THE FEARLESS, 199 F. 400

ROSS, Circuit Judge (after stating the facts as above). We quite agree with the proctors for the appellant that “in applying rules of law to a given case the controlling facts of that case must not be ignored,” and therefore we cannot agree in their contention that the cases of The Swan (D. C.) 19 Eed. 455, Potter v. Pettis, 2 R. l. 487, and McCord v. Tiber, 6 Biss. 410, Fed. Cas.

No. 8,715, establish the law to be, in such a case as the present, that an obstruction to navigation is necessarily “in itself a plain and undeniable fault”; for here the dredge in question was placed in the harbor for the distinct purpose of improving the navigation thereof, under the supervision and direction of a government officer. It was not stationed there for the purpose of directing the navigation of outgoing or incoming vessels.

It is true that while the work was going on navigation was obstructed in that part of'the harbor covered by the dredge and its pontoon bridge and pipe line; but among the specific instructions given the "dredger by the government officer, as the record shows, was the instruction that no ship should be compelled to go within 50 feet of the edge of the channel, and that every ship should be allowed 200 feet of .channel for passing, and that the pipe line should be broken for all passing ships. That officer, Capt.

Slattery, testified, among other things, that as considerable friction had been taking place between pilots and masters, and the captain of the dredger and the contractor, he issued these and other instructions to facilitate proper navigation of the channel on the one hand, and to prevent undue interference with the dredging operations on the other; that he was waited on by a committee of the Pilots’ Association, and also by three inter-island captains, and in respect to the opening of the pontoon line he gave these further instructiohs: “I instructed all captains, I instructed this committee, these two committees, that when leaving their wharves they were to blow four whistles, so that the contractor would have at least 15 minutes before they reached them, before the ship reached the dredge, during which time to break their pipe line.

I instructed them that I would instruct the contractor to answer their whistle by four whistles, which would mean that by the time they arrived they would have the channel clear for them. I instructed them that, if in any case the contractor failed to allow sufficient space for them to pass with safety, they were- to break right through the pipe line.” The record further shows that, about 2:20 p. m. of the day of the accident in question, the pipe line extending from the dredger was opened for the passage of three ships. About two hours later the tug Fearless, with the schooner Foster in tow, approached.

According to the testimony, when first starting with the tow from the1 wharf in the inner harbor for the open sea, the tug blew four whistles,which were not answered by the dredger.

Without repeating her whistles, the tug proceeded with her tow, and when near the lighthouse blew four more whistles, which were immediately answered by the dredger with four whistles, when the Fearless, at a speed of from 6 to 7 knots an hour, and with a towline from 40 to 50 fathoms in length, proceeded to tow the schooner through that portion of the channel left between the dredger and the westerly edge of the channel — a space, according to the evidence, not exceeding 100 feet in width; one or more of the witnesses stating it to have been not more than from 70 to 100.

The narrowness of the channel on the westerly side of the dredge is conclusively shown by the fact that in passing it the schooner struck the dredge on one side, and almost immediately grounded,on the other, being at the time almost parallel with the channel. Besides, the channel was not straight at the point in question. The captain of the tug testified that the four whistles of the dredger meant “everything all clear,” and that accordingly he undertook to pass with his tow west of the dredge. The testimony of Capt.

Slattery, the government engineer, in respect to that undertaking, is, in effect", that it was neither safe nor proper for the tug to take the schooner west of -the dredger, but, on the contrary, that “it was the height of imprudence for the captain of the tug Fearless to attempt to take any tow through such a narrow passage.” The tug undertook to do that in broad daylight, with nothing to obstruct its view. Not only so, but she was in her home port, where she was engaged in towing vessels in and out and about the harbor.

Under such circumstances it is well-settled law that she was bound to know the channel, and, conceding that the dredger signaled the lug to pass on the westerly side of her, the tug should have refused to proceed that way under the circumstances disclosed, and with the knowledge with which the tug is properly chargeable. The Margaret, 94 U. S. 494, 497, 24 L. Ed. 146; The Eady Pike, 21 Wall. 1, 22 L. Ed. 499; The Inca (D. C.) 130 Fed. 36. .

The tug was also- negligent in not repeating its first signal, upon finding that it was not answered by the dredger, which would have afforded the latter ample time within which to open its pipe line, as it had done two hours before for the passage of other ships.

Moreover, the tug was authorized, as has been seen, to open the pipe line itself, and could readily have done so within a few minutes; so that, even if the last signal of four whistles given by the tug, and which was responded to by the dredger, was correctly interpreted by the tug to mean that it should pass with its tow westerly of the dredger, instead of waiting for the dredger to open the pipe line or to do so itself, still the tug was clearly in fault.

The testimony is that the contractors doing the dredging only required 15 minutes’ notice to break the line, and that the actual work in breaking and restoring- it only consumed about 10 minutes.

As if to add negligence to negligence, the captain of the tug lengthened his hawser, and, according to his own testimony, steered the tug in passing within 15 feet of a barge (7 or 8 feet wide) which lay alongside the dredger, and when the tug was abreast of the latter ordered “starboard slowly,” the direct effect of which was to turn his bow toward the other side of the channel, and when the tug was abreast of the dredger ordered “starboard a little more,” which brought the tug to pulling at an angle of from about 40 to 50 degrees from the schooner’s bow, the direct tendency of which was to bring the latter against the dredge.

In order to avoid such a collision and keep in the channel, the master of the schooner put his helm hard-aport and then immediately put it to starboard again; but the effort was not successful, the schooner struck the dredge, and was then thrown against the edge of the channel, where she stuck. When she floated at high water, about 10:45 in the evening, the master of the tug had become very much intoxicated, and his handling of his tow from that point to the time of her grounding on the opposite side of the channel was too clearly negligent to call for a description of it.

In the circumstances of the case, we think the point made on behalf of the appellant that the schooner assumed the risk of the tug master’s intoxication is without merit. Even if the appellant’s contention that the dredger was also liable in damages to the libelant be correct, the action of the trial court in dismissing the libel as to the dredger was not assigned as error, and as, in our opinion, the appellant is clearly liable for the injuries sustained by the appellee, we affirm the judgment. The judgment is affirmed.