Syllabus. Application having been made to Secretary Vilas for a review of that decision, that officer, among other things, said: "I am satisfied that Congress, by the act of December 15, 1880, had no intention of repealing the act of May 28, 1880, or any portion thereof, since such repeal would work an impairment of the rights guaranteed to the Indians by the treaty of 1865. Especially do I think this view is warranted in the absence of any express words of repeal; for, had Congress intended a repeal the effect of which would be to disregard treaty obligations, or to defeat or impair treaty rights, I feel certain it would have expressed that intention in plain words and not left it to implication. How, then, is the act of December, 1880, in so far as it is in apparent conflict with the act of May 28, 1880, (which is as to less than three sections of land,) to be construed? Manifestly, the intention of Congress can be ascertained only by a consideration of the treaty of 1865, and the two acts above mentioned in pari materia; and so considering them, I have no difficulty in arriving at the conclusion that the tract in question cannot be legally entered by Frost for the reason that having made one Osage entry he is not a qualified preëmptor." 6 L. D. 540. We approve the construction placed upon the act of December 15, 1880, by the Interior Department, and the decree is Affirmed. THE LUDVIG HOLBERG.' APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES No. 136. Argued January 8, 1895. - Decided March 4, 1895. FOR A statement that a steamship, in the harbor of New York, with no fog, meeting a tug with a tow, starboards after receiving two whistles from the tug and subsequently ports and attempts to pass between the tug and her tow, is grossly improbable. 1 The docket title of this case is "The F. O. Matthiessen & Wiechers Sugar Refining Company v. The Steamship Ludvig Holberg &c., Christopher Kahrs et al., claimants." Statement of the Case. A steamship, running in a fog at dead slow and coming in contact with a tug, cannot be held responsible simply because, a few minutes before the collision, she had been running full speed. A steamer running in a fog is not obliged to stop at the first signal heard by her unless its proximity be such as to indicate immediate danger. The remarks of the court in The Colorado, 91 U. S. 692, 698, held not to apply to this case. The findings show that the tug was in fault in failing to send three blasts of whistle, in quick succession. When, in a collision case, uncontradicted testimony establishes fault on the part of one vessel, the mere raising a doubt touching the conduct of the other will not overcome its effect. For reasons stated in the opinion, the court regrets that the tug could not be brought into this case, and it affirms the decree of the court below. THIS was a libel in admiralty for a collision which took place on May 27, 1887, in the lower bay of New York, between the barque Quickstep, then in tow of the tug Leonard Richards, and the Norwegian steamship Ludvig Holberg, outward bound and in ballast. The suit, which was promoted by the owner of the cargo of the barque, was originally begun against both the tug and the steamship, but no service appears to have been obtained upon the tug, as the steamship alone appeared and answered. The District Court dismissed the libel, and the libellant appealed to the Circuit Court, which affirmed the decree of the District Court and made the following findings of fact: "(1) The libellant Stafford was the owner of the barque Quickstep before and at the time of her loss on the 24th of May, 1887. The libellant, the F. O. Matthiessen & Wiechers Sugar Refining Company, is a corporation and was the owner of a cargo of sugar laden on board said barque. "(2) On the afternoon of the 24th day of May, 1887, the barque Quickstep, laden with a cargo of sugar, was being towed from sea into the port of New York by the tugboat Leonard Richards on a hawser eighty fathoms long. While proceeding up about in the middle of the main ship channel and when a little to the southward and eastward of buoy No. 11,, at about 4.26 P.M., she was run into by the steamship Ludvig Holberg, the latter vessel striking the barque on her Statement of the Case. port quarter about the mizzen-topmast backstay, cutting into her after companion door- a distance of about nine feetcutting her open so that the cargo rolled out. Immediately after the collision said barque began to sink, and, while sinking, was towed by the tug on to the west bank, where she grounded in 25 feet of water about a quarter of a mile below buoy No. 11, and became a total loss, and her cargo was nearly all lost. "(3) The barque was 170 feet long, 37 feet beam, 23 feet depth of hold, and was laden with 1024 tons of sugar, and drew 20 feet of water. "(4) The Ludvig Holberg, which hails from Bergen, Norway, was an iron screw steamship of 687 tons register, 200 feet long. The claimants, Christopher Kahrs and others, were her owners. She was in ballast, drawing 13 feet aft and 9 feet forward, bound for Barracoa for fruit. She was tight, staunch, strong, and properly manned and officered, having a competent master and officers and a full complement of men. At and prior