(dissenting). I agree with the majority as regards the Scotia’s fault; indeed, so heartily as to think that it leaves nothing more of the ease. I agree in discrediting the supposed crowding in of the Auburn. I agree that, though a vessel ignores the East River statute, she is not at fault unless her position is a “cause” and not a “condition” of the collision. By that the books mean only this: That when the offending vessel has been seen in season, her position, though unlawful, is a fact with which all other vessels must reckon in their navigation. This rule is well settled in the decisions of tMs court under cases arising either on the East River statute or on the narrow channel rule. The Clara, 55 F. 1021, 5 C. C. A. 390; The Benjamin Franklin, 145 F. 13, 76 C. C. A. 43. La Bretagne, 179 F. 286, 102 C. C. A. 651; The No. 1, 180 F. 969, 104 C. C. A. 125; The Morristown, 278 F. 714. I do not understand that the purely maritime fault of hugging the pier ends is considered as in a different category.
I dissent only on the facts, because I cannot see that the Auburn and the Penóles should or could not have done anything else than they did in fact. The Auburn was so nearly opposite the Scotia’s pier, when the latter made off, as to suppose, and -rightly suppose, that the Scotia would not try to cross her bows. The Scotia had no such purpose, as her wMstle and the navigation show. The Auburn did right to keep on at full speed; anything else would have made impossible any chance of success by the Scotia, which meant to go under her stern. To stop or reverse would have insured disaster. She is also held for bottling up the Penóles. That would be fair enough if, when she passed the Penóles, she had any intimation that the Scotia would try the crazy navigation which she did. That is the moment to take in judging her as respects the Penóles, and no navigator ought to be hold to any such anticipation.
The Penóles is held for failing to stop and reverse in season, when she saw the Scotia’s position. I acknowledge that the case is *764not, so clear in her favor, but it seems to me clear enough, especially in the light of the wanton conduct of the Scotia. What that vessel tried to do on her own confession was to swing' out under a port helm and thread her way under the stem of the Auburn and aeross the bows of the Penóles. I cannot conceive more reckless navigation, and I should be slow to charge any other vessel in the face of it. Yet, even so, since the collision of the Penóles was near the Scotia’s fantail, the Scotia nearly succeeded in crossing her bows. The reason why she did not altogether succeed was that, in the very midst of her maneuver the Scotia stopped her engines under the very nose of the Penóles. This she had to do, because she could not otherwise go under the Auburn’s stem. Now I must own it appears to me wholly unwarranted to charge a vessel because she did not foresee such an unexpected change of plan and stop sooner. She had the right to assume that the Scotia would go on with what she tried, or at least would not stop in her path. I attribute the whole collision to the failure of the Scotia to see the Penóles at all.
The libel should be dismissed.