Appeal from the District Court of the United States for the Territory of Hawaii.

Suit in admiralty by Pope & Talbott, a corporation, and others, owners of the schooner Mary E- Foster, against the tug Fearless; J. D. Spreckels &kBros. Company, claimant. Decree for libelants, and claimant appeals.

The appellees were libelants in the court below, bringing the original libel against the tug Fearless and the dredge Pacific to recover damages alleged to have been sustained by the schooner Mary E. Foster while in tow of the tug in Honolulu harbor. The dredge was at the time working near what is called the Ewa, or western, side of the harbor, with a pontoon bridge and pipe line extending from the dredge across to the Waikiki, or eastern, side of the harbor, making it necessary to open the bridge and pipe line to enable vessels to pass over that portion of the channel. When the tug, with the schooner in tow, approached the place where the dredging operations were going on, the tug gave four whistles, and the dredge answered with a signal which the tug understood to indicate that it should pass with its. tow to the west of the dredge, which it undertook to do, and, in passing, the schooner went upon the reef, where she remained for several hours; the tug Fearless, with the aid of the government tug Manning, being urable to pull her off. At high water, about 10:45 in the evening, she floated off, when the Manning released her hawser, and the tug Fearless, after making a short and sudden pull to prevent the schooner from colliding with the dredger, proceeded with its towing, but with the stern of the schooner first, and the latter was soon aground on the eastern side of the channel, and in the second grounding was seriously damaged.

The original libel alleged that the damage was the result of the negligence of both.the dredger and the Fearless. Both of the respondents filed exceptions, which were sustained, and an amended libel was filed, in which it was, among other things, alleged that the act of the dredger in signaling the tug to pass upon the Ewa side of the channel was one of the proximate causes of the injury, and was an act of negligence, in that the channel on that side of the dredge was not wide enough to permit the passage of the Fearless and her tow, which fact the dredge should have known, and that it was, for Hie same reason, negligence on tlie part of the Fearless to attempt the passage, and that the act of that tug in so doing was another proximate cause of the grounding. It was further alleged that the second grounding was due to the fact that (he Fearless was compelled to tow the schooner stern foremost, away from the dredge and towards the eastern side of the channel, making such tow a mailer of great difficulty, and making the danger of grounding the schooner on the east side of the channel great, and that the second grounding was due in part to the negligent towing by the Fearless and in part to the negligence of the dredge in indicating that the passage should be made on tlie Ewa side of the channel, from which side it became necessary for the Fearless to tow the schooner stern first under conditions “that made the operation a dangerous and difficult one, and one which was likely to result in tlie grounding of the said Alary E. Foster, even (hough proper care and skill were exercised by those in charge of her and of the said Fearless.”

Exceptions were filed to this amended libel, and sustained, whereupon the libel was again amended, omitting the alleged cause of action against the dredger, and the libel as against the latter was dismissed. The last, amended libel also omitted the former allegation to the effect that the schooner, when she floated from her first grounding, was in a position that “was likely to result In grounding, even though proper care and skill were exercised by those in charge' of her and of said Fearless,” and instead thereof alleged that the schooner was then In a dangerous position, with her stem-towards the harbor, “but not in such a position that slie might not have boon towed safely away therefrom; that said Fearless, however, instead of keeping said Alary E. Foster in deep water, as she might have done by the exercise of duo and proper care, despite the difficulties of the situation (which difficulties had been caused by said Fearless herself), so negligently towed said Alary E. Foster by heading her towards said reef and running her in dangerous proximity thereto, which she might have avoided doing by the exercise of due and proper care, as to cause said second grounding of said Alary E. Foster.”

A decree was rendered in favor of the libelants, from which the claimant of the Fearless appealed.