LACOMBE, Circuit Judge.
The collision occurred on November-22, 1906, about 11 a. m. The sun was shining brightly, and there was a fresh breeze from about N. W. by W. The tide was first half of the flood. The Neville had been lying at anchor in the Lower Bay of New York for several days. West Bank Light bore about N. E. by E. from her one mile away, and she was a little over half a mile from the westerly boundary of the Main Ship channel. Having concluded to get under way, she set three head sails and broke out the anchor, turned around on her heel, and started off directly before the wind to go down the Swash channel for the entrance to which she headed. Having only three head sails set, her progress was slow, about 3 to 3% knots through the water or 2 knots over the bottom. The mate and crew were engaged setting the mizzen sail, but it was not fully hoisted at the time of collision. These facts are undisputed. About this time three large steamers, La Savoie, the Friedrich der Grosse, and the Amerika were coming down the channel, but the Savoie was so far in advance of the others that her presence was not a factor in the situation. As to the relative positions of the schooner and the other vessels the testimony is conflicting. The master of the schooner was the only one on board of her who observed what was going on, the mate and the crew being busy with the sails. He asserted repeatedly that the Friedrich-der Grosse and the Amerika both crossed his bows. The mate and one of the crew corroborate him. The testimony of wholly disinterested witnesses, however, is so overwhelmingly to the contrary that we not only discredit these statements from the schooner, but are inclined to extend some measure of discredit to other parts of their testimony. It is conclusively established that the schooner entered the Main Ship channel, passing the line of buoys which mark its western boundary, astern of the Friedrich der Grosse and across the bows of the Amerika. She proceeded on towards' the Swash chánnel, and, when close to the red and black buoy at the junction of that channel with the Main Ship channel, came into collision with the Main, which was upward bound and keeping well over to the eastern side of such channel.
The District Judge found the schooner free from fault because she kept her course and speed and held the Main in fault because she did not stop and reduce speed and come to a full stop if necessary, instead of undertaking fi> cross the bows of the schooner.
The District Judge found that the steamer came up the channel “at full speed, 14 or 15 miles an hour.” This finding is criticised; it being contended that the weight of testimony indicates that the speed was 10 or 11 knots. We.do not think the difference material. At the lower speed it was still practicable to reduce sufficiently to allow the schooner to cross without rendering, the Main unmanageable or inter[89]*89fering with her navigation relative to the outgoing steamers which she was encountering in a narrow channel, provided her navigators had taken the schooner into consideration as a navigating unit to be cared for a reasonable time before the intersection of their respective courses was reached. That is the only point in the navigation of the Main, which we need consider.
Bearing in mind the relative positions of the vessels as above set forth, it is apparent that for a certain period of time the Friedrich der Grosse, 525 feet long, hid the schooner from the viqw of those on the Main; but, as she was going 13% knots and the Main, concededly, 11 knots, the period of occultation is one to be counted by seconds. On the bridge of the Main were her captain, the Sandy Hook pilot, Beebe, the Senior Second Officer Scheidling, Quartermaster Prins, Second Officer Arndt. No report of the presence of the schooner was made to the pilot or captain, either by a hail from a lookout forward or by the suggestion of any one on the bridge, before she appeared under the stern of the Friedrich der Grosse. The pilot was naturally giving his attention to the three steamers coming down, and did not look over to anchorage ground to see if any of the vessels there were making preparation to get under way. He' first saw the Neville when she came out underneath the stern of the Friedrich der Grosse, the Main at the time just lapping the latter. He estimated her distance off at 1,500 feet, and at once began to navigate with reference to her. The captain first saw the schooner when the Friedrich der Grosse had passed. She was inside the line of black buoys, came out just behind the Friedrich, and drove across the channel. He said to the pilot, “T think that schooner comes here,” to which the latter at first replied: “No; he is at anchor,” but quickly reached the same conclusion as the captain, and said, “We can do nothing only put the helm hard aport and give him a signal,” which was done. The captain makes the distance between place of sighting and place of collision much less than the pilot does. The first officer did not see the schooner till just before collision. The quartermaster first noticed her about 300 metres away. Arndt, the second officer, says that, when he first noticed the Neville in motion, she came out from the stern of the Friedrich der Grosse. Before the Main passed the latter steamer he saw a schooner, which he thinks is the one collided with, to the west of the main channel lying in a position not dangerous to his vessel “about heaving up anchor or making some other manoeuvres.” He could not remember whether she had sails set or not. From that time until she emerged from under the stern of the Friedrich der Grosse he did not observe her. This witness was attending to the engine telegraph. Scheidling, senior second officer, who was lookout on the bridge, says that after Ra Savoie went by “on the west side of the main channel, out of the channel, was a schooner apparently at anchor. At least I didn’t notice that she was under way. .When we had passed the Friedrich der Grosse, we suddenly saw that the schooner was under way and made headway.” He estimates that she was a mile and a half up when he first noticed her. She was then carrying three foresails. He looked at her through glasses, could not notice that she was making headway for which reason he did not draw the pilot’s attention to her, and thought maybe [90]*90she was drying her sails. We cannot find in the record any further observation of the schooner until she surprised the captain and pilot of the Main by suddenly coming into view under the stern of the Friedrich. If they had known before the Friedrich passed between their vessel and the schooner that the latter was under way headed across the channel they could have so' navigated their vessel as to avoid collision, if the schooner held her course and speed as all the witnesses conceded she did.
