(dissenting in part).
The result herein is, I fear, to exonerate the vessel which in some aspects is the most blameworthy of the three involved in the collision. The “Chicago” was navigating downstream near the east shore in violation of the East River statute without excuse save her self-advantage — avoidance of the full tide against her in the center of the stream. And she persisted in this conduct when danger arose; indeed, she put on speed and headed towards the Brooklyn shore. The fact that she saved her own skin should not protect her under the circumstances. As for the “Patchogue,” she was following after the “Chicago” — likewise out of position. I am afraid that under this decision not much is left of the East River statute.
This view depends in part on my conclusion that the “Sandmaster” was not so grievously at fault as is stated in the opinion. True, she was also out of the channel, but she had a reasonable excuse. She had previously passed some other harbor traffic and had hauled to the right to do so. She did keep on her course upstream on the right side of the river for approximately 900 feet, which was only for about a minute at the rate she was going. Then she chose to attempt a starboard passage in passing the “Chicago.” Some case can be made for her choice; she was not to presume that the “Chicago” would continue an illegal course around the bend of the river. But the court below found against her, and this conclusion is not so unreasonable that I should wish to disturb it. I think the result below was a just one under the circumstances and should not be upset.