There can be no doubt that it was the duty of the libel-lant's vessel with the wind aft, to avoid the close-hauled vessel; and that it was equally the duty of the latter to keep her course; and as she did not keep it, the only question is whether there was any thing in the circumstances which justified her departure from the usual rule. When a collision has become Inevitable, it is the privilege of the ship which has the right of way to take any measure which may tend to lessen the force of the shock; nay more, it has sometimes been conceded to the infirmity of human nature than when the vessel that has the burden of avoiding the danger has come so near that to a reasonably firm and skilful navigator it appears that the collision is unavoidable, it shall be taken to have been so; and a mistake caused by the rashness of the other party shall not be imputed as a fault to him who has committed it. But this excuse must be made out clearly and satisfactorily, or the rules of navigation will become useless.
This is not such a case. The whole evidence, and indeed the candid statement of the master of the respondents’ vessel by itself, tends to show that he did not wait long enough. He appears to have thought that the duty of changing devolved upon the person who first discovered the necessity for a change. It seems altogether probable that the change of couise was made by each vessel at about the same time; and that this was in ample season to avoid the danger, if only one had made the change, is shown by the fact that both vessels had come entirely round before they struck; and by the opinion of some of the respondents’ witnesses that even after their schooner had come into the wind, it was not too late for the Emma Bacon to have cleared her by starboarding her helm instead of keeping it to port. If they were within hailing distance before the change, that would have been the appropriate time to hail; but probably they were not. so, and if not, they moved too soon.
There is another consideration, which, as it involves a point of nautical skill. I do not advance with so much confidence. It appears to me that the most proper course for the Emma Bacon was to go astern of the Higgins, as she undertook to do. If so, the master of the latter vessel in a doubtful case ought to have taken measures, if he took any. to co-operate in that movement, else he might be increasing the danger which he tried to avoid, as proved to be the case here.
For these reasons I hold that the agents of the respondents failed to perform their duty, and there must be a decree for the libellant.