
    EDWIN POPE ET AL v. THE UNITED STATES.
    [No. 20728.
    Decided April 3, 1899.]
    
      On the Proofs.
    
    The brig Tally-ho comes into collision with the TJ. S. S. Pinta and is sunk. Congress, hy special act, refer the claim for loss of vessel, cargo, and personal effects of the crew to this court for adjudication.
    I.The “yawing” of a sailing vessel approaching a steamer is an element of possible danger, for which the commander of the steamer should make allowance.
    II.The breaking of a steamer’s engine-room bell will not relieve her from responsibility if otherwise in fault.
    III. Where a deeply laden collier has a large hole in her side, the result of a collision, and is filling rapidly, the master is justified in deserting her.
    IV. In approaching each other it is the duty of a sailing vessel to hold her course, and of a steam vessel to avoid the sailing vessel.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. October 3, 1883, the owners of the brig Tally-ho (the vessel referred to in the act of Congress of January 9, 1897) (Stat. L., vol. 29, p. 483) were:
    Edwin Pope, Boston, Mass.shares.. 3-14
    James O. Pope, East Machias, Me.do- 3-14
    Estate of William H. Pope, East Machias, Me.do- 5-14
    Estate of George W. Pope, East Machias, Me.do- 3-14
    14-14
    
      John K. Ames, of Machias, Me., is administrator of George W. Pope’s estate.
    Susan Pope and Julia A. Furber, both of Boston, Mass., are executrixes of the will of William H. Pope.
    James O. Pope, one of the owners in 1883, has since died. Olive F. Pope, of East Machias, Me., is the executrix of his will.
    Edwin Pope was managing owner. He claims on. his own behalf andón behalf of the owners of the other interests in the vessel, viz: James O. Pope (now represented by Olive F. Pope, executrix), John K. Ames, administrator, Susan Pope and Julia A. Furber, executrixes, for the loss of the vessel.
    II. October 3,1883, the Delaware Mutual Safety Insurance Company, of Philadelphia, Pa., was insurer of a cargo of 423 tons of coal, on the Tally-ho, from Philadelphia bound to Boston.
    The amount insured was $1,759. After the loss of the Tally-ho, as hereinafter set forth, this company paid a total loss of $1,759 to the owners and received a deed of cession transferring all the owners’ rights and claims; this dated October 23,1883.
    The name of this company has since been changed. It is now The Delaware Insurance Company; under this name it now claims for loss on cargo.
    III. October 3, 1883, Thomas W. Lambert, of Machias, Maine, was master of the Tally-ho, sailing her “on shares.”
    The freight pending when the brig was sunk belonged to him under his contract with the owners. He was owner of ship stores and personal property on the brig.
    IY. October 3,1883, David H. Marshall was first mate, and Henry J. Moore and Oscar Borgeson seamen on the brig. The three were owners of personal property lost with the brig, for which they now claim.
    Samuel 0. Johnson was steward on the brig.
    Peter Thompson was second mate on the brig.
    Johnson and Thompson have disappeared since the collision.
    Y. July 29, 1884, the owners of vessel, cargo, freight, and personal property filed a petition in this court in Department Case No. 16, referred from the Navy Department under the Bowman Act, therein setting forth their losses. Evidence was taken in the case by plaintiffs and defendants. Said petition and evidence are tbe petition and evidence referred to in the act of January 9,1897 (29 Stat. L., 483). That petition was subsequently dismissed by the court for want of jurisdiction.
    YI. October 3, 1883, the brig was on a voyage from Philadelphia to Boston with a cargo of coal. Her tonnage was 359.43 old measurement; 341.46 new; length, 113 feet; beam, 28.75; depth, 14.1 feet. She was a double-decked vessel. With this cargo of coal she was so deep loaded as to bring her lower deck to the water’s level.
    YII. While passing over Nantucket Shoals, between 8 and 8.30 by the clock, post meridian, a collision occurred between the brig and a vessel under steam going in the opposite direction. This steam vessel was the United States vessel Pinta.
    Till. The Tally-ho was struck a glancing blow by the Pinta on the starboard side aft of the main rigging.
    IX. Just before the collision the Tallv-ho was steering about ESE. She had all sail set except her main topsail and fore-topmast staysail, the peak of the mainsail being dropped. The wind was about WSW., or about 4 points abaft her beam. She was going from 5 to 7 points per hour.
    The Pinta, just before the collision, was steering a course almost exactly opposite to that of the brig.
    X. The night was somewhat overcast, but the atmosphere was clear and there was no difficulty in seeing lights.
    XI. The Tally-ho, before and at the time of the collision, had properly set and burning a red light on her port side and a green light on her starboard side.
    XII. Tally-ho, at the time of the collision and before, had six men at least on deck. It was the master’s watch; in the watch, besides the master, were the second mate and two men. The master was on deck. One seaman was on lookout on the forecastle. Another seaman was at the wheel. The first mate was on the forward part of the poop. One of the men in the first mate’s watch was amidships.
