[508]

practice undoubtedly is to specify the term in knowingly contrary to his best judgment and to
describing the judgment, but the omission of the injury of whomsoever it might concern; and
such a means of identification is not necessarily all the evidence tending to establish a barra-
fatal; and certainly, before dismissing a case on trous sale came from the defendant.
that account, opportunity should be given to
furnish new security.

The court instructed the jury that, under the pleadings, the evidence which had been adduced before them in the cause authorized them to inquire and find:

act of sale on the part of the master the act of
the underwriters; and that if upon this question
they found for the plaintiff, then the defendant's
liability was established.

2. The court instructed the jury that if they
found that, according to the principles and
rules of marine insurance (which had been
stated to them), the act of sale on the part of
the master was not the act of the underwriters,
but if they found, that while he had exceeded his
authority he had acted in good faith, then the
defendant was discharged from all liability.

It is apparent from the record that the writ
of error must have been sued out for delay only.
The suit was upon a policy issued by the In- 1. Whether the sale of the master was made
surance Company to the Albro Company for under such circumstances as, according to the
the insurance of a cargo of mahogany and ce- principles or rules in the law of marine insur-
dar wood on board the bark Commodore Du-ance (which were stated to the jury), made the
pont, against the perils of the sea and the bar-
ratry of the master of the bark, at and from
the Port of Santa Anna, Mexico, to the Port of
New Orleans. The bark was driven on the bar
at Santa Anna and wrecked in a severe gale
while loading, and her cargo was cast on the
sea and driven ashore. While in this condition,
the cargo was sold and the proceeds (which were
but small after deducting charges and expenses)
paid over by the master to the Albro Company.
In the petition, the loss of the vessel and her
cargo is averred and also the sale of the cargo
under the orders of the port authorities at Santa
Anna. In the answer, the loss of the vessel was
admitted, but it was insisted by way of defense,
that due diligence was not used by the master
in saving the cargo and forwarding it to its
place of destination as the policy required.
Upon the trial, "The plaintiffs introduced evi-
dence tending to show that the sale of the in-
sured cargo by the master was made under such
circumstances as constituted a necessity for
making the same, and rendered the act of the
master in making the same the act of the
defendants, in that, under the law of insurance,
the authority therefor would be implied. The
defendants introduced evidence tending to es-
tablish the absence of those circumstances which
so gave authority to the master to make such
sale, and tending to show the failure on his part
to seasonably communicate with the owners and
underwriters; and the same evidence, intro-
duced by the defendants, besides being appli-
cable to the two issues, as stated above, tended
further to establish that the act of the master
in making the said sale of the insured cargo
was an act of barratry, in that it was made,
and especially was made, in time and manner,

128; Busk v. Royal Ex. Ass. Co., 2 Barn. & Ald., 82;
Roscow v. Corson, 8 Taunt., 684.

Fraud must be a constituent of the act of bar-
ratry. Patapsco Ins. Co. v. Coulter, 28 U. S. (3 Pct.),
230; Hendrick v. Delafield, 2 Cai., 67; Cook v. Com.
Ins. Co., 11 Johns., 40; Grim v. Phoenix Ins. Co., 13
Johns., 451; Wiggin v. Amory, 14 Mass., 1.

It is not necessary, to constitute barratry, that the act should tend to the benefit of the perpetrator. Earle v. Rowcroft, 8 East, 126; Kendrick v. Delafield, 2 Cai., 67; Wilcocks v. Union Ins. Co., 2 Binn., 574; 8. C., 4 Am. Dec., 480; Dederer v. Del. Ins. Co., 2 Wash., 61.

If the master be sole owner he cannot commit barratry against himself. Nutt v. Bourdieu, 1 T. R., 823; Ross v. Hunter, 3 T. R., 33; Stamma v. Brown, 2 Str., 1173.

But a part owner being master may commit barratry against another. Boutflower v. Wilmer, 2 Selw., 976; Jones v. Nicholson, 2 C. L. R., 1236; S. C., 10 Exch., 28; 23 L. J. Exch., 330.

