Appeal from the District Court of the United States for the Eastern District of Pennsylvania.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
This is an appeal by M. P. Howlett, Inc., from a final decree of the District Court in a cause of collision. Under the terms of the decree, the appellant, as owner and claimant of the steam tug M. P. Howlett, and the Wilmington Steamboat Company, as owner and claimant of the steamboat City of Philadelphia, or their respective sureties, were each directed to pay one-half of the damages and costs therein awarded to the libelant, the Charles Warner Company, charterer and bailee of the barge No. 28, and owner of its cargo. We have carefully examined the testimony and the opinion of the court below, set out in full in the margin.*fn1 We discover no error either in its findings of fact, which are fully sustained by the evidence, or in its conclusions of law, and would be content to adopt the findings and opinion of the court below, if it were not that the appellant has raised a question upon appeal which was not passed upon by the learned judge of the District Court.
The contention of the appellant is that the fault charged to the Howlett was in extremis, and therefore it should not be held liable for half damages. In rule 8 of article 18 of the Inland Rules (33 USCA § 203, rule 8), set out in full in the opinion of the District Court, it is directed that, "if the vessel ahead does not think it safe for the vessel astern to attempt to pass at that point, she shall immediately signify the same by giving several short and rapid blasts of the steam whistle, not less than four." The contention that the navigator was placed on the horns of a dilemma, and was thereby excused, under the in extremis rule, from warning the Philadelphia by the danger signal not to attempt to pass, is contrary to the testimony of Captain McMonagle, the master of the Howlett, who was sitting on the forward deck while Capt. Long, a licensed pilot employed on the tug, was at the wheel. Capt. McMonagle, who was close enough to the man at the wheel to talk to him, testified as follows:
"Q. What was the next signal blown by any of these vessels? A. One whistle from the Wilson Line.
Q. The 'Arctic' blew two, and the next -- A. Was our answer, two.
Q. At that time, had you seen the 'City of Philadelphia' coming up? A. Not until I heard the whistle.
Q. When you heard it, what did you say to Captain Long? A. 'Look out, Joe. He blowed one.'
Q. Is that all you said? A. Yes." * * *
"Q. In any event, you said to him, 'Look out, Joe, he blowed one'? A. 'Look out, Joe, he blowed one'.
Q. What was the 'Look out' for? A. To prepare himself for this boat to pass him in such a tight cramp.
Q. Did Captain Long blow anything to the 'City of Philadelphia' in response to that signal? A. No.
Q. Of course, there is no doubt that that one whistle meant that she was going to pass you ...