Thorson vs. Peterson. tract was made. After the schooner was in a port of safety, and it had become practically impossible to complete the contract, and both parties were, by the disaster, absolved from it, Oleson had, in my opinion, no right to claim that any wages had been earned upon the original hiring, because the original contract was an entirety; but he could, as I have already said, if he chose, leave the vessel at that time. Indeed, I am not sure but that if he remained on board after the vessel arrived at South Haven, with the knowledge and aquiescence of the master, the law would imply a new hiring under the new circumstances which surrounded both parties. But without passing directly upon the question as to whether the law would or would not imply a new hiring, it is sufficient to say that the proof satisfies me in this case that there was a new employment of Oleson by the master. The promise was that if he would remain on board he would do what was right with him, which implied that he would pay him such wages as his services were reasonably worth. He did remain on board and perform his duty until the vessel arrived at Pentwater, and only left when the captain denied his obligation under any new hiring, and insisted that the men were bound by the contract made in Chicago, before the sailing of the schooner. I have no doubt that when the captain repudiated the contract, the libellants had the right to leave the vessel and sue for and recover in this action whatever was then due them. The conduct of the captain towards these men does not seem to me to indicate that he was willing or intended to do what was right with them under the circumstances. There is no proof that he could not have obtained a tug imme diately after the vessel took shelter in South Haven harbor; but it is evident that he took his own time to make the best bargain he could with a tug after the season had nearly or substantially closed, so as to get his vessel towed to Pentwater Thorson vs. Peterson. at the lowest possible price, and during all this time he kept these men on his vessel when they could have been earning higher wages than he finally proposed to pay them, and undoubtedly, under an implied if not an express promise that he would pay them full wages. There was no treaty or contract with Thorson in regard to the amount of his wages for this special voyage, and I must, therefore, assume that he can only claim the rate of wages of his former voyages, which was $3.50 per day. The proof would satisfy me that Oleson's wages were fairly worth $3.50 also, but the commissioner, after a review of all the testimony, has come to the conclusion that his wages should be $3.33, and I am not disposed to disturb that finding, as it seems to have been arrived at after a very careful analysis of all the testimony in the case bearing upon the question. There will, therefore, be a decree in favor of Thorson at $3.50 per day from the 17th of November to the 1st day of December, and for Oleson at $3.33 per day from the 19th of November to the 1st of December. The master also found that under the promise to do what was right with Oleson, the Captain was bound to pay his fare, which amounted to $7, from Pentwater to Chicago, and with this finding I can find no fault, under the facts in the case. I do not see, however, from the proof, that Thorson was entitled to be returned to Chicago at the expense of the vessel. Affirmed by Drummond, J., January, 1883, to appear in a succeeding volume of these reports.-[REPORTER The Favorite. THE FAVORITE. DISTRICT COURT-NORTHERN DISTRICT OF ILLINOIS-DECEMBER 1881. IN ADMIRALTY. 1. SAILING RULES-DUTIES OF SAILING VESSEL AND STEAMER WHEN APPROACHING.-By the sailing rules, a sailing vessel, when approaching a steamer is bound to keep her course, and it is the duty of the approaching steamer to keep out of the way. 2. STEAMER WITH TOWS IS BOUND BY THE RULES.-The fact that the steamer has barges in tow does not alter the rule. The steamer in such case should take extra and timely precautions to avoid the sailing vessel. 3. COLLISION-NEGLIGENCE.-But little significance is to be attached to the manoeuvres which are executed, or attempted on the part of a schooner, or a steamer, when in immediate proximity to each other, and in imminent danger of a collision. The material question is, whether there was any negligence, and by whom, in allowing the two vessels to come so close together as to bring on an impending collision. On exceptions to finding of Commissioner. Schuyler & Kremer, for libellants. Richberg & Kneip and McCoy & Pratt, for respondents. BLODGETT, J.-This is a libel by the owners of the schooner, Grace A. Channon, for damages by a collision between the schooner and the steam propellor Favorite on the waters of Lake Michigan, on the night of August 2nd, 1877, whereby the schooner and her cargo were a total loss. It is claimed by libellants that the collision occurred by reason of the negligence of those in charge of the steamer in not keeping out of the way of the schooner, while the respondents, the "Kirby Carpenter Company," owners of the steamer, The Favorite. insist, by their answer and proof, that the collision was so far contributed to, if not caused by, the negligence of those in charge of the schooner, in not keeping her on her course as to relieve the steamer from liability, and also that the steamer, being encumbered with tows, is not governed by rules 20 and 21 of section 4233 of the Revised Statutes of the United States. The undisputed facts material to the issue are, that on the night of the collision, the schooner, in pursuing a voyage from Buffalo to Chicago, with a cargo of coal, was between Milwaukee and Racine, along the west coast of Lake Michigan, about 9 miles from land, and the steamer was bound from Chicago to Menominee, light, with three barges in tow, also light; the wind was from west to west by north, the night clear, the schooner and steamer each had their proper lights burning, the steamer having two bright white lights burning at her mast head to indicate that she was towing other vessels. The sailing rules involved in this controversy are: Rule 4. "Steam vessels, when towing other vessels, shall carry two bright, white mast head lights vertically in addition to their side lights, so as to distinguish them from other vessels." Rule 20. "If two vessels, one of which is a sail vessel and the other a steam vessel, are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sail vessel." Rule 21. "Every steam vessel when approaching another vessel so as to involve risk of collision shall slacken her speed, or if necessary, stop and reverse; and every steam vessel shall, when in a fog, go at a lower speed." It is not my purpose to go into a full analysis of the volu minous proof taken in this case, as that has been sufficiently done in the exhaustive report of the commissioner filed herein. It is sufficient for my purposes to say that it clearly ap The Favorite. pears from the proof that the Channon was proceeding on her voyage upon a southerly or nearly south course, with a light sailing breeze, at the rate of from 5 to 6 miles per hour, with the wind over her starboard quarter a little abaft the beam. When about a quarter before 10 o'clock her lookout saw the mast head lights of the steamer at a long distance, say from 5 to 7 miles, nearly dead ahead, he reported the light to the captain, who reconnoitred it through his glass, and ascertained that it was the light of a steamer towing other vessels. Soon afterwards, the steamer showed her green light about a half point or a point over the port bow of the schooner. The speed of the steamer, at the time she sighted the light of the schooner, and up to the time of the collision, was about seven miles per hour. The two vessels continued to approach each other nearly end on until quite close, probably less than a mile of each other, and when the sails of the schooner could be seen by those on the steamer, the schooner showed a torch, and shortly afterwards, thinking, as stated by one of the witnesses, that the steamer was coming right into them, the wheel of the schooner was put to port, and she luffed a point or two into the wind, and at that moment was struck upon the port bow just abaft the fore rigging, and so injured that she sunk within five minutes. It is contended, on the part of those in charge of the Favorite, that the schooner changed her course, and there is considerable testimony in the case on the part of the respondents to the effect that the lookout on the steamer first saw the green light of the schooner, from which they argue and insist that the course of the schooner must have been somewhat east of south, and that she was to the leeward or east of the steamer. I do not think it necessary to attempt to reconcile the contradictions between the witnesses who were upon the schooner, and those on the steamer, as to which light the schooner first showed to the steamer. The testimony of both |