In 1891, the navigation of steamers upon the Great Lakes and
their connecting waters was governed by the Congressional Rules and
Regulations of April 29, 1864, Rev.Stat. § 4233, and, so far
as the manoeuvers of the vessels took place in American waters, by
the Supervising Inspectors' rules in force at that time.
The Revised International Regulations of 1885 apply only to
vessels navigating the high seas and coast waters of the United
States, and not to those navigating the Great Lakes.
A court of admiralty may properly take judicial notice of an act
of the Parliament of Canada regulating the navigation of Canadian
waters, passed in 1886, as a law of the sea and of general
application.
Where a Canadian statute was introduced and treated as evidence
by consent of counsel upon a motion for a rehearing in the district
court, though it did not appear of record, and, in obedience to a
writ of
Page 175 U. S. 188
certiorari from the court of appeals, was certified up to the
court of appeals by the clerk of the district court as a true copy
of the original act as published, it was held that the court of
appeals should have treated the act as properly before it
notwithstanding the clerk did not certify it to be a part of the
record.
The steamer
Conemaugh, while descending the Detroit
River at night, discovered in her path a long tow, which was
rounding to on the American side and was temporarily taking up
three-fourths of the navigable channel, and starboarded in order to
pass between the rear barges and the Canadian channel bank. While
proceeding under her starboard wheel, she made the lights of the
propeller
New York ascending the river. She blew her three
signals of two whistles each, to neither of which the
New
York responded. On discovering the rear barges of the tow, she
ported to follow them down the river, and, upon discovering the
New York in dangerous proximity, put her helm
hard-a-starboard and her engines at full speed. The
New
York was at the same time coming up under a port wheel, and
struck the
Conemaugh on the starboard side and sank her.
Held that the
Conemaugh was in fault (1) for not
stopping when the
New York failed to answer her signals;
(2) for porting and then starboarding in order to cross the bow of
the
New York.
The
New York, while ascending the river, made the
lights of the tow, exchanged signals of one whistle with the
propeller in charge of it, and ported her wheel to pass between the
rear barges and the Canadian channel bank. She heard no signals,
and did not make out the colored lights of the
Conemaugh.
As she passed the rear barges, she starboarded to resume her
course, and struck the
Conemaugh as above stated.
Held: that she was in fault (1) for an inefficient
lookout; (2) for failing to answer the repeated signals of the
Conemaugh, and (3) for failure to stop after she made the
white light of the
Conemaugh until her course and
movements had been satisfactorily ascertained.
The fact that the officers of a steamer fail to see the signal
lights of an approaching steamer, which are seen by other witnesses
in the neighborhood, or to hear the whistles of such steamer which
were plainly audible to others, is, unexplained, conclusive
evidence of a defective lookout.
It is the duty of a steamer receiving signal whistles from an
approaching steamer to answer them promptly, but it is also the
duty of such approaching steamer, on the failure of the other to
answer, to stop until her silence is explained and her course
ascertained with certainty.
Where the owners of a cargo of a steamer, which has been sunk by
collision occasioned by the mutual fault of two colliding steamers,
intervene for their interest in a suit instituted by the owners of
the carrying vessel against the other, they are entitled to recover
full damages against such other vessel notwithstanding the damages
to such vessels are divided as between themselves.
This was a libel in admiralty filed by the Erie & Western
Transportation Company, owner of the propeller
Conemaugh,
Page 175 U. S. 189
and a cross-libel by the Union Steamboat Company, owner of the
propeller
New York, against the propeller
Conemaugh to recover damages for a collision between these
vessels which occurred between seven and eight o'clock in the
evening of October 21, 1891, on the Canadian side of the Detroit
River a short distance below the village of Sandwich in the
province of Ontario, and between what is known as Petite Cote, on
the Canadian side, and Smith's Coal Shutes, on the American side,
of the river. The river at this point is nearly straight, and flows
in a direction about south-southwest. The underwriters of the cargo
of the
Conemaugh were permitted to intervene to protect
their interests.
The libel of the
Conemaugh averred that she was bound
from Milwaukee to Erie, Pennsylvania, with a cargo of about 1,800
tons of package freight; that she was proceeding down the river on
the American side of mid-channel, "having hauled some to starboard
to avoid some piles driven in the channel," and known as the Kasota
piles, and when half or three-quarters of a mile above Smith's Coal
Dock, she received a signal of two blasts from the steamer
Burlington, which, with four barges in tow, had gone down
the Canadian side of the river and was then rounding to at the coal
dock on the American side, exhibiting her masthead and green lights
to the
Conemaugh. Her engine was at once checked, and
remained checked until the time of the collision, her helm
starboarded, the whistle answered by two blasts, and the propeller
hauled out sharply, keeping some distance above the tow, and so
directing her course as to pass astern and to the Canadian side of
the tow, which was then stretched out in the river toward that
side; that the
Conemaugh then made the lights of the
New York down the river below the tow, and coming up
toward the
Conemaugh upon such a course that the
Conemaugh would cross the course of the
New York
before the latter could reach the point of intersection; that the
Conemaugh at once blew her a signal of two blasts,
notifying the
New York that she was so directing her
course as to keep well in on the Canadian shore and to leave the
New York to starboard as she should come abreast of the
tow. Receiving
Page 175 U. S. 190
no reply thereto, the
Conemaugh repeated the signal of
two blasts. The
New York did not reply to this second
signal, whereupon the
Conemaugh blew a third signal of two
blasts, when the
New York, which had all the time been
coming rapidly up the river, without replying to any of the
Conemaugh's signals, turned suddenly and rapidly to
starboard, swinging over to the Canadian side, seeing which, the
Conemaugh blew alarm whistles and hard-starboarded her
helm. But the
New York, first swinging rapidly and
violently to starboard, and apparently turning some to port before
she struck, came on at full speed, struck the
Conemaugh on
the starboard side abreast the texas, cut deeply into her, and
crushed her side. The
Conemaugh almost immediately struck
the Canadian bank of the river and filled and sank.
