A steamship, entering or leaving the port of New York in a fog
through which vessels cannot be seen when distant more than a
quarter of a mile, should reduce its speed to the lowest point
consistent with good steerage way.
It is the duty of a steamship, hearing a blast from a fog-horn
on its starboard bow, indicating that a vessel is approaching from
a direction which may take it across the steamer's bow, to stop at
once until she can assure herself of the bearing, speed, and course
of the approaching vessel.
It is within the discretion of the court below to refuse to find
a fact asked for several months after the disposal of the case on
other issues, but if such finding is made, it is binding on this
Court.
The requirement in article 12 of the international rules and
regulations for preventing collisions at sea that sailing vessels
shall be provided with an efficient fog horn, to be sounded by a
bellows, or other mechanical
Page 153 U. S. 65
means, is so far obligatory as to throw upon the sailing vessel
in fault the burden of proof, in case of collision, that the want
of a mechanical fog horn could not have contributed to it.
This was a libel and cross-libel for a collision between the
American barkentine
Freda A. Willey and the British
steamship
Martello, which occurred on the 8th day of May,
1887 at 8 o'clock in the morning, about two miles to the northward
and eastward of the Sandy Hook lightship, in a fog, and resulted in
the sinking of the barkentine. The district court found both
vessels to have been in fault for excessive speed, and entered a
decree dividing the damages and costs. On appeal to the circuit
court, this decree was reversed and the
Martello adjudged
to have been wholly in fault, and a decree entered for the original
libelants in the sum of $23,943.43, from which decree the owners of
the
Martello appealed.
Pursuant to the statute, the circuit court, on July 31, 1889,
made and filed the following findings of fact and conclusions of
law,
viz.:
"1. The
Martello is a British steamship of 2,439 tons
net register, 370 feet in length, 43 feet beam, and 28 feet in
depth, owned by the respondents and appellants, Charles Henry
Wilson and Arthur Wilson, and is one of the Wilson Line of
steamers, plying between New York and Hull and other foreign
ports."
"2. The
Martello left her dock in Jersey City on
Saturday afternoon, May 7, 1887, laden with a miscellaneous cargo
of merchandise, bound for Hull, England. The weather was so foggy
that she could not go down the channel, but anchored for the night
in Gravesend Bay."
"3. The
Martello got under way from Gravesend Bay about
6 a.m. Sunday, May 8, 1887, and started for sea in command of
Captain Francis E. Jenkins, the senior captain of the New York
service of the line, and in charge of Pilot Joseph Henderson. The
weather was thick, but sufficiently clear to enable the buoys
marking the channel to be seen. She proceeded down the swash
channel, and thence through Gedney's Channel to sea. "
Page 153 U. S. 66
"4. When about half a mile to the westward of the perch-and-ball
buoy,
i.e. about north from the black buoy No. 1, her
engine was stopped for the purpose of slowing the vessel until the
pilot could be discharged. That being done, the engines were at
7:10 a.m. moved slowly ahead."
"5. About 40 minutes after discharging the pilot, the horn, one
blast of a sailing vessel, was heard on the starboard bow. At that
time the captain and third officer were on the bridge, a competent
lookout was in the cro'nest, about 100 feet abaft the stern, the
first officer was on the lookout on the forecastle, and the
quartermaster was at the wheel."
"6. At that time, the steamer was heading E. S.E. The wind was
about E. by N., blowing a five to six knot breeze. The fog had
grown denser, and vessels could not be seen over a quarter of a
mile away. The whistle of the steamer had been blown regularly at
intervals of thirty seconds or less, and her speed was about 5 1/2
to 6 knots an hour. Three knots an hour would give her good
steerage way."
"7. About a minute or two after hearing the horn, the officers
of the
Martello saw the barkentine
Freda A.
Willey looming in sight through the fog."
"8. On April 24, 1887, the barkentine
Freda A. Willey
left Pensacola, bound through Long Island Sound for New Haven with
a cargo of yellow pine lumber, and on Sunday, May 8, about 8
o'clock a.m., she was bound into the harbor of New York."
