ported again. The stem of the Wilbur stove in her port bow, and penetrated to the collision bulkhead. The distance from her bottom to the bed of the channel was only 21⁄2 feet, and she sank on her fore foot immediately. The after part swung around somewhat to port, filled, and went down. The captain of the Martha did not pay attention to the range, but kept his vessel properly headed on his steamer. No fault can be found if he did as he says. For the Wilbur it is urged that he ought to have seen the sheer of the vessel earlier, and have taken measures to get out of the way. But the combined speed of the meeting vessels was 20 miles an hour. When the Wilbur was first perceptibly sheering off, she was probably not much, if any, more than 1,000 feet from the Martha. They would come together in from onehalf to three-quarters of a minute. We do not think it would have been possible for the Martha to have escaped. Besides, the peril was extreme from the time the sheer became decisive; and we should think the indulgence due to his situation would excuse the master of the Martha, even if he did not do all that he might have done, or did not do it as quickly as he would but for the excitement of the moment. The Ohio, 91 Fed. 547, 33 C. C. A. 667; The Bywell Castle, 4 Prob. Div. 219; The Elizabeth Jones, 112 U. S. 514, 5 Sup. Ct. 468, 28 L. Ed. 812; The Maggie Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. Ed. 175.

The testimony of those navigating the Mariposa was given by those who were charged with that special duty, and they give the course, which they run with particular reference to the range lights which they say they all the while observed. It is a standard rule, approved by many decisions, that "more weight is to be given to witnesses who testify as to the movements of their own vessel than to witnesses on other moving vessels or onlookers." 7 Cyc. 397, tit. "Collisions," where numerous cases are cited. There is other testimony, however, to which we are referred, tending to a different conclusion in reference to some of the questions involved-mainly, however, to the question on which side of the channel the collision occurred. This testimony comes from those not on the Mariposa or the Martha, and who, from lack of observation or the opportunity of observation, testify from estimates made from their recollection of the situation. There is nothing based on certain data which conflicts with the testimony of the officers of the Mariposa. Moreover, the testimony of these latter, as respects the point now in question, is corroborated by the position in which the Martha was found by the wreckers, and this is shown beyond doubt to have been athwart the channel; her head lying 175 feet west of midchannel, and her stern extending just over it. This was her position when she went down. When it is remembered that she was heavily laden, and the blow of the Wilbur was a violent and crushing one, we do not think it probable that she was carried by the shock very far out of her course. Both her captain and the watch testify that the bow of the Martha dropped instantly, and did not swing after the collision. These indications point to the conclusion that the fore end of the Martha sank quickly to the bottom, and that her stern was turned around to port on the pivot of her fore foot by the pressure of the current while her stern was sinking. If this conclusion is correct, the fair inference

is that the place where the vessels came together was as much as 150 feet to the westward of midchannel. The course taken by the Wilbur on turning around the lower light on her port side to go up the cut also tends to confirm the testimony from the Mariposa. As we gather from the testimony of those concerned with the navigation of the Wilbur, she passed about 40 feet distant, and then steadied to a bearing on the second red light on the eastern side of the channel, 11⁄2 miles distant. As the collision happened only one-third of that distance up, it seems more than doubtful whether the Wilbur could have crossed the range line in the middle of the channel when she sheered off to the westward. If that be so, the whole departure of her sheer was in the western half of the channel, and locates the Mariposa and the Martha about where they say they were. And in the cross-libel of the Wilbur she avers that, as they were meeting the Mariposa, the Troy, “instead of checking or directing her course to starboard in accordance with the announced intention, kept her speed and held near the center of the cut." As the Wilbur was on the port side of the Troy, and 40 feet away, and her own width was 40 feet, and she passed the Mariposa 50 feet distant, the Mariposa having a breadth of beam of 40 feet, it would follow that the Mariposa's course was 150 feet to the westward of midchannel.

