On the facts, which are detailed in the statement of the case,
below, respecting the navigation and the conduct of the Victory and
the Plymothian just previous to the collision which caused the
injuries and damage herein complained of,
Held:
(1) That as a general rule, vessels approaching each other in
narrow channels, or where their courses diverge as much as one and
one-half or two points, are bound to keep to port and pass to the
right, whatever the occasional effect of the sinuosities of the
channel.
(2) That the
Victory was grossly in fault, and that the
collision was the direct consequence of her disregard of that rule
of the road, and of her reckless navigation.
(3) That the fault of the
Victory being obvious and
inexcusable, the evidence to establish fault on the part of the
Plymothian must be clear and convincing in order to make a
case for apportionment, the burden of proof being upon each vessel
to establish fault on the part of the other.
(4) That, as the damage was occasioned by collision and was
within the exceptions in the bills of lading, it rested upon the
underwriters to defeat the operation of the exception by proof of
such negligence on the part of the
Plymothian as would
justify a decree against her if sued alone.
(5) That the
Plymothian was on her proper course, that
she was not bound to anticipate the conduct of the
Victory, and that she took all proper precautions as soon
as chargeable with notice of risk of collision.
On the 12th day of November, 1891, the steamers
Victory
and
Plymothian came into collision in the Elizabeth River,
between Lambert's Point and Craney Island Light. The
Plymothian, laden with a cargo of cotton, was outward
bound. The
Victory was inward bound, in ballast. The
Plymothian and her cargo were seriously damaged. The
Victory was also damaged about the bows.
On the fourteenth of November, the master of the
Victory filed a libel against the
Plymothian in
the District Court for the Eastern District of Virginia, and on
November 27 a libel
Page 168 U. S. 411
was filed in that court by the underwriters of the
Plymothian's cargo against the
Victory and the
Plymothian, seeking to hold them both liable for damage
thereto. The Port of Plymouth Steamship Company, owner of the
Plymothian, filed a petition in said district court on the
third of December, praying for a limitation of its liability for
damages growing out of the collision and giving notice of its
intention to contest its liability for any part thereof. A similar
petition was filed the same day by MacIntyre and others, owners of
the
Victory. The value of the owners' interest in the
Plymothian and her pending freight was fixed at $45,221,
less $5,000 salvage, or $40,221; the value of the interest of the
owners of the
Victory at the sum of $67,500. Each gave
bond. The damages to the
Victory were proven at
$14,363.80; to the
Plymothian at $41,684.12, and to the
cargo at $71,427.97.
The cause was heard upon pleadings and evidence, and the
district court held the
Victory solely in fault for the
collision, and decreed a recovery by the owners of the
Plymothian and the underwriters of her cargo,
pro
rata, to the extent of the bond filed by the owners of the
Victory in their limitation proceeding. 63 F. 631. The
underwriters of the cargo and the owners of the
Victory
severally appealed from the decree of the district court to the
Circuit Court of Appeals for the Fourth Circuit. That court
concurred with the district court so far as concerned the faults
found against the
Victory, but held that the
Plymothian was also in fault to a slight degree, and
modified the decree of the district court by awarding the whole of
the
Victory's bond to the cargo, and that any amount
remaining unsatisfied should be paid by the owner of the
Plymothian. 68 F. 395.
The owners of the
Victory and the owner of the
Plymothian thereupon severally petitioned for the writ of
certiorari from this Court, under section 6 of the Judiciary Act of
March 3, 1891, 26 Stat. 826, c. 517, and the writ was accordingly
issued.
The facts, as stated in substance by the district court and the
circuit court of appeals, were as follows:
The
Victory was a British steamer of 1,774 tons, net
tonnage; 338 feet in length; 38 1/2 feet in breadth; inward bound,
in ballast,
Page 168 U. S. 412
drawing seventeen feet aft and thirteen feet forward. Her
officers and crew numbered thirty-one, all told.
