against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances."

It does not follow as a matter of course, and as matter of law, that because the Pitts Vein Coal Company is located along the roadbed of the Baltimore & Ohio Railroad Company, or of one of the companies it controls and operates, and because it was at some time ready and willing to mine and ship coal as interstate commerce, that it was the duty of the Baltimore & Ohio Railroad Company to furnish said coal company with cars and motive power at all times. The coal company may be ready, willing, and able to provide shipments for such cars at one time, and still be incapacitated for so doing at other times. Such, in fact, is frequently the case with many shippers of property for interstate commerce, and hence it would be useless and needlessly expensive for the common carrier to provide for such shipments, unless it had been duly advised that the shipper was prepared to ship, and required cars and power for that purpose. In my judgment the count should allege that the Pitts Vein Coal Company was at the time charged prepared to make such shipments, and that it in due time made demand on the railroad company for cars and motive power, tendering at the same time for shipment its coal for transportation as interstate

commerce.

For the reasons indicated, I find it to be my duty to hold that all of the counts of each indictment, as well as both of the counts of the information, are defective.

Hence it follows that the defendants' demurrers will be sustained.

THE WESTHALL.

(District Court, E. D. Virginia. March 2, 1899.)

1. COLLISION-BURDENED VESSEL-STEAMER AND TUG WITH Tows.

As between a steamer and a tug with a cumbersome tow, the latter has the right of way, and upon the steamer is imposed the responsibility of exercising extra precaution to avoid collision.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 75.) 2. SAME DEFENSE TO LIABILITY.

Precautions required by law to be taken when there is risk of coll sion must be taken in time to be effective against such risk, or they will constitute no defense to liability if collision occurs.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 15. 3. SAME-TOW ON WRONG SIDE OF CHANNEL.

The fact that a tug with a large tow was on the wrong side of the chan nel, if admitted, would not prevent a recovery for a collision with meeting steamship which, having the tug and tow in full sight in the day time for a distance of 21⁄2 miles, violated her plain duty to keep out o the way, as she might readily have done.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 34.]

4. SAME CONTRIBUTORY FAULT-EVIDENCE TO ESTABLISH.

Where the vessel on which rested the burden to avoid a collision wa chargeable with faults sufficient in themselves to account for the colli

sion which occurred, she cannot escape liability on the suggestion of possible faults on the part of the other vessel, which is entitled to the benefit of all reasonable doubts.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 42.] 5. SAME EVIDENCE CONSIDERED-STEAMER AND MEETING TOW.

A tug with seven barges in tow passing down Elizabeth river in the daytime found it necessary to cross to the western side of the channel in order to take her tow to an anchorage on the Newport News flats, and had passed entirely out of the deep-water channel with all of her tows, except the last, which was still from 125 to 150 feet in the channel, when it came into collision with the steamship Westhal passing up the channel. The channel was at the place 500 feet wide, and the tow had been in view of the Westhall for a distance of 21⁄2 miles. The wind was from the west, and the tide flood, which somewhat retarded the movement of the tow to the westward. Held, that it was the duty of the Westhall to either stop at a safe distance until the barge was clear of the channel or to keep to the eastward, as she could easily have done, and that she was solely in fault for the collision.

In Admiralty. Suit for collision.

Whitehurst & Hughes, for libelant.

J. Parker Kirlin and Robert M. Hughes, for respondent.

WADDILL, District Judge. On the morning of the 3d day of April, 1896, about 9:30 o'clock, as the libelant's steam tug Peerless was proceeding down the Elizabeth river with seven barges in tow, the tow being some 1,320 feet in length, the respondent's steamer Westhall, an ocean-going steamship, collided with the E. E. Jackson No. 4, the rear barge in the tow.

The contention of those in charge of the tug and tow is that it became necessary and desirable, by reason of the condition of the wind, for the tow to cross from the eastern to the western side of the channel at a point between Crany Island Light and Boush's Bluff, with a view of coming to anchor on the Newport News flats, and after the tug had passed Boush's Bluff, and was herself far over to the westward of the channel with all the seven barges, save one, outside of the channel on its western side, and to the westward of the buoys, that the Westhall, upon proceeding down the channel from Newport News to the mouth of the Elizabeth river, and thence up the river, and having observed the presence of the tug and tow a distance of two and a half miles away, with nothing to obstruct the channel or disturb the navigation of the ship, she, without giving proper signals either of danger or to pass, ran into and upon the rear barge, causing the injury sued for; whereas the respondent contends that the Westhall was free from fault, that she left the elevator at Newport News at 8:20 on the morning of the collision for Lambert's Point, under charge of a Virginia pilot, and with a proper and efficient lookout, drawing 23 feet 2 inches of water, the wind blowing a fresh gale from the west, and, after turning into the channel of Elizabeth river off Sewell's Point at can buoy No. 4, the navigators of the steamer observed ahead the tug and tow at a distance of 2 miles away, which were taking up most of the channel, the tug being far to the westward, headed between north and west, making it impossible for the steamer to pass on the western side of the channel, so she kept on cautiously,

