This appeal is from a judgment dismissing the complaint on a trial before a justice of this court, without a jury. It is doubtful whether the exceptions of the plaintiffs are sufficient to raise any question on this appeal, because the trial justice was not requested to find any facts on which a recovery by the plaintiffs could be predicated, and hence, of course, no exceptions were taken to any refusals by the court to find such facts. However, we are disposed to pass over this question and examine the ease on the merits to see if there was an error committed by the trial court.
This action was brought to recover damages sustained by the plaintiffs’ sloop by a collision with the defendant’s lighter in the East river. Both vessels were beating up the river with the wind dead ahead, and at the time of the collision both were- on the starboard tack, the lighter being to the windward. The sloop entered the East river after the lighter, and not only sailed faster than the lighter, but also closer to the wind. The main point involved in this controversy is whether, at the time of the collision, the sloop is to be considered with reference to the lighter as an overtaking vessel or a crossing vessel. If an overtaking vessel then, under the twenty-second navigation rule, it was the duty of the sloop to have kept out of the way of the lighter. If the vessels are to be considered as crossing, then, both having the wind on the same side, the windward vessel, that is, the lighter, was bound, under the seventeenth rule, to keep out of the way of the sloop.
The contention of the plaintiffs as to the fact, is that there were three or four points difference between the courses of the two ves*476seis, and as to the law, is that such a difference makes the sloop a crossing vessel, instead of an overtaking vessel. As to the question of fact, here also the plaintiffs’ case is defective. There seems to be nothing in the evidence fixing, with even approximate accuracy, the difference in the courses of the vessels. The seventh finding of fact is that the lighter could not lie within several points as near the wind as the sloop, but there is no finding determining the absolute courses of the vessels. But, if it be assumed that there was a difference of three points between the courses of the vessels, still we are of opinion that the sloop was an overtaking vessel, and not a crossing vessel, within the navigation rules.
Three cases are cited by the plaintiff to sustain the claim that such a divergence of course constitutes a crossing vessel. The first is the case of the Clement (1 Sprague, 257). In that case there was a difference of only two points between the courses of the vessels, and the vessel to windward was held in fault in not keeping out of the way of the leeward vessel. But this decision, which arose before the navigation rules, was based solely on the ground that the windward vessel had the wind free, and not with reference to the fact that the vessels were to be considered as crossing.
The second is the case of the Cayuga (14 Wallace, 270). In this case the difference between the courses of the vessels was over three points, and the case was held to be one of crossing vessels. The court held that the rule as to overtaking vessels did not apply; because, at the time precautions first became necessary, the distance between the vessels on a line at right anglés to their courses was very great and the steamers nearly abreast.
The third is the case of the Peckforton Castle (2 Prob. Div., 222). Here, also, the question arose whether it was to be considered a case ®f a crossing or overtaking vessel. The Admiralty court found the divergence or difference of the courses to be four points, but based its decision on the ground that the windward vessel had the wind free, and should therefore have avoided the collision. On appeal (3 Prob. Div., 11), the court held that the difference of course was at least five points, and that the Peelcforton Castle had never been seen from the colliding ship in any direction abaft her beam, and that, hence, it was strictly a case of crossing vessels, in which it was the duty of the windward vessel to avoid the other.
*477It Vill thus be seen that the cases cited (the last two of which only are in point), do not attempt to define what is a crossing vessel with regard solely to the difference of their courses. Nor can I find any case in which the difference of the courses is made the sole controlling element. In the case of the Franconia (2 Prob. Div., 12) the question, also, arose whether the case was to be considered one of crossing ships or of an overtaking ship. The court there say : “ The rule as to crossing ships uses that term as a term of navigation, not as a mathematical term ; and so, when the rule speaks of one ship overtaking another, it is a sea and not a mathematical term.” It then proceeds to hold that a vessel will be considered an overtaking vessel, if the hinder vessel is so far astern that it cannot see the side lights of the forward ship, even though their courses be not parallel. But, in all these cases the vessels were in comparatively broad waters, and not going in the same general direction. In the ease of the Cayuga, the steamers were crossing the river from opposite sides. In the case of the Peckf orton Castle, the vessels were at sea at the end of the English channel, one bound up the channel and the other down. The rules held applicable in those cases cannot fairly apply to the navigation of a narrow river or arm of the sea. In such a case, it seems to us, that in determining whether a vessel is overtaking or crossing, regard must be had to the general direction of the vessels, whether up or down the river, and not altogether to the courses on which they may be running at a particular moment. The narrow and tortuous channels of rivers in this country oftentimes compel a vessel to change its course frequently and in the shortest distances. If such’ change of course is to determine the application of the rules of navigation, it would follow that the rules controlling the movements of vessels would be continuously changing as the vessel navigates the river, which would produce great confusion. This, we think, should not be the construction of the rule; but, if the vessels are going up the river, the one down the river should be considered an overtaking vessel, regardless of their courses. The plaintiff himself seems to have regarded the lighter as ahead of him, for he says in his testimony, “ when we came around the Battery, we saw the lighter Billow ahead. * * * We stood close to the Brooklyn shore, and the lighter Billow was ahead of us a little way.”. The Velocity (L. R., 3 P. C., 44), and *478the Ranger (L. R., 4 P. C., 519), are both authorities to the effect that, in a winding and crowded river like the Thames, a particular direction taken for a few moments, to round a corner or avoid an obstacle, is not such an indication of the real course of a skip as to make her case, with reference to another ship, that of a crossing vessel.
We are, therefore, of the opinion that as both vessels were beating up the river and on the same tack, the sloop is to be considered an overtaking vessel, within the rules of navigation, regardless of the difference of their courses, and that, hence, it was her duty to have avoided the lighter; and that the collision was due to her (the sloop’s) fault.
Judgment should be affirmed, with costs.
Pratt, J., concurred.