Sailing out of port without paying port duties, whereby the ship is forfeited, is barratry (Knight v. Cambridge, 1 Str., 581; S. C., 2 Raym., 1349; 8 Mod., 236; Stamma v. Brown, 2 Str., 1173; S. C., 9 East, 135; Vallejo v. Cowper, Cowp., 153); so is breach of an embargo (Robinson v. Ewer, 1 T. R., 127); or

|

3. The court further instructed the jury that if they found that according to the rules and principles of marine insurance (which had been explained to them), the act of sale by the master was not the act of the underwriters, the defendants, still, if they found that such sale was barratrously made, i. e., was an act of barratry, [509] which was defined to them by the court, then also the liability of the defendant was established.

No exception was taken by the counsel for the defendant, to the rules or principles of law by which the court, in its instructions, had stated they must determine the question of implied authority from the defendant on the part of the master to make the sale, nor to the test by which the jury was to determine whether an act of barratry had been committed.

But the counsel for the defendant, before the jury retired to deliberate upon their verdict, reserved an exception to that part of the charge of the court alone by which the court submitted the question of barratry or no barratry to the jury, in the instruction numbered 3.

We are unable to discover even the semblance of an error in the part of the charge excepted to.

breach of blockade (Richardson v. Mar. Ins. Co., 6
Mass., 102; Goldschmidt v. Whitmore, 3 Taunt., 508;
Everth v. Hannam, 6 Taunt., 375; S. C., 2 Marsh, 72);
or resistance of search (Saloneci v. Johnson, Park,
Ins., ch. 18; Garrels v. Kensington, 8 T. R., 230)
or smuggling (Haverlock v. Hancill, 3 T. R., 277;
Lockyer v. Offley, 1 T. R., 252: Pipon v. Pope,
1 Camp., 434; Suckley v. Delafield, 2 Cai., 22);
or cruising under a letter of marque, against the
owner's instructions and intentions (Moss v. Byrom,
6 T. R., 379; Wiggins v. Amory, 14 Mass., 1); or ille-
gal rescue of a neutral ship, by the master, after
capture. Wilcocks v. Union Ins. Co., 2 Binn., 574;
Dederer v. Del. Ins. Co., 2 Wash., 61.

Deviation through mere ignorance is not bar-
ratry (Phyn v. Royal Ins. Co., 7 T. R., 555); nor
through a mistaken sense of duty. Wiggin v. Am-
ory, 14 Mass., 1; Hood v. Nesbit, 2 U. S. (2 Dall.), 137
S. C., 1 Yeates, 114; Thurston v. Col. Ins. Co., &
Cai., 89.

Scuttling the ship or running her on shore, with knowledge of the owner but without knowledge of the freighter, is barratry, so far as the freighter is concerned. Ionides v. Pender, 27 L. T. N. S., 244; Soares v. Thornton, 1 Moore, 373.

See, also, note to Waters v. M. L. Ins. Co., 36 U. S. (11 Pet.), 213.

N ERROR to the Circuit Court of the United
States for the District of New Jersey.
The history and facts of the case appear in the
opinion of the court.

Mr. A. Q. Keasbey, for plaintiff in error.
Mr. John R. Emery, for defendant in
error.

Mr. Chief Justice Waite delivered the opinion of the court:

