WOI/VERTON, District Judge.
This controversy grows out of a collision between two river steamboats, the Charles R. Spencer and the Dalles City, plying on the Willamette and Columbia rivers, between Portland and The Dalles. They were opposition boats, and were contesting mainly for the passenger traffic between the points named and at intermediate points along the way. On the morning of May 31, 3905, both boats left their docks out of Portland about the same time, but, in their maneuvers to get through the draws in the Burnside and the Steel bridges, the Dalles City passed out ahead of the Spencer by several lengths, and proceeded dowu the river in that relation, the Spencer gaining gradually on her rival. The Spencer was much the heavier boat, being 180 feet in length, while the Dalles City was but 150 feet. The Spencer was also the faster boat. The Dalles City, however, was equipped with monkey rudders, and could be maneuvered with much greater facility. Both boats at the time were making their best speed, the prime object of each being to make Vancouver first, to get the passengers waiting at that point. The Dalles City pursued her usual course to St. Johns. From there she veered to the westward, taking up her usual course towards Watts’ dock, at which point she changed her course again, proceeding northward, the captain affirms heading for some cottonwood trees down the course. There is some evidence that the Spencer attempted to pass the Dalles City to starboard when they were nearing St. Johns, but did not pursue the effort persistently, as it seemed difficult to cross out of the wake of the Dalles Cit}r. It is quite probable that the Spencer, when near St. Johns, changed her course for Watts’ dock a little before the Dalles City; but each of them from the former point took up the course usually pursued by boats plying the river, the Spencer soon - falling in the rear of the Dalles City. There is some intimation also that, while passing over this course, the Dalles City was jockeying with tlie Spencer; that is, maneuvering from one way to the other so as to impede the Spencer’s efforts to pass. Whether this was true or not cannot, to my mind, affect the result, and only serves, if valuable for any purpose, to throw light upon the probability of the respective movements of the boats later, as they came in collision. Nor is there any serious controversy as to both boats changing upon about the same course at or abreast of Watts’ dock. From that point they pursued, it may be said with persuasion, practically the same course, [864]*864and that usually taken by other boats plying the river. The real controversy comes a little later.
Capt. Scammon, who was at the wheel of the Dalles City, says that his boat passed within about 300 feet of Watts' dock, but that, when the collision occurred, the boats were off the Linnton shore something like 400 feet. As the boats approached nearly abreast of the log .chute of the Linnton mill, the Spencer blew one. whistle, indicating that she intended to pass to starboard of the Dalles City. This was at once an-, swered by the Dalles City with one whistle, indicating her assent. At this time the Spencer was running a little off the port quarter of the Dalles City — a little to the port or Linnton side of her — but at once steered across the wake of the Dalles City, with the evident purpose of passing the latter on her starboard. Capt. Scammon further states that, as soon as he answered the Spencer's signal to pass, she dropped right in astern of the Dalles City, and ran right up behind his boat until she lapped on the starboard a little way, and that the Spencer came right over and hooked onto his guard; that just before the Spencer hooked onto his guard, she blew a danger signal; that he looked back at once, and saw Capt. Spencer, who was at the wheel of the Spencer throw the wheel hard to port, which brought the Spencer over against the fantail of the Dalles City. With this movement, the stern of the Dalles City was carried around, which resulted in reversing her position in her course, with her bow up stream. The bow of the Spencer broke through the Dalles City’s guard rail, and broke off the pitman shaft; both cylinder heads of the engine were blown out, and other damage done. Capt. Scammon describes the contact as taking place a little forward of the shaft in the fantail of his boat, the fantail being about 20 feet in length. The pitman was not broken at once with the contact, however, and not until the Dalles City had been shoved around so that she was lying right across the beam of the Spencer. When the boats were in this position, Scam-mon further relates that the Spencer stopped her wheel, and when the Dalles City swung around with prow upstream, the Spencer steamed down the river, and this without making inquiry as to damage done or the safety of the passengers on the Dalles City. Speaking further on the subject, Scammon says he did not see the Spencer come up on his’ starboard side until she blew the danger signal, and at that time she was just lapping- onto the Dalles City; that she had not struck yet, and was, so far as he could judge, some eight or nine feet away, but had lapped onto his guard about five feet; that the Spencer then dropped over until she touched the Dalles City’s guard, when the captain threw his wheel over, and turned the Dalles City around. Scammon affirms he kept his course constantly after passing Watts’ dock, and after the Spencer gave the passing signal. When the passing signal was given, the Spencer was some 50 or 60 feet behind the Dalles City, and the Dalles City was making near 18 miles per hour.
