The incident happened at night. The vessel being overtaken came off of plane and pulled to the right. If you are going so fast and so close (at night, let's remember) that you, as the overtaking GIVEWAY, vessel do not have enough time to maneuver then by definition you have not acted appropriately.
Of all passing situations, this is the most clear cut rule that the vessel overtaking must maneuver to avoid the possibility of collision. The Stand On vessel never becomes the give way vessel.
See: NavrulesHandbook.com/Rule13.html
See:
http://maritimeknowhow.com/wp-conten...Overtaking.pdf
A change in course by the overtaken vessel shall not make the overtaken vessel a crossing vessel.
Plain and simple. Period.