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beached, or to take off her passengers, was not a violation of Act Sept. 4, 1890, c. 875, 26 Stat. 425 [U. S. Comp. St. 1901, p. 2902], which rendered his vessel liable for the collision, where it was calm and there was little danger to the passengers, and the extent of the injury to his own vessel was unknown, and where, after proceeding to port only four miles distant, he at once gave notice and himself returned with a tug, and all the passengers and crew were safely taken off.

4. SAME ASSIGNMENT OF CLAIMS-SUIT BY VOLUNTEER.

A mere volunteer to whom claims for damages by collision have been assigned solely for the purpose of suit, and who has no interest therein, has no standing to prosecute such claims in a court of admiralty.

In Admiralty. Cross-libels to recover damages for injuries caused by a collision between the steamboat Capital City, an American vessel, owned by the S. Willey Steamship & Navigation Company, and the steamboat Trader, a British vessel, owned by C. S. Baxter and F. W. Vincent. Hearing on the merits. Both vessels found to be in fault, and damages divided.

This litigation was initiated by a suit in rem in behalf of the S. Willey Steamship & Navigation Company, owner of the steamboat Capital City, against the British steamboat Trader, registered at the port of Victoria, B. C., to recover damages for an injury to the Capital City, and for loss of cargo and baggage of passengers and personal effects of members of her crew, caused by a collision between the two vessels, which occurred on the 28th day of October, 1902, on Puget Sound, off Dash Point, about four miles northward from Tacoma, by which the Capital City was so badly injured that it was necessary to run her on the beach to save the lives of the passengers and crew on board. Said libel was filed the next day after the collision, while the Capital City was sunk, and supposed to be a complete wreck, and the amount of damages claimed was $40,000. After the Trader had been taken into the custody of the United States marshal, her owners appeared as claimants, and filed a petition for limitation of liability in accordance with the laws of the United States, and thereupon the Trader was appraised, and a bond for her appraised value was filed in the case, after which she was released from custody. The Capital City having been raised, and taken to a dock for repairs, an amended libel was filed, in which the amount of damages claimed was reduced to $8,500. On December 29, 1902, the owners of the Trader commenced an independent suit in rem against the Capital City to recover $5,000 damages for alleged injuries to the Trader caused by the collision. On the same day, December 29, 1902, a stipulation, signed in behalf of the respective owners of the two vessels, was filed in the suit of Baxter and Vincent against the Capital City, whereby the parties agreed as follows:

"It is hereby stipulated and agreed by and between the proctors for all parties in interest:

"First. That the causes and matters of all kinds and nature whatsoever in any wise comprised or included in the above-entitled matters shall be consolidated and by the above-entitled court heard as of one case.

"Second. That all evidence taken in any of such causes upon the behalf of any party thereto, whether heretofore appearing or hereafter to appear, shall be considered in all of said causes, and have the same force and effect, as though separately taken in each case.

"Third. That Honorable Samuel D. Bridges be appointed by the judge of the above-entitled court as court commissioner to take evidence therein, and all of the evidence heretofore taken or hereafter to be taken before said commissioner be considered as having been taken in each, every, and all of said

causes.

"Fourth. That this stipulation is entered into to avoid costs, expense, and delay, and the same is considered a full and sufficient consideration and cause thereof on behalf of every party hereto, and on behalf of any party or parties hereinafter in any of these causes appearing or making claim.

"Fifth. That any party or parties claiming or pretending to claim to have any interest or right by reason, of the collision of the steamers Capital City and Trader out of which the above causes arose may appear in any one of said causes, or either of them, and such appearance shall be considered an appearance in each and all thereof, one appearance only as to all of said causes from this time forth being required, and such intervening parties to have every right by reason of such appearance as though separate appearances were made in all three causes.

"Sixth. That the above-entitled court make its order, forthwith directing a monition to issue in the matter of the limitation of liability, and appointing the said Samuel Bridges as commissioner of said court to take testimony thereunder; and that thereupon the said causes proceed to a final hearing as soon as may be convenient and possible upon the part of the parties hereto. "Seventh. That this stipulation be filed, and an order be entered accordingly, and that all parties hereafter appearing or intervening in this cause have the benefit hereof, reserving all questions under petition for limitation of liability.” On the 23d day of January, 1903, Francis Rotch appeared in the original suit, in response to the petition for limitation of liability, and filed an intervening libel to recover, on the bond filed by the owners of the Trader, the alleged value of merchandise and baggage, and personal effects of a number of shippers and passengers, and members of the crew, alleged to have been on board the Capital City, and to have been lost or damaged in consequence of the collision, and alleged that the owners thereof had assigned their claims to him.

