(dissenting). If the decree against the tug is to stand at all, I agree that it should be modified in the way proposed, but it is clear to my mind that the collision occurred solely because of the negligence of the Hopkins, and that the libels against the tug should therefore be dismissed. As seen from the Palmer, when the Hopkins was first observed some two miles off, she showed her green light and bore about a quarter of a point on the Palmer’s starboard bow, proving that she was to the west of the tug and tow, pursuing a diverging course, and had she continued so to do, the accident would not have taken place. On sighting the Hopkins and noting her course, the tug, at the same time, as a precautionary and perfectly legitimate measure, veered slightly to the east, which would have increased the divergence, if followed by the Palmer, or even without that, and this would have given all parties plenty of room to pass. But the Hopkins, instead of continuing her course, as she was bound to do,, when about a quarter of a mile off turned admittedly a quarter of a point to the east and probably more, shutting out her green light, and showing her red, and bringing her across the course of the tug. By that time, and as the result of this maneuvre, the vessels were so close in together that the tug, in order to escape being run down, had to veer sharply still further to the east, the Hopkins, as an emergency move, turning also again in the same direction to try and cross over between the tug and her tow, hoping to cut the hawser, but being struck by the Palmer before she could get by. If she had not, by her own errors, brought about the peril where this last move became necessary, it might have been justified. But the peril being of her own making by her previous chang'e, of course, she is not to be let go upon any such plea. It is not to be conceived that the tug, after sighting the Hopkins, a mile or more away, would deliberately change over in the direction that she was coming in the attempt to carry her tow across the Hopkins’ bow. Nor, on the other hand, is the Hopkins to be charged with similar foolhardiness, except as it clearly appears from the evidence that she had not observed the tug and tow as she should, when the change to the east was made. According to Nelsen, the man at the wheel of the Hopkins, they had not seen the lights of the tug, although she was almost upon them when this was done, which accounts for it all. “Q. What order did you get from your captain when you made that change of a quarter of a point? What were his words? A. Steer northwest by north, three-quarters north. Q. How had you steered before that? *938You-: were--steeringiby the compass? A. Northwest by north, one-half north." Q.. You had not seen anything. yourself of the tug’s lights, when.the change was made, or had you? A. No, sir. We seen her afterwards, about a point on the port bow—on the weather bow. Q. What lights, of the boat did you see ? A. Red' light and green light; also the masthead lights. Q. How far away do you think that the tug was when you first saw her lights? A. She wasn’t a very long distance. Shortly after we sighted her, the collision occurred.”
It is true that, on being asked to fix the distance, he says it was betweena mile and three-quarters of a mile, but it is clear from the other evidence in the case, if not from his own, that it was much less. Harvey, the captain, also says that the lookout reported the lights of the tüg about seven or eight minutes before the collision, and that they hád been steering their changed course before they made the lights; also, that the tug was not a length or two away when she (the tug) shifted her course and went across their bow, which could only refer to" the second change, when the collision was imminent, by which the tug, just escaped being run down. It is manifest from this that the Hopkins had not sighted the approaching tug and tow, although in plain view, and had not noticed, of course, that the tug had veered to the. east, as she was bound to do, and that it was because of her failure to make this timely observation that she ventured to change her ■course, which, under existing conditions, she had no right to do. And the lack of a proper outlook on the Hopkins, to which no doubt all this is due, is emphasized by the fact that the lights on the Palmer were not seen at all until she was bearing down on the Hopkins, four points 'em her weather bow, the captain springing to the wheel at this juncture, and succeeding in getting his vessel off with a glancing blow. Being convinced from these and other considerations that the situation was of the Hopkins’ own making, and that this is established by evidence which we are not entitled to disregard, I cannot reconcile myself to an affirmance of the decree holding the. tug liable, and am therefore constrained to dissent.