The
Plymothian was a British steamer of 1,016 tons net
register, 260 feet long, laden with a cargo consisting 3,682
compressed bales of cotton. Her officers and crew numbered
twenty-one all told. She was outward bound from Galveston to
Liverpool, having come in through Hampton Roads to take in coal at
Lambert's Point. Her draft was fourteen or sixteen feet. Both
vessels were in charge of pilots, and their masters were on their
bridges, respectively; each acting as lookout and seeing that the
orders of the pilots were executed. Neither ship had a special
lookout forward of the bridge on her bows. The collision occurred
in a straight stretch of the channel of the Elizabeth River,
between Craney Island Lighthouse and the turn in the channel at the
buoys opposite Lambert's Point. There were two of these buoys -- a
red one, No. 22, known as the "Merrimac Buoy," on the west side,
and a black one, No. 9, on the east side. The distance from buoy
No. 9 to Craney Island Lighthouse was 1,967 yards on the chart, or
about a mile and one-eighth.
The place of collision was at black buoy, No. 7 at the easterly
edge of the eighteen-foot curve of the channel, 1,200 yards south
of the Craney Island Lighthouse, and 767 yards north of the black
buoy, No. 9. The channel is 250 yards wide at Craney Island and 450
yards wide at buoy No. 9.
The following diagram of the channel sufficiently indicates the
situation.
image:a
The
Plymothian had been taking coal at Lambert's Point
pier, a short distance from buoy No. 9. She left the pier at 4
p.m., heading out off the buoy, the course from the pier to the
turning point down the channel being northwesterly at an angle of
45 degrees. The usual departing signal was given as she moved from
the pier. Proceeding outward to round buoy No. 9, with the helm
slightly a-port, the engines were at half speed until the buoy was
close aboard on the starboard bow. The engines were then put at
full speed, and the helm hard a-port; and, rounding the buoy, she
set her course down the easterly side of the channel.
Page 168 U. S. 413
At this time, the
Victory was seen both by the captain
and the pilot of the
Plymothian to be coming up the
channel, southward, below Craney Island Light, to the westerly side
of the mid-channel, and on their port bow. The
Plymothian
thereupon blew a passing signal of one whistle, just as she passed
buoy No. 9, and a minute later repeated it, without hearing any
reply from the
Victory. The vessels were over a mile apart
at this time, with a bend of the channel between them. The wind was
southwesterly, with force enough to enable sailing vessels to make
two or three knots against the tide. The
Victory had in
the meantime been maintaining her general course so as to pass well
clear, port to port. She had ported her helm, so as to show her
port quarter to those on the
Plymothian, straightening up
to the channel course of S. 1/2 W. from Craney Island Light. She
had been moving at the rate of ten miles an hour, but at Craney
Island she slackened her speed, and proceeded at the rate of six or
seven miles an hour, assisted by a flood tide running southward
with a force of two knots. The
Plymothian, in
straightening out at buoy 9, had begun to move against the tide at
the rate of about four knots an hour, keeping well to the eastern
side of the channel.
As the vessels were thus proceeding, the
Victory,
shortly after passing Craney Island Light, apparently directed her
course towards the easterly side of the channel, as if under a
starboard helm. The pilot of the
Plymothian blew a single
blast on his whistle, and, receiving two in reply, immediately
reversed his engines, sending them full speed astern, blew a danger
signal of three blasts, and put the helm hard a-port. The
Victory somewhat later also blew a danger signal, and
then, or shortly afterwards, reversed her engines three lengths
away from buoy No. 7, but not in time to stop her headway, due to
high speed, and the force of the flood tide. The
Victory
claimed that she gave two two-blast signals, and there is a
conflict of evidence as to her position when the first of them was
sounded. The
Plymothian heard but one such signal, just
preceding the danger blasts.
The
Plymothian came practically to a standstill before
the
Page 168 U. S. 415
collision, with buoy No. 7 close under her starboard bow; but
the
Victory came on, and struck the
Plymothian's
port side at the bridge at an angle variously estimated at from 45
to 60 degrees, penetrating about fifteen inches into the ship,
through her three steel decks, stringer plates, and beams. The
force of the blow threw the
Plymothian's head around to
the starboard, so that buoy No. 7, which, prior to the collision,
had been under her starboard bow, was seen to come around in front
of her stem, to her port bow.
The
Plymothian rapidly filled with water, and, to
prevent her sinking in the channel, her engines were put at full
speed ahead, until she grounded on the mud flats to the eastward of
the channel, where she sank in shallow water. She was subsequently
raised, repaired temporarily at Newport News, and finally in
England, on the completion of the voyage. The
Victory was
able to proceed to Norfolk. She was also temporarily repaired at
Newport News, and finally in England.
