The Steamboat W. C. Redfield.

either had, or ought to have had, any idea that there was a risk of such a collision, calling upon him to make some manœuvre to avoid it, before he saw the schooner's helm put down. If he had entertained such an idea, his proper manœuvre would have been either to starboard still more, or to port, and in either event to stop and reverse also. But he did no one of these things before he saw the schooner's helm put down, and he refrained from action evidently because he saw, from his knowledge of the channel, that there was a free course for him to go by, if the schooner did not improperly come back across his track. Any other view involves the conclusion that he recklessly went on when he must have seen and known that a collision was almost certain. There is nothing in the evidence to warrant that conclusion, and the contrary view only involves the inexperience and ignorance of the man at the wheel of the schooner, which are abundantly established.

There is another view. It was the duty of the schooner to keep her course, but she is not absolved from the consequences of the neglect of any precaution required by the ordinary practice of seamen, or by the special circumstances of the case. (Act of April 29th, 1864, article 20, 13 U. S. Stat. at Large, 61.) Now, whether she did or did not stand to the westward as far as she could run with reasonable safety, her coming about and getting on a course to the eastward involved two things, beyond a cessation of her movement to the westward, namely, a shaking in the wind before filling off on her new tack, and such filling off. Wherever the place of her shaking in the wind was, with reference to the western bank of the channel, it was in fact, as shown, a place where the water was sufficiently deep for her, and the west bank of the channel from there runs straight for some distance down; and, on the testimony in the case, even that of the master of the other sailing vessel, the schooner could have been held in stays, by competent

The Bark Emilie.

management, for some length of time-long enough, I am satisfied, for the steamboat and her barges, going as they were at good speed, to have passed safely by.

On the whole, I think that the steamboat has excused herself from fault in respect to this collision, and that the libel must be dismissed, with costs.

James C. Carter, for the libellants.

Robert D. Benedict, for the claimants.

JUNE, 1870.

THE BARK EMILIE.

COLLISION. DAMAGES.-DEMURRAGE.-PILOT BOAT.-EVIDence.

The report of a commissioner allowed, as demurrage for the detention of a pilot boat, injured by a collision with the bark E., a sum which included an allowance for the loss of time of the pilots on board:

Held, That the sum awarded should represent only the value of the pilot boat as a vessel-what, without pilots, stores or crew, she could have been chartered for to others, to use as a pilot boat;

That, in the absence of evidence as to the market value of such a vessel, resort may be had to the judgment, as to such value, of persons acquainted with the business and with her earnings.

THIS case, which was a collision case, came up on exceptions filed by the claimants to the report of the commissioner as to the damages. The principal exception was to the allowance for demurrage. *

For libellant, C. Donohue.

For claimants, W. Q. Morton.

* For the decision in this case as to the collision, see 2 Ben. R. p. 416.

The Bark Emilie.

BLATCHFORD, J. The Commissioner allowed to the libellant, as part of his damages, "demurrage, eight days, at $50 per day, $400." This was allowed for the detention of the libellant's vessel, a pilot boat, while the repairs of the damages sustained by her, through her collision with the Emilie, were being made. I think the claimants' exceptions fairly raise the exception that this allowance was, on the evidence, excessive. I adhere to the rule laid down by me in the case of The Transit (ante, p. 138), that, in the case of a pilot boat, the detention allowed for must be for the detention of the vessel alone, assuming her to be in a fit condition for use as a vessel in the business of a pilot boat, and that nothing can be allowed to the libellant, as owner of the vessel, for the worth of the time of the pilots on board of the vessel, or of his own time as a pilot, during the detention; that this allowance can include only the value of the use of the pilot boat as a vesselwhat, without pilots, or crew, or stores being furnished with her, she could have been chartered for to others, to use as a pilot boat; and that, only in the absence of evidence as to the market value of the charter of such a pilot boat, can resort be had to the judgment of persons acquainted with the piloting business, as to the value of the time of the vessel, based upon the employment she was in when injured, its character and constancy, and its then recent results in the way of earnings. In the present case, the evidence is, that the libellant's boat was actually under charter, at the time, to the company of pilots on board of her, for one quarter of her gross earnings, the libellant taking the risk of what they would be. The Commissioner allowed $50 per day, for the value of the use of the vessel. But, the evidence on the part of the libellant, especially the testimony of the pilot Henderson, shows, that that amount includes a full allowance for the loss of time of the pilots on board of the vessel. Henderson puts