It is well now to get Capt. Spencer’s side of the story, and what there is of corroboration of either him or Capt. Scammon may be checked up later. When taking his course from St. Johns, Spencer relates that he changed it a little before the regular crossing, and that the Dalles City immediately dropped in ahead of him; that when [865]*865they had gotten just below Watts' dock, seeing that there was not room enough to pass the Dalles City on the Dinnton side, and being-up within 40 or 50 feet of her, he crossed out to the starboard of the Dalles City, beyond her wake, and gave one whistle, which was answered by the assent of the Dalles City; that he was away over on the inside of the Dalles City, and that, as soon as he crossed out, he straightened up his wheel; that, if he had not done so, he would have gone clear across the river; that he steadied his wheel, and immediately the Dalles City turned very quickly around his bow, and Capt. Allyn jumped up and blew the danger signal; that about that time he stopped his boat, but had lapped on the Dalles City’s fantail, and she swung so far, had such a big swing, that when she got crosswise in the current the Spencer cut through her guard; that he rang the bell to stop, but the engineer, not being in his place, as he supposed, did not stop the engine at once; that the Spencer was checked momentarily, but when the Dalles City was reversed in her course, she proceeded on her way. Further defining his position, the captain says:
“Well, I was inside of the Dalles City, or on the Liimton side — to her port side; I had her on my starboard bow, and 1 starboarded my helm to come out across, as X blew the whistle to pass. I gave her considerable wheel to pull her ont of there, and when I did I had no idea the Dalles City was making this turn ahead of me, so I straightened up my wheel in order to go right straight down the river. I would have turned her around towards St. Johns shore if I hadn’t straightened my wheel np. I turned my wheel, and swung her out of that position. Q. Simply straightening her up from your port to her starboard? ,A. After I swung out far enough X naturally straightened my helm so I would run straight down the river, you know.”
On cross-examination the witness continues, as interrogated:
"Q. I would like to have you, if you can, estimate the time that elapsed oetween the time that you whistled to pass her and the time of the collision. A. It could not have been more than five or six seconds. We were right close up inside of her when I crossed her wake, and I whistled when I started to cross. Q. Then you intended to take plenty of room to get,by on what side of her? A. Her starboard side — the St. Johns side. Q. Her starboard side? And you steadied your helm after you had thrown your wheel in position to take you over to starboard? A. I had given my boat considerable wheel and steered out, sheered outside of the Dalles City’s course. Q. Then you straightened her up? A. I had to straighten her up or I would have gone clear across the river. Q. After you gave this passing whistle? A. Yes, just about the time I gave the passing whistle I gave her the helm to straighten her up. Q. And immediately after giving the passing whistle you Mowed the danger whistle? A. Yes, because the Dalles City turned right abruptly right across me. Q. So there was no perceptible time — no great amount of time — you could perceive between the time of blowing the passing whistle and the time yon blew the danger whistle? A. It could not have been more than two or three seconds anyway; I don’t know exactly; you know, of course, it all happened very quickly. Q. When did you stop your engines, Captain? A. I rang to stop, just as I saw we were going to come in collision with them, but the engineer did not stop right away. Q. Oh, your boat did not stop? A. No, the engineer did not immediately answer the hell for some reason. I don’t know why. Q. When did your wheel stop? A. I suppose we made three or four turns after I rang my bell. Q. Were you Into her when the wheel stopped? A. Yes, sir. Q. How far around had she swung at the time the wheel stopped? A. Oh, I suppose she had swung probably a third of the way around. Our momentum, you know, when she turned around there, of course she could not go through the water very fast; we had pretty good speed on and our headway and momentum of the boat cut through the guard. Q. She did not break [866]*866until she got shoved around across the how? A. No; I never broke a thing until she listed down in the water, making the abrupt turn. The whole side was caught in the water. He had swung the Dalles City around so far she could not recover herself. Q. And the force of your boat passing through the water, coming in contact, or nosing the Dalles City around after she had got athwart your stem, broke into her? A. That is what caused the break, yes, sir; it wasn’t at first.”