    XIII. Tally-ho was following closely the regular course from the Cross Rip light vessel to the Handkerchief light vessel. This course is ESE. f E. for about 2§ nautical miles; thence E. -f N. Tally-ho was steering about ESE., heading a little more southerly than the chart course to allow for the flood tide and to clear the Horse Shoe Shoal. At the time of the collision she had not arrived at the point where the course is changed for Handkerchief Shoal. She was at that time about 2 miles from Cross Kip light-ship.
    XIV. Pinta’s white and red lights were reported by the lookout and seen by the master of the brig and by men on her deck when about a mile distant, bearing about 1 point on the brig’s starboard bow. The lookout sung out: ‘‘Light on the starboard bow,” and was heard by the master.
    XV. The master of the brig at once ordered the helmsman to be careful in his steering and see that the vessel was kept steady on her course.
    XVI. The brig was held on her course. As the brig had the wind free and fairly strong, there was unavoidably some “ yawing.”
    XVII. To those on the brig the approaching vessel appeared to keep on toward them without effort to avoid the brig or to change her course; thus she was steadily getting into more dangerous proximity. As she approached the brig the steam vessel seemed to those on the brig at one time to head across the brig’s bow, but afterwards to head toward the brig again. She was hailed by the brig’s mate, who sung out to the master that the steamship was coming into them; at the same time the second ma'e ran toward the wheel and said: “She is into us.” Moore (a seaman) had previously become alarmed and asked the master if he “didn’t see them lights,” getting the answer “Yes,” and “I am on my course; I cant’t keep off it.’ This hail was then heard from on board the steamer: “ Hard a starboard your wheel.” The brig’s wheel was then put up; but the vessels struck before it was got hard up, and before the brig’s course was materially changed. The steam vessel at the same time headed somewhat more toward the south, so that she struck the brig’s starboard quarter. During the approach of the vessels the steam vessel was always on the brig’s starboard bow.
    XVIII. Pinta’s speed up to the time collision was inevitable was not changed and was at least 3.8 knots per hour. Her engines were stopped before the collision, but only just before. They were reversed, but not until after the collision. This owing to the breaking of the wire connecting the bell pull on the bridge with the bell in the engine room. Pinta made only 1 point alteration of course until collision became imminent.
    XIX. The shock of collision was considerable. The vessels passed eact other after collision so fast that, though there was some hailing, it was not distinctly heard, and they were soon out of hearing of each other.
    XX. Tallyho’s master immediately examined the injury to his vessel in this way: He hanging to the rail reached the hole with his feet. He both felt and saw a large hole in the hull at the water line and below. He found that the water was running into the hold through this hole. He made two examinations. The first caused him to take his wife into the main rigging for safety. The second was made some distance from the place where he first examined the hull. The master’s examination was confirmed by the mate. The brig was so deeply loaded with coal that her lower deck was nearly level with the water at about the point of damage. The break in the hull found by the master and mate was over eight feet long and extended below the water line. Water was flowing into the lower hold.
    XXI. The brig was then about midway of the widest part of Nantucket Sound. The nearest shoal (Tuckernuck) was about 2-i nautical miles away at its nearest point, bearing about south.
    After the collision the brig came into the wind on the starboard tack. This helped to bring the hole in her side somewhat out of water. The master put her wheel to starboard when she got into the wind to prevent her sails filling on the port tack. This headed her more toward the nearest shoal (Tuckernuck). To reach it, however, she must have sailed closehauled (about south, the wind being WSW.) for more than 2J miles. The time required, at 7 knots per hour, would have been more than twenty minutes. The vessel, sunk in fifteen to twenty minutes after the collision in about 50 feet of water at a point to 2 miles from the point of collision.
    XXII. It was not practicable under the circumstances to cover the hole in the side from without. The only means available were the spare sails. They were under the cabin floor, and time was not sufficient to break them out, nor to stop the hole from the inside. To get at it from the inside required removal .of the hatches and some of the coal. The brig’s pumps could not have kept her afloat unless the leak were stopped to some extent. When the brig’s crew left her she was heeled over and already settled down nearly to the upper deck. /
    
      XXIII. Iu view of tlie injury to the vessel and all the circumstances, the master decided to get out the boats and abandon ship. This was done. The master was the last to leave. The vessel (when he left) was in sinking condition. To remain on board and endeavor to reach the shoal before the vessel sunk involved the chance of sinking in deep water, or, if she did reach the shoal, of sinking on one of the deeper instead of on one of the shallower parts of it. The master’s decision to take the boats was reasonable and proper under the circumstances.
    XXIY. Immediately after the collision the brig’s master hailed the steamboat; he asked her to take off the brig’s crew; he did not wish her to leave until the extent of the damage was known. This hail was not understood on the Pinta.
    XXY. The examination of the brig’s injury, the launching of the boats, and entering them took ten to fifteen minutes. During this time the steamboat’s lights were seen from the brig. She was near, but not within hailing distance.
    XXYI. The commander of the Pinta hailed the brig immediately after collision, and as the Pinta passed on ran to the stern and repeated the hail. No answer was heard. Pinta stopped and lowered a lantern over her bow and examined to see what damage she had sustained. She remained stopped some five minutes. Pinta then headed westward, and the brig continued to sail to the eastward at first, then more southerly as she came into the wind. When examination of the Pinta’s bow ended, the brig was not less than half a mile away. Pinta then turned around (she had first to steam ahead — i. e., to the westward — in order to get around) and followed the brig until within what was supposed to be hailing distance. This took from five to eight minutes. Just before Pinta got within' hail, the brig seemed to those on board her to go off again before the wind. When within hail, Pinta stopped again and made another examination with lanterns and men over her bow. She also hailed the brig. Her stop at this time was about five minutes, during which the brig was moving away. In this time she again got about half a mile away. No answer to any hail was heard on Pinta. At Pinta’s second stop her commander thought he heard voices and the rattle of blocks on the brig. No attempt was made by Pinta to call the attention of those on tbe brig by any means other than the voice. There was no whistling; no rockets were used; no boat sent. Her commander inferred that the brig was “not hurt;” that her people were angry and therefore inteutionally silent. He therefore put Pinta on her course and departed.
    XXVII. Tally-ho’s crew left her from the side opposite to that approached by Pinta. They at. first tried to find the steamer, but her lights then appeared to them so distant to windward that they deemed it impossible to reach her. They followed the brig until she disappeared. They then headed for Handkerchief Light-ship. After about fourteen hours in tl e boat, and an exhausting pull, they were picked up by a schooner and landed in Vineyard Haven. They did not put provisions into their boat before leaving the brig.
    XXVIII. After the boats were launched attempts were made to hail the steamboat, which then seemed to be within hailing distance; the hails were not heard; no answer was made, and she soon moved out of the boat’s reach.
    XXTX. The brig saved nothing but a chronometer and a trunk belonging to the master.
    XXX. The brig cost to build, in 1866, for the hull, spars, and ironwork alone, $50 per ton, to wit, $17,950. She was repaired in 1878 at a cost of $4,700, by her builder, at Machias. She was further repaired at various dates after 1878, principally in 1882, the year before her loss. She was found good and sound upon an examination by an expert in 1882. Repairs after this were made costing over $4,500 for work on hull and spars alone. In June, 1883, she was examined by an expert marine surveyor, on behalf of the Bureau Veritas and the Record of American and Foreign Shipping. He had examined and classed her, in 1880, Al-J for four years, and tbe 1883 examination was to see if the rate should be continued. It was continued. She continued in good condition. Her fair market value'at the time of her loss was $9,000. Nothing of substantial value was saved except the boat in which the crew landed, and some portions of sails and rigging. These were after-wards sold for $44.63.
    XXXI. The cargo of 423 tons of coal had been sold by Thomas & Townsend, as agents for E. Borde, of Philadelphia, to the Austin C. Wellington Goal Company, of Boston, at $3.90 per ton, free on board the vessel, plus 2 per cent advance on account of tolls. The sellers advanced 125.38 on account of freight. The invoice cost, at Philadelphia, $1,708.08, as above, was paid to the seller by the purchaser October 25,1883. The market value of the cargo, had it reached Boston in safety, would have been the invoice cost ($1,708.08) plus the freight of $1.30 per ton to be paid by the Wellington Coal Company to the master of the brig for transporting it. The Delawa're Insurance Company, then called the Delaware Mutual Safety Insurance Company, September 27,1883, insured this cargo, under an open policy issued to the said Wellington Coal Company, for $1,759, being the invoice cost, together with expense incurred. After the loss of the brig and cargo, the insurance company paid under their policy the full amount insured, $1,759, and took from the coal company an assignment of all claims for loss of the cargo.
    XXXII. But for the loss of vessel and cargo, the master of the brig, to whom the freight on the coal belonged under his contract with the owners, to sail her “on shares,” would have earned and received $1.30 per ton on 423 tons, or $549.90 gross, less the advance on Account made him at Philadelphia of $25.38, the cost of discharging the coal ($97.29), and one day more of wages and provisions to the crew, leaving him to receive, net, $430.73. The ship’s stores, charts, nautical instruments, and personal effects belonging to said master and lost with the brig were worth $715.95; ship’s stores, $128.45; charts and nautical instruments, $128; personal effects, $255; wife’s personal effects, $204. The master lost also his time from October 3 to November 2, 1883. The fair value of his time was $75 per month. During that time he was obliged to pay, because of the collision, in board and traveling expenses $34.
    XXXIII. The value of the personal property lost with the brig by David H. Marshall was $315.20. He also lost three weeks’ time, the fair value of which was $25.75, and had to pay for three weeks’ board $16.50.
    XXXIY. The value of the personal property lost with the brig by Oscar Borgesou was $60.
    XXXY. The value of the personal property lost with the brig by Henry J. Moore was $106.
    Upon the foregoing findings of fact the court decided, as a conclusion of law, that plaintiffs recover judgment against the United States in the sum of $12,388.60, to wit, as follows:
    
      Edwin Pope, Boston, Mass., owner of brig Tally-ho. $1,928.58
    
      John K. Ames, Machias, Me., administrator of estate of George W. Pope, late of East Machias, Me., owner of said brig... 1,928. 58
    
      Olive E. Pope, East Machias, Me., executrix of will of James O. Pope, late of said East Machias, owner of of said brig. 1,928.58
    
      Susan Pope and Julia A. Eurher, of Boston, Mass., executrices
    
      The Delaware Insurance Company of Philadelphia, Pa., having paid total loss on cargo of said brig. 1,759.00
    
      Thomas W. Lambert, of Machias, Me., master of said brig, for
    freight pending, stores, clothing, and personal effects. 1,146.68
    (No allowance is made for expenses or time.)
    
      David JL. Marshall, mate; clothing and other personal effects... 315.20
    (No allowance is made for expenses or time.)
    
      Henry J. Moore, seaman; clothing and other personal effects... 106.80
    
      Oscar Borgeson, seaman; clothing and other personal effects_ 60.90
    Total. 12,388.60
    
      Mr. Frederick Dodge for the claimaut. Mr. W. T. 8. Curtis was on the brief:
    The responsibility of avoiding collision under the circumstances lay wholly with the steamer. She was bound to keep clear, and by a sufficient margin. The brig was only bound to hold her course.
    The rules of navigation then in force are contained in United States Revised Statutes, section 4233:
    “Rule 20. If two vessels, one of which is a sail vessel and the other a steam vessel, are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sail vessel.
    “Rule 21. Every steam vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.
    “Rule 23. Where by rule, 20, one of two vessels shall keep out of the way, the other shall keep her course,” etc.,
    “As the steamer did not keep out of the way and the collision did occur, the steamer is prima facie liable, and can only relieve herself by showing that the accident was inevitable or was caused by the culpable negligence of the schooner.” (The Carroll, 8 Wall., 302,304.)
    “The universally understood rule of the road is that a steamer is bound to keep out of the way of a sailing vessel, and when she runs into one, she is presumably always in fault and must exculpate herself.” (Prescott v. If. 8., 19 O. Cls. R., 684,689.)
    
      Since the vessels were so near that what was said on one was heard on the other, and so near that the collision came before they could “well get the helm up,” the variation, if any, thus brought about in the brig’s course could only have been inconsiderable and without effect on the result — except, perhaps, to tend to bring the blow farther aft. Were it otherwise, it would not constitute fault on the part of the brig, but would be ascribed to the steamer’s fault in getting so close. (The Elizabeth Jones, 112 U. S. B., 514,526 ; The Maggie J. Smith, 123 U. S. B., 349,355; The Nacoochee, 137 ü. S. B., 330,340.)
    The steamer is bound to keep clear by a sufficient margin and to avoid dangerous proximity. She must avoid not only collision but risk of collision. (The Carroll, 8 Wall., 302, 306; The Manitoba, 122 U. S. B., 97,108; The City of St. Augustine, 68 F. E., 393, C. O. A., 1895.)
    There was plenty of room and plenty of time in which to have kept away so far as to have put collision out of the question. The language of The Carroll has a very close application: “Porting the helm a point when the light of the schooner was first observed, and then waiting until the collision was imminent before doing anything further, does not satisfy the requirements of the law.”
    A timely reduction of speed is just as obligatory upon the steam vessel, when needed to avoid risk of collision, as a timely and sufficient change of course. (The Schmidt and the Beading, 43 F. B., 398, 815.)
    Since the steamer’s neglect to act sooner made such risky maneuvering at close quarters necessary, the entire responsibility for its failure to succeed is on her. If the breaking of the bell wire and the consequent inability to communicate with the engineer at a critical time contributed to the failure, she can not plead it as an excuse under such circumstances. And as to the accident to the bell wire, there is nothing whatever to show that it could not have been prevented by reasonable diligence in testing, inspecting, and repairing. There is no attempt to explain it.
    So clearly is the steamer’s liability established by comparison of the ample time and room afforded her for keeping clear, with the tardy and scanty measures taken to accomplish her duty in that respect, that no doubt as to the management of the brig can avail her, if raised on her behalf. (The City 
      
      of New TorJc, 147 U. S. B., 72, 85; The Ludvig Holberg, 157 U. S. B., 60, 71; The Oregon, 158 U. S. B., 186, 197.)
    In sucb cases, the burden of proving that the vessel could have been saved is always on the wrongdoers, who are seeking to avoid what are presumed to be the consequences of their fault. (The Rebecca, Bl. and H., 347; Swift v. Brownell, Holmes, 467; The Hope, 4 F. B., 89; The Gladiator, 79 F. B., 445.)
    “If there be any reasonable prospect that the lives of the crew are endangered, I have determined, and I will do so until I am overruled, that they are justified in quitting the vessel, and the consequences must fall on the wrongdoer,” says Dr. Lush-ington in The Blenheim (Spinks, 285). So in Sherman v. Bream, 30 Barbour, 478, where the owners of a steamer were sued for running down a brick-loaded sloop in the Hudson Biver, which floated 20 or 30 minutes after she was struck, the court held that the crew were not bound to remain on board and try to get the vessel ashore, unless it was entirely plain that they could do so with safety.
    The court will endeavor to place itself in the position of the master of the brig at the time, and, as in all similar cases involving the judgment of a master exercised under difficnlt circumstances at sea, will not pronounce his decision wrong, by virtue even of wisdom coming after the event. (The Star of Hope, 9 'Wall., 203, 230, 231; Swift v. Brownell, Holmes, 467, 470.)
    fifr. George H. Wallcer (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    The evidence in this case shows that the Tally-ho, or at least the vessel with which the Pinta collided, changed her course twice. If the sailing vessel had kept to either course the steamer would have cleared her. Her failure to adhere to her course caused the collision. All the witnesses for the Government testify that every effort was made to avoid the collision. The instances are numerous where the sailing vessel has been found wholly to blame for collisions on the high seas when not adhering to this rule. One of them, more recent, is that of the Adriatic (107 U. S¡, 512).
    The court found that the fault which caused the collision originated with the ship and not with the steamer.
    This rule does not require a vessel to keep her course after the approach is so near that the collision is inevitable, and it is tbe duty of both vessels at such a time to do everything to lessen the danger. The evidence in this case shows that the wheel of the Tally-ho .was abandoned and nothing whatever done on the part of the brig to prevent the accident.
    “ There is no absolute right of way at the peril of immediate collision. If the vessel having right of way fails, in the presence of immediate danger, to do what it can to avoid collision, it is liable.” (The Nonpareil, 33 Fed. Eep.)
    In cases of collision the prosecuting vessel must not only make it manifest that the loss was occasioned by the fault of those in command of the colliding vessel, but she must prove that she used all proper precautions and methods to prevent it.
    In MoOabe \.,Old Dominion S. S. Go. (31 Fed. Eep., 234-238) the court said:
    
      u To exonerate a vessel it must be shown that she had taken every reasonable precaution to meet any emergency which might arise, and that sho was not guilty of want of ordinary care, caution, or maritime skill.”
    And if there is reasonable doubt as to which party is to blame, the loss must be sustained by the party upon whom it has fallen. (The Grace Gridler, 7 Wall., 196.)
    Owners of vessels are bound to provide skillful officers, as well as a full complement of men and officers. (Washington, 3 Blatchf., U. S. E., 276.)
    The conduct of the captain of the Tally-ho, according to his own admissions, was not that of a man fit to command a ship, and his behavior doubtless had much to do in causing the demoralization which evidently prevailed on board of his vessel.
    Even if an injured vessel is not to blame for a collision, if her own subsequent stranding was caused by the negligence of those in charge of her, when they could, by the use of ordinary nautical skill, have avoided it, the vessel originally in fault is responsible for the immediate effect of the collision only, and no part of the damages by the stranding. (Ameri can and English Encyclopedia, vol. 16, p. 351.)
   Davis, J.,

delivered the opinion of the court:

The brig Tally-ho, deep laden with coal, October 3,1883, bound for Boston from the southward, while passing’ near Nantucket shortly after 8 by the clock, post meridian,, came into collision with a steam vessel bound in the opposite direction. The brig sank and (with her cargo and her crew’s personal property) became a total loss. The steamship was a vessel of the United States Navy, named the Pinta, and rated as “gunboat” of the fourth class.

The case of these plaintiffs was referred to this court (under the Bowman Act) by the Secretary of the Navy in 1884 (Department Case No. 16). It was, in due course, dismissed for lack of jurisdiction.

January 9, 1897, the following act was approved by the President:

uBe it enacted by the Senate and Souse of Representatives of the United States ot America in Congress assembled, That the claim of the legal owners of the brig Tally-ho, her cargo and freight, and of personal effects on board her, alleged to have been sunk by a collision with the United States steam vessel of war Pinta on or about the third day of October, eighteen hundred and eighty-three, be referred to the Court of Claims, to hear and determine the same to judgment, notwithstanding the lapse of time, with right of appeal as in other cases.
“ Whereas the legal owners of said brig, cargo, freight, and personal effects, or some of them, did, on the 29th day of July, eighteen hundred and eighty four, file in said Court of Claims, in the case referred to said court by the Secretary of the Navy, and then numbered on the docket of said court departmental case numbered sixteen, their petition setting forth their losses by said collision; and whereas evidence has been taken upon said petition, both by said petitioners and by the United States, and said evidence has been filed in said court, the claim above referred to said court may be heard and determined by said court upon said petition already filed therein; and the said evidence already taken and filed by either partyupon said petition may b.e used and referred to in said hearing and determination of said claim in all respects as if originally taken and filed for the purpose of the hearing and determination thereof provided for by this act, with the right of either party to appeal to the Supreme Court of the United States.”

