There is no dispute about the facts in thi& case, nor any question but that both vessels had seen each other when two or three miles apart, both passing through the channel, in the same direction, the schooner in advance, beating through against the wind, and the steamer coming up under a headway of some eight knots the hour, with the flood tide.
The only controversy, is, whether, under the circumstances existing at the time, the schooner should have kept out of the way of the steamer, or the reverse. The steamer insists that she was entitled to go up along the New York shore, and that the schooner should have tacked before running out her course, and thus have provided a free way for the course of the steamer. This the schooner refused to do.
The channel is nearly half a mile wide, and it is clear that the steamér could have found room to pass up east of the schooner. It is impossible to account for the neglect of the master to take this course, except on the ground taken by him in his testimony, that, on his blowing his whistle, it was the duty of the schooner to stop and tack, without running out her course, and leave room for the steamer to pass up along the New York shore. I think that the schooner was right in running out her course, for, if she had omitted to do so, and an accident had happened on this account, she might have been responsible for it. The master of the steamer should have assumed that the schooner would fulfill her duty in this respect, and should have navigated his vessel accordingly, and not undertaken to change the rule for this special occasion.
It is due to the schooner to state, that, on account of the approach of another schooner, it would have been difficult for her to tack short without danger of a collision. Decree affirmed.