The petition presented distinctly the question of the liability of the Insurance Company, under its policy, for the loss of the cargo which had been stranded by a peril of the sea and sold by the master of the vessel. The defense was, in effect, that the cargo ought to have been gathered up after the stranding and forwarded to the place of destination. Upon the issue thus raised by their pleadings, the parties went to trial, and testimony was submitted to the jury on both sides. That of the Insurance Com- This is a writ of error brought under the Act pany tended to show not only that the sale was of March 3, 1875, ch. 137, sec. 5, 18 Stat. at L., not justified by the circumstances, but that in 472, to reverse an order of the circuit court remaking the sale the master was guilty of barra-manding a suit at law to the state court from try. The court told the jury, in substance, that which it had been removed. The suit was if the master, acting in good faith, sold the cargo begun by Jacob W. Gebhardt, the defendant in when he ought not to have done so, the Insur- error, against Isaac W. England, the plaintiff in ance Company would not be bound by his sale; error, in the Supreme Court of New Jersey, and but, if the sale was barratrously made, i. e., a summons was duly served on England. The was an act of barratry, the Company must make pleadings were made up and issue joined in the good the loss; and this clearly because it had state court. When that was done, there was insured against the barratry of the master as nothing in the record to show the citizenship of well as the perils of the sea. It is true that the the parties, but on the 6th of September, 1883, parties did not, in their pleadings, rely upon which was in time, England filed a petition, acthe barratry either as a ground of action or of companied by the necessary bond, for the redefense; but the insured did sue for the loss oc- moval of the suit to the Circuit Court of the casioned by the perils of the sea and the sale United States for the District of New Jersey. by the master, and the Insurance Company, in The petition set forth that England was a citizen attempting to prove that the sale was not justi- of New Jersey and Gebhardt a citizen of New fiable under the circumstances, gave evidence York, both at the time of the commencement of [5103 tending to prove that it was barratrously made. the suit and at the time of the presentation of the It was upon this evidence, coming from the In-petition. The removal was asked for, solely on surance Company, that the court told the jury the ground of the citizenship of the parties. that the barratry of the master would not re- Upon the presentation of the petition, the state lieve the Company from its liability in this ac- court entered an order to the effect that it would tion for the loss which followed from the strand-proceed no further, and a copy of the record was ing by a peril of the sea, and the subsequent filed in the circuit court on the 25th of Sepbarratrous sale. Certainly we are not called tember. upon to retain a case on ou docket for argument upon such a question.

[502]

There was sufficient color of right to a dis-
missal to make it proper for us to entertain a
motion to affirm with the motion to dismiss.
The motion to dismiss is denied, but that to
affirm is granted.
Affirmed.

True copy. Test:

On the 14th of March, 1884, the following order was made in the cause:

"This cause coming on to be heard on a mo- [503] tion to remand this cause to the New Jersey Supreme Court, in the presence of Joseph A. Beecher, attorney for the plaintiff, and of A. Q. Keasbey, attorney for the defendant, and the matter having been argued by the respective attorneys, and the court having taken time to con

James H. McKenney, Clerk, Sup. Court, U. S. sider the same, and the court being of opinion

ISAAC W. ENGLAND, Piff. in Err.,

v.

JACOB W. GEBHARDT.

(See S. C., Reporter's ed., 502-506.)

Questions considered on writ of error-when a
paper is part of the record-opinion of the court,
no part of the record.

1. Nothing can be considered in this court on a
writ of error, in cases removed from a state court
any more than in others, that is not presented in
some appropriate form by the record, such as a bill
of exceptions, or an agreed statement of facts, or a
special finding.

that there is not in said cause, so attempted to be
removed to this court, a controversy between
citizens of different States, according to the true
intent and meaning of the Act of Congress in
this behalf, it is now * * * on motion of
Joseph A. Beecher, ordered that the said motion
be and the same is hereby granted, and this
cause is remanded to the New Jersey Supreme
Court to proceed therewith according to law;
and it is further ordered that the said plaintiff do
recover of the said defendant, Isaac W. En-
gland, the costs of this motion to be taxed."

