parative weakness of this pier. If they were not such as should have deterred the ship, in ordinary prudence, from making use of this dock at all, they were at least sufficient to require great caution in the use of it. The evidence leaves it in doubt whether the injunction to scatter the blooms well was given before the blooms were actually discharged. The fact that no objection was apparently made to the placing of the blooms as they were placed, though the discharge was under the eye of the wharfingers' agents, is in the ship's favor. But the ship's duty to the cargo is not to be measured simply by the instructions of the wharfinger, after such clear evidence of the comparative weakness of the wharf. The blooms were not scattered, nor well distributed over the wharf. Instead of being placed to any considerable extent upon the two ends of the wharf, which were of crib-work and the most solid, the blooms were chiefly placed close together in the center of the pier, where it was obviously weakest, and where it snapped short off beneath their weight. The wharf was in fact wholly unfit to receive such a cargo. Repeated notices, and the evident solicitude of the wharfingers, that the blooms should be piled but two high, i. e., one-half or one-third only of the weight usually put upon sound wharves, were a practical warning, as I have said, of the most emphatic character of the comparative weakness of this pier. Ordinary prudence, as it seems to me, would eschew the use of such piers altogether, except under some controlling necessity, such as does not appear in this case; or, if they were resorted to at all, would require them to be used chiefly at their strongest, and not at their weakest, parts. The use of piers known to be weak, for heavy cargoes, like iron rails or steel blooms, is in every case hardly better than an experiment; and such experiments do not seem to me consistent with the obligations of ordinary prudence and diligence, in the absence of any controlling necessity. As respects the rights of a cargo-owner to reasonable care for the safety of the cargo in the selection of a pier, and in the use made of it, I should not feel satisfied, therefore, to acquit the ship in this case, even if the same question had not been previously adjudicated upon evidence almost the

same.

The question of liability as between these defendants has, however, already been once determined in an action between them at common law. That action was brought in the circuit court by the wharfingers against the owners of this vessel to recover their damages; and the owners of the vessel in their answer counter-claimed against the wharfingers their own damages in the detention of the vessel, as well as for the loss of these same blooms. Upon the trial before the court and jury, the court charged that if both parties were guilty of negligence contributing to the accident, neither could recover of the other; that if the wharf broke down, not by the negligence of either, but by some unknown cause, neither could recover; and, finally, that either, not being negligent, might recover of the

other, if the latter was found negligent; and that the owner of the vessel in that case might recover for demurrage, and also for the loss and injury of the blooms, in all $3,290. The jury found that neither should recover of the other, and judgment was entered accordingly. The cause of the wharf's falling was not inscrutable; there was no evidence reasonably to justify such a finding. The verdict must therefore be interpreted as a finding that both were negligent in causing the fall of the wharf.

It thus appears that both the parties, who are the respondents in the present case, voluntarily submitted their claims to a court of common law, each claiming their entire damages against the other. The wharfingers, by their complaint, and the owners of the steamer, by the counter-claims in their answer, having thus voluntarily appealed to a common-law forum, and had their day in court upon this question, I think that the determination then made, that there was mutual fault, should be held binding upon them, in any other action where the same question arises as between themselves. In cases turning upon questions of navigation, indeed, the verdict in a common-law court has been held not to be binding in a court of admiralty, on account of the superior means of determining such questions supposed to belong to admiralty tribunals. The Ann & Mary, 2 Wm. Rob. 189. But in other classes of cases, I apprehend a prior determination and judgment in a court of common law are binding as between the same parties in admiralty, whether pleaded or given in evidence as respects the same material facts again in litigation. Goodrich v. The City, 5 Wall. 566; Taylor v. The Royal Saxon, 1 Wall. Jr. 333; The Tubal Cain, 9 Fed. Rep. 834, 838, and note. Undoubtedly the verdict and judgment in the former action between the present respondents is no adjudication or bar, as respects the libelants in this case, who were not parties to that suit. The present action, however, concerns the same subject-matter, and the very question once determined as between these co-defendants now arises again as between themselves. The analogy of the rule in equity would seem to be applicable, which makes a former decree determining the rights of co-defendants binding in a subsequent action between them on the same subject-matter. It is immaterial, it is said, how the parties are arranged, whether upon the same side, or on opposite sides in the cause, so long as their rights are directly in litigation, and each has the opportunity of asserting his claim and his defense, and to cross-examine the witnesses. Farquharson v. Seton, 5 Russ. 45, 62; Daniell, Ch. Pr. *1010, *1013; Nevil v. Johnson, 2 Vern. 447.