"9. The
Willey, with all her sails set, can make ten
knots an hour. With the wind as found in the sixth finding, the
Willey, if going at less than four knots an hour, would
not have steerage way sufficient to given her master thorough
control of her to tack, wear, or manage her as occasion might
require."
"10. About 4 a.m. of May 8, she was sailing with her mainsail,
spanker, main staysail, upper and lower fore-topsails,
fore-topgallant sail, and three jibs. At 5 a.m., the wind
freshened, and she took in her royal. At 7 a.m., the wind
freshening, her fore-sail was hauled up."
"11. There was on deck of the
Willey, before the
collision,
Page 153 U. S. 67
Cobb, able seaman; on the lookout, Mathlin, able seaman; at the
wheel, Ludvinger, second mate, and Willey, captain, about her deck.
The rest of the crew were below. She was heading north,
close-hauled on the starboard tack, sounding her horn at intervals
of one or two minutes and making about four knots an hour."
"12. While thus proceeding, she thrice heard the steamer whistle
of a steamer, answering promptly each time with a single blast of
her horn. At this last signal, the
Martello appeared in
sight, bearing about four points on the port bow, and a quarter of
a mile away."
"13. As soon as the
Willey loomed in sight of those on
the
Martello, as indicated in the seventh finding, the
first officer of the steamship called out, 'hard a-port,' and the
lookout reported a vessel on the starboard bow. The captain
immediately ordered the helm hard a-port, and the engines reversed
full speed."
"14. The speed of the
Martello under a hard a-port
helm, and with engines reversed at full speed, became gradually
reduced, and at the time of the collision was about two knots an
hour."
"15. The place of collision was about 1 3/4 miles, about N. by
E., from Sandy Hook lightship."
"16. As the vessels neared each other, the first officer of the
Martello called out to the barkentine, 'Luff; luff all you
can,' but his call was not heard by those on the Willey."
"17. From the time of the hearing of the first whistle down to
the time of the collision, the steamer, except as stated in the
sixteenth finding, gave no signal or indication showing whether her
intention was to go ahead of the barkentine or astern, or even
whether she had reversed her engines. In consequence, the
Willey held her course, as she was bound to do, but the
steamer ran into her with great violence, the steamer's stem
running into the port bow of the barkentine, cutting its way into
her keel, knocking her stem over to starboard, and driving her bow
round to eastward."
"18. Had the steamer been going at three knots an hour, had she
stopped her engines as soon as she heard the
Willey's
Page 153 U. S. 68
horn, and reversed when she sighted the barkentine, she would
have stopped out of the
Willey's course."
"19. The master of the barkentine was on deck. He had his vessel
under control. If, when the steamer first sighted the barkentine,
the master of the latter had been advised that the steamer was
starboarding her wheel, he could have ported, and avoided the
collision. If at that time the steamer had ported her wheel, the
barkentine, keeping her course, would have crossed the steamer's
bow in safety. If at that time the master of the barkentine had
been advised that the steamer was reversing, he could have ported
and avoided the collision."
"
Conclusions of Law"
"1. The
Freda A. Willey was free from fault."
"2. The
Martello was in fault for proceeding at an
excessive rate of speed in a fog, and is solely responsible for the
collision."
"3. There should be a decree for the
Freda A. Willey,
and against the
Martello, in each case, with costs of the
district and circuit courts."
Subsequently, on September 6 and upon request of counsel for the
Martello, the circuit court made the following additional
findings of fact:
"16. Captain Jenkins has held a master's certificate since 1856.
Pilot Henderson has been a New York and Sandy Hook pilot for nearly
forty-two years."
"30. Article 13 of the international rules and regulations for
preventing collisions at sea is as follows: 'Every ship, whether
sailing ship or steamship, shall, in a fog, mist, or falling snow,
go at a moderate speed.'"
"31. The moderate speed required by this article is not a fixed
rate of knots per hour, but something materially less than the
vessel's full speed."
"32. The
Willey at four o'clock on the morning of the
collision, was some twenty miles to the southward of the Sandy Hook
lightship."