The motion on which this order was made is not set out in the record. There are, however, in the transcript what purport to be certain aflidavits sworn to in the months of November and December, 1883, and filed February 25, 1884, which have indorsed thereon, "Affidavits, on motion to remand," and there is also what purports to be the opinion of the Judge denying the motion, from which it appears that "The motion to remand this cause is founded upon the allegation that both the plaintiff and defendant were citizens of the State of New Jersey when Submitted Nov. 20, 1884. Decided Dec. 8, 1884. Į the summons was issued and served and the pe

2. The fact that a paper is found among the files in a cause does not of itself make it a part of the record. If not a part of the pleadings or process, it must be put into the record by some action of the 3. The opinion of the court below is no part of [No. 1055.]

court.

the record.

tition for removal was filed. It is resisted by the
defendant, upon the ground that, at both of
these periods of time, the plaintiff was residing
in and was a citizen of New York." There is no
bill of exceptions in the record, and no authen-
tic finding or statement of the facts on which the
order to remand was made or of the evidence
submitted by the parties. Neither does the
order to remand, itself refer in any manner to
the affidavits as the foundation of the action
which was taken.

It was decided in Babbitt v. Clark, 103 U. S.,
611 [XXVI., 508], that "Congress evidently in-
tended that orders of this kind in suits at law

of itself does not make it a part of the record
below.
The order to remand is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

MARSHALL N. JONES ET AL., Appts.,

v.

JAMES R. SLAUSON AND ABRAM PUGH, Exr., etc., of WILLIAM R. PUGI, Deceased. (See S. C., as "The Elizabeth Jones," Reporter's ed.,

514-526.)

Collision-case decided on the facts-violation of sailing rules-inexcusable fault-interest on decree.

should be brought here by writ of error, and [505] that where the suit was in equity an appeal should be taken." This was a suit at law and it was, therefore, properly brought here by writ of error. But as a writ of error brings up for review only such errors as are apparent on the face of the record, it follows that nothing can be S., and a bark was close-hauled on the port tack. *1. A schooner was sailing E. by N., with the wind considered here on such a writ in this class of The schooner sighted the green light of the bark cases, any more than in others, that is not pre- about half a point on the starboard bow, about three sented in some appropriate form by the record. miles off, and starboarded a point. At two miles off This record shows an averment, in the petition of the bark opened about two points. The bark let she starboarded another point. As a result, the light for removal, that the parties to the suit were cit- her sails shake and then filled them, twice. The izens of different States, and a finding of the till the vessels were within a length of each other, schooner continued to see the green light of the bark court that they were not. This implies the find- when the bark opened her red light. At the mo ing of a fact upon evidence submitted upon a ment the vessels were approaching collision, the hearing by the court, but before the questions ed northeast. At that juncture, the bark ported schooner put her helm hard-a-starboard and headpresented and decided at such a hearing can be and her stem struck the starboard side of the schoonre-examined on a writ of error, they must be er amidships, at about a right angle; held, that the brought into the record, by a bill of exceptions bark was in fault and the schooner free from fault. 2. If the case was one of crossing courses, under or an agreed statement of facts, or a special article 12 of the Rules prescribed by the Act of April finding in the nature of a special verdict, or in 29, 1864, ch. 69, 13 Stat. at L., 58, the schooner being some other way known to the practice of courts free and the bark close-hauled on the port tack, the of error for the accomplishment of that pur-18, and no cause for a departure existed under article bark did not keep her course, as required by article pose. Storm v. U. S., 94 U. S., 81 [XXIV., 44]; 19, and she neglected precautions required by the Suydam v. Williamson, 20 How., 428 [61 Ú. S., special circumstances of the case, within article 20. XV., 978]; Baltimore & Potomac R. R. Co. v. 3. The final porting by the bark was not excusable, as being done in extremis, because it was not proSirth Presbyterian Church, 91 U. S., 130 duced by any fault in the schooner. [XXIII., 261]. That this rule is applicable to the class of cases to which that now under consideration belongs, was expressly decided in Kearney v. Denn, 15 Wall., 56 [82 U. S., XXI., 42].