Of the cargo of 3,682 bales of cotton shipped on the
Plymothian at Galveston, 1,671 bales were shipped under
bills of lading containing the provisions, among others, that the
vessel should not be liable for loss or damage occasioned by
collisions or other accidents of navigation, even though occasioned
by negligence, and that the contract should be governed "by the law
of the flag of the vessel carrying the goods."
The other 2,011 bales were shipped from interior points under
bills of lading given by the inland carrier to the shipper. On
reaching Galveston, this cotton was delivered to the
Plymothian, which issued bills of lading or receipts to
the inland carrier, containing the negligence and flag clauses. The
bills of lading given by the inland carriers had the negligence,
but not the flag, clause.
Page 168 U. S. 416
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the court.
The district court and the circuit court of appeals concurred in
finding the
Victory grossly in fault, and we see no reason
for arriving at any other conclusion. In our opinion, the collision
was the direct consequence of the
Victory's disregard of
the rule of the road, and her reckless navigation.
In any aspect of the case, the rule of the road was to keep to
the right.
By rule eighteen of the regulations prescribed by the Act of
April 29, 1864, carried forward in section 4233 of the Revised
Statutes,
"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."
The first rule of the supervising inspectors is to the same
effect.
*
Page 168 U. S. 417
And this was proven to be the usage in the navigation of the
Elizabeth River, and known to the master of the
Victory.
These vessels were approaching each other in such directions and
with such bearings as required them to keep to the right. The
distance between Craney Island Light and buoy No. 9 was about a
mile and one-eighth. When the
Plymothian was at buoy No.
9, the
Victory was somewhat to the north of, or near,
Craney Island. As the
Plymothian straightened down the
channel, opposite buoy 9, she was near the eastern side, and
heading straight down the channel course N. 1/4 or 1/2 E. She was
obliged to swing, on leaving the pier, to round the buoy, but had
steadied down as she passed it. The evidence thoroughly established
that she was never on the westerly side of the channel. We think
the district judge was amply justified in finding as he did that
the
Plymothian had not,
"in coming out from Lambert's pier, gone over to the west of the
channel, near to red buoy No. 22, and had not, after doing so,
recrossed the channel to reach its position near buoy 9, as claimed
by the
Victory's counsel. The tide was not strong enough
to force her over there, and it would have been out of her course
to have gone there. The testimony is conclusive to that
effect."
The
Victory, when in the neighborhood of Craney Island,
was either in mid-channel or to the westward of it and on the
Plymothian's port bow. The
Victory's witnesses
admitted starboarding twice for different schooners, and hard
starboarding just before the collision, but both of the lower
courts, in accordance with the great weight of evidence, found that
the
Victory was not prevented by other vessels in the
channel, either from going on the westerly side, or from
staying
Page 168 U. S. 418
there, while the testimony of the
Victory's pilot
indicated that his object in heading over for the easterly side of
the channel was to cut off some of the distance into port, by
passing close to buoys Nos. 7 and 9.
Moreover, as immediately after straightening down, the
Plymothian ported a little, and then hard ported, even if
the
Victory had been heading at a gradual angle across the
channel all the way from Craney Island, the vessels would have been
approaching each other from an oblique direction, which would have
brought the inspectors' second rule into play, that vessels so
situated "shall pass to the right of each other as if head and
head, or nearly so."
The starboard-hand rule had no application. Although, when the
Plymothian started from the pier, her starboard side must
necessarily have been down stream as she turned, the vessels were
never starboard to starboard after she had rounded buoy 9 and
straightened down the channel, and the
Victory had passed
Craney Island and straightened up S. 1/2 W. Indeed, the rule
applicable when two vessels "are crossing so as to involve risk of
collision," that "the vessel which has the other on her own
starboard side shall keep out of the way," is ordinarily
inapplicable to vessels coming around bends in channels, which may
at times bring one vessel on the starboard of the other. It has
often been held as a general rule of navigation that vessels
approaching each other in narrow channels, or where their courses
diverge as much as 1 1/2 or 2 points, are bound to keep to port and
pass to the right, whatever the occasional effect of the
sinuosities of the channel.
New York & Baltimore
Transportation Co. v. Philadelphia & Savannah Steam Navigation
Co., 22 How. 461;
Union
Steamship Co. v. New York Steamship Co., 24 How.
307;
The
Vanderbilt, 6 Wall. 225;
The
Johnson, 9 Wall. 146;
The John L.
Hasbrouck, 93 U. S. 405;
The Berkshire, 74 F. 906.