"35. The
Willey at the time of the collision was
carrying not less than 2,191 square yards of canvas. "
Page 153 U. S. 69
"44. The ordinary course of outwardbound European steamers after
leaving Gedney's Channel is about E. S.E., and therefore across the
course pursued by the barkentine."
"48. Article 19 of the international rules and regulations for
preventing collisions at sea is as follows:"
" 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 signals on her
steam whistle,
viz.: 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 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."
"51. It was the duty of the barkentine, under the circumstances,
and with danger imminent, to use all the means reasonably within
her power to avert the collision."
"56. The crew of the barkentine consists of a captain, mate,
second mate, five men before the mast, and the steward -- nine in
all."
Upon the further request of counsel for the
Martello,
the following additional finding was made and filed July 30,
1890:
"104. The horn of the
Willey on board of her, and
sounded at the time of the collision, was not a horn sounded or to
be sounded by mechanical means, but was a tin fog horn."
But the court refused to find, as a conclusion of law therefrom,
that
"the
Willey was in fault for not having and using a
horn sounded by mechanical means, as required by article 12 of the
international rules for preventing collisions at sea."
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
1. The circuit and district courts agreed in holding the
Page 153 U. S. 70
Martello to have been in fault for too great speed. In
this conclusion we concur.
By the finding of the circuit court that at the time the horn of
the barkentine was heard upon the steamer, the latter was
proceeding at a speed of from five and a half to six knots an hour,
we are relieved from the necessity of examining the somewhat
conflicting testimony upon the question of the steamer's speed.
While it is possible that a speed of six miles an hour, even in a
dense fog, may not be excessive upon the open ocean and off the
frequented paths of commerce, a different rule applies to a steamer
just emerging from the harbor of the largest port on the Atlantic
coast, and in a neighborhood where she is likely to meet vessels
approaching the harbor from at least a dozen points of the compass.
Under such circumstances and in such a fog that vessels could not
be seen more than a quarter of a mile away, it is not unreasonable
to require that she reduce her speed to the lowest point consistent
with a good steerage way, which the court finds in this case to be
three miles an hour.
59 U. S.
Shaw), 18 How. 584;
59 U. S.
Goldsmith), 18 How. 89.
Further than this, however, the Court found (7) that "about a
minute or two after hearing the horn, the officers of the
Martello saw the barkentine
Freda A. Willey
looming in sight through the fog," and that (13)
"as soon as the
Willey loomed in sight of those on the
Martello, as indicated in the seventh finding, the first
officer of the steamship called out 'Hard a-port,' and the lookout
reported a vessel on the starboard bow. The captain immediately
ordered the helm hard a-port, and the engines reversed full
speed."
These findings, taken together, indicate that the
Martello took no action to avoid the collision until after
she saw the
Willey looming up in the fog, which was a
minute or two after hearing the horn. Under the circumstances, we
think the steamer did not act with sufficient promptness. By
article 12, subd. (b), of the revised international regulations for
preventing collisions at sea, prescribed by act of Congress of
March 3, 1885, c. 354, 23 state 438, 440,
"a sailing ship under way
Page 153 U. S. 71
shall make with her fog horn at intervals of not more than two
minutes, when on the starboard tack one blast, when on the port
tack two blasts in succession, and when the wind the wind is abaft
the beam three blasts in succession."
