taking vessel, or relieve her from the duty of keeping clear of the leading ship until fully past and clear;1 and it is her duty to take such seasonable precautions as may be necessary to avoid the other, the burden of proof being upon her to show that such precautions were timely and sufficient." While the leading vessel has the right of way, she may not wilfully cross the path of the other without forfeiting all right of recovery for collision ensuing therefrom, even though the overtaking vessel be not wholly without fault.3 The vessel following must keep at a distance sufficient to avoid causing confusion or alarm on board the other, and to give sufficient room for her own and the other's maneuvers.* 126 U. S. Stat. at L. 320, art. 24; The Brothers, 30 Fed. R. 75; The Oceanus, 12 Blatch. 430; Kennedy v. American Steamboat Co., 12 R. I. 23. 2 Forsyth v. The George A. Brandreth, 3 Fed. R. 414; The Venetian, 29 Fed. R. 460. ing her was the steamer B. As the latter came up with and began to draw ahead of the H., the latter gave a sudden sheer and went into the side of the steamer. Both vessels were damaged and crosslibels filed. It appearing that the H.'s sheer was caused by the suc 3 The Boston, Olc. Adm. 407; The tion from the wheel of the other, St. Paul, 3 Cin. L. Bul. 321. The Hackensack, 32 Fed. R. 800. In this case it was held a fault in a vessel following another and going with a flood-tide in the East river to approach so near the leading vessel as to be unable to avoid her in case of a stop on her part. Under the New York statutes one steamer cannot approach another within a distance of twenty yards in attempting to pass. The Rhode Island, Olc. Adm. 505; The Boston, Olc. Adm. 407; The D. M. Anthony, 10 Fed. R. 760; Standard Oil Co. v. The Garden City, 38 Fed. R. 860. The steam-tug H. was going out of the Bay of New York toward the Scotland light-ship; overtak the court held that the collision was caused by the failure of the B., as the overtaking vessel, to keep at a sufficient distance to pass in safety. The City of Brocton, 37 Fed. R. 897. Where the steamboat O. overtook the steamer S. and collided with her, in a suit brought for damages the O. defended by alleging a sheer on the part of the leading vessel. The evidence showing that the vessel following had ap proached dangerously near the other without giving the signal required by the rules, it was held that the following vessel was at fault for approaching too close, even though the other did sheer. The Osceola, 30 Fed. R. 383. Sec. 70. Duty of leading vessel. The general rule is that the leading ship must keep her course, and is not bound to give way or to facilitate the movements of the other, although she may not embarrass her movements by maneuvers tending to prevent the latter from passing. Under circumstances where it is doubtful which of two vessels is leading, as where their movements are simultaneous, neither can lawfully disregard the other or oblige her to keep out of the way. It is the duty of each to avoid the other. The fact that an overtaking vessel gives warning signals of her approach to a steamer in advance, furnishes no excuse for not avoiding her, and the leading vessel may rely upon the duty and ability of the other to keep out of the way.' The duty of the leading ship is simple and not easily misunderstood, that is, to continue her course without swerving. It is a want of prudence on the part of the leading vessel to cross the other's track without first coming to a full understanding as to the course pursued. Where the leading vessel, by her own original signal, expresses her desire to have the one following pass, she is in duty bound to slow down and to afford all facilities within her power to enable the other to accomplish the maneuver. The statute and the usages of the sea require the vessel overtaken to hold its course. It must, however, so use its privilege of right of way as not intentionally to thwart or prevent the one overhauling from using her superior speed to advantage. While she is not bound to accommodate the overtaking ship by moving to either side to give more room, she may not wilfully prevent such passing. Her duty is to hold her course and to leave to the passing ship the burden of selecting the time and place for passing. This duty of the leading ship to hold her course does not release her from avoiding collision by any means possible when it becomes apparent that collision is liable to ensue, and she is bound to 1 The Governor, Abb. Adm. 108. ? The Boston, Olc. Adm. 407. The Cephalonia, 29 Fed. R. 332. 4 The Governor, 1 Abb. Adm. 100, 108; The Sammie, 36 Fed. R. 568. refrain from any maneuver calculated to embarrass the latter in attempting to pass. Where the following ship attempts to pass at a place where such passage is dangerous, and the leading vessel disregards her efforts to do so, and keeps on her course and comes into collision when it might easily be avoided, both vessels are held to be in fault; the one following for attempting to pass when in a dangerous place, the other for disregarding the general rule requiring vessels at all times to avoid collision when it can be done.1 While the law imposes upon the passing vessel the duty of avoiding the other, the leading ship is not without correlative obligations. She is bound to maintain a proper lookout, to keep her course, and not to change it at a time or under circumstances such as would involve danger of collision, nor may she pursue a line of conduct tending to mis lead the other.2 In those waters subject to the supervising inspectors' rules, it is the duty of the leading vessel to answer all signals given by the following steamer indicating a disposition to pass, and in no case will it be permitted to cross the bow of the following vessel or crowd upon the course of the passing steamer, other than as required by the nature of the waters navigated.3 Where the leading vessel has replied to the signals of the one passing, and has agreed to the same, she is bound to continue her course without change, if it can be done without immediate danger to herself or other vessels.* I West Va. Cent. & P. R. R. Co. v. The Isle of Pines, 24 Fed. R. 498. 2 The Charles Morgan, 6 Fed. R. 913; The Ellen Holgate, 6 Rep. 40; 13 Phila. 470; The W. H. Clark, 5 Biss. 295. way, that seasonably indicates to another by her own original signal that the latter shall go ahead, takes on herself the duty to go astern, and is bound to give way or stop in time to prevent collision. The 3 Supervising Inspectors' Rules Susquehanna, 35 Fed. R. 320. 1895, rule 8. Where a steamer astern signals 4 The Charles Morgan, 6 Fed. R. that she wishes to pass the steamer 913. ahead, the latter should answer; A steamer having the right of but her neglect to do so does not Sec. 71. Steamers passing - Duty of vessel passing.A vessel of superior speed running astern of a slower one is not obliged to retard its own speed because of the inability of the leading ship to proceed at as great a rate. It has the right to pass if it can do so with safety to both. It must be its own judge as to the matter of safety; and if the result shows it to have been in error as to the propriety of passing, it must suffer the consequences of its act; and the burden of proof rests upon it to show not only the prudence of her own conduct, but also the negligence of the other, where negligence is charged; and, failing to do this, she must be held accountable for the result. While a vessel of greater speed has the legal right to pass one of inferior speed leading, it must choose such a time and place to do so as will not inflict injury upon the one having the right of way. A steamship attempting to pass another in a passage difficult of navigation, or where there is not sufficient room to do so in safety, acts at her peril and is liable for damages resulting. If a steamer astern cannot safely pass on either side of a leading vessel, it is her duty to wait until a point is reached where she can do so in safety. While a passing vessel takes upon herself the peril of determining the propriety and safety of passing, and is liable for an error of judgment, she has the right to assume that the other is well equipped and will be managed with ordinary prudence, and that she will observe the statutory requirements governing her conduct.3 It is the duty of an overtaking steamer, before attempting to pass another, to give information to it of such intention by the statutory signal therefor. excuse the former for passing care lessly. The D. Newcomb, 16 Fed. R. 274. of a misjudgment in that respect. The Charles Morgan, 6 Fed. R. 913. 2 The Rhode Island, 1 Blatch. 1 The Governor, 1 Abb. Adm. 108; 363; 7 N. Y. Leg. Obs. 38; The The Sammie, 36 Fed. R. 568. A passing vessel takes upon herself the peril of determining what is a safe distance, in passing another going in the same direction, and must bear the consequences Charles Morgan, 6 Fed. R. 913; 3 The Charles Morgan, 6 Fed. R. 913. Under the international rules of 1885' the use of signals designating the course to be pursued was optional; but under the rules of 1890,2 and under the inspectors' rules when applicable, the use of such signals is imperative, except when the distance between the vessels is so great as to render such signals unnecessary. 3 The supervising inspectors' rules require the steamer astern to first obtain consent of the leading vessel to pass before it is allowed to do so. This rule is operative so far as inland navigation is concerned, and over those waters subject to the inspectors' rules; but upon the high seas the international rules apply, except as provided for the navigation of the Great Lakes, and on these the inspectors' rules apply when not in conflict with the statute. Where there is room for the vessel astern to pass, she is not bound to heed a signal of the leading ship not to do so, when no danger is apparent. It, however, assumes the risk in doing so. In passing under signals mutually agreed upon, the passing vessel is still bound to follow the statutory requirement and keep out of the way of the other, and in passing to give the other a wide berth. The fact that signals of passing are agreed upon does not relieve the overtaking vessel of any duty it otherwise owes to keep out of the way." The passing vessel has the right to rely upon the affirmative reply of the one leading, to her signal indicating the course to be pursued in passing." 123 U. S. Stat. at L. 441, art. 10. 226 U. S. Stat. at L. 320, art. 28. 3 Rule 8. 4 Bedouin Steam Navigation Co. v. The City of Macon, 47 Fed. R. 919. 5 The Dentz, 29 Fed. R. 525; The Armitage v. Brearley, 9 Ben. 108; The Standard Oil Co. v. The Garden City, 38 Fed. R. 860; The St. Johns, 34 Fed. R. 763; The W. H. Vanderbilt, 37 Fed. R. 116. The Charles Morgan, 6 Fed. R. 913. Where two steam-vessels were going in the same direction, one in advance of the other, and the rear boat signaled a desire to pass the other to starboard, and the leading vessel signaled a desire to continue her course, but neither fully complied with its signal, and a collision resulted, it was held that each contributed to the result and each was equally liable for the damages. The Captain Miller, 33 Fed. R. 585. An overtaking vessel is bound to avoid doing injury to one it over |