It is interesting to note that
Union Steamship Co. v. New
York Steamship Co. was a case of collision in the channel of
the Elizabeth River, where the steamship
Jamestown,
outward bound, took the eastern side of the channel, rounding
Page 168 U. S. 419
Lambert's Point near the buoy, and proceeded on her course north
one-fourth east. She was struck by the
Pennsylvania,
coming up, by reason of the
Pennsylvania's putting her
helm to starboard, instead of keeping her proper course, or porting
when it became known that the
Jamestown was approaching,
and it was held that the
Pennsylvania was solely to
blame.
The principle was embodied in Article 21 of the international
regulations adopted by the Act of March 3, 1885, 23 Stat. 438, c.
354, providing that,
"in narrow channels every steamship shall, when it is safe and
practicable, keep to that side of the fairway or mid-channel, which
lies on the starboard side of such ship,"
which is Article 25 of the regulations adopted August 19, 1890,
26 Stat. 320, c. 802, and put in operation, after some
postponements and amendments, in 1897, 29 Stat. 885, 893, and of
the Act of June 7, 1897, 30 Stat. 96, c. 4.
In
The Pekin (1897), App.Cas. 532, Articles 21 and 22
of these regulations were considered. Article 21 is given above,
and Article 22 read as follows: "Where by the above rules one of
two ships is to keep out of the way, the other shall keep her
course."
That was an appeal from the decision of the Supreme Court for
China and Japan, sitting in admiralty, in which the steamship
Normandie was alone held to blame for a collision which
took place between her and the steamship
Pekin in the
River Whangpoo on April 3, 1896. The case was thus stated by Sir
Francis Jeune, delivering judgment in the Privy Council:
"At Pootung Point, the Whangpoo makes a sharp bend towards the
south -- returning, indeed, on its course at something more than a
right angle, and to the eastwards of that point the stream is
divided by a line of buoys into two navigable channels -- the
northern being called the inside, and the southern the outside,
channel. The westernmost of these buoys is known as the 'Old Dock
Buoy.' The
Pekin was proceeding up the inside channel
along the line of buoys (that is to say, on the starboard side of
that channel), and the
Normandie was coming down the river
to the southward of mid-channel. It
Page 168 U. S. 420
is clear that, when near the Old Dock buoy, the
Pekin
ported, and that at or about the same time the
Normandie
starboarded. The
Normandie afterwards endeavored to port,
but her helm failed to act owing to what is termed the 'Chow Chow'
water, which is, it would appear, a well known area of eddies or
whirlpools off Pootung Point. The result was that a collision
occurred well to the north of the river, and somewhat to the
eastward of Pootung Point, the stem of the
Normandie
striking the port bow of the
Pekin."
"The evidence is not clear as to the whistles given by the two
vessels. The learned Chief Justice of the supreme court has found
that"
"at the same time, two blasts of the
Normandie's
whistle were blown as a signal to the
Pekin, those on
board the
Pekin simultaneously blew one blast of her
whistle."
"Those on the
Pekin dispute the double blast of the
Normandie, but their lordships think that, accepting, as
they do, the above finding as correct, it may well be that one of
the two whistles of the
Normandie coincided with the one
whistle of the
Pekin, and so those on the
Pekin
heard only one whistle from the
Normandie, and believed
that only one was given."
The appeal raised the question of the conduct of both vessels.
The
Normandie was held manifestly in fault. As to the
conduct of the
Pekin, two charges were insisted on by
counsel; and, after setting them forth, the opinion thus
proceeded:
"The first of these charges raises the question were those two
vessels crossing vessels within the meaning of Article 22, and also
the further question whether the
Pekin kept her course.
The effect of Article 22 has been made clear by several
authorities. The cases of
The Velocity, L.R. 3 P.C. 44,
The Ranger, L.R. 4 P.C. 519, and
The Oceano, 3
P.D. 60, have explained and illustrated the distinction which
exists in the effect of this rule as regards vessels navigating the
open sea, and those passing along the winding channels of rivers.
