Such a case is always one of special circumstances, for the assumption is that the vessel had just left her slip and was preparing to straighten to get on her course. The Servia, 149 U.S. 144, 13 S. Ct. 817, 37 L. Ed. 681; The John Rugge (C.C.A.) 234 F. 861. What is to be regarded as reasonable and prudent navigation in each situation depends on the lawful customs of vessels, as well as upon special conditions of wind and tide and passing traffic.

The Victory's witnesses testified to starboarding for two or three schooners, who were near the point of collision, and this would account for her sheer to port, as observed on the Plymothian, when she took her precautions for safety. Each of these vessels was entitled to presume that the other would act lawfully; would keep to her own side; if temporarily crowded out of her course, would return to it as soon as possible; and that she would pursue the customary track of vessels in the channel, regulating her action so as to avoid danger. The Servia, 149 U.S. 144; The City of New York, 147 U.S. 72; Belden v. Chase, 150 U.S. 674. The rule applicable to them was that each should keep to her own starboard side of the channel.

"The statutory steering and sailing rules . . . have little application to a vessel backing out of a slip before taking her course, but the case is rather one of `special circumstances' under rule or article 24, requiring each vessel to watch, and be guided by, the movements of the other." THE SERVIA, 149 U.S. 144, 13 S.Ct. 817, 822, 37 L.Ed. 681 (1893). We have stated that this doctrine extends to vessels in the process of docking.

Henry Du Bois Sons Co. v. A/S Ivarans Rederi, 2 Cir., 116 F.2d 492; James McWilliams Blue Line, Inc. v. Card Towing Line, Inc., 2 Cir., 168 F.2d 720; National Motorship Corporation v. United States, 2 Cir., 171 F.2d 413. The Servia, 149 U.S. 144, 156, 13 S.Ct. 817, 37 L.Ed. 681; The William A. Jamison, 2 Cir., 241 F. 950; The James A. McKenna, 2 Cir., 25 F.2d 639; Great Lakes Dredge Dock Co. v. The Santiago, 2 Cir., 155 F.2d 148. Moreover, The Port Adelaide was guilty of the separate fault of keeping a slack lookout, else she would not have got 1000 feet from the shore before anyone on board made out The Julesburg. That fault imposed upon her the same burden of proof as does the breach of a statutory rule; and we cannot say of either of the faults that it could not have contributed to the collision.

The William A. Jamison, 2 Cir., 241 F. 950, 951; The Washington, 2 Cir., 241 F. 952, 953; The Transfer No. 17, 2 Cir., 254 F. 673, 674; The James A. McKenna, 2 Cir., 25 F.2d 639, 640; The Cherokee, 2 Cir., 70 F.2d 316, 317; The Transfer No. 18, 2 Cir., 74 F.2d 256, 257; cf. Commonwealth Dominion Line v. United States, 2 Cir., 20 F.2d 729, 731. Articles 27 and 29, 33 U.S.C.A. §§ 212 and 221; The Servia, 149 U.S. 144, 156, 13 S.Ct. 817, 37 L.Ed. 681, and the cases cited in the preceding note. We find it difficult to conceive of more imprudent navigation than that of the Dupont.

It is in reliance upon these articles that the appellants maintain that the Telde was neither the privileged vessel nor free from fault. In the case of The Servia, 149 U.S. 144, 13 S.Ct. 817, 822, 37 L.Ed. 681, decided on April 24, 1893, the court held: "The statutory steering and sailing rules before referred to have little application to a vessel backing out of a slip before taking her course, but the case is rather one of `special circumstances,' under rule or article 24 [present Article 27], requiring each vessel to watch, and be guided by, the movements of the other." In that case, however, the vessel, which would otherwise have been the privileged vessel, precipitated the collision because of inexcusable delay in observing her own practice which she had indicated that she had intended to follow.

In such circumstances it has been frequently held that the case is one of special circumstances, and the emerging vessel and a tow going up or down the river must proceed with "due regard * * * to all dangers of navigation and collision." Article 27, Inland Rules; The Servia, 149 U.S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The Olympic (C.C.A.) 27 F.2d 788. It is a case of special circumstances, whether an emerging vessel has backed from her slip and is getting on her course, as was the situation dealt with in the foregoing decisions, or whether she has left her dock, bow first, as in the case at bar. The El Valle (C.C.A.) 25 F.2d 619; The William A. Jamison (C.C.A.) 241 F. 950; The John Rugge (C.C.A.) 234 F. 861.

She had the right to rely on the agreement, and the apparent ability of the Gramercy to make a safe port to port passing and was not called upon to navigate on the assumption that the tug would be negligent and create the unnecessary risk of collision. See Lake Erie Transp. Co. v. Gilchrist Transp. Co. (C.C.A.) 142 F. 89; The Victory, 168 U.S. 410, 18 S. Ct. 149, 42 L. Ed. 519; Belden v. Chase, 150 U.S. 674, 14 S. Ct. 264, 37 L. Ed. 1218; The Servia, 149 U.S. 144, 13 S. Ct. 817, 37 L. Ed. 681. Despite serious doubt as to whether the appellant was entitled on the pleadings to a review of the issues presented, we have considered them and agree with the District Court that the Gramercy was solely at fault. It is now urged that the District Court was in error in allowing the owner of the grain on the Elizabeth Jordan to recover the freight paid for the voyage and the cost of transshipment at Buffalo on the ground that the shipper voluntarily terminated the voyage and discharged the carrier from liability.

While there is testimony that she did, most of it is from interested witnesses, and the rest from masters of small vessels, who are, we suspect, quite naturally hostile to these giants of the sea. The N.Y. Central Tug No. 27 (D.C.) 298 F. 959, 962. Although a ship may be at fault for a serious departure from what is usual, thus disappointing the reasonable calculations of other masters (The Servia, 149 U.S. 144, 153, 13 S. Ct. 877, 37 L. Ed. 681), there is here little reliable evidence of extravagant backing, and it is most unlikely that it should have occurred. We are content with the court's finding that she was not at fault in this respect.

She had not straightened out her tow for that purpose even when the collision occurred, but was maneuvering to get on her course with her tow still drawn across the river in the path of all oncoming vessels. It was therefore, in all probability, a case of special circumstances. The Servia, 149 U.S. 144, 13 S. Ct. 817, 37 L. Ed. 681; The John Rugge, 234 F. 861. But even if it was an overtaking situation because the McWilliams and her tow were farther down the river than the No. 8 and her floats, the tug was not justified in changing her course from one down along the Brooklyn shore to one across the river without maintaining a lookout and with so little regard for other craft that she did not once see the No. 8 and her floats until they were right upon her. The Illinois, 103 U.S. 298, 26 L. Ed. 562; Long Island R. Co. v. Killien (C.C.A.) 67 F. 365; The Philadelphian (C.C.A.) 61 F. 862. She should have sooner seen the No. 8 and sooner have blown an alarm, and the neglect to do these things contributed to the collision. But the No. 8 was certainly also at fault.