the collision. The rule rendering it liable does not apply unless the collision is promoted by or results directly from such departure. The presumption is that the vessel departing from the rule is responsible, unless the contrary is shown, and the burden of proof is on it to show that such irregularity did not contribute to the result; and unless this is shown by clear and satisfactory evidence, the presumption of its negligence will prevail. A change of course, if made at such a distance that it does not contribute to the collision in any degree, or a departure shown to be immateral or caused by the steamer's fault, will not subject a sailing-vessel to damages. The rule requiring a sailing-vessel to hold its course does not take effect until the vessels are in a position where collision may be promoted by a change; and until they have approached a point of danger that brings the rule into operation and makes its observance necessary, both are free to navigate at will.2

A steamer is not relieved from her duty to act with promptness and good judgment, and to make such practical changes in her own navigation as may be necessary to escape the faulty acts of the other, even though the latter may not have complied in all respects with the rules. Instead of affording an excuse for its own misconduct, the fact that an approaching vessel is being navigated in an unskilful and unlawful manner imposes added watchfulness and care upon the steamer to take such timely precautions as it may, to get at a distance sufficient to avoid the misconduct of the other. The fact that a steamer neglects to keep out of the way, and offers no indication of an intention to do so, is no justification for a sailing-vessel to violate the rule and depart from its course, unless in exceptional situations where danger of collision is imminent; for the reason that a

Baker v. The Steamship City of New York, 1 Cliff. 75; The Thomas P. Way, 22 Fed. R. 739.

2 The Monticello v. Mallison, 17 How. 152.

3 McWilliams v. The Vim, 12 Fed. R. 906; The A. W. Thompson, 39 Fed. R. 115.

4 Boggs v. Parr, 3 Hughes, 504.

departure might, if made before necessity demands it, embarrass the other and neutralize the execution of any maneuver it might contemplate, and increase instead of diminish the risk of collision.1

Mere apprehension of danger is not sufficient to exonerate a sailing-vessel for failure to hold its course, even though the movement is made under the belief that its presence is not discovered. When, however, it is apparent that collision is imminent, it is bound to change its course, if thereby the danger is lessened; failing to do so, or to use every means, time and opportunity offer to avoid collision or abate the consequences of the same, it is guilty of contributory negligence.3

Where a steamer by its own negligence or breach of a statutory duty places a sailing-vessel in peril, it is not relieved from the results of its own conduct by the fact that in a moment of peril the latter did something, or neglected to do something, that might have avoided the collision. And where an error is made in selecting the end desired, the erring vessel is not responsible for the fault, if made under circumstances produced by the unlawful conduct of the other. It is no fault of a vessel, otherwise acting within the requirements of the law, that it declines to undertake a hazardous experiment in trying to avoid another by whose fault it is brought into danger. A vessel suddenly brought face to face with imminent peril is not held to that cool and careful discrimination of ways and means for escaping peril that is required of a vessel having plenty of time for considertion and opportunity for executing movements tending to avoid danger. Where a steamer takes precautions sufficient to avoid collision, and they are rendered ineffective by failure of the other to keep its course, it is thereby absolved

The High Gate, 62 L. T. 841; The Martello, 39 Fed. R. 505.

2 The Scotia, 5 Blatch. 227; The William Young, Olc. 38.

3 The B. & C., 18 Fed. R. 543; The Nacoochee, 22 Fed. R. 855.

4 The Ella B., 19 Fed. R. 792; The America, 4 Fed. R. 337.

5 The John Mitchell, 12 Fed. R. 511.

from liability, unless it clearly appears that it might have avoided the sailing-vessel, notwithstanding its error; but the evidence must be clear and convincing to establish such liability. It is not always necessary that there should be an absolute change of course to render a sailing-vessel liable. Its movements may be such as to create a constructive departure; as where her apparent course is rendered delusive by unusual leeway, of which those in charge are aware, which an approaching steamer has no means of knowing. The latter may rely upon the apparent course of a sailingvessel; and where this course affords no reasonable apprehension of collision, the steamer is not bound to take precautions against leeway so unusual as not to be reasonably apprehended.3

Where a change of course is made as a last resort, after holding its course until collision appears to be inevitable if pursued, it is the duty of the sailing-vessel to take such action as the circumstances demand, and there is no liability for a departure.

