In January, 1897, the navigation of the Mississippi River below
New Orleans was governed by the rules and regulations of 1864
(Rev.Stat. sec. 4233) and also by the supervising inspectors' rules
for Atlantic and Pacific inland waters.
A steamer ascending the Mississippi within 500 feet of the
eastern bank made both colored lights of a descending steamer,
approaching her "end on, or nearly end on." She blew her a signal
of two whistles and starboarded her wheel.
Held that she
was in fault for so doing, and that this was the primary cause for
the collision which followed.
Held also that the facts the
descending steamer seemed to be nearer the eastern bank and that
her lights were confused with the lights of other vessels moored to
that bank was not a "special circumstance" within the meaning of
Rule 24, rendering a departure from Rule 18 necessary "to avoid
immediate danger," since, if there were any danger at all, it was
not an immediate one, or one which could not have been provided
against by easing the engines and slackening speed.
Exceptions to general rules of navigation are admitted with
reluctance on the part of courts, and only when an adherence to
such rules must almost necessarily result in a collision.
The descending steamer, running at a speed of twenty miles an
hour, made the white and red lights of the
Dumois, the
ascending steamer, upon her port bow, and blew her a signal of one
whistle to which the
Dumois responded with a signal of two
whistles, starboarded her helm, shut in her red and exhibited her
green light.
Held that the descending steamer, the
Argo, in view of her great speed, should at once upon
observing the faulty movement of the
Dumois, have stopped
and reversed, and that her failure to do so was a fault
contributing to the collision, and that the damages should be
divided.
While a steamer may be so built as to attain the utmost possible
speed, she ought also to be provided with such means of stopping or
changing her course as are commensurate with her great speed, and
the very fact of her being so fast and apparently uncontrollable is
additional reason for greater caution in her navigation.
The nineteenth rule, which declares that "the vessel which has
the other on her own starboard side shall keep out of the way of
the other," does not absolve the preferred vessel from the duty of
stopping and reversing in case of a faulty movement on the part of
the other vessel.
Page 177 U. S. 241
The representatives of two passengers on the descending steamer
who lost their lives filed a libel against the owner of the
ascending steamer for damages, and recovered.
Held that,
as both vessels were in fault, one-half of such damages should be
deducted from the amount recovered from the
Dumois
notwithstanding that the local law gave no lien or privilege upon
the vessel itself.
The limited liability act applies to cases of personal injury
and death as well as to those of loss of or injury to property.
This was a libel in admiralty filed by Oscar M. Springer, owner
of the steamer
Argo, a small vessel of forty-eight tons
burthen, against the steamship Albert
Dumois, to recover
damages sustained by a collision between these two vessels in the
early morning of January 28, 1897, in the Mississippi River, about
eighty miles below the City of New Orleans. An intervening libel
was also filed against the
Dumois by the crew of the
Argo to recover the value of their clothing lost by the
collision.
Upon the seizure of the
Dumois, one Anders Jakobsen, of
Christiana, Norway, appeared as claimant and owner, and on February
3, 1897, filed a petition for a limitation of liability in which he
also denied any negligence on behalf of the
Dumois. Upon
the same day, Marie B. Bourgeois de Blesine, mother of Faure de
Blesine, a passenger on board the
Argo, filed a libel
in personam against Jakobsen, claiming damages for the
death of her son through the negligence of the
Dumois. Her
suit was thereupon consolidated with that of Springer and treated
as a petition against the stipulation given for the release of the
steamer under the proceedings for a limitation of liability. Upon
the appraisement of the
Albert Dumois at the sum of
$30,000, and pending freight at the sum of $1,333.75 and the filing
of a stipulation to pay these sums into court, an order was issued
enjoining further proceedings against the steamship and her owner
and directing all persons claiming damages by reason of the
collision to appear before a commissioner and make proof
thereof.
On May 5, 1897, Genevieve Keplinger Hester, widow of Harrison P.
Hester, a passenger on the
Argo and natural tutrix of his
minor child, filed an intervening petition under the limited
liability proceedings, claiming damages for the death of her
Page 177 U. S. 242
husband, and alleging that the same was caused solely through
the fault of the
Dumois.
Thereafter, on December 16, 1897, Springer, as the owner of the
Argo, filed a surrender of his vessel and pending charter
money to the intervening claimants against the
Dumois, and
prayed for relief under the limited liability act.
The case of the
Argo, as set forth in her libel and
answer to the petition of the owner of the
Dumois for a
limitation of liability, was this: on January 27, 1897 at 7 o'clock
in the evening, the
Argo started from the port of New
Orleans on a trip to the jetties at the mouth of the Mississippi
River. Upon the following morning, about 12.40 A.M., while
proceeding down the middle of the river at or near Oyster Bayou,
the master noticed the white and red lights of a steamer coming up
stream about 500 feet from the east bank, and immediately gave a
signal of one blast of his whistle, signifying that he would turn
to starboard and pass on the port side of the approaching steamer,
to which the latter responded with two blasts of her whistle, and
began crossing the river, shutting out her red and showing her
green light. Thereupon the
Argo promptly responded with
one blast of her whistle, still claiming her right to pass on the
port side of the approaching steamer, and put her helm hard-a-port
to clear the
Dumois, