Mr. F. A. Wilcox, for appellees: The Mary Eveline not only had a right, but it was her duty, to keep her course and beat out her tack. The Ethan Allen should have kept out of the way. Act 1864, 13 Stat. at L. 58; Navigation Rules, 12, 18; Whitney v. The Empire State, 1 Ben. 57; 1 Pars. Ship, 578; The Argus, Olcott, 304; The Blossom, Olcott, 188; The Rebecca, Blatchf. & H. 347; Allen v. Mackay, Spr. 219. The burden is on the libelant to show some good reason for not complying with the wellestablished rules of navigation. Mr. Justice Hunt delivered the opinion of the court: This is an appeal from the circuit court of the United States for the southern district of New York. On the afternoon of September 20, 1868, the sloop Ethan Allen and the schooner Mary Eveline came in collision while navigating the East river, near Blackwell's Island. The sloop was sunk and her cargo was lost. Her owners filed their libel against the schooner and her owners, claiming as damages the value of the sloop and her cargo. The libel was dismissed in the district court, and the decree was affirmed in the circuit court. The libelants appealed to this court. The Ethan Allen was going eastward through Hell Gate on her passage to some port in Connecticut. The wind was fresh and blowing from the southwest. She was running against a strong ebb tide, and for the purpose of avoiding the strength of the tide, was running close under the eastern shore of Blackwell's Island. Her hull was within about seventy-five feet of the wall of the island, and her sails on her port side came within twenty or thirty feet of the island. 349*] *The Eveline was sailing in the opposite direction, towards New York, and was close in company with the schooner Hawley, the latter being ahead. The two schooners were beating up against the wind. On the last tack before the collision The Eveline was so close to The Hawley that when the latter tacked the former was obliged to keep off so as to go under The Hawley's stern. By the time The Eveline got well under way on the last tack The Hawley had crossed the river, and made her next tack near the Blackwell shore, and passed but a little way in front of the Allen. The Eveline passed on under The Hawley's stern, keeping off the wind for that purpose. As she luffed to go about she ran directly into The Allen, striking her on the starboard bow. The answer admits that The Eveline took a direction to the leeward and astern of The Hawley, and that she just cleared her stern. It alleges, also, that the collision occurred through the sudden and confused orders of The Allen, and especially in this: that she first kept off and then luffed, whereby it became impossible for the Eveline to avoid the collision. The prima facie duty of avoiding the collision no doubt rested upon the vessel having the advantage of the wind. She was bound to adopt such course as would protect all the vessels, assuming that the other vessels would do their duty also. It was, however, the duty of the other vessels so to make their courses as not to render it embarrassing or difficult for the sloop to do her duty, or to make it doubtful what she should do in the emergency. The schooners were bound to take reasonable precautions on their part. The sloop, although having the wind, was not a guarantor against collision. The channel was some 650 to 750 feet in width. The schooners were each 160 feet in length, occupying one half of the width of the channel. The Allen was close to Blackwell's Island. Her position there was not only the best for herself, but in thereby giving to the schooners nearly the whole of the channel, was the best position on their account. She kept steadily on her course as near to the island as she could safely pass. The vessels had been in sight for some time and each well understood the position of the other. *The answer alleges that The Allen [*350 should have avoided the difficulty by luffing or keeping off. It does not, however, specify which she should have done. Her hull was within seventy-five feet of the island wall, and her sails within twenty or thirty feet of the wall. This was, of itself, a hazardous proximity. It would have been very unsafe to have lessened this distance. The evidence is that she was running as close to the shore as it was safe for her to do. She could not, therefore, have kept off. If she had luffed, she would have brought herself out into the narrow channel, where The Hawley and The Eveline were both beating across in front of her, and the danger of a collision would have been much greater than by adopting the course she did. We are of the opinion that, under the circumstances, The Allen did right in keeping her course, and that the fault was with The Eveline rather than with The Allen. If The Eveline had tacked when The Hawley did, she would have avoided the collision. This would have brought her out of the way, leaving the passage next to the island clear for The Allen. Again; she should not have changed her course by keeping away on the last tack, thus rendering necessary a larger sweep to go about, and bringing her nearer to The Allen, when her course could not be changed. If she was at this point in a position of embarrassment it was her own fault. She saw it in advance, should have known it, and avoided it by keeping further to the leeward of The Hawley, or by making her tack at an earlier period. She cannot shift upon another the consequence of an embarrassment produced by her own fault. The captain of The Eveline did not expect The Allen to luff into the channel. He testifies that he supposed she would go to the Blackwell