pied in crossing, as she claimed, there was enough time to permit her to come over at the speed it appears she was navigated in.

Another fault of the Lowell was her speed. Taking the dense fog into consideration she should have gone at a much lower rate or not at all. While she was being navigated with a certain degree of care and caution, which might have sufficed to avoid accidents in ordinarily foggy weather, the condition of the atmosphere this morning precluded navigation except at such a very low rate of speed that the headway of a steam vessel could be almost instantly stopped. Vessels could only be seen a short distance away, estimated at 40 feet at the time of collision. It is obvious that the Lowell going at the rate she probably was, was moving at great risk to other vessels with passengers and herself. She was going ahead until the Columbia was made out and then her reversing did not have much, if any, effect upon her headway, as shown by the extent of her penetration of the substantial woodwork of the Columbia and by the considerable listing of the latter to port, caused by the contact, notwithstanding a reversal of her engines at full speed for an estimated period of 3/4 of a minute. It seems clear that the Lowell was moving ahead faster than was prudent under the circumstances.

The respective lookouts are criticised but I see no reason to place any fault upon either vessel for any such defect. If the lookouts had seen and reported more than they did, it would doubtless have been more in accord with some of the decisions, but they seem to have been fairly able men properly stationed and performing their duties with reasonable efficiency.

The signals of the vessels are also criticised but they do not seem to have any bearing upon the collision. There does not appear to be any authority or excuse for the Lowell to have given signals of three blasts when drifting, according to her claim, but they did not mislead the Columbia in any way, nor did the latter's signals of four blasts to her bell man on the pier in New York mislead the Lowell. Both gave sufficient fog signals, which the other heard in due time. It is not necessary in view of such fact to consider the matter further.

Both vessels reversed before the collision. The Columbia was substantially stopped when the Lowell appeared and her reversing had little effect owing to the short period during which it prevailed. The Lowell reversed, her witnesses say, 4 of a minute before the collision, nevertheless her headway was not then completely stopped, indicating, as 1 have above found, a greater degree of speed than she should have been running at under the circumstances. The delay in reversing is doubtless a fault but is merged in that of proceeding too fast.

It only remains to consider the fault charged against the Columbia of not avoiding the Lowell under the starboard hand rule. It appears that the Columbia had had ample time to get fully across the course of the Lowell if the latter had been in the proper part of the river. The Columbia can scarcely be deemed in fault for

being in the way of the Lowell, when near her Manhattan slip. She was not, under the circumstances, subject to the rule invoked.

The Columbia had a right as a ferryboat to navigate prudently and maintain steerage way even in a fog-The Orange (D. C.) 46 Fed. 408, 410; The Whitehall (D. C.) 68 Fed. 1022; The Chicago (D. C.) 134 Fed. 1013, 1014-and I fail to see that she neglected her duty in any way.

Decree for the libellant, with an order of reference.

THE SAGINAW AND THE HAMILTON.

In re CLYDE S. S. CO.

(District Court, S. D. New York. August 2, 1905.)

1. ADMIRALTY-ACTION FOR Wrongful DEATH UNDER STATE STATUTES-MEASURE OF DAMAGES.

In enforcing in a court of admiralty a right of action for wrongful death in a collision on the high seas, which is given by the statute of the state to which the vessels belonged, the measure of damages is governed by the law of such state.

2. COLLISION-RECOVERY FOR DEATH OF MEMBERS OF CREW-EFFECT OF VESSEL'S FAULT.

The first officer of a vessel sunk in a collision is not chargeable with negligence because of her improper navigation, where he acted in all that he did under the orders of the master; and the fact that such vessel as well as the other was in fault for the collision does not affect such officer or members of the crew so as to preclude a recovery of full damages for their deaths from the fund paid in by the other vessel in proceedings for limitation of liability.

