THE^MARINE 'RECORD. \ jttARI$E LAW. " ' / COLLISION, 'U.S. DM. Court,South. Di$t. JVeltr Tork. Jesse Cnrll ct nl. ii. tlie aeboonor Erastu* Wlman,—Boberf E. Smith et nl. vi the same.—Martha VV. Hullock, a* adminlstrai trlx, vs. Theodoro T. Anderson.—Theodore T. Anderion and oihcn va. Jeue Cnrll and others.—JnrsCarll, petitioner. \. 8cut}der & Carter; Oeo. A. Blauk, for Garll, etc. Benedict, Taft & Benedict, for the Wyman. Brown, J. The above Ave cases grew out ot a collis¬ ion, which happened In Long Island Sound* near Little Gull Island, at about 11 'o'clock of the night of October 28,1881 between the 'schooner P. H. Wheaton, bound to the east¬ ward, and the sohooner Eraetus Wlman, bound westward, whereby the former w.aa Immediately sunk. The captain of the wjfcuton was knocked overboard by the col¬ lision and 'drott nod. The third libel above named waa brought by his administratrix to recover damages on account of his death, - The two libels first named were brought by the owners of the Wheaton and her cargo respectively; the fourth was bronght'by the own-era ot the IVymim to recover their damages, and the fifth la a proceeding by the owners of the Wheaton to llmltthelr lia¬ bility. During the day preceding the collision It hadtbeen blow Ing agaletrom the northwest, and the Wyman'lmd bee,n at anchor in the Sound. She was ii three-masted, centreboard schooner, of 507 tons register. At about 0 p. in., the gale having somewhat abated, she resumed her voyage to the westward and about 11 o'clock was near Little Gull Island and Fisher's Island. The wind was blowing fresh from the northwest, slightly variable, and the sea was rough. Some ten or flftcfon minutes "before the collision, (he ftVyman had made a short tack to the north¬ ward, and waa then put upon hef oourae, W.j^S., sailing close hauled, full and by. The Wheaton was a threo-msatod schooner of 242 tons register, and was sailing proba¬ bly on a course of about E. or E. by S. The only persons on deck at the time of the col¬ lision were her captain and the wheelsman. The captain stood by the wheel and was tlief only lookout; she had no lookout forward. The wheelsman died before the case was Tried, and his evidence was not taken, The other three who composed the crew wore below, and did not come on deck until after the collision. The Wheaton had been sail Ing during the afternoon and evening In company wlrh the schooner Witch Hazel, which waa about half a mile ahead ot the former. No direct evidence of importance beiug obtainable from those on board the Wheaton, the principal evidenoe on her purl is Iran the captain of the Witch Hazel, The contention of the libelants Is, that the Wheaton was considerably to' leeward of the Witch Hazel; that when the captain of the, latter obsmed the two colored lights of thMUfyuinn, nud.tftat the two vessels were affRachlug each other nearly head and lieiul, lie 'starboarded his wheel In order to pass to windward; aim that had the Wyman kept her course, she would have passed eas¬ ily between the Witch Hazel and the When ton, namely, to leeward of the former; but Hint just belore reaching the Witch Hazel, the Wiman lulled up Into the wind, cross Ing the bows ol the Witch Hazel, and com¬ pelling the la ter to 'pass to tho leeweid of the Wlmau.iiniler a sudden port wheel, and that the Wiman, by this luff, tame up into the wind, so that her sails shook, her head wav was lost,' and In getting upon her course again, she pal'l off so much to leeward as to run Into the Wheaton. 'I he captain of the Witch Hazel, In sub stance, gives J Ills account of the matttr. He says that he first saw the two colored lights of the Wiman about a half point on his star- board bow, a Half mile or more ahead, that bis pievlous course was E, ay S.i^jS.; that ho then put hla vessel to porta point and a hall, so that she waa sailing about E, but as he found that the Wiman was coming too c'oje to him, lie put his vessel to port an¬ other half point; and that very shoi try after¬ ward the red light of the Wiman waa shut In, and she shot across his bows with her sails sinking; that be Immediately ported, Wlman w*as put hnrd-a-port, in extremd, to avoid tho collision; that