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securing of credit by reason of his apparent unconditional ownership. The record gave notice that he was not such unconditional owner. There was no secret lien," etc.

In the case at bar there was an attempted lien, absolutely secret, not even made known to the vendee, and never intended to be brought to light unless the vendee should become insolvent. The vendee was put in possession of a large number of wagons, of which he was apparently the absolute owner. There was a secret attempt on the part of the vendor, should the vendee succeed in getting credit by having about him a large amount of unincumbered property, and should thereafter be unable to pay debts so incurred, to make time notes given for said property "immediately due and payable," and the vendee deliver to the vendor all goods remaining unsold, and all the while. they should remain in the name of the vendor. I cannot conceive in what manner the vendor anticipated that the goods could remain in its name when possession was passed to the vendee, and no record made of the transaction. It has been repeatedly held that, when personal property is delivered to a vendee for sale, or to be dealt with in a way inconsistent with the ownership of the seller, or so as to destroy his lien or right of property, the transaction cannot be upheld as a conditional sale, and is fraud upon the creditors of the vendee. In re Garcewich, supra; In re Carpenter, 11 Am. Bankr. Rep. 147, 125 Fed. 831; In re Howland, 6 Am. Bankr. Rep. 495, 109 Fed. 869; In re Rodgers, 11 Am. Bankr. Rep. 93, 125 Fed. 169, 60 C. C. A. 6; In re Butterwick, 12 Am. Bankr. Rep. 536, 131 Fed. 371.

In no case decided by the Supreme Court, to which my attention has been called, has the court upheld secret liens or mortgages upon goods designed for sale or so tainted by fraud as to creditors as this case appears to be.

The petition is dismissed.

THE MONTEREY.

(District Court, S. D. New York. May 31, 1907.)

1. COLLISION-STEAMER AND PILOT BOAT-DUTY OF STEAMER.

A steamer approaching a pilot boat fulfills her entire duty by maintaining a reasonable speed and a fixed course after the vessels are so near together that a change might embarrass the pilot boat in her endeavor to approach.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, §§ 43, 44.]

2 SAME-NEGLIGENT NAVIGATION OF PILOT BOAT.

The sinking of a schooner pilot boat at sea in the night by being run down by a steamer held due solely to the fault of the pilot boat in so changing her course as to cross the steamer's bow, and in leaving the wheel lashed while the pilot went below, leaving no lookout.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 50.]

In Admiralty. Suit for collision.

Carter, Ledyard & Milburn, for libelant.

Wing, Putnam & Burlingham, for claimant.

HOUGH, District Judge. This action is for collision between the schooner pilot boat Hermit and the steamship Monterey, shortly after 4 a. m. of December 15, 1906, and some few miles to the southward of the Sandy Hook Lightship. By the collision the Hermit became a total loss; the Monterey was uninjured.

The testimony has been wholly taken by deposition, and this decision is rendered without the court's seeing or hearing any witness. and therefore without the great advantage always gained therefrom.

I am of opinion that the wind at and before the time of collision was a light breeze, sufficient, however, to give the pilot boat a movement with the wind abeam, or nearly so, of about four knots per hour.

The direction of the wind is in controversy, but it is so obvious that those upon a sailing vessel must necessarily pay the stricter attention to the wind's direction that I have assumed that it was approximately southeast by south, as stated by libelants.

There was a very moderate sea, to which conclusion I am drawn by the admitted experiences of the shipwrecked crew after collision; when in a greatly overloaded yawl they evidently had no difficulty in making their way to the steamer, and pulling one of their number out of the water en route.

The speed of the Monterey at the time of collision was small: indeed, I think she had nearly stopped her way. This is shown by the ease with which the shipwrecked men in their yawl rowed to her. and also by the fact that, although the steamer struck the schooner full on the starboard, while the yawl was trailing alongside on the port, the shock of the blow was not sufficient to swamp the yawl or interfere with most of the schooner's crew stepping directly into it from the deck. The Monterey is 341 feet long, with a gross tonnage of 4,702; while the Hermit was but 80 feet long, with a tonnage of 70. And, if the larger vessel had not nearly stopped at the time of collision, I think it obvious that the Hermit would have been literally driven under the water, the yawl been swamped, and serious loss of life ensued.

