sist that the libel should be dismissed so far as that part of the claim is concerned, and that the libelants should not be permitted to recover costs in respect thereto. But the law is otherwise. That a tender shall be effectual, and shall bar a recovery of interest and costs after suit has been begun, it must be of such sum as will cover the claim admitted, with interest to the day of the tender, and such costs as have accrued in the suit up to that time. The claimants in this case failed to include in their tender a sum sufficient to cover the costs which had accrued, the tender being made after the filing of the libel and the issuing of the monition. The libelants therefore are entitled to disregard the tender as such, and recover the amount of $31.51, with interest, and such costs as may be taxed.

The balance of the claim, $150, had its origin in this manner, as the libelants allege: The Phillips was lying at a dock at New York in the North river; that the master of said vessel, who was until that time an entire stranger to the libelants, after making the purchase of the articles herein before referred to, stated to them, in effect, that his vessel was in difficulty, and applied to them for a loan or an advancement of $150, with which he declared he desired to pay off and discharge certain claims which were liens, as he alleged, then existing against his said vessel, and the libelants, in pursuance of such request and application, without seeking or asking any security, advanced to the said master for the purpose aforesaid the said sum of $150; that in consequence of such advancement they thereby became entitled to, and are now entitled to a lien upon said vessel for said $150. The alleged lien which the master, according to the statement of the libelants, most desired to cancel and pay with this money, arose on the default of payment of the seamen's wages then overdue. If in fact the advancement of this $150 was made by the libelants for the purpose of freeing the vessel, which was a foreign vessel, in a foreign port, from liens for seamen's wages, undoubtedly they would be entitled to have the benefit of such lien, in order to recover their advancement. But this statement is stoutly contradicted by the master of the Phillips, and the weight of the evidence, it seems to me, supports his story, which is a very different one. His statement is that he, after he purchased the articles for which the claim of $31.51 is made, suggested to the libelants, in a conversation which he had with them, to purchase a one sixty-fourth interest in a vessel of which he was part owner, called "The Dow," for the purpose of obtaining its custom and trade, and upon the express understanding and condition that whenever the Dow was in the port of New York she would purchase all her necessary supplies from the libelants; that for this purpose, and upon this understanding, the libelants did pay $150 for a one sixtyfourth interest in that vessel, and that the $150 now claimed by libelants is the sum paid for said one sixty-fourth interest. This statement is corroborated, to a certain extent at least, by the captain of the Dow, who afterwards arrived in the port of New York, was taken to the libelants' store, and introduced as such master, and there made certain purchases, amounting to $99, for the benefit of the Dow; and while there, in a conversation which he had with one of the libelants, it was stated that they (the libelants) expected the master of the Dow

hereafter to purchase all his supplies of them, because they owned one sixty-fourth interest in that vessel. This vessel was unfortunately wrecked on its next voyage, and became a total loss. It can hardly be supposed that the master of the Dow, a totally disinterested witness, would deliberately make such a statement, under oath, so definite and particular in all its parts, if it were false. No motive can be assigned for such gross perjury on his part as this would be, if the statement were wholly untrue; and yet, if true, it goes very far to corroborate the statement of the master of the Phillips. Besides this, the master of the Phillips is corroborated by another witness, Capt. Brown, who was temporarily in command of the Phillips, and who, while so in command, as he testifies, had a conversation with one of the libelants, in which it was expressly admitted by the libelants, or one of them, that there had been a purchase of the one sixty-fourth part interest in the Dow by them. The improbability of the statement of the libelants that they advanced $150 without security to a comparative stranger, a master of a vessel then lying at New York in another district, to pay off alleged liens, without in any wise protecting themselves, seems to me to be very much greater than the statement made by the master of the Phillips touching this sale of the interest in the Dow, corroborated, as it is, to a certain extent, by the two other witnesses. Possibly there may be some explanation which would harmonize these statements so contradictory of each other. I have been unable, however, to find it, and I am compelled by the weight of the evidence to hold that the libelants have failed to sustain their claim of $150 as a proper lien against the Phillips, and it is therefore disallowed. Let there be the usual decree.

THE CIAMPA EMILIA.

THE CIAMPA EMILIA v. SOMERS et al.

(Circuit Court of Appeals, Third Circuit. December 1, 1892)

COLLISION-TUGS AND TOWS-VESSELS AT ANCHOR.