frequently stopping or slowing down, keeping only steerage way, with the intention of passing to the eastward of the barges, but that, on approaching nearer, it became evident that the tug and tow were taking practically the entire deep water channel for a ship the size of the Westhall. She thereupon stopped at a distance of some three lengths of the ship from the barges and starboarded to get as far as possible out of the way, which maneuver caused her to ground on the eastern side of the channel, when the Jackson drifted down and struck her on the starboard bow, thereby causing the injury. Considerable evidence was taken by the parties, respectively, and the usual conflict in collision cases was increased by the large number of witnesses examined from the crews of the ship and of the tug and tow; and, while in many particulars the conflict was irreconcilable, still they differed largely about immaterial and unimportant matters. or upon points as to which persons viewing the same object would naturally differ, but the court was fortunate in having the benefit of the testimony of a number of disinterested witnesses who either saw. or were so recently at the scene of the collision, or so familiar with its surroundings, as to be able intelligently to speak of the facts.

The conclusions reached by the court upon a full review of the entire evidence, and after hearing arguments of counsel, are that the collision did not occur as contended for by the respondent; that is to say, by the obstruction of the entire channel, by the barges, the running aground of the steamship, and the collision therewith by the rear barge while aground. This theory is at utter variance with the evidence, or certainly any considerable part of it, and is demonstrated not to be true beyond peradventure by the physical facts and circunstances of the case. The blow of the collision shows that it could not have so occurred, as the injury to the barge could never have happened by the coming into collision of the starboard quarter of the barge with the starboard bow of the steamship, the latter lying still, as contended for by the respondent, and the barge drifting against it. Indeed, not only does the libelant's evidence show that it did not and could not have so happened, but one at least of the respondent's witnesses, Capt. William J. Bartlett, a man of experience and intelligence. and in no way interested or connected with the case, and himself master of an ocean tug with a large tow at the time near the scene of the accident, testified in effect that it could not have so happened; that the tide was then as it had been for some time, running flood: that the tug was moving the tow gradually out of the channel to the westward, and that the tide would have swept the barge up the river, and from the Westhall, instead of against it; and that it was impossible for it to have drifted with the wind and tide as they were down on and against the steamship. He also testified that some time before reaching the scene of the collision, and as far away as Boush's Bluff, he observed the rear barge then a little to the east of midchannel, and it was gradually moving to the westward of the channel: that after the collision, before the tug had gone to the aid of the injured barge (which the evidence shows to have been from five to eight minutes), and before the steamer had gone forward, he with a large tow, consisting of a barge 328 feet long, and drawing 231

