The Ship Shakspeare.

schooner kept her course till the vessels were about a hundred yards apart, when her helm was put a starboard, a collision being then inevitable, and the ship struck the schooner amidships on the starboard side. On behalf of the ship, it was alleged that the ship was heading northeast by north, with the wind about west northwest; that the schooner was seen approaching and about a mile distant, and the ship's helm was at once put hard-a-port, and kept so till the collision, and the ship fell off so that, at the collision, she was heading about east by south; that as soon as the ship had begun to fall off, the red light of the schooner came in sight, no light having been visible till then, and remained so till it bore three or four points on the port bow of the ship, and distant about two hundred and fifty feet, when suddenly the schooner put her helm hard-a-starboard, and attempted to cross the ship's bows, and the collision occurred.

For libellants, Wm. D. Booth.

For claimant, C. M. Da Costa.

BENEDICT, J. I have examined, and weighed with much care, the evidence produced before me, in regard to the collision which has given rise to these actions, and feel well satisfied as to what should be the decree.

There are, undoubtedly, statements of fact made on both sides which cannot be reconciled; and when they are such as to be inconsistent with other and controlling circumstances appearing in the case, I must disregard them, and rest my decision upon what I consider to be the reliable portion of the evidence. It is noticeable that the account of the accident put forth in the answer of the ship, is plainly incorrect. The case there stated is an impossible one. If, as the answer says, and as the

BT. VOL. IV.-9

The Ship Shakspeare.

master of the ship positively swears, the ship's helm was put hard-a-starboard, when the schooner was nearly a mile distant, and approaching end on, the ship then going free at a speed of seven knots, and the schooner closehauled at a speed of five knots, no collision could have occurred. But the vessels did, in fact, come together at right angles, the schooner being at the time some three points off her course, and the ship six points off hers. The difficulty in the case of the ship, which the answer discloses, is not diminished when the evidence of those on board the ship is examined; on the contrary, it is found that, while attempting to prove the case set up in the answer, and sustaining it, so far as positive statement can go, the witnesses for the ship furnish corroborative evidence in support of the account which is given by those on board the schooner. Evidence given by the pilot of the ship, for instance, makes it quite apparent that the ship was to windward of the schooner; and would have passed the schooner in safety, if, before giving any order to change the course of the ship, the schooner had been carefully observed and her course ascertained.

It is also quite manifest, from what is disclosed to have taken place on board the ship, that the schooner was not seen at the distance of a mile, as the witnesses would have it believed, nor until she was very close at hand; and that the helm of the ship was then put hard aport, on the alarm given by those forward, and not upon any judgment as to the proper manœuvre to adopt under the circumstances, formed on observation of the course of the approaching vessel. Furthermore, the mode in which the vessels came togetherthe ship heading east by south, as she says, and striking the schooner, as she did, abaft the fore rigging-on the starboard side, at right angles, or bearing a little ahead, while it is consistent with the theory of the schooner, is inconsistent with the account given by those on the

The Ship Shakspeare.

ship. These circumstances, and inconsistences which are found in the evidence of those on board the ship, impel me to resort to the statements of those on board the schooner, as furnishing the more reliable account of the occurrence. The account given by the mate of the schooner is clear and positive. It is supported by the man at the wheel, and to some extent by the master, who came on deck on hearing the order to starboard, and it appears to furnish the more probable explanation of what took place.

I have little hesitation, therefore, in coming to the conclusion, that the action of the schooner in starboarding was taken at the last moment, and was not a fault which should render her responsible for the collision which almost instantly ensued, but that the real cause of the collision was a negligent lookout on the ship, and an improper movement on her part, in porting before the course of the approaching vessel was known, whereby the ship was thrown across the course of the schooner, which otherwise would have passed to leeward in safety. I do not deem it necessary to add more to what I have said, except to remark that the fact that the ship had her side lights placed abaft the mizzen rigging, and so located as to be obscured from a vessel approaching ahead, was negligence, which, while it accounts for the fact that the ship's course was not discovered sooner than it was by the lookout of the schooner, would also render the ship responsible for the schooner's starboarding, when she did, if that were found to have been a wrong manœuvre.

I should also say, that I do not consider it a fault on a vessel of the class of this schooner, to have her chief mate stationed forward on the lookout, notwithstanding it was at the time his watch on deck. Absence of the lookout from a station forward, and attention to other duties inconsistent with keeping a careful watch for approaching vessels, would, of course, be a fault; but the

The Steamship Favorita.

fact that the chief mate placed himself on the lookout, and the seaman at the wheel, when it is shown, as it is here, that he in time saw the approaching ship, and from his place forward gave his order to the wheelsman, as soon as he could determine the necessity of change, shows a proper lookout on board the schooner.

The decree must be in favor of the libellants, with an order of reference to ascertain the amount of the loss.

APRIL, 1870.

THE STEAMSHIP FAVORITA.

COLLISION.-DAMAGES.-COSTS.-DEMURRAGE OF FERRY-BOAT.—PERMANENT DEPRECIATION.

Where in a collision, case both vessels had been held in fault, and the owners of the injured vessel sought to recover as part of their damages, the costs and expenses paid by them, in defending a suit brought against them, by the owner of a tug, for services rendered in pumping and keeping their vessel afloat after the collision:

Held, That the item was not recoverable.

Where a ferry-boat was injured in a collision, and her owners supplied her place by a spare boat, and it appeared that the receipts of the ferry were not diminished by the loss of the injured boat:

Held, That her owners could nevertheless recover such sum as the use of the boat was worth while undergoing repairs.

Finding of a Commissioner on the question of permanent depreciation sustained, the evidence being contradictory.

The ordinary practice where both vessels are found in fault, is to refuse costs to either.

BENEDICT, J. This case comes before the Court, upon exceptions taken by both parties to the Commissioner's Report of the amount of the loss sustained by the Union Ferry Company, by reason of a collision

The Steamship Favorita.

between the ferry-boat Manhasset, and the steamship "Favorita." On the part of the libellants, objection is taken to the disallowance by the Commissioner of the amount of a bill of costs, incurred by the libellants in defending an action brought against them, to recover an exorbitant demand for the use of a tug-boat, in keeping the Manhasset afloat, when she was hurt. The exception to the report upon this ground cannot be sustained. It was the misfortune of the libellants, that they were compelled to resort to law, as their only means of avoiding an unjust demand, and the expense, thereby entailed, cannot be recovered in this action, as part of the damages resulting from the collision in question.

An exception is taken on the part of the claimant, to the item of demurrage allowed by the Commissioner, upon which point the evidence is that the libellant's ferry-boat was detained from her regular employment, for the space of ten days, and that the value of the use of such a boat is $75 per day. In addition, it is proved that the libellants at once replaced the boat, upon the ferry, by a spare boat of their own, kept for the purpose of relieving ferry-boats from duty, when necessary; and it is also shown that the receipts of the ferry were not diminished by the absence of the Manhasset from her place upon the ferry. These circumstances do not however preclude the libellants from recovering the real value of the use of the Manhasset, for the period she was laid up. The libellants are entitled to be made good, for all which they lost by reason of the collision. It is conceded that they lost the use of the Manhasset, for a period of ten days, and the value of that use, they have proved to be $75 per day. I see no reason why they should not recover that loss, as part of their damages, notwithstanding the fact, that they took another boat of their own, to replace the injured boat, instead of hiring a boat of a third party.