Island side, and that there was plenty of room for her there. He acted upon this theory, in which we think he was greatly in error, and the collision was the result. On the most of the points of the case there is, as is usual in collision cases, a great conflict of evidence. Upon a careful *review of [*351 the testimony, we think the error was with the Nov. 22, 1871, the said motion for a new trial | preme Court of the United States, affirming having been argued on behalf of the defendants the judgment rendered by this court in favor in support of it, and on behalf of the said Rus- of said Russell, and the same was ordered by sell against it, before the court composed of this court to be placed on file. Drake, Chief Justice, and Loring, Peck and Nott, Judges, was submitted to the court. In conference thereon the said judges were equally divided in opinion; but the majority of them did not authorize any judgment to be entered in open court upon the motion; nor was any such judgment rendered. Dec. 11, 1871, while the said motion was still pending in conference before the judges to whom it had been submitted, the Assistant Attorney General filed a motion in open court to remand the said motion for a new trial to the law docket for a re-argument; and on the 13th day of said month, it was ordered by a majority of the court that a re-argument of the motion for a new trial should be granted; whereupon Judges Peck and Nott dissented, and Judge Nott read in open court and placed on file the following opinion, giving reasons for their dis sent: Jan. 29, 1872, the said motion for the new trial came up before a full bench of this court for re-argument, when a majority of the court decided, for the reasons stated in the following order entered on the record of the court, that the said motion should be dismissed; the Chief Justice and Loring, Judge, dissenting. ORDER. "In this case it was ordered that the defendant's motion for a new trial be dismissed for want of jurisdiction, because, since the same was made, the mandate of the Supreme Court had been filed affirming the judgment of the court in this case, and because two of the four judges before whom the motion was argued, and to whom it was submitted on the 21st of November, 1871, have heretofore rendered and filed their decision that the motion be denied upon the merits." Since the making of this order, no action has been taken by this court in reference to said *The reasons assigned in said order [*703 against the jurisdiction of this court to hear and determine said motion are the only causes which the majority of the court have to show why the alternative mandamus should not issue from the Supreme Court in this case. "The defendant's motion for a new trial in this case was argued before and submitted to four of the judges of this court for their deci-motion for, a new trial. sion. It was also stated on the argument by the counsel for the claimant, and conceded by the counsel for the defendants, that the Supreme Court had affirmed the judgment of this court. Subsequently, and while the motion was still undetermined, an oral suggestion was made by 702*] the Assistant Attorney General *that the case be remanded and heard before a full bench, the only legal reason assigned being the decision of the Supreme Court affirming the judgment of this court. The counsel for the claimant objected, on the ground that the decision of the Supreme Court had been known and was announced on the hearing. The suggestion of the Attorney General was not a motion, according to the rules of this court, but it was subsequently reduced to writing and filed. In regard to the motion for stay of payment of judgment in the case of said Russell, which was filed by the Assistant Attorney General, on behalf of the defendants, on the 11th of November, 1871, the undersigned respectfully state that no action has at any time been taken by this court in relation thereto, and it is now on the files of this court undecided. It was a motion to stay payment of said judgment pending the said motion for a new trial, and the Assistant Attorney General has not heretofore called it up for hearing. April 24, 1872. C. D. DRAKE, "We are of the opinion on these facts that the final judgment of this court, affirmed by the Supreme Court, is property which cannot be taken away except by proceedings in the form of law, and that it should be protected by the full discharge of our judicial duty; that the four judges who heard the motion, constituted a tribunal which can alone decide it, and that it is the right of the parties to have it decided by And the undersigned for themselves give them; that the fifth member of the court, who these additional reasons against the rule: that did not hear it, and to whom it was not sub- the defendants, by voluntarily arguing their mitted, can take no part in its disposition; that appeal in the Supreme Court, after having the suggestion of the Assistant Attorney Gen-made their several motions in the court of eral presents no legal or just ground for order- claims, which they did not proceed to argue in ing a re-argument; and that the defendant's apt time, and by allowing the Supreme Court motion for a new trial is unjust, inequitable to proceed to judgment thereon while their moand contrary to the intent of both the statute tions in the court of claims were still pending, and the common law, and it must be denied. were guilty of experimenting upon the deci"We are also of the opinion that this decisions of both courts in a manner prejudicial to sion by moiety of the four judges constituting the ends of public