The record in the case contains nothing of the kind. The affidavits, copies of which appear in the transcript, form no part of the record proper. The mere fact that a paper is found among the files in a cause does not of itself make it a part of the record. If not a part of the pleadings or process in the cause, it must be put into the record by some action of the court. Sargeant v. Bank, 12 How., 384; Fisher v. Cockerell, 5 Pet., 254. This may be done by a bill of exceptions or something which is equivalent. Here, however, that has not been done. It now here appears that the affidavits were ever brought to the attention of the court, much less that they constituted the evidence on which the ruling was made. The case is, therefore, in this respect, different from Bronson v. Schulten, 104 U.S., 412 [XXVI., 797], where the order setting aside the judgment referred to and identified in [506] terms the affidavits found in the transcript as the

foundation of the order which was made.

Neither is the opinion of the court a part of the record. Our Rule 8, sec. 2, requires a copy of any opinion that is filed in a cause to be annexed to and transmitted with the record, on a writ of error or an appeal to this court; but that

4. The decree of the circuit court was affirmed, without interest.

[No. 82.]

Argued Nov. 13, 1884.

Decided Dec. 15, 1884.

PPEAL from the Circuit Court of the United

The history and facts of the case appear in the opinion of the court.

Mr. Wirt Dexter, for appellants.
Mr. Robert Rae, for appellees.

Mr. Justice Blatchford delivered the opinion of the court:

On the 12th of August, 1873, James R. Slauson and William R. Pugh filed a libel in admiralty, in the District Court of the United States for the Northern District of Illinois, against the bark Elizabeth Jones, to recover damages for the total loss of the schooner Willis, owned by them, and of the freight money on her cargo, through a collision which oc curred between the two vessels shortly before two o'clock A. M. on the 11th of November, 1872, on Lake Erie. The Willis was on a voyage from Chicago to Buffalo with a cargo of barley, and The Jones was bound from Buffalo to Chicago with a cargo of coal.

[514]

The libel alleged that the course of The Wil- [515] lis was east by north, the wind being from the

*Head notes by Mr. Justice BLATCHFORD.

southward, and about south, and about a six | amend their answer and their cross libel, they
knot breeze; that about two o'clock A. M. the filed an amended answer on the 8th of March,
lookout reported a green light half a point 1875. It varied the allegations of the original
on the starboard bow of The Willis, and ap- answer, by stating that The Willis discovered
parently two or three miles distant; that The The Jones about three miles distant, but did
Willis had the wind free, and the vessel showing not see the green light of The Jones; that, im-
the green light, and which afterwards proved mediately preceding the collision, The Jones
to be The Jones, was, to those on board of The began to put her helm to port, but, seeing that
Willis, evidently by the wind and close-hauled; The Willis was starboarding her helm, imme-
that the helm of The Willis was put to star-diately changed it to starboard; that the look-
board, and she went off a point and was stead-out of The Jones discovered, about half a point
ied; that The Jones came on, still showing her
green light, when, in order to give her a wide
berth, the helm of The Willis was again put to
starboard, and she went off another point and
was steadied; that The Jones continued to ap-
proach, but, apparently, not holding her course,
keeping away, though still showing her green
light only; that the helm of The Willis was put
to starboard, and she swung off so as to head
northeast; that, about the same time, The Jones
showed both her red and green lights; that The
Jones immediately came into collision with The
Willis, head on, striking her amidships, at right
angles, crushing in her side and causing her to
sink in a very short time; that, had The Jones
kept her course, she would have passed The
Willis on her starboard hand, safely; and that
The Jones not only kept away while she was
approaching The Willis, but when she had
neared The Willis, so that there was imminent
danger of colliding, she improperly ported, in-
stead of starboarding, her helm.

On the 1st of October, 1873, the owners of The Jones filed their answer to the libel. It averred that The Willis had the wind free, about a six knot breeze, from about south; that The Jones was sailing by the wind, close-hauled; that The Willis discovered The Jones two or three miles distant; that immediately preceding the collision The Willis put her helm to starboard, and The Jones put her helm to port; but in approaching The Willis, The Jones did not change her course until a collision became imminent, and The Willis made no change of course to avoid The Jones, except, as before stated, immediately preceding the collision; that the lookout of The Jones discovered what proved to be the light of The Willis from two to four | [516] miles distant; that she "Was approaching The Jones in an opposite direction from the course of The Jones; that, when the light of The Willis was first seen, it was almost dead ahead, and continued on that line as the vessels approached each other;" that The Jones was kept steadily on her course until, seeing that there was danger of a collision, her helm was ported, but those in command of The Willis caused her helm to be put to starboard, which threw her across the bows of The Jores and caused the collision, and that it resulted entirely from the fault of The Willis.