The substantial contention here is upon the facts. They have been found and are set forth in-the findings. Thus there remains only the duty of applying to these facts the familiar rules of admiralty law.

The situation was this: Through a fairway, sufficiently broad, with strong tides, a deep-laden coasting brig was bound to the eastward with a nearly following wind. She was running free with main boom well off) foremast yards athwartships and yawing to some extent — a natural incident of that condition. The brig’s course was the usual one in that place. At the time of tbe collision sbe bad passed Cross Eip ligbt-sbip and was beaded for Handkerchief Sboal ligbt-sbip, all in due course of ordinary coast pilotage. Just before tbe collision hereinafter mentioned sbe was steering about east-southeast, perhaps a trifle to tbe southward of tbe regular course, to allow for tide. Her side lamps were alight and there were sufficient lookouts and crew on deck, and alert.

At tbe same time Pinta was approaching in directly tbe opposite direction, steaming only some 4 knots an hour, as sbe was short of coal. Her lights were properly set. Each vessel was seen from tbe other in due time, but there was upon tbe part of Pinta some uncertainty as to the course of Tally-bo, which bad tbe right of way. Tbe two vessels approached “head on, Tally-ho, running free, necessarily “yawed, and tbe confusion on Pinta as to her lights was not unnatural. In fact so natural was it, so much to be expected was this confusion, that it should have been considered by Pinta as an important element in her own maneuvers.

Tally-ho, just before collision, had all sail set except main topsail and fore-topmast staysail — peak of mainsail dropped; she was running about 5 knots an hour. The night was overcast, bub the atmosphere was clear; there was no difficulty in seeing lights. Both vessels had sufficient watches on deck awake and alert.

From the brig Pinta s lights were seen about 1 point on brig’s starboard bow, distant about a mile. The brig was held steady on her course; here she complied with the regulations: collision not then impending, but she undoubtedly and unavoidably did yaw, thus creating confusion on the steam vessel.

Tally-ho (pursuing her course) was hailed from Pinta to “ hard a starboard. Tally-ho’s helm was then, put a-starboard obeying the hail; but this too late to avoid collision. The fact that the hail was understood shows the proximity of the two vessels. The Pinta’s engines were stopped just before collision, but they were not reversed until after collision; this because the bell wire from the bridge to the engine room broke.

There is thus presented the familiar case of a deep-laden collier staggering up channel, keeping within the strict rules of the road and her technical rights and confiding very much in those rights. The margin of safety small in case of accident, but the rights none the less secure.

That the “jawing” of the collier led to confusion on the Pinta is most natural; but, given conditions of wind, weather, light, and pilotage, that very incident should have been present to the mind of the Pinta’s commander as an important element of possible danger; he should have made allowance for it; this allowance, under the circumstances, he could easily have made, the fairway being broad. That Pinta’s engine-room bell wire broke was a misfortune; but Pinta must have been too close to the brig for safety, or it would not have been deemed necessary to stop her, still less to reverse her .engines. It would have taken a relatively short distance and a moderately quick turn of Pinta’s helm to have cleared her of the brig.

To what occurred after the collision we attach (for the purposes of this case) but little importance. Pinta undoubtedly made an effort to discover whether the brig was vitally wounded. The collier’s crew were frightened, took to their boat under the conditions of disorder incident to that class of persons in that class of vessel in such an accident. After some hardship they were picked up. The collier sank. There is no reason to suppose that the crew could have saved her. She had at best small reserve floating power. It takes but relatively little water to sink a deeply laden collier; her buoyancy is usually well drawn upon before she leaves port and the character of her cargo tends to impair the pumps in case of leak. The vessel was deep in the water, laden with coal; she had a large hole in the side; she was filling very fast; there was no safe spot in the vicinity to beach her; she was soon to sink. Under these conditions we do not find that the master erred in deserting ship.