There is no question in my mind that the breaking down of the wharf was by the fault of one or both of the defendants; and that being established, it would seem to follow that either of the defendants might offer the verdict and judgment in the former action between themselves as evidence that the injury to the blooms arose

from the mutual fault of both, and as a basis of their equal liability, as between themselves, in a court of admiralty, where, in such a case, the damages may be divided. But whether the former verdict be strictly conclusive or not, in a case of doubt upon such a question, I should hesitate to differ from the finding of the jury, where there is so much evidence to show faults on both sides. It follows that the libelants should have judgment against both defendants, with costs, with a decree in the form directed in The Alabama and The Gamecock, 92 U. S. 695; The Civilta and The Restless, 103 U. S. 699.

THE COLUMBIA.1

(Circuit Court, E, D. New York. July 8, 1885.)

COLLISION-TUG AND FERRY-BOAT CROSSING RIGHT OF WAY-DUTY TO STOP AND BACK-RULE 21-APPORTIONMENT-COSTS OF APPEAL.

A collision occurred at the South Ferry slip, New York city, between the ferry-boat C., on one of her regular trips from Brooklyn to New York, and the tug B., which was coming into the East river from the North river, having a bark in tow on a hawser. The collision occurred in the day-time, the weather was clear, and the vessels were on crossing courses, the B. having the C. on her starboard hand. In the district court the tug was held entirely in fault in attempting to cross the ferry-boat's bows when the latter had the right of way. Held, on appeal to this court, that the ferry-boat was also in fault in not stopping and backing when she saw that the tug was persisting in going on, and did not respond affirmatively to the ferry-boat's signal of one whistle, and that there must be a decree apportioning the damages and the costs of the district court, and giving the tug the costs of the circuit court, See the opinion of the district court. The Columbia, 8 FED. REP. 716.

Admiralty Appeal.

Owen & Gray and F. D. Sturges, for the tug.

B. D. Silliman and N. P. Schenck, for the ferry-boat.

BLATCHFORD, Justice. It is contended for the Baxter that the evidence shows that the Baxter gave a signal of two whistles; that the Columbia answered by a signal of three whistles; that the Baxter then gave a signal of five or six sharp blasts, followed by a signal of two whistles; that the Columbia answered with a signal of three whistles; that the Baxter then gave a signal of two whistles; and that the Columbia answered by a signal of three whistles. This concurs substantially with the statement of the libel, that the Baxter gave a signal of two whistles; that the Columbia answered by a signal of three; that the Baxter then gave a signal of several sharp and distinct blasts, and then a signal of two whistles; and that the Columbia paid no attention to such signal, and, although it was repeatedly given, disregarded it and kept on. As the vessels approached each other, the Baxter had the Columbia on her starboard side, and

1 Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.

their courses were crossing. On the view that it thus became the duty of the Baxter to avoid the Columbia, the district judge held that the Baxter would have avoided the Columbia if she had stopped when she saw the approach of the Columbia; that the excuse made by the Baxter for not stopping, namely, that she could not do so without incurring the danger of being run over by her tow, was not satisfactory; and that she could have stopped, and even backed away, without being run over by her tow. For this fault, among others, the Baxter was condemned. I concur in this view. Especially was it the duty of the Baxter to stop and back, if her signal of two whistles was not, when first given, answered affirmatively and promptly by the Columbia. For the Columbia it is contended that, before the Baxter gave any signal, the Columbia gave a signal of one whistle; that the Baxter made no response; that the Columbia then gave a signal of one whistle; that the Baxter did not at once reply, but kept on and then gave a signal of two whistles; and that the Columbia then gave a signal of three whistles. The answer states that the Columbia ran about 100 yards after giving her first signal before she gave her second, and that she did not stop and back till after the Baxter had given her signal of two whistles.

