This Court has jurisdiction to review the judgment of the
highest court of a state in an action at common law to recover
damages caused by the collision of two steamers navigating inland
waters over which the United States have admiralty jurisdiction,
when that judgment denies rights claimed by the plaintiff in error
under rules established by statutes of the United States for
preventing collisions, or rights regarding the application of such
rules.
The appellate jurisdiction of this Court over questions national
and international in their nature, arising in an action for a
maritime tort committed upon navigable waters and within admiralty
jurisdiction, cannot be restrained by the mere fact that the party
plaintiff has elected to pursue his common law remedy in a state
court.
In an action at common law for a maritime tort, the admiralty
rule of an equal division of damages in the case of a collision
between two vessels, when both are guilty of faults contributing to
it, does not prevail, but the general rule there is that if both
vessels are culpable in respect of faults operating directly and
immediately to produce the collision, neither can recover damages
for injuries so caused.
A steam pleasure yacht is an "oceangoing steamer," and is not a
"coasting vessel."
A steam pleasure yacht on the inland waters of the United States
is bound, when under way, to carry at the foremast head a bright
white light, on the starboard side a green light, and on the port
side a red light, as prescribed by rule 3 in Rev.Stat. § 4233,
and is not required to carry "in addition thereto a central range
of two white lights," as prescribed by rule 7 of that section for
"coasting steam vessels . . . navigating the bays, lakes, rivers or
other inland waters of the United States," that rule not being
applicable to a steam pleasure yacht.
Regulations established by a board of supervising inspectors
under Rev.Stat. § 4412 "to be observed by all steam vessels in
passing each other" have the force of statutory enactment, are
obligatory from the time when the necessity for precaution begins,
and continue so while the means and opportunity to avoid the danger
remains.
Where a vessel meeting or passing another vessel departs from
the rules laid down by the supervising inspectors and a collision
results, the burden of proof is on it to show that the departure
was made necessary by immediate, impending, and alarming
danger.
Page 150 U. S. 675
Where a vessel has committed a positive breach of statute, she
must not only show that her fault did not probably contribute to a
disaster which followed, but that it could not have done so.
Two steamers on the Hudson River at night were approaching each
other head and head. One gave a short blast from its whistle to
indicate an intention to pass on the port side. The other answered
by a similar blast, and then gave two whistles and changed its
course so as to cross the bow of the first vessel. This resulted in
a collision whereby the second vessel was sunk. An action at law
was brought in a state court by the owners of the sunken vessel
against the owners of the first vessel. On the trial, the court was
asked to instruct the jury that the pilot who first blew the sharp
whistle had the right to determine the coarse which each was to
adopt; that the answer by a single whistle was an acceptance of his
determination; that it then became the duty of the second vessel to
pass the other according to that determination, and that the second
vessel was guilty of negligence in giving the two whistles and in
changing its course. The court refused these instructions and
instructed the jury in substance that they were to determine
whether those in management of the vessels were guilty of
negligence or not, and whether they did or omitted to do that which
persons of ordinary care and prudence ought to have done.
Held:
(1) That in refusing to give the instructions asked for and in
charging in this general way, the obligatory force of the rules of
navigation was substantially ignored.
(2) That the instruction did not put to the jury the question
whether the second vessel was justified in departing from the
rules, which was error.
(3) That the jury should have been told that two vessels
approaching head to head and exchanging the signal of a single
whistle were bound to pursue the course prescribed by the
rules.
(4) And that they should have been farther instructed that if
the first vessel assented to the signal of the two whistles, and
there was an error in the course, it was at the risk of the second
vessel, or at the most, both were in fault, and there could be no
recovery.
This was an action at law brought by William Donahue, owner of
the steamboat
Charlotte Vanderbilt, in the Supreme Court
of the State of New York, against William Belden, owner of the
yacht
Yosemite, for so negligently navigating the yacht as
to run down and sink the steamboat in the Hudson River a little
north of Esopus Meadow lighthouse, and some ninety miles north of
New York City at or about half past nine on the evening of July 14,
1882. Donahue died leaving a will, which was admitted to probate,
and letters
Page 150 U. S. 676
testamentary duly issued thereon to Emory A. Chase and William
J. Hughes, who qualified as executors, and the action was thereupon
revived and continued in their names. There have been three trials.
Upon the first, a verdict was rendered in favor of the plaintiffs
and judgment entered thereon which, on appeal to the general term
of the supreme court, was reversed, and a new trial granted.
Chase v. Belden, 34 Hun. 571. The case having been again
tried, the trial court, proceeding in accordance with the rulings
of the general term, nonsuited the plaintiffs. This judgment was
affirmed by the general term, and upon appeal to the Court of
Appeals, the judgment was reversed, and the cause remanded.
Chase v. Belden, 104 N.Y. 86. The case was then tried a
third time and a verdict rendered in favor of the plaintiffs and
judgment entered thereon for $27,668.28 damages (the value of the
Vanderbilt, with interest) and costs, which was affirmed
at the general term.
Chase v. Belden, 1 N.Y.Supp. 48. An
appeal was thereupon taken to the Court of Appeals, and the
judgment affirmed, the record being: "Judgment affirmed, with
costs. No opinion. All concur, except Gray, J., who reads for
reversal, and judgment affirmed." 117 N.Y. 637. The record here
also shows this memorandum: "No prevailing opinion written. See
mandate at close of this opinion." The dissenting opinion by Gray,
J., is given in the record, and is reported in 22 N.Y. 688. To
review the judgment of the Court of Appeals, this writ of error was
brought.
The following map shows the part of the river where the
collision occurred:
image:a
The
Yosemite was going up, and the
Vanderbilt
down, stream. While the latter was passing between the upper ice
house at Big Rock Point, and the lower ice house at Knickerbocker
wharf, she was headed for a point between Esopus Light and the
shore, and the
Yosemite at the same time, was headed for a
point west of Rhinebeck Bluff. When opposite the lower ice house,
the
Vanderbilt changed her course to the eastward, and
headed for Dinsmore's house. About the same time, the
Yosemite gave the signal of one whistle to the
Vanderbilt, and she answered with one whistle.