A dredge anchored in the Delaware river, on a clear night, with lights properly burning, was struck by a ship in tow of a tug on a hawser. Held, on the weight of the evidence, that the collision was not due, as alleged, to a sudden change of course by the tug from the east to the west side of the dredge, but was caused solely by the fault of the ship in failing to follow the tug's course, which, from a point more than a mile away, was directed and steadily maintained to the westward of the dredge. 46 Fed. Rep. 866, followed. In Admiralty. Libel by Frank C. Somers, owner of the steam dredge Arizona, against the ship Ciampa Emilia, (Francisco S. Ciampa, claimant,) for damages for a collision. The dredge was struck by the ship while the latter was in tow of the tug F. W. Vosburgh on a hawser. In answer to a petition by the claimant, the owners of the tug appeared as defendants, and the contest was between the two as to which was in fault. The owner of the ship libeled the tug in the district court for the eastern district of New York to recover damages sustained by the ship in the same collision,

and the tug was there held liable, (41 Fed. Rep. 57,) which decision was affirmed on appeal to the circuit court of appeals for the second circuit. See 1 U. S. App. 143, 1 C. C. A. 508, 50 Fed. Rep. 239. In the present case, however, the district court found that the ship alone was in fault, in that she failed to follow the course of the tug. 46 Fed. Rep. 866. Affirmed.

Charles C. Burlingham, (Wing, Shoudy & Putnam, on the brief,) for appellant.

Josiah A. Hyland, (Hyland & Zabriskie, on the brief,) for respondents, appellees.

Henry R. Edmunds, for Frank C. Somers, libelant, appellee.

Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge.

ACHESON, Circuit Judge. This suit was brought by the owner of the steam dredge Arizona against the ship Ciampa Emilia to recover damages sustained by the dredge by reason of having been run afoul of and into by the said ship on the night of November 2, 1888, between the hours of 9 and 10 o'clock. The place of collision was Mifflin bar, in the Delaware river, a few miles below Philadelphia. The Arizona, with proper lights set and burning, was anchored about mid-channel, with head upstream. The width of the dredge was 34 feet. On either side there was a clear water space at least 250 feet wide, in which deeply laden vessels could safely navigate. At the time of the collision the ship was in tow of the steam tug F. W. Vosburgh, on a hawser about 250 feet long, bound for Philadelphia. The tide was flood, the night was clear, and lights were easily visible. The dredge was struck on the lower easterly corner by the bow of the ship. The libel charged that the collision was caused solely by the fault of the ship, and the incompetency, negligence, and careless management of those aboard of and in charge of her, who had abundant and timely warning of the presence of the dredge, and could and should have avoided her. The owner of the ship Ciampa Emilia petitioned the court to bring in the owners of the tug Vosburgh as codefendants, alleging that the collision was caused by reason of the fault of those in charge of and navigating the tug; and subsequently the owners of the tug appeared in the cause, and filed an answer.

The question of fact involved in this appeal is well presented in the following quotations from the said petition of the owner of the Ciampa Emilia and the answer of the owners of the tug. The petition alleges:

"Those on board of the ship first sighted the lights of the vessel, which proved to be the steam dredge Arizona, a little on the ship's port bow, distant upward of a mile. There was ample room for the tug to pass the dredge on either side. She directed her course so as to pass to the eastward of the Arizona and another dredge anchored just above the Arizona, and would have towed the ship by the dredges in safety had she kept the course which she was then on. Instead of doing so, the Vosburgh, when very near the dredge Arizona, took a rank sheer to port, and undertook to pass to the westward of the dredge. The ship instantly put her wheel hard astarboard, and went off to port several points. She was,

however, so close to the dredge at the time that she fetched up on one of the lines by which the dredge was anchored. This stopped her swing to port, and made her swing a little to starboard. The tug was then to the westward of the dredge, and the towing line ran across the dredge's deck. The tug kept on, and brought the ship into violent collision with the dredge, the ship striking the lower easterly corner of the dredge with the bluff of her port bow."

The answer avers:

"That before said tug reached said dredge, and at a distance of about two miles away, the pilot in charge of said tug sighted the lights of said dredge, and thereupon shaped his course to go to the westward of said dredge, on which side there was sufficient and ample room for said tug to pass by said dredge with said ship in tow with safety; that when said tug Vosburgh had shaped her course to pass to the westward of said dredge she was fully one mile below and to the southward of said dredge; that therefrom said tug proceeded on such course without deviation, and arrived opposite said dredge, and to the westward thereof about sixty or seventy yards; that when said tug had arrived about opposite said dredge, and off about sixty or seventy yards to the westward of said dredge, and on a course to pass clear of said dredge with her said tow, the said ship Ciampa Emilia took a sudden and rank sheer to the eastward, and took a course which brought the port bow of said ship into collision with the lower east corner of said dredge; and that by reason of said sheer said hawser between the tug Vosburgh and said ship was parted before said collision."

