THE ELLA ANDREWS, 105 F. 651

PAEDEE, Circuit Judge (after stating the facts). The coal yard of Wilmot & Co. is on the Algiers bank of the Mississippi river, and occupies a space on the river front of about 400 feet. The coal yard of Coyle & Co. is just above and adjoining. On the morning of the 6th of February, 1899, at about 7 o’clock, the tug Maud Wilmot, with a coal boat containing about 8,000 barrels of coal and a coal palace, which is an elevated floating structure used in transferring coal from coal boats, started out from the Wilmot yard.

The coal boat was fastened on the starboard side of the tug, and the coal palace was on the starboard side of the coal boat, but, being much shorter, was fastened well astern. The destination was a landing up the river on the New Orleans side, and the course taken by the tug was up and quartering across the river; compass course, S. W. W. Just after the tug Maud Wilmot, with her tow, left the Wilmot yard, the tug Ella Andrews, with a coal barge in tow on her port side, left the Coyle yard for her destination on the New Orleans side about five blocks down the river.

The master of the tug Ella Andrews testifies that his course was a southwesterly course, that would take him quartering up the river a little. Very shortly after the Ella Andrews left her landing the starboard side of the Ella Andrews collided with the starboard bow of the coal boat in tow of the Maud Wilmot, inflicting some little damage to the Ella Andrews, sinking the coal boat, and inflicting some slight damage to the coal palace of the same tow. This collision occurred within a short distance of the Algiers shore, not over 300 or 400 feet out in the river.

At the time of the collision the Maud Wilmot, with her tow, was headed up the river, and nearly straight. It follows that the Ella Andrews and her tow which collided with the starboard bow of the coal boat must have been headed down the river. It thus seems that, immediately after the Wilmot left her landing, the Ella Andrews rounded out from the landing just above, ahriid, and in front of the Maud Wilmot, each tug heading across, quartering the river, towards its destination; the Maud Wilmot up and the Ella Andrews down the river.

The weather was foggy, — in the main, densely foggy; but, to reconcile the evidence of all the witnesses, there must have been occasional lifts or rifts in the fog. There is no doubt that betweeh 6 and 7 o’clock that same morning the Maud Wilmot had made á successful tow to the New Orleans side of the river, and from the evidence of the captain and other witnesses the fog must have been-more dense in some places than others; was shiftIng in density, and sometimes lifted on the New Orleans side and remaining thick on the Algiers side, and vice versa.

The master of the Wilmot testifies that when he left the landing he could see the Ella Andrews above at her landing a distance of 200 or 300 feet, and he testifies that before he started ami from thenceforward he gave all the signals required by the" rules of navigation and the circumstances of the case. It is by no means clear, under the evidence, that the Ella Andrews, before leaving ihe landing, gave the necessary signal required by the rales of navigation under such circumstances. The evidence is conflicting as to whether she gave a short whistle, or “toot,” or a long whistle, required by the rale.

After leaving the landing, she probably did give all the fog signals. When the close proximity of the two boats was discovered, the master of the Maud Wilmot gave the required signal to pass to the starboard. The evidence does not show that this signal was answered by the Ella Andrews. Immediately thereafter the Ella Andrews came in sight, and the master of the Maud Wilmot followed the rules, reversed his engines, and hacked his tug at full speed. At this juncture the master of the Ella Andrews, instead of stopping and backing his tug, proceeded full speed ahead.

If is proper to say in regard to this that the master of the Ella Andrews testifies as follows: “The only course that I pursued, knowing we had headway on our boat, I ordered full speed ahead, and kept on trying to clear the tow. That was my only hopes of avoiding a collision.

Stopping and backing would have done no good at all, sir; not in the position that we were in.” Considering that at the time the Ella Andrews and her tow, instead of being headed up stream quartering across the river, as the master supposed, was really headed down stream under steerageway, and moving with the additional force of the current, and that it would have been very difficult, if not impossible, to have stopped the headway of the Ella Andrews in time, there may have been a chance that by driving ahead the how of the towboat would have been passed in safety.

In fact, as the collision occurred, it was with the outside bow of the towboat and the side of the Ella Andrews amidship. A little quicker action and more headway might have averted the collision. If this were the only fault chargeable to the Ella Andrews, it might be considered a fault in ex-tremis, not directly causing the collision, and the Ella Andrews exonerated. In the record is a large mass of evidence, direct, indirect, and more or less expert.

Prom the careful examination we have given it, we find that the preponderance is in accord with the finding of the lower court that the Mand Wilmot was not in fault, and that the Ella Andrews was in fault. The only fault charged against the Maud Wilmot is that she proceeded with a heavy tow, consisting of a coal boat laden with over 7,000 barrels of coal, and a coal palace, “in a dense, thick, continuous, and uninterrupted fog,” and thus voluntarily encountered the hazard of being ran down.

We do not find from the evidence that the fog was “dense, thick, continuous, and uninterrupted,” but, if it were, we are unable to hold that the Maud Wilmot had not the right to proceed about her business, observing the rales of navigation, and otherwise taking all precautions for the safety of other vessels as well as'her own. The Ella Andrews, immediately following the Maud Wilmot, ran out into the same fog, rounding out just ahead of the Maud Wilmot, and idid not observe the rules of navigation, or take the precautions necessary and proper for the safety of other vessels.

The Ella Andrews was in fault in so soon following the Maud Wilmot after she left the landing; in not giving the signals required by the rules before she left the landing; because her master did not know, as he should have known by his compasses, that he was not pursuing the course which he says he intended, and which would have followed the Maud Wilmot, instead of heading her off; and in fault (perhaps minor) in not reversing his engines and backing as soon as he found he wás approaching dangerously close to the Maud Wilmot and her tow. The first assignment of error is too general to merit attention.

The second assignment of error is not well taken, because, if the facts averred are true, the proposition that, because the Maud Wilmot left her landing first, the Ella Andrews might disregard all rules, and run her down without responsibility, is decidedly unsound. The third assignment of error, relating to the preponderance of evidence, has been disposed of, as well -as the fourth, which questioned the right of the Maud Wilmot to commence her voyage in a fog with a tow of 7,000 barrels of coal.

To. the fifth assignment of error we agree thus far: that the rules of navigation are intended for the prevention of collisions, and that, when, the observance of a certain rule in a particular case would not have prevented a collision, the nonobservance of a set rule becomes immaterial, provided the vessel is otherwise without fault. As noticed^ above, if the only fault of the Ella Andrews had been in not reversing her engines and backing when approaching the Maud Wilmot, we might have excused her master from responsibility for the collision.

The sixth assignment of error is general.' The seventh and eighth, to the effect that the Ella Andrews was not equally in fault with the Maud Wilmot, are not well taken. The ninth assignment of error is general. On the whole case, we are of opinion that no reversible error is to be found, and that the decree of the district court should be, and it is, affirmed.