The answer and cross-libel of the
New York averred that
she was bound on a voyage from Buffalo to Milwaukee, laden with a
cargo of general merchandise; that at the time of the collision she
was bound up the Detroit River, and when near the point in said
river below where the River Rouge empties into it, a steamer -- the
Burlington -- with a tow of four barges began to round to
from the Canadian side to Smith's Coal Dock on the American side,
exhibiting to the
New York her masthead and red side
light, as well as the red side lights of the barges in tow. To this
the
New York blew her a passing signal of one blast,
"at the same time checking her engine and reducing her speed to
about four miles an hour, and then porting her helm so as to pass
under the stern of the last barge. When the
New York had
arrived at a point abreast of the last barge in tow, a signal of
two whistles was heard, but being unable to see any vessel, and
noticing only a white light close on the Canadian bank of the
river, this signal of two blasts was not answered, as it seemed to
be intended for some other vessel, the
New York being then
close to the Canadian bank, and there not being room enough for any
vessel to safely pass between her and that bank. The
New
York therefore, still running slowly, continued on her course
so as to go around close to the last barge, and when abreast of her
quarter starboarded so as to go close under her stern.
Page 175 U. S. 191
While passing under the stern of this barge, and not more than
ten or twenty feet from her, several short blasts of a propeller,
which proved to be the
Conemaugh, were heard close at
hand, and not more than one hundred feet away. The
Conemaugh pursued her course directly across the bows of
the
New York, which was then swinging under a
hard-a-starboard helm. A collision was then inevitable, and there
was neither time nor room enough to stop the engine of the
New
York, and the only way left open to avoid a collision was to
continue under headway and to swing clear under a hard-a-starboard
helm. This was done. Notwithstanding this, the
Conemaugh,
with considerable headway, continued on her course across the bows
of the
New York, so that the latter struck her, stem on,
on the starboard side, abreast of her forward gangway, and glancing
along this side was swung by the
Conemaugh nearly
alongside."
The
New York immediately backed, and offered her
assistance to the
Conemaugh, but as she was then on the
bank, she refused the assistance. That no other passing signal was
heard from any steamer after the exchange of the signal of one
blast with the
Burlington, except the signal of two short
blasts from the
Conemaugh, and that, when this was
received, the
New York was close alongside of the last
barge heading for the Canadian bank of the river, where no steamer
could pass with safety starboard to starboard.
A large amount of testimony was introduced on behalf of the
libellant, but none whatever by the claimant. A hearing upon
pleading and proofs before the district court resulted in a decree
holding both vessels in fault and dividing the damages, although
the district judge expressed some doubt with regard to the fault of
the
Conemaugh. 53 F. 553. Libellant soon thereafter moved
for a rehearing upon the ground that the rules of the Supervising
Inspectors had no application; that the International Rules adopted
in 1885 governed the case, and asked leave to submit further
testimony, and for other reasons. This was granted, and a new
decree entered vacating the former decree, and adjudging the
New York to have been solely in fault upon the ground
that, under
Page 175 U. S. 192
the case of
The City of New York, 147 U.
S. 85, then recently decided, the fault of the
Conemaugh had not been proved with sufficient clearness to
justify a division of damages. Thereupon the claimant moved to
vacate the decree and for leave to introduce evidence in its own
behalf, which was denied. This motion was repeated upon affidavits,
and the deposition of the master, second mate, and engineer of the
New York taken
de bene esse under the statute.
The motion was, however, denied, the depositions stricken from the
files, and a final decree entered against the
New York for
the damages and loss to the
Conemaugh and her cargo.
Thereupon the claimant appealed the cause to the circuit court
of appeals, and upon the record's being filed in that court, a
motion was made by the libellant for an order that the testimony of
a witness be taken to prove the Canadian statute in force for
regulating the navigation of the waters of the Province of Ontario
at the time of the collision, and that a copy of such statute be
introduced in the cause. This motion was supported by an affidavit
that the Canadian statute was introduced in the district court, and
used and referred to in the arguments upon the rehearing before the
district judge; that such statute was then treated and used as part
of the record; but there was no stenographer present at the time
and no minute of such introduction and use of the Canadian statute
was preserved in the record. The motion for an order permitting
testimony to prove the Canadian statute appears to have been
withdrawn, a suggestion of diminution of record substituted, and a
writ of certiorari asked for and granted to supply such evidence as
did not appear in the record. The district court made return to
this writ by an order that the clerk transmit to the court of
appeals a certified copy of the Canadian statutes governing the
navigation of vessels in the waters of Canada during the year 1891.