The time of the collision can be very nearly fixed as at 4:03 to 4:05 by the Hermit's clock, and at 4:06 by the deck time of the Monterey, In my computations I have used the time of the Hermit's clock, and assumed that the Monterey's time was approximately two minutes faster. This has been done because the clock on the Hermit was favorably situated for observation by her navigators, and I perceive from the depositions no reason to impugn their honesty of intent in statements of time.

The evidence is singularly barren of estimates of distance, and such as are given do not seem valuable, for the night was very dark, though clear, so that lights could readily be seen, but the ships themselves were concealed from each other until collision was inevitable. I do not think that the estimate even of an experienced mariner as to the distance at which he sees a light alone can be relied upon.

It is obvious from the record, and is indeed admitted by both counsel, that this collision could not have happened without either (1) such inattention on the part of the Hermit as laid her course directly

across that of the Monterey; or (2) from an unlawful change of course and maintenance of high speed, on the part of the Monterey, after the pilot boat began her endeavor to approach the steamer.

I do not think the charges against the Monterey are sustained, and find the schooner solely liable.

1. The Fault of the Hermit.

While a comparison of the courses given from the two vessels leads to the belief that there was some divergence between the reading of the Hermit's compass and that of the standard compass on the Monterey, it is to me obvious that upon her own story the schooner must be condemned.

When the masthead light of the Monterey was seen Pilot, Warner was in charge of the Hermit, lying hove to and heading east by South. He wore ship to head south by west half south, and steered along by the wind. He then saw the steamer's red light bearing about south by east a little easterly, and when she had burned a blue light he called the next pilot for duty (McCarthy) at 3:35 a. m.

For reasons entirely unexplained, McCarthy did not come on deck and take charge until 3:50; and, when he did, his vessel was still heading south by west half west on the port tack, the wind was from the same direction as first above noted, and he saw the red light. Thereupon he maintained his course for a period which he states by the clock as seven minutes, and then took a bearing of the approachng steamer, and found she bore south southeast easterly, still showing her red light only.

It does not appear that Warner and McCarthy compared their respective bearings of the Monterey; but McCarthy states that, when he took his bearing, he thought the Monterey to be about a mile to a mile and a half dead to windward, and steering about north.

A comparison of bearings would have shown that the steamer was broadening off the Hermit's port bow with considerable rapidity, and was therefore going at a good speed, and McCarthy's own observation should have told him that on her supposed course the Monterey would rass the Hermit (even if she had not worn) within rather less than two-thirds of a mile. Yet just when these facts were, or should have een, obvious, McCarthy decided to come up on the wind and sail to the eastward, in order to get still nearer the steamer before dropping yawl; and he therefore gave the order to wear ship, hove his wheel aport, clamped it there, and selected this time to go down into the cabin, open the stove door, and pick up and repack his clothes, which the movement of the vessel had thrown upon the deck. This inopportune visit below occurred at 3:57 by his clock, and he feels ure that the collision happened not later than 4:03. He declares that before the collision he had time to get on deck and unclamp his wheel, which he says he continued to hold hard aport until collision was inevitable.

his

hard

I cannot believe that in this effort he was wholly successful. He was bound to know that his vessel would wear with a continually increasing radius of maneuver as the wind bore more abaft, that eas

ing the wheel would lengthen that radius, and that the then existing arrangement of the Hermit's sails tended to produce forereaching.

The testimony of the other men on the Hermit induces belief that while McCarthy was below there was no lookout; and, indeed, it is hardly too much to say that no one was in charge of the schooner. Except for jibing the booms, she seems to have been left to sail herself, and when the green light of the steamer appeared it is evident that the observers on the Hermit are rather arguing that they could not have sailed across the Monterey's course, than asserting that they did not. The maneuver was a delicate one at best, demanding close attention, as well as great skill, and I am convinced that the Hermit, by thoughtlessness on the part of the pilot in charge, and complete absence of proper lookout, was permitted to do that very thing.

2. The Faults Alleged Against the Monterey.

The difference in reading between the compasses of the two vessels is the probable reason why no diagram has been offered endeavoring to harmonize the courses stated in evidence. With the Monterey bearing south southeast a little easterly from the Hermit, some six to eight minutes before collision, and the Monterey steering north northwest (magnetic), there must have been some difference between the compasses seen, or collision would have been obviously probable to both in ample time to avoid it. As neither vessel says that this was the case, comparison of compass bearings must be abandoned, and the inquiry becomes this: Did the Monterey change her course at or after the time that McCarthy on the Hermit began to wear ship?