The wind at this time was E. by N., and blowing a five to six
knot breeze. One blast of the horn, heard upon the steamer's
starboard bow, indicated that the sailing vessel was approaching
upon her starboard tack, from a direction which would unavoidably
take her across the bow of the steamer, unless the speed of the
latter were sufficient to carry her beyond the point at which the
courses of the two vessels intersected, before the sailing vessel
reached that point. The steamship, however, had no right to
speculate upon this contingency. Hearing the horn as she did, and
being thus apprised of the bearing and course of the approaching
vessel, being, as she must necessarily have been, in doubt as to
her distance from the steamship, it was the duty of the latter at
once to stop until, by repeated blasts of the horn, she could
assure herself of the exact bearing, speed, and course of the
approaching vessel. The necessity of instantly stopping, or at
least of a reduction of speed to the lowest point consistent with
the maintenance of steerage way in the presence of an unknown
danger is one which the masters of steam vessels are slow to
appreciate; but the courts have had occasion to enforce it so often
it can, as a matter of law, be no longer considered doubtful. The
sound of a fog horn upon either bow, if the blast be such as to
indicate that the approaching vessel is upon a course crossing that
of the steamer, is obviously such a danger. As we had occasion to
observe of a somewhat similar collision in
The City of New
York, 147 U. S. 72,
147 U. S.
84:
"Upon hearing the fog horn of the bark only one point on her
starboard bow, the officer in charge should at once have checked
her speed, and if the sound indicated that the approaching vessel
was near, should have stopped or reversed until the sound was
definitely located, or the vessels came in sight of each other. . .
. There is no such certainty of the exact position of a horn blown
in a fog as will justify a steamer in speculating upon the
probability of avoiding it by
Page 153 U. S. 72
a change of the helm, without taking the additional precaution
of stopping until its location is definitely ascertained."
The Hypodame,
6 Wall. 216;
The Sea Gull,
23 Wall. 165,
90 U. S. 177;
The Kirby Hall, 8 P.D. 71;
The Ceto, 14 App.Cas.
670.
Indeed, the American and English courts are in perfect accord
with regard to the duty of the steamer under such circumstances,
and we are simply applying to the
Martello the law of her
own flag as well as ours in holding her to have been guilty of
negligence. Thus, in
The Kirby Hall, 8 P.D. 71, it was
held to be the duty of a steamship, hearing the steam whistle of
another steamship in close proximity, in a dense fog, but unable to
ascertain her course and position, to stop and reverse her engines
so as to take all way off of her and bring her to a standstill. So,
in
The John McIntyre, 9 P.D. 135, it was held that while
the master of a steamship was not at once bound the moment he heard
a whistle, wherever it might be, to stop and reverse his engines,
yet if in a dense fog he hears the whistle or fog horn of another
vessel more than once on either bow and in the vicinity, from such
a direction as to indicate that the other vessel is nearing him, it
is his duty to at once stop and reverse, so as to bring his vessel
to a standstill. In
The Dordogne, 10 P.D. 6, it was said
to be the duty of a steamer, on hearing the first whistle, to
reduce her speed, and, as the vessels get nearer, to bring the ship
to as complete a standstill as is possible without putting her out
of command, and when the other vessel has come close to, even
though not in sight, to stop and reverse the engines.
See also
The Frankland, L.R. 4 P.C. 529;
The Ceto, 14 App.Cas.
670;
The Ebor, 11 P.D. 25;
The Lancashire
App.Cas. (1894) 1.
This case is much like that of
The Colorado,
91 U. S. 692 a
collision in Lake Huron, in a dense fog, between a propeller and a
bark, in which the propeller, though moving only at the rate of
from five to six miles an hour, was held to have been in fault in
not bringing down her speed to a slower rate and in giving
conflicting orders to the wheel before the position and course of
the bark had been ascertained.
Page 153 U. S. 73
2. The
Willey is also charged to have been in fault not
only for excess of speed, as to which we express no opinion, but
for a failure to provide herself with a mechanical fog horn, as
required by article 12 of the revised international regulations,
which reads as follows:
"A steamship shall be provided with a steam whistle or other
efficient steam sound signals, so placed that the sound may not be
intercepted by any obstructions, and with an efficient fog horn, to
be sounded by a bellows or other mechanical means, and also with an
efficient bell. . . . A sailing ship shall be provided with a
similar fog horn and bell."
