The New York herald., 1851-11-16
U~ited States District Court.
Oecision bv Hon ndr0W T. INDIAN Jud~e

Decision by Hon Andrew L. Juds0n, Judge.
LIBEL SUIT FOR COLLISION.
a. H Ssohey AND owother vs. Robert and John
Uard -Ths cause came on 70 be heard ct the
October term, 1850, but, owing to the press Of
other business, 1t was put of to the present t,rm'
The case may be briefly stated as follows'- The
schooner Industry, owned by hbellants. sailed from
the port Of Norfolk on the 18th day of May, lSiy,
with full cargo Of corn, for the port OF New pea-
month, the schooner Thomas Martin, owned BY
respondents, sailed from the port Of New York, In
ballast, for the port of Norfolk, both getting on
the coast of New Jersey, the general course ..
which is from south vest to northeast Az ABOUT
nine o'clock p. M. of the 18th Of May, lSi9, these
two vessels came in collision, by which the Industry
was struck on the ieeside, eating away her panks
apparei furniture and cargo. went down in ten MI
putes and became total loss. BY the peadings, 1T
s apparent that many Of the allegations in the libel
have been admitted, and so far rs the parties have
agreed il becomes unnecessary to 60 into any dis
cussion or even statement Of the facts. IL Will be
suficen for the present purpose TO consider the
testimony, which has been exhibited, to maintain
the issues Joined, and which the parties have pro-
ceeded to Try. The Industry had light hung up
in her fore-rigging, which the respondents admit
was seen ever The lee bow OF the Thomas Martha,
at the distance of half a mile, and the hbellsnts
claim that the Thomas Martin should have shown
light sso that there severa, vessels that night
the coast, with ghts, and that custom and Law
required that in such night 1t was negligence for
the Thomas Martin not to show Light On this point
there was no sufficient proof to establish custom
lawto carry light on that coast, unless the night
was dark, or the vessel was at anchor. The night
was not dark as to require light to be shown on
that coast. lt was claimed by the Industry, that
the Thomas Martin did not keep up a good watch
or los kout; but in that respect both vessels we're
much alike, neither beirg IN fault, and the Court
finds the fact, that the Industry was not lost for
that cause, but from another, which VIII hereafter
be stated. An important question has arisen in re-
gard to the wind The libelsnts auege and claim
that they have proved that the Industry Was then
sailing on the wind, Gle hauled, AID that tho
Thomas Martin had the wind free. These are the
slleg atioos in the libel -" The Industry then
and there laying her course and sailing Gloss by the
wind, with her light sails furled and only her lower
sails get while, on tse other hand. the tbellsnis
say that the Thorn As Martin was aliing freely be-
fore the wind. These allegations denied in the
answer, and the respondents ,heTeupon aver that
the Thomas Martin was sailing on the wiad, and
the Industry was sailing Free" In connection with
these sverments the parties disagree as ID the
course of the wind at the time of the collision. The
libel AYERS that the wind was north vest, and much
ore favorable to the course OF the Thomas Martin
than TO the course Of the Industry" The answer
denies this, and alleges u at the wind was west by
north The evidence, when all taken into corsid-
Grafton, is quite as conflicting as the allegations
contained Ia the libel and answer. From these
sources, it is impossible for the Court to say which
is righ and il may well be added, tina, 1t is the
opinion Of the Court that variation Of the wind
point or two either way, could make but very little
difference in the effect on either vessel aod that the
resat Of this cause must depend altogether on
circumstances more important than tie sligh diff
sereIce in the claims as te the point Of compass
the wind was blowing. We proceed then to con-
slider what these important circumstances were
On boxing into the evidence carefully, 1t will b.