Upon the evidence above set forth, we are satisfied that the Main was in fault for Hot sooner observing that the Neville was navigating on a course which, if maintained, would intersect their own. We cannot say whether Arndt or Scheidling first saw the schooner, nor does the latter say how she was he'ading when he looked at her through the glasses. It may fairly be presumed that she had not yet turned around, otherwise he would hardly have conjectured that she was at anchor drying her sails. It would certainly be an odd experience to see a vessel lying at anchor with three foresails set, heading S. E. when a fresh breeze was blowing from the N. W.
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LACOMBE, Circuit Judge.
The collision occurred on November-22, 1906, about 11 a. m. The sun was shining brightly, and there was a fresh breeze from about N. W. by W. The tide was first half of the flood. The Neville had been lying at anchor in the Lower Bay of New York for several days. West Bank Light bore about N. E. by E. from her one mile away, and she was a little over half a mile from the westerly boundary of the Main Ship channel. Having concluded to get under way, she set three head sails and broke out the anchor, turned around on her heel, and started off directly before the wind to go down the Swash channel for the entrance to which she headed. Having only three head sails set, her progress was slow, about 3 to 3% knots through the water or 2 knots over the bottom. The mate and crew were engaged setting the mizzen sail, but it was not fully hoisted at the time of collision. These facts are undisputed. About this time three large steamers, La Savoie, the Friedrich der Grosse, and the Amerika were coming down the channel, but the Savoie was so far in advance of the others that her presence was not a factor in the situation. As to the relative positions of the schooner and the other vessels the testimony is conflicting. The master of the schooner was the only one on board of her who observed what was going on, the mate and the crew being busy with the sails. He asserted repeatedly that the Friedrich-der Grosse and the Amerika both crossed his bows. The mate and one of the crew corroborate him. The testimony of wholly disinterested witnesses, however, is so overwhelmingly to the contrary that we not only discredit these statements from the schooner, but are inclined to extend some measure of discredit to other parts of their testimony. It is conclusively established that the schooner entered the Main Ship channel, passing the line of buoys which mark its western boundary, astern of the Friedrich der Grosse and across the bows of the Amerika. She proceeded on towards' the Swash chánnel, and, when close to the red and black buoy at the junction of that channel with the Main Ship channel, came into collision with the Main, which was upward bound and keeping well over to the eastern side of such channel.
The District Judge found the schooner free from fault because she kept her course and speed and held the Main in fault because she did not stop and reduce speed and come to a full stop if necessary, instead of undertaking fi> cross the bows of the schooner.
The District Judge found that the steamer came up the channel “at full speed, 14 or 15 miles an hour.” This finding is criticised; it being contended that the weight of testimony indicates that the speed was 10 or 11 knots. We.do not think the difference material. At the lower speed it was still practicable to reduce sufficiently to allow the schooner to cross without rendering, the Main unmanageable or inter[89]*89fering with her navigation relative to the outgoing steamers which she was encountering in a narrow channel, provided her navigators had taken the schooner into consideration as a navigating unit to be cared for a reasonable time before the intersection of their respective courses was reached. That is the only point in the navigation of the Main, which we need consider.