The learned district judge in the court below found the facts to be substantially as alleged in the above-quoted paragraph from the answer of the owners of the Vosburgh, and that the tug was blameless; that the collision could not have occurred had the Ciampa Emilia been properly steered to follow the tug; but that she was not so steered; and that when the tug had reached a position opposite to and about 150 feet westwardly from the dredge, the ship, by reason of her departure from the course of the tug, and wholly by the fault and negligence of those on board of her and engaged in her navigation, was brought into collision with the dredge.

We have examined the proofs with great care, and the more so because in the case of Ciampa v. The F. W. Vosburgh, 41 Fed. Rep. 57, a suit in the district court of the United Sates for the eastern district of New York, growing out of this collision, negligence on the part of the Vosburgh was found, and there was a decree against the tug, and that decree has been affirmed by the cir cuit court of appeals for the second circuit. The F. W. Vosburgh, 1 U. S. App. 143, 1 C. C. A. 508, 50 Fed. Rep. 239.

We here meet that conflict of statement between those who were on board the ship Ciampa Emilia and those who were in charge of the tug Vosburgh which is so common in this class of cases. These two sets of witnesses respectively speak with equal positiveness in favor of their own vessel. But there are some collateral circumstances, which, we think, greatly break the force of the testimony of those who were on the ship. In the first place, none of those witnesses, save the lookout, was in a favorable position to see objects ahead, or to note accurately the movements of the Vosburgh. Then, if the lookout saw the dredge, he did not report its presence, and, in fact, the man at the wheel was in utter ignorance that any dredge was there until after the collision. Again, the master of the ship was altogether ignorant with respect to the navigation of the Delaware river, and so were all his crew. It is, too, disclosed that none of them understood the

usual signals of steam vessels when meeting and passing. Furthermore, very shortly before the collision, orders to the wheelsman were volunteered by one Fizzarotti, who had come aboard the ship to deliver letters and solicit business. Fizzarotti's spontaneous interference with the navigation of the ship, and his declared reasons for so doing, are so significant that we quote from his cross-examination: "Question. You stated that you gave some orders to the wheelsman, did you? Answer. Yes; told him to look out for the steamboat. I said, 'She is going to change her course.' After his signal, I said, Watch out, and follow him.' Q. How did you come to do that? A. Why, because the captain of the shipThese people don't know the signals of the steamboats. They don't know them, and they don't speak English. That is the reason I told him. There was no pilot aboard, or anybody else, to tell him. Q. You told him because you saw they were not doing what they ought to do; is that it? A. Yes, sir. By the Court: Q. What did you say then? A. To follow the steamboat. Q. What answer did you give to this question? A. He asked me the question, if I thought it was best to do what they done, and I told him, 'Yes.'. There was no pilot aboard. That is the question he asked of me. By Mr. Hyland: Q. You saw that they didn't understand the signals? A. Yes, sir. Q. And you saw that the ship was not following the tug, and then you told them to put their wheel to starboard? A. So as to follow the tug. Q. Because they were not doing it? A. That is what I mean to say,-to give the instructions for them to steer after the tug.”

True, on his re-examination, Fizzarotti says that when he spoke to the man at the wheel the ship was following the tug, but it is hard to believe that he interfered unless there was some urgent occasion for his so doing.

Turning now to the Vosburgh, we find that there were on board of her two experienced pilots, who were perfectly familiar with the Delaware river, and accustomed to navigate it, namely, Long, who was engaged for this trip, and Cahill, who was also the master and a part owner of the tug. They were both in the pilot house when the collision occurred, and had been there some considerable time before. They had previous knowledge that the dredge was at Mifflin bar, and they sighted her lights when two miles away. Their narratives are clear and circumstantial. They both state that at a point not less than one mile below the Arizona the course of the Vosburgh was shaped to pass to the westward of the dredge, and was not thereafter changed or varied; that, pursuing that course, the tug was in the act of passing from 150 to 200 feet to the westward of the dredge, and was about abreast thereof, when the ship Ciampa Emilia suddenly sheered off to the eastward, going the whole length of the hawser, and striking with her bow the stern of the dredge at the starboard corner. There was a third witness of the collision on the tug, namely, John A. Martin, a licensed harbor pilot, who on this occasion was acting in the capacity of a deck hand on the Vosburgh. He was on the deck of the tug when the collision happened. His testimony fully confirms that of Long and Cahill. That these three eyewitnesses of the disaster could be mistaken is incredible, and, if their account of the matter is rejected, it must be on the ground that they have willfully falsified; and, indeed, the latter is the argument here pressed upon us.

In dealing with the appellant's theory that the catastrophe was brought about from the attempt of the tug to pass from the east to