making some change in their courses, and particularly from the tes. timony of the captain of the sloop in this regard, I think there is 80me doubt whether the sailing vessels in the reach between Magazine and West Points were in fact totally becalmed, and whether they did not have at least some little headway, though it was doubtless slight. The evidence, I think, indicates that the captain of the Hearn was tardy in the change of his boom. In the various particulars above stated it seems to me that he did not act with the watchfulness, alertness, and prudence which the situation reasonably demanded of him, and which, if observed, might have enabled him to avoid the collision; and that the Hearn must, therefore, be held in fault. As I must find the collision tc have arisen, therefore, through fault on the part of both vessels, the damages must be divided, and an or· del' of reference may be taken to compute the amount.
(Di8trict Cqurt. N. D. New Y qrk. March, 1884.)
One who. in the confusion of a sudden emergency caused by another's fault, fails to adopt the most prudent measures of safety. is not chargeable with negligence on that account. Accordingly, where a tug-boat was coming down the stream with a canalboat in tow, and a steam-propeller, whose officers might easily have seen the tug, suddenly and without warning swung out into the stream, thus rendering a collision imminent, and the master of the tug endeavored to pass by in order to escape the danger, held. that even though some other course might have been in fact more prudent, the owner of the tug was not answerable for any part of the damaJre sustained by the canal-boat "(hen struck by the propeller.
SAME-COLLISION OF VESSELS.
In Admiralty. Benjamin H. Williams, for libelants. Joseph V. Seaver, for the Ella B. Josiah Oook, for the Russell Sage. COXE, J. On the morning of June 1883, the steam-propeller Russell Sage was lying in the Buffalo river at a dock on the north side near the foot of Washington street, her bow being headed up stream. She is 233 feet in length, 33 feet beam, and has a carrying capacity of 1,500 tons. Directly in front of her was a small, low scow, used in pile-driving, from 15 to 20 feet in width. With this exception there was nothing to intercept the view for a thousand ieet and more up the river, and as the scow was only half the width of the propeller the view from the starboard bow of the latter was abo
THE ELLA B.
solutely unobstructed. Diagonally opposite the Sage, and between 200 and 300 feet further up the stream, three boats, aggregating 63 feet in width, were lying abreast at French.'s dock. In these circumstances the Ella. B., a small tug, 35 feet in length and 10 8.10 feet beam, having the canal·boat Henry L. Schutt in tow, started from a slip on the north side of the river, about a thousand feet above the point where the Sage was lying, and proceeded down the river, keeping very near the center. When the tug was 100 or 150 feet from the propeller the latter cast off her head lines and swung her bow into the stream. The tug put her wheel to starboard and opened her throttle-valve hoping to pass in safety. In this she was unsuccessful, for the propeller's stem struck the starboard bow of the canalboat causing the damage for which this action is brought. The river t the point where the collision occurred is 221 feet wide. The wit. esses, with great unanimity, agree that at the time of the accident the tug and tow were about in the center of the river, rather nearer the south than the north side. It follows, therefore, that the propeller in order to have reached the canal·boat must have swung out no feet or more. The proof shows no fault on the part of the canalboat. Indeed, it was virtually conceded on the argument that the libelants are entitled to recover, but each of the libeled vessels con· tended that the accident occurred solely by reason of the negligence of the other. The controversy is, then, between the Russell Sage and the Ella B., and the court is called upon to decide, if it is found that the accident was not the result of their joint negligence, which of the two was responsible therefor. There can be no doubt as to the negligence of the Russell Sage. There was no difficulty in seeing the tug the mO:ql.ent she entered the river. The Sage knew, or ought to have known, that the tug, not a powerful one, was coming down the river with a loaded canal.boat, and yet, when they were in close proximity, she swung out so that her stem was nearly, if not quite, in the center of the stream. Had she waited a few moments the tug and tow would have passed by and all danger of collision would have been averted. She had no lookout, and the great weight of testimony is to the effect that she gave no signal. In any view it was unnecessary to swing out so far. Her object was to proceed further up the river, and had she adopted the usual course there would have been ample room between her bow and the center of the stream for the tug and tow to pass in safety. Without apparently taking any precaution to guard against danger, with an utter recklessness as to consequences, the Sage suddenly and unexpectedly let go her head·lines and swung herself half way acrOSE a narrow channel directly in the track of an approaching vessel. All this was negligence for which she must be held responsible. Regarding the Ella B. there is more doubt. The impression entertained at the trial was that her conduct contributed to the accident, but upon a more deliberate and careful examination a different cop-