1,200 or 1,400 feet apart; that the propeller did not hear the signal of the ferry-boat; that neither vessel changed her course after the giving of those signals until the propeller gave alarm signals, and slowed and stopped her engines; and that then the ferry-boat answered the alarm. signals of the propeller, and immediately stopped, and reversed her engines and starboarded her helm, but the vessels were then so near that it was too late to avoid collision.

When the second signal of the propeller was given, she had the ferryboat on her starboard hand, about a quarter of a mile away, and the vessels were on crossing courses, so as to involve risk of collision in case the propeller did not so govern her conduct as to avoid the ferry-boat. It was her duty, under sailing rule 19, to keep out of the way, and the duty of the ferry-boat, under rule 23, to keep her course. The red light of the ferry-boat was plainly visible to the propeller, and there was nothing in the way to prevent the latter from passing astern of the ferry-boat. She had concluded previously to pass across the bow of the ferry-boat, but had received no consent from the ferry-boat to such a course, and there was still time to abandon that purpose and go astern. The latter course was plainly safe, the former doubtful; and, quite irrespective of any rule of the supervising inspectors, common prudence required her to adopt the safe course, and pass astern. She cannot invoke the aid of any rule of the supervising inspectors to justify her departure from duty without showing that her proposition to depart was heard, understood, and accepted by the ferry-boat. If, by her signals, she invited a departure from the ordinary rules of navigation, she took the risk, both of her, own whistles being heard, and in turn of hearing the response, if a response was made. The St. John, 7 Blatchf. 220; The Milwaukee, 1 Brown, Adm. 313. The propeller was clearly in fault.

The learned district judge from whose decision this appeal is brought, thought the first signal from the propeller was given when the two vessels were somewhat further apart than we find them to have been, and was given when the propeller was off about Fourteenth to Sixteenth street, as the ferry-boat was leaving her slip. He found both vessels in fault, and decreed a division of the loss; holding the propeller in fault for undertaking to go to the left, or across the bows of the ferry-boat, instead of to the right, or under her stern, as required by the rules of the supervising inspectors; and holding the ferry-boat in fault for not answering the first signal given by the propeller, or giving any timely signal herself to the propeller to denote her own intentions, as required by rules 1 and 2 of the inspectors.

As we understand the rules of the supervising inspectors, they mean to require steamers at all times, when passing or meeting at a distance within a half mile of one another, to give and answer signals by blasts of the steam-whistle to indicate what course they propose to take; and the signal which indicates a purpose to pass to the right of the other is one blast, and that which indicates a purpose to pass to the left of the other is two blasts; and, when the rules say the other steamer shall promptly anwer a signal, they mean that the answer shall be one which indicates her proposed

mean that the answer shall be one which indicates her proposed course. Rule 1 prescribes that the answering steamer "shall answer promptly by a similar blast of the steam-whistle." If this means that she must give a response indicating that she will conform her movements to the proposed course of the other, we think the rule transcends the authority of the inspectors. We do not mean to be understood that the inspectors may not lawfully require a steamer to give a signal to another indicating that she observes her, and proposes to perform her duty properly in passing or meeting; but the inspectors cannot lawfully require the other steamer to assent to a departure from the statute in cases covered by the rules of navigation as enacted by congress, and the inspectors' rules are not to be construed as meaning to do so. When vessels are meeting head on, or nearly so, they are under an imperative obligation to pass to the right, by the law of congress, unless some special circumstances justify a departure pursuant to rule 24; and neither can be obliged to depart from the statute at the request of the other. So, when two steam-vessels are crossing so as to involve risk of collision, the vessel which has the other on her starboard side must keep out of the way, and the other must keep her course, unless a departure is necessary pursuant to rule 24; and the vessel which is required to keep her course cannot be compelled to depart from it at the instance of the other. The rules of navigation enacted by congress are obligatory upon vessels approaching each other from the time necessity for caution begins; and from that time, as the vessels advance, so long as the means and opportunity to avoid danger of collision remain. Until the necessity for precaution begins, obviously, there can be no fault on the part of either vessel,-rules of the inspectors to the contrary notwithstanding,-of which the other can justly complain. If a proposition is given proposing a departure by one vessel, and is consented to by the other vessel, undoubtedly the former is justified in assuming that the other understands that a departure is to be attempted, and will govern herself accordingly.