Page 150 U. S. 678
After the signals had been thus exchanged, the
Vanderbilt blew two whistles, and followed up this signal
by such a change in her course as brought her head rapidly to the
eastward, until she was in a position almost directly across the
stream, and was struck by the
Yosemite at her forward
gangway, on a line nearly at right angles to her course, with such
force as to cut off her bow and sink her immediately.
Plaintiff alleged that the
Yosemite was negligent in
not having range lights; in that her red and green lights were dim;
in not going to the left or the westward when the
Vanderbilt gave two whistles, announcing her own intention
of going to the left or to the eastward. The
Yosemite
claimed negligence on the part of the
Vanderbilt in that
when the latter was below the upper ice house at Big Rock Point,
and both vessels were showing their red lights to each other, the
Vanderbilt changed her course to the eastward, and headed
for Dinsmore's house, thus throwing herself across the path of the
Yosemite; in that, when the two vessels exchanged signals
of a single whistle, the
Vanderbilt did not comply with
the signal thus given, and go to the right, but continued her
course to the left; in that the
Vanderbilt, having the
Yosemite on her starboard side, failed to keep out of the
latter's way; in that, if the
Vanderbilt was in doubt, she
did not comply with the applicable rule by giving alarm whistles
and slacking up her speed; in that the
Vanderbilt, after
complying with the signal whistle, changed her mind, blew two
whistles, and took a sudden sheer to the left or eastward. It was
admitted that the
Yosemite did not have range lights, and
in this particular the Court of Appeals held that she failed to
comply with the law. It was insisted on behalf of the
Yosemite that her side lights were not dim, and that she
could not go to the left when the two whistles of the
Vanderbilt were heard because it was impossible for her to
change her course at that moment in time to avoid the collision,
and that the
Vanderbilt had no right to blow the two
whistles and go to the left after the interchange of signal
whistles, which determined that each should go to the right. There
was evidence on behalf of the
Vanderbilt tending to show
that after she gave two whistles,
Page 150 U. S. 679
the
Yosemite replied with two whistles; but on behalf
of the
Yosemite, the evidence tended to show that she did
not reply with two whistles, but began to give three whistles, and
the collision occurred before she could do so.
The enrollment of the
Vanderbilt was issued at the port
of Albany, September 25, 1880, in conformity to Title Fifty of the
Revised Statutes, entitled "Regulations of Vessels in Domestic
Commerce," and stated, among other things, that she was built in
1857, was two hundred and seven feet long, and measured 585.74
tons. Her license was issued October 3, 1881, to be employed in the
coasting trade for one year from the date thereof, and no longer.
Her certificate of inspection was to the effect that she was
inspected in the District of Albany July 20, 1881, and that she was
permitted to navigate for one year the waters of the Hudson River
between Albany and New York, touching at intermediate points, a
distance of about one hundred miles and return, or any inland
route. Among the particulars of inspection were enumerated that she
had one watchman and had signal lights.
The
Yosemite had a license under Title Forty-Eight of
the Revised Statutes, entitled "Regulation of Commerce and
Navigation," dated May 27, 1882, describing her as of the burden of
four hundred and eighty-one and fifty one-hundredths tons, used and
employed exclusively as a pleasure vessel, and designed as a model
of naval architecture. She was licensed to proceed from port to
port of the United States and by sea to foreign ports, without
entering or clearing at the custom house, but not allowed to
transport merchandise or carry passengers for pay. This license was
to continue and be in force for one year from the date thereof, or
until the return of the yacht from a foreign port, and no longer.
Her enrollment was under Section 4319, Title Fifty, and bore date
January 20, 1881, and certified that she had two decks and two
masts, that her length was one hundred and eighty-two feet, her
breadth twenty-three and eight-tenths feet, her depth eighteen and
seven-tenths feet, and that she measured as above given. Her
certificate of inspection described her tonnage and
accommodations,
Page 150 U. S. 680
and stated:
"The said vessel is permitted to navigate for one year the
waters of any ocean route between _____ and touching at
intermediate ports, a distance of ___ miles, and return."
Among the particulars, it appeared that she had one watchman and
signal lights.
The yacht was so constructed that she could be propelled by
either the power of steam or sails, or by both, and at the time of
the collision her sails were furled, and she was propelled wholly
by the power of steam. She had left City Island, eighteen miles
from New York, about ten o'clock that forenoon, laid at New York
until about three or four in the afternoon, and then left for
Catskill.
The following are extracts from the Revised Statutes and the
rules of the supervising inspectors:
"
Navigation"
"SEC. 4233. The following rules for preventing collisions on the
water, shall be followed in the navigation of vessels of the navy
and of the mercantile marine of the United States:"
"
Steam and Sail Vessels"
"Rule One. Every steam vessel which is under sail and not under
steam shall be considered a sail vessel, and every steam vessel
which is under steam, whether under sail or not, shall be
considered a steam vessel."
"
Lights"
"Rule Two. The lights mentioned in the following rules, and no
others, shall be carried in all weathers, between sunset and
sunrise."
"Rule Three. All oceangoing steamers, and steamers carrying
sail, shall, when under way, carry --"
"(A) At the foremast-head, a bright white light, of such a
character as to be visible on a dark night, with a clear atmosphere
at a distance of at least five miles, and so constructed as to show
a uniform and unbroken light over an arc of the horizon of twenty
points of the compass, and so fixed as to throw the light ten
points on each side of the vessel, namely,
Page 150 U. S. 681
from right ahead to two points abaft the beam on either
side."
