The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1896-09-17

as to how long he shall stand by, by his
own intelligence. but only Rupon careful
examination OF the condition of that YES
sci. and paying due regard to the stime.
lne place, the state of the weather and
Ok the sea, the nature of her cargo, tn q
extent and character of her injury, .and
1ne presence or absence of other Rvaila-
PIE assistance. He is not bound co stnnd
oy, and submit to delay, simply to
quiet the unreasonable or oowardly fears
of others.
The statute permits him to show reas-
enable cause for his failure TO do the
things 1t enumsrates, and even when
such reasonable cause is not shown. it is
only in tho absence of proof to sthe con-
rary that the collision shall be deemed
to have been caused by his wrongful act,
neglect or default" Thus the statute
requires many things to be settled before
its penalty is pronounced.
In the case now before the court. the
collision was near land; the tag boat,
uninjured and with steam up, was at
little injured in her hull, and her crew
were close by to assist if necessary; the
hour was early: the sea was smooth
and the wind not moro than a six knot
breeze, probably lees than five knots; the
crew of the Ellangowan called upon the
steam tug for help. but not upon the
schooner; and although the barge was
loaded with coal, bad cargo. Captain
Clark, of the schooner, might we'll con-
slider that she had at hand ell the assist
anoe which was required. If be did so
think, the result showed he was in no
error. Besides, his own vessel striking,
nearly head on, the side of a large barge
heavily loaded, was injured, how much
he did notfknow and could not at once
tell. His first duty was to look to the
condition of his vessel which he prompt
~ proceeded to investigates. The vessels
dld not remain foul of each other, but
the schooner rebounded from the blow,
and was swept away from the barge ssfrst
struck, carrying away the masts OF the
second and still receding. The case was
very different from what it would have
been had the two vessels remained foul
OF each other, sand required time and
labor to separate Thorn and If when they
had got clear, the sails of the Winslow
had been trimmed. aud she had silently
sailed away. Here was collision and in.
slant separation. Nothing was done on
board the Winslow to quicken her de-
parture. by any handling or trimming Of
her sails. She could not at once be
brought back to the barges, and by tho
time that tho extent of her own Injury,
and the degree of her peril could be ex-
amined, wide interval separated her
from the barges to the windward, and
thentthe tug had gone to their assistance
To return to a position where the crew
of the Winslow could have rendered as
sistance to the master, crew or passen-
gers of the barge, the schooner must
have come about, and beat back to them
1t WAS right first to deter mine if that
could be done, or attempted with safety
to herself, her crew and passengers, and
next if it would probably be of any use
In the condition of his schooner, as on
examination the master found it to be,
the difficulty of returning to the barge
was not insurm ountable, and but for the
presence of the tugboat and other assis-
lance, it would have been his duty to
return as quickly as possible.
There is nothing in the evidence dis
closing on the part of Captain Clark any
indifference to or reckless disregard of
his duty towards the vessel with which
he had collided, and this court cannot
surrounding him, he was not warranted
in believing that he had ascertained that
no further assistance was necessary.
The failure to give the name of the
schooner and the other items of informa-
ton named In the statute. for which. by
the way, no demand appears to have
been made, seems to have been result
and not caused by any purpose of escape
and concealment. The facts in this case
differ materially from those of The Her.
ouIes, 10 Fed. Rep. 1874, and of The Ken
ilworth, 81 Bed. Rep. $50, In both
which the collision took place in fog;
both vessels were called on for assist
ance. and, though uninjured, sailed
Kenilworth heard. when only = few feet
distant, the hail inquiring what ship 1t
was, and made no answer, "but pro-
oeeded on her course rs though nothing
had happened" without standing by
or endeayoring in the least to do So The
facts in regard to the Hercules were SIM
liar. The shooner with which she had
collided was in q sinking condition, and
her Grew called upon the tug for assist
sh OF cartridges from a Winchester rifle
three times. This proved of no avail,
and the tug disappeared and was not
heard of again." and this, although, go
far as the report shows, no other posi-
BILE help was near.
So too in the case of The Robert Ora
ham Dun, 80 Fed. Rep. 1877, the District
court, speaking on this subject says,
'the conduct of the officers was inex-
cussble, and their account of the COLI
sion is wholly unreliable;" and the Cir
cree, 70 Fed. Rep. a70. says, "Thers can
be no question upon the evidence dis
closed in the record, that the court below
was right in holding that the master of
the Robert Graham failed without
reasonable excuse, to peform the duty
impused on him by the act of Septsm Der
4, $780, to lie by after the collision and
TO render assistance to the men on the
Captain John, and that the subsequent
drowning of the three men on tine latter
vessel must be attributed to th is neglect
Of duty"
We do not think, upon the evidence
now before us, that the Jacob S. Wins
low should BIZ condemned under the act
of September 4, 1890. If she is to be held
liable at all, it must be because of some
fault in her navigation contributing
to the collision.
This opinion of the effect Of the act of
1890 is confirmed by the fact that the Sec