Capt. Spencer further states that his boat struck the Dalles City’s fantail four or five feet forward of the shaft; that he changed his course about one-eighth, but that the Dalles City changed her course double that, so that she was running at an angle of 45 degrees t'o her previous course when the impact came.
Julius Allyn, a pilot, and at the time master of the Spencer, was in her pilot house reading the morning paper. He says the Spencer cut across the river toward Dinnton; that when the Spencer started, the Dalles City began to swing over that way, too, until the boats got near the shore at Linnton; that witness happened to raise up and look out; that there was not room sufficient for the Spencer to pass between the Dalles City and the shore; that the captain immediately put his wheel over, and swung on the right hand side of the Dalles City, and blew one whistle; that witness looked again, and observed the Dalles City crowding away from the shore off her regular course; whereupon he said t'o the captain, “He is crowding over here too far; we will get in shoal water;” to which the captain replied, “I can’t help it;” that just then witness blew the danger signal, and the Dalles City still kept on her course; that the Spencer struck the Dalles City on the stern, and turned her around; that the Dalles City crowded the Spencer from a distance of 100 to 125 feet from the Linnton shore to about 400 feet away before the boats came together; that the Dalles City was headed pretty well off the Linnton shore, toward the St. Johns shore, at the time, and the Spencer was about the same position, but that the Dalles City crowded so far over that it was impossible for the Spencer to> get clear of her, and the captain stopped her engines— that is, he rang the bell to stop. This was before the contact. There was no time to reverse the engine, and the Spencer was making about 19 miles per hour. The witness thinks that it was a minute or a minute and a half after the danger whistle that the collision occurred.
S. H. Shaver testifies that he was the chief engineer on the steamer Spencer; that just previous to the collision the boat was under a full head bell — full speed bell — and that he received a stopping bell about a second or two after the boats came together; this was a dead-stop bell. He further testified that he saw the boats come together; that prior thereto the Spencer went to starboard to clear the Dalles City; that the Dalles City put her helm to port, and steered directly across the Spencer’s bow; that he did not see fhe captain operate his helm, but he saw the boat sheer over; and that at this time the Spencer was lapped up 25 feet, in his judgment, on the stern of the Dalles City.
Arthur Riggs, a master pilot on the Spencer, was in the cabin at the time. He heard the passing signals, but paid no attention to them, but, on hearing the danger signal, he went outside, on the port side. The Spencer was then approaching the Dalles City, and within six feet of [867]*867her, both boats, in the opinion oí tiie witness, being headed downstream, only the Dalles City was a little across the Spencer’s bow, but he could not say which boat was swinging.
j. H. Barnsley was a passenger, and saw the collision from the upper deck of the Spencer, i le describes the maneuvers as follows:
“As 1 recollect it, sire was oil tlie left hand, side, and our whistle was blown, and this vessel ahead replied, and we kept getting closer and closer, and,the vessel ahead, called the Dalles City, I believe, got right across us like that (showing). * * ⅜ Q. How long alter the whistle was sounded bel'ore your boat changed her position towards the right'/ * ⅜ s A. I do not recollect that our boat changed her position; we seemed to be going straight all the time. Q. Then I will ask yon how long after the whistle was blown before the boat in front changed her position? A. Why, it was not very long, because our whistle blew and their whistle blew, and with that there seemed to be a whole lot going on at once; they turned to the right right after blowing tlie whistle. Q. After the whistle on your boat was blown, the boat that was astern blew her whistle, and the forward boat answered it, immediately thereafter the forward boat changed her position to the right? A. Yes, sir. Q. Across your bow? A. Yes. Q. And your boat you did not notice change its course at all? A. Not that I observed.”
E. C. Thurston witnessed the incident from the St. Johns shore, from’ a mile to a mile and a half away. At first it seemed to him that the boats were nearly on their usual course down the river, then that the Spencer sheered to the right; she had given a signal to pass 6n the right hand, and had the right of way; and that the Dalles City very soon after that seemed to get right across the Spencer’s bow.
