In the case of The Sea Nymph, Lush. 23, Dr. Lushington laid down the following rule: “A vessel proceeding in a cause of collision, and alleging herself to have been in stays at the time of the collision, and therefore helpless, is bound to prove in the first instance that such was the fact. The burden of ■ proof . then shifts, and the other side must then show that the collision was occasioned by the vessel proceeding being improperly put in stays, or was an inevitable accident.” It is undisputed that the Wall did go into stays and came about, and that the Raab did not avoid her. But it is contended: 1. That the Wall was improperly put in stays, and 2, that she had in fact filled away, and was actually under way on the port tack before the collision, and that it had therefore become her *516duty, under article 12, to beep out of the way of the Raab.
NOTE. The case of The Priscilla, here cited, was affirmed by the privy council, 1 Asp. 468, note. See, also, The Palatine, Id.First. There is no allegation of fault in the answer or cross-libel upon which to base the first-named defense. But even if there were, it is not sustained by the proofs. The course of the Wall, while on the starboard tack, was toward a shoal, and while it* is clear that in the absence of any other cause for coming about, she had not run out her tack, it is rendered reasonably certain by the proofs that there was a field of ice in such proximity to that course, if continued, as to justify the master of the Wall in his apprehensions of danger, and in arriving at and acting upon his determination to come about when he did. Neither were the proximity and relative position of the Raab such as to render it improper for the Wall to come in stays, the Raab, by all the testimony, with a single exception, being at least half a mile behind, and from two to three points to the windward of the Wall, affording her ample space, time and means of avoiding the Wall, either by keeping away or coming about herself.
Second. That the Wall had some headway at the time of the collision I think is reasonably certain from the character of the injury inflicted upon the Raab. But whether it was the result of her sails having filled on the port tack, or whether of her not having entirely lost her headway in stays, is not so easy to determine, the proofs being somewhat complicated. But I do not consider it necessary to a decision to determine that point, because, even if it be true that her sails had taken the wind on the port tack before the collision (as to which, to say the least, there is very grave doubt), it was so short a time before, and the Wall had gained so little headway on that account, that it was impossible for her by that means to have avoided the Raab, on account of the nearness to which the latter had then approached, and therefore the Wall had not come within the operation of article 12 when the collision occurred. I regard it of no consequence whether the Wall did or did not exhibit a light just before or at the time of coming in stays, because it is dear to my mind, from the proofs on the part of the Raab, that the Wall’s coming in stays was reported to the master of the Raab, and that the latter fully comprehended the situation in ample time to have avoided the Wall. The master of the Raab chose to take the risk of the Wall getting around on the port tack in time to keep out of his way. The result shows he was mistaken. It is not a sufficient answer to this that the Wall was longer in coming about than vessels of her size usually take, as attempted to be shown by the experts, because her slowness does not appear to have been the result of her not being in ordinary trim or of want of good seamanship on the part of those in charge of her navigation. On the contrary, it does appear that she was in ordinary trim, and that her slowness was the result rather of her not being ordinarily handy or quick in coming about, which we have high authority for holding cannot be attributed as a fault. The Argo, Swab. 462; 1 Pars. Shipp. & Adm. 575. In any view of the case, I am satisfied that the master of the Raab was not justified in taking the risk he did. It results that, under the rule laid down by Dr. Lushington, in The Sea Nymph, just quoted, in which 1 fully concur, the Raab must be held wholly in fault. See, also, The Priscilla, L. R. 3 Adm. & Ecc. 125; The Nellie D. [Case No. 10,097]; Lown. Col. 61. Decree for the Charles Wall.