3. SAME-PLEADING.

A claim for damages by reason of the death of a person in collision, filed in proceedings in admiralty for limitation of liability by the administratrix of the deceased, but based on a state statute which gives the right of recovery to the widow, is sufficient to authorize a recovery where it discloses that the claimant is also the widow of the deceased, and an amendment making the claim in that capacity may properly be allowed. 4. WRONGFUL DEATH-MEASURE OF DAMAGES-USE OF LIFE TABLES.

Mortality tables prepared for life insurance purposes afford little aid in determining the duration of life in actions to recover damages for wrongful death, and especially where the deceased was a colored person. In Admiralty. Suits for limitation of liability on account of collision. On exceptions to commissioner's report.

Wing, Putnam & Burlingham, for the Old Dominion Steamship Company.

Robinson, Biddle & Ward, for the Clyde Steamship Company. Convers & Kirlin, Hunt, Hill & Betts, A. Leo Everett, and Arthur L. Fullman, for various claimants.

ADAMS, District Judge. These are exceptions to the commissioner's report made in consequence of the decision of this court on the merits of the applications of the owners of the steamships

Hamilton and Saginaw to limit their liability. See In re Clyde S. S. Co., etc. (D. C.) 134 Fed. 95.

The report is as follows:

"The interlocutory decree directed me:

(1) To take proof as to the amount, validity and priority of all claims for property losses to which exceptions shall be filed as aforesaid, and to report upon the total damages sustained by the two colliding vessels, as well as by the loss and destruction of the cargo and effects upon the Saginaw.

(2) That as to such claims as are already filed to recover for personal injuries and for loss of life of the persons who may have perished by or in consequence of said collision, the Commissioner report the amount of damages in each case with all evidence taken, or introduced, before him, touching such claims so as to enable the court thereafter to determine the amount of damages.

(3) That such report also state the facts and amounts showing the proper ultimate apportionment and adjustment of all collision claims and liabilities, as between the two petitioners herein.'

I. All of the claims for loss of cargo have been compromised and settled and the total amount thereof is stipulated before me to be the sum of.....

All of the claims for loss of personal effects, and all of the claims for personal injuries, including the claim for the death of Eliza Jones, S. B. Kenney, administrator, have been settled and the amount thereof has been stipulated before me in the sum of..

making a total of....

All of these amounts were paid by the Old Dominion Steamship Company or by the underwriters for its account.

One-half of that amount is chargeable against the Clyde Steamship Company

In addition the Clyde Steamship Company should bear one-half of the damage to the steamship 'Hamilton'. The amount thereof, including demurrage, is stipulated at the sum of $11,083.08, onehalf of which is....

$110,633 39

9,679 06

$120,312 45

$ 60,156 22

5,541 54

making a total charge against the Clyde Steamship Company of $ 65,697 76 Brought forward

On the other hand, it is stipulated that the total loss of the steamer 'Saginaw' is the sum of $90,000, with one-half of which the Clyde Steamship should be credited, namely......

$ 65,697 76

45,000 00

leaving a balance due the Old Dominion Company of........... $ 20,697 76 Releases from various claimants, together with the statements and receipts of the adjustment and settlement of the cargo claims are in evidence before me giving in detail the names of the shippers, the values of their respective shipments, and the amount paid in settlement and adjustment of their claims. The result of this adjustment is that there are left pending before me only the claims for loss of life.

The following are the death claims:

(1) Primus Gilmore, as administrator of Alfred Gilmore, deceased.. $10,200 (2) Alvin Lee Joseph, as executor under the will of Edward S. Goslee, deceased

20,000

15,000

12,000

15,000

8,100

10,000

10,000

(3) Sallie T. Morris, as administratrix of William Morris, deceased.. (4) Mary Swanson, as administratrix of Peter Swanson, deceased.. (5) Mary Anderson, as administratrix of Sarah Elam, deceased.... (6) Joseph Lawson, as administrator of Edmund Page, deceased.... (7) Luther Hawley, as widower of Mary Hawley, deceased.... (8) Maurice G. Belknap, as administrator of Laura Hawley, deceased In assessing damages, and in passing upon the question of contributory and imputed negligence, the law to be applied is the law of Delaware if the courts of that state have pronounced upon the question; if they have not, the federal law is to be applied.