The Navigation Act of Canada of 1886 was thereupon sent up with a
certificate of the clerk of the district court that
"the papers hereto attached, marked Exhibit A, are a true copy
of the Revised Statutes of Canada 1886, volume 1, chapter 79,
entitled 'An Act Respecting the Navigation of Canadian Waters, A.D.
1886;'
Page 175 U. S. 193
that I have carefully compared the same with the original act as
published, and find the same to be a true copy of such original and
of the whole thereof."
That court, however, refused to consider this statute upon the
ground that the return of the district court to the writ contained
no certificate that the statute was made a part of the record by
being offered and received in evidence, but only a statement by the
clerk that "that which is returned is a correct copy of the
Canadian statute as published."
The hearing of the appeal resulted in a reversal of the decree
of the district court, and a remand to that court with directions
to dismiss the libel of the
Conemaugh upon the ground that
she only was in fault. 82 F. 819. A rehearing was subsequently
asked for and denied. 86 F. 814. 628.
Whereupon libellant applied for and was granted a writ of
certiorari from this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
This collision took place in October, 1891. The navigation of
the two steamers was therefore governed by the Congressional Rules
and Regulations of April 29, 1864, 13 Stat. 58, c. 69, reproduced
in Revised Statutes, section 4233, and, so far at least as the
manoevers of the respective vessels took place in American waters,
by the Supervising Inspectors' rules in force in 1891.
The Revised International Regulations of 1885, Act of March 3,
1885, 23 Stat. 438, c. 354, apply only to navigation "upon the high
seas and in all coast waters of the United States," and in section
two, repealing prior inconsistent laws
Page 175 U. S. 194
there is an exception of vessels navigating "the harbors, lakes,
and inland waters of the United States." It is true that in
Moore v. American Transportation
Co., 24 How. 1, the Limited Liability Act of 1851,
which contained an exception of vessels used "in rivers or inland
navigation," was held, notwithstanding this exception, to apply to
vessels navigating the Great Lakes; but the cases are readily
distinguishable. In that, the exception was "any canal boat, barge,
or lighter, or to any vessel of any description used in rivers or
inland navigation." It was held that the character of the craft
enumerated might
"well serve to indicate to some extent, and with some reason,
the class of vessels in the mind of the lawmakers, which are
designated by the place where employed."
But the case was really decided upon the ground of the magnitude
of the lakes, their commerce, their vessels, and the well known
perils incident to lake navigation. It was thought that such
commerce deserved to be placed on the footing of commerce on the
ocean, and that "Congress could not have classed it with the
business upon rivers, or inland navigation," in the sense in which
we understand these terms. In the present case, the exception is
specifically of "vessels navigating the harbors,
lakes,
and inland waters of the United States." If the word "lakes" was
not intended to include the Great Lakes, it is difficult to see the
object of Congress in making use of that word, since nearly all the
other navigable lakes, except Lake Champlain, are located within
the limits of a single state, and no act was necessary to exempt
them, as the power of Congress does not extend to the purely
internal or infra-territorial commerce of the country.
The Montello,
11 Wall. 411;
Veazie v.
Moor, 14 How. 568.
The question, however, is one of little practical importance in
this case, inasmuch as rule 19 of Rev.Stat. section 4233 is word
for word the same as article 16 of the Revised International Rules
and Regulations of 1885. Both are as follows:
"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. "
Page 175 U. S. 195
The power of the Supervising Inspectors to adopt rules for the
government of steam vessels in passing each other, Rev.Stat. 4412,
is limited by section 4400 to steam vessels "navigating any waters
of the United States which are common highways of commerce, or open
to general or competitive navigation." These rules are pertinent to
this case only so far as they make it the duty of vessels to
indicate by signals of one or two whistles the course they are
about to take, and of the other vessel to answer them, and also, in
case of vessels crossing each other, within the meaning of article
sixteen, in requiring the obligated vessel to avoid the other by
porting and going under her stern. These rules are as follows:
"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 of the other,
whether from signals being given or answered erroneously or from
other cause, the pilot so in doubt shall immediately signify the
same by giving several short and rapid blasts of the steam whistle,
and after the vessels 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 6. 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 of within half a mile, and
whether passing to the starboard or port."
1. We are of opinion that the Canadian statute of 1886 may
properly be considered by us.
The question how far this Court may take judicial notice of the
laws of a foreign country has been the subject of some discussion,
and was first considered by this Court in the case of
Page 175 U. S. 196
Talbot v. Seeman,
1 Cranch 1,
5 U. S. 38. That
was a case of salvage upon recapture from the French. It became
necessary to inquire whether the laws of France were such as to
have rendered the condemnation so probable as to create a case of
such real danger that her recapture could be considered a
meritorious service. To prove this, counsel offered several decrees
of the French government, to the reading of which objection was
made upon the ground that they were the laws of a foreign nation,
and therefore to be proved as facts. In holding that the decree,
having been promulgated in the United States as a law of France,
was entitled to be read, Mr. Chief Justice Marshall observed
"that the laws of a foreign nation, designed only for the
direction of its own affairs, are not to be noticed by the courts
of other countries unless proved as facts, and that this Court,
with respect to facts, is limited to the statement made in the
court below, cannot be questioned. The real and only question is
whether the public laws of a foreign nation, on a subject of common
concern to all nations, promulgated by the governing powers of a
country, can be noticed as law by a court of admiralty of that
country, or must be still further proved as a fact. The negative of
this proposition has not been maintained in any of the authorities
which have been adduced. On the contrary, several have been quoted
(and such seems to have been the general practice) in which the
marine ordinances of a foreign nation are read as law without being
proved as facts. It has been said that this is done by consent;
that it is a matter of general convenience not to put parties to
the trouble and expense of proving permanent and well known laws
which it is in their power to prove, and this opinion is
countenanced by the case cited from Douglas. If it be correct, yet
this decree, having been promulgated in the United States as the
law of France, by the joint act of that department which is
entrusted with foreign intercourse, and of that which is invested
with the powers of war, seems to assume the character of notoriety
which renders it admissible in our courts."