shortly after seeing tho two lights of the Witch Hazel, the green light of the Wheaton was seen nearly ahead or a-llttle on the starboard bow. Two of her witnesses Bay that her green light continued to broaden'off on the starbo'ird bow until It had reached, one witness aavs, one or two points, and the other aays throe points, on the Wlmsn's starboard bow, alter she had passed the Wltoh Hazel; that not long before the collision the Wheaton suddenlyrcnanged -her course under a port wheel, so as to pass to port of the Wlman; show ed her I wo lights for a few seconds, then shut In her green light/and showed her red light; that the Wlman thoa put her holm hard-a-port; and that the colllilon happonnd a few seconds afterward the port bow of tho Wlman strik¬ ing theport quarter of the Wheaton, Frofntlie lights of the Wlman It waa man¬ ifest to both ,(he other vessels Irom the first, that the Wlman was sailing obwe hauled i and passed within a fewfeet of her to lee¬ ward; and -tMt In getting on her course again, the Wlman paid off broadly, as above stated. 1 hreo witnesses from the Wlman, on the contrary, testily that they wore sailing W., #S„ full mid by, after the short tack to the northward above referred to; that they saw the two lights of the Witch Hazel from hall a mile to a mile distant, a little on their port bowfthut she remained so all the time un¬ til she passed to the leeward of them, and that there was no lull or change In the course of tho Wlniau whatever, until after passing the Witch Hazel, a lew minutes be¬ fore the collision, when the whdd ol the her way. A collision having hnppencd, the preeumptloh Is against the Wheaton. The burden of proof Is upon her lo show, by a preponderance ol evidence, some tnult ot the Wlman. The presumption against tho Wheaton la Increased by the absence of any proper lookout on dtjpk. The only evi¬ dence upon which she can rely Is that of Captain Arnold, of the Witch Hazel, It Is Impossible for me to hold that his evidence alone Is sufficient to overcome the direct and positive evidence of the three persons who were on board the Wlman, who testify that there was no such luff as supposed, 'ilie testimony of these three persons, though varying somewhat, does not differ more than might be expected fioni lliedlllerent time m manner of observing by witnesses who an not swearing *o a concerted story. Upon the courses given lor the Wlman and the Witch Hazel, the position) in wliloh It Js testified that tiieir light* were firstseen to each other respectively, are not strictly reconcilable with each other. Their courses, as given, varied two points from'Opposite. If this were so, the two lights of the Wiman could rot have been seen half a point to starboard of the Wltoh Hazel, and the Witch Hazel's two lights at the same time have been seen a little on the port side of the Wlman. It would require a variation of about two points by one of the vessels, or by both of them together, to make this possible. The Wlman alone could not vary so much to the northward, as the wind would not have' permitted It;-the Wltoh Hazel, on the other hand, with the wind nearly aft, and yawing easily, might have been golr.g considerably to wlnihvnrd.of liOr aupposecTcourse at the moment whin the Wlman was first seen, an her captain says, half anoint on the Witch Hazel's starboard bow. If tha tattejr were at that moment thus yawing to the northward, that would explain why when the captain or- dered Her oourse due eaar, that supposed change did not shortly cause the red light of the Wlman t» be shut In, or the green light only of the Witch Hazel to be seen on the Wlman, an he Intended. The evidence from the Wlman, however, hVunnuimous that the two lights of the Witch Hazel continued to be seen all the time, until she-passed lo port. Not only fsli Improbable that the Wlman, sn'llng close hauled, should have lutted up Into the wind 1 the Witch Hazel were pa«» Ing to the windward of her; but If, as Cap tail) Arnold supposed, he hud changed bin course so as to shun Ills green light only. It would be utterly Includible that the captain of the Wlman, seeing only this green light, and seeing that to windward aNo, should nave