The crossing referred to in Article 22 is 'crossing so as to
involve risk of collision,' and it is obvious that, while two
vessels, in certain positions and at certain distances in regard to
each other, in the open sea, may be crossing so as
Page 168 U. S. 421
to involve risk of collision, it would be completely mistaken to
take the same view of two vessels in the same positions and
distances in the reaches of a winding river. The reason, of course,
is that the vessels must follow, and must be known to intend to
follow, the curves of the river bank. But vessels may, no doubt, be
crossing vessels, within Article 22, in a river. It depends on
their presumable courses. If at any time two vessels, not end on,
are seen, keeping the courses to be expected with regard to them,
respectively, to be likely to arrive at the same point at or nearly
at the same moment, they are vessels crossing, so as to involve
risk of collision; but they are not so crossing if the course which
is reasonably to be attributed to either vessel would keep her
clear of the other. The question therefore always turns on the
reasonable inference to be drawn as to a vessel's future course
from her position at a particular moment, and this greatly depends
on the nature of the locality where she is at that moment."
"Their lordships have restated these propositions because they
appear to them decisive of this part of the present case. They are
advised by their assessors, and it appears to them clear, that,
having regard to the features of the locality at the time the
Pekin ported her helm (that is to say, when she was near
the Old Dock buoy), the vessels were not crossing vessels, within
the meaning of Article 22. It was reasonable for those on the
Pekin -- as, without fault on their part, they did not
hear the double blast of the
Normandie before they took
action with their helm -- to assume that the
Normandie
would take the outside channel, in which case their courses would
not cross, or would take the southern side of the inside channel,
in which case their courses would indeed cross, but not so as to
involve risk of collision."
We ought to add that, in the case before us, even if the
steamers had been so far on the starboard of each other as to
justify the pilots in considering that they were not meeting "head
and head," or nearly so, there was no pretense of an agreement to
go starboard to starboard, under Inspectors' Rule I; nor was this a
case for the application of Rule III.
Testing the
Victory's conduct by settled rules, she
was
Page 168 U. S. 422
plainly in fault for not keeping to the right and in attempting
to cross the
Plymothian's course, and her speed renders
her conduct still more blameworthy. It does not seem to be
controverted that at the time of leaving the lighthouse her speed
was five and one-half knots through the water, and there was a tide
force of two knots, which would make seven and one-half knots over
the ground. The circuit court of appeals found that, from Craney
Island up, her speed through the water was six or seven miles an
hour, with a two-mile tide assisting her, which would make her
speed over the bottom eight or nine miles. Certainly she must be
held to have known that she was approaching the
Plymothian
so as to involve the risk of collision, and should have slackened
her speed, under Rule 21, and have stopped and reversed sooner than
she did, when she was informed by sight and hearing that her effort
to crowd the
Plymothian off her rightful course must be
unsuccessful.
If she could not port and keep on her own side, she should have
reversed at least as early as when her second two-blast signal was
blown and not assented to by the
Plymothian, yet it was
the
Plymothian that immediately reversed on hearing that
signal, and blew three danger signals, while the
Victory
did not blow her danger signals until after that, and manifestly
did not reverse as early as the
Plymothian. At the
collision, the
Plymothian's headway had been stopped, but
the
Victory had such headway on that she threw the
Plymothian's bows around to starboard, while her own bows
cut through the
Plymothian's three decks and stringer
plates, a distance of at least fifteen inches, and were damaged as
far back as three feet.
None of the excuses the
Victory set up for being on the
wrong side of the channel tended to palliate her guilt. The only
time at which the
Plymothian could have been on the
Victory's starboard bow was when the
Victory was
below Craney Island, and she was bound to govern herself by the
bearings of the vessels as they were after she straightened up the
channel course from Craney Island south, and then the vessels were
port to port. The
Victory met a few steamers,
Page 168 U. S. 423
but her captain and pilot admitted that they did not force the
Victory out of her course, and they were passed near
Craney Island, or the lighthouse, or far below the place of
collision. So there were two or three schooners in the channel, but
both the courts below found that they did not prevent the
Victory from doing her duty by porting and keeping to the
right, and her presence near them at all was attributable to her
having left the western side of the channel.
We need not elaborate, in view of the concurrence of the courts
below, and have gone so far into the evidence on this branch of the
case because it illustrates the point on which those courts were at
variance.
As between these vessels, the fault of the
Victory
being obvious and inexcusable, the evidence to establish fault on
the part of the
Plymothian must be clear and convincing,
in order to make a case for apportionment. The burden of proof is
upon each vessel to establish fault on the part of the other.
The recognized doctrine is thus stated by MR. JUSTICE BROWN in
The Umbria, 166 U. S. 404,
166 U. S.
409:
"Indeed, so gross was the fault of the
Umbria in this
connection that we should unhesitatingly apply the rule laid down
in
The City of New York, 147 U. S. 72,
147 U. S.
85, and
The Ludvig Holberg, 157 U. S.
