Page:Federal Reporter, 1st Series, Volume 8.djvu/538

524 TEDEBAIi BEFOBIEB, �rule 20 could not be supposed to be intended to apply to a comblned mass of 17 eanal-boats and two tugs, because, in such a tow, because of the hampering of the steam-vessel, there existed no considerable part of the power to control its own movements possessed by a steam-vessel when steaming alone, the possession of that power being the foundation of the rule which requires a steam-vessel to keep out of the way of a sailing vessel ; and that the test of responsibility in the present case was to be found in the ability possessed by the respective vessels to control their own movements and avoid collision. Acting on this principle, the court held that the schooner could, without any considerable difflculty, have placed hersell suflSciently far to the westward of the tow to avoid all danger of collision, while the ability of the mass of boats composing the tow, moving slowly in the tide, and compelled to keep in posi- tion to take effective action to avoid the schooner, was very small; that the fault of the schooner was in omitting to put her helm down until she was too close to the canal-boats ; that after the danger of collision was apparent, noth- ing could have been done by the tug3 to prevent the collision; and that the schooner, when she aaw herself in danger of running into the canal-boats, could, without serlous inconvenience, fiave moved further to the westward, and so have avoided the collision. The libellant has appealed because the tugs were not condemned, and the claimants of the schooner have appealed because she was condemned. �For the schooner it is contended that the tugs were bound to keep the tow out of the way of the schooner. By rule 23 of the same rules in section 4233, it is provided that where, by rule 20, one of two vessels is bound to keep out of the way, the other must keep her course. Rule 20, by its terms, appHes only when the steam vessel and the sail vessel are proceeding in such directions as to involve risk of collision. As the steam vessel is bound to keep out of the way of the sail vessel, she can regulate her movements to do so only by what appears to her to be the course of the sail vessel. When the apparent direction of the sail vessel, as seen by the steam vessel, is such that, if their respective courses are kept, no risk of collision is or' ought reasonably to be apparent to the steam vessel, it is not incumbent on her to take precautions to keep out of the way, other than not to do anything to bring on risk of collision, growing out of the respective directions of the two vessels, as the course of the steam vessel is known to herself, and as the apparent course of the sail vessel is seen by the steam vessel. The testimony clearly shows that the tugs and their tow, after coming out of the Kills, and getting in their course up the bay, did not make any change of course towards the schooner. Whatever change they made was away from the course cl the schooner, and the distance between them and the schooner when the last change of course of auy kinJ on their part was made, was so gveiit as to cause no embarrassmenfc to the schooner. On the ��� �