There is much conflicting testimony in these cases, but a few controlling facts are substantially conceded on both sides. Thus, it is admitted that the Sandy Hook was sailing somewhat free, while the Osseo was close-hauled. This made it the duty of the Osseo to hold her course, and of the Sandy Hook to keep out of the way. Rev. St. § 4233, rules 17, 23. The two vessels were approaching each other very nearly end on, upon courses which crossed not far from the place of collision. The Os-seo was first discovered a little over the port bow, and to the leeward, of the Sandy Hook. Her red light only was seen until just before the collision, though, it is evident, from the testimony, that it drew more and more over the bow, as the vessels came nearer together. It is not claimed that the Osseo changed her course materially until she luffed, and as, when the vessels came together, she was still swinging on her helm, and her sails were shaking, it is evident that the Sandy Hook held her course until she was too near for absolute safety. As it was her duty to keep out of the way, and there was plenty of room for her to do so. it was a fault for her to attempt to pass so close that the luffing of the Osseo would produce a. collision.
That the Osseo did luff just at the moment of the collision is, to my mind, certain. The original courses of the two vessels varied only about one point, and, if the collision had occurred where they crossed, it would have been end on, or nearly so. The Osseo was a keel vessel, deep in the water. Her own witnesses say her deck was under water midships. Had the vessels come together in that w,py, the concussion would have been very heavy, as the combined speed was, at least, ten miles an hour. It is difficult to believe, that, under such circumstances, the Sandy Hook could turn the bow of the Osseo around from tyest to east, break the jib-boom, clear herself from the entanglement of the collision, and keep on her voyage, without stopping or materially changing her course, as all agree she did. If, however, the Osseo did luff, and was heading well toward the south, when the vessels actually came together, all that subsequently occur-, red is easily explained. The momentum of the Sandy Hook, at the speed she was going, would be quite sufficient to carry the bow of the Osseo with her until the jib-boom broke, when there would be nothing to prevent her going off free.
Undoubtedly, this luff of the Osseo occurred when those on board supposed the danger was imminent, and when, under ordinary circumstances, it would not have been a fault; but, as it is apparent, from the testimony, that she had no sufficient lookout, and the mistake would not have been made if the Sandy Hook had been seen in time, that which would otherwise have been only an error connects itself with the fault of a want of lookout, and places the vessel in the wrong. The mate was the only person on deck who could act as lookout, but he was attending to the navigation' of the vessel, and, besides, was not at his proper place. The evidence satisfies me that the Sandy Hook had her lights set and burning, and it is impossible to believe, that, if the mate had taken his place on deck at or near the bow, and had given attention to his business, he would not have seen the approaching vessel in time to have prevented the erroneous movement which was, as I think, the immediate cause óf the collision. Had he noticed the Sandy Hook as she came up, he would have seen, that, in all probability, if he kept his course, as it was his duty to do, the vessels would go clear, and, at any rate, that to luff was the very worst thing to be done. I am, therefore, clearly of the opinion, that the Osseo was guilty of a fault which directly contributed to the collision.
Both vessels being at fault, the damages must be apportioned, and, as cross libels have been filed, the costs, in both courts, should, under the rule laid down by the circuit judge of this circuit, in Vanderbilt v. *893Reynolds [Case No. 16,839], be divided equally. A decree may be prepared accordingly, and a reference ordered to ascertain the amount of damages sustained by the Sandy Hook and make the apportionment.