Hubbard v. The Allaire Works. in this case; and, if there were no such provision in the statute as that found in the first branch of the 35th section, the plaintiffs' right to judgment on the plea would be clear. But, the two branches of the 35th section must be construed together, and a scope of operation given to each of them, if possible. If the second branch, with its six months' limitation, is to be held to cover every case, as well that of a preference to a creditor, as all other cases, the first branch is useless and might as well have been omitted. But the first branch, which is the partial clause, precedes the second branch, which is the general clause. The first branch provides for the case of a transaction done with a view to give a preference to a creditor or person having a claim against a debtor, or who is under any liability for him. In such case, if the transaction takes place within four months before the filing of the petition in bankruptcy, and the other circumstances specified exist, the transaction is made void. The second branch must be held to be intended to provide for any disposition of property that is not provided for by the first branch, that is, for any disposition that does not gives such a preference as the first branch provides for. But, whenever a case falls within the first branch, it must, although it may also be in terms within the second branch, be tested, as to its validity, and as to the limitation of time prescribed, exclusively by the provisions of the first branch. It results, from these views, that the plea must be allowed, and the bill be dismissed, with costs. The Hansa. THE HANSA. The rule, that, where two ships under steam are crossing, so as to involve risk of collision, the ship which has the other on her starboard side, shall keep out of the way of the other, enforced and applied. Embarrassment by proximity to vessels at anchor is not an excuse for not observing such rule, where there is no justification for being in such proximity. The not slackening of speed by the vessel bound to observe such rule, condemned; and the keeping of her course by the other vessel, approved. (Before WOODRUFF, J., Southern District of New York, June 11th, 1870.) WOODRUFF, J. The counsel for the claimants has argued this case with very great ability and skill. The rules of maritime law, which he urges with great zeal, are, for the most part, unquestionable. My examination of the testimony has brought me, however, to the same conclusion upon the facts which is stated with great clearness and force in the opinion of the District Judge before whom the cause was tried below. (2 Benedict, 299.) No additional testimony was taken in this Court, and I do not think I should state the grounds of decision more satisfactorily if I were to discuss the evidence in detail. It is not questioned that the Hansa was navigated in entire disregard of the rule which, when two ships under steam are crossing, so as to involve risk of collision, requires that the ship which has the other on her starboard side shall keep out of the way of the other. The master of the Hansa, from the moment he saw the Transporter off his starboard bow, was apprehensive of collision, and yet did absolutely nothing with a view to avoid it until the collision was inevitable, but continued to advance with undiminished speed, from six to nine miles an hour, according to the varying estimates of the claimants' own witnesses, he, as is justly to be inferred from his own testimony, relying upon an expectation, or at least trusting to a hope, that the Transporter would change her course. The Hansa. The effort is ingeniously and zealously made to excuse the non-observance of the rule by the Hansa, by denying its applicability to her when she was greatly embarrassed by the vicinity of numerous vessels at anchor, which it was necessary that she should avoid. That embarrassment is entitled to consideration, and, if the Hansa had done what she could under the circumstances, would have great weight, notwithstanding the doubt created by the conflict of testimony, as to whether near the place of collision there were any vessels which were a hindrance to her appropriate effort to avoid the Transporter by passing to the eastward of her. But no sufficient excuse can be found for her advancing among those vessels lying at anchor, if they were even as numerous as her master states, and attempting to pass the bow of the Transporter at a speed which her own pilot estimates at nine miles an hour, or at the speed of six or seven miles an hour, as her other witnesses judge, when she had the Transporter in full view, according to her master's own statement, for half a mile. The excuse for not moving more slowly and by that means more carefully, which her master states, is, that it was necessary that she should have the speed she maintained in order to have steerage way. But the pilot testifies that she was manageable at a speed of three miles an hour, and, in an ebb tide running three miles an hour in the opposite direction, it would be very extraordinary if the statement of the pilot were not correct. It gave her practically a motion relatively to the water of six miles an hour, and there must be some very extraordinary reason if she could not have been safely steered with less than that. I am compelled to reject the excuse and to say, that if, instead of hoping that the Transporter would change her course, the Hansa had slackened speed, she might safely have picked her way among the vessels at anchor and passed safely to the eastward of the Transporter, and that it was her duty to do so. In short, the proof fails to satisfy me that there was any sufficient embarrassment to justify her in disregarding the rule. Doubtless, VOL. VII.-19 Sawyer v. Oakman. it was more convenient for her to take her usual course up and along the west side of the river. That was the most direct route to her berth at Hoboken, but such convenience must yield to rules devised for general observance and to secure safety to others. The suggestion is plausible, that the Transporter was easily managed, and readily turned to starboard or port, and that, in circumstances of danger, instant and active effort should have been made by her. The rule is very well, but here, if I am right in my previous conclusion, the master of the Transporter saw and could see no reason on his part for not observing the rule which, while it required the Hansa to avoid the Transporter, required the Transporter to keep her course. When the peril became imminent, she appears to have done all that was possible to avert the consequences. I am constrained to regard the fault as wholly on the part of the Hansa. The decree must, therefore, be affirmed. William Jay Haskett, for the libellants. CHARLES SAWYER AND OTHERS 28. SAMUEL OAKMAN AND OTHERS. Circumstances stated under which the owner of a wharf is bound to notify the master of a vessel which is about to haul in to such wharf, as to the condition of the bottom alongside of the wharf, where the vessel, when hauled in, will touch the bottom by the fall of the tide. The owner of a wharf, making use of it for gain, in the course of his business, is liable for the damages caused by inequalities in the bottom alongside of the wharf, to a vessel lawfully using the berth in the course of business and exercising due care. Although the act of hauling a vessel into a berth at a wharf on Sunday is an illegal act under a State statute, yet if damage be suffered by the vessel on that Sawyer v. Oakman. day, at such berth, through the wrongful act or omission of another, the owner of the vessel may recover against him for such damage, in Admiralty, in a Court of the United States. Cases stated in which fees paid for surveys of injured vessels are allowed as part of a recovery. The rule stated, in respect to allowing a libellant for depreciation in the value of a vessel injured and repaired. The expense of a protest disallowed, in this case. (Before WOODRUFF, J., Southern District of New York, June 11th, 1870.) THIS was an appeal by the respondents in a suit in Admiralty, from a decree of the District Court for the District of Massachusetts. The opinion of the District Court, (LowELL, J.,) was as follows: "The libellants are the owners of the schooner Bowdoin, and the respondents own a wharf and dock at Charlestown. In October, 1866, the schooner, loaded with a full cargo of coal, arrived in port consigned to the respondents, and, at the request of the latter, made fast at one of the piers of the wharf, and awaited for some days the discharge of two other vessels which had a prior right to the berth. On Saturday, the master attempted to haul in to the dock, which was then clear, but failed, and did haul in at high tide in the afternoon of Sunday. On Monday morning it was discovered that the vessel was badly hogged and strained, causing a damage estimated in the libel at ten thousand dollars, for which the owners are now proceeding. The libellants attribute the damage to the bad state of the dock, which they say had a large pile of coal in it and was otherwise dangerous. The respondents aver that the injury resulted from the negligence of the master in not hauling to the place pointed out to him for that purpose, and in not putting in suitable fenders. It seems that the dock has two berths, of which the upper or inner berth is much shallower than the other, and is intended for vessels that take the ground at low tide, and the theory of the defence is, that the vessel lay partly in one and partly in the other, and so did not rest wholly upon the ground at low tide; and she had a considerable list outwards, or to port, which is alleged to have been caused by the master's, negli |