With this understanding of the inspectors' rules, we cannot see that the ferry-boat was in fault. She did not answer the first signal of the propeller, because she did not hear it; and she was excusable for not hearing it, because her attention was necessarily distracted at the time. by the other vessels, which she was obliged to avoid in getting out into the river from her slip. The signal she gave to the propeller when she got out into the river was the proper signal, viz., one blast, to indicate that she proposed to keep to the right. If she had heard the second signal of the propeller, she could have done no more by way of a proper answer, and would have been under no obligation to give a different signal. This signal was given at a time when there was yet opportunity for the propeller to alter her course to starboard and pass astern. If we should assume that she heard the propeller's signal, or ought to have heard it, and should have answered it by two blasts of her whistle, we do not see how the propeller was misled by the conduct of the ferryboat.

We not think, however, that, if the ferry-boat had heard the pro

peller's signals, her failure to answer them would have been culpable. The case, in its legal aspects, is quite similar to that of The B. B. Saun ders, 23 Blatchf. 383, 25 Fed. Rep. 727, in which the court used this language:

"Notwithstanding the inspectors' regulations, therefore, the pilot of the Saunders was not bound to assent to the movement proposed by the Orient unless due regard to the particular circumstances of the situation required a departure from the ordinary rule. Consequently, his failure to answer the signal of two blasts of the whistle from the Orient was not culpable, unless it was apparent that the Orient could not safely pass astern of the Saunders."

In the present case it was not apparent that the propeller could not pass astern of the ferry-boat, but it was apparent that she could do so. Inasmuch as the ferry-boat knew that the propeller proposed to cross her bows, and that unless the latter changed that purpose the situation involved risk of collision, the question arises whether the ferry-boat should not have stopped and backed, in obedience to the requirements of rule 21. As the vessels were nearing each other at a speed of 2,500 feet a minute, there was but little if any more than 30 seconds between safety and collision after the second signal of the propeller. But there was still an interval, during which the ferry-boat had a right to expect that the propeller would make the proper maneuver to avoid her; and, as she could not know that the propeller would not alter her course to starboard, it would have been as perilous for the ferry-boat to stop and back as to proceed. We think that she properly delayed stopping and backing until it became obvious that the propeller was not going to clear her; and, in the short intervening distance, this was not obvious until the propeller gave the alarm signals, and then the ferry-boat did all that she could. The case is one for the application of the rule that a vessel which is primarily in fault for a collision cannot shift its consequences in part upon the other vessel, without clear proof of the contributing negligence or fault of the latter. Her own negligence sufficiently accounts for the disaster. The Comet, 9 Blatchf. 323.

There should be a reversal, and a decree dismissing the libel, with costs of the district court and of this appeal to be paid by the libelants. The cause is remanded, with instructions accordingly.

THE C. R. STONE.1

NEW YORK HARBOR & TOW-BOAT Co. v. THE C. R. STONE.

(District Court, E. D. New York. February 18, 1892.)

COLLISION-BATTERY, NEW YORK HARBOR-ROUNDING TO-INSISTENCE ON RIGHT OF WAY.

The steam-tug Stone, with a tow, was rounding the Battery from the East to the North river, keeping within 200 or 250 feet of the Battery wall. The steam-boat Fletcher had come down the North river, and was rounding to against the ebb-tide, to make her usual landing near the north end of Castle Garden dock. When the Fletcher began to turn towards the dock, she whistled twice, indicating that she would cross the Stone's bow. This signål the Stone heard, but did not heed, though her pilot knew the landing place and purpose of the Fletcher. The Fletcher repeated her signal, to which an answer of two whistles was given by the Stone. The Stone's tow struck the stern of the Fletcher. Held, (1) that the Fletcher had the right to make her landing, and the Stone, navigating unnecessarily near the shore, was bound to give way to her, when there was no difficulty in doing so, i. e., by starboarding at the Fletcher's first signal, and she was in fault for not doing so; (2) the Stone was further in fault for her failure to keep any proper lookout, especially when rounding the Battery; (3) but the Fletcher had no right to run into collision for the enforcement of her right of way, and her continuing on without awaiting the Stone's acquiescence in her first signal of two whistles was a fault, which rendered her also liable for the collision.