The finding of the circuit court that the
Willey was
not provided with a mechanical fog horn was made under somewhat
peculiar circumstances. The opinion of the court was delivered, and
the usual findings of fact filed, on July 31, 1889. On the 6th of
September, upon request of counsel for the
Martello, the
court made certain additional findings; but neither in the findings
originally requested by the
Martello nor in the findings
actually made by the court nor in the request for additional
findings to the number of nearly 100 was any allusion made to the
failure of the
Willey to provide herself with a mechanical
fog horn; but nine months after the last findings had been made,
and in July, 1890, the court made an additional finding that
"the horn of the
Willey on board of her, and sounded at
the time of the collision, was not a horn sounded, or to be
sounded, by mechanical means, but was a tin fog horn,"
refusing, however, to find as a conclusion of law therefrom that
the
Willey was in fault. In view of this lapse of time,
and of the fact that the case had been tried upon the theory that
the
Willey had carried a sufficient horn, we think it was
within the discretion of the court to have refused this finding;
but, as it appears upon this record as a fact in the case, we are
compelled to accord it is proper weight.
Some question was made with regard to the meaning of the words
"similar fog horn," required upon sailing vessels; but if
steamships must be provided with a horn "sounded by a bellows or
other mechanical means," and sailing ships with a
Page 153 U. S. 74
"similar fog horn," it follows necessarily that it must be
sounded in a similar manner. Indeed, as the horn of a steam vessel
is usually sounded by steam, we think it is probable that in the
use of the word "bellows" sailing vessels were contemplated. Such
has been the construction given to the statute both in this country
and in England.
The Love Bird, 6 P.D. 80;
The
Wyanoke, 40 F. 702;
The Catalonia, 43 F. 396;
The
Bolivia, 49 F. 169.
There can be no doubt that the
Willey was guilty of a
statutory fault in the failure to provide herself with the fog horn
prescribed by the international regulations, and the presumption is
that this fault contributed to the collision. This is a presumption
which attends every fault connected with the management of the
vessel, and every omission to comply with a statutory requirement
or with any regulation deemed essential to good seamanship.
In The
Pennsylvania, 19 Wall. 125, it was said that
"in such a case the burden rests upon the ship of showing, not
merely that her fault might not have been one of the causes, or
that it probably was not, but that it could not have been."
In this case, a bark was condemned for ringing a bell as a fog
signal while under way, although in a case arising out of the same
collision, the judicial committee of the privy council held that
inasmuch as it appeared that the fog horn would not have been heard
a sufficient distance to have enabled the steamer to avoid the
danger, the bark should not be condemned for a technical failure to
comply with the statute. 3 Mar.Law Cas. (O. S.) 477, 23 Law Times
(N.S.) 55. In other words, both courts proceeded upon the same
legal principle; but in the English court the evidence was
considered sufficient to show that the sounding of a bell instead
of a fog horn could not have contributed to the collision. To the
same effect are
Richelieu Navigation Company v. Boston
Insurance Company, 136 U. S. 408,
136 U. S. 422;
Belden v. Chase, 150 U. S. 674,
150 U. S. 699;
The Fanny M. Carvill, 13 App.Cas. 455
n., in
which the Court of Appeals observed that
"if you can show that there is a defect in the lights, that
vessel must be held to blame
Page 153 U. S. 75
unless she can show that the defect which exists in her lights
could not by any possibility have contributed to the
collision."
See also The Duke of Buccleuch, 15 P.D. 86 (1891)
App.Cas. 310.
While no case appears to have arisen in the highest court either
of this country or of England, where this presumption was applied
to the absence of a mechanical fog horn, several cases have come
before the lower courts in which the requirement has been held to
be obligatory, and a noncompliance to create a presumption of
fault.
The Love Bird, 6 P.D. 80;
The Bolivia, 49
F. 169, 170;
The Trave, 55 F. 117;
The Wyanoke,
40 F. 702;
The Catalonia, 43 F. 396;
The Energy,
42 F. 301.
Can it be said in this case that the absence of a mechanical fog
horn could not by any possibility have contributed to the
collision? We think not. Upon the contrary, it seems to us not
improbable that it did. It is apparent that the reason the
regulations prescribed a horn blown by mechanical means is that a
louder and more prolonged blast can be blown by that method than by
the power of the lungs. The evidence is undisputed that the
officers of the
Martello heard but one blast of the
Willey's fog horn before she hove in sight, and that this
(her appearance) was only a minute or two after hearing the horn.