lulled so as to go apparently directly into her. The rule so often applied In such cases should, theiefoie, he applied In this, that ifiiperlprereillt must be given, in icgnrd to a Vshsel's own u ovoments, to the testimo¬ ny ol tflo-c on board of hqr, where It is prob¬ able and consistent, and not -overborne by an} decided weight of other testimony. The appeaiances testified to by Captain Arnold, I have no doubt, were caused mainly by the changes in his own position. Tho testimony ol captain Arnold Is alto¬ gether Insufficient to establish how tar tho Wheaton was to leeward ot his own course. In one place he estimates it to be- a quarter of a mllu, In another place he calls It a short dlstauco to leeward; but the precise courso that the Wheaton was keeping is not known. Captain Arnold Bays that she was going somewhat more to the northward than he. Whatever her distance to leeward 'was at aoiuc provlous time, according to his testi¬ mony, therefore, It must have-been constant ly hssenlng, and nothing trustworthy can bo gathered from his general estimate un¬ der suoh circumstances. Counsel for the libelants claim that if tho Wheaton were to leeward of the Witch Hazel,her lights could not have been aeen from the Wlman, us test¬ ified to by the witnesses on the Wlman, to the wlndwaid ol the Wltoh Hazel, ao as to be more upon the Wlman's starboard bow than tho Witch Hazel's lights. Consldeilng, however, tluit the Wheatqn was half a mile astern of tho Witch Hazel, and that tue couiw nf tho lattoi and the Wlman varied two points from opposite. It will be found by placing models on a chart that tho Whea ton might be some considerable distance to leeward of the course of the Witch .Hazel and yet as seen from tho Wlman, he moreon the latter's starboard hand than tho Wltbh Hazel, precisely as the Wiuiuii's ultm-tsas testify. The tustlmonv of Cliptaln Arnoli moreover, that the Wheaton was sail! more northerly than he, accords with the testimony of tho witnesses from the Wlman, that they saw only the gteon light ol tho Wheaton; and If her green light only ward visible, and her oourae wis more northerly thin that of the Wltoh Hazel, the Wheaton would naturally anil nooesaarlly broaden off more to starboard, aa two of tho witnesses from the Wlman atate. So that the account given by the latter seema to nio*oonflrmed In part by Captain Arnold. What may have been the particular oauae which Induced the Wheaton to port her wheel, When she was to starboard ol the Wlman, canndt bo known, In the ebsenoe of of ill testimony on that subject; tlmt aha did port Is testified to by all the witnesses, Including Captain Arnold; and the libel also alleges It. Wlthout'advertlng to the testimony as to the amount which the Wlman would piy off before ahe could regain heroeurse after luff- lug up Into the wind and losing her head- and the others were bound to beep out ot- -way, It Is sufficient lo Bay that I cannot re f;ard suoh a luff as established: It) any case, t would b« almost Incredible that a schoon¬ er sailing on the wind and having the right ot way, should, without apparent necessity, have luffed so as to lose all headway. But If alio hadv the vessel would have been a very poor sailer, or very badly handled, that would not havo regained her'course In far less distance than the half mile which sepa¬ rated the Witch Hazel and the Wheaton. The evidence on behalf of the Wheaton seems to me totally Insufficient to overcome the presumptions which are against her; and the libels on her behalf must, therefore, be dismissed with casts. (The E, H. Webster, 18 Fed. Sep , 731; the City of Chester, Do., 003; the Albert Mason, 8 Fed. Rep., 708, 2 Do, 821.), The cross libel In favor of the Wlman Is rendered unavailing through the loss of the Wheaton. The proceeding to l|mlt llu billty, which has been Instituted by her owners. Is sufficient to prevent any decree against them In this case. — April 28,1884. ----1---------- " m T- ---------r-^_____ THE J. K. WHITE. The little steamer J. K. White has been resurrected from the old river bed and now lies In the river opposite Superior street hill. Her appearance Is not Inviting. She formerly run as an excursion boat between this port and Rocky River.