The John I. Clark

WADDILL, District Judge (after stating the facts as above). Without going into a general discussion of the several faults alleged by the respective parties one against the other, as accounting for the collision, the conclusion reached by the court is that, having due regard to all of the facts and circumstances of the case, including especially the nearness with which the sloop was navigating to the piers, the width, of,.the slip out of which the tug came, the distance the tug could have seen and did see the sloop, the condition of the weather, the tide at the time, the size of the two crafts, and the speed at which they were respectively navigating, there was no reason why any collision should have taken place, had the navigation of either vessel been reasonably and prudently conducted in accordance with the rules governing them. The sloop, whether proceeding within 75 or 125 feet of the piers, as variously estimated by witnesses, was passing within sufficiently close proximity to a manifest place of danger as to call for the exercise of special care and caution, as well for its 983 own protection as for that of others lawfully using the waters, and particularly those liable to come out of the slips of the piers of the Norfolk & Western Railroad, bordering the eastern line of the channel for some distance. This it utterly failed to do. It is true the sloop’s master testifies that, upon discovering the tug, he starboarded with a. view of going further to port and from the tug, and that'he was able to change his course but little, because of the swell from a passing steamer. This latter part of his statement is not borne out by the other testimony in the case, nor is his version supported by the only other person who was on the sloop, and not called as a witness. While it is not probable, having regard to the heavily laden condition of the sloop, that much change could have been made in the course of its headway after the presence of the tug was observed, still every effort should have been made to that end, and the proof should have shown the fact, had it been true; and, moreover, the deckhand, in passing this place of danger, should have been in a position to look out, and be of service, instead of in the cabin, where it is claimed he was, though it may be that his presence on deck would not have materially changed conditions. On the part of the tug, whether it be that she was proceeding at the speed she claimed of some 3%, miles an hour, or something faster, or whether she gave the signal indicating her purpose to pass out of the slip just when she says she did, or not, is utterly immaterial, since she clearly saw, and could have seen, the sloop passing, and in a position of apparent danger, in time to have avoided her, by the exercise of reasonable prudence on her part. She confessedly saw the sloop 200 feet away, and might have seen it considerably further off, -and there was no real reason why she should not have avoided running into it. The tug evidently proceeded upon the theory that th,e vessels were on crossing courses, and that the sloop, having the tug on its starboard, was charged with the duty of keeping out of the way, and that she would do so. Assuming that this rule applies, tinder the circumstances the tug should not have taken the risk it did, having due regard to the size of the two vessels, their locations, and the positions in which they respectively were. On the contrary, the “special circumstance” or “general prudential” rule should have governed the tug’s navigation. The paramount duty imposed upon vessels in close proximity to each other, and particularly in waters like those at the scene of this accident, is to avoid the risk of collision, and for failure so tó do reliance cannot be had on the ordinary rules of navigation to avoid responsibility. Moreover, it is not claimed by the tug that upon reversing its engines it gave the appropriate signals required by the rules of navigation; and it will not do to say they would have availed no purpose, as it cannot be said how the sloop would have navigated, had it been properly warned of imminent danger. It follows, from what has been said, that the collision occurred as the result of -the negligence of both vessels, and that the damages arising therefrom should be divided between them, and a decree to that end will be entered when presented.