922. it would take over 10 minutes to get out of the Ambrose Channel. The Munaires' green light was always in sight of the Hortensius until the former sheared to her own starboard and exposed her port light to the oncoming Hortensius, when the Hortensius' wheel was put hard-aport and signalled full speed astern. The pilot showed the Munaires on a course which would take her to the Hortensius' starboard side. Such a course would be impossible with the Hortensius on a course N. W. 2 W. because it necessarily puts the Munaires completely outside the Ambrose Channel into the northward of it. This we regard as incorrect and improbable. It is true that the witnesses for the Hortensius explained how the two vessels came together. The diagram showed the Munaires crossing the bow of the Hortensius and exposing her portside but if the Hortensius was pursuing the course as testified, N. W. 12 W. from the Whistling Buoy, the Munaires would not present her port side to the oncoming Hortensius unless she came in literally from outside Ambrose Channel. We hold the collision occurred on the southerly side of the channel close to the White Light Buoy on that side. It is satisfactorily demonstrated that the Munaires was following the channel course, S. W. 34 E. and there is no reason to doubt her claim that she was keeping close to the starboard range of lights and on her side of the channel. Concluding, as we do, that the collision occurred on the southerly side of the channel with the entrance buoy close by on the starboard side, if the Hortensius swung in from her compass course, she would literally hit Buoy 2-a and go far over to her own port side and again, if the story of the Hortensius be true, it would reveal the Munaires going down the harbor altogether outside the channel. The Ambrose channel is a narrow channel within the terms of Article 25 of the Inland Rules. La Bretagne, 179 Fed. 286. It provides: "In narrow channels every steam vessel shall, when is safe and practicable, keep to that side of the fairway or midchannel which lies on the starboard side of said vessel." Belden vs. Chase, 150 U. S. 674; The Gerry, 161 Fed. 143. We regard the Hortensius at fault for starboarding her helm and attempting to pass starboard to starboard after exchanging one-blast signals to pass port to port. Concededly, the Hortensius blew a oneblast signal to the Munaires 4 or 5 minutes before the collision, that 1924 A. M. C. is to say, when the vessels were from 750 to 1,000 feet apart. This was answered by the Munaires. The pilot of the Hortensius says he expected to pass the Munaires starboard to starboard. This explains the Hortensius showing her red light and then opening her green. There was then a failure to port until just before the collision. This delay was manifested by the diagram drawn by the pilot. If the Hortensius had ported in time, there would have been less opportunity for a collision, for it is conceded that the Hortensius could in a minute and a half, swing two or three points. Apparently her porting was when the vessels were near collision. The explanation advanced, that the reason she did not port sooner is that her pilot wrongly assumed the Munaires was going out to the Narrows and the vessels could pass starboard to starboard, is insufficient. There was no twoblast signal by the Hortensius, indicating a desire to pass the Munaires starboard to starboard, nor were there any other alarm signals to indicate that the Hortensius did not understand the one-blast signal sounded. Again, we think the Hortensius should have slowed or stopped and reversed her engine before "a few seconds before the collision" when the vessls were on ship's length away or less. It has long been settled that if a vessel is approaching another vessel which has disregarded her signals or whose position or movements are uncertain, she is bound to stop until her course be ascertained for a certainty. The New York, 175 U. S. 187. A vessel which has signalled by two blasts that she intends passing to starboard instead of to port and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill until the course of the other vessel has been ascertained with certainty and the risk of collision removed. Chamberlain vs. Ward, 21 How. 548; Border Line Transp. Co. vs. Canadian Pac. Ry. Co., 262 Fed. 989. The officer in charge of the navigation of the Munaires was in doubt for at least ten minutes before the collision as to the navigation of the Hortensius. She did not reduce her speed in time nor port her helm, but continued on her course for about five minutes. It was the duty of the Munaires' navigator when so in doubt, to slow or stop and reverse her engines under the circumstances which created the doubt and which then confronted him. The New York, 175 U. S. 187; The Albert Dumois, 177 U. S. 240; The Portia, 64 Fed. 811. Jackson was serving as a quartermaster on the Munaires but when the vessels collided, he was stationed at the after davit along with 922. the third assistant engineer whom he had asked to assist him. The situation appeared serious and it was expected that the vessel would sink. There was great confusion and some of the crew became panic stricken and tried to get into or aboard the life boat which was being rigged outboard. It was intended to lower the boat into the water, not merely to swing it out. The deceased and another were standing at the after davit pushing the stern of the lifeboat overboard when the upper part of the davit broke off. The upper part of the davit went overboard striking the assistant engineer and Jackson and another were thrown into the water and the lifeboat plunged downward, landing on an even keel. Jackson did not at any