It is contended for the Wilbur that the Mariposa should have known that the Wilbur and the Troy were coming up abreast, and that they would need more ample room than she gave them. We think that she gave them ample room, whether she knew they were coming abreast or not. But we think, also, that there is no just ground for contending that while the steamers were below the cut the Mariposa should be expected to know that the steamers were coming abreast. The lights of other vessels were there. The Troy and the Wilbur had separated somewhat at that time, and there was nothing in the indication of their lights from which alone their position could be seen, which should warn the vessels above of any such intention. After they made the turn and began to come up, they could, we should suppose, be seen, and probably were, for the Mariposa ported again. All the while the latter. vessel was entitled to suppose that, passing signals having been given and understood, the steamers would turn out when it should become necessary; and this expectation might justly last until it became evident they were not doing their duty. When this did become evident, the Mariposa could have done nothing to mend the situation. At the speed the steamers were going up, it was scarcely two minutes from the time they came around the lower light until they were passing the. Mariposa. If the Troy had ported, as she should, there probably would have been no trouble. And as it was, it is very doubtful whether there would have been any collision if the master of the Wilbur had not incautiously checked his vessel, and thus subjected her to the influence by which she was turned off. Neither the Wilbur nor the Troy is privileged to charge it as the fault of the Mariposa that she relied on them to do their duty, so long as they did not clearly show that they did not intend to do it.

We observe that in a number of instances the district court, upon objection, excluded testimony tendered at the hearing (which was had

in open court) upon various grounds which were assigned by the court. In several of these instances we think the testimony tendered and rejected was material and competent. But it happens in this case we are able to form definite conclusions without the aid of that which was rejected, and that which was rejected was in support of these conclusions. We think, however, we should call attention to the error and inconvenience of this practice. If the court of first instance was empowered to make the ultimate judgment, there might be little or no objection to the course pursued. But as its determination is subject to appeal, and the appellate court might have a different opinion in regard to the competency and materiality of the rejected testimony, the difficulty becomes obvious. In such circumstances it might become necessary to undo all that had been done subsequent to the taking of the testimony and go over the ground again, and thus involve much cost and delay. The proper course is to receive the testimony tendered, subject to the objection, unless, indeed, it be so utterly irrelevant or immaterial that there could not possibly be any doubt about it. The power of the court to punish with the costs the bringing in of flagrantly indirect and useless testimony should ordinarily be a sufficient deterrent. We think the district court was right in holding the Wilbur and discharging the Martha, but we cannot approve its decree in discharging the Troy and holding the Mariposa. We are very clear that the Wilbur and the Troy were the parties who should be held responsible for the disaster, and should be condemned to pay the damages. Upon the conclusions already stated, and the reasons given therefor, we think the Wilbur and the Troy should satisfy the damages of the former by equal contribution; the lien of the Wilbur to be subordinate to that of the owners of the Martha for her damage.

The decree of the district court, so far as concerns the responsibility of the Wilbur and the Martha, is affirmed as herein modified by the judgment against the Troy, with costs of both courts. So far as it concerns the responsibility of the Mariposa and the Troy, it is reversed, with directions to enter a decree charging the Wilbur and the Troy with the damages of the Martha and interest, and with the costs of both courts, to be collected one-half from the stipulators for each, with the proviso that, if such moiety cannot be collected from each, recourse may be had upon the other to the extent of its stipulation above the sum of such other's moiety of damage decreed against her, and charging the Troy, in favor of the Wilbur, with one-half the damages of the latter, with interest thereon; each of those parties to pay its own costs here and in the court below, the lien of the Wilbur to be subject to that in favor of the Martha upon the Troy for her damage, interest and costs, as herein decreed.