1 The Potomac, 8 Wall. 590; The Adriatic, 107 U. S. 512; Baker v. The City of New York, 1 Cliff.

75.

2 Farr v. The Farnley, 1 Fed. R. 631; The Galileo, 24 Fed. R. 386; The Renovator, 30 Fed. R. 194; McCormick v. The Gladys, 35 Fed. R. 160; The Chatham, 52 Fed. R. 396; 44 Fed. R. 384; The Roanoke, 45 Fed. R. 905; The Excelsior v. The Bruce, 38 Fed. R. 271; The Allianca, 39 Fed. R. 476; The City of New York, 35 Fed. R. 604.

The schooner was apparently under way. When the tug had approached so near that it could not avoid it, it was ascertained it was drifting. Where it appeared that the schooner could have dropped its anchor and avoided the collision, it was held the tug was not liable. Daly v. The Media, 45 Fed. R. 79.

A sailing-vessel and a steamer were approaching, and, before they were near enough to make a change of course excusable as an error in

3 The A. P. Cranmer, 8 Fed. R. extremis, the wheelman of the 523; 19 Blatch. 507. sailing-vessel, by mistake, disobeyed

4 The State of Alabama, 17 Fed. his orders, and, by porting his helm R. 847.

A tug with a tow going through the Arthur Kills perceived a schooner near the Jersey shore.

instead of starboarding, the vessel was thrown across the course of the steamer, and collision followed. It was held the sailing-vessel was

Sec. 92. Exception to the rule. The rule requiring a sailing-vessel to keep her course when approaching a steamer is modified when they are brought suddenly and unexpectedly close to each other, under such circumstances that collision may be apprehended in case the rule is complied with. Under such circumstances each must act according to the emergency. If there are special circumstances from which

Carlisle v. The When nearly opposite to the steamer the sailing-vessel suddenly changed its course and collided with the other and made no effort to assist the sinking steamer. Held, that the sailing-vessel was liable for all damages sustained and for injuries to the crew. The Latona, 19 P. R. 131.

it clearly appears that the sailing-vessel can prevent collision otherwise inevitable, it is her duty to depart from the rule; but to justify such a departure it must clearly be shown that the observance of the rule would occasion collision, while a departure would prevent it. It must be an exceptionally strong case to render a sailing-vessel liable for obeying the rule; and it must be clearly shown to the satisfaction of the court that a deviation would have prevented the collision, and that the sailing-vessel was guilty of culpable want of seamanship in not observing the necessity for the departure. It must not only be proven by clear and sufficient evidence that a departure from the rules would have avoided the collision; it must be shown that the situation was such that the means of escape by a deviation were so obvious to one of ordinary nautical judgment that it was clear negligence to omit it.3

Sec. 93. Presumptions. The presumption of law is always in favor of the vessel complying with the rule, and against the one departing from it. Where a sailingvessel and a steamer collide, the presumption of law is that the steamer is at fault, being required to keep out of the way, and nothing but inevitable accident or the misconduct of the sailing-vessel can overcome this presumption; and the fault of the sailing-vessel must be clearly proven by the steamer. The fact of a collision being shown, the burden of proof is on the steamer to show the prudence of its own conduct and the negligence of the other. Where there is no decisive evidence of fault on the part of the sailing-vessel, the steamer must answer for the collision. Prima facie it is at fault; to escape which it must show misconduct on the part of the other, and such a compliance with the rules on its own part as to absolve it from fault." The presumption of law is that a ves

The Cornelius C. Vanderbilt, Abb. Adm. 361; The Iron Chief, 63 Fed. R. 289.

2 Crockett v. The Isaac Newton, 18 How. 581.

3 Haight v. Bird, 26 Fed. R. 539. 4 The City of Truro, 35 Fed. R. 317.

5 The Scotia, 14 Wall. 170; The Badger State, 8 Fed. R. 526; The