time get into the boat, and he was drowned. Holding, as we do, that both vessels are at fault for the collision and therefore responsible for the damage to the davit which broke and caused Jackson to be thrown into the water and drowned, this was the proximate cause of Jackson's death. We see no error in the conclusion arrived at below. The decrees are affirmed. THE MOUNT SHASTA. PALMER AND PARKER CO., vs. UNITED STATES OF AMERICA. United States District Court, District of Massachusetts, May 12, 1924. SUITS IN ADMIRALTY ACT-193. Libel in Personam-132. Vessel not in District. A libel in personam to recover for supplies and advances can be maintained under the Suits in Admiralty Act, whether or not the vessel is within the waters of the District. GASTON, SNOW, SALTONSTALL and HUNT (THOMAS HUNT), for Libellant. LAWRENCE CURTIS, 2nd Asst. U. S. Attorney, for United States of America. MORTON, D. J.: This is a libel in personam against the United States to recover for supplies and advances at certain African ports to the Mount Shasta, a Shipping Board Steamship. When the libel was filed, she was not within this district, being then in the port of Norfolk, Virginia, and for that reason, the respondent moved to dismiss for lack of jurisdiction. 1924 A. M. C. The question presented has led to a divergence of judicial opinion. See The Isonomia, 1923 A. M. C. 132, 285 Fed. 516; Axtell vs. United States, 286 Fed. 165; and contra Middleton & Company vs. United States, 273 Fed. 199; Smith vs. United States (Louisiana Eastern District, August 4, 1922), Alsberg vs. United States, 1923 A. M. C. 540, 285 Fed. 573; The Anna E. Morse, 1923 A. M. C. 1049; Thompson vs. United States, 287 Fed. 364. It has been thoroughly discussed in the opinions in the cases referred to; no useful purpose will be served by recapitulating them. I agree with the views taken by Judge Mack in the Alsberg case supra, and by Judge Ervin in the Thompson case supra. I rule that this court has jurisdiction of the suit. Exceptions overruled. JOHN C. HARVEY, Plaintiff-Appellant, vs. OLD DOMINION S. S. CO., Defendant-Appellant. United States Circuit Court of Appeals, Second Circuit, April 7, 1924. At Law. Before: ROGERS, HOUGH and MANTON, Ct. JJ. Opinion by MANTON, Ct. J. Appeal from Eastern District of New York. Reversed. PERSONAL INJURY-114. Common Law-124. Place of Work and Accident of Wharf-WHARVES-1632. Duty of Wharf Owner to * "There is an implied license to men engaged in unloading vessels which are moored, to enter and occupy the piers built into and lying adjacent to the waters of the moored vessel. A general license is given to all persons to use it ** for unloading vessels ** * When the defect [in the pier] is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated, then the case is generally one for the jury." Horan vs. Hastorf, 223 N. Y. 490, distinguished. HARRY S. AUSTIN (GEORGE F. HICKEY), for Plaintiff. ROOT, CLARK, BUCKNER & HOWLAND (EMORY R. BUCKNER), for Defendant. Writ of error to the United States District Court for the Eastern District of New York. The plaintiff, John C. Harvey, sued the defendant, Old Dominion Steamship Company, to recover damages for 928. personal injuries sustained. Judgment was directed for the defendant. Plaintiff appeals. Reversed. MANTON, Ct. J.: The plaintiff-in-error was a longshoreman employed by the Overseas Shipping Company at Pier 26, North River, which was in the possession and control of the defendant-in-error. On the 19th of September, 1922, he was engaged in moving certain boxes of canned goods on a wheel truck three feet wide and about five feet long. While proceedfrom the south to the north side of the pier pulling a truck by its handle and being assisted by two other longshoremen who were pushing, one of the front wheels went into a hole in the floor of the pier and caused the boxes to fall off, one upon his leg, resulting in serious and permanent injury. The floor of the pier was made up of wooden planks. We must accept, for the purpose of this appeal, the most favorable evidence introduced by the plaintiff-in-error which indicated that the hole was eight inches wide, four inches deep and about a foot long. At the time the pier was in semi-darkness for the doors were closed and the skylight was said to be covered with dust and corroded. The plaintiff-in-error testified that he had not seen the hole into which the wheel went prior to the accident, but there was evidence that it existed for three months previous to the accident. The foreman of the repair gang had been notified and told to repair it. The hole was described as extending over two planks and was 'raggedy and chafed." Apparently it was the result of constant wear and had been in the making for some time past. The district court directed a verdict for the defendant-in-error for the reason that it held that the defendant-in-error owed no duty to the plaintiff-inerror and was, therefore, not liable. It is not denied that the defendant-in-error was in possession and control of the pier at the time and had consented to its use by longshoremen working thereon unloading vessels that moored there. The plaintiff-in-error was engaged in unloading a cargo from one of these ships. He was rightfully using the pier provided for seamen, longshoremen and others invited to the pier. While this pier was open and used for such purposes, there was a duty imposed on the defendant-in-error of exercising reasonable care to keep it in repair for lawful use by persons lawfully there. It is true it was private property, but as such it was used for public objects. There is an implied license to men engaged in unloading vessels which are moored to enter and occupy the piers built |