The district judge says in his opinion, (8 Fed. Rep. 716,) that no doubt the collision would have been avoided if the Columbia had been stopped in time to permit the Baxter to pass; but that, as the Columbia had the right of way, she had a right to keep on. I cannot assent to this view. When the Columbia received no response to her first signal of one whistle, she ought to have stopped and backed, instead of giving her second signal of one whistle. She saw that the Baxter was persisting in going on, and was not responding affirmatively by a signal of one whistle, and that there must be a collision if the Columbia also kept on. If it was the duty of the Baxter primarily to keep out of the way, and the correlative duty of the Columbia to keep her course, that duty was imposed on the Columbia for the purpose of enabling the Baxter to keep out of the way. But it was not permissible for the Columbia to persist in going on, under the plea of keeping her course, when she saw that her signal was not affirmatively responded to by the Baxter. On the contrary, under rule 21 of section 4233, there then became risk of collision, and it was the duty of the Columbia to "slacken her speed, or, if necessary, stop and reverse;" and, under rule 24, special circumstances existed. which made it necessary for the Columbia to stop, "in order to avoid immediate danger." The fault of the Baxter was no excuse for the iault of the Columbia. The situation was plain to the Columbia, and she was bound to deal with it as it existed, not as it ought to have been. These principles are established by decisions of the supreme court. Chamberlain v. Ward, 21 How. 548, 567, 568; The Gray Eagle, 9 Wall. 505, 510; The Maria Martin, 12 Wall. 31, 47; The Ariadne, 13 Wall. 475, 479; The Cayuga, 14 Wall. 270, 275, 276; The Con

tinental, Id. 345, 359; The Sunnyside, 91 U. S. 208, 214, 215; The America, 92 U. S. 432, 438.

It results from these views that there must be a decree holding both vessels in fault, and apportioning equally the damages to the Baxter between her and the Columbia, with a reference to ascertain those damages. The costs of both parties in the district court will be apportioned equally between the parties, and the libelants will recover their costs of this court.

THE ALHAMBRA.1

THE RHODE ISLAND.

PROVIDENCE & STONINGTON STEAM-SHIP Co. v. THE ALHAMBRA.

QUEBEC STEAM-SHIP Co. v. THE RHODE ISLAND.

(District Court, S. D. New York. December 9, 1885.)

COLLISION-Two STEAMERS -SUDDEN SHEAR-CONFLICTING EVIDENCE AS TO LIGHTS AND BEARINGS CONSIDERED-NARRATIVE.

On the night of July 18, 1882, a collision occurred in the Sound between the steamer A. and the steam-boat R. I., the weather being clear, and both vessels seeing each other's lights at a great distance. The A.'s account of the collision was that while making a course E. by N., she sighted both the colored lights of the R. I. about three-fourths of a point on her starboard bow, several miles distant. That thereafter the red light of the R. I. was shut in, and her green light gradually drew to three or four points off the A.'s starboard bow, both vessels showing green to green, up to within a minute of the collision, when the R. I. took a sheer to cross the bows of the A., which at once stopped and backed, but was unable to avoid a collision. The account given by the R. I. was that while heading W. S. she saw the mast-head light of the A. a little on her port bow, and about four miles distant; that, shortly after, the red light of the A. came into view three-fourths of point on her port bow, when the R. I.'s wheel was ported, and one whistle given, and her course changed to W. N.; that she continued on that course, the A.'s red light being always on her port bow, and not observed to change much, till suddenly the A. was seen close at hand on the port beam, with her green light exposed: that the wheel of the R. I. was put hard a-port, but the collision followed immediately. Held, that these two narratives were irreconcilable; that whichever story be correct, it must be found to be in the main consistent with itself and with the undoubted courses of the steamers, which must be assumed to be as sworn to by each, up to within a few minutes of the collision; that an examination of the testimony of each, with a diagram of the respective courses, positions, and bearings showed that the A.'s account was consistent and credible, and the account of the R. I. inconsistent with itself, and irreconcilable with the undoubted previous courses of each; that the sudden sheer just before the collision was made by the R. I., and was probably due to the fact, disclosed in the testimony of the pilot of the R. I., that he supposed the A.'s lights were the lights of a tow; that the A. did all that was possible to avoid the collision, and the libel against her should consequently be dismissed, and the suit against the R. I. sustained.

Reported by Edward G. Benedict, Esq., of the New York bar.