Thomas Konkling was on the log boom at Einnton mill. He testified that to him, when the boats came down abreast of tlie old Watts dock, the Dalles City appeared to sheer out to the St. Johns side;. that the boats came within about 300 feet, along there, of the Einnton shore; that the Spencer was on tlie inside, or Einnton side, of the Dalles City; that after the whistle sounded, the Dalles City appeared to sheer towards the St. Johns side, across the bow of the Spencer; that the danger signal was given just a little before the Dalles City shifted. The witness was. probably 1,500 feet away at the time. He testified further, on cross-examination as follows:
“Q. Could you see the bow of the Spencer at the time the danger signal was blown? A. No, sir. Q. But you did notice just about the time the danger signal was blown that the Dalles City suddenly veered oft' and crossed the Silencer’s bow? A. Yes, sir. Q. So for all you know the Spencer at that time was nosing her around? A. Yes, she might have been, for all I know.”
Henry Morgan, who was at Springville at the time, about a mile away from the place of the accident, says, when tlie Spencer blew her danger whistle the Dalles City tried to cut off across ahead of her, and that then she was struck.
O. M. Clark was standing on tlie outer edge of the sawmill dock at Einnton, perhaps 1,000 feet away from the scene of the accident, and relates that when he first noticed the boats they were heading directly for his position; that the Spencer was to the left of the Dalles City looking up the river, and that he could see a dear space between them; that he did not notice them further until just a short time before the collision; that in a few seconds the Dalles City seemed to change her course a little, and then in a second or two quite materially, [868]*868and then in a second or two after that he heard the crash. Then witness proceeds, as questioned:
“Q. Now, you may state to the court whether or not you saw the Dalles Oity change her course before you heard the danger signal? A. She did, yes, sir; she changed her course. Q. In what way did she change her course? A. She changed her course, she would naturally have to change her course a little there to keep in the channel, but she changed her course, not very much, but enough so that I lost sight of the bow of the— Q. Spencer? A. Of the Spencer ; and then I heard the danger whistle, and then she changed her course quite a little and swung quarterways across, and then immediately after I heard the collision. Q. Then, as I understand it, she had changed her course sufficient before you heard the danger signal so as to cut off the bow of the Spencer from your view? A. Yes, sir. Q. In other words, across the bow of the Spencer? A. Yes, sir; she would not have to change it very much, you know, to cut it out, because they were pretty close.”
Witness further states that it all happened in 10 or 12 seconds; that the boats were a trifle below Watts’ dock, and about 300 feet from the Dinnton shore, and that there was plenty of room for the Spencer to have passed on that side..
On the other hand, A. J. Geer, a pilot on the Dalles City, who was in the cabin at the time, testifies that he heard the passing whistles, and then the danger signal, whereupon he passed out upon the starboard side, and saw' the Spencer coming right up behind the Dalles City, almost touching her, and that, as soon as the Spencer came against her, she swung around; that when he went out of the cabin, the Dalles City was headed downstream on her usual course, and that she did not change her course after that of her own accord. On witness’ examination before the inspectors, he was not certain as to how his boat was headed; it might have been a little inshore or a little out.
Thomas Shephard was the mate on the Dalles City, and was on her • lower deck at the time, on her starboard side, about midship. He testifies that, after the boats had changed their course at Watts’ dock, the Spencer blew her whistle to pass, being then on the port side of the Dalles City; that she then dropped right astern of the Dalles City; that the next thing he noticed the Spencer blew her danger whistle, and immediately thereafter the captain put his wheel over to port; that he gave it more than one turn, wdiich was discernible from a napkin tied on the wheel as a mark; that the napkin went around, came up once, and went out of sight again; that this movement of the wheel had the effect to head the boat to port, to throw its bow into the Dalles City; that the Spencer touched the Dalles City somewhere abreast, or a little forward, of the shaft of the Dalles City, and started to swing the latter boat; that about the time the Dalles City got around nearly across the stream, the Spencer broke through the guard, and broke off the pitman, and the cylinder head went through, and that, about the time the Dalles City was turned around, witness heard the Spencer give the bell to stop, and some five or six seconds thereafter she gave another bell to go ahead, and proceeded down the river; that the Dalles City did not change her course materially after she was put on her course at Watts’ dock, but that she began to swing as soon as she was struck by the Spencer.