On the 4th of October, 1873, the owners of The Jones filed a cross libel against The Willis, to recover for damage caused to The Jones by the collision. It contained substantially the same averments as the answer to the libel of The Willis, adding the fact that The Jones struck The Willis between her fore and main rigging. The case was heard on pleadings and proofs by the district court, in February, 1875, and, after the hearing and before a decision, leave being granted to the owners of The Jones to

on his port bow, and three miles off, the red
light of a vessel that proved to be The Willis;
that, after the light of The Willis was first seen,
it continued to show more on the port bow of
The Jones; that The Jones was kept on her
course until immediately before the collision,
when she began to port her helm, but, seeing
that The Willis was starboarding her helm,
immediately changed it to starboard, but The
Willis continued to starboard her helm, which
threw her across the bows of The Jones; and
that the starboard bow of The Jones came in
contact with the starboard side of The Willis
about amidships. On the same day the owners
of The Jones filed an amended cross libel, con- [517]
taining substantially the same averments as the
amended answer, in variation of those in the
original cross libel. The original libel was, by
stipulation, made the answer to the cross libel,

În July, 1875, the district court entered a
decree, finding that The Willis was in fault,
dismissing her libel, pronouncing for the libel-
ants in the cross libel, and awarding to them
$1,500 damages. The owners of The Willis
appealed to the circuit court. In August, 1881,
that court entered a decree, finding that The
Jones was in fault, reversing the decree of the
district court, dismissing the cross libel, pro-
nouncing for the libelants in the original libel,
and awarding to them $32,826.75 for damages
and interest. From that decree, the owners of
The Jones have appealed to this court.

The circuit court filed the following findings
of fact:

"First. That, on the 11th day of November,
1872, a collision occurred between the schooner
Willis and the bark Elizabeth Jones, on Lake
Erie, at about 16 miles east of Point au Pelce.
The libelant, the schooner Willis, was bound
for Buffalo; the respondent, the bark Jones,
was bound for Chicago. The vessels collided
at a quarter before two in the morning. The
Willis was sailing east by north. The
bark was sailing a general course southwest by
west one half west, steering by the wind. The
wind was south, about a six knot breeze, at the
time of the collision. Previous to the collision
it had been southeast, picking up to the west-
ward. At twelve o'clock the wind was cast.
At twenty minutes after one it was southeast.
At the time of the collision it was south.
Willis had the wind free, and the bark was
close-hauled on the port tack. Both vessels
had their proper lights and watch on deck.
The vessels were between two and four miles
apart when they sighted each other's lights.
The night, though it occasionally clouded up,
was favorable and light enough to make objects
easily discernible for two or three miles. The
schooner was laden with a cargo of barley, and
the bark with a cargo of coal. When the ves
sels collided, the starboard side of the stem of

The

the bark struck the schooner on the starboard | When this collision occurred, the regulations side between the fore and main rigging; struck in force for preventing collisions on the water her amidships, at about right angles, on the were those prescribed by the Act of April 29, [518] starboard side. The schooner and her cargo 1864, 13 Stat. at L., 58. Articles 11, 12, 18, 19 sank in less than half an hour and was a total and 20 of the "Steering and Sailing Rules" in loss. The injury sustained by The Jones was that Act have a bearing on this case, and are fixed in the decree of the district court at as follows: $1,500. "Two SAILING SHIPS MEETING. Article 11. If two sailing ships are meeting end on or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other.