"(B) On the starboard side, a green light, of such a character
as to be visible on a dark night, with a clear atmosphere at a
distance of at least two miles, and so constructed as to show a
uniform and unbroken light over an arc of the horizon of ten points
of the compass, and so fixed as to throw the light from right ahead
to two points abaft the beam on the starboard side."
"(C) On the port side, a red light, of such a character as to be
visible on a dark night, with a clear atmosphere at a distance of
at least two miles, and so constructed as to show a uniform and
unbroken light over an arc of the horizon of ten points of the
compass, and so fixed as to throw the light from right ahead to two
points abaft the beam on the port side."
"The green and red lights shall be fitted with inboard screens,
projecting at least three feet forward from the lights, so as to
prevent them from being seen across the bow."
"Rule Four. Steam vessels, when towing other vessels, shall
carry two bright white mast-head lights vertically, in addition to
their side lights, so as to distinguish them from other steam
vessels. Each of these mast-head lights shall be of the same
character and construction as the mast-head lights prescribed by
rule three."
"Rule Five. All steam vessels, other than oceangoing steamers
and steamers carrying sail, shall when under way, carry on the
starboard and port sides lights of the same character and
construction and in the same position as are prescribed for side
lights by rule three, except in the case provided in rule six."
"Rule Six. River steamers navigating waters flowing into the
Gulf of Mexico and their tributaries shall carry the following
lights, namely: one red light on the outboard side of the port
smoke pipe, and one green light on the outboard side of the
starboard smoke pipe. Such lights shall show both forward and abeam
on their respective sides."
"Rule Seven. All coasting steam vessels, and steam vessels
Page 150 U. S. 682
other than ferry boats and vessels otherwise expressly provided
for, navigating the bays, lakes, rivers, or other inland waters of
the United States, except those mentioned in rule six, shall carry
the red and green lights, as prescribed for oceangoing steamers,
and in addition thereto a central range of two white lights, the
after light being carried at an elevation of at least fifteen feet
above the light at the head of the vessel. The headlight shall be
so constructed as to show a good light through twenty points of the
compass, namely, from right ahead to two points abaft the beam on
either side of the vessel, and the after light so as to show all
around the horizon. The lights for ferry boats shall be regulated
by such rules as the board of supervising inspectors of steam
vessels shall prescribe."
"Rule Eight. Sail vessels, when under way or being towed, shall
carry the same lights as steam vessels under way, with the
exception of the white mast-head lights, which they shall never
carry."
"Rule Nine. Whenever, as in case of small vessels during bad
weather, the green and red lights cannot be fixed, these lights
shall be kept on deck, on their respective sides of the vessel,
ready for instant exhibition,"
etc.
"
Steering and Sailing Rules"
"Rule Eighteen. If two vessels under steam are meeting end on,
or nearly end on, so as to involve risk of collision, the helms of
both shall be put to port, so that each may pass on the port side
of the other."
"Rule Nineteen. If two vessels under steam are crossing so as to
involve risk of collision, the vessel which has the other on her
own starboard side shall keep out of the way of the other."
"Rule Twenty-One. Every steam vessel, when approaching another
vessel, so as to involve risk of collision, shall slacken her speed
or, if necessary, stop and reverse, and every steam vessel shall,
when in a fog, go at a moderate speed."
"Rule Twenty-Three. Where, by rules seventeen, nineteen, twenty,
and twenty-two, one of two vessels shall keep out
Page 150 U. S. 683
of the way, the other shall keep her course, subject to the
qualifications of rule twenty-four."
"Rule Twenty-Four. In construing and obeying these rules, due
regard must be had to all dangers of navigation, and to any special
circumstances which may exist in any particular case rendering a
departure from them necessary in order to avoid immediate
danger."
Section 4214, in Title Forty-Eight, reads:
"The Secretary of the Treasury may case yachts used and employed
exclusively as pleasure vessels, and designed as models of naval
architecture, if entitled to be enrolled as American vessels, to be
licensed on terms which will authorize them to proceed from port to
port of the United States, and by sea to foreign ports, without
entering or clearing at the custom-house. Such license shall be in
such form as the Secretary of the Treasury may prescribe. The owner
of any such vessel, before taking out such license, shall give a
bond, in such form and for such amount as the Secretary of the
Treasury shall prescribe, conditioned that the vessel shall not
engage in any unlawful trade nor in any way violate the revenue
laws of the United States, and shall comply with the laws in all
other respects. Such vessels so enrolled and licensed shall not be
allowed to transport merchandise or carry passengers for pay. Such
vessels shall, in all respects except as above, be subject to the
laws of the United States and shall be liable to seizure and
forfeiture for any violation of the provisions of this title."
By section 4412, it was provided that
"the board of supervising inspectors shall establish such
regulations to be observed by all steam vessels in passing each
other as they shall from time to time deem necessary for
safety."
"Inspectors' Rules and regulations for the government of pilots
navigating seas, gulfs, lakes, bays, sounds, or rivers, except
rivers flowing into the Gulf of Mexico, and their tributaries:"
"Rule 1. -- When steamers are approaching each other
Page 150 U. S. 684
'head and head,' or nearly so, it shall be the duty of each
steamer to pass to the right, or port side of the other, and the
pilot of either steamer may be first in determining to pursue this
course, and thereupon shall give, as a signal of his intention, one
short and distinct blast of his steam whistle, which the pilot of
the other steamer shall answer promptly by a similar blast of his
steam whistle, and thereupon such steamers shall pass to the right,
or port side of each other. But if the course of such steamers is
so far on the starboard of each other as not to be considered by
pilots as meeting 'head and head,' or nearly so, the pilot so first
deciding shall immediately give two short and distinct blasts of
his steam whistle, which the pilot of the other steamer shall
answer promptly by two similar blasts of his steam whistle, and
they shall pass to the left, or on the starboard side, of each
other."
"Note. -- In the night, steamers will be considered as meeting
'head and head' so long as both the colored lights of each are in
view of the other."