Eule 20, section 4233, Eevised Statutes, provides:

“If two vessels, one of which is a sail vessel and the other a steam vessel, are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sail vessel.
“Eule 21. Every steam vessel when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.
“Eule 23. Where, by Eule 20 one of two vessels shall keep out of the way, the other shall keep her course.”

It therefore appears (and it is well known) that under ordinary circumstances, such as those presented in this case, the duty of tbe sailing vessel is to hold her course; the duty of the steam vessel is to avoid the sailing vessel and these duties are equal. This case does not present any of the exceptions to the rule. The brig was competently manned; a sufficient, in fact (owing perhaps to the time of day) ample watch was on deck; Pinta’s lights were reported seasonably and the brig held her course; she had no other choice under the law and regulations.

We do not glean from the findings of fact that after the collision the brig failed in any duty; she was seriously wounded; she was loaded with an unwieldy and heavy cargo with little reserve buoyancy; the leak was inaccessible from the inside; the spare sails were in their usual stowage under the cabin floor aft, whence it would have taken some twenty minutes to break them out, and one can not tell how long to get one or more of them over the leak outside of the hull. Stopping the leak from inside with that cargo was impossible. The master was alone in his care (for at this time Pinta had apparently gone on); he was responsible for the lives of his wife and crew; and under these circumstances of stress he elected to take to the boat; not a pleasant choice, but one which he deemed so necessary that he submitted his wife to the hardship.

It is suggested that he might have stayed by the ship and' beached her upon a neighboring shoal; but it has been held in regard even to so placid a stream as the Hudson Biver, and so domestic a boat as a brick sloop (which floated about one-half hour after being in collision), that the crew were not obliged to remain aboard unless it was plain they could do so with safety. (Sherman Y. Fream, 30 Barbour, 478.)

Dr. Lushington, in treating this same point in the Blenheim Case, said (Spinks, 285):

If there be any reasonable prospect that the lives of the crew are endangered, I have determined, and I shall do so until I am overruled, that they are justified in quitting the vessel, and the consequences must fall on the wrongdoer.”

The law is clear enough, and the facts show that the brig did nothing to bring her into default.

Therefore, judgment for plaintiffs.

Authorities cited in the argument: Pitman's Case, 20 C. Cls. B., 253; Pope's Case, 21 O. Cls. B., 50; Act of Congress, 29 Stat. L., 483; Carlton's Case, 10 C. Cls. B., 485; The Carroll, 8 Wall., 302; McCabe v. Old Dominion S. S. Co., 31 Fed. Bep., 234; The Grace Gridler, 7 Wall., 196; The Washington, 3 Blatch., 276; Sampson’s Case, 12 0. Cls. B., 480; Thrush’s Case, 14 C. Cls. B., 435; Prescott’s Case, 19 C. Cls. B., 684; The Honpariel, 33 Fed. Rep., 524; The Star of Hope, 9 Wall., 203; City of St. Augustine, 52 Fed. Rep., 237; The Adriatic, 107 U. S. R., 512; 68 Fed. Rep., 393; The Elizabeth Jones, 112 U. S. R., 514; The Maggie J. Smith, 123 U. S. R., 349; The Nacoochee, 137 U. S. R., 330; The Manitoba, 122 U. S. R., 97; The Schmidt and The Beading, 43 Fed. Rep., 398, 815; The City of Hew York, 147 U. S., 72; The Ludwig Holberg, 157 U. S., 60; The Oregon, 158 U. S., 186; The Rebecca, Bl. and H., 347; Swift v. Brownell, Holmes, 467; The Hope, 4 Fed. Rep., 89; The Gladiator, 79 Fed. Rep., 445; The Blenheim, Spinks, 285; Sherman v. Fream, 30 Barbour, 478; The Star of Hope, 9 Wall., 203; American and English Enc., vol. 16, p. 351.  