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of Messrs. Scott and Stickney, which the court of claims adopted, we have these results, presuming that, as Mr. Abbott's estimates are not made in separate specific items for dam, pumping, excavating, and preparing bed, respectively, in any case except that of the Davenport abutment, we have proceeded on the basis of taking, (in regard to pier 2, pier 4, and the upper rest of the draw, where alone it was necessary,) as and for Mr. Abbott's separate specific items such proportion of his aggregate estimate as the corresponding specific item in the corresponding aggregate estimate of Mr. Scott bears to such last-named aggregate estimate:
Davenport abutment-dam, pumping, and preparing bed,
Pier 2-part of dam, (the court of claims said that it had no means of know-
$2,668 35 4,668 00
Mr. Abbott says that his estimates "are based upon cost of material and labor, and intended to cover cost alone;" that 40 per cent. is a "reasonable per cent. of advance for contingencies and profits;" and that, with unusual floods in the river, 40 per cent. would be a minimum allowance. The evidence shows that the claimants met with great difficulties because of floods and high water. Mr. Van Wagenen's estimate is $36,000. We have concluded to add 25 per cent. to the $32,075.02,—that is, $8,018.75,--making in all $40,093.77.
As to item (2,) that relating to loss and damage resulting to the claimants in consequence of the reduction of the dimensions of the piers and abutments, made subsequently to the making of the contract, the claimants have appealed because nothing was allowed therefor. The court of clainis held that if the claimants were entitled to recover any sum in respect of that item the sum was $3,066.42. But that court was of opinion that, in its judgment in favor of the claimants, in the suit at law, for $42,306.49, it had, in allowing $22,238.49, under item 5, as amended, "for handling, cutting, preparing, and setting stone for and in the piers and abutments" allowed the following item: "Stone received and handled, not set, and ready as backing to the 1,527 yards of the next preceding item, "—that is, the 1,527 yards of stone dressed, not set,—“an equal quantity, viz., 1,527 cubic yards, at $11 per yard, less $2, which it would have cost to set it, $13,743.00." That in such allowance it had allowed a profit of $8.65 a yard on the 1,527 yards of undressed backing stone, being $13,208.55, which had been paid to the claimants; that this was an allowance to the claimants of profits on masonry not constructed by them; and that, although it could not be recovered back, its payment must operate as a bar to any further recovery for the same thing. We find, however, that in the suit at law item 3 claimed was "for loss of profits incurred by the unlawful reduction of the dimensions of the piers and abutments, $33,600;" and that, in its conclusions of law, in the suit at law, the court of claims held that the claimants were not entitled to any recovery under item 3. Moreover, that court allowed the $13,743 referred to, as a part of item 5. as amended, (above quoted,) for doing to the stone in question everything but setting it, it being undressed stone; in other respects, prepared. We are unable to perceive how such allowance can be classed as an allowance for loss
and damage from a reduction of the dimensions of the piers and abutments. We think the proper allowance for item (2) is this: 449 yards for the three piers of the draw, at $10 per yard, equal $4,490; and 10 3-5 yards for pier 1, at $8 per yard, equal $84.80; total, $4,574.80.
The only remaining question is as to interest, which the court of claims disallowed. We think that under the ruling in*Tillson v. United States, 100 U. S. 43, interest cannot be allowed on either of the items in question. We do not see anything in the special statute,-act of August 14, 1876, c. 279, (19 St. 490,) which takes the case out of the rule prescribed by section 1091 of the Revised Statutes.
The judgment of the court of claims is affirmed for the full amount of the award made to the claimants, and an additional amount of $23,842.82 is allowed for the labor done and materials furnished by the claimants in constructing coffer-dams, and in performing the work necessarily connected therewith and preliminary to the mason work for the piers and abutments referred to in their contract, the same being an additional allowance on account of item (1) in their petition filed August 30, 1876; and the said judgment is reversed so far as respects item (2) in that petition, and the sum of $4,574.80 is allowed for that item; and this cause is remanded to the court of claims, with a direction to enter judgment accordingly.
(112 U. S. 514)
THE ELIZABETH JONES.
(December 15, 1884.)
A schooner was sailing E. by N., with the wind S., and a bark was close-hauled on the port tack. The schooner sighted the green light of the bark about half a point on the starboard bow, about three miles off, and starboarded a point. At two miles off she starboarded another point. As a result the light of the bark opened about two points. The bark let her sails shake and then filled them, twice. The schooner continued to see the green light of the bark till the vessels were within a length of each other, when the bark opened her red light. At the moment the vessels were approaching collision, the schooner put her helm hard a-starboard, and headed N. E. At that juncture the bark ported, and her stem struck the starboard side of the schooner amidships, at about a right angle. Held, that the bark was in fault, and the schooner free from fault.
2. SAME-CROSSING COURSES.
If the case was one of crossing courses, under article 12 of the rules prescribed by the act of April 29, 1864, c. 69, (13 St. 58,) the schooner being free and the bark close-hauled on the port tack, the bark did not keep her course, as required by article 18, and no cause for a departure existed under article 19, and she neglected precautions required by the special circumstances of the case, within article 20.