In accordance with the stipulation above referred to, the several causes were consolidated, and evidence in behalf of each and all of the litigants has been taken and reported to the court by a commissioner appointed for that purpose.

The pleadings upon which the cause has been submitted to the court consist of the amended libel of the S. Willey Steamship & Navigation Company, the answer of Baxter and Vincent to said amended libel, the petition of Baxter and Vincent under the limited liability statutes, a claim in behalf of the original libelant in response to the petition for limitation of liability, a claim in behalf of Francis Rotch in response to said petition for limitation of liability, the libel of Baxter and Vincent against the Capital City, an answer to said libel of the owner of the Capital City, the intervening libel of Francis Rotch, and an answer to said intervening libel of Baxter and Vincent.

In this mass of pleadings there are many repetitions, but the issues are few and simple. Against the Trader, the charge is made that she was solely in fault, because (a) she did not have the regulation lights, or, if her lights were burning, they were so defective and dim as to be invisible until the two steamers approached so near to each other that the collision could not be avoided; (b) the Trader signaled for a starboard passing when the positions and courses of the two vessels were such that they should have passed port side to port side, and no signal to apprise the Capital City of her presence was given by the Trader at the proper time; (c) her commander "did not properly direct the course and movement" of the Trader. This general charge, and the specifications thereof, are all denied. Against the Capital City, it is alleged that she was solely in fault, for the reason that when the two vessels were one mile distant from each other, and in such positions that the Capital City showed only her green light and her masthead light to the Trader, a signal for a starboard passing was given by the Trader, to which the Capital City failed to make response, and later, when the distance between the two vessels was at least one-half of a mile, and the Capital City was still showing her green light, and not her red light, to the Trader, the signal for a starboard passing was repeated by two blasts of the Trader's whistle, to which the Capital City immediately responded by two blasts of her whistle, and when the vessels were very near to each other, and the Capital City running at a high rate of speed-at least 12 knots per hour-said steamer, without giving any warning of intention to change her course, suddenly turned on a port helm, in such a manner as to swing across the bow of the Trader, and the collision occurred, notwithstanding the fact that the Trader's engine was immediately

reversed, and commenced working full speed astern. This charge, and the specifications thereof, are also denied. The amounts of the losses alleged in the intervening libel of Rotch, and the several assignments to him, were put in issue by the answer to said libel.

As part of the proceedings under the petition for limitation of liability, the court appointed a commissioner to whom all claims against the Trader for damages growing out of said collision should be presented, and directed said commissioner to take evidence to prove such claims as might be presented, and to report to the court the amount of each of such claims. Said commissioner has made a report containing a schedule of claims for merchandise lost or damaged, amounting in the aggregate to $419,61, and a schedule of claims for the personal effects of employés of the Capital City, amounting in the aggregate to $410.50, and it appears from said report that the amounts claimed as set forth in said schedules were not contested, but were admitted. Said commissioner's report also shows that the claim of the S. Willey Steamship & Navigation Company, amounting to $8,500, was also presented, and it was not contested. The commissioner, however, did not assume to make any findings as to the liability of either of the parties with respect to said claims. Richard Saxe Jones and George C. Israel, for libelant. J. M. Ashton, for claimants.

Richard Saxe Jones, for intervening libelant.