The finding is that
"about forty minutes after discharging the pilot, the horn, one
blast of a sailing vessel, was heard on the starboard bow. At that
time, the captain and third officer were on the bridge, a competent
lookout was in the cro'nest about 100 feet abaft the stern [stem],
the first officer was on the lookout on the forecastle, and the
quartermaster was at the wheel."
"6. At that time the steamer was heading E. S.E. The wind was
about E. by N., blowing about a five to six knot breeze,"
etc.
"11. She [the
Willey] was heading north, close-hauled,
on the starboard tack, sounding her horn at intervals of one or two
minutes, and making about four knots an hour."
"12. While thus proceeding, she thrice heard the steamer whistle
of a steamer, answering promptly each time with a
Page 153 U. S. 76
single blast of her horn. At this last signal, the
Martello appeared in sight, bearing about four points on
the port bow and a quarter of a mile away."
The gist of this is that while the horn was sounded at intervals
of from one to two minutes, and the steamer was to the leeward of
the barkentine, but one blast was heard, while three signals of the
Martello's whistle were heard upon the barkentine. Now if
the barkentine had been provided with a more powerful horn, it
appears to us not only possible but probable that more than one
blast would have been heard, and the steamer thus apprised of the
course and distance of the bark and of the fact that she was
approaching her upon a course that would carry her across the bows
of the steamer.
While we hold it to have been a fault upon the part of the
steamer not to have stopped when she heard the horn, there was
certainly some excuse for her failure to do so, and the master
might not unreasonably have supposed that he would hear a second
blast before the vessel hove in sight, and thus be able to gauge
more accurately her course and distance. Had the officer of the
Martello, however, failed to stop or check her speed after
hearing two or three blasts of the horn gradually drawing nearer,
his neglect would have been so much grosser than it actually was
that we cannot presume he would have been guilty of it.
In this particular ~The Love Bird,~ 6 P.D. 80, which was a case
of collision between the bark
Pansewitz and the screw
steamship
Love Bird, is directly in point. Two blasts of
the fog horn were admitted to have been heard upon the steamer.
Counsel for the bark argued that if the steamer had stopped when
she first heard the trumpet, there would have been no collision,
and hence that the absence of a mechanical fog horn did not
contribute to the disaster. On the other hand, it was argued for
the steamer that when she first heard the trumpet of the bark, she
was so near to her that it was impossible to avoid her. Sir Robert
Phillimore held that the testimony showed there were three blasts
heard on board the steamer nearly ahead; that she proceeded on
Page 153 U. S. 77
her course, neither stopping nor reversing her engines, which it
was clearly her duty under the circumstances to have done. He
found, however, that the bark had not sustained the burden of
showing "that by no possibility could the presence of a fog horn
have prevented the collision, for it might possibly have given more
warning to the other vessel." He therefore condemned the bark,
although the collision occurred within three days after the act
requiring a mechanical fog horn came into operation, and although
the bark had left her port of departure (Dieppe) before the act
took effect. It is true that this case was decided by a single
judge and does not seem to have been appealed, but the opinion
seems to us to be founded upon sound legal principles.
After these vessels came in sight of each other, they were so
far
in extremis that it would probably be unjust to impute
fault to either of them. The action of the
Martello in
reversing her engines at full speed was obviously a proper one.
Perhaps if, instead of putting her helm hard a-port, she had put it
hard a-starboard, and the barkentine had at the same time luffed
and come into the wind, the vessels might have escaped each other,
or have come together with a glancing blow which would not have
proved disastrous. But we impute no fault to the barkentine for her
nonaction in that particular, as she was entitled to hold her
course, at least until she received a signal from the steamer to
luff.
But, as we think the bark has failed to sustain the burden of
proving that the want of a mechanical fog horn could hot have
contributed to the collision, the decree of the court below must be
reversed and the case remanded for further proceedings in
conformity with this opinion.