The same question as applied to the original rules and
Page 175 U. S. 197
regulations was presented to us in the case of
The
Scotia, 14 Wall. 170, in which we held that, in
view of the fact that these rules and regulations were originally
adopted by the British orders in council of January 9, 1863, and by
Congress in 1864, and had been accepted as obligatory by more than
thirty of the principal commercial states of the world, including
almost all which have any shipping on the Atlantic Ocean, we would
take judicial notice of them and treat them as laws of the sea and
of general obligation. The duty to take judicial notice of these
rules was also recognized by this Court in
The Belgenland,
114 U. S. 355,
114 U. S. 370,
in
The Richelieu &c. Navigation Co. v. Boston Marine Ins.
Co., 136 U. S. 408,
136 U. S. 422,
and in numerous cases in the lower courts. There is nothing in the
case of
The Liverpool &c. Steam Co. v. Phenix Ins.
Co., 129 U. S. 397, in
conflict with this. That did not involve a question of general
maritime law, but of a statutory exemption from the consequences of
negligence in navigation given by a British act of Parliament. We
know of no reason why the rule adopted in
The Scotia
should not be applied to the Revised International Rules and
Regulations. They have also been adopted by most, if not all, the
nations which gave their assent to the original rules and
regulations of 1863, and the reasons which induced this Court to
take judicial notice of these rules are equally persuasive here.
The reference to the Canadian statute of 1886, used in the district
court and printed as a part of the record here, shows it to be,
except as to the waters covered by it and as to certain immaterial
local regulations, a literal copy of the congressional act of
1885.
But we think that for another reason the act is properly before
us. After the case had been appealed to the circuit court of
appeals, the libellant moved that court for an order requiring the
testimony of a witness to be taken to prove the Canadian statute,
and filed in support of this motion affidavits that in the printed
record there was no copy of this statute, but that it was
introduced in the district court and used and referred to in the
arguments upon the rehearing before the district judge; that at
that time the libellant offered to prove the statute by oral
testimony, but that it was then agreed in
Page 175 U. S. 198
open court between the proctors that the testimony of such
witness might be dispensed with, and that the statute then in court
might be used without technical proof thereof. No order was made
upon this motion, but there was a further suggestion to the court
of a diminution of the record in that the Canadian statute, which
was introduced and used as evidence in the district court, did not
appear in the record, and a writ of certiorari was granted
"because the transcript of the record in this case does not
contain a copy of the Canada statutes governing the navigation of
vessels in the waters of Canada during the year 1891, which was
introduced in evidence, as alleged."
In obedience to this writ, the clerk of the district court was
ordered to transmit to the circuit court of appeals a certified
copy of the Canadian statute. This was done, but the clerk, instead
of certifying that it was a part of the record, certified only that
he had "carefully compared the same with the original act as
published" (by which we understand as published in the statutes of
Canada), "and find the same to be a true copy of such original and
of the whole thereof." It thus appears that the Canadian statute
had been used in the district court by consent of counsel, had been
treated as part of the record, and that the copy sent up was a true
copy of the statute as published. It is true that the clerk did not
formally certify it to be a part of the record, but the fact that
it had been so treated was established by the affidavit, and the
writ of certiorari upon its face recited the fact that a copy of
the statute had been introduced in evidence, as alleged, and
required the court below to "send the record and proceedings, with
all things concerning the same, as fully and entirely as they
remain of record in said district court." In view of these
proceedings, we think the circuit court of appeals should have
accepted the certified copy of the statute as properly in evidence
before it.
The only novel feature of this statute pertinent to this case is
as follows:
"Art. 19. In taking any course authorized or required by these
regulations, a steamship under way may indicate that course to any
other ship which she has in sight by the following
Page 175 U. S. 199
signals on her steam whistle, that is to say: 'One short blast
to mean
I
am directing my course to starboard;' two short blasts to mean
I
am directing my course to port;' three short blasts to mean
I
am going at full speed astern.' The use of these signals is
optional, but if they are used, the course of the ship must be in
accordance with the signal made.'"
In this view, the question whether two American vessels running
from one American port to another are bound, whenever they cross
the boundary line between the United States and Canada, which at
this point is the
filum aquae of Detroit River, to conform
to the navigation laws of Canada does not arise in this case. Were
all the commerce of the lakes carried on in American vessels, the
question would be less difficult of solution. But as much of this
commerce is Canadian, and it is impossible to tell whether an
approaching vessel be American or Canadian, an attempt to apply the
laws of the United States in all cases might result in confusion
and in great injustice to Canadian vessels in case the rules and
regulations of the two countries differed in any material respect.
