#### A. D. HARRIS v. J. E. SLATER.

(Filed 20 February, 1924.)

Admiralty — Negligence—Collisions—Pilots — Contributory Negligence — Evidence — Directing Verdict — Statutes—Appeal and Error.

Vessels passing through the inland waterways of the State are exempt from the pilot laws by the State statutes, subject to the proviso of 0. S., 6985; and, under the Federal statutes, whether a vessel has a gross tonnage of more than fifteen tons should be determined by the method prescribed by the Federal statutes requiring a pilot; and in an action for damages alleged to have been caused by defendant’s negligence in a collision, it is reversible error for the trial judge to direct an affirmative answer to the issue of contributory negligence in navigating without a pilot upon plaintiff’s assertion that his vessel would carry thirty tons.

Appeal from .Grady, J., at February Term, 1923, of Graven.

Tbe plaintiff was the owner of the “Lallie,” a boat propelled by gas, wbicb be operated as a common carrier of passengers and freight for hire. In September, 1921, while proceeding along Swift Creek, between New Bern and Yaneeboro, the boat struck a log and was so badly damaged that it listed and soon afterwards went to the bottom of the stream and was lost.

The defendant was engaged in the lumber business at New Bern and had a raft of logs on Swift Greek, where the boat was injured. The plaintiff alleged that when the boat approached the raft the defendant’s employee negligently pulled the logs away from the right shore to make a passage for the boat, and thereby caused,the collision and injury. The defendant denied negligence and pleaded contributory negligence on the part of the plaintiff. At the time of the injury the plaintiff, who had a master’s license, was operating the engine, and Oahoon, his mate, was steering the boat. Cahoon was a hired hand, not a licensed pilot, and had been running on the boat about twelve months. The issues were answered as follows:

“1. Was plaintiff’s boat sunk by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

“2. If so, did plaintiff, by his own negligence, contribute to his injuries, as alleged in the answer? Answer: Yes.

“3. What damage, if any, is plaintiff entitled to recover from defendant? Answer: Nothing.”

Judgment. Appeal by the plaintiff.

D. L. Ward, Guión & Guión, and S. F. Morris for plaintiff.

Moore & Dunn for defendant.

*164Per Curiam.

Upon tbe second issue bis Honor instructed tbe jury tbat, according to tbe plaintiffs admission, be was negligent, because be operated tbe boat without a licensed pilot. Tbis instruction was erroneous, considered witb reference either to tbe State or tbe Federal law. All vessels passing through tbe inland waterway of tbe State are exempt from tbe pilot laws of North Carolina, subject to tbe proviso in section 6985 of the Consolidated Statutes. His Honor no doubt bad in mind tbe provisions of tbe Federal statutes. Tbe first clause of section 8187 of tbe Compiled Statutes (R. S., 4496-4500) requires a licensed engineer and a licensed pilot for ferry-boats, canal boats, yachts or other small craft of like character propelled by steam, and tbe next clause relates to certain vessels of more than fifteen gross tons, but whether tbe plaintiff’s vessel was of tbis class was to be determined by tbe method prescribed by law. U. S. Compiled Sts., secs. 7725, 7730. Tbe plaintiffs assertion tbat bis boat “would carry thirty tons” did not necessarily imply tbat tbe actual tonnage was “above fifteen tons burden” when measured in accordance witb tbe statutory provision. Section 7730, supra.

Whether tbe answer should have set up tbis particular phase of contributory negligence is a question which was not discussed.

For error in the instruction there must be a

New trial.