Page:Federal Reporter, 1st Series, Volume 8.djvu/732

 718 FEDEBAIi BEPOBTBB. excnse fornot porting, that it'was impossible for her to do «o because of the presence of a number of vessels coming down the stream at that time. It is true that numerous witnesses, who saw the collision, say that it ■was not possible for the tug, under the circumstances, to bear off towards the middle of the river so as to avoid the ferry-boat. The ;^strength -of this testimony, as evidence of an impossibility to eteer ont on the part of the tug, is, however; greatly shaken by the faot that the bark bore off towards the middle of the river when the ha^ser was caat oflf, and the more important fact that another tug just behind the Baxter did, iu fact, bear off and passed in saf ety astem of the ferry-'boat. But if it be true that thetug-boat, by electing to keep albng the picrs in the eddy-tide, instead of putting herself in the middle of the mer oh passing the battery, as beyond all question she could have safely donebytimely action to that end, placed her- self in a position where shb could do nothingi but keep on across the huw8;©f the ferry-boat at the risk of collision, still she ia guilty of fault, The statute of this state required her to be in the middle of the ri^r from the time of passing the barge office, instead of which «he was^near the piers; aiM this intentionally for the purpose of saving time by taking advantage of the eddy-tide. Such an attempt to pass albng by the mouth of the ferry-slip was illegal, and if, in the prosecution of an illegal undertaking, the tug placed herself in a -position where it was not possible for her to diseharge the dnty cast proaching her course upon her starboard side, she has no cause to coiiiplain of any damage resulting from her disobedience to the law. I have not overlooked the argument based on the testimony in respect to a usage for vessels passing up the East river keeping close to the piers in order to take advantage of the eddy-tide. But no siich usage can be eountenanced; It is forbidden by the law, and must in every instahfce be held illegal by the courts. It would, indeed, be held illegal by the courts: if there were no statute, because of the unneces- .sary dajager of collision created thereby. It isoaid the ferry-boat shoudd have stopped. No doubt this col- lision would have been avoided if the ferry-boat had been stopped in 'time to permit the' Baxter and her tow to pass along inshore of her. But^the rules of navigation gave the ferry-boat the right of way. She had the right, therefore, to assume that the beat would bear off instead of inshore, and the situation required her to act upon that assumption and keep on her course. This sho did, and the resnlt affords good ground for the belief that if the tug-boat had done what
 * upoix her byithe'riles of navigation, namely, to avoid a vessel ap-