NATIONAL DREDGING CO. v. MONSEN, 126 F. 930

PARDEE, Circuit Judge. The facts in the case may he taken as found in the opinion of the District Court brought up in the record, and we agree with that court in holding that

article 9, cl. “d,” of the act of Congress approved June 7, 1897 (30 Stat. 96 [U. S. Comp.

St. 1901, p. 2879]), and the following regulation of the board of supervisors contained in the pilot rules for Atlantic and Pacific coast inland waters, to wit: “Resolved that all coal boats, trading boats, produce boats, canal boats, oyster boats, fishing boats, and other water craft navigating any bay, harbor or river, propelled by hand-power, horse-power, sail, or by the current of the river, of which should be moored in or near a channel or fair-way of any bay, harbor or river, shall carry one white light forward, not less than six feet above the rail or deck” — apply to a scow appurtenant to or forming part of the equipment of a dredging machine engaged in deepening the channel in the river and bay of Mobile, and that, as the proof shows that the scow in question carried no “white light forward not less than six feet above the rail or deck,” it was in fault in the collision with the steamship Banan.

But we find that, while the scow was in fault, and such fault contributed to the collision, yet it was not the principal or main fault which brought about the collision.

The evidence shows, and the District Court found, that while the dredge was working in the channel, bay, and river of Mobile, and at the time of the collision, it was customary when a vessel was approaching to notify the dredge of its approácITby blowing three blasts of the whistle, and within one-fourth of a mile, and if the dredge was in a position to clear the channel it was to respond with three blows of its whistle to notify the approaching vessel that it was in a position to move out of the way; the dredge then to move to the west, clearing the channel, and leaving the vessel to pass by to the east.

This cus-' tom was well known to the pilot and officers of the steamship Banan.

Now, the evidence shows, and we understand the District Court to agree in so far as signals are concerned, that on the occasion of the approach of the Banan on the night in question, when the signal was given by the Banan of its approach, the dredge was not in a position to clear the way, and it did not respond with three blows of its whistle to notify the Banan that the channel was clear; and yet the Banan pursued its course, keeping in the middle channel, and forcibly collided with the scow which was not wholly removed from the channel, although efforts were being'made to that end.

The dredge, with its equipment of scows,' was lawfully in the river channel, and had a right to be there, and it was the duty of the steamship Banan to respect the right and follow the custom in the case. We think it clear that the disregard of the ^.custom by the steamship Banan was the primary and main cause of the collision. The fault of the scow contributed to the collision, because, if it had carried the regulation white light forward not less than six feet above the rail or deck, the steamship Banan could have seen the same, and by passing a little to the east have cleared both dredge and scow.

As both vessels were in fault and contributed to the collision, the damages should be divided. The judgment of the District Court is reversed, and the cause is remanded, with instructions to enter a decree finding both the steamship Banan and the libelant’s scow in fault, and that .the damages therefor should be divided, and thereafter proceed according to admiralty rules and usages.