We are saved, however, consideration of these questions by the fact
that the signals and the steering rules of the United States and
Canada are practically identical. This fact being once established,
the duty of vessels of both nations in meeting each other, either
upon American or Canadian waters, is easily understood.
2. In judging of the responsibility for this collision, it
should be borne in mind that the
Burlington and her tow
were temporarily occupying from two-thirds to three-quarters of the
navigable channel of the river. The distance between the rear barge
and the Canadian bank of the navigable channel is variously
estimated, but according to the court of appeals was about five
hundred feet. It may have been as much as eight hundred feet, but
probably was not more than that. The night was clear and starlit,
the weather fine, and the collision could scarcely have occurred
except by the fault of one or both vessels.
The
Conemaugh, a steamer of 1,609 tons burden, was
coming
Page 175 U. S. 200
down the American side of the river at her usual speed of about
ten miles an hour, and, when her attention was first called to the
obstruction of the
Burlington's tow, was about passing
what are known as the Kasota piles, which were in fact the remains
of a coffer dam once used in raising the steamer
Kasota.
They were near mid-channel, though somewhat upon the American side,
and about three quarters of a mile above Smith's Coal Dock. As she
was passing these piles, leaving them on her port hand, she
received and answered a signal of two blasts from the
Burlington, which had come down the river on the Canadian
side, and was at that time rounding to at the coal dock on the
American side, her tow of four barges making a crescent or
semicircle, the outer arm of which was, as above stated, from five
to eight hundred feet from the Canadian bank. The length of the tow
was about 2,600 feet, the width of the channel about 3,000 feet.
The
Burlington at this time was exhibiting to the
Conemaugh her white masthead and her starboard green
light. The first barge in tow was also exhibiting her green light,
but the others had not rounded to sufficiently to exhibit their
colored lights. After exchanging this signal with the
Burlington, the wheel of the
Conemaugh was put
hard-a-starboard, her speed checked, and her course taken across
the stream at almost a right angle with her former course. Upon
this course, she was exhibiting her green light to vessels
ascending the river. After she had "picked up" or discovered the
rear barge, her wheel was steadied, and then ported to follow the
tow, which by the force of the current was gradually swinging
downstream, and would ultimately round to on the American side
astern of the
Burlington. As the
Conemaugh
steadied her wheel to starboard, her watch made out below the tow
and about a mile distant the white and red lights of the
New
York, apparently somewhat on the American side of mid-channel,
and promptly signaled her with two blasts of her whistle,
indicating that she would pass her to the left. No answer was
received from the
New York. Under such circumstances, it
would have been more prudent for the
Conemaugh to stop and
wait a few minutes, until the
Page 175 U. S. 201
tow had drifted down and left the channel clear below her; but
inasmuch as there was a clear space of five hundred feet of
navigable water between the last barge and the Canadian bank of the
channel, we should hesitate to condemn her for this fault, were
there no others contributing more immediately to the collision.
Receiving no answer to her first blast, the
Conemaugh,
when the two steamers were about three quarters of a mile apart,
repeated her signal of two blasts -- the
New York then
showing her masthead and both colored lights. Again no reply was
made by the
New York. The
Conemaugh, which had
then ported and was heading toward the Canadian shore, and about
four points from the direct course down the river, gave a third
signal of two blasts, the
New York continuing to show all
three of her lights, and being apparently close to and between the
second and third barges of the tow. The
New York made no
answer to this third signal. The duty of the
Conemaugh at
this juncture was plain. She should have stopped her engines after
the second signal, and, if necessary to bring her to a complete
standstill, have reversed them. Nothing is better settled than that
if a steamer be approaching another vessel which has disregarded
her signals, or whose position or movements are uncertain, she is
bound to stop until her course be ascertained with certainty.
The Louisiana v.
Fisher, 21 How. 1;
Chamberlain v.
Ward, 21 How. 548;
Nelson v.
Leland, 22 How. 48;
The Martello,
153 U. S. 64,
153 U. S. 71;
The Teutonia,
23 Wall. 77;
The James Watt, 2 W.Rob. 271;
The
Birkenhead, 3 W.Rob. 75;
The Hermann, 4 Blatchford
441;
The Huntsville, 8 Blatchford 228;
The
Hammonia, 4 Ben. 515;
The Mary Sandford, 3 Ben. 100;
The Arabian, 2 Stuart, Vice Adm'y 72. There was peculiar
necessity for such action in this case. These vessels were about to
meet upon crossing courses, and to pass each other in the narrowest
part of the channel. The
Conemaugh had three times
signaled her wish to take the Canadian side, and pass starboard to
starboard. The
New York had three times neglected to give
her assent to this arrangement.
The Conemaugh
Page 175 U. S. 202
had construed her failure to reply as an acquiescence in her own
signals. The
New York might have construed such failure as
a refusal to acquiesce. In such a case, it was clearly incumbent
upon the
Conemaugh to stop until the mystery of her
silence was explained, and in failing so to do, she was guilty of
fault. Instead of that, while running under check and under a port
helm, she steadied and almost immediately lost the green light of
the
New York, whereupon she sounded an alarm whistle, put
her helm hard-a-starboard, and endeavored to shoot across the bows
of the
New York. The two steamers were then upon
converging courses and about a quarter of a mile apart. Even then,
if the
Conemaugh had put her helm hard-a-port and reversed
her engines she would probably have avoided a collision, although
her final error, being apparently
in extremis, perhaps
ought not to be attributed to her as a fault. But she kept on her
course at full speed, with her helm hard-a-starboard, while the
New York came up the river, under a port wheel and at full
speed, displaying her masthead and red light to the
Conemaugh. Just before the collision, the wheel of the
New York was starboarded, but too late to avert the blow.
She struck the
Conemaugh on her starboard side near the
gangway, and sank her within ten minutes. The place of the
collision seems to have been very near the Canadian bank, and about
one thousand feet from and a little upon the port quarter of the
Furguson, the stern barge of the
Burlington's
tow.
The fault of the
Conemaugh appears the more flagrant
from the fact that the two steamers were crossing vessels within
the meaning of rule 19 (Rev.Stat. § 4233), and that the
Conemaugh, having the
New York upon her starboard
side, was bound to keep out of her way. The Supervising Inspectors'
rules require that this manoeuver shall be performed by porting the
wheel and passing under the stern of the preferred vessel. But,
irrespective of this rule, prudent seamanship ordinarily requires
that the obligated vessel shall take a course which, if the
preferred vessel perform her own duty, will certainly avoid a
collision --
viz., port and go astern. If, upon the other
hand, she elects to starboard and cross the
Page 175 U. S. 203
bows of the other vessel, she incurs the manifest danger of not
passing the point of intersection before the preferred vessel
strikes her, and is justly considered as assuming the
responsibility for the success of her manoeuver.
The E. A.
Packer, 140 U. S. 360,
140 U. S. 366;
The Nor, 2 Asp.M.L.Cas. 264. Of course, there may be such
conduct on the part of the favored vessel as would show that she
was alone guilty of fault, but the greater safety of porting is so
manifest that the circumstances must be quite exceptional to
justify a different course. The failure of the
Conemaugh's
manoeuver in this case only emphasizes her original fault in
failing to come to a standstill when her two first signals to the
New York were disregarded.
The conduct of the
Conemaugh, as we shall hereafter
show in the navigation of the
New York, was not even
consistent with her own theory, which was that she would cross the
course of the
New York and pass down between her and the
Canadian bank. Instead of doing so, however, as soon as she had
"picked up" the stern barges and ascertained their exact location,
she ported her helm sufficiently to display to these barges a
glimmer of her red light, and as the
New York was about
the same time starboarding to clear these barges, the result was
that neither gave the other sufficient room to pass. These
circumstances were most favorable to the collision which almost
immediately ensued.
3. Inasmuch as no witnesses were sworn from the
New
York we are compelled to judge of the propriety of her
manoeuvers from the admissions in her answer and from the other
testimony in the case. From these it appears that the propeller, a
vessel of 1,700 tons, was bound up the river, and, when nearing the
point below where the River Rouge empties into the Detroit just
above Smith's Coal Dock, she described the
Burlington and
her tow beginning to round to from the Canadian side of the river
to the coal dock on the American side, exhibiting to the
New
York her masthead and red lights as well as the red side
lights of the barges in tow. The answer avers that thereupon
"the
New York blew a passing signal of one blast at the
same time checking her engine and reducing her speed to about four
miles an hour, and then porting her
Page 175 U. S. 204
helm so as to pass under the stern of the last barge. When the
New York had arrived at a point abreast of the last barge
in tow, a signal of two whistles was heard, but being unable to see
any vessel, and noticing only a white light close on the Canadian
bank of the river, the signal of two blasts was not answered, as it
seemed to be intended for some other vessel, the
New York
being then close to the Canadian bank, and there not being room
enough for any vessel to safely pass between her and the bank."
If there were no other evidence in the case than these
allegations, and the uncontradicted testimony of the
Conemaugh that she blew three signals to the
New
York, none of which were answered, it is sufficient to show
the latter to have been guilty of a grievous fault. The night was
clear, and there appears to have been no difficulty in seeing the
white and colored lights of the
Burlington and her tow,
and should have been none in seeing the lights of the
Conemaugh. No reason is given why the signals of the
Conemaugh were not heard, and as the
New York was
not more than a mile distant from her when her first signal was
blown, and considerable less than that when the second signal was
blown, her inability to hear them is inexplicable except upon the
theory that no sufficient lookout was maintained, or that such
lookout did not attend properly to his duties. Her officers failed
conspicuously to see what they ought to have seen or to hear what
they ought to have heard. This, unexplained, is conclusive evidence
of a defective lookout.
The Sea Gull,
23 Wall. 165;
The James Adger, 3 Blatchford 515;
The
Fanita, 14 Blatchford 545;
The Sunnyside,
91 U. S. 208;
Spencer, Collisions, § 175.
The force of this presumption of a defective lookout is greatly
strengthened by the fact that the claimant did not see fit to put
upon the stand the officers and crew of the
New York, who
certainly would have been able to explain, if any explanation were
possible, why the lights of the
Conemaugh were not seen
and distinguished or her signals heard. It was said by this Court
in the case of
Clifton v. United
States, 4 How. 242,
45 U. S. 246,
that
"to withhold testimony which it was in
Page 175 U. S. 205
the power of the party to produce, in order to rebut a charge
against him, where it is not supplied by other equivalent
testimony, might be as fatal as positive testimony in support or
confirmation of the charge."
