turb his conclusions. The inadequacy of the price; the fact that the sale was made when the bankrupt was under execution and had the effect of taking that much away from the value of the farm, to the known detriment of those who had liens upon it; the existence of a secret additional price for the benefit of the bankrupt from that which was openly spoken of; and the action of Kelley in paying almost nothing down, and at once stopping payment on his check on the mere rumor of trouble, as though conscious of its possibility-all are circumstances of more or less significance, which we may assume entered into the decision of the referee and go to sustain it.

The suggestion that irrelevant evidence was admitted, which might have influenced the referee in his conclusions, requires no discussion. No exception was taken to it at the time, and it cannot, therefore, be insisted on here.

The objections are overruled, and the action of the referee in restraining the cutting and removal of the timber in question is adopted and confirmed.

BRIGHAM et al. v. LUCKENBACH et al.

District Court, D. Maine. August 30, 1905.)

No. 44.

1. COLLISION-STEAM AND SAILING VESSEL AT NIGHT-DUTY OF STEAM VESSEL TO KEEP VIGILANT LOOKOUT.

It is the duty of a tug, navigating in the nighttime in a place frequented by all kinds of vessels, to have the highest degree of vigilance and care on the part of her lookout, who should be stationed in the very best place possible for seeing and hearing, where he cannot be interfered with by conversation, and sufficiently near the stem to enable him to see objects lying low in the water; and the absence of a lookout so stationed, and exercising such vigilance and care, is prima facie evidence that the tug was in fault for a collision with a sailing vessel, which should have been seen in time to have been avoided.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Collision, §§ 140-146.]

2. SAME-UNAVOIDABLE ACCIDENT.

The fact that a tug's wheel jammed and prevented the changing of her course in time to avoid collision with a crossing schooner was not an unavoidable accident which will exonerate the tug from fault, where the jamming was the result of the suddenness with which the wheel was turned, which would not have been necessary if the schooner had been seen when she should have been, if the tug had kept a proper lookout. 3. SAME-LIGHTS-CONFLICTING EVIDENCE CONSIDERED.

The testimony of men engaged in navigating a schooner, which was sunk by collision with a tug at night, that the schooner's side lights were burning, is not weakened by the fact that they also testify that they looked at the lights after the tug was seen approaching, such act being a natural one with careful navigators; and their positive testimony to the fact will outweigh the negative testimony of those navigating the tug that they did not see the schooner's lights, especially where their position on the tug was not a favorable one for the purpose.

4. SAME-VESSELS CROSSING-FLARE-UP LIGHT.

A schooner cannot be charged with fault because she did not show a flare-up light to a steamer approaching from forward of her beam, but such action would, on the contrary, have been a fault.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Collision, § 114. Signals of meeting vessels, see note to The New York, 30 O. C. A. 630.] 5. SAME TUG AND SCHOONER-DUTY OF SCHOONER TO KEEP HER COURSE.

A schooner which was sailing close-hauled, and was privileged over a tug approaching on a crossing course, will not be held in fault for a collision, because she kept her course as required by the rules, unless it clearly appears that there were special circumstances which required a change of course.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Collision, § 48.] 6. SAME.

A collision at sea in the night, a few miles out from the harbor of Portland, Me., between a tug leaving that port and a crossing schooner, held to have been due solely to the fault of the tug, by reason of her failure to see the schooner in time, through inattention and lack of vigilance on the part of her lookout. The schooner held to have been without fault.

In Admiralty. Suit for collision.

Benjamin Thompson, for libelants.
Peter S. Carter, for respondents.

HALE, District Judge. This case arises from a collision which occurred on the 16th day of November, 1904, at half past 9 o'clock in the evening, about three miles south by west from Cape Elizabeth lightship, between the libelants' schooner, Vidia M. Brigham, and the respondents' steam tug, Walter A. Luckenbach.

The steam tug is 1341⁄2 feet in length, 26 feet beam, 162/10 feet deep, 295 tons net tonnage, and of 900 horse power. She is employed by the respondents in towing on the Atlantic coast. She left her dock in Portland at about 8 o'clock in the evening of the collision, bound for Providence, and was making from 9 to 15 knots. Capt. Daly, her master, was in the pilot house in charge. From the time she left her dock up to the time of passing the Cape Elizabeth lightship, he was also performing the duties of lookout. Nelson Farrow was engaged in caring for the dock lines and putting them below, until the tug reached a point near the Cape Elizabeth lightship, when he entered the pilot house and was acting as lookout, standing at the fore window on the port side. The steam tug's course, from the time she left Portland Harbor up to the time of passing the lightship, was southeast by south. At that point she changed her course to S. 34 W., and continued on that course until about the time of the collision. Neither the captain nor the lookout observed any light, or the sails of any vessel, until the upper part of the sails of the schooner loomed up under the steam tug's bow. They did not at that time see the jibs of the schooner, nor any lights upon her. When the sails of the Brigham were first seen, the bells to stop and full speed astern were immediately given and obeyed in the engine room. Capt. Daly attempted to put the wheel hard aport, but, owing to the quick movement of the wheel, the steam steering gear became jammed, and before the tug's course could be very much changed the vessels came together.