Following will be found the opinion of the court below:

SWAN, District Judge (orally). The three steamers which figure in this case are all charged with fault-the Wilbur, the Troy, and the Mariposa. So far as the Troy is concerned-for I will commence at the easiest end of the case the situation is this: I find, as I stated during the argument, that the Troy passed the Wilbur when nearly abreast of Woodward avenue; that the Wilbur there renounced her priority of right, and made herself the overtaking vessel. I think that is the fair weight of the testimony. There is on this

point the usual conflict of evidence that attends admiralty cases, and would attend any case, whatever the subject-matter, where the witnesses must speak as to matters that are not plainly visible, not illuminated by daylight-the matters occurring in the dark; but I think that the Troy was thenceforth continuously ahead-at some times further ahead than others. If we throw out all the interested testimony in the case, it fairly appears in the testimony of the mail carriers-the two witnesses from the mailboat, whose names have escaped me—that the Troy bad fairly cleared the Wilbur while the latter was waiting for the mail. That being the case, the Wilbur was to her an overtaking vessel. That continued to be the relation between them, and gave to their navigation the appearance of being engaged in a contest of speed. Both masters deny that their course up the river had any such character, and I must accept their denial, and believe they were going up there at their ordinary gait-12 or 13 miles an hour, though I think the man that was ahead was very glad to keep his position, and the man behind would have been glad to have exchanged with him. They proceeded upon the usual course, both of them being competent mariners, and I believe both mean to tell the truththey proceeded upon the course which each regarded as safe. There was nothing to intimate danger to them, nothing to induce apprehension. They ran at a speed of 12 or 13 miles an hour, keeping safely away from each other and from other vessels, and navigating without incident until they had entered the mouth of the cut or dredged channel of Lake St. Clair, when they exchanged signals with the steamer Mariposa, which had the schooner Martha in tow, bound down. The Mariposa at that time was about midchannel, and I do not think changed that position. I think she came down with the usual inclination of a vessel having the ranges and being on the ranges to adhere to them. I won't use the term commonly applied to that navigation which monopolizes the ranges, because it is habitually done by most masters, often from timidity inspired by the size and draft of the vessels-a morbid fear of possibly grounding if on either hand of midchannel. The signals between the Mariposa, the Troy, and the E. P. Wilbur were seasonably exchanged. The mutual relations of the Troy and of the Wilbur continued safe as they went up the cut until just before they came abreast of the Mariposa. That is the testimony of Capt. Gillies. It is the testimony of Capt. Fuller. Neither of them saw any appearance of danger in the situation, and both approved its safety until just before the collision. Now, each vessel, there is no doubt, had a right to go up there just as fast as she could, provided she exercised that right with due regard to the interest and safety of others; and the vessel that was ahead had a right to keep ahead, if she could, providing, as I say, she exercised that right reasonably. Therefore the Troy is not censurable for keeping ahead, as she was safely away from the Mariposa and Martha. Nor is the Wilbur to be condemned for getting along as fast as she could, but, as she was the overtaking vessel, she was bound to exercise that right with much greater circumspection, so as not to approach too closely to the Troy, or bring herself within the operation of the latter's suction; and, if she did so, she must abide the consequences. She put herself voluntarily in that position. She could not lawfully attempt to pass the Troy without the latter's consent, for which she did not ask. According to the testimony, they were at a safe distance from each other, and there was no sign on the part of either boat that it was affected by the proximity of the other until they were getting nearly abreast of the Mariposa. Then it was seen by the master of the Wilbur that his vessel was dropping off to port and towards the course of the Mariposa. It then became his instant duty to check or drop behind the Troy. This he failed to do, but, in his efforts to avoid the Mariposa, drew in so closely to the Troy as to get within her suction, when, of course, and as was to be expected, the Wilbur sheered to port, and held her sheer until she struck the Mariposa's consort, the Martha. No fault can be imputed to the Troy. I think she was navigating properly, and I do not think Capt. Fuller's testimony-any reading of it will condemn Capt. Gillies' conduct there. Capt. Fuller, as was pointed out in the argument, did not question that the Troy was as far east as she could go, and his judgment upon her course is confirmed by Mr. Montgomery, the lookout of the Wilbur. The witnesses on the Wilbur agree that the distance between the vessels was 75 or 100 feet, until they had proceeded up the cut

