The Erin

LACOMBE, Circuit Judge (after stating the facts as above). We find no fault in the two-whistle signal of the Erin, which initiated a starboard to starboard passing. They were on substantially parallel courses and meeting head to head, or nearly so; but the Erin was to the westward of the North America, and it might well seem wiser, to undertake to pass her on that side, rather than to cross over her course and get to eastward of her, with the Brooklyn steamer so near, in an effort to pass port to port. The presence of both the interfering steamers was known when the tugs sighted each other and exchanged their signals, and it was known that their navigation would be affected accordingly. Thus the Erin knew that, unless the Brooklyn steamer got beyond the North America before the tugs came to the' passing point, the North America could not shift herself substantially to the eastward, and therefore it behooved the Erin to shift herself as much to the westward as possible. On her own testimony we are satisfied that she did not do so. Her master says he starboarded his wheel “a spoke or two,” which involved a very slight change. Maybe thereafter he straightened up again. But he says he blew the two-blast whistle when he was off Catherine street, and that the North America was then about a quarter of a mile further up. The Erin was then to the westward of the North America — the lowest estimate is 30 feet. AAOien the tugs passed each other they were only 50 to 75 feet apart, as the Erin admits ; less than that, as the North America contends. Manifestly, in the time during which the quarter-mile was covered by both, the Erin had not shifted substantially to the westward. She could have done-so promptly on giving the signal, because the docking steamer was then some distance above her (“way up by me, way up clear when she began to turn”), and, having got further to the westward, could have waited until the docldng steamer passed in towards her berth. The Erin did not fulfill the whole obligation she assumed when she gave the two-blast signal. It is contended that the North America was not herself free from fault. Having responded with a two-blast whistle, it was her duty to-do what she could to assist a passing starboard to starboard. Of. [407] course, so long as the Brooklyn steamer remained a factor in the situation, she could do but little. Her master starboarded his wheel slightly before lie reached the steamer, and then straightened, passing the steamer “about 50 feet clear.” He could do no more until after he had passed her sufficiently to be free to move further to the eastward. Counsel for the Erin insists that the North America had passed the Brooklyn steamer before the tugs passed each other, and that she was free to swing to starboard, which concededly she did not do. The evidence, however, is not clear upon this branch of the case, and we are not prepared to differ from the conclusion reached by the district judge, who saw and heard the witnesses. Decree affirmed, with interest and costs.