Page:Federal Reporter, 1st Series, Volume 7.djvu/266

 ■ 254 FBDEBAL EBPOBTEB. �witnesses testifying within 10 minutes and othersafter an hour — she went down to the bottom, carrying with her one of her crew (Frank Smith) who had returned to the sinking vessel for the purpose'of detaching her from the Maria & Elizabeth. �It is perfectly clear that the collision was the resuit of faulty navigation. There was no severe stress of weather which affords any reasonable excuse for its occurrence. It can only be accounted for on the ground that one party or the other, or both, violated those fundamental rules of navigation which have been so long established for the safety of the sea, and many of which have become a part of the laws of the United States by express enactment of the legislature. �The proctor for the libellant claims that the case is one where the vessels were approaching each other, — the Maria & Elizabeth sailing with the wind free, and the Achoru close-hauled, — and that the rule of the sea in all such cases is that the ship sailing free must get out of the way of the one close-hauled. This bas doubtless been the law for many years, and bas now been incorporated in the sailing rules of navigation adopted by congress for the prevention of collis- ions. It appears as the exception of the seventeenth rule, (see Eev. St. § 4233.) Handaysyde v. Wilson, 3 Car. & P. 528; 1 Par. Ship. & Ad. 195; The Clement, 2 Curt. 363; St. John \. Payne, 10 How. 557; The Ossio, 8 Ben. 518; The Eebecca, 1 Blatchf. & H. 347. In this last case Judge Betts says: �" A cardinal rule of navigation, recognized by eniinent authorities, is that a vessel running free, and approaching another going in an oppo- site direction in the wind, must give way to the latter, or bear the conse- quences of a colHson, unless such collision be clearly produced by the misfeasance of the vessel that is close-hauled." �The same learned judge subsequently {The Brig Emily, �Olcott, 138) said : �" The rule of law is explicit that a vessel ruuning with the wind free must take the risk of avoiding another sailing in the wind, when the two meet in opposite courses, if the free vessel has the opportunity and means, if properly used, of so doing. Indeed, the usage for the vessel to hold her course, and for the one sailing free to give way in such case, has be- come a rule of law which imposes the losses and damage occasioned by ��� �