The schooner was a fishing vessel 97 feet long, 20 feet and 8 inches beam, 9 feet and 8 inches deep, and of about 53 tons net tonnage. She was on a voyage from Gloucester, Mass., to Boothbay Harbor, Me., and was proceeding, under her four lower sails, close-hauled, on the port tack, full and by, making about 9 knots. Her course was about E. by N. to E. N. E. She had two men on deck-John Daly at the wheel, and Everard W. Doughty forward on the lookout. While she was thus proceeding, about 9 o'clock, the watch on deck observed a steamer, which proved to be the steam tug coming out of Portland Harbor on a southeasterly course. This fact was noted by the two men on the schooner's deck. After the tug passed the Cape Elizabeth lightship, she was observed to swing to the south. Her green light and mast headlight were seen by those on the schooner's deck, and continued to be seen until she was a short distance away from the schooner, when the tug was observed to swing to starboard, so that both lights were visible. Very soon after she struck the schooner on the port side about 10 feet forward of her stern, cutting the stern completely off. The port side of the schooner swung alongside of the steam tug. The schooner sank a few minutes after the collision; the crew having barely time to get out their dories and row to the tug. All of the crew of the schooner were rescued, with the exception of Daly, the wheelsman, who was drowned.

This libel in personam is brought by the master, in behalf of the owners and crew of the schooner, to recover damages for the loss of the schooner, her outfits and stores, and the personal effects of the

crew.

1. The principal fault alleged against the tug is that she did not have a proper lookout, and for that reason did not discover the schooner in season to keep clear of her.

The night was cloudy. The moon set about midnight. There is much conflict of testimony as to how dark it was, and as to how far the sails of a vessel could be seen. The testimony offered by the libelants tends to show that lights could be seen a mile and a half away, and that the sails of a schooner like the Brigham could be seen from half a mile to a mile. On the other hand, the evidence of those on the deck of the tug is that the night was dark, cloudy, and gray, a "phosphorous night," when objects lying low in the water could not be seen by an approaching vessel until within a very few feet. The tug changed her course at the lightship, and from that point was heading S. 34 W. The schooner's course was E. by N. to E. N. E. The tug, then, as she approached, could not have been more than three points forward of the schooner's beam. The vessels were therefore approaching each other approximately at right angles. The schooner had two masts, and presented the surface, and not the edges, of nearly new, white sails to the view of the tug. The testimony of the keeper of the lightship, and of other unprejudiced witnesses, leads me to the belief that such sails could have been seen by a vigilant lookout in season to have avoided the collision. Up to the lightship, the captain alone was performing the duties of lookout, as well as the duties of wheelsman. When near the lightship, Farrow came into the pilot house and

undertook to perform the duties of lookout, standing at the fore window on the port side. The tug was going out of Portland Harbor in the path of commerce, a place frequented by vessels of all kinds. She was under the duty, then, to have a lookout stationed at a point best suited for the purpose of hearing and seeing the approach of objects likely to be brought into collision. The United States Circuit Court of Appeals for the Fourth Circuit, in The Vedamore, 137 Fed. 844, holds that a lookout should be placed in the bow of the ship; that the bow is the best position from which to hear sounds and observe objects; and that it will not avail a ship, which is bound to properly place her lookout, to show that its deck was so overcrowded that proper room could not be reserved for stationing a lookout. Judge Waddill, in speaking for the court, refers to The Michigan, 63 Fed. 280, 288, 11 C. C. A. 187, in which Judge Hughes used the following language.

"It was a flagrant fault in The Michigan that on the occasion of this collision she had no lookout in her bow, close up to her stem, in position to look over the point of the vessel on each side, and to discover in good time vessels that might be ahead of her in her course."

In The New York, 175 U. S. 204, 20 Sup. Ct. 73, 44 L. Ed. 126, the court said:

"Her officers failed conspicuously to see what they ought to have seen and to hear what they ought to have heard. This, unexplained, is conclusive evidence of a defective lookout."