feet of water, lashed to his starboard side, passed between the barge and steamship, and proceeded down the river; the steamship being at the time on the eastern side of the channel. It is quite evident that the collision occurred by the stem of the steamship while moving coming into collision with the starboard quarter of the barge, and not by the latter's drifting into the steamer after she had run aground. Under the law, it would be difficult for the Westhall to escape responsibility for this collision, assuming it occurred as contended for by her. If the channel was entirely blockaded, as she insists, with a large unmanageable tow extending from its western border to and over its eastern side, with the tug endeavoring to move the same out of the channel, and impeded by the wind and tide, there was no excuse for the steamer's running into the barge. The tow's plight was apparent, and the steamer should neither have run into nor approached the same in such close proximity as to be unable to avoid the collision. The tug and tow was the incumbered vessel. The steamer was entirely free, and under the circumstances should have kept out of the way. "A tug with vessels in tow is in a very different condition from one unincumbered. She is not mistress of her motions. She cannot advance, recede, or turn either way at discretion. She is bound to consult their safety, as well as her own. She must see that what clears her of danger does not put them in peril." The Syracuse, 9 Wall. 675, 19 L. Ed. 783; Marsden, Coll. (4th Ed.) 185, 186. The reason for not requiring the same strictness of compliance with the rules of navigation by those in charge of a tug and tow as of those navigating an unincumbered steam vessel is manifest, and as between a steamer and a tug with a cumbersome tow the latter has the right of way, and upon the steamer is imposed the responsibility of exercising extra precaution to avoid collision. The Alleghany, 9 Wall. 522, 525, 19 L. Ed. 781; The Mayumba (C. C.) 21 Fed. 476; The Fred W. Chase (D. C.) 31 Fed. 94; The Rose Culkin (D. C.) 52 Fed. 328; The Lucy (C. C. A.) 74 Fed. 572, 20 C. C. A. 660: Spencer on Coll. 264, 275, 276. It will not do to say that the Westhall did what she could after the emergency became imminent. If she delayed unduly to avoid this collision, and such failure brought it about, she is liable. The obstruction was seen in the channel for a distance of 21 miles, and, while it is true the claim is made that the steamship from time to time checked her course moving up the channel, still to have gone within 1,000 feet of the barges across the channel-that is to say, so close that, when she undertook to stop and starboard her helm, the collision was inevitable from the barge running into itunder the circumstances of this case was inexcusable. Not only did the Westhall proceed up the river for over a mile and a half in the face of an apparent danger, which was entirely removed within five minutes after the collision, but she approached recklessly near to the obstruction in her way before taking the necessary and proper precautions to avoid the collision. The steamship should have done more than merely shape her course, or slacken her speed so as possibly, or even probably, to avoid the collision with the tug and tow claimed by her to be unmanageable. She should have allowed sufficient margin for safety, taking into consideration all of the impending contin

gencies of navigation; and for loss occasioned by her failure so to do she is clearly responsible. Mars. Coll. at Sea (4th Ed.) 377, 381; The America, 2 Otto, 432, 23 L. Ed. 724; The Saratoga (D. C.) 1 Fed. 730; The Chatham, 52 Fed. 399, 3 C. C. A. 161; The Owego (D. C.) 71 Fed. 537, 544.

The Westhall's contention is that at the time she starboarded she could not then have reversed, as that would have tended to throw the head of the steamship to starboard, and more than likely have increased the chance of collision; but this in no manner accounts for the failure sooner to stop, and, if needs be, to have reversed and backed away from the so-called obstruction floating down the river. No pretense is made that the engines were reversed. Under Navigation Rule No. 21 (Rev. St. § 4233 [U. S. Comp. St. 1901, p. 2898]), upon the risk of collision arising, the steamship should have slackened her speed, and, if necessary, have stopped and reversed, and the fact that she delayed doing so until, upon starboarding her helm to avoid the collision, it was found too late to reverse, will not avail either to relieve from responsibility or to cause others to share the losses arising from such failure. The Reading (D. C.) 43 Fed. 400; The Portia, 64 Fed. 811, 72 C. C. A. 427; The Berkshire, 74 Fed 906, 21 C. C. A. 169; The Maverick (D. C.) 75 Fed. 845; The Westover, 5 Hughes, 133, 2 Fed. 91. "The precautions required by law to be taken where there is risk of collision must be taken in time to determine that risk. An alteration of the helm, or other step taken in pursuance of the regulations, is no defense, unless it be shown that such precaution was taken at the proper time. To be effectual, precautions must be taken seasonably. If taken at an improper time, they are not a compliance with the regulations, and are no defense. If you adopt a measure at an improper time, it does not take away the culpability of not having done it before and prevented the accident." Mars. Coll. at Sea (4th Ed.) 384, and cases cited. Capt. Bartlett, respondent's witness, shows that there was no difficulty in the steamship stopping and waiting for this obstruction in the channel to get out of the way, as he did with the ocean tug and the large tow it had, as above mentioned. And another of respondent's witnesses, Capt. Cunningham, in charge of the steamship, testifies that there was no difficulty in stopping the steamship at the entrance to the channel.

Coming to the question of how the collision occurred, and the responsibility therefor, the court will consider the position of the barges relative to the channel at the time of the collision. It seems clear that they were not only not across the channel, or to the eastward thereof, but that they had been to the western side for quite a while prior to the time of the collision, and that at that time all of the barges, save one, were out of the channel, and that it, with its hawser, extended in the channel possibly some 125 or 150 feet on the western side. This is apparent from the fact of the position of the barges immediately after the collision, as testified to by the witnesses on both sides. It is settled almost beyond dispute that the barges, other than the injured one, were anchored outside of the channel and to the west of the buoys, and that the tug and tow had, with the exception of the rear barge, pulled out of the channel heading across the flats previous