E. H. Carlton, a merchant from Portland, who was a passenger on [869]*869the Dalles City, testifies that, at the time of the collision, he was standing on the deck, on the starboard side; that he saw the Spencer coming up from the starboard side of the Dalles City; that she was gaining on the latter boat, and was probably within the neighborhood of 20 feet distant, and he thought she was going right on by, but that, in a very few moment's afterward, the Spencer apparently turned towards the stern of the Dalles City, and struck her just forward of the end of the wheel, which swung her around; that the Spencer went on; that the Dalles City did not change her course from the time that he saw the Spencer on her starboard side.
J. W. Bellew was the chief engineer on the Dalles City. He testifies that, when he heard the passing signals, he stepped over to- the door and saw the Spencer about a boat’s length astern of the Dalles City; that just after that the Spencer gave the danger signal, when she -was behind the Dalles City and a little to her starboard, but had not yet lapped upon her; that at this time witness went to liis post at the throttle, where lie remained until after the collision; that when the Spencer lapped on the Dalles City, supposedly 10 or 12 feet, she hit the Dalles City on the guard, and turned her around; that the Dalles City had not been swinging before the contact, as lie noticed.
C. H. Burt, the assistant engineer on the Dalles City, testified as follows:
“Q. Did you licar tlie signal for Hie Spencer to pass tlie Dalles City? A. Yes. I hoard him blow one whistle. Q. And where was he then, if you know? A. I was inside the cabin at that time, hut I went outside. Q. Where was he when you went outside? A. He seemed to.be crossing our stern. Q. In what direction? A. He was crossing over onto the right-hand side. Q. How near was he to the Dalles City? A. I couldn’t exactly say; he seemed to be quite a hit astern, about a length or something like that. Q. Crossing over to the starboard side? A. Yes. sir. Q. What course did he pursue after that? A. Well. I went back into the cabin then, and 1 heard the danger signal blow and I went out on the starboard side, and he was coming up alongside, and 1 saw Captain Spencer put his wheel over, and she struck. * * s Q. Now, w!,;if 1 ask you to state is this: What was the position of the Spencer inune-diaiely after the danger (Whistle when you went out again? A. Well, she was over on this side then coming up like this on the starboard side of the Dalles City. Q. How far was she from tlie Dalles City — how many feet? A. Well, I couldn’t say just exactly, she was pretty close anyhow. Q. And what was the position of the two boats as to tlieir direction or as to being parallel in the river then? A. Wei!, that is just about the way they were running, practically running in a parallel position. Q. Now, what did yon say you saw Capt. Spencer do to his wheel? A. I saw him put his wheel over to port. Q. What effect did that have on the Spencer? A. That throwed her against the Dalles City. Q. Place them in the posilion they were in after.Spencer put the wheel over. A. She was right in against her then after he put her wheel over — that is, the port bow of the Spencer was against tlie starboard quarter of the Dalles Oily. Q. Well, .what was the effect of that contact? A. She crashed into the Dalles City and disabled her. Q. What was the immediate effect upon the direction of the Dalles City? A. That throwed her around— throwed her around and listed her over. Q. How far around did it throw her? A. Throwed her around with her stern downstream. * ⅜ * Q. How much did the wheel go over? A. I don’t, know how much it went over. Q. Go over one spoke? A. No, it went over a whole turn. Q. You know that distinctly because you saw it and watched it go over? A. Yes, sir.”
Upon a survey of this testimony, it will be seen that the real issue in the case upon the facts is whether the Spencer was at fault in at[870]*870tempting to pass so near the Dalles City as not to avoid contact therewith, and in this relation, also, whether she ported her wheel while in close proximity to the Dalles City, and thus brought herself into collision with the Dalles City; or whether the Dalles City was at fault in crossing the course of the Spencer after the passing signals had been given. Both boats kept practically the usual course as thejr passed St. Johns and Watts’ dock. It was after they straightened up on the latter course that the collision occurred.