HANFORD, District Judge (after stating the facts as above). From the evidence, I find the facts of the case to be as follows: The place of the collision was about four miles north of Tacoma, and one-fourth of a mile off shore, opposite the south side of Dash Point. There was ample room for the two vessels to have passed each other in safety, there being proximately three miles of open water between the shore of the mainland and Maury Island, and the vessels were not embarrassed by the presence of other craft. The time of the collision was about 6:20 p. m., October 28, 1902. The sky was overcast and cloudy, so that it was quite dark; otherwise it was a fine evening-that is to say, it was calm, and there was no fog or rain to obstruct the vision. The Trader was going to Tacoma, carrying a cargo of salted fish in boxes. She passed Point Robinson at about 5:30 p. m., and was then so far out towards midchannel that another steamer, going northward to Seattle, passed between her and Point Robinson. At that time the captain relieved the mate and took sole control of her movements, and changed her course so as to head south by west a quarter west by her compass. The distance from Point Robinson to Dash Point is proximately five miles, the tide was ebbing, and the Trader's speed was about 51⁄2 statute miles per hour. At that rate of speed, with the tide against her, and on that course, in the 50 minutes which intervened between the time of passing Point Robinson and the time of the collision, the Trader would have crossed Puget Sound on an oblique line, and would have come to the place of the collision above indicated, which is proximately one-quarter of a mile off the southerly side of Dash Point.

The accompanying outline map is an accurate representation of the shore lines and points referred to and the course of the Trader, indicated by an arrow 1,000 feet off Point Robinson, and shows proximately the location of the collision, indicated by a cross one-fourth of a mile off Dash Point, and proximately the courses of the Capital City before and after turning Brown's Point.

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The Capital City is a passenger steamboat, and was employed on a route between Seattle, Tacoma, and Olympia. Compared with the Trader, she is a fast boat, her ordinary speed being 121⁄2 miles per hour. She left Tacoma at 6 p. m. on her run northward to Seattle, and passed Brown's Point 15 minutes later, and then steered a course to the place of the collision above indicated, so that for a period of about 5 minutes the two steamers were on opposite courses, and approaching each other head on, or nearly so. Each of them carried the regulation masthead light and side lights, all of their lights were burning brightly,

and the three lights of each were visible to the other vessel from the time that the Capital City changed her course after turning Brown's Point, but until she changed her course only her masthead light and green light would show to the Trader. The captain of the Trader saw the masthead light and the green light of the Capital City as soon as she came out past Brown's Point, and immediately, the vessels then being distant one mile from each other, blew two blasts of the Trader's whistle, which is the signal for passing starboard to starboard, and to that signal the Capital City made no response. About two minutes afterwards, when the vessels were approaching head on, as above indicated, and showing all their lights to each other, the captain of the Trader persisted in his purpose, and repeated the signal for a starboard passing, to which the Capital City assented by an immediate response, giving two blasts of her whistle, and continued on her course, running full speed until the two vessels were very close to each other, when her captain, without having sounded an alarm, and without giving any signal other than the response to the Trader's whistle as above mentioned, changed her helm to hard aport, so that she turned quickly to starboard in a manner to bring her port side across the bow of the Trader. The captain of the Trader noticed the movement as soon as the Capital City commenced to turn, and immediately gave the signal to his engineer to reverse and work the engine full speed astern, and said order was instantly obeyed. Either the reversing of her engine. or a change of her helm caused the Trader to swing to port, so that when the two vessels came together they were both turning inshore. The Trader's bow cut into the port side of the Capital City, about 30 feet abaft her stem, at an angle of about 45 degrees from the line of her keel. One of the broken timbers of the Capital City penetrated the hull of the Trader on the starboard side of her bow below the water line. Both vessels were seriously injured by the heavy jar of the impact and by the crushing of their timbers. The Capital City took in water rapidly, so that the fire in her furnace was extinguished before she struck the beach on Dash Point, less than 10 minutes after the collision. The only opening made in the hull of the Trader was partly choked by the timber which made it, so that she did not take in water to such an extent as to prevent her from completing the run to Tacoma, which she did after the Capital City had been run upon the beach. On arrival at Tacoma her captain reported the disaster, and during the evening the passenger steamer Flyer went to the relief of the Capital City and took off all of her passengers. Previous to that being done, however, the captain had returned with a steam tug to render any assistance possible.

In arriving at a conclusion with respect to the facts of the case, I have been guided mainly by the evidence of unimpeached witnesses, and by the indisputable facts with respect to the time and place of the collision. I have been obliged to reject as untrue the testimony given by the captain of the Trader, to the effect that only the green light of the Capital City was visible to him when he blew the second signal for a starboard passing. It is a peculiar feature of this case that the two captains agree in their testimony with respect to the course steered by the Capital City. Her captain puts her on a course from Brown's

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