Bearing in mind the relative positions of the vessels as above set forth, it is apparent that for a certain period of time the Friedrich der Grosse, 525 feet long, hid the schooner from the viqw of those on the Main; but, as she was going 13% knots and the Main, concededly, 11 knots, the period of occultation is one to be counted by seconds. On the bridge of the Main were her captain, the Sandy Hook pilot, Beebe, the Senior Second Officer Scheidling, Quartermaster Prins, Second Officer Arndt. No report of the presence of the schooner was made to the pilot or captain, either by a hail from a lookout forward or by the suggestion of any one on the bridge, before she appeared under the stern of the Friedrich der Grosse. The pilot was naturally giving his attention to the three steamers coming down, and did not look over to anchorage ground to see if any of the vessels there were making preparation to get under way. He' first saw the Neville when she came out underneath the stern of the Friedrich der Grosse, the Main at the time just lapping the latter. He estimated her distance off at 1,500 feet, and at once began to navigate with reference to her. The captain first saw the schooner when the Friedrich der Grosse had passed. She was inside the line of black buoys, came out just behind the Friedrich, and drove across the channel. He said to the pilot, “T think that schooner comes here,” to which the latter at first replied: “No; he is at anchor,” but quickly reached the same conclusion as the captain, and said, “We can do nothing only put the helm hard aport and give him a signal,” which was done. The captain makes the distance between place of sighting and place of collision much less than the pilot does. The first officer did not see the schooner till just before collision. The quartermaster first noticed her about 300 metres away. Arndt, the second officer, says that, when he first noticed the Neville in motion, she came out from the stern of the Friedrich der Grosse. Before the Main passed the latter steamer he saw a schooner, which he thinks is the one collided with, to the west of the main channel lying in a position not dangerous to his vessel “about heaving up anchor or making some other manoeuvres.” He could not remember whether she had sails set or not. From that time until she emerged from under the stern of the Friedrich der Grosse he did not observe her. This witness was attending to the engine telegraph. Scheidling, senior second officer, who was lookout on the bridge, says that after Ra Savoie went by “on the west side of the main channel, out of the channel, was a schooner apparently at anchor. At least I didn’t notice that she was under way. .When we had passed the Friedrich der Grosse, we suddenly saw that the schooner was under way and made headway.” He estimates that she was a mile and a half up when he first noticed her. She was then carrying three foresails. He looked at her through glasses, could not notice that she was making headway for which reason he did not draw the pilot’s attention to her, and thought maybe [90]*90she was drying her sails. We cannot find in the record any further observation of the schooner until she surprised the captain and pilot of the Main by suddenly coming into view under the stern of the Friedrich. If they had known before the Friedrich passed between their vessel and the schooner that the latter was under way headed across the channel they could have so' navigated their vessel as to avoid collision, if the schooner held her course and speed as all the witnesses conceded she did.
Upon the evidence above set forth, we are satisfied that the Main was in fault for Hot sooner observing that the Neville was navigating on a course which, if maintained, would intersect their own. We cannot say whether Arndt or Scheidling first saw the schooner, nor does the latter say how she was he'ading when he looked at her through the glasses. It may fairly be presumed that she had not yet turned around, otherwise he would hardly have conjectured that she was at anchor drying her sails. It would certainly be an odd experience to see a vessel lying at anchor with three foresails set, heading S. E. when a fresh breeze was blowing from the N. W. But conceding that when Arndt and Scheidling first saw the schooner she was at anchor or at least- had not yet swung around , on her course, and was a mile and a half up, as Scheidling says, nevertheless, some one should have looked again to see if there was any vessel navigating to the west of the channel before the Friedrich der Grosse cut off the view in that direction. Had such an observation been made, it would have disclosed the true situation, as the testimony from the Friedrich conclusively shows. The schooner’s course intersected the channel at an obtuse angle. The Friedrich was approaching that course from the north, the Main from- the south. Manifestly until the Friedrich got abreast of the Neville there was nothing to hide the latter from a lookout on the Main, for, as Scheidling says, La Savoie had passed before he first saw the schooner. Any one looking from the Main towards the schooner during the time intervening before the advent of the Fried-rich would have seen what those on the latter vessel saw. The captain of the Friedrich says he first saw the schooner ahead on his starboard bow about three or four points, that he saw she was already under way on a southerly course with three foresails set, and making as he estimated three or four knots an hour. We are satisfied that, if a careful lookout had been kept on the Main, her watch officers would have seen that the Neville was under way on a course to intersect their own, before the Friedrich passed between them. There is nothing in the record to show that the pilot, if then notified of the schooner’s presence, could not have avoided her without difficulty. Indeed, he practically admitted on cross-examination that with the Eastern half of the channel free (as the evidence shows it was) there would have been no trouble in avoiding the schooner if he had seen her in motion headed to cross the channel before the Friedrich shut her out. We therefore find the Main in fault for not maintaining a sufficient lookout.