It would seem, from the weight of the testimony, that on passing Watts’ dock the boats were off the Binnton shore approximately 300 feet, and that when they came in contact they were still further off— possibly 400 feet. • If such were the case, the Spencer had a clear way to pass on the port of the Dalles City. But this point I deem to be immaterial, as the Spencer had the undoubted right to choose her own course in passing the boat ahead, and it was perfectly legitimate for her to pass to the starboard. Indeed, much the greater navigable water space was upon that side, and the room was more than ample for her to have passed in safety. There is little doubt that, just prior to the maneuver on the part of the Spencer to pass, she was proceeding on her course a little to the port, but some 50 or 60 feet in the rearvof the Dalles City. The first attempt on the part of Capt. Spencer to pass was to head across the wake of the Dalles City, diagonally, of course, the Spencer moving at a more rapid pace than the Dalles City. At about this time the captain gave the passing signal, which was promptly assented to by the Dalles City. When the Spencer had crossed practically to the starboard quarter of the Dalles City, and had approached much nearer to the Dalles City, she gave the danger signal. This signal was given very soon after the whistle to pass. Captain Spencer thinks it was only a few seconds, and that the collision followed very shortly. Allyn thinks a minute or two, and that it was as much as a minute, or more, thereafter until the boats collided. Three witnesses testify, all of whom were in a position to observe the movement, that, at about the time the danger signal was given, Capt. Spencer threw his wheel hard to port, which had the effect to carry his boat to port, thus bringing her more nearly in towards the Dalles City. Capt. Spencer does not deny that he ported his wheel, but says that it was merely for the purpose of straightening his boat up on her course, and that if he had not done so, his boat would have circled to the St. Johns shore. There is little doubt that at this time the Spencer was very close to the Dalles City, within a few feet' of her, and possibly had lapped upon her stern guard. If, in the meanwhile, the Dalles City changed her course abruptly across the bow of the Spencer, that is, subsequently to the giving of the passing signal, the movement would adequately account for the boats coming into such near relation. But was such the case ? It is more in consonance with the weight of the testimony to believe that Capt. Spencer did more than to straighten up his boat on her course. He threw his wheel hard to port, according to these witnesses who saw the maneuver, which had the effect to bring his boat rapidly around, and the contact was almost instant. One witness says that the danger signal was given before the wheel was pórted. If such were the case, it must have been fully ap[871]*871parent to Capt. Spencer that any porting of his wheel would necessarily bring on the collision. Several witnesses testify that the Dalles City did sheer abruptly across the Spencer’s bow. Some of these were looking from the Spencer; others from points on shore. Upon the other hand, the captain of the Dalles City says he kept his course, and several witnesses corroborate hitn in this. These were persons looking from the decks of the Dalles City. There is some difficulty, seemingly, to persons standing upon a vessel’s deck, in determining with •accuracy whether that or an approaching vessel is changing her course. Hut there is one fact in the case which is a demonstration as to the particular controversy, and that is a fact upon which all seem to agree. The Spencer, when she had done with completely reversing the Dalles City’s course, was directly upon her own course heading down the river. If it be that the Spencer had merely straightened up her course, heading past the Dalles City, by porting her wheel, and that the Dalles City had changed her course across the bow of the Spencer, the most natural result of the contact would have been to carry the Spencer’s how further toward the St. Johns shore, culminating iti leaving her in a position diagonal with the ship’s regular course. The contrary was the result. The Spencer was directly upon her course when the thing was all over and she proceeded upon her way. Capt,. Spencer, himself, however, puts the matter beyond doubt, for he says:
“I had her (the Dalles City) on my starboard l)ow, and I starboarded my helm to 'pome out across, as I blew the whistle to pass. X gave her considerable wheel to pull her out of there, and when I did 1 had no idea the Dalles City was making fhis inrn ahead of me, so I straightened up my wheel in order to go right straight down the river. ⅞ * * After I swung out far enough I naturally straightened my helm so I would run straight down the river.”