4. SAME-DECREE AFFIRMED.
3. SAME-ACTS IN EXTREMIS.
The final porting of the bark was not excusable, as being done in extremis, because it was not produced by any fault in the schooner.
The decree of the circuit court was affirmed, without interest.
Appeal from the Circuit Court of the United States for the Northern District of Illinois.
Wirt Dexter, for appellant. Robert Rae, for appellee.
BLATCHFORD, J. On the twelfth of August, 1873, James R. Slauson and William R. Pugh filed a libel in admiralty, in the district court of the United States for the Northern district of Illinois, against the bark Elizabeth Jones, to recover damages for the total loss of the schooner Willis, owned by them, and of the freight money on her cargo, through a collision which occurred between the two vessels shortly before 2 o'clock A. M. on the eleventh of No
vember, 1872, on Lake Erie. The Willis was on a voyage from Chicago to Buffalo with a cargo of barley, and the Jones was bound from Buffalo to Chicago with a cargo of coal. The libel alleged that the course of the Willis was E. by N., the wind being from the southward, and about S., and about a sixknot breeze; that about 2 o'clock A. M. the lookout reported a green light half a point on the starboard bow of the Willis, and apparently two or three miles distant; that the Willis had the wind free, and the vessel showing the green light, and which afterwards proved to be the Jones, was, to those on board of the Willis, evidently by the wind and close-hauled; that the helm of the Willis was put to starboard, and she went off a point and was steadied; that the Jones came on, still showing her green light, when, in order to give her a wide berth, the helm of the Willis was again put to starboard, and she went off another point and was steadied; that the Jones continued to approach, but, apparently, not holding her course, keeping away, though still showing her green light only; that the helm of the Willis was put to starboard, and she swung off so as to head N. E.; that about the same time, the Jones showed both her red and green lights; that the Jones immediately came into collision with the Willis, head on, striking her amid-ships, at right angles, crushing in her side, and causing her to sink in a very short time; that, had the Jones kept her course, she would have passed the Willis on her starboard hand, safely; and that the Jones not only kept away while she was approaching the Willis, but when she had neared the Willis, so that there was imminent danger of colliding, she improperly ported, instead of starboarding her helm.
On the first of October, 1873, the owners of the Jones filed their answer to the libel. It averred that the Willis had the wind free, about a six-knot breeze, from about S.; that the Jones was sailing by the wind, close-hauled; that the Willis discovered the Jones two or three miles distant; that immediately preceding the collision the Willis put her helm to starboard, and the Jones put her helm to port, but in approaching the Willis the Jones did not change her course until a collision became imminent, and the Willis made no change of course to avoid the Jones, except, as before stated, immediately preceding the collision; that the lookout of the Jones discovered what proved to be the light of the Willis from two to four miles distant; that she " was approaching the Jones in an opposite direction from the course of the Jones; that, when the light of the Willis was first seen, it was almost dead ahead, and continued on that line as the vessels approached each other;" that the Jones was kept steadily on her course until, seeing that there was danger of a collision, her helm was ported, but those in command of the Willis caused her helm to be put to starboard, which threw her across the bows of the Jones and caused the collision, and that it resulted entirely from the fault of the Willis. On the fourth of October, 1873, the owners of the Jones filed a cross-libel against the Willis, to recover for damage caused to the Jones by the collision. It contained substantially the same averments as the answer to the libel of the Willis, adding the fact that the Jones struck the Willis between her fore and main rigging.
The case was heard on pleadings and proofs by the district court, in February, 1875, and after the hearing and before a decision, leave being granted to the owners of the Jones to amend their answer and their cross-libel, they filed an amended answer on the eighth of March, 1875. It varied the allegations of the original answer, by stating that the Willis discovered the Jones about three miles distant, but did not see the green light of the Jones; that, immediately preceding the collision, the Jones began to put her helm to port, but, seeing that the Willis was starboarding her helm, immediately changed it to starboard; that the lookout of the Jones discovered, about half a point on his port bow, and three miles off, the red light of a vessel that proved to be the Willis; that, after the light of the Willis was first seen, it continued to show more on the port bow of the Jones: that the Jones was kept on her
course until immediately before the collision, when she began to port her helm, but, seeing that the Willis was starboarding her helm, immediately changed it to starboard, but the Willis continued to starboard her helm, which threw her across the bows of the Jones; and that the starboard bow of the Jones came in contact with the starboard side of the Willis about amid-ships. On the same day the owners of the Jones filed an amended*cross-libel, containing substantially the same averments as the amended answer, in variation of those in the original cross-libel. The original libel was, by stipulation, made the answer to the cross-libel.
