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Statement of Facts.

"2. That the L. P. Dayton, at the time of the said collision, while navigating the waters of the Hudson River and engaged in towing canal-boats or barges, failed and omitted to have white lights placed in the extreme outside of the tow on either hand.

"3. That the pilot in charge of the said tug L. P. Dayton and the canal-boats or barges in tow thereof, after having received and answered the signal of two blasts from the steam whistle of the James Bowen, instead of keeping to the eastward and passing the said James Bowen on her starboard side, improperly changed his course so as to cross the bows of the said James Bowen, thereby bringing the bow of the said canal-boat Centennial into collision with the said float or scow Number Four.

"4. That the said tug L. P. Dayton, when danger of collision became imminent, did not in season reverse her engine, so as to prevent a collision.

"5. That the said tug-boat L. P. Dayton was not pro vided with a suitable or competent lookout properly stationed at and before the time of the collision.

"6. That the said tug L. P. Dayton was also negligent in proceeding at too great a rate of speed, the tide being ebb and the wind from the north west.

"7. That the said tug L. P. Dayton, after twice blowing her whistle as aforesaid, did not keep on her course, but ported her wheel and went to starboard, showing her red light to the James Bowen and the said float before reversing and attempting to go back.

"And this respondent, upon information and belief, says that the said collision was in no way due to any fault on the part of the said scow or float Number Four or of the said tug James Bowen, and upon information and belief he denies each and every allegation in the said libel and in the supplement filed thereto contained charging or imputing any fault. or negligence whatever to the said float, or those in charge thereof, or the said tug James Bowen, or those in charge thereof, and each and every allegation in the said libel contained respecting the said collision, except as herein before expressly admitted."

Statement of Facts.

Arthur B. Twombly, as surviving partner of Whitney & Twombly, intervened as owner of the steam-tug L. P. Dayton, and answered the libel as follows:

"Second. This respondent admits that on the 14th day of February, 1879, the boat Centennial, of the burden of about 300 tons, and of which the libellant was master, was taken in tow by the steam-tug L. P. Dayton, at the pier foot of Fifty-ninth Street, New York, to be towed to the Erie basin, at about half-past five o'clock P.M., and that she was loaded with a cargo of wheat, of the quantity of which he is not informed, nor is he informed whether the said boat was then. staunch and seaworthy, but leaves the libellant to make such proof in reference thereto as he shall be advised.

"He admits that when the Dayton left Fifty-ninth Street pier she had in tow four boats, two on each side, and that the Centennial was the inside starboard boat; that she was one hundred and three feet in length, and that her bow projected some twenty feet beyond the bow of the steam-tug L. P. Dayton; that the evening was clear and starlit and the tide ebb, and that the tug landed one of the boats that had been on her port side at the Eagle pier, Hoboken, and that she thereafter pursued her course with the remaining three boats, and that when about opposite or a short distance above Pier No. 1, North River, and about three hundred yards from the piers on the New York shore, the Centennial was run into by the scow Number Four, which was then in tow of the steam-tug James Bowen, and received such injuries that she sank with her cargo.

"And he admits that the said scow was lashed on the port side of the James Bowen and that the said tug and scow were proceeding from a point in the East River to the Long Dock, Jersey City, and that at the time of the collision she was on a course opposite or nearly opposite the course then being taken by the L. P. Dayton and her tow.

"He denies that it was through any carelessness of the persons in charge of the L. P. Dayton that said tows were not kept clear of each other.

"He admits that the Centennial was under the control

Argument for Appellant.

and subject to the direction of the L. P. Dayton, having neither propelling nor steering power of her own.

"And as to the various allegations of fault on the part of the L. P. Dayton, he denies the same and each one of them. "And as to the allegations in said libel in respect to the damages sustained by the libellant, he has no knowledge and leaves the libellant to his proof thereof.

"And he further avers that said tug L. P. Dayton was wholly without fault which caused or contributed. to said collision, and the same was wholly caused by fault of those on board and in charge of the said tug James Bowen and said scow Number Four, as alleged in said libel.

"And he alleges that the tug L. P. Dayton was well and properly manned and had the requisite lights set and burning brightly according to law, and that the tow was in all respects properly made up; that the two tugs were approaching in such a way that the proper course was for each to pass on the starboard side of each other, and that the proper measures were taken by said tug L. P. Dayton to pass in that manner and the proper signals were blown, but that said tug James Bowen failed to give heed to said signals and to take proper measures to pass on the starboard hand of said tug L. P. Dayton and the boats in her tow, but so negligently navigated as to bring the said scow against the said boat Centennial and also the boat on the port side of the L. P. Dayton."

The case was heard in the District Court on the pleadings without testimony, and a decree was passed dismissing the libel. 10 Ben. 430. On appeal to the Circuit Court, the case was again submitted on the pleadings alone, when the same decree was rendered. 18 Blatchford, 411. The present ap peal was from that decree, and presents the single question of law whether upon the pleadings, without testimony, there is error in that decree.

Mr. Edward D. McCarthy, for appellant, cited: The Scioto, 2 Ware, 359; The Nautilus, 1 Ware, 529; The Alabama and The Gamecock, 92 U. S. 695; The Johnson, 9 Wall. 146; Sproul v. Hemmingway, 14 Pick. 1; S. C. 25 Am. Dec. 350;

Argument for Appellee.