perceived that when the lndustry's light was dis
covered by the Thomas Martha it was seen over
the lee bow Of the Thomas Martin, and the una
vodable inference must have been that the Indus
try would pass to leewa-d, and the Thomas Mar
~ L.un A,-
ard, especially, it would lot be required that the
Thomas Martin should put her helm up, and sail
across the track Of the approaching vessel: The
testimony is conclusive, that the Thomas Nartin
did keep on her course, until tho Industry ap-
preached within two three lengths, whsn the
Thorn "A Martin lutfed, 10 avoid the Industry, as
much the wind would permit. Here tho btai
lants claim that il was the duty ofthe Thomas sr
tin TO have put her helm 70 starboard and gone 90
the left of the lodustry; and, the contrary the
respondents claim that The lDdustry should have
put her helm port AID passed to the right, where
as, in fact, the Industry put her helcl hard dowa,
by means Of which mar uuvrc the Industry was
thrown across the bow Of the 4 homas Martin. We
must first inquire how this was, and then apply the
law to the case, a. the proof makes Il. That the
helm Of the Industry was put hafn down, IS shown
bellants 1t is shown by all the witnesses on both
sides, and 1t appears also from the nature Of the
collision itself, the cut the Industry was her
lee side, and the lee sids o. the Industry ceud only
have been brought in contac. sith tEe ster sf the
Thomas Martin except by this msbeuyTe Of the
industry. Carrying IA our minds the facts, that
TIE general formation Of the coast Qe Crest E,,.
Harbor Is northe ,sterly and souhwesterly, and
connecting with that another fast, that the wind
was either northwest or north BY west, then this
al puyre becomes a very imp5r;an: question. 1t
E In deed, the turning point IN the case, and must
be settled by the nautical rules Which have long
the Industry right wrong II right, then the re
spondents are aUs~efable for the damages done by
the collision " wrong, IL Is case without remedy,
the misfortune must remain Thegs Il has fallen.
The question ttil returps-was this maneuvre
Of tho Industry right To answer this quss-
ton, the rules OF navigation must De quoted,
and as IL has been said Ii another case,
at the present term, taese rules have very
recently been reviewed and re established By
solemn decision Of the supreme Coaft oi the United
States-l0, Howard 55s, EdwS ID b. Sc john,
claimants Of the Steamboat Neptune vs.. LebalOn
A. Paine and others " will refer particularly to
the opinion OF the Court, given by tue Hon. Judge
Nelson, page 6sli "a vessel that has the wind free
or sailing before or with the wind, must get out o.
the way Of the yesse that s cl)se bsuled or selling
by or against 10 and she vessel on the ltirboari
tack has right TO keep her course, and the one on
the larbsard tack must give way, or be answerable
for the cOnsCquences 20 when two vessel are ap-
yr 1schipg each ofher-both having ths wind free,
and consequently the power Of readily controlling
their mOveInents-the vessel on The larbOard tack
must give way, and each pass TO the right. The
sane rule governs vessels xiling on the wind, ana
appros ;hing each other when !, Is doubtful which
is - vhudward."
Then, II we apply the Ia Il rule bu. one. to this
case, It leaves the Industry in fault and again,
should th, proof admit Of a doubt as 70 -e appli.
cablity of the rule, then by the last, the condition
Of the libetabts Is no better; and constrained
by all the proof TO say. in the light Of this last rule.
that the ms7guvre Of the Industry. in patting her
belm bard down, instead Of post, vas no. only
unfortunate, but fatal oue, and which ought not,
and cannot be sanctioted by the rules Of the sea.
| haNQ nd thaea fIla as iarfr hau
cannot be too often repeated, nor too we'll known.
To prevent all misuDdorstlr dag IL must be ided,
that on q re examination Of the testimony, I an
entirely satitbed that IL the Industry had put her
helm sport, she would have passed the Thomas
Martin without harm. The libel mus; be dismissed
With cost
AssassirArIoN sSD RnnsEnY-A WossN SHor-On
t Friday night betveen the hours u 10 and II ock
one DR. J. Hopkins, Ct PsqusH inc Brrlee. entered
the house Of John Moore. who resides Plsquemiae
bfuee, about eighteen miles from this place, In