—Mahixk Record, May 8. The above Jjem. and the presence at this port of Captain Joseph Greenhalgh, her for¬ mer owner, and n brother ol Captain Robert Greenhalgh of the Centra' tug 0010(1, recalls to our mind an ocoW-pinoe which took place In October, 1873, In which the J. K, White and Captain Joseph Greenhalgh, wh'o now lives in Bay City, figured largely. It la as follows: The J. K. Whlthe was built at this port In 1808 00 by Joseph- Greenhalgh. She Is 00 feet long, wltb four feet depth of hold, ni|±l was built as pleasure boaJ,and for some time was emplojed In carrying passengers be¬ tween this port and Rocky River, but when tjial port was filled up, her owner advertised her lor sale, and she waa purohaaed by Cap¬ tain Sam. Thornton of Buffalo, in April 1872, for $8,000, purchase money $2,000, land the rest In payments ml one, two and tinea thousand dollars. The boat was taken to Buffalo and during a portion of the summer was employed In the excursion business, running between that port and Oakl ind, on Grand Island, in the Niagara River. The captain of the boat proved u poor manager,, and the officers sailed don n on his craft, while laying In port,and would hAve tied hei up but Thornton put the officers ashoie and sailed out of the harbor and ran into Erie where lie was overhauled and compolled to give bonds for his appeuriiuctfln Buffalo. The bout was engaged in the excursion business ut Erie lor a while, and once with u party of two or three hundred aboard, the captain left the wheel In the bunds of a lubber while he was collecting the fare, and while passing out a propeller backed into her and came near cutting the craft In two, and threw everybody oft their feet. After this mishap the captain ran his vessel up the lake, In¬ tending to sell her if he could find n purchaser, but the boiler gave cut, and the vessel put Into Black River for lopalrs and and the captain's funds gave out, and he re¬ turned to Buffalo, and gave up the vessel to his creditors. Tho first payment was due In September and ho fulled to meet it- Captain Greonhalgh saw an advertisement In the Buffalo papers, ottering the vessel for sale, and on the 4th of Octobor he went to that -dpy to try and recover -his property. He found about $1,200 In debustanding against the boat, and he settled all the chain's, and on the succeeding Monday prepared to steam to this port. In tho morning he went to the custom house' to procure a clearance, and was absent an hour and a half, and when he returned he found that some quo had actually stolen the Bteamor and sailed without a cleat onco He chartered a tug and stalled in search of the runaway, and overhauled the boat Jii the port of Fo>t Erie, Canada. Thornton hailed the tug and wanted to know If Greenhalgh was aboard. That gentleman made his ap¬ pearance and proi i eded to claim hi* pro¬ pel tv, showing his pupeisuml afllniilug his rlghib. lie went u.boaul the M hlte, whou Thornton seized an axe and declared that'ha would oliop of the hand or the first man who attempted to make fast a line to the boat The tug left Oreenluilgh aboard the Whim and returned to Buffalo.. The two captains walked the deok by turns, esoh claiming tha r property, and at night' Greenhalgh went ashore. The noit morning the Buffalo " papers contained iftuaopout of the troubles, up to date, stating that Thornton had drawh a knife on Greenhalgh which was untrue But the proceedings awoke a lively Interest In the breast of Mrs. Thornton, who hastened to the scene of action iMth munitions of war for her beleagued consort. Greenhalgh returned to the boat on Tuesday, to find tbla addition td the enemy's forces,' During the dnyj Thornton swore out i warrant for Greenhalgh's arrest for trespass. The esse waa brought before a magistrate, and tho latter waa discharged. He then went to the custom house and arranged his clearance papers, ao the steamer would not be arrested by the Canadian authorities for "coasting." Word was sent to a friend of Greenhalgh's In Buffalo, to charter a tug' with a force of men, and come over to the port that night and take 'the vessel by force. Some of Thurpton's friends telegraphed to him