If the
New York heard the signals, it was her duty to
answer them. Beyond this, however, the answer admits that a signal
of two whistles was heard, and a white light close on the Canadian
bank of the river was noticed, but the signal was not answered, as
it seemed to be intended for some other vessel. However, the white
light in connection with the whistles could only have been the
masthead light of a steam vessel, and as there is no evidence that
there was any other vessel coming up the river, the signal could
only have been intended for the
New York. If she were
unable to see the colored lights of the approaching steamer, it was
her duty to stop until she made them out or otherwise determine the
identity and course of the approaching vessel.
Her only excuse for her omission is that she was the preferred
vessel within the 19th American and 16th Canadian rule, and that,
by the twenty-third American and twenty-second Canadian rule, it
was her duty to keep her course. But the fact that a steamer is
entitled to hold her course does not excuse her from inattention to
signals, from answering where an answer is required, or from
adopting such precautions as may be necessary to prevent a
collision in case there be a distinct indication that the obligated
steamer is about to fail in her duty. As was said in the case of
The Sunnyside, 91 U. S. 208,
91 U. S.
222:
"cases arise in navigation where a stubborn adherence to a
general rule is a culpable fault, for the reason that every
navigator ought to know that rules of navigation are ordained, not
to promote collisions, but to save life and property by preventing
such disasters."
See also The Delaware, 161 U.
S. 459;
The Maria
Martin, 12 Wall. 47. Both the Canadian and American
Codes provide that in construing and obeying these rules, due
regard must be had to all dangers of navigation and to any special
circumstance which may exist in any particular case, rendering a
departure from them necessary in order to avoid
Page 175 U. S. 206
immediate danger. There is another rule pertinent in this
connection, namely, rule 21 American, and article 18 Canadian, that
every vessel when approaching another vessel so as to involve risk
of collision shall slacken her speed, or, if necessary, stop and
reverse. That the obligation to observe this rule attached to the
New York under the peculiar circumstances of this case is
entirely clear. Her attention had been called to the fact that a
steamer was coming down the river between the rear barge and the
Canadian bank. The channel was narrow, and the descending vessel
had signified her intention to starboard her helm and pass the
New York to the left. The
New York avers in her
answer that there was not room enough for any vessel to safely pass
between her and the Canadian bank, but, notwithstanding this, she
kept her course toward that bank, and was thus constantly narrowing
the channel through which the
Conemaugh signified her
intention of passing. She averred that her speed in passing the tow
was about four miles an hour, but the district judge was of opinion
that she maintained double that speed until the vessels came
together. However this may be, her failure to answer the whistles
of the
Conemaugh or to stop and reverse after her white
light was seen was wholly inexcusable, and, under the particular
circumstances, cannot be justified by her general duty as a favored
vessel to keep her course or by anything that was said by this
Court in
The Britannia, 153 U. S. 130. The
master of a preferred steamer cannot, by blindly adhering to his
course, atone for the neglect of other precautions.
We do not wish to say that the
New York was under any
obligation to assent to the proposed arrangement, although, in
starboarding and passing close to the two rear barges, she did in
fact take the exact course she would have taken if she had
assented. If she had blown one whistle, she would have indicated
her intention of pursuing her course under her port wheel as the
privileged vessel; while if she had blown two whistles she would
have starboarded, as she did starboard, and keep as near the rear
barges as she safely could. What we do decide is that the duty to
answer a signal is as imperative
Page 175 U. S. 207
as the duty to give one. Not only does the second rule of the
Supervising Inspectors require of crossing steamers that "signals
by whistles shall be given and answered promptly," but ordinary
prudence demands that an obligated steamer proposing by whistle to
deviate from the customary course shall receive an immediate reply,
that her wheel may be at once put to starboard or port, as the
exigencies of the case may require. A delay of even a few seconds
may seriously embarrass her as to the intention of the preferred
vessel. This is now made obligatory upon vessels navigating the
Great Lakes by the Act of February 8, 1895, 28 Stat. 645, the
twenty-third rule of which declares that "every steam vessel
receiving a signal from another shall promptly respond with the
same signal, or as provided in rule twenty-six." If the
New
York had promptly answered the
Conemaugh's signals,
probably no collision would have occurred.
The comments we have made upon the failure of the
Conemaugh to stop and reverse are equally pertinent to the
case of the
New York. If she did not hear the whistles of
the
Conemaugh, she ought to have heard them; but
irrespective of this, there was enough to apprise her of her danger
in pursuing her course with unabated speed. She knew that she was
about to meet in a narrow channel a steam vessel coming down upon
her with the added speed given by a current of two to two and a
half miles an hour. She heard her final signal of two blasts as she
was passing the last barge, and should have known that, if she
continued her course, a collision would be inevitable, and yet she
did not stop or reverse. Her conduct was inexcusable. The lesson
that steam vessels must stop their engines in the presence of
danger, or even of anticipated danger, is a hard one to learn, but
the failure to do so has been the cause of the condemnation of so
many vessels that it would seem that these repeated admonitions
must ultimately have some effect. We cannot impress upon the
masters of steam vessels too insistently the necessity of caution
in passing or crossing the course of other vessels in constricted
channels.
