Page:Federal Reporter, 1st Series, Volume 6.djvu/107

 THE S. 8HAW. 96 �Allen and steam-tug 8. Shaw, to two arbitrators." Immedi- ately afterwards the parties entered into a conversation, in the course of which the owner of the Shaw claimed that he had the right under the agreement to call witnesses, not only as to the amount of damages, but also as to the cause of the collision. This was denied by the captain of the Ajace, and the parties thereupon sepatated without attempting to carry out the agreement of arbitration. ihis libel was theu filed. �Henry Flanders, ior libellant. �Henry R. Edmunds, for respondent. �BuTLEK, D. J. I find both vessels in fault. The Ajace should not have anehored where she did, — virtually in mid-channel, and within range of the government lights. The act tended directly to produee the collision whieh fol- lowed. It did not, however, relieve the Shaw of her duty to observe proper care and keep off if the Ajace was eeen in time. Whether the latter vesseFs lights were up, and whether she was, or should have been, seen in time to avoid the col- lision, is open to doubt, if the testimony of witnesses, bear- ing directly upon the question, alone, is considered. But con- sidering also the subsequent conduct of Captain Bougher, owner of the Shaw, I am satisfied this vessel, too, was in fault. Taking the agreement to arbitrais signed by him, with bis testimony, and that of Captain Guneo, respecting it, he must be regarded as admitting that bis vessel was in fault. The paper, viewed alone, would justify a conclusion that he aeknowledged responsibility for the entire consequences of the collision. But the testimony of Captain Guneo, as well as bis own, shows that so broad an admission was not in- tended. At the outset he offered, unhesitatingly, to pay the cost of repairs, — covering as he supposed the entire injury sustained by the vessel — but refused to corapensate for loss of time, or anything beyond such repairs. It was Captain Guneo's claim to more that led to the agreement to arbitrate. Immediately after signing the paper, the parties disagreed about its meaning. Captain Bougher, supposing himself entitled to show fault in the Ajace, offered testimony to that ��� �