Bartelson v. Cynthia

McKENNAN, Circuit Judge.

I have had some difficulty in coming to a satisfactory conclusion in this case, but, under all the circumstances, I think the decision of the district court is right. I do not assent to a broad assertion of the absolute right of a sailing vessel to change her course without reference to surrounding circumstances, nor .can I affirm that a steamer is liable for the consequences of a collision with a sailing vessel, when she has observed all proper and necessary precaution to avoid it, simply because she did not foresee a possible change of the sailing vessel’s course. But it is the duty of a steam vessel, when about to pass a sailing vessel, to observe closely the course of the latter, as well as any conditions-which may render a change of such course necessary, and to regulate her own movements accordingly. If she fails to do this she is derelict. In this ease, it seems to me, the change of tack by the schooner at the time when it was made, was not only proper but necessary. A prolongation of her westward tack, with the impending risk of being cast ashore, was not incumbent on her when the only reason for it was the possible danger of collision with the tug or her tow. Under the circumstances the probable occurrence of a change of tack ought to have been anticipated by the tug, and timely precautions adopted in view of it. To stop her, or slightly to change her course in time, would have been effectual. But she did neither of these until it was too late, and hence her dereliction was the primary cause of the loss. Whatever fault may be imputed to the *956schooner does not affect the primary liability of the tug, and is not therefore, as was said by the district judge, a practical question in the case. A decree must be entered, that the libellant recover of the respondent, Zacha-rias Williamson, and his stipulator, Philip Hammerschlag, his damages, to wit, the sum of $2,000, with interest from March 14, 1879, and costs.