shorten the distance one-fifth, while allow- ing the passage of vessels of heavier draught. The new lock should be begun at once. If the commerce from Lake Superior continues to increase in the present ratio, it will in four years exceed the capacity of the present locks, working right and day. It is an interesting fact that the average daily ton- through the Sault canal during the navigation season of 1884, the — latest year of which we now have the records, exceeded the daily tonnage through — the great Suez canal in the proportion uf 8 | to 7. Present indications are that Congress — hage passing will grant the appropriations desired. ARTICLE XXX, TREATY OF WASHINGTON. Under article XXX, of the Treaty of Wash- ington, Canadian vessels were allowed to car- ry United States products tron: one United States port to another, provided only that a portion of the through transportation was via Canada by land. That is, Canadian lines could carry American grain, flour or other freight from Duluth or Chicago to Boston or New York, the lake transportation being by Canadian bottoms but a part of the ronte being by rail through Canada via Sarnia or Qollingwood. This article, by proclamation of President Arthur, dated January 31, 1885, was made to terminate July 1, 1885. Your association directed the attention of the present administration to this faet, anda customs circular to that effect was issued by Secretary Manning,July 2. Active measures were at once begunin the interest of the Canadian lines to have the provisions of the article renewed. July 10, 1885, this associa- tion addressed President Cleveland, by tele- graph and by mail, entering a formal protest on behalf of the lake carrying trade against any extension of the treaty. Later in the month a representative of the association visited Washington to give further ex- pression to its views. This traffic by Canadian lines from Chi- cago came at once toan end; but, by an erroneous interpretation of the laws, the trade was continued trom Duluth some months longer. Here the Canadian lines entered the freight, not as destined for American points, but as for export to Ca- nada, They would then re-enter it at, say Surnia, as exported goods returned to this country, and consequently free of duty (by the re-import act and Article 373 of the Cus- toms Regulations.) The Lake Carriers’ Association entered a vigorous protest against this method ef pro- cedure, which was referred by Secretary Manning to the attorney-general for his opinion. An able and interesting paper en the subject was prepared for the use of the board by Mr. J. W. Thomson, of Port Hu- ron, an expert onthe question. On October 3 the attorney-general rendered his opinion, in which he held that the issue of the ex- port certificates was illegal, there being no bona fide exportation, This opinion Secre- tary Manning promulgated October 16, and since then the traffic has been confined to American bottoms, which are amply ad- equate to care for it. A telegram, followed | by a letter, was sent by this association to Secretary Manning October 22, formally thanking him for his ruling, and expressing the general satisfaction it had given to lake carriers, We understand that a memorial has re- cently been submitted to Congress, asking doubt—testifies that the touch of Annex No.| evidence has also been furnished from the! privileges to Canada atany time that she| that this commerce be again thrown open