to be on his guard, and he determined to show his heels once more},' He went aboard the ves¬ sel again and found Greenhalgh quietly en- Joying a lunob. He went down In a pocket and'produced a revolver, presented It full at Greenhalgh, and asked him If he saw It. Greenhalgh's eyesight being very good, he got a most comprehensive view ol the hostile firearms and remarked as much to the bellgerent captain and next requested him to complete his lunch on the land. In view of the argument Greenhalgh very re¬ luctantly went ashore, and indulged In sundry cries of "h-urdei" and'"help" which soon attracted a crowd, which took a deep interest In the proceedings but did not offer to interfere. Thornton then called his wife, and gave her the revolver, remarking as lie did so—'"You are as good as the men and knew how to use this," and told her to guard the gangway, while he got up steam and made preparations to leave, which he did alone, as the crew had deserted him. Green¬ halgh tried to go aboard again, but the gen¬ tle Amazon gave hltn suoh good advice, that he stayed ashore. Thornton loosed the bow line and went aboard. The \essel swung around, still being held by the stem line which pone of the spectators seemed willing to unloose; steam was turned on, the line parted, and the steamer J. K. White started down the Niagara river with a crew of two aboard. The river Is rather hard to navigate, the current being six miles an hour, and the channel a puzzler for skillful pilots. But the woman took the wheel, and Thornton acted as engineer", and away they went on their lestive voyage. Discouraged but not cast down, Captain-Greenhalgh, although baffled for the time, was determined not to give up tho pursuit, and he Immediately went to- the American consul lor advice, rje told him to telegraph tor the whereabout ol the vessel, and follow her up and have her attaohed for his Interest, Greenhalgh learned In the.evening that the steamer was at Port Robinson, on the Chippewa river. On Wednesday he went to Port Colborne, and that night went up to Wellund, the county seat of that county, on the schooner Light Suurd. Thinsday morning he swi re out a warrant for Thornton's arrest, for assault and battery, and, In company with u constable, went with a horse and buggy, four' miles to Port Robinson, when Thornton wus ui rested Junt us he was getting aboard tho cuts, with his wife. The parlies returned to Wellund, when Thoracal! was tried and sentenced to pay a fine ol five dollars, or go to prison lor thirty dajs. He paid the five dollars, and then snote out a wuirtint for Greenhalgh's an est for peijury. Thornton was triumphant once moie, as lie though he had his pursuer in the clutchts of the law, where he would remain for a sufficient length of time for him to make his escape. But the constable, who understood the. state of affairs, came to the rescue, weut Greeulialgli's bull and he was once more at liberty, Ohce more ho sought counsel and a warrant was sworn out for his property and Thornton's person, and another trip was made to Port Robinson, where the otlldeia took possession of the steamer and Thornton was checkmated. All the parties then wont to the custom house, where It was discovered that Thornton had procured a clearance for Port Louise, and the oollectoi refused to grunt another or let the-vessel leave the port until the difficulty was'settled. 'Ihornton wus compelled to deliver up his clearance papers aim the ves¬ sel was without a commander and the cap¬ tains without a vessel. On Friday Thornton agreed to give up his claims on the vessel If his notes were returned, and Captain Green¬ halgh started for Cleveland to secure the papers for that purpose; Captain Joseph Greenhalgh is In" the city for the purpose of purchasing the little steamer and will pro¬ bably have departed with her before the above history reaches our renders. Tho Chicago tug Protection, sunk at Saiigatuck, will bo recoverd after all. Rosel Downer, the diver, mid Johnson, the V. O. T. oai pen ter, are at woi k on the job. They hti\e got the boiler and engine, out and-ex¬ pect to lime the hull up within a few days The fonnei contractors on the job mado a failure of It.