"Rule 2. -- When steamers are approaching each other in an
oblique direction (as shown in diagram of the fourth situation),
they shall pass to the right of each other, as if meeting 'head and
head,' or nearly so, and the signals by whistle shall be given and
answered promptly as in that case specified."
"Rule 3. -- If, when steamers are approaching each other, the
pilot of either vessel fails to understand the course or intention
of the other, whether from signals being given or answered
erroneously, or from other causes, the pilot so in doubt shall
immediately signify the same by giving several short and rapid
blasts of the steam whistle, and if the vessels shall have
approached within half a mile of each other, both shall be
immediately slowed to a speed barely sufficient for steerage-way
until the proper signals are given, answered, and understood, or
until the vessels shall have passed each other."
"Rule 4. -- The signals, by the blowing of the steam whistle,
shall be given and answered by pilots, in compliance with these
rules, not only when meeting 'head and head,' or nearly so, but at
all times when passing or meeting at a distance
Page 150 U. S. 685
within half a mile of each other, and whether passing to the
starboard or port."
The first seven rules of section 4233 are given, followed by
diagrams illustrating the working of the system of colored lights
in seven situations of meeting steamers, with observations.
Page 150 U. S. 690
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
We are of opinion that the writ of error was providently
allowed, and that the jurisdiction of this Court is clearly
maintainable.
Plaintiff in error expressly claimed the right, under the
statutes of the United States, to navigate the
Yosemite on
the Hudson with a masthead light and side lights in accordance
Page 150 U. S. 691
with the statutory rules on that subject, and also the right in
such navigation to the application of those rules in certain other
particulars, and if these rights were denied, or either of them,
the jurisdiction attached for the determination of the questions
thus raised. It is of vital importance that these rules should be
interpreted and enforced by the state courts in the same sense that
they are in the courts of the United States. This action was for a
maritime tort committed upon navigable waters, and within the
admiralty jurisdiction, and the appellate jurisdiction of this
Court over questions national and international in their nature
cannot be restrained by the mere fact that the party plaintiff has
elected to pursue his common law remedy in a state court.
The doctrine in admiralty of an equal division of damages in the
case of a collision between two vessels, when both are in fault
contributing to the collision, has long prevailed in England and
this country.
The Max Morris, 137 U. S.
1. But at common law, the general rule is that if both
vessels are culpable in respect of faults operating directly and
immediately to produce the collision, neither can recover damages
for injuries so caused.
Atlee v. Packet
Co., 21 Wall. 389.
In order to maintain his action, the plaintiff was obliged to
establish the negligence of the defendant, and that such negligence
was the sole cause of the injury, or, in other words, he could not
recover, though defendant were negligent, if it appeared that his
own negligence directly contributed to the result complained
of.
(1) The particular fault imputed to the
Yosemite was
that she did not carry the range lights prescribed by rule seven of
the rules of navigation enacted by section 4233 of the Revised
Statutes, and, this fact being admitted, it was ruled as matter of
law that she was therefore guilty of negligence. The correctness of
this ruling depends on whether, upon the true construction and
application of those rules, the
Yosemite came within Rule
7.
Under Rule two, the lights prescribed by the rules, and no
others, are required to be carried in all weathers, between sunset
and sunrise.
Page 150 U. S. 692
By Rule three, "all oceangoing steamers, and steamers carrying
sail, shall, when under way, carry," at the foremast head, a bright
white light, on the starboard side, a green light, on the port
side, a red light, all as described.
By Rule four, "steam vessels, when towing other vessels, shall
carry two bright white masthead lights vertically, in addition to
their side lights," of the same character and construction as the
masthead lights prescribed by Rule 3.
Rule five provided:
"All steam vessels, other than oceangoing steamers and steamers
carrying sail, shall, when under way, carry on the starboard and
port sides lights of the same character and construction, and in
the same position as are prescribed for side lights by rule three,
except in the case provided in Rule 6."
Rule six related to "river steamers navigating waters flowing
into the Gulf of Mexico and their tributaries," and provided that
they should carry the red and green lights on their starboard and
port smoke pipes instead of on their sides.
By Rule eight, said vessels, when under way or being towed, must
carry the same lights as steam vessels under way, but not the white
masthead lights.
By Rule nine, vessels too small to have the green and red lights
fixed upon their starboard and port sides shall have them ready
"for instant exhibition."
Rule seven read:
"All coasting steam vessels, and steam vessels other than ferry
boats, and vessels otherwise expressly provided for, navigating the
bays, lakes, rivers, or other inland waters of the United States,
except those mentioned in rule six, shall carry the red and green
lights as prescribed for oceangoing steamers, and in addition
thereto a central range of two white lights; the after light being
carried at an elevation of at least fifteen feet above the light at
the head of the vessel. The headlight shall be so constructed as to
show a good light through twenty points of the compass, namely,
from right ahead to two points abaft the beam on either side of the
vessel, and the after light so as to show all around the horizon.
The lights for ferry boats shall be regulated by such rules as the
board of supervising inspectors of steam vessels shall prescribe.
"
Page 150 U. S. 693
The manifest object of this rule was the requisition of the
range lights; but out of abundant caution, and notwithstanding the
provisions of Rule 5, the mandate as to the red and green lights is
repeated, and the range lights declared to be "in addition."
The importance attributed to the red and green lights is
apparent throughout these rules, and in the rules and regulations
of the board of supervising inspectors. After diagrams are given in
illustration of the working of the system of such lights, it is
there said that by reference to them,
"it will appear evident that in any situation in which two
vessels may approach each other in the dark, the colored lights
will instantly indicate to both the relative course of each -- that
is, each will know whether the other is approaching directly or
crossing the bows, either to starboard or port. This intimation,
with the signals by whistle, as provided, is all that is required
to enable vessels to pass each other in the darkest night with
almost equal safety as in broad day."
Rule seven applied to coasting steam vessels, and steam vessels
other than ferryboats, and other than vessels otherwise expressly
provide for, navigating inland waters, and excepting the river
steamers mentioned in Rule six.