to the time of collision her master and pilot were on the bridge. She steers by hand, and there was at her wheel one ordinary seaman, steering the vessel as directed by the pilot. The first officer and second officer were on lookout on the port and starboard sides respectively of the forestay, which is fastened to the stem. Back of them, by the windlass, was the carpenter, also on lookout. "(5) The steamship started from pier 15 East River some time between 3.05 and 3.15 P.M. She ran slow out of the East River, but soon increased to full speed, and continued to run at that rate until, fog having set in, she reduced to half speed, and later to dead slow. Her motion through the water was, while at full speed, about 9 to 9 knots; while at half speed, about 6 to 7 knots; while at dead slow, about 3 knots an hour. She had been running at the latter rate for a few minutes only, probably not more than four or five, before the collision. The pitch of her screw was 14 feet 2 inches, and at full speed she made from 69 to 71 revolutions per minute; at half speed, from 40 to 45 to 50 revolutions per minute; and at slow speed from 20 to 25 to 26 revolutions per minute. "(6) She was off Bedloe's Island between 3.27 and 3.32, Statement of the Case. and it was nearly 4 o'clock when she reached Fort Lafayette. The distance from that point to the place of collision is a little over 3 knots. She carried the ebb tide with her from Bedloe's Island to a little below the forts. After a brief period of slack water and until the collision there was a flood tide. Its set was about S. W., which helped a vessel coming in about one knot an hour, and a vessel going out about half a knot an hour. The wind was southerly, blowing a stiff breeze. "(7) At the time and place of collision there was so much fog as to prevent vessels from being visible to each other for more than a short distance, (estimated by the witnesses from the Holberg at between 200 and 300 feet,) and such as to require the sounding of fog signals under the rules. Such signals were sounded by the Ludvig Holberg. This fog had prevailed between the Narrows and buoy No. 11 during a period of at least 15 minutes before the collision. "(8) The Ludvig Holberg ran into this fog about the time she passed the forts, and at that time began sounding fog signals, but did not reduce her speed until she had run some distance below the forts. Then she reduced to half speed only, and did not further reduce her speed until about buoy No. 13. "(9) By the time she reached a point a little below buoy No. 13 she had slowed down to about four knots over the ground. From that point to the place of collision, a distance of about 4500 feet, she did not increase her speed, proceeding down the channel, keeping upon the starboard side, as near the channel buoys as she could safely go, and sounding fog signals from time to time. “(10) While she was thus proceeding she heard one blast right ahead, then another a little more on the starboard bow. Both these were blown by the tug, which was not at that time visible, through the fog, to those on board the Holberg. "(11) Almost immediately thereafter the tug came in sight only a few hundred feet off and a little on the steamer's starboard bow, and gave a signal of two blasts. "(12) Neither the barque nor the hawser were then visible, and no signals indicated to the Ludvig Holberg that the tug had a tow nearly 500 feet behind her. Statement of the Case. "(13) Upon receiving the whistle of two signals from the tug, the steamer starboarded and passed the tug starboard to starboard, clearing her about 30 feet. "(14) Then, for the first time, the Ludvig Holberg became aware of the presence of the Quickstep, which was not following directly after the tug, but to starboard of her, and whose pilot at that time, by putting her wheel hard-a-port, threw her head somewhat more to starboard. "(15) Thereupon the steamship ported in order to go between the tug and the barque, at the same time hailing the tug to cast off the hawser. "(16) If the hawser had been cast off promptly the steamer would probably have gone safely between the tug and the barque. "(17) The hawser was not cast off, and the steamer running against it with her starboard bow parted it, and at the same time her bow was swung to port, resulting in collision with the barque's port quarter. "(18) The steamer stopped and reversed as soon as she saw the tug had a vessel in tow, but not before, and was nearly stopped at the time of collision. "(19) Had the steamer been aware when she starboarded to pass the tug that the latter vessel had the Quickstep in tow on a hawser of 80 fathoms, she could and in all probability would have avoided the collision. "Conclusions of law. "(1) Said collision was not due to any fault or negligence of those in charge of the Ludvig Holberg. "(2) The libels herein should be dismissed, as already decreed by the District Court, with costs to the claimants in both courts." Claimants also put in evidence a duly certified copy of the following rule of the supervising inspectors: "Rule X. Section 8. All steam vessels, (except upon the Red River of the North and rivers whose waters flow into the Gulf of Mexico,) when engaged in towing during fog or thick |