justice; and that the course the tribunal that heard the motion, and to pursued by them in the Supreme Court while which it was submitted, does, ipso facto, deny their motions in the court of claims were still the motion, according to the constant and in- pending, must be deemed a withdrawal of those variable practice of this court and of the Su- motions from the latter court; and that it was preme Court; and that, on its rendition, an against the course of justice for the defendants order should be entered by the court denying to subject the claimant to the expense and risk of a needless trial in the Supreme Court. the motion." Dec. 12, 1871, the attorney of said Russell produced in open court the mandate of the Su E. PECK, rupt act. Their debt had been overdue for two years, and throughout that period they had pressed the insolvent debtor for payment, both in person and through their agent, and it is not doubted that if they had made the least inquiry they would have been as successful as his other creditors were, a few days later, in ascertaining that he was hopelessly insolvent. Beyond doubt they knew that he had mortgaged his new brick store and lot to his wife's father, and when he finally consented to give them a mortgage on all or nearly all of his real estate, they were fairly put upon inquiry; and having neglected to make such they are justly chargeable with all the knowledge it is reasonable to suppose they would have acquired if they had performed their duty as required by law. Decree affirmed. in support of as against the same; it is now here ordered by the court that a rule issue to the judges of the court of claims requiring them to show cause on Thursday, the 25th inst., why an alternative writ of mandamus should not issue directing them to hear and decide certain motions for a new trial, and for stay of payment of judgment in the case of Russell v. United States. Per Mr. Chief Justice Chase. Answer of the Judges of the Court of Claims to the rule to show cause. In answer to the Rule of the Supreme Court of the United States, in the above matter, made Apr. 22, 1872, requiring the judges of the court of claims to show cause, on Thursday, the 25th instant, why an alternative writ of mandamus should not issue, directing them to hear and decide certain motions for a new trial, and for stay of payment of judgment, in the case of 699*] *Ex parte IN THE MATTER OF THE Russell, Petitioner, v. U. S., the undersigned, UNITED STATES, Petitioner. (See S. C. 16 Wall. 699–703.) the Chief Justice and Judges of the said court of claims, respectively submit to the Honorable, the Supreme Court of the United States, the folde-lowing statement of the facts connected with the the court of claims and the judges thereof, in motions specified in said rule, and the action of Court of Claims may grant new trial after cision in this court-mandamus to compel it to hear motions. The Attorney General moves the court here for an alternative writ of mandamus, directed to the said court of claims, commanding said court to hear and decide said motions for a new trial, and for stay of payment of judgment in the case of Russell v. U. S., or in default thereof, to show cause to the contrary, at a time to be named by this court. Rule to show cause, April 22, 1872. Ex parte in the matter of the United States. On consideration of the petition for an alternative writ of mandamus in this cause, and of the arguments of counsel thereupon had, as well reference to the first named of said motions: June 1, 1871, the Assistant Attorney General of the United States filed in the said court of claims, on behalf of the defendants, a motion for a new trial in the case of Russell v. U. S., and assigned as a ground for said motion that fraud, wrong and injustice had been done in the premises, in this: that, for a part of the amount for which judgment had been rendered by this court in favor of said Russell, the receipt in full had been found in the office of the third auditor of the treasury, which receipt had come to the knowledge of the Attorney General after the rendition of said judgment. eral filed in the clerk's office of the court a specSep. 18, 1871, the Assistant Attorney Gen. ification of additional reasons for a new trial in support of the motion filed by him June 1, 1871, as aforesaid; one of which specifications indi cated that, owing to a variance between the original depositions filed in the cause by the claimant and the printed copies thereof, upon which the judgment was rendered in favor of said Russell, the said judgment was largely in excess of the amount which the said Russell should have recovered, as appeared from the actual evidence in the case, which variance had come to the knowledge of the Attorney General after the rendition of said judgment in favor of said Russell; and the other of said specifications averred that it appeared, from the original receipts on file in the office of the third auditor of the Treasury, and from original reports on file in the office of the quartermaster general, copies of which receipts and reports were filed with said specifications, that the steamer J. H. Russell was not seized or impressed into the service of the United States, as alleged by said Russell and as this court found, but was employed by the United States simply as a common carrier; and that the said Russell had been paid in full for the service of said boat during the time covered by the judgment; and that said receipts and reports first came to the knowledge of the Attorney General after the rendition of said judgment in favor of said Russell. |
