(dissenting):
This is a common law action for the recovery of the damage resulting from an injury to the vessel of the plaintiffs.
They were the owners of the sloop Commodore Jones, and the defendant was the owner of the lighter Billow. On the 22d day of October, 1884, about ten o’clock in the forenoon, these vessels were beating up the East river, with a strong flood tide, and a strong wind dead ahead. The sloop was loaded with brick and carrying full sail. The lighter was sailing with jib and mainsail with the peak clewed. She was slower than the sloop, and could not lay so near the wind as that vessel, within several points; and with her sails in that condition she would not readily luff, nor quickly go in stays.
Before the accident both vessels were sailing upon the starboard tack, the lighter having stood off from the Brooklyn side near Gold street, and the sloop having made her tack one block below. In the course of both vessels there was a steam tug towing four schooners, two on each side, and bound up the river also. After the lighter had gone about and was full, she starboarded her helm so as to pay off and avoid the flotilla by going to its stern. The sloop forereached both the lighter and the tug, and had attained a point on the starboard quarter of the starboard schooner, and lapped up so far that she could not keep off and pass astern of the tug and *479schooner, and could not weather them on that tack. Thereupon, to avoid a collision with the schooner, the sloop put her helm hard down and attempted to go in stays and come about on a short tack to the Brooklyn shore.
At that time her captain called on the lighter, which was then just to the windward, to go about. The jib of the lighter was lowered, and her helm was put down, but she was not quick enough in the wind to enable the sloop to go about, and so she remained in stays, running alongside the sloop until the bow of the lighter struck her slantly on her starboard side, forward of her rigging, and inflicted the damage complained of.. *
These substantial and prevalent facts stand uncontradicted, and the trial judge rendered a judgement for the defendant on the theory that the sloop was the overtaking vessel and, therefore, bound to avoid the lighter, and contributed to the disaster because she failed so to do.
By the congressional rules of navigation still applicable to the East river when sail vessels are crossing, so as to involve risk of collision if they have the wind on the same side, the vessel to the windward shall keep out of the way of the vessel to the leeward. (Rule 17.)
That rule applies to these vessels when they were on the starboard tack and had the wind on the same side. The lighter was to the windward, and could not sail so close to the wind as the sloop within several points, and after she was headed off from the Brooklyn shore and was full she starboarded her helm and fell off several points more to port to run under the stern of the tug and schooner, while the sloop kept her course; so there were several points difference between the courses of the two vessels. They were pursuing converging and intersecting courses, and a collision was certain if they both continued and reached the point of intersection at the same time.
In the situation it was the duty of the lighter as the windward vessel, in obedience to Rule 17, to keep out of the way of the sloop, and by Rule 23 of the Code of Navigation, where one of two vessels shall keep out of the way, the other shall keep her course subject to the qualification of Rule 24, which is this : In construing and obeying these rules due regard must be had to all dangers *480of navigation and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger. Rule 22 of the same Code is invoked by the defendant for his justification. It is this : “Every vessel overtaking any other vessel shall keep out of the way of the last-mentioned vessel.”
Rut the sloop was not an overtaking vessel in any sense, except that of being the fore-reaching vessel. The lighter was to the windward, pursuing a crossing course, and both had the wind from the same way, and she falls easily within the operation and requirements of Rule 17. 'That she was a crossing vessel is also shown by the diagrams of the vessels shown in the case, and by the fact that she was obliged to port her helm to avoid striking the sloop head on. The sloop kept her course, in obedience to Rule 23, in the expectation that the lighter would obey Rule 17 and keep out of her way, and both these rules justify her movements. There was no occasion for the application of Rule 24, for’ there existed no special circumstances rendering a departure from Rules 17 and 23 necessary. The two latter rules contain ample provision for all the emergencies which arose in this case. The sloop obeyed Rule 23 and kept on her course, and if the lighter had been handled in obedience to the requirements of Rule 17 the encounter would have been avoided. There was no complication of circumstances, and neither vessel was disabled or beyond control.
If the lighter would not luff quickly, yet the fact that she answered her helm when it was ported, and came up to the sloop obliquely, shows that she could have kept out of the way had she gone about in time, and she had abundant room and time to do so.
The case of the Clement (1 Srague, 257), and of the Cayuga (14 Wall., 270), are authorities in favor of the plaintiff, and the ease of the Peckforton Castle (3 Asp. Mer. Cas., [N. S.], 511) seems to be similar to this. In that case there were four points, between the courses of two sailing vessels, and they were held to be crossing, and the court said, “ although the vessel which had the wind free was being overtaken by the faster ship, yet, as the faster ship was close hauled, and as both had the wind on the same side, the rule which governs this case is that which js contained in the twelfth article.” That article was the same as our seventeenth rule.
*481We reach the conclusion, after a careful examination, that the lighter was in fault and the sloop was not, and that the plaintiffs are entitled to recover their damages.
The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.
Judgment and order denying new trial affirmed, with costs.