The libel and answer stand in fiat contradiction in respect to the courses and positions of the two vessels immediately preceding the collision. The statements in these pleadings do no more than form issues between the parties upon all the material facts connected with the transaction, except in one particular, in which the answer makes an allegation affording evidence in behalf of the libellants, which, in my judgment, disposes of that branch of the controversy. The proof is pretty satisfactory that the propeller had but one light burning at the time she was first seen from the Santa Glaus. The one placed at her bow, as the night came on, had burned out, or was extinguished without the knowledge of her crew, when the two vessels came in sight of each other.
The testimony of masters and pilots experienced in the navigation of the river prove clearly that placing one light above the stern of a steamer, and another in her bows, is of essential aid to vessels meeting her in determining her true position and course. The. law requires at least one light to be plainly exposed (Act July 7, 183S, § 10 [5 Stat. 306]), and the practice of exhibiting two in the above arrangement has become so general as ■to authorize the presumption that navigators will be governed by the expectation that all steamers in motion in the night time conform to it. The necessity or value of this trim consists in its furnishing a sure means to vessels nearing her to determine the direction of her head. This the experts almost unanimously testified could not be ascertained by the stern light without the aid of a head light. The omission of that signal, without other equivalent warning, would, in my opinion, show the propeller guilty of negligence or misconduct, and would excuse the Santa Claus in not employing higher care and precaution for avoiding her. Bullock v. The Lamar [Case No. 2,129]. That ground of de-fence is taken from the claimants by their answer, and they must be held to have known the position and direction of the propeller, as well from seeing her stern light and the direction of her head or bows, as if a light had been at her stem also. Steamers are not required by positive law, nor any authenticated custom of the maritime law, to carry and exhibit a light both on the stem and stem when' running in the night time. It has become a common and commendable practice to-do so, particularly in the navigation of inland waters, as an increased measure of precaution. It would undoubtedly, in' this instance, have afforded the Santa Claus a better means, in connection with the stem light, to determine the bearing of the propeller than she could derive from the exhibition of a stern light alone, and that, in a nautical point of view, is all the importance of having two lights. The act of congress (July 7, 1838, § 10) compels steam vessels to carry one or more signal lights at night. No edict of any maritime code is shown requiring more than one to be exhibited. And it is of no consequence whether any light is shown, if the approaching vessel has plain notice without it, of every thing its exhibition could communicate. Here the pilot of the Santa Claus saw the bow of the propeller. That supplied him a range line to her stern, and thus apprised him whether she was at anchor swinging on the tide, or moving towards him on a direct or oblique line.
The only essential fact, then, to be determined is, whether the propeller was in a wrong position, or was unskilfully or carelessly navigated in reference to the course and position of the Santa Claus. If, however, the claimants became in that manner apprised of the heading of the propeller, the blame of the collision would be cast upon *409them, leaving no ground of excuse because notice was not given of her direction by a signal light at her head. The maritime law settles no determinate course or direction vessels are bound to take when approaching each other. The exigencies of the particular case must govern. There are general rules of navigation which furnish guides on ordinary 'occasions, but they do not necessarily excuse or charge fault or liability in all cases of collision. One of those usages and rules is, that steamboats running in opposite directions shall; when meeting on coincident or approximating lines, port their helms or bear off to starboard, and thus give each other a berth to larboard. The usages in the United States and the Trinity rules in England recognise this mode of navigation as the proper one to be pursued, and a deviation from it will raise a presumption of want of skill and good conduct in the vessel committing such deviation. But none of those rules are absolutely inflexible. They give way and accommodate themselves to emergencies as they arise. They are employed as standards by which courts of admiralty regulate, in a general sense, their appreciation of the care, skill or fidelity with which the respective vessels have performed their duties in case of a collision. Westm. Rev., No. 42, Sept., 1844 ; 3 Kent, Comm. 230; The Hope, 1 W. Rob. Adm. 157; The Friends, Id. 478; Abb. Shipp. 308. And this state has, by statute, established a like provision. 1 Rev. St. p. 682, § 1.
It is not definitely settled what the bearing of approaching vessels must be towards •each other to constitute a meeting, within the legal import of the term. It probably would be understood to signify that when the advance of the vessels in a common direction which must apparently, if continued, bring them into collision, each must then change her course by bearing off to the right, or show adequate reasons excusing that movement. The purpose and spirit of these laws of navigation aim at the safety of the vessels. The method designated is wholly secondary, and every rule is satisfied when the vessels go clear, although they pass each other on the starboard side and in near contiguity. The Friends, 1 IV. Rob. Adm. 478. It is eminently proper that a strict observance of any of these regulations should be avoided when there is a plain risk in adhering to them, and it is entirely in the power of •either vessel to escape a collision by departing from the methods prescribed by the rules. But I should think this a case in which the customary mode of porting the helm was properly adopted by the Santa Claus, provided the evidence showed that the two boats were meeting in the sense of the rule, when she bore off to the right.