So that his course down the river had been wholly restored by the porting of his wheel, and he was pressing on under full speed. It is astounding that he should even have righted his course in crossing out of the wake of the Dalles City if the latter boat had changed her course, because nothing could so surety have brought on a collision as such a maneuver. The captain leaves the impression, however, that he did not know that the Dalles City was changing her course. This is hardly creditable to a competent boatman, for it must be supposed that, while passing, he kept his competitor constantly in view so as to pass safely. Furthermore, if the Dalles City had swung across his track, it was j-et his duty to avoid collision, if possible, by slopping his engine and backing his boat. This he did not attempt to do until after the contact, and then it was, of course, too late. He says he rang to stop just as he saw he was going to come into collision with the Dalles City, ./fhe engineer says, to the contrary, that he got the stopping bell about a second or two after the boats came together, and Shephard says the bell was sounded to stop about the time the Dalles City was turned around. So that it is hardly probable that there was any effort to stop the Spencer until after the boats had come into actual contact, when damage could not be averted. I am firmly of the opinion that the Dalles City kept well in her course after the passing signal was given; that, if she changed it at all, it was only slightly, [872]*872and that the sudden change in her course was caused by the contact of the Spencer, which carried her around in spite of herself. The Spencer’s course was reckless, to say the least, if not willful. She ventured tod close to the Dalles City in attempting to pass. The captain did so in order to make his course more direct and save time, and he should have made an effort to check his speed, so as to allow the Dalles City to move out of his way, when he found he was in such close relation to her.’ In these particulars he was grossly at fault. The liability of' the collision must rest' with the Spencer. There was abundant room for her to have kept entirely clear of the Dalles City, and careful navigation would, no doubt, have prevented the accident. The collision is more to be regretted because both boats were carrying passengers, and the lives and persons of innocent people were jeopardized thereby.
It is undoubtedly the duty of a boat in the lead, when a passing signal’ is given by another in the rear and is assented to, to keep steadily on her course. Upon the other’ hand, it is the duty of the ovei-taking vessel to keep out of the way of the one overtaken. These two rules’ comprise all there is of the legal principles involved. The rules are thus stated by Spencer on Marine Collisions, § 69:
“Where two vessels are running in the same direction, one astern of tbd other, the law imposes upon the ione following the obligation of exercising a greater degree of care to avoid collision than is imposed upon the other; the statute requiring every vessel, whether steamship or sailing vessel, when overtaking another, to keep out of the way of the one overtaken.
“The duty of an overtaking vessel to keep out of the way is especially imperative when it is a steamer, as it has control over its motive power, and can promptly and accurately govern her own movements. The duty of avoiding tlie leading ship being imposed by law upon the one following, in case of collision the burden of proof is cast upon the latter to show the prudence of her own conduct, the negligence of the one leading, and that the collision was not caused by fault on her own part.
“Under the rules no subsequent alteration of the position of the vessels can make the one following other than an overtaking vessel, or relieve her from ■the duty of keeping clear of the leading ship until fully past and clear; and it is her duty to take such seasonable precautions as may be necessary to avoid the other, the burden of proof being upon her to show that such precautions were timely and sufficient. While the leading vessel has the right of way, she may not willfully cross the path of the other without forfeiting all right of recovery for collision ensuing therefrom, even though the overtaking vessel be not wholly without fault.”
See, also, The Governor, Fed. Cas. No. 5645; Simpson v. Spreckels (D. C.) 13 Fed. 93; The Mesaba (D. C.) 111 Fed. 215; The Aureole, 113 Fed. 224, 51 C. C. A. 181.
. From these authorities it will be seen that it is not only the duty o'f the overtaking vessel to keep out of the way of the one leading her, but, if collision occur, the burden is cast upon her to show that it occurred without her fault or negligence or bad navigation, but by the negligence of the leading craft. Applying this rule in the present case, the Spencer is clearly liable.
The libelant is entitled to recover for expenditures in the repair of the damages sustained to the Dalles City in the sum of $4,520.03, of which an itemized list is filed separately. To this should be added, for loss of tire use of the boat, $50 per day for 30 days, the length of time which the boat was out of commission, the collision having occurred [873]*873on the 31st day of May, and the repairs being completed on the 30th day of june. I allow tlie per diem upon the basis of the sum required to hire another boat in her place for the time the Dalles City was disabled. The entire amount allowed is $6,030.03.