In July, 1875, the district court entered a decree, finding that the Willis was in fault, dismissing her libel, pronouncing for the libelants in the cross-libel and awarding to them $1,500 damages. The owners of the Willis appealed to the circuit court. In August, 1881, that court entered a decree, finding that the Jones was in fault, reversing the decree of the district court, dismissing the cross-libel, pronouncing for the libelants in the original libel, and awarding to them $32,826.75 for damages, and interest. From that decree the owners of the Jones have appealed to this court.
The circuit court filed the following findings of fact: "First. That on the eleventh day of November, 1872, a collision occurred between the schooner Willis and the bark Elizabeth Jones, on Lake Erie, at about 16 miles east of Point au Pelee. The libelant, the schooner Willis, was bound for Buffalo; the respondent, the bark Jones, was bound for Chicago. The vessels collided at a quarter before 2 in the morning. The Willis was sailing E. by N. The bark was sailing a general course S. W. by W. W., steering by the wind. The wind was S., about a six-knot breeze, at the time of the collision. Previous to the collision it had been S. E., picking up to the westward. At 12 o'clock the wind was E. At 20 minutes after 1 it was S. E. At the time of the collision it was S. The Willis had the wind free, and the bark was closehauled on the port tack. Both vessels had their proper lights and watch on deck. The vessels were between two and four miles apart when they sighted each other's lights. The night, though it occasionally clouded up, was favorable, and light enough to make objects easily discernible for two or three miles. The schooner was laden with a cargo of barley, and the bark with a cargo of coal. When the vessels collided, the starboard side of the stem of the bark struck the schooner on the starboard side between the fore and main rigging-struck her amid-ships, at about right-angles, on the starboard side. The schooner and her cargo sank in less than half an hour and was a total loss. The injury sustained by the Jones was fixed in the decree of the district court at $1,500. Second. The officers and men of the schooner Willis first sighted the green light of the bark Jones, about half a point off the schooner's starboard bow, at a distance of about three miles off, and continued to see the green light of the Jones until the vessels were within a length of each other, when the Jones opened her red light. Third. The helm of the Willis, as soon as the light of the Jones appeared, was at once put to starboard, and she went off a point and then steadied, the light of the Jones thereupon opening about a point and a half. When about two miles distant the helm of the Willis was again put to starboard a point, and then steadied, the light of the Jones thereupon opening about two points. Fourth. That the mate in command of the Jones gave the following order immediately after first sighting the light of the Willis: I went aft to the man at the wheel to see how she was headed, and her sails were then kind of shaking. I told him to "look out and keep the sails full." Then I went forward again. By the time I got forward the sails was lifting. Again I told him to keep the sails full-"draw up and keep the sails full." Fifth. At the moment the vessels were approaching collision, the helm of the Willis was put hard a-starboard, and she must have swung so as to head N. E. and thus have exposed her starboard side. At this juncture the Jones ported her helm, and the vessels col
lided, the stem of the Jones striking the Willis amid-ships, on the starboard side.
The circuit court also filed the following conclusions of law: "First. The court finds, as a conclusion of law, that this case falls under the twelfth article of the regulations for preventing collisions at sea, applicable to the navigation of vessels. Second. That the bark Jones, being close-hauled, and the schooner Willis being free, it becaine the duty of the Willis to keep out of the way, and she, having come into collision, must show why she did not discharge that duty and avoid the collision. Third. The court finds, as a matter of law, that each of the changes heretofore recited in the findings of fact, as having been made by the Jones, was improper. Fourth. The court also finds, as a matter of law, that the changes recited in the findings of fact, as having been made by the Willis, were proper.'
There is a bill of exceptions, containing exceptions by the claimants of the Jones to the first, third, and fourth conclusions of law. Our review of the decree below is limited by statute to a determination of the questions of law which arise on the record, under the facts stated by the circuit court. The opinion of that court, although, as required by a rule of this court, annexed to and transmitted with the record, is no part of it.
When this collision occurred, the regulations in force for preventing collisions on the water were those prescribed by the act of April 29, 1864, (13 St. 58.) Articles 11, 12, 18, 19, and 20 of the "Steering and Sailing Rules" in that act have a bearing on this case, and are as follows:
"TWO SAILING SHIPS MEETING.
"Art. 11. If two sailing ships are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other.
"TWO SAILING SHIPS CROSSING.
"Art. 12. When two sailing ships are crossing so as to involve risk of collision, then, if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship with the wind on the port side is close-hauled, and the other ship free, in which case the latter ship shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward."
"CONSTRUCTION OF ARTICLES 12, 14, 15, AND 17.
"Art. 18. Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course subject to the qualifications contained in the following article:
"PROVISO TO SAVE SPECIAL CASES.
"Art. 19. In obeying and construing these rules due regard must be had to all dangers of navigation, and due regard must also be had to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid immediate danger.
"NO SHIP UNDER ANY CIRCUMSTANCES TO NEGLECT PROPER PRECAUTIONS.
"Art. 20. Nothing in these rules shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights, or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."
A reference to the statements of the original answer of the Jones, and of her original cross-libel, shows that the case she first attempted to make was