Page:Federal Reporter, 1st Series, Volume 10.djvu/773

 THE D. M. ANTHONY. 761 �to navigation. It could only have occurrerl, therefore, from sotne inexcusable carelessness of one or both vessels. The tug was pro- ceeding slowly, encumbered by an unwieldy tow; the schooner was following more rapidly, in nearly the same course, and with a brcad space for navigation. It is conceded that it was the duty of ihe tug to keep her course, and the duty of the schooner to keep out of the way. The only defence of the schooner is that when she had ap- proached to within ahout 100 yards of the tug, the latter suddenly put her helm to starboard, thus going to port and directly in the way of the schooner's course ; that the schooner, upon the course she had been pursuing, would, but for this change by the tug, have gone clear by some 25 or 60 yards on the port side; that this change by the tug necessitated the schooner's attempt to pass to starboard, which was unsuccessful ; and that the whole fault was therefore on the tug. On the part of the tug it is asserted that she made no change of course whatever, and that the sole fault is in the schooner. �The D. M. Anthony was a three-masted schooner, about 125 feet in length. The night previous she had anchored near Sandy Hook, and on the morning of the 23d was proceeding up the bay, bound for Hoboken, on the North river. From the Narrows her ordinary course would be N. by E. ^ E., and the answer alleges that she kept steadily on her course. The ordinary course of the tug, after round- ing the Eobbins Eeef buoy, would be N. E., and there was no reason for her to vary from it. The wind, according to all the witnesses from the schooner, was variable, from N. W. to W. N. W. ; she was sailing by the wind, close-hauled, upon her port tack; and as, by their testimony, she could keep within four points of the wind, she could easily have made, from the Narrows, her desired course of N. by E. i E. �According to the testimony of those on the tug and tow the wind was variable from N. W. to N. N. W., and the schooner was sailing free just prior to the collision. The captain testified that at half past 8, when in the Narrows close to the easterly shore, he saw the- tug some two or three miles off, upon his port bow, heading a little across his course to the eastward; that his instructions to the wheels- man were to sail by the wind, which was done; that as he approached the tug these instructicns were repeated, directing the schooner to be kept close to the wind and "close at it," in order to pass to wind- ward, and that he would have gone clear but for the change in the course of the tug to port when two or three lengths distant ; that he ��� �