Steam vessels not otherwise expressly provided for were those
not expressly provided for in the matter of lights other than the
red and green lights. Oceangoing steamers, and steamers carrying
sail, and steam vessels when towing other vessels, were thus
otherwise expressly provided for in Rules three and four. Rule five
related wholly to the red and green lights, and did not expressly
provide for other lights. Mississippi steamers were expressly
excepted from the operation of rule five, because, although they
also carried red and green lights, these lights occupied a
different position than in the instance of other steam vessels, and
Mississippi steamers were also expressly excepted from the
operation of rule seven because, under these rules, they were to
carry only red and green lights, and were therefore not otherwise
expressly provided for in respect of lights other than the red and
green lights. The rules were accurately drawn, and should not
be
Page 150 U. S. 694
deprived of their obvious application by refined
construction.
To repeat: ferry boat lights were to be regulated by the board
of supervising inspectors. All steam vessels were to carry red and
green lights, but differently placed on river steamers navigating
the waters flowing into the Gulf of Mexico. Coasting steam vessels
and steam vessels engaged in inland navigation were governed by
rule seven, and vessels otherwise expressly provided for by the
provisions thus made. And it was expressly provided that in
addition to the green and red lights, steam vessels, when towing
other vessels, should carry two bright white mast-head lights
vertically, and oceangoing steamers and steamers carrying sail
should carry, when under way at the foremast head, a bright white
light, and no others.
It may be added that range lights were originally required by
the statute of New York of 1826. Laws N.Y. 1826, c. 222, p. 253.
Side lights were not then provided for, and there were,
practically, no oceangoing steamers. When colored lights were
introduced, and changed conditions obtained, new rules became
necessary, and were adopted.
As to oceangoing steamers and steamers carrying sail, the bright
white light required at the foremast head was to be "so constructed
as to show a uniform and unbroken light over an arc of the horizon
of twenty points of the compass," while as to coasting steamers, of
the central range of two white lights prescribed, the after light
was to be "at least fifteen feet above the light at the head of the
vessel," and "to show all around the horizon."
The argument that, by reason of the difference between the two
classes, the lights required as to one class would be impracticable
in respect of the other is not without force, and indeed, on April
9, 1887, the Secretary of Treasury approved the conclusion of the
supervising inspector general that
"the central range lights provided in Rule seven, Section 4233,
Revised Statutes, are never to be used on ocean steamers, as the
white light aft required by that rule would be obscured by the
masts, yards, and rigging of such a steamer, and therefore
useless."
Treas.Dec. 1887, p. 200, No. 8168.
Page 150 U. S. 695
The
Yosemite was an "oceangoing steamer." She was
constructed for and adapted to ocean navigation, had been upon the
ocean, and had just been authorized "to navigate for one year the
waters of any ocean route." She was also a "steamer carrying sail."
She was nonetheless "oceangoing" because not at the time on the
ocean, and nonetheless "carrying sail" because she was not at the
time under sail. These terms were merely descriptive of her
characteristics, and not of her situation. She was "under way,"
which words, in Rule three, would be superfluous if she must be
traversing the ocean in order to be "oceangoing," and have her
sails set in order to be "carrying sail," and she was "under
steam," and therefore not governed by the rules applicable to a
steamer solely "under sail," by Rule one, a rule demonstrating that
"under sail" and "carrying sail" were not used as synonymous
terms.
In our judgment, the lights she was required to carry were
expressly provided for in Rule three, and these lights she had.
The decision of the Court of Appeals that the
Yosemite
was bound to carry "a central range of two white lights," as
prescribed in Rule seven, was based upon the ground that she was
"in legal character, and by nomenclature,
a coasting steam
vessel,'" and that even if this might "not be absolutely true of
the Yosemite in all situations, it was nevertheless true
of her when navigating inland waters."
By the first section of the Act of Congress of August 7, 1848, 9
Stat. 274, c. 141, the Secretary of the Treasury was authorized to
cause yachts used and employed exclusively as vessels of pleasure
to be enrolled and licensed as vessels which were not required to
qualify at the customhouse, and this act was amended by that of
June 29, 1870, 16 Stat. 170, c. 170, by inserting after the words,
"port to port of the United States" the words, "and by sea to
foreign ports," and, as thus amended, was carried forward into
section 4214 of the Revised Statutes.
The Court of Appeals was of opinion that yachts licensed under
the statute of 1848 were exclusively coasting vessels, and that as,
by the act of 1870, they might be permitted to
Page 150 U. S. 696
proceed by sea to foreign ports, they thus might have a double
character -- that is, of coasting vessels, and vessels entitled to
go upon the seas to foreign ports. Reference was made to the fact
that the
Yosemite was enrolled at the port of New York in
conformity to Title Fifty of the Revised Statutes, entitled
"Regulation of Vessels in Domestic Commerce," and was also licensed
in pursuance of chapter two, Title Forty-Eight, entitled
"Regulations of Commerce and Navigation;" and it was said that
Title Fifty related exclusively to coasting and fishing vessels,
while Title Forty-Nine was entitled "Regulations of Vessels in
Foreign Commerce." The conclusion was then announced that the
Yosemite, being enrolled under the statute relating to
coasting vessels, and her license being a coasting license, with
the added privilege of being allowed to proceed to foreign ports,
it did not seem to allow of reasonable doubt that the
Yosemite, while navigating the Hudson River, was
navigating under her license in the character of a coasting
vessel.
We are unable to accept this conclusion. While Title Fifty is
entitled, by way of convenience, "Regulation of Vessels in Domestic
Commerce," there are many provisions contained under that title
relating to vessels engaged in foreign commerce, and among them
sections 4322 and 4323, which enable the owner of a coasting vessel
to surrender his enrollment and register his vessel, or to
surrender his register and take out an enrollment.
