It is manifest that this steamer, having run down a' sailing vessel, in broad daylight, must be held responsible for the loss unless it appears that the accident was caused by some false ma-noeuvre on the part of the sailing vessel.
Such a manoeuvre is charged here, and it is insisted that the cause of the collision was a sudden luff made by the schooner after she had passed the range of the brig’s stern, which threw her under the bows of the steamer.
The evidence shows, that some such movement did take place at the time indicated. What the movement was is best shown by the testimony of a pilot who was watching the two vessels from the deck of the brig, who says that when the sc-hooner was abreast of the brig’s stern “she came to, luffed a little, and then kept off immediately after she luffed.”
It is not claimed that this movement on the part of the schooner had any effect to change the course, or speed, of the steamer; but it is insisted that it caused unnecessary and unexpected delay on the part of the schooner in crossing the passage; and several witnesses from the steamer express a confident opinion that the time thus lost was sufficient to have enabled the schooner to pass the steamer’s bows in .safety.
The schooner was, however, moving rapidly before the wind. She did not come to till abreast of the brig’s stern, and filled away again instantly. The point of first contact was her foremast, and when struck, her position was some one hundred or one hundred and fifty yards to the west of the range of the brig’s stern. The delay caused by the luff must therefore have been very slight, and to determine positively that it was the cause of the collision, would involve a nicer calculation than could be safely based upon the facts proved here.
But if the delay was the cause of the col: lision, it cannot be charged upon the schooner as a fault, for the luff was made in extremis,, and was caused by the close proximity of a large steamer, made more dangerous from the fact, that owing to the position in which the steamer had placed herself, she could neither stop her way, nor sheer further to the-east.
As I view this case, the collision was caused' by the fault of the steamer in attempting to pass through a narrow passage across which she saw, or ought to have seen, that a sailing vessel must pass at the same time. It is indeed true, as claimed on behalf of the steamer, that she did all that she could after she had undertaken the passage; but she should have stopped sooner, and had she done so, no collision would have occurred. I do not assent' to the claim set up here on behalf of the steamer, that “she had as good a right of way out to sea, as the schooner had across to Jersey City, and all that could be reasonably expected of her was, that she should pursue her course at a moderate rate of speed, and keep a sharp lookout.”
The sailing vessel having taken a course which lay across the passage in question, in plain sight, had a right to continue upon it, and the steamer should have stopped before she came to the passage. She had no right of way out through the passage, when the course and speed of the schooner was such as to make it dangerous to attempt to pass through it; having kept on, although at moderate speed, and placed herself in a position involving danger of collision, and well calculated to cause alarm, she must be held responsible for the consequences.
In arriving at this conclusion, I have not overlooked the fact that the schooner was not keeping such a lookout as is required of a sailing vessel when moving across a crowded harbor. If I could see that the careless watch kept on the schooner contributed in a material way to the accident, I should hold her in fault. But with ever so bright a lookout, the schooner would have been bound to hold the course she did up to the luff, and the luff if a.false manoeuvre, was not caused by want of lookout, but by the dangerous attitude which the steamer was seen to present.
Decree for libellant, with order of reference to ascertain the amount of damage.
[There was a final decree in favor of libel-lants, which was affirmed by the circuit court (case unreported), and from this decree of affirmance the claimant, The Liverpool, New York & Philadelphia Steamship Company, appealed. [The supreme court affirmed the decree below for the reasons stated by Mr. Justice Swayne, i. e. that the steamer was in fault for maintaining a rate of speed higher than was consistent with the safety of other vessels in so crowded a thoroughfare; that the acts of the schooner, complained of as contributing to the disaster, were done in extremis and in the excitement of the moment; that their wisdom could not be inquired into; and that the evidence failed to show any ground for holding the schooner responsible in any degree for the casualty. The City of Paris, 9 Wall. (76 U. S.)