In the agitation and confusion necessarily attendant upon a collision in the night time, it must always be difficult to determine, with reasonable certainty, how either vessel was conducting at the moment, or what would have been the best measure either or both could have pursued in the exigency to avoid or lessen the danger. In the present case, when the danger of collision was discovered to be imminent, the two vessels were crowded towards the west shore, the persons on board of each believing the other vessel was furthest out in the river, and pressing on them from that direction. It is testified by the pilot of the Santa Claus and several hands on board her, that they observed the propeller down the river, east of their course, and heading westwardly towards them, and they ported their wheel once, and quickly repeated the movement, pressing it down until their boat was brought within fifty feet of the west shore, where the propeller drove into her, bows on, just abreast her wheel guards, and fifty feet aft her stem. It is incredible that those witnesses could have been aware of the nearness of their vessel to the west shore when they made that movement, for it involved her inevitable destruction had she not been intercepted by the propeller. She was arrested in full speed at fifty feet from the shore. Nothing in her power to do could have saved her at that point from going head on upon the rocks. The pilot, engineer and firemen of the propeller testify that the Santa Claus, immediately before the collision, varied her course from one straight down the river and well east of them, 'to the starboard, and directly towards them, and came down upon them whilst they were endeavoring to escape her, just passing her stem across the propeller, and striking her starboard bow with the larboard guards of the Santa Claus, and with such force as to break off the facing of her guard and drive it entirely through the propeller.
The disaccord in the opinions of the witnesses as to particulars connected with the collision would naturally arise from the perturbation of the moment, and the different positions from which objects were viewed by i them, and the court might be compelled, if the ! testimony was confined to the facts observed when the vessels were in the act of striking, to regard the fault as inscrutable, or equally imputable to both parties. But it seems very plain to my mind, from all the circumstances in proof, that the pilot of the Santa Claus mistook the position of the propeller, from the time he first observed her, and that her position and course was always westward of his position and course, and not to the eastward, as he supposed, and under that misapprehension he made the desperate attempt to crowd his vessel between the propeller and the shore, thinking, no doubt, he was several hundred yards east of it. The testimony of Babcock, May and Bradley, on board the propeller, is positive that she was running close to the west shore, within a distance of four or five rods. The pilot states that he hugged the rocks as near as was safe. This evidence is corroborated by refer Van Elton, who observed the progress of the boat from his ves*410sel. (anchored near Caldwell’s.) He says, “She sheered in near Caldwell’s, close to the shore, and kept close round the point, going round it a short distance from it.” Although Morey, pilot of the Santa Claus, Conklin and Turner, who were- in the wheel-house with him, and Huhbard, a deck hand, all testify that the propeller, when seen by them, was three or four hundred yards eastward of the point, (or one-third of the width of the river,) and east of the Santa Claus, so far as to leave ample room for the latter to pass to the west, yet this is only matter of opinion and estimate; they point to no fixed objects which enabled them to form that judgment or verify its justness. The answer is probably incorrectly copied in stating “the Santa Claus was a quarter of a mile above the turn, (at the point,) when she discovered the propeller, about half a mile to the southward and about three or four hundred yards from the western shore,” because the testimony of the pilot and other witnesses speaking to that fact all represent the Santa Claus as one-half or a mile above the point when they discovered the propeller to be in motion, and they allege the collision actually took place a quarter of a mile above the point. This must manifestly be what the claimants intended to aver in their answer.
The preponderance of evidence upon these statements is clearly with the libellants. Their witnesses, all on the propeller but one, speak with certainty as to her position in relation to the west shore, a line of land almost within their reach, whilst those of the claimants were out in the river upon a vessel moving rapidly, and they judge from the apparent bearing of a high light, distant from "them half a mile or a mile, and looked at in the night time in thick weather. In these circumstances it would be more probable they would mistake largely he.r distance from the shore than that her officers and crew could. The facts proved on both sides, moreover, support the superior accuracy of the libellants’ witnesses on this point. The vessels came together eighty rods above the point, and only fifty or sixty feet (between three and four rods) from the west shore. They were running at the relative speed of four to one, the Santa Claus going twelve to seventeen miles the hour and the propeller three to four, and accordingly the former would come down the river a mile whilst the latter was ascending a quarter of a mile, and assuming that the Santa Claus was at either point of distance testified to by her pilot and crew, above the place of collision when she sheered .off westward^-, it would be physically impossible that the propeller could have advanced up the river three-quarters of a mile, and westwards three or four hundred yards, during the time the Santa Claus, at her high speed, was descending one-half a mile or a mile. The direction of the propeller westwardly, observed by the Santa Claus, could not have ■been, therefore, as supposed on board the latter, a course commenced whilst the former was still below, and several hundred yards east of the point, but must have been, as described by the pilot of the propeller, her direction on turning the point of rocks and hugging close to the west shore, which, according to the chart and diagrams of the river in proof, would necessarily lead her. to steer and head N. W. and W. N. W. It is palpable that the pilot of the Santa Claus must have miscalculated the distance of the propeller from him and the shore, when he made his sheer west, and followed it by a second one to counteract her bearing in that direction. His movements made after he had passed Van Wagenen’s Island would, consistently with all the testimony, account for his intercepting the propeller at the spot the two vessels struck. The diagrams and the line of courses described by the different experts, and concurred in by those managing the Santa Claus, connected with the testimony in the cause, demonstrate, to my judgment, that the error was wholly on the part of the Santa Claus, and that if she had not sheered to the west, but had held the course she had been running to the moment of porting her helm, she would have gone widely to the east of the propeller, or, had only one sheer been made, would have cleared her. A slight angle of deviation to larboard, commenced three or four hundred yards off, would certainly have brought the Santa Claus east of the track of the propeller; because she had been worked round at right angles to the shore when brought into collision, in running less than that distance on her sheer to starboard. The effort to get the shore side under a wrong impression of the true distance and course of the propeller, thus brought the Santa Claus almost perpendicularly across the path of the latter; indeed a tangent further round, for her port guards struck the starboard bow of the propeller.
The true position of the two vessels relative to each other, and their respective movements being thus ascertained, the remaining inquiry is, whether the propeller had wrongfully placed herself in the way of the Santa Claus, or, which is the same thing, whether she was blamable for not going to the eastward of the latter. The lights of the Santa Claus were distinctly seen when she came round the Nose, by the pilot of the propeller, the latter then being off the point of rocks, probably from one to two miles distant from the Santa Claus. He had before determined to run close to the west shore, and accordingly took no precautions in respect to the Santa Claus, leaving her an abundant breadth of channel to the east. Admitting that the two vessels were at that time on the same north and south line, on the track proper for the Santa Claus to pursue, and which the pilot of the propeller was bound to suppose she *411would hold, was he required to go east of that line, so as to keep the Santa Claus on his larboard side, or could he justifiably course up along shore west of it? The usage or law is by no means peremptory or inflexible, that steamboats shall each steer to the right when approaching and meeting on the same track. Like other general rules this must yield to the necessities and reason of particular cases, even when the vessels are brought into dangerous proximity, and each relies upon the other that her movements will conform to,that rule. Abb. Shipp, pp. 311, 312, § 4. Reefs or shoals, or other impediments in the way, eddies, currents or tides may impede or prevent one vessel observing the rule on her part, and cast on the other the duty of avoiding her; or she may take a course opposite to that indicated by the rule when there is reasonable ground to believe such proceeding necessary to her safety or more secure navigation.
NOTE. The above case was removed by appeal to the circuit court, where “the answer was amended, and a large amount of additional evidence was taken which varied the case altogether from that presented below;” and in October term, 1848, the decision of the district court was reversed. [Case No. 12,326.] No opinion at large was given by the circuit court, and the decision of the court below is therefore reported.In the case of The Friends, Dr. Lushing-ton discusses the effect of extraordinary contingencies, and holds that they must afford exceptions -to the standing rule, however positive its terms may be, and in that case admitted a vessel, though out of the required course, to recover damages sustained from a collision in that situation. 2 W. Rob. Adm. 485. A circumstance adverted to as of weight in that case also exists in this, that the vessel was deviating from the course prescribed by the rule of navigation with a view to a more favorable state of tide. The testimony of the pilot of the propeller is corroborated by that of experts upon the river, that in a strong ebb-tide there is a species of eddy or reaction of tide close in by Caldwell’s or the point, which aids a vessel ascending; and even if this was a mistaken opinion, the pilot should be presumed to have acted under an honest persuasion that such was the fact, and to have passed close up the west shore to avail himself of that advantage, his vessel being heavily loaded and of feeble propelling power. This consideration would be of weight to show that he was not proceeding negligently and improvidently in that direction, but I think the fair weight of evidence proves an advantage was to be obtained by him in that mode of navigation, and it was the duty of the Santa Claus to have anticipated that slow vessels might be found at such state of tide in that locality, and shaped her course to meet the contingency. This case was a disastrous one to the Santa Claus, both in injuries to the boat, and more especially in the destruction of the life of a person on board; and from the nature of her employment, as well as the character of her officers and crew, no imputation can justly be made of want of skill for her management, or of an anxious desire to employ it, so as to protect herself and other vessels she might encounter. But on the evidence I am constrained to say, that on the occasion in question she was’ through mistake and want of proper precaution, put off the proper course, so as to bring her into collision with the libellants’ vessel, and cause an injury to the latter, which the owners of the Santa Claus are bound to indemnify.
I shall accordingly decree that the libel-lants recover their damages occasioned by the collision, and that the Santa Claus be condemned in the amount. It must be referred to a commissioner, upon the proofs in court and other pertinent evidence, to inquire into, ascertain and report these damages to this court.