And the court also rendered the following opinion:
Blatchford, Justice.The district judge condemned the tug, and acquitted the Frisia. 24 Fed. Rep. 495. He held that, it being the duty of the tug to avoid the Frisia, she was in fault in attempting to cross the Frisia’s bows. As to the Frisia, he held that the whistles of the tug were all of them blown when the Frisia was so close at hand that stopping and reversing her engines was the only thing then to be done by her towards avoiding a collision; and that, in the absence of timely whistles from the tug, the Frisia was not chargeable with knowledge of the intention of the tug to attempt to cross the bows of the Frisia. The district, judge said: “If, notwithstanding the omission of the tug to give timely notice by her whistle, the circumstances were such as to inform the steamer in time that the tug was intending to cross her bows, such circumstances cast upon the steamer the duty, by a timely change of her course, or slacking of her speed, to avoid the danger attending the course selected by the tug. I find in the circumstances proved nothing calculated to convey such information to the steamer. ”
The course of the Frisia being S. S. W., and that of the tug being W. N. W., it was necessarily apparent to those on the Frisia that the tug was crossing the course of the Frisia at right angles. Again, the answer of the Frisia says that the bark in tow of the tug “was apparently bound from a point near Merchant’s Stores, Brooklyn, to a point a little to the southward of Bedlow’s island,” and that the collision occurred “to the southward and eastward of Bedlow’s island.” The answer also says, as to the Frisia:
“Those in charge of her navigation first saw the tug John ST. Parker, and the bark James L. Harwav in tow thereof, about three points or more on the port bow of the steam-sliip, and distant three-quarters of a mile. The Frisia continued upon her course, which was about S. S. W., and those in charge of her navigation, seeing that the said tug and bark were taking no measures to avoid the steam-ship, though it was their duty so to do, blew a single blast of the steam-whistle to call the attention of the tug and bark to their duty, and to warn them to go under the stern of the steam-ship. The said signal was unheeded by the tug and bark, and they continued, at undiminished or at increased speed, on a course crossing the course of the Frisia, ahead of the Frisia. ”
*255It is also apparent from the testimony of the chief officer and the pilot of the Frisia that they saw all the time that the tug was on a course crossing the bow of the Frisia, and was intending to cross her bow, and that they thought the Frisia could do no harm by keeping on. Under these circumstances, the duty of the Frisia, under rule 21 of section 4233 of the Kevised Statutes, to at least slacken her speed much sooner than she did, was plain. If she had done so, she would have gone astern of the bark.
As the district court ordered a reference as to damages only as against the tug, and the claimant of the Frisia was no party to the proceedings on that reference, there must be a new reference as to damages in this court, to be conducted on notice to all three of the parties.