In The George W. Childs (D. C.) 67 Fed. 269, the court said:

"The night was favorable to seeing. The schooner's sail was new and bright in color, and I am convinced that she was not seen earlier, only because of the tug's neglect to maintain a proper lookout. The statement that it is not customary for tugs to maintain a more vigilant lookout than this tug had is immaterial. The law determines their duty in this respect, and they cannot avoid it without becoming responsible for the consequences. While I believe it to be clear that a proper lookout would have discovered the sloop in time to keep off, it is not necessary that this fact shall affirmatively appear, except as a result of the inference stated."

*

*

In The Patria ( D. C.) 92 Fed. 411, Judge Addison Brown held a steamer in fault for not having a lookout stationed forward at the bow, and held that, if on account of any weather conditions it was desirable to have a lookout as high above the deck as possible, this would not be a justification for the omission to keep a good lookout at the bow. In The Genesee Chief, 12 How. 463, 13 L. Ed. 1058, the court said: "It is the duty of every steamboat, traversing waters where sailing vessels are often met with, to have a trustworthy and constant lookout besides the helmsman. * And whenever a collision happens with a sailing vessel, and it appears that there was no other lookout on board the steamboat but the helmsman, or that such lookout was not stationed in a proper place, or not actually and vigilantly employed in his duty, it must be regarded as prima facie evidence that it was occasioned by her fault."

In The George M. Dallas, Fed. Cas. No. 5,338, the District Court held that the steamer was in fault for not having a competent lookout stationed in the forward part of the boat, whose duty it was to descry

and report to the proper officer vessels approaching at the earliest possible moment. Nelson, Circuit Justice, on appeal said:

"She [the steamer] had no lookout, in the maritime sense of that term. pilot and captain were in the pilot house, which was some 50 feet from the stem of the vessel."

In The Ottawa, 3 Wall. 268, 273, 18 L. Ed. 165, 167, the court said: "Steamers are required to have constant and vigilant outlooks stationed in proper places on the vessel. ** * Proper lookouts are competent persons other than the master and helmsman, properly stationed for that purpose on the forward part of the vessel; and, in general, elevated positions, such as the hurricane deck, are not so favorable situations as those more usually selected on the forward part of the vessel, nearer the stem. Persons stationed on the forward deck are nearer the water line, and consequently are less likely to overlook small vessels, deeply laden, and more readily ascertain their exact course and movements."

In St. John v. Paine, 10 How. 557, 13 L. Ed. 537, the court said: "We are also satisfied that the steamboat was in fault in not keeping at the time a proper lookout on the forward part of the deck, and that the failure to descry a schooner at a greater distance than half a mile ahead is attributable to this neglect. The pilot house in the night, especially if dark, and the view obscured by clouds in the distance, was not the proper place, whether the windows were up or down. The view of the lookout stationed there must necessarily have been partially obstructed. A competent and vigilant lookout stationed at the forward part of the vessel, and in the position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steamboat from blame in case of accident in the nighttime, while navigating waters on which it is accustomed to meet other water craft." The Caro (D. C.) 23 Fed. 734; Haney v. Packet Company, 23 How. 287, 16 L. Ed. 562; The Northern Indiana, 3 Blatchf. 92, Fed. Cas. No. 10,320; The City of Philadelphia v. Gavagnin, 62 Fed. 617, 10 C. C. A. 552.

In the case at bar the steamer was navigating in the nighttime in a place frequented by all kinds of vessels. At such a time and place the highest degree of vigilance and care must be expected from the lookout. While it is impossible to lay down the specific rule that the pilot house of a tug is always an unsuitable place for a lookout, I must come to the conclusion that in the nighttime, in the path of commerce, a tug should have her lookout stationed in the very best place possible for seeing and hearing, in a position where he cannot be interfered with by conversation, and sufficiently near the stem to enable him to see objects lying low in the water. I am constrained by the proofs to believe that the tug should have seen the schooner in time to keep clear of her. The fact that she did not see her is sufficient, in my opinion, to impute negligence upon the part of the lookout. I will not undertake to decide whether he was prevented from seeing her by his location in the pilot house, or by his inattention and lack of vigilance. From the cases to which I have referred, it will be seen that the courts have generally held that a point nearer the stem of a vessel is a more approved place for a lookout to be stationed, and that the fact that there were davits or other tackle on the forward part of the tug cannot be an excuse for locating a lookout in a place less adapted to his purposes; but, in whatever position he was stationed, he was charged with knowledge that his steamer was sailing in the nighttime in the path of vessels, and that the time and place call for a high degree of