But, assuming the theory of the
New York to be true,
and
Page 175 U. S. 208
that, as the preferred vessel, she was bound to keep her course,
under rule 19, the fulfillment of her duty in that regard
undoubtedly added to the embarrassments of the
Conemaugh.
It is averred in her answer that, after making the white light of
the
Conemaugh, she continued on her course so as to go
around close to the last barge, and when abreast of her quarter,
starboarded, so as to go close under her stern. For this change in
her course she relies upon the case of
The John L.
Hasbrouck, 93 U. S. 405, in
which we held that the obligation of a privileged vessel to keep
her course does not forbid such necessary variations in her course
as will enable her to avoid immediate danger arising from natural
obstructions to navigation. In that case, a sailing vessel
descending the Hudson River at West Point was held to have been
excused in changing her course to round a projection at that place,
but in this case the
New York had still from five hundred
to eight hundred feet before her before reaching the Canadian bank.
Her original porting was undoubtedly to avoid the tow, but there
seems to have been no immediate necessity for her starboarding to
pass so close to the rear barges, though we should not condemn her
upon this ground.
See discussion of this in
The
Velocity, L.R. 3 P.C. 44;
The Banshee, 6 Asp.M.L.Cas.
221. While the presence of the tow undoubtedly rendered it
necessary for the
New York to port, and thus to become a
crossing vessel, and a preferred vessel under rule 19, there was no
obstruction to her continuing under her port wheel until she had
approached so near the Canadian bank as to make it necessary to
turn.
The theory of the
New York is an inconsistent one -- as
inconsistent as that of the
Conemaugh. She argues that she
was under no obligation to assent to the signals of the
Conemaugh by starboarding her helm. But she did in fact
starboard her helm, and now insists that she did this in discharge
of her duty as a preferred vessel to resume her course after she
had cleared the obstruction. But without deciding that she was in
fault for starboarding, her conduct in so doing adds another to the
many reasons why she should have indicated to the descending
steamer her proposed course. If the
Conemaugh
Page 175 U. S. 209
recognized the fact that she were the preferred vessel and bound
to hold her course, it would naturally confuse her to see the
New York suddenly starboarding, exhibit both her colored
lights, and point directly toward her, as she must have done. The
probable explanation of the course of the
New York is that
the officer of her deck was so intent upon watching the lights of
the barges that he omitted to notice the lights of the
Conemaugh until the vessels had approached so near that a
collision became extremely probable. The fact that her lights were
seen and her signals heard by the crews of the
Burlington
and her barges and by persons standing upon the coal dock at a
greater distance from the
Conemaugh than was the
New
York only indicates more clearly that her lookout was either
insufficient or incompetent. If he actually saw her and reported
her to the officers of the deck, the responsibility is only shifted
from the lookout to them.
Our conclusions are that the
Conemaugh was in
fault:
For not stopping when the
New York failed to answer her
signals;
For porting and then starboarding in order to cross the bow of
the
New York;
and the
New York:
For an inefficient lookout;
For failing to answer the repeated signals of the
Conemaugh; and --
For failure to stop, after she made the white light of the
Conemaugh, until her course and movements had been
satisfactorily ascertained.
4. The final question arises upon the insistence of the
underwriters of the
Conemaugh's cargo that they are
entitled to a recovery to the full amount of their damages against
the
New York notwithstanding the
Conemaugh may
also be in fault for the collision. They are correct in this
contention. Indeed, this Court has already so decided in the case
of
The Atlas, 93 U. S. 302. This
was a libel against the
Atlas by an insurer of the cargo
of a canal boat in tow of the steam tug
Kate, whereby the
canal boat and her cargo were
Page 175 U. S. 210
lost. It was insisted by the claimant that, as the libellant had
failed to make the
Kate a party, and as both vessels were
found to be in fault for the collision, there could be a recovery
of only a moiety of the damages. The case of
The Milan,
Lush. 388, was confidently relied upon as an authority. This Court,
however, was of opinion that a plaintiff, who has suffered a loss
by the negligence of two parties, was at liberty, both at common
law and in admiralty, to sue both wrongdoers or either one of them
at his election, and
"it is equally clear that, if he did not contribute to the
disaster, he is entitled to judgment in either case for the full
amount of his loss. He may proceed against all the wrongdoers
jointly, or he may sue them all or any one of them separately. . .
. Co-wrongdoers not parties to the suit cannot be decreed to pay
any portion of the damage adjudged to the libellant, nor is it a
question in this case whether the party served may have process to
compel the other wrongdoers to appear and respond to the alleged
wrongful act."
A like ruling was made in
The Juanita, 93 U. S.
337, in which a libel was filed by the United States as
owner of the cargo of a flatboat in tow of one of two vessels.
The decree of the court of appeals is therefore reversed,
and the case remanded to the District Court for the Eastern
District of Michigan for further proceedings in consonance with
this opinion. Costs will be divided equally.
On the 7th of December, 1899, this decree was reversed, the
claimants of the Conemaugh and the claimants of the New York were
ordered each to pay one-half of all costs in the cause, and the
cause was remanded to the District Court of the United States for
the Eastern District of Michigan with directions to enter a decree
in conformity with the opinion of this Court, with interest from
July 3, 1896, until paid, at the same rate per annum that decrees
bear in the courts of the State of Michigan.
* The docket title of this case is The Erie & Western
Transportation Company v. The Union Steamboat Company, claimant of
the Propeller "
New York."