some distance, and pronounced that distance safe. When it was reduced to 30 or 40 feet or less by the approach of the Wilbur to the Troy, that was the voluntary act of the Wilbur, which the Troy could not prevent, and for the consequences of which she cannot be condemned. The Troy's witnesses testify that the steamers were much further apart coming up the cut, and when the Wilbur took her sheer; but as the duty of keeping clear was, by the White Law Rule 22, and pilot rule 6, wholly upon the Wilbur, and the Troy, clearly complied with those rules, the latter is faultless. The Troy neither attempted to cross the bow or crowd upon the course of the Wilbur, which took all the risks of her own course, and cannot ask the Troy to share its consequences with her.

No one who ever tried an admiralty case ever found that the witnesses on moving vessels, speaking of distances in the nighttime and of moving vessels, ever got within any reliable distance of anything. The Troy, I think, was safely over to the eastward, and when Capt. Gillies, of the Troy, was called upon by the master of the Wilbur to give him more room, he answered back: "I cannot. I am as far over as I can go." The Wilbur's master then said: "Why don't you check, then?" Capt. Gillies replied: "Why don't you check yourself?" or something of that kind. Capt. Fuller responded: "I have checked." Now, as I have said, Capt. Fuller voluntarily put himself in that situation. The checking of the Troy would not have helped the Wilbur at that time. Perhaps Capt. Fuller thought there was room enough between the Troy and the Mariposa, and rightly thought so, had it not been that he unguardedly brought his steamer within the Troy's suction. That was the springhead of this disaster. I think that at that time the Troy was nearer the distance stated by Capt. Gillies from the east bank than the witnesses for the Wilbur have put it, and I do so for these reasons: (1) Gillies was in a better position to estimate that distance than the master of the Wilbur, who admits that he could not. (2) According to the master of the Mariposa, he thought that the Wilbur was 75 feet away from him. Add to this estimate the Wilbur's beam, about 40 feet, and the distance between the Wilbur and the Troy, 35 to 40 feet, and the beam of the Troy, 45 feet, would put the Troy out about 150 or 165 feet from the Mariposa, upon the judgment of the witnesses on the part of the Mariposa and the Wilbur alone. The weight of the testimony satisfies me that the Troy was fully 250 feet away, at least, from the Mariposa, for a nearer position is irreconcilable with admitted facts. (3) The misfortune in the case was the unfortunate move by the Wilbur, which caused her to sheer off. She went off very rapidly, and when she struck the Martha she did not expend all her energy in that blow. The proofs are clear that she struck the Martha, swung around simultaneously with the blow, which was delivered at a speed of 12 or 13 miles an hour, recoiled, and swung right across stream. The Troy passed her when she had recoiled across the channel. One of the witnesses says he could have jumped aboard the Troy from the Wilbur. Another says there was a distance of 40 feet there. I don't care which it is. It would show that the Troy was considerably further to the eastward when the Wilbur moved out from the Martha simultaneously with the impact than the hurried views of the witnesses on the moving Mariposa and the Wilbur estimated. The Wilbur is 290 feet long between perpendiculars, and probably 310 or 315 feet over all. If 250 feet of her length was across or nearly across the channel-if the Troy cleared her 10 feet when the Wilbur's bow lay on the Martha, or 40 feet, as the Troy's witnesses statethe Troy was about 300 feet to eastward of midchannel at the collision. She perhaps could have gone a little further to eastward, but that her master could not know. His judgment erred on the side of the safety of his own vessel, and cannot be impeached because the event showed he might have gone further. The Star of Hope, 9 Wall. 230, 19 L. Ed. 638; The City of Antwerp and The Friederick, L. R. 2 P. C. 25. Especially is this true in the sudden emergency created by the Wilbur's too close approach. It is incumbent upon the Wilbur to show that she was brought into contact with the Martha through no fault of her own. She is prima facie the wrongdoer. I don't think she has met that burden. She occupies the same position in this case as did the Santiago in the case preceding. Through misfortune or fault or the facts of the case, she is unable to meet that burden, and should be condemned.