Page:Federal Reporter, 1st Series, Volume 1.djvu/740

 733 FEDEEAIi REPORTEE. �that there was no such wind as -would be necessary to make this change in the tow, and if there had been the tow, which kept on ail the time, would have grounded or been windbound against the dike long before she reached the end of it. It is evident enough that the reason why, in trying to pass the tail of the tow, the Saratoga came in contact with it, was that there was not space between it and the dike for her to go in there without touching the tow. The evidence is that the water is deep close up to the dike, and if there had been room enough for her to go in there at ail she would have left some space between herself and the tow. �The steamboat's witnesses also say that there was room enough there, but that when she got there they saw the McMahon change her course to the eastward, and that then, for the first time, they saw they could not get by, the diffi- culty being not that they could not pass the tow, but that if they passed the tow they could not afterwarda pass the McMahon. There is not sufficient proof of the alleged change of course on the part of the tug, and if there were, as the same witnesses also say it had not been made long enough to affect the course of the tow, it would seem to furnish nO justification for coming in contact with or so close to the stern of the tow, if there was room enough to avoid it. Upon the whole testimony I think there was not room enough to justify the Saratoga in attempting to pass on the port side of the tow, and that she was chargeable with negligence in getting into the position in which she found herself compelled Buddenly to reverse her engine and baok, while crossing the tail of the tow at a slight angle and close astern of it. �The testimony is that at this point the channel is nar- row, and the swell from the wheels of a steamer is more dan- gerous than at points in the river where the channel is less contracted. There was room enough for her to go down on the starboard hand of the tow, as she did after backing ont, leaving a clear space between thercMof 30 feet or more. Just below this point, also, the river widcns ont, so that, if she could not have safely passed on either side, it was her duty to wait till they reached a point in the river where she could ��� �