such an appearance of ownership, such a probability of ownership in the absence of any other facts, that the evidence of those facts satisfies that cardinal rule of the common law which holds a fact proved as matter of evidence, and for the determination of all rights when the preponderance of the evidence is in favor of the fact to be established. Examples of this kind of prima facie proof are the evidence of possession of goods as prima facie proof of ownership, and evidence of possession of a bill of lading by a consignee as prima facie proof of the transfer to him of the shipper's title. But possession is not the same thing as title, although it may be sufficient evidence of it if nothing else appears. Nor is an apparent transfer of another's title the same thing as a title in the transferee. I think, therefore, it is the right of the respondents, by exception to the libel, to compel such an averment as will show with reasonable certainty that the libellants have, as consignees, some actual interest, and the nature of that interest, and without such averment there is nothing for the respondents to answer. A general averment that the libellants have sustained damages in a certain amount, by reason of the loss of the goods by the collision, is clearly not enough.

The distinction between the sufficiency of the proof of facts as evidence, and the sufficiency of the averment of facts as matter of pleading, may be thus stated. Facts, as evidence, are sufficient when they produce an appearance, or probability of the existence of a right or title, which, by the established rules of evidence, constitute prima facie proof. But the rules of pleading require not the averment of the appearance or probability merely of a right or title, but the averment with reasonable certainty of the actual existence of a right or title.

Exception sustained.

THE STEAM FERRY-BOAT HACKENSACK.

THE SCHOONER HENRY D. BREWSTER.

(District Court, 8. D. New York. November, 1880.)

1. COLLISION-FERRY-BOAT ENTERING SLIP-LOOKOUT-RIGHT OF SAILING VESSELS-COSTS.

Where the steam ferry-boat H., while entering her slip at the foot of Barclay street, collided, in the day-time, with the schooner B., her bowsprit entering one of the windows on the starboard side of the H. aft of the paddle-box, and the B. was at the time getting under way, having hoisted her jib and then her foresail, the wind being southerly, and her bow line having been cast off and stern line fast to the rack, though slack, and the B. claimed that at the time the jib-boom entered the window she was lying with her whole starboard side close up to the southerly side of the south rack of the slip, and that the H. stopped after the jib-boom entered the window and before any appreciable damage was done to either vessel, and then started again, dragging the B.'s stern round against the end of the rack and driving her stern against a neighboring pier, thus causing the damage to both vessels; and the H. claimed that after she had entered her slip about three-quarters of her length, the stern line of the B. was carelessly let go, and her jib filling the B. swung round to the northward and thereby forced herself against the H., causing the damage; and that these movements of the B. were made without any warning to the H., and too late to enable her to prevent the collision:

Held, on the evidence, that the pilot of the H., acting as lookout, night have observed the B.'s movements-the hoisting of the jib and then the foresail indicating an intention to come out and perhaps to cross her path-in time to have avoided the collision; and was wholly in fault in not thus obeying the rules of navigation requiring a good lookout to be kept, and that vessels under steam shall keep out of the way of sailing vessels, and that this fault of the B. alone caused

the collision.

That the B. had a right to assume that this would be done, and was not, therefore, in fault in hoisting sail.

But, on the evidence showing that the tide was ebb, running down the river; that the H. was approaching the mouth of the slip from up the river, heading obliquely towards a point some ways inside the southerly rack, and, after striking it, her port how was canted over against the center pin, when her stern sagged with the tide against the southerly rack before she stopped; that her length and that of the southerly rack were each 217 feet, and the center pin 100 feet; and the northerly side of the slip was at the time occupied by the other ferry-boat:

Пeld, that the B.'s claim as to her position cannot be true; that it

was impossible for the starboard quarter of the H. to have projected southerly of the south side of the ferry rack far enough to engage the jib-boom of the schooner, if the latter was in the position she claimed to be in, and that the B.'s jib-boom must have extended crosswise in a north-westerly direction beyond the inner line of the ferry rack.

Held, that the whole damage was done before the headway of the H. was stopped, and the claim that the pilot left his post before his boat brought up against the center pin, and conversed with the B.'s captain, and threatened the damage complained of, is, under the circumstances, highly improbable, and against the weight of evidence... That the B., having thus misstated the main facts of the collision, is entitled to recover upon amending her libel, but is not entitled to costs, except disbursements.

Henry T. Wing, for the Henry D. Brewster.