60,
157 U. S. 71, that any doubts
regarding the management of the other vessel, or the contribution
of her faults, if any, to the collision, should be resolved in her
favor."
"Collision" was an exception in all the bills of lading, and,
laying out of view the "negligence" and "flag" clauses, as the
damage was occasioned by collision, and within the exception, it
rested upon the underwriters in this case to defeat the operation
of the exception by proof of such negligence on the part of the
Plymothian as would justify a decree against her if sued
alone.
Clark v.
Barnwell, 12 How. 272,
53 U. S. 280;
Transportation Co. v.
Downer, 11 Wall. 129;
The City of Hartford and
The Unit, 97 U. S. 323,
97 U. S. 325;
The Ludvig Holberg, 157 U. S. 60.
Apparently it is a hardship for the underwriters on the
Plymothian's cargo to be compelled to bear a portion of
their own loss, but if the
Plymothian was free from fault,
this is
Page 168 U. S. 424
merely the result of the limitation of liability acts, the value
of the
Victory not being sufficient to pay the entire
damages sustained.
The circuit court of appeals and the district court arrived at
different conclusions in respect of the
Plymothian's
entire freedom from fault. The district court held that the
Plymothian was without blame, while the circuit court of
appeals was of opinion that she was not wholly blameless, because
she kept her course "without taking any precaution whatever until
too late, and when the pending collision became inevitable."
Whether she may not have been slightly in fault may be a close
question. This is often so when subsequent knowledge of what might
have prevented disaster tends to qualify the inquiry as to the
prior duty to aver it. But, after all, the question is, as pointed
out by Mr. Justice McLean in
Williamson v.
Barrett, 13 How. 101, whether it was the duty of
the master, in the exercise of due care and caution in the
management of his vessel, to give a particular order. And on a
careful consideration of the evidence, we think that the
Plymothian was not bound to change her course or to stop
and reverse earlier than she did, and these are the only elements
of fault imputed to her.
Were the position and course and signals of the
Victory
such that the
Plymothian was bound to change her course,
or to stop and reverse sooner than she did?
The
Plymothian, in passing the buoy, straightened down
the channel course on the easterly side. The only change she made
after straightening down was by porting her helm, which put her
closer to the easterly edge of the channel at the time of the
collision. She left her pier at 4 o'clock p.m., under half speed,
until she rounded the buoy, when the engines were put full speed
ahead, 767 yards from the point of collision. The full speed of the
Plymothian was seven knots. The tide was running against
her with a force of two knots. She had her engines at full speed
against the tide perhaps five minutes, and both the courts below
found her speed over the ground was about four miles an hour. The
Victory blew two double blast signals and a three-blast
signal before the collision.
Page 168 U. S. 425
The evidence of her crew was that the two-blast signals were
sounded within a half a minute or a minute of each other, when the
steamer was halfway between Craney Island and buoy No. 7, and that
the three blasts followed a minute or so later. The
Plymothian heard only one two-blast signal and the
three-blast signal at that time, as appeared from disinterested
evidence on both sides. None of these independent witnesses heard
two double blasts and a three-blast signal from the
Victory in short succession. All of them who saw or heard
the first two blasts testified that that signal was blown when the
Victory was to the north of or about Craney Island. And in
her petition for limitation of liability, the
Victory
claimed to have blown that signal "soon after passing Craney Island
Light," and placed the
Plymothian at that time as
"apparently starting down the river from opposite Lambert's Point."
But if she blew two blasts twice, where her captain and pilot said
she did, they were blown close together. The
Plymothian's
evidence showed that she heard but one, and, if the
Victory blew two blasts twice within such a short interval
as she claims, it would seem that one of them overlapped the
whistle from the
Plymothian, or it may be that the last
two blasts were overlapped by the
Plymothian's danger
signal.