The navigation of the schooner remains to be considered. All concede that from the beginning to the end she maintáined her course and speed. Her captain was her only lookout, but, as will be seen from [91]*91our subsequent discussion of the main charge of fault made against her, that circumstance in no way contributed to the collision. It is charged that she was navigating with an insufficient number of sails. She hoisted her foresails only at the outset because it was necessary to make her turn without forereaching in order to avoid other vessels anchored near her. This was an entirely proper proceeding, and we are not satisfied that, after she had laid her course, she' was unduly slow in hoisting her mizzen sail. Certainly she maintained her course and speed without it, which was what the rule required. If she had had more sail on, she would have crossed ahead of the Main; if less sail, she would not have reached the intersection until after the Main had passed, but we find nothing in the circumstances which would require her to depart from the wholesome rule as to course and speed to port her helm and try to pass under the stern of the Main. The principal charge of fault is that she initiated the train of causes which brought about the collision by undertaking to cross the channel at an improper time, viz., when there were three steamers coming down and one going up.
The Main Ship Channel is not a wide one, and the large deep draught ocean steamers who have to navigate in it on their way in and out of this port take up a considerable part of its width when passing each other at a safe distance. When there are several of them in the channel at the same time under certain conditions of wind and tide, there is great difficulty in successfully executing manoeuvres necessary to avoid collision with some vessel crossing the channel and consequent risk of collision with some other vessel already there. In reaching the conclusion hereinafter set forth, we are not to be understood as holding that the rule directing a sailing vessel encountering steamers to keep her course will always excuse her for driving across such channel when it is already so crowded with unwieldy vessels that her presence would seriously embarrass navigation therein. Cases may be conceived where we should have to condemn a sailing'vessel for thus unnecessarily embarrassing the navigation of other vessels. But we do not think the situation presented here was so embarrassing as appellant’s counsel contends. Of the three steamers outward bound Ra Savoie passed before the schooner got under way. The evidence from all sides abundantly corroborates the statement of the master of the schooner to that effect. Although as usual there is conflict in the estimates of distances, it seems quite clear that the Tried-rich der Grosse and the Amerika were at least a mile apart. The evidence from the Friedrich shows that it was plain to all on board of her that she would pass before the Neville could reach the channel. We have then merely the case of a sailing vessel crossing the channel between two steamers a mile apart when a third steamer is coming up on the eastern side of the channel, this on a bright clear day when the movements of all vessels could be seen while they were yet a great way off. Her continuance on her course made it necessary for these two steamers to manoeuvre so as not to collide with her, but they were warned of her movements (or could have been warned if they had watched) sufficiently long in advance to enable them so to manoeuvre without substantial embarrassment to their navigation. The Amerika [92]*92saw her over a mile away and avoided collision by porting a little and stopping her engines, but that was because at first the pilot thought he could pass ahead of her, and so did not manoeuvre to let her’pass ahead of him till he had got quite close. He could equally well have avoided her by reducing his speed sooner. The Main should have seen her at a sufficient distance to have avoided collision by a mere reduction- of speed which would not have embarrassed her navigation. We cannot therefore find the Neville in fault for initiating a manoeu-vre which interfered improperly with the navigation of other vessels in the channel, and, since she kept her own course and speed, we concur with the District Judge in the conclusion that the Main was solely in fault.
The decree is affirmed, with interest and costs