The register declares the nationality of a vessel engaged in
foreign trade; the enrollment, the national character of a vessel
engaged in the home traffic, and enables her to procure a coasting
license. By section 4318, under the same title, vessels navigating
the waters on the northern, northeastern, and northwestern
frontiers otherwise than by sea may be enrolled and licensed in
such form as other vessels, and need not take out a certificate of
registry.
The Mohawk, 3
Wall. 566.
Ordinarily, the terms "coaster" and "coasting vessel" are
applied to vessels plying exclusively between domestic ports, and
usually to those engaged in domestic trade, as distinguished from
vessels engaged in the foreign trade, or plying between a
Page 150 U. S. 697
port of the United States and a port of a foreign country.
Gibbons v.
Ogden, 9 Wheat. 1.
The mere fact that an oceangoing steamer may touch at some other
port of the United States after leaving her port of departure would
not make her a coaster, and this is recognized by section 4337,
which is another of the sections included in Title Fifty worthy of
notice.
Pleasure yachts, designed as models of naval architecture, are
not coasters in any statutory sense, for they are not allowed to
transport merchandise or carry passengers for pay, and we do not
think it reasonable to construe the words of the statute applicable
to coasters as applicable to them, in view of their character and
the legislation upon the subject, taken together.
As we have remarked, vessels engaged in domestic commerce may be
transferred to the class of vessels authorized to sail to foreign
ports by a change from an enrollment to a register. But in the case
of yachts, the statute provides that when entitled to be enrolled
as American vessels, they may be authorized to proceed from port to
port of the United States, and also by sea to foreign ports, so
that, by a simple license, being mere pleasure boats, not
authorized to transact business, they may sail to either; but their
essential character as oceangoing steamers, if they are such,
remains the same whether they are actually navigating from port to
port of this country or to ports abroad.
The
Yosemite was enrolled in 1881, and in May, 1882,
took out the license which authorized her to proceed by sea to
foreign ports and also from port to port in the United States. The
privilege of doing both was granted, and her license no more
authorized her to proceed to domestic ports, with the added
privilege of going to foreign ports, than to proceed to foreign
ports, with the added privilege of navigating between domestic
ports. She could do both, and to enable yachts to do so was the
design and express language of the statute.
We have not deemed it necessary to discuss the supposed bearing
of the Act of February 28, 1871, 16 Stat. 440, 454, c.
Page 150 U. S. 698
100, referred to by defendant in error, or the Acts of 1864, 13
Stat. 58, c. 69, and of 1866, 14 Stat. 227, c. 234, as
substantially the same question would arise under those acts, and
the obscurity, if any, is not in the revised law.
Nor have we felt called upon to refer to the Act of March 3,
1885, 23 Stat. 438, c. 354, or that of August 19, 1890, 26 Stat.
320, c. 802, as this collision occurred in 1882.
We hold that Rule seven was not applicable to the
Yosemite, and that therefore the Court of Appeals erred in
affirming the judgment of the supreme court, which approved the
instruction of the learned trial judge (to which exception was duly
saved) that
"the
Yosemite, upon that occasion, was bound to have
those lights which I have described to you as central range lights,
and the absence of those statutory signals was, upon her part,
negligence."
2. In addition to the rules for preventing collisions prescribed
by section 4233, it was provided by section 4412 that
"The board of supervising inspectors shall establish such
regulations to be observed by all steam vessels in passing each
other, as they shall from time to time deem necessary for
safety."
The rules laid down by the latter, as thus authorized, have the
force of statutory enactment, and their construction, when put in
evidence, as they were in this case, as well as that of the rules
under section 4233, is for the court, whose duty it is to apply
them, as matter of law, upon the facts of a given case. They are
not mere prudential regulations, but binding enactments, obligatory
from the time that the necessity for precaution begins, and
continuing so long as the means and opportunity to avoid the danger
remain.
The Dexter, 23
Wall. 69. Obviously they must be rigorously enforced in order to
attain the object for which they were framed, which could not be
secured if the masters of vessels were permitted to indulge their
discretion in respect of obeying or departing from them.
Nevertheless it is true that there may be extreme cases where
departure from their requirements is rendered necessary to avoid
impending peril, but only to the extent that such danger demands.
The John L. Hasbrouck, 93 U. S. 405;
The Sunnyside, 91 U. S. 208;
The
Page 150 U. S. 699
Johnson, 9 Wall. 146;
The City of Washington,
92 U. S. 31;
The
Voorwarts & Khedive, 5 App.Cas. 876;
The Byfoged
Christensen, 4 App.Cas. 669.
And while, under Rule twenty-four, in construing and obeying the
rules, due regard must be had to all dangers of navigation and to
any special circumstances which may exist in any particular case
rendering a departure from them necessary in order to avoid
immediate danger, the burden of proof lies on the party alleging
that he was justified in such departure.
The Agra, L.R. 1
P.C. 501;
The General Lee, 3 Irish L.R. 3 Eq. 155. Indeed,
in
The Agra, it was ruled that not only must it be shown
that the departure at the time it took place, was necessary in
order to avoid immediate danger, but also that the course adopted
was reasonably calculated to avoid that danger, and it is the
settled rule in this Court that when a vessel has committed a
positive breach of statute, she must show not only that probably
her fault did not contribute to the disaster, but that it could not
have done so.
The
Pennsylvania, 19 Wall. 125,
86 U. S. 136;
Richelieu Navigation Co. v. Boston Ins. Co., 136 U.
S. 408,
136 U. S.
422.
Obedience to the rules is not a fault, even if a different
course would have prevented the collision, and the necessity must
be clear, and the emergency sudden and alarming, before the act of
disobedience can be excused. Masters are bound to obey the rules,
and entitled to rely on the assumption that they will be obeyed,
and should not be encouraged to treat the exceptions as subjects of
solicitude, rather than the rules.
The
Oregon, 18 How. 570.