It will be remembered that the various claimants are in this court in invitum. These are proceedings to limit liability and the court has issued an injunction against proceedings in any other forum, or by any other proceedings than the present. It is therefore manifestly just that the claimants should not be deprived of any benefits which they might have received, in case the law of Delaware is more favorable to them than the law of the Federal Courts; but on the other hand if there are any principles of law enunciated by the Delaware courts more favorable to the steamship than the law as announced in the Federal Courts, the ship may likewise claim the benefit of them.

That the law of Delaware applies is settled in the case of Northern Pacific Company against Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 954. In that case the contract of employment was made in Montana and the accident occurred in that state; the action was brought in Minnesota; there was a difference in the statutes of the two states as to the amount which the plaintiffs in such cases might recover. The court said, (page 197, 154 U. S., page 980, 14 Sup. Ct., 38 L. Ed. 958):

"The question which those assignments of errors present is, was the amount of damage to be controlled by the law of the place of employment and where the accident occurred, or by the law of the forum in which the suit was pending?'

And at page 199 of 154 U. S., and page 981 of 14 Sup. Ct., 38 L. Ed. 958:

'We think there was no error in holding that the right to recover was governed by the lex loci, and not by the lex fori.'

In Slater v. Mexican National Railroad Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900, the court said at page 126 of 194 U. S., and page 583 of 24 Sup. Ct., 48 L. Ed. 900, as follows:

"Therefore we may lay on one side as quite inadmissible the notion that the law of the place of the act may be resorted to so far as to show that the act was a tort, and then may be abandoned, leaving the consequences to be determined according to the accident of the place where the defendant may happen to be caught. *

And on page 127 of 194 U. S., and page 583 of 24 Sup. Ct., 48 L. Ed. 900: 'As the cause of action relied upon is one which is supposed to have arisen in Mexico under Mexican laws, the place of the death and the domicile of the parties have no bearing upon the case.'

In Railroad Co. v. Babcock, supra, the court at page 197 of 154 U. S., and page 980 of 14 Supt. Ct., 38 L. Ed. 958, quoted with approval from Herrick v. Minneapolis & St. L. R. Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, the following:

'In such cases the law of the place where the right was acquired, or the liability was incurred, will govern as to the right of action; while all that pertains merely to the remedy will be controlled by the law of the State where the action is brought.'

In the case of Boston and M. R. Co. v. McDuffey, 79 Fed. 934, at page 937, 25 C. C. A. 247, at page 250, the court held as follows:

"The question whether or not an injured servant shall have the right of action for damages against a negligent master, when such master's negligence has been committed through the instrumentality of another servant, is one which deals with the right of action itself, not with the remedy.'

See, also, Maher v. Union Pacific, D. & G. R. R. Co., 106 Fed. 309, at page 310, 45 C. C. A. 301, at page 302, where the court applied the law of the place where the collision of railway trains occurred, as settling the liability of the defendants to the plaintiffs for their negligence. See, also, Stewart v. Baltimore & Ohio R. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537.

The cases of the Steamboat Company v. Chase, 16 Wall. 522, 21 L. Ed. 369, and City of Norwalk (D. C.) 55 Fed. 98, cited in the brief for the Steamship do not negative the conclusions above stated. The former case came up to the Supreme Court of the United States by writ of error to the Supreme Court of Rhode Island, in whose courts a right of action for death upon the tidal waters between Providence and Newport, within Rhode Island, sustained by the state courts, was likewise sustained by the Supreme Court, the conclusion being that the right of action given by the state statute for such a death, does not interfere with the exclusive jurisdiction of the District Court con

ferred by the Constitution and the judiciary acts. While in the City of Norwalk (D. C.) 55 Fed. 98, the court held that the state statute does not create a cause of action but that it creates a new right and liability, and the court in that case held that the law of imputed negligence of the state applied so far as to defeat the right of the deceased to recover against his own ship. The law of Delaware, in regard to the law of damages, is stated in the case of Williams v. Walton & Whawnn Co., 9 Houston, 322, 32 Atl. 726, as follows: "If the jury shall find a verdict for the plaintiff, then if she is entitled to damages, they are to estimate the reasonable probabilities of the life of the deceased, and give the plaintiff such pecuniary damages, not only for past losses but for such prospective damages as a jury can find she has suffered or will suffer, as the direct consequences of the death of said deceased.'

