THE PHILADELPHIAN. LEWIS et al. v. TRANT; WILEY et al. v. SAME, 61 F. 862

PER CURIAM. Upon careful examination .of the evidence, as presented by the record of these cases, and full consideration of the able argument for the appellants, the court perceives no error in the conclusion of the district judge. The testimony in behalf of the steamer comes from intelligent witnesses, who were in position to know fully the measures taken to avoid a collision, in respect to which they testify, and shows that every precaution required of those navigating the steamer, for the avoidance of the collision, was promptly exercised.

The failure of witnesses looking on from remote points, or even of those aboard the schooner in motion, to observe or to know such precautions, cannot overcome this clear consent of evidence from the witnesses who co-operated in those precautionary maneuvers.

The schooner, beating out of Boston harbor, where the working channel for large ocean steamers, like the Philadelphian, is narrow, while she had a right to tack when necessary or highly prudent, should still have taken some care to see that, by tacking,- she did not make it impossible for either sailing or steam vessels following her to keep clear, and, if practicable, should have held on her tack long enough to avoid such result. That in this case the schooner, could safely, and ought to, have stood longer on her port tack, we think, is clear.

If the witnesses for the libelants are correct in denying any vacillation in the navigation of the schooner, then it is plain that the whole trouble was caused by her sudden and unnecessary tacking, whereby she so threw herself in the path of the steamer as to make collision inevitable. If, on the other hand, at the time she tacked, there was room for her, by holding her- course, to go clear, but by hesitation, and first luffing, and then falling off, she lost the very short time when she could have safely crossed the steamer’s bow, the fault was still hers.

But we are of opinion that the witnesses in behalf of the steamer are mistaken about the schooner’s luffing and falling off, and that the whole evil was caused by the schooner’s improperly and unnecessarily tacking across the steamer’s bow, and in so close proximity, that she could not be avoided. Decree of the district , court affirmed.