William Muir v. The Brig Brisk and Alfred Morine. anything is due. It would follow therefore that the libellants, upon such a state of facts, must be entitled to the decree, which they seek by this action to obtain. But a circumstance has been proved in the case which, considering that the vessel in question is foreign, and all the parties to the action foreigners residing in a foreign country, makes it proper in my opinion for this Court, to decline to exercise jurisdiction in this case, except upon the condition hereafter to be stated. The right of a Court of Admiralty, to decline to entertain jurisdiction, when all the parties are foreigners residing abroad, has been often declared. The Martin, 4 C. R. 293; Davis v. Leslie, 1 Abbott Ad., 131, Coote's Ad. Pr. 47. The circumstance to which I allude is this, that since the seizure of the vessel by the marshal under the process issued in this action, at the instance of the libellants, and while the vessel was thus in custody of the law, awaiting the determination of this Court, the libellants without any permission from the Court, have caused the vessel to be loaded with a cargo shipped for a foreign voyage, and she is now nearly full of cargo belonging to third parties, laden under a charter party executed by one Banks, who is the master whom the libellants seek to place in command of the vessel instead of the defendant. This extraordinary mode of dealing with a vessel in custody of the law, on the part of foreigners who were seeking the decree of this Court to put them in possession of the vessel, would well justify the Court in exercising its privilege to decline jurisdiction in the premises. No reason is seen why the aid of the Court should be invoked by parties, who by their acts show that they do not consider any decree of the Court necessary, to enable them to assume possession and control of the vessel. But it also appears, and the statement has caused me William Muir v. The Brig Brisk and Alfred Morine. surprise, that the action of the libellants in loading their ship was with the knowledge and consent of the marshal. For this reason therefore, and because the result of this action of the officer of the Court, might be to work serious inconvenience and loss, if no decree were here pronounced, and inasmuch as all the rights of the defendant can be protected by making the payment of the freight into Court a condition of exercising jurisdiction, that course will be adopted instead of absolutely declining to render a decree. If, then, the libellants deposit in the registry of the Court the amount of the inward freight by them collected, less only the usual inward charges, including unloading and crew's wages, such freight to remain subject to the order of the Court, as security for any sum which the defendant may recover against the owners of this vessel or said freight, in an action, to be brought within twenty days, in case he be so advised, the Court will entertain jurisdiction, and a decree be entered in favor of the libellants without costs. If such freight be not so deposited within fortyeight hours, after notice of this determination, a decree will be entered dismissing the libel. Upon the entry of the decree above mentioned, the defendant at once filed and served a notice of intention to appeal in the usual form, but for five days thereafter took no steps to perfect his appeal and gave no security. Upon these facts, and affidavits showing that the detention of the vessel would involve serious loss, the libellants moved for a release of the vessel on bail. BENEDICT, J. No reason is assigned for the omission to make this application at an earlier stage in the cause. One reason given for the application at this time, is that she is under a charter and loaded and ready for sea. This charter and loading of the vessel has been before alluded to in disposing of the cause upon the merits, and it is sufficient to say here, that the embarrassment William Muir v. The Brig Brisk and Alfred Morine. growing out of the charter and loading of this vessel was caused by the libellants themselves, when they assumed to charter and load a vessel while in custody of the law, and can not be considered as one of the ordinary incidents attending a possessory action. Under the circumstances, the position of the vessel, arising from her charter, does not appeal very strongly to the consideration of the Court. Furthermore an order to release a vessel on bail, is an interlocutory order made pending the determination of the Court upon the issues raised, to avoid the expense and loss incident to delay in the determination of those issues. When therefore the Court has made its decree, the reason for making such an order no longer exists, and it is not seen what form of security could well be taken from the libellants 'here, in an action like the present, after an absolute decree made in their favor, which it is the duty of the Court to see duly executed. The delay sought to be protected against, is not delay in this Court, but in the Appellate Court. I do not say that a state of facts might not be presented, which would make it incumbent upon this Court, to direct the release of a vessel, held in a possessory action, even after final decree in the cause, and before an appeal; but in the present case, the delay sought to be protected against, is not delay in this Court, but anticipated delay in the Appellate Court; for notice of appeal has been filed, and the appeal can be perfected without delay, and the application can at once be made to the Appellate Court. The order which I propose to make, will enable relief to be obtained more speedily by an application to that Court, than by the present motion here, and, therefore, I do not consider the interposition of this Court, in the manner proposed, to be necessary. An order can be made to prevent further delay in this Court, and insure the transmission of the cause to the Appellate Court without further delay, by The Steamer Pennsylvania. shortening the time usually allowed for perfecting the appeal. It is accordingly directed that the decree of this Court be executed, unless the defendant perfect his appeal, and procure the cause to be transmitted to the Circuit Court, within two days from the making of this order. For libellants, Emerson, Goodrich & Wheeler. For respondent, Beebe, Donohue & Cooke. JUNE, 1870. THE STEAMER PENNSYLVANIA.* COLLISION AT SEA.-STEAMER AND SAILING VESSEL.-SPEED IN A FOG.-VESSEL LYING TO. A bark was lying to near the George's Banks under shortened sail, with her helm lashed three quarters to port, drifting about a mile an hour. It was very foggy, and a bell on board her was being struck, but no fog horn was blown. A steamer was approaching her nearly at right angles, running at a speed of seven knots an hour. As soon as the bell of the bark was heard, the helm of the steamer was put to port, then changed to starboard, and then again put to port, her engine having been stopped and reversed. She struck the bark amidships and sunk her: Held, That the bark was under way, and was bound to have been using a foghorn, instead of a bell. That the use of the bell could not have misled or embarrassed the steamer, for the bell was the proper signal to announce the presence of a vessel, not in motion and incapable of getting out of the way, which was, substantially, the condition of the bark. * This case was affirmed by the Circuit Court, on appeal, in February, 1872. BT. VOL. IV.—17 The Steamer Pennsylvania. That, on the evidence, the bell could be heard further than the fog horn. That, on the evidence, the bark had a proper lookout, and was not guilty of any fault which contributed to the collision. That it was the duty of the steamer to have reduced her speed to the lowest point, consistent with steerage way. That, on the evidence, it was not necessary for the steamer to have been running BENEDICT, J. This action is brought by the owners of the Bark Mary A. Troop, to recover of the steamship Pennsylvania, the value of their bark, which was sunk in a disastrous collision, which occurred between those two vessels, on the George's Banks. The owners of the bark, after setting forth in the libel the facts attending the accident, aver that the collision was not caused by any fault on the part of the bark, but was caused by the fault of the steamer, in running at too great speed in a fog, and in not keeping a proper lookout, and in not changing her course, in time to have avoided the bark by going under her stern as she could, and should have done. The answer of the steamer avers that she was proceeding at a reduced speed, only sufficient to keep her proper course, with a good lookout; that it was so foggy, that a vessel could not be seen more than a length off; that while so proceeding a bell was heard; and immediately the bark hove in sight, too near the steamer for the steamer to avoid her; that the engine of the steamer was at once stopped and backed, and the helm ported, but that the bark was going at a speed of about five knots an hour, with her helm lashed; and being unable to port, came into the steamer, which was then nearly dead in the water. It will be observed in regard to these pleadings, that there is no averment on either side, that the accident was inevitable. On the contrary, specific faults are set forth, as the sole cause of it. The duty of the Court |