W. J. A. Fuller, for the Hackensack.

CHOATE, D. J. These are cross-libels to recover damages caused to both vessels by a collision between the Hackensack, a steam ferry-boat running between Hoboken and the foot of Barclay street, New York, and the schooner Henry D. Brewster. The collision happened in the day-time, on the thirtieth day of July, 1879, while the ferry-boat was entering her slip at the foot of Barclay street. The schooner is a small vessel, of about 66 feet length from stem to stern. She had brought from Virginia a cargo of watermelons, which she had discharged at the pier next south of the ferry slip, and had hauled up to the south side of the southerly ferry rack, and there made fast, in the forenoon, some distance inside. the end of the ferry rack. At about 1:30 o'clock she hauled down to the end of the ferry rack, and there again made fast, with the stem of the schooner about even with the outer end of the ferry rack. In this position she had out a short bowline and a long stern-line, both leading to spiles on the southerly side of the rack. She made this change preparatory to getting under way for the foot of Tenth street, North river, for which place she was bound. After getting into this posi tion she hoisted her jib and cast off her bow-line. The effect of this was that the tide running down set her off from the rack towards the Vesey-street pier, the wind, which was southerly, being light, and the wind on her jib not being sufficient to keep her head up to the rack. They then hoisted

the foresail, the effect of which was to make her pay off the other way, towards the west and north, and she brought up with her starboard side, at about the fore rigging, pressing against the corner of the ferry rack. While two men were standing by the starboard fore rigging, pushing or breasting her off from the rack, the master ran aft to order the sternline thrown off the spile by the men on a schooner lying astern of his vessel, but before he got aft, or the stern-line was thrown off, he was stopped by a cry from one of the men forward that the ferry-boat was running into them. Almost immediately afterwards the jib-boom of the schooner entered one of the windows of the starboard side of the ferry-boat aft of the paddle-box. The ferry-boat was then partly in her slip, her after part projecting out into the river beyond the end of the ferry rack. The first question to be determined is in what position the schooner was lying with reference to the rack when her jib-boom went into the window of the ferryboat. It is claimed, on behalf of the schooner, and seems to be believed by those on board of her, that she was lying with her whole starboard side close up to the south side of the ferry rack. If this was her position, there could be no excuse for the ferry-boat running into her; but if this were her position, then the end of her jib-boom must have been at least 11 feet, or half the width of the schooner, southerly of the line of the southerly side of the ferry rack, and about 17 feet southerly of the line of its inner or northerly side. I am satisfied from the evidence that this cannot have been her position, but that when her foresail and jib had begun to draw sufficiently to bring her starboard fore rigging up again to the corner of the rack, her stern was still off from the rack sufficiently to make the end of her jib-boom extend crosswise in a north-westerly direction beyond the line of the inner or northerly side of the rack.

This is the position in which those on the ferry-boat testify that they saw her, with the two men breasting her off, at the corner of the rack, as the ferry-boat entered the slip. The evidence is satisfactory from both sides that, in entering the slip, the ferry-boat, to avoid the effect of the ebb-tide,

approached the mouth of the slip from up the river, heading in obliquely towards a point some ways inside of the southerly rack, and after striking the southerly rack her head was canted over towards the center pin, a short rack between the two ferry bridges, and her stern was by the same movement, aided by the ebb-tide, sagged down against the southerly rack. It was while so sagging down and coming with her starboard side against the rack that the jib-boom entered the cabin window. The length of the ferry-boat and also that of the rack is 217 feet. The length of the center pin is about 100 feet. There was another ferry-boat in the slip on the north side of the center pin. It is quite certain, from the evidence, aided by the models and drawings of the ferry slip and the boats, that the Hackensack could not, with the ebbtide running, and with the other boat in her slip, have made her slip at all, if her stern projected southerly of the southerly line, so far as to engage the jib-boom of the schooner lying straight with the ferry rack, or indeed lying in any way, without projecting to the north of the line of the southerly side of the ferry rack. The ferry-boat made her slip, being thrown over by striking the southerly rack, so that her port bow brought up against the southerly side of the center pin before her way was entirely stopped. It was impossible for her to do this if her starboard quarter projected south of the ferry rack, or covered any part of the mouth of the Veseystreet slip, as some of the witnesses on the part of the schooner testify that it did. They are clearly mistaken, being misled by imperfect observation. It may have seemed so to them from their points of view. The fact that the schooner still had her stern-line out, and that it had not been thrown off of the spile to which it was made fast, does not, as claimed on her behalf, show that she was not heading across the corner of the ferry rack. It must, of course, have been slack enough to allow her stern to stand off sufficiently for this purpose. This point being determined, the next question is whether the ferry-boat stopped after the jib-boom entered the window, and whether she was then started ahead again by her pilot while the jib was so sticking into the