Sturgis v. Boyer, 24 How. 110; The Atlas, 93 U. S. 302; Clark v. Barnwell, 12 How. 272; Canfield v. Balt. & Ohio Railroad, 93 N. Y. 532; Stokes v. Saltonstall, 13 Pet. 181; Platt v. Ilibbard, 7 Cowen, 497; Clark v. Spence, 10 Watts, 335; Beardslee v. Richardson, 11 Wend. 25; S. C. 25 Am. Dec. 596; Doorman v. Jenkins, 2 Ad. & El. 256; Ware v. Gay, 11 Pick. 106; Christie v. Griggs, 2 Campb. 79; Transportation Co. v. Downer, 11 Wall. 129; The Marpesia, L. R. 4 P. C. 212; The Benmore, L. R. 4 A. & E. 132; The Abraham, 2 Aspin. 34; The Bolina, 3 N. of Cas. 208; Scott v. London, &c., Dock Co., 3 H. & C. 596; The Quickstep, 9 Wall. 665; Dutton v. The Express, 3 Cliff. 462; The Express, Olcott Adm. 258; S. C. 1 Blatchford, 365; The Rhode Island, Olcott Adm. 505; Treadwell v. Joseph, 1 Sumner, 390; The John Adams, 1 Cliff. 404; The Lochlibo, 3 W. Rob. 310; The Gautier, 5 Ben. 469; The Sea Nymph, Lush. 23; The Webb, 14 Wall. 406; The Brazos, 14 Blatchford, 446; Ins. Co. v. Newton, 22 Wall. 32; Carver v. Tracy, 3 Johns. 427; Wailing v. Toll, 9 Johns. 141; Fenner v. Lewis, 10 Johns. 38; Credit v. Brown, 10 Johns. 365; Burmon v. Woodbridge, 2 Doug. 781; Rex v. Clews, 4 C. & P. 221; Delamater v. Pierce, 3 Denio, 315; Bearss v. Copley, 10 N. Y. 93; Barnes v. Allen, 30 Barb. 663; Trimleston v. Kemmis, 9 Cl. & Fin. 749, 780-784; Morrison v. Clark, 7 Cush. 213; Cent. Bridge Co. v. Butler, 2 Gray, 130; de Nemours v. Vance, 19 How. 162; Pope v. Nickerson, 3 Story, 465; The Clement, 2 Curtis, 363.

Mr. Joseph F. Mosher, for the L. P. Dayton (Mr. James E. Carpenter was with him on the brief), cited: Transportation Line v. Hope, 95 U. S. 297; The Margaret, 94 U. S. 494; The Webb, 14 Wall. 406; The Brazos, 14 Blatchford, 446; The Brooklyn, 2 Ben. 547; The Frank G. Fowler, 21 Blatchford, 410; The M. Vandercook, 24 Fed. Rep. 472; The Quickstep, 9 Wall. 665; The Deer, 4 Ben. 352; The W. E. Gladwish, 17 Blatchford, 77; The B. B. Saunders, 23 Blatchford, 378; The New Champion, Abbott Adm. 202; The William Young, Olcott Adm. 38; The Neptune, Olcott Adm. 483, 493; The Breeze, 6 Ben. 14; The Columbus, Abbott Adm. 384; The Summit, 2 Curtis, 150; The Eri, 3 Cliff. 456, 460; The

Opinion of the Court.

Kallisto, 2 Hughes, 128; The Ligo, 2 Hagg. Adm. 356, 360; The Bolina, 3 N. of Cas. 209; The Adolph, 4 Fed. Rep. 730; The Marpesia, L. R. 4 P. C. 212; The Abraham, 2 Asp. N. S. 34; The Benmore, L. R. 4 A. & E. 132.

Mr. William D. Shipman for the Bowen.

Mr. Charles M. Da Costa, for appellant, cited the following cases not cited by Mr. McCarthy: The George, 9 Jur. Pt. I, 670; The Victoria, 3 W. Rob. 49; The Telegraph, 1 Spinks, 427; S. C. 8 Moore P. C. 167; The Hibernia, 4 Jur. N. S. Pt. I, 1244; The Bothnia, 2 Law Times N. S. 160; The Despatch, 3 Law Times N. S. 219; The Annapolis, 5 Law Times N. S. 326; The Kepler, 2 P. D. 40; The Glengarry, 2 P. D. 235; The Andalusian, 3 P. D. 182; The La Cahapool, 7 P. D. 217; The George Roper, 8 P. D. 119; The Louisiana, 3 Wall. 164; The Granite State, 3 Wall. 310; The Syracuse, 12 Wall. 167; The Clarita and Clara, 23 Wall. 1; The Belknap, 2 Lowell, 281; Sterling v. The Jennie Cushman, 3 Cliff. 636; The Julia M. Hallock, Sprague, 539; The Bridgeport, 7 Blatchford, 361; The Delaware, 20 Fed. Rep. 797; The Brady, 24 Fed. Rep. 300; The Charlotte Raab, Brown Adm. 453; Hall v. Little, 2 Flipp. 153; The Fremont, 3 Sawyer, 571; Rose v. Transportation Co., 20 Blatchford, 411; Mullen v. St. John, 57 N. Y. 567; Seybolt v. N. Y., Lake Erie & Western Railroad, 95 N. Y. 562; Feital v. Middlesex Railroad, 109 Mass. 398; Philadelphia & Reading Railroad v. Anderson, 94 Penn. St. 351; Iron Railroad v. Mowery, 36 Ohio St. 418; Pittsburg, Cincinnati & St. Louis Railroad v. Williams, 74 Ind. 462; Eagle Packet Co. v. De Fries, 94 Ill. 598; Byrne v. Boadle, 2 H. & C. 721; Bridges v. North London Railway, L. R. 6 Q. B. 377.

MR. JUSTICE MATTHEWS, after stating the case as reported above, delivered the opinion of the court.

The ground on which the Circuit Court proceeded is, that as the libel alleges negligence and fault in various particulars as against the tug L. P. Dayton and the tug James Bowen,

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