In Admiralty. Suit by the owner of the William Fletcher to recover for damages by reason of collision between the Fletcher and a barge in tow of the tug C. R. Stone.

Wilcox, Adams & Green, for libelant.
Carpenter & Mosher, for claimants.

BROWN, District Judge. At a little after 6 o'clock in the morning on May 11, 1891, as the side-wheel emigrant steamer William Fletcher was coming down the North river and rounding to against the ebb-tide to make her usual landing near the northerly end of the Castle Garden dock, her stern was run into and damaged by a barge lashed to the port side of the steam-tug C. R. Stone, which had come out of the East river, and was keeping up along the shore at a distance of only 200 or 250 feet from the Battery wall. Before rounding and when a considerable distance from the Stone, the Fletcher gave a signal of two whistles, which was heard but not answered. The signal was repeated, to which an answer of two whistles was given by the Stone. The captain of the Fletcher testifies that being headed previously about south, he did not begin to round until the Stone's answer of two whistles was heard. The pilot of the Stone testifies that when the Fletcher's first signal was given, the Fletcher had already turned towards the Castle Garden dock, and was heading about east and was only 350 feet distant. He further says that he had not noticed the Fletcher until her first whistle was given. The libel and several witnesses state that the Fletcher began to turn after her first whistle and before her second, and of course before any answer from the Stone. But all the witnesses for the Fletcher estimate that the dis

1Reported by Edward G. Benedict, Esq., of the New York bar.

tance of the Stone at the time of the first and second signals was much greater than the estimates of the Stone's witnesses.

I am satisfied that both vessels must be held in fault for this collision. It is in the main like the case of The Susquehanna, 35 Fed. Rep. 325. When the Fletcher gave her first signal and began to turn towards her landing place, she was about twice as far from the docks as the Stone. Her signal was heard. There was then plenty of time and space for the Stone to go out of the way to the left, as it was her duty to do under the circumstances. Had the Stone then properly starboarded, the collision would have been avoided. The Stone was navigating close to the docks, where she had no right to be. The Fletcher, which was recognized by the Stone, and whose landing place and habits were well known to her, had the right of way to make her landing directly, without any unnecessary delay for the mere convenience of the Stone, since the latter could without difficulty have kept away. The rights of the two vessels were different from those arising on merely passing each other in ordinary navigation. The Fletcher had the right to make her landing; and the Stone, navigating unnecessarily near the shore, was bound to give way to her when there was no difficulty in doing so. In The Susquehanna, supra, BENEDICT, J., says: "The position of the ferry-boat with relation to the ferry-slip in my opinion cast upon the tug the duty to stop at once, or else, by sheering out in her proper place in the river, to go under the ferry-boat's stern." The Fletcher's first signal of two whistles was not a permission asked to go ahead of the Stone, but notice of a right claimed, and the Stone was bound to heed it and to keep off, if the notice was given in time, and of that I have no doubt. The Stone was in fault for her delay in doing so. The cases cited to the opposite seem to me not applicable. In The Delaware, 6 Fed. Rep. 195, the tug could not keep away after the signal was given. In The Talisman, 36 Fed. Rep. 600, the tug was from two to three times as far from shore, and had at first no reason to suppose the steamer meant to cross, and stopped as soon as she had notice of that intent.

But the Fletcher had no right to run into collision for the enforcement of her right of way. The course of the Stone was such that collision was pretty certain, unless the Stone acquiesced in the Fletcher's signal and maneuvered accordingly. I am satisfied that the Fletcher did not wait till after the Stone's acquiescence in her second signal, but turned to cross the Stone's bow at once, and continued on till her second signal of two whistles, when it was in fact too late to avoid a collision with the Stone, or else with the vessels moored at the dock. For this the Fletcher was also in fault. The Susquehanna, supra; The Fanwood, 28 Fed. Rep. 373; The Frisia, Id. 249, 24 Blatchf. 40; The John S. Darcy, 29 Fed. Rep. 644, 648, affirmed, 38 Fed. Rep. 619.

The Stone was further to blame for not keeping any proper lookout, the more especially amid the liabilities to collision in rounding the Battery. This was material because it led the Stone to fatal delay in starboarding. Had a proper lookout been kept by the Stone, the Fletcher's intention to land would have been instantly recognized when her first