[519]

Second. The officers and men of the schooner Willis first sighted the green light of the bark Jones, about half a point off the schooner's starboard bow, at a distance of about three miles off, and continued to see the green light of The Jones until the vessels were within a length of each other, when The Jones opened her red light.

Third. The helm of The Willis, as soon as the light of The Jones appeared, was at once put to starboard, and she went off a point and then steadied, the light of The Jones thereupon opening about a point and a half. When about two miles distant, the helm of The Willis was again put to starboard a point and then steadied, the light of The Jones thereupon opening about two points.

Fourth. That the mate in command of The Jones gave the following order immediately after first sighting the light of The Willis: "I went aft to the man at the wheel to see how she was headed, and her sails were then kind of shaking. I told him to 'look out and keep the sails full.' Then I went forward again. By the time I got forward, the sails was lifting. Again I told him to keep the sails full-draw up and keep the sails full.""

TWO SAILING SHIPS CROSSING.
Article 12. When two sailing ships are
crossing, so as to involve risk of collision, then,
if they have the wind on different sides, the ship
with the wind on the port side shall keep out
of the way of the ship with the wind on the [520]
starboard side, except in the case in which the
ship with the wind on the port side is close-
hauled, and the other ship free, in which case
the latter ship shall keep out of the way. But
if they have the wind on the same side, or if
one of them has the wind aft, the ship which
is to windward shall keep out of the way of the
ship which is to leeward."
"CONSTRUCTION OF ARTICLES 12, 14, 15 AND 17.
Article 18. Where, by the above rules, one
of two ships is to keep out of the way, the other
shall keep her course subject to the qualifica-
tions contained in the following article:

PROVISO TO SAVE SPECIAL CASES.
Article 19. In obeying and construing these
rules, due regard must be had to all dangers of
Fifth. At the moment the vessels were ap-navigation, and due regard must also be had to
proaching collision, the helm of The Willis was
put hard-a-starboard, and she must have swung
so as to head northeast, and thus have exposed
her starboard side. At this juncture The Jones
ported her helm, and the vessels collided, the
stem of The Jones striking The Willis amid-
ships, on the starboard side."

The circuit court also filed the following conclusions of law:

any special circumstances which may exist in
any particular case rendering a departure from
the above rules necessary in order to avoid im-
mediate danger.

NO SHIP UNDER ANY CIRCUMSTANCES TO NEG-
LECT PROPER PRECAUTIONS.

Article 20. Nothing in these rules shall
exonerate any ship or the owner or master or
crew thereof, from the consequences of any
neglect to carry lights or signals, or of any neg-
lect to keep a proper lookout, or of the neglect
of any precaution which may be required by
the ordinary practice of seamen, or by the

"First. The court finds, as a conclusion of
law, that this case falls under the 12th article
of the regulations for preventing collisions at
sea, applicable to the navigation of vessels.
Second. That the bark Jones, being close-special circumstances of the case.
hauled, and the schooner Willis being free, it
became the duty of The Willis to keep out of
the way, and she, having come into collision,
must show why she did not discharge that duty
and avoid the collision.

A reference to the statements of the original
answer of The Jones, and of her original cross
libel, shows that the case she first attempted to
make was one under article 11, of two sailing
vessels meeting end on or nearly end on, so as
Third. The court finds, as a matter of law, to involve risk of collision, where both are re-
that each of the changes heretofore recited inquired to port. This is shown by the averments
the findings of fact, as having been made by The
Jones, was improper.

that The Willis "was approaching The Jones
in an opposite direction from the course of The
Jones: that, when the light of The Willis was
first seen, it was almost dead ahead, and con-
tinued on that line as the vessels approached [521]
each other;" and that The Jones, seeing danger
of a collision, ported, but The Willis star-
boarded. After the trial before the district
court, the amended answer and the amended
cross libel set up a case where The Jones saw,
on her port bow, the red light of The Willis;
that light continued to show more on the port
bow of The Jones; The Willis did not see the
green light of The Jones; and, immediately
before the collision, The Jones began to port
her helm, but seeing that The Willis was star-