The evidence largely preponderates that only one signal of two
blasts and the signal of three blasts could be heard in the
neighborhood of the
Plymothian at the time the
Victory claims she repeated the two-blast signal and
followed it up with three, and we think that the conclusion is
sustained by the weight of evidence that the
Victory's
first two-blast signal was blown before she passed Craney Island,
when the vessels were so far apart that the
Plymothian
would not have been bound to stop if she had heard or seen that
signal, and, as there were at least two river steamboats between
the vessels at the time, her pilot might well have supposed that
the
Victory's two blasts were intended for one of them,
rather than for him. However, the
Plymothian did not see
or hear that signal, and cannot be held in fault, as contributing
to the collision, because she failed to see or hear what would not
have
Page 168 U. S. 426
been followed by any change of course, and if there were two
two-blast signals within a half a minute, then it is fair to
conclude, on the evidence, that one of them was overlapped by the
whistle of the
Plymothian. The
Plymothian acted
immediately and effectively on hearing the two-blast signal she did
hear, and succeeded in stopping her headway, and this when the risk
of collision first appeared, which was when the
Victory
last starboarded. The course of the
Victory was, we have
said, along mid-channel, or to the west of it, and did not involve
a risk of collision until she made a change to port under a
starboard helm, just before sounding the two-blast signal heard by
the
Plymothian. Her witnesses admit that they were
starting straight up the channel after passing Craney Island Light,
heading S. 1/2 W. The channel course below Craney Island, as shown
by the chart, was S. by E., and in heading S. 1/2 W., her helm must
have been ported, and the vessels were port to port. The testimony
of the
Plymothian's officers and crew was to the effect
that the
Victory was on their port bow all the way up from
below Craney Island to the point where she changed her course just
before blowing a two-blast signal, and they are corroborated by
independent and disinterested witnesses. The
Victory's
witnesses testified to starboarding for two or three schooners who
were near the point of collision, and this would account for her
sheer to port, as observed on the
Plymothian, when she
took her precautions for safety. Each of these vessels was entitled
to presume that the other would act lawfully; would keep to her own
side; if temporarily crowded out of her course, would return to it
as soon as possible, and that she would pursue the customary track
of vessels in the channel regulating her action so as to avoid
danger.
The Servia, 149 U. S. 144;
The City of New York, 147 U. S. 72;
Belden v. Chase, 150 U. S. 674.
The rule applicable to them was that each should keep to her own
starboard side of the channel. So long as the vessels were port to
port, the
Plymothian, proceeding at moderate speed, was
not bound to stop and reverse on the chance that the other vessel
might depart from the rules of navigation.
Page 168 U. S. 427
Nor would the
Plymothian necessarily have been bound to
stop and reverse at once if she had heard a two-blast signal from
the
Victory at the time when the
Victory claims
to have blown it. That was, the
Victory says, halfway
between buoy No. 7 and Craney Island, which would be six hundred
yards from the buoy, while the
Plymothian was three
hundred yards above the buoy, which would make the distance between
the vessels nine hundred yards, or a half a mile, as the district
judge found. The
Plymothian was entitled to rely on her
repeated single blast to correct the error of the
Victory
until it was made apparent by a further cross signal, or from a
change of heading, that she was persisting in her wrongful
course.
The case of
The Stephanotis and The Horton, cited to us
from the Shipping Gazette and Lloyd's List, of July 26, 1894, was
similar in its main features to the one before us. The collision
occurred on the River Tyne. On the part of the
Stephanotis, it appeared that she was bound up on the
north side of the channel at a moderate speed, in a snowstorm, when
the
Horton was observed about two hundred and fifty yards
off, also on the north side of the river, in such a position as to
make it impracticable for the
Stephanotis to pass up
between the
Horton and the buoys. She thereupon sounded
two short blasts and starboarded her helm, afterwards repeating the
signal. A short blast was then heard from the
Horton,
which was seen to be approaching as if under a port helm. The
Stephanotis came ahead, helm astarboard, her engines going
full speed ahead, as the only means of avoiding a collision. The
case for the
Horton was that she was keeping to the south
of mid-channel, going down the river at the rate of about four
knots. The
Stephanotis was seen coming up the river, half
a mile away, bearing right ahead. The
Stephanotis
thereupon blew one blast, and the
Horton responded with
one blast, and then ported and steadied her helm. When the vessels
were in a position to clear port to port, the
Stephanotis
blew two short blasts, and the
Horton, after replying with
one short blast, again slightly ported her helm. The
Stephanotis, however, blew two more blasts, and
Page 168 U. S. 428
as she was then seen to be under a starboard helm, the
Horton's whistle blew a short blast, and her engines were
set full speed astern, but the
Stephanotis struck the
Horton, doing her great damage.