By the largest estimate (i. e., on the supposition that the clocks on the two vessels were synchronous) this space was no more than nine minutes, and whatever would have been the course indicated by the Hermit's compass had it been placed on the Monterey, or vice versa, I am convinced that the steamer did not change her course at any time after 3:53 by her own clock. On this point I attach great importance to the fact that the watches were changed on the Monterey at 4 a. m., and can see no reason to doubt the testimony of the quartermasters that the course was laid as north northwest (magnetic) several minutes before the relieving quartermaster appeared in the pilot house.

It is often looked upon as a venial offense in a seaman to swear by his ship; but it is not believable that the two quartermasters on the Monterey could have withstood cross-examination, if it had not been true that the course, maintained until collision was inevitable, had been established so long before 4 a. m. as to take from this litigation every element of danger by reason of any change of course on the part of the Monterey. Within the well-known rules relied upon by the libelants (City of Washington, 92 U. S. 31, 23 L. Ed. 600; The Columbia [C. C.] 27 Fed. 704; The Alaska [C. C.] 33 Fed. 107; The Champagne [D. C.] 43 Fed. 444), a steamer approaching a pilot boat fulfills her entire duty by maintaining a reasonable speed and a fixed course. That does not mean that the course shall be unchanged from the time when the vessels sight each other miles apart, but that it

shall not be so changed as to embarrass the pilot boat in her endeavors of approach.

At 3:57 a. m. (or say 3:59 a. m. Monterey time), the Hermit began. to maneuver to approach the steamer. From that time I think the Steamer was bound to maintain a steady course,

She did so, and

had been doing so for at least six minutes before. The speed of the Monterey shortly before 4 a. m. was approximately 10 knots; her bottom was very foul, and she lost way quickly. Whether this was a convenient speed for taking on a pilot is immaterial, for, whether the Monterey's speed was low or high, she was entitled to assume that the Hermit would not cross her bow. When the green light of the schooner appeared, it was, by all the testimony, too late to do anything, and whatever was done, or sought to be done, by either party after that moment, was in extremis. Let the libel be dismissed, with costs.

In re FRIEDMAN.

(District Court, S. D. New York. May 7, 1907.)

1. BANKRUPTCY-FRAUDULENT TRANSFER.

A bankrupt shoe dealer sold his entire stock, receiving $3,850 therefor, which was given to his wife. She testified that she did not understand the matter, and did not remember whether she received any money, though early on the morning after the sale she met her brother, told him of the sale, and shortly thereafter the brother deposited with a trust company $3.070, which he testified was obtained from his brother-in-law, W., in repayment of certain loans which neither were able to identify. Thereafter the wife's brother, on being served with a subpoena in bankruptcy for his examination, called on W., and gave him a check for $2,500 without solicitation, which check was immediately certified and paid. Held, that the transaction was a scheme to defraud the bankrupt's creditors, and that the fund would be ordered paid over to the trustee.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 274.]

2. SAME-SUMMARY PROCEEDINGS.

Where the proceeds of a sale of a bankrupt's business were found to be in possession of certain persons, who were a mere cover or receptacle for the property to conceal it and prevent it being reached by the bankrupt's creditors, it was recoverable by summary proceedings; the trustee not being required to resort to a plenary suit for that purpose.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, 8 447.] On the night of March 17, 1907, the bankrupt. a shoe dealer, sold his entire stock, receiving therefor $3.850, which, it was alleged, was given to his wife, The latter testified she was suddenly called to the store, where she saw teral strangers, but was so excited she was unable to understand what was Panspiring, and she could not remember whether she received any money. Early the next morning she met her brother, L.-a Coney Island photographer, a small way of business-at the Manhattan entrance of Brooklyn Bridge, by dent, as she testified; told him of the sale, and that her husband had gone away; whereupon L. returned to Coney Island to search for the bankrupt, and returned home. A notary public, who drew the bill of sale, testified that Creceived the money. On March 19th, L. deposited in cash in a trust comay at Coney Island the sum of $3,070, which he testified was obtained from W. his brother-in-law, in repayment of loans made at various times several years past, though the exact dates of such loans were unknown, as he kept 20 record, and that they were made in cash, although L. kept a bank account.

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