In Maxwell, administrator, v. Wilmington Street Railway Company, 1 Marvel, 199, 40 Atl. 945, the court said, at page 208 of 1 Marvel, and at page 947 of 40 Atl.:

"The measure of damages is such a sum as the deceased would probably have earned in his business during life, and would have gone to his next of kin, taking into consideration the age of the deceased, his ability, disposition to labor, habits of living and expenditure.'

In the case of Reed v. Queen Anne's R. R. Co. (Del. Super.) 57 Atl. 529, the court, at page 532, said:

'If you find for the plaintiff it should be for such a sum of money as will reasonably compensate her for any and all damages that she has sustained or may hereafter sustain by reason of the death of her said husband, basing your verdict upon the number of years the deceased would probably have lived had he not been so killed. In measuring damages in this case you are not to be governed by what would probably have been the gross earnings or income of the deceased, but by what portion of the gross earnings or income the plaintiff would probably have received from the deceased as his wife, if he had lived.'

In Cox v. Wilmington S. R. Co. (Del. Super.) 53 Atl. 569, the court said: 'If you find for the plaintiff it should be for such a sum of money as will reasonably compensate her for any and all damages that she has sustained or may hereafter sustain by reason of the death of her said husband; basing your verdict upon the number of years the deceased would probably have lived, and have given to her the benefits of his society and support as such husband.'

In Croker v. Pusey & Jones Co. (Del. Super.) 50 Atl. 61, the court said:

'If you find for the plaintiff, it should be for such sum as, in your judgment. under the evidence in this cause, the deceased would probably have earned in his business during life and left as his estate, taking into consideration the age of the deceased, his ability and disposition to labor and habits of living and expenditures.'

See, also, Parvis v. P. W. & B. R. R. Co. (Del. Super.) 17 Atl. 702; Wilcox, admr. v. W. C. Railway, 2 Pennewill, 157, 44 Atl. 686; Tully v. P. W. & B. R. R. Co. (Del. Super.) 50 Atl. 95; Neal v. W. & N. C. Elect. Ry. Co. (Del. Super.) 53 Atl. 338.

I do not find that the rule as stated in the courts of the United States differs materially from the Delaware rule. See The Oceanic (D. C.) 61 Fed. 339 at page 363; Lindstrom v. The International Navigation Company, 117 Fed. 170 at page 175, (reversed on another point [C. C. A.] 123 Fed. 475); In re Humboldt Lumber Manufacturers' Association (D. C.) 60 Fed. 428, 444; Harkins v. Pullman Palace Car Co. (C. C.) 52 Fed. 724, affirmed 55 Fed. 932, 5 C. C. A. 326; Ross v. Texas & Pac. Railway Co. (C. C.) 44 Fed. 44; Nickerson v. Bigelow (D. C.) 62 Fed. 900; Cheatham v. Red River Line (D. C.) 56 Fed. 248; Boden v. Demwolf (D. C.) 56 Fed. 846; Ladd v. Foster (D. C.) 31 Fed. 827; Central Trust Co. v. Wabash, etc. (C. C.) 34 Fed. 616; Whiton v. Chicago, etc., 2 Biss. 282, Fed. Cas. No. 17,597; O. L. Hallenbeck (D. C.) 119 Fed. 468; The Elizabeth (D. C.) 114 Fed. 757; Voelker v. C., M. & St. P. R. R. Co. (C. C.) 116 Fed. 867; The Dauntless (D. C.) 121 Fed. 420; Killien v. Hyde (D. C.) 63 Fed. 172; Middleton v. Compagnie Transatlantique Co. (D.