The master of the rolls (Lord Esher) said:
"The advice which we have received from the gentlemen who assist
us is precisely that which struck me the moment I heard the
circumstances of this case. The advice to us is that there was time
and distance for the
Stephanotis to have ported after the
Horton blew one blast, and that the master of the
Horton might reasonably have expected that he would do so.
When the master or pilot of the
Horton heard the first two
whistles, which were the beginning of the other man's starboarding,
and when at that moment starboarding could have little effect, he
had a right reasonably to suppose that the man who at that moment
was starboarding his helm, or was beginning to do so, seeing him
there, and being told by him that he was porting, would have ample
time and distance, if he did not choose to persist in starboarding,
to have put his helm to port, or to have ceased starboarding, and
then they would have gone clear. But he persisted in starboarding.
Then comes the question, ought the pilot or captain of the
Horton to have stopped or reversed, or stopped, even at
that moment when the other was beginning to starboard? The answer
is that his beginning to starboard could hardly have been for the
Horton, but must have been for some other reason, and that
the master and pilot of the
Horton might reasonably have
supposed that, when, if anybody had looked, they must have seen the
Horton, and must have known that the
Horton was
porting, they had a right to suppose that the
Stephanotis
would stop starboarding immediately, and would have ported her
helm. If so, it was not unreasonable and unseamanlike, I think, for
the
Horton to keep on as she did. By the time that two
ship's lengths were passed over by the two vessels approaching each
other -- that is, the time of the second blast -- the collision was
inevitable. It seems to me that the judgment of the president, and
the advice of his trinity masters, was too severe. It was
requiring
Page 168 U. S. 429
men to do what no man ought to be expected to do under such
strange circumstances. Therefore, with great deference, I disagree
with the severity of their sentence, and think the
Stephanotis ought to be held solely to blame."
Similar views were expressed by Judge Brown, of the Southern
District of New York, in
The Florence, 68 F. 940.
In respect of both these vessels, the captain was acting as
lookout on the bridge, but there was no lookout stationed on the
bows. Can it be said that the absence of such a lookout on the
Plymothian contributed to the injury? Her captain, pilot,
and third officer were all on the bridge, and the view was clear
and unobstructed. Would a lookout on the bows have heard or seen
more than they did? The bearing of this inquiry is, of course, on
the failure of the
Plymothian to detect the first alleged
two-blast signal blown by the
Victory. We have already
indicated that the evidence is, to our minds, satisfactory that
that two-blast signal was blown when the
Victory was below
Craney Island Lighthouse. If so, the vessels were a mile and
one-eighth apart, and the
Victory was on the
Plymothian's port bow. The
Plymothian blew three
single-blast signals after that time, and neither of them was
dissented from by the
Victory until the last one, and the
proper maneuvers to avoid the risk then created were promptly
taken. But if it were assumed that the first two-blast signal was
blown when the
Victory was halfway between Craney Island
and buoy No. 7, the vessels were still half a mile apart, with room
to correct the proposed erroneous course. And if the
Victory blew her second two-blast signal inside of a half
minute after the first, as her witnesses testified, and the
Plymothian, upon hearing one of the two, immediately acted
on it, the failure to hear the other cannot be considered a fault
under the circumstances.
We are of opinion that the
Plymothian was on her proper
course, that she was not bound to anticipate the conduct of the
Victory, and that she took all proper precautions as soon
as chargeable with notice of risk of collision. The result is that
we agree with the district court in the conclusion that
Page 168 U. S. 430
the
Victory was wholly to blame, and that the
Plymothian was free from fault.
Decree of the circuit court of appeals reversed; the costs
of that court to be equally divided between the owners of the
Victory and the underwriters. Decree of the district court
affirmed, costs in this Court for preparing and printing the record
to be paid by the owners of the Victory, all other costs in this
Court to be divided equally between the owners of the Victory and
the underwriters.
*
"Rule I. When steamers are approaching each other '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 on the left or on the starboard side of each
other."
"Note. In the night, steamers will be considered meeting head
and head so long as both the colored lights on each are in view of
the other."
"Second Situation. Here, the green light only will be visible to
each, the screens preventing the red light from being seen. They
are therefore passing to starboard, which is rulable in this
situation, each pilot having previously signified his intention by
two blasts of the steam whistle."
"Rule II. 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 whistles shall be given and answered
promptly as in that case specified."
"Rule III. 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 steerageway
until the proper signals are given, answered and understood, or
until the vessels shall have passed each other."