By Rule nineteen,
"if two vessels under steam are crossing so as to involve risk
of collision, the vessel which has the other on her own starboard
side shall keep out of the way of the other."
By the eighteenth, if two vessels under steam are meeting end
on, or nearly end on, so as to involve risk of collision, the helms
of both must be put to port, so that each may pass on the port side
of the other.
This is repeated in Rule 1 of the inspectors' rules, and it is
provided, not only that, when steamers are thus approaching
Page 150 U. S. 700
each other, it shall be the duty of each to pass to the right or
port side of the other, but that the pilot of either may be first
in determining to pursue this course, and thereupon shall give, as
a signal of his intention, one short and distinct blast of his
whistle, which the pilot of the other vessel shall answer by a
similar blast, and thereupon said steamers shall pass to the port
side of each other.
By Rule 2, when steamers are approaching each other in an
oblique direction, as shown in fourth situation, they shall pass to
the right of each other, as if meeting "head and head," or nearly
so, and the signals by whistles shall be given and answered
promptly as in that case specified.
By Rule 3, if, when steamers are approaching each other, the
pilot of either vessel fails to understand the course or intention
of the other, whether from signals being given or answered
erroneously or from other causes, the pilot, if in doubt, shall
immediately signify the same by giving several short and rapid
blasts of the steam whistle, and if the vessels shall have
approached within half a mile of each other, both shall be
immediately slowed until the proper signals are given, answered, or
understood, and until the vessels shall have passed.
It seems to us that these rules were strictly applicable, and
were disregarded by the
Vanderbilt. When the plaintiff
rested, the defendant moved to dismiss, which was overruled, and it
is contended here that, on the plaintiff's own showing, the
Vanderbilt was palpably guilty of negligence which
contributed directly to produce the collision, and hence that that
motion should have been sustained; but we do not care to pass upon
that question, and content ourselves with indicating certain errors
in the rulings of the trial court which appear to us to so
essentially deprive the rules of the force which should have been
given them as to amount to a decision against rights claimed under
the statute of the United States. The speed of the
Yosemite was about sixteen miles, and that of the
Vanderbilt nine miles, an hour, and they were approaching
each other therefore at an aggregate speed of twenty-five miles an
hour. The pilot of the
Vanderbilt testified that he saw
the white light of the
Yosemite when he was between the
ice houses,
Page 150 U. S. 701
apparently a mile distant. The steamers were then on parallel
courses. He did not see her green light at any time, but saw her
red light just before or just after she blew two whistles. When he
was abreast of the lower ice house -- he thought, about a quarter
of a mile from the place of collision -- he headed her for
Dinsmore's house, "way off to the eastward," and, believing that
the
Yosemite was a tow, laid his course more to the
eastward. He was thus crossing the course of the
Yosemite,
which was brought on the starboard. At this point, the pilot of the
Yosemite gave a short and distinct blast from his whistle,
as required by law, as a signal of his intention to pass to the
port side of the
Vanderbilt, and this the pilot of the
Vanderbilt answered by a similar blast, whereupon, under
the rules, it became imperative for the steamers to pass to the
port side of each other. The
Vanderbilt was bound to go to
the right after the bargain was made by the exchange of single
whistles; but, instead of doing this, and immediately after, the
Vanderbilt's pilot gave two whistles, which, it is claimed
on behalf of the plaintiff, were answered by two whistles from the
yacht. This is denied by the latter, and, even if true, an assent
to the
Vanderbilt's change was at the latter's risk. The
Vanderbilt's pilot, on the instant, sheered his boat to
port, then slowed, and the collision occurred, the
Vanderbilt being struck nearly at right angles.
Among other instructions the court was requested by the
defendant below to give were these:
"8. As the proof is undisputed that the steamboat
Vanderbilt and the yacht
Yosemite were
approaching each other head and head, or nearly so, the law
prescribes their duties, respectively, in regard to blowing their
whistles."
"9. If the yacht
Yosemite, as the vessels were
approaching each other, blew a single whistle, and the steamboat
Vanderbilt answered it by a single whistle, the course
which she was thereupon bound to pursue was thereupon determined,
and each vessel was bound to pass to its own right -- that is, to
the port side of each other -- which would have been the
Vanderbilt to the west, and the yacht
Yosemite to
the east."
"10. The pilot who first blew the first whistle thereby had
Page 150 U. S. 702
the right to, and did, determine the course which each was then
to adopt."
"11. The blowing of the single whistle by the steamboat
Vanderbilt after the first single whistle from the yacht
Yosemite was an acceptance by the steamboat
Vanderbilt of the election of the course so adopted by the
yacht
Yosemite, and it then became the duty of the
steamboat
Vanderbilt to pass to the port or western side
of the
Yosemite."
"14. Even if the
Vanderbilt, after having by one
whistle accepted the one whistle of the yacht, had a right to
change the conditions and course by a blast of two whistles, yet
unless these two whistles were given in time to enable the yacht to
go in safety to the west of the
Vanderbilt, they would
tend to complicate the situation, and the
Vanderbilt was
in that event guilty of negligence in giving the signal of two
whistles."
These instructions were refused, and the defendant excepted.
The court instructed the jury on this branch of the case that it
was claimed on the part of the defendant that it was negligence for
the
Vanderbilt to blow the two whistles, and to take the
rank sheer and cross the bow of the
Yosemite, and, on the
part of the plaintiff, that at the time of the two signals' being
given, it was impracticable to carry out the agreement which had
been made by the signal which had been given and accepted, of the
one whistle; that he was compelled to give the two signals, and
believed the
Yosemite accepted his proposition that each
should go to the left, while on the part of the defendant it was
contended that two whistles were not blown in response, but that
the pilot of the
Yosemite started to blow three as a
signal of danger, and of repudiation of the offer made by the
Vanderbilt, but before he could get them out, the
collision occurred, and the court left it to the jury to say
whether the pilot of the
Vanderbilt, in attempting to
change his course and to cross the bows of the
Yosemite,
was guilty of negligence which contributed to the accident. Rule 3
was treated by the court in a similar way.