The United States v. The Steamship The Queen, and her Master.

the value of the use of the pilot boat at about $15 per day. On the evidence, that is all that can be allowed. This is irrespective of the testimony put in on the part of the claimants, as to the earnings of the libellant's pilot boat, during the two months prior to the collision. But, if that were to be considered, it would lead to the same result. It shows, that the boat's one quarter of the gross earnings for July and August, 1866, (the collision having taken place early in September, 1866,) was $973 80, which, for sixty-two days, would be $15 70 per day.

I think, on the evidence, that an allowance for six days was as much as was warranted. I therefore allow for six days, at $15 per day, being a total of $90.

I deduct from the amount reported as damages $310. Let a decree be entered for the libellant for $550 86, with interest from February 1st, 1869, the date of the report..

JUNE, 1870.

THE UNITED STATES v. THE STEAMSHIP THE QUEEN AND FRANCIS GROGAN HER MASTER.

INFORMATION AGAINST BRITISH VESSEL AND HER MASTER-Smug. GLING. AMENDMENT-JURISDICTION--TRIAL BY JURY-JOINDER.

An information was filed against the steamship Queen and her master, alleging that the vessel belonged, in whole or in part, to a citizen or citizens of the United States, and charging that certain merchandise, not included in the manifest on board, had been imported by her into the United States, contrary to section 24 of the Act of March 2, 1799, which, for such offence, imposes upon the master a forfeiture equal to the value of the goods not included in the

The United States v. The Steamship The Queen, and her Master.

manifest, and that, by section 8 of the Act of July 18, 1866, the vessel is holden for the payment of the penalty against the master, and becomes liable to be seized and proceeded agaiust, by libel, to recover the same, in this Court. The answer of the owners of the vessel denied the allegations of the information, and especially that they were citizens of or residents in the United States, and excepted to the information as alleging no cause of action against the vessel, inasmuch as it did not show that the master or owners of the vessel had been convicted of the acts complained of. The answer of the master also denied the statements of the information and excepted to it, in that it did not set forth a joint cause of action against the vessel and the master, and in that parties were improperly joined, and in that the parties joined were entitled to different modes of trial, and in that this action could not be sustained against the vessel and the master jointly. The suit, as to both vessel and master, was tried before the Court without a jury, as a civil cause of Admiralty and maritime jurisdiction:

Held, That it was clearly proved that the violation of the law set forth in the information was committed.

That the vessel was a British vessel, and that, as, under the law, it is immaterial whether the offending vessel is a vessel of the United States or a foreign vessel, the information might be amended without terms, in respect to the ownership of the vessel, and by averring a violation of section 25 of the Act of 1866, which extends the provisions of the Act of 1799 to vessels owned, in whole or in part, by foreigners.

That the Court had jurisdiction to enforce the penalty against the vessel, in such a proceeding as this, without a trial by jury.

That the vessel might be proceeded against for the penalty, irrespective of any proceeding against the master.

That the suit to recover the penalty against the master was a suit at common law, and he was entitled to a trial by jury, under the seventh Amendment of the Constitution of the United States.

That the right to recover against the vessel in the present form of proceeding was clear, and, as the answer of the master excepted to the information on the ground that the suit could not be maintained against the vessel and master jointly, and because they were entitled to different modes of trial, and the answer of the vessel did not except to such joinder, the information would be dismissed as to the master, and a decree entered against the vessel.

BLATCHFORD, J. This is an information filed on the 13th day of February, 1869, by the district attorney, on behalf of the United States, against the steamship The Queen and Francis Grogan, her master. It alleges, that the vessel is within this district, on waters navigable from the sea by vessels of ten or more tons burthen, and is under seizure by the collector of customs for the