:rIlE
"v.
271
deed, Ieannot dOu.bt that the prompt reversal of b.er engine would, of . itself, have stopped her. I i think the testimony justifies belief that ,she did not see the Smith and her tow, u.ntil she was almostitnmediately upon them, and did not, therefore, see any occasion for stopping. Had she seen them when the Smith signaled, she would doubtless ha.ve heard the signal, and answered,and have taken proper measures to avoid the collision. I think her attention was engrossed by the schooner direQUy in her front, and for want of a vigilant outlook failed to see the threatened danger below. However this may be, she should have stopped immediately upon the achooner and the Smith coming in view I a.nd;if the. reversal of her enghle was insufficient for this purpose she should have uSed anchors. She, also, therefore, is responsible for the injury inflicted. A decree must be entered for the libelaI;lt against both respond.ents.
a
THE
THE BRUCE ANDTaE HA:MILTON
,
WiBtrid
(JOi/lit,
E. D. Pennsyl1Jania. ,November 9, 1888.)' OF TACK.
oCoLLtsION-BTEiM: AND
Where a'sailing ve,ssel upop a particular ta,ckfinds that she is lik, ely, tOCO,I. lide with' a vessel propelled bvateam, and at or' about the time of. tile collis· ion endeavors to avoid it by dianging her courlle, she can recover' if a collia· ton results, even: though the particular of course was ill·advisel1·.,
SAIL-CHANGE
IriAdmiraIty. Libel Sor damages. , The. bark Excelsior. being injured in a collision ,with the tug. Bruce :and ahi'p Hamilton Fish, brought a libel against them for damages. ,The facts appear. in the opinion. Oha:rla Gibbons"Jr.,Ourltis Pilton, and J()hnF. I.ewi8, for libelant· .Henry R.Edmund8, for the Hamilton Fish. Alfred·Drivel' and J.' Warren Oou18ton, for the ,tug Bruce. , !
, Op. the Hth ,oUray, 1887, theliqelant, laderudth and bound for Philadelppia l w.as beating up l)elawa,re ,rhrj;u; a north-east wind, in charge of a competent' pilot. Between the hours of 2 and 3 P. M., when off. Reedy Island piers, near the east side of the channel, she turned about, and tacked westward, across the river. At this time the Brnce,: having!the Hamilton Fish in tow astern, was from one to tW9. steaming up the western .side of the channel. The vessels held their respective courses uritil the Bruce was about pass,ing, bows, so, as. to render colliaion.with the Fish' pioba-ble;lfnotjIl(witable, bifrk,to avoid, the danger, changed -helm, and'sought tOgo 'about. She succeeded in turning 'hel,' head u,P to the wind, but immediately fell back, and came into collision with the ship. Her witneSses aUributethefailure to get about to a. sudden of.wind·.' The.bark'alibtll tug with pegligence in failfngJo go apdtO,reduce her and charges the ship' Fish fllijulg tocas.toff or cut her whep dllng r
272
FEDERAL REPORTER,
vol. 38.
became apparent, to observe the rules of the road, and to exercise proper seamanship. The Bruce's answer says the collision was caused by the bark'satternpt to go about where she did,instead of turning southward, and astern of'the tow. The Fish's answer is the same. It is important to observe that neither answer suggests that the bark should have gone further eastward before tacking, as was urged on the argument, and that the Bruce says the bark had run "to the eastern shore" before turning. The allegation that the bark should have gone about earlier, or should have turned southward, and endeavored to go astern of the tow, finds no support in the facts of the case. Her tack was not run . out by several hundred yards. She had a right, therefore, to hold her course, and it was her duty to de) EtO until threatened with collision; and then it was proper to make the effort which she did to avoid the danger. Whether the course adopted was the best is unimportant. It is plain that she thought it was. If she was mistaken, however, she is not chargeable on that account. I do not see any evidence whatever of fault on her part. If she should have further eastward before changing tack, the respondents are hot in position to assert it. Was the tug in fault? I believe she was. It was her plain duty to go astern of the bark. There was nothing, I think, in the way of her doing so. It ,seems quite evident that she desired to avoid loss of time by change of course, and therefore took the risk of crossing the bark's bows, hoping to get by in time. She took and must bear the conseque.nces. Had there been anything in the way of turning slightly eastward to go astern, when she saw the bark turn westward, she should have slowed down, and stopped, if necessar.v. The use of her anchors and those of the ship would have enabled her to do this with safety. I do not think a case is made out against the ship. She cannot properly be charged with fault in failing to cut her hawser, or throw itofl'. She was justified in relying on the tug to tow her past the bark in safety, and in believing that she would go astern of the bark if necessary, until it was too late for effective action on her part; nor do I see any evidence to justify the charge, under the circumstances, that the ship failed to observe the rules of the load, or to exercise proper seamanship.
THE HAMILTON FIsn tl. THE EXOELSIOR.
(Dlstl-tCt Oourt, E. D. Pennsytvania. November 9, 1888.)
In Admiralty. Libel tor damages. This libel by the ship Hamilton Fish against the bark Excelsior grew out Of the same collision referred to in l'hfl Excelsior v. The Bruce and The Ham· :Uton Dish, ante. 271. Henry R. Edm?tnds, for libelant. Ohas. fJibbons, Jr·· Curtis l'ilton, and John F. Lewis, for the Excelsior. BUTLER, .T.What is said· in the case of The Excelsior v. The Bruce and The Hamilton Dish; ante, 271. (jllst decided,) is referred to as expressing, the judgment of the court in this case. The libel must be dislliissed, with costs.