In short, the learned judge instructed the jury that it was for
them to determine whether those who were in the management of the
respective boats were guilty of negligence or
Page 150 U. S. 703
not and whether or not they did or omitted to do that which
persons of ordinary care and prudence ought to have done, but in
charging in this general way and refusing to give the instructions
above named, the obligatory force of the rules of navigation was
substantially ignored.
The question whether, upon the proofs, the departure by the
Vanderbilt from the rules was justified was not put to the
jury, but whether, upon the whole, there was negligence in what was
done or left undone. In this there was such error as the defendant
may avail himself of in this Court so far as saved by his requests
to charge.
If these two steamers were approaching each other head and head,
or nearly so, or obliquely, as mentioned in Rule 2, the law
prescribed their duties, respectively, and the jury should have
been told so, and as there was no doubt that, upon the exchange of
single whistles, the course each was bound to pursue was
determined, the instructions to that effect should have been given.
And so if the
Yosemite assented to the two whistles and
the
Vanderbilt's course, this, if an error, was one at the
risk of the
Vanderbilt, and at most would be an error in
which both concurred, and if both were in fault, there could be no
recovery. Of course the test as to whether the departure from the
rules was excusable, if there were clear and satisfactory evidence
to that effect, might have been applied through proper instructions
or qualifications on that subject; but as the case stood, we think
those above quoted should have been given, and that the refusal to
do so, taken with the actual instructions, erroneously disposed of
a federal right.
The judgment of the Court of Appeals is reversed, and the
cause is remanded for further proceedings not inconsistent with
this opinion.
MR. JUSTICE BROWN, concurring.
While I fully concur in the opinion of the Court that this case
should be reversed upon the ground of the contributory negligence
of the
Vanderbilt, I think the
Yosemite was
guilty of a breach of the regulations in failing to carry the
range
Page 150 U. S. 704
lights provided by Rule seven, although it may be open to doubt
whether such failure contributed to the collision, in view of the
gross fault on the part of the
Vanderbilt.
Rule seven, upon the construction of which the question turns,
requires
"all coasting steam vessels and steam vessels other than ferry
boats and vessels otherwise expressly provided for, navigating the
. . . inland waters of the United States"
to carry range lights. Were the
Yosemite an ordinary
coasting vessel, there could be no doubt of her obligation to be
provided with these lights when navigating inland waters. She was,
however, licensed under Rev.Stat. sec. 4214, as a yacht "used and
employed exclusively as a pleasure vessel, and designed as a model
of naval architecture," on terms which authorized her "to proceed
from port to port of the United States, and by sea to foreign
ports, without entering or clearing at the custom-house." She was
enrolled under Rev.Stat. Title 50, which relates exclusively to
coasting and fishing vessels. To put upon this statute (sec. 4214)
the construction most favorable to her, it seems to me that she was
invested with a double character -- first as an oceangoing steamer
and second as a coasting vessel -- and that when navigating the
inland waters of the country, she was bound to conform to the
usages of those waters and to carry the lights provided by law for
"steam vessels other than ferry boats and vessels otherwise
expressly provided for." Even admitting that ocean vessels, when
navigating inland waters, are not bound to carry these range lights
because it is not contemplated that they shall navigate these
waters, I am clearly of the opinion that yachts, which ply chiefly
between ports and places within the United States, and upon the
inland waters of the country, should carry them. It seems to me an
exceedingly dangerous practice, and one which, according to the
theory of the
Vanderbilt, had much to do with the
collision in this case, to permit vessels not carrying the lights
appropriate to inland navigation to navigate the narrow waters of
the country. Vessels navigating those waters are entitled to expect
that other vessels which they meet are required to carry the same
lights which they carry,
Page 150 U. S. 705
and any distinction in that particular in favor of yachts is
liable to create uncertainty and confusion with regard to the
character of the approaching vessel. While upon the ocean, I have
no doubt her obligations would be discharged by carrying the white
and colored lights provided by Rule three for oceangoing steamers
but while plying upon the Hudson River, I think she was navigating
under her license as a coasting vessel, and should have carried the
range lights required in inland navigation.
If the case required it, I would even go further and say, as did
the dissenting judge when this case was heard before the general
term, (34 Hun. 571, 577) that oceangoing steamers, when navigating
the inland waters of the country and not under sail, should carry
the range lights provided by Rule seven. If this be not obligatory,
I find it difficult to understand to what the words, "steam vessels
other than ferry boats and vessels otherwise expressly provided
for" apply. There is an exception of ferryboats, which is easy to
understand. There is also an exception of "vessels otherwise
expressly provided for," which, in the opinion of the Court,
applies to oceangoing steamers, which are provided for by Rule
three; but in my opinion, these words should be construed as if
reading, "steam vessels other than ferry boats and vessels
otherwise expressly provided for
in respect to inland
navigation." After expressly excepting ferryboats, which are
of a limited class, it seems to me a violation of the rule of
ejusdem generis that under the words "vessels otherwise
expressly provided for" should be exempted the very large class of
oceangoing steamers, and, as observed by the dissenting judge of
the general term, these words are perhaps used as words of caution,
either as to present or future possible provisions. I have no doubt
that oceangoing steamers are not obliged to carry range lights when
ascending the waters of a river as far as their customary wharves
near the mouth of such river; but if such steamers were in the
habit of ascending the Hudson River as far as Albany, or the
Mississippi as far as St. Louis, it would be exceedingly dangerous
to permit them to navigate without the customary range lights
provided for those waters. But,
Page 150 U. S. 706
as before observed, it is unnecessary to place the liability of
the
Yosemite upon this broad ground.
MR. JUSTICE FIELD and MR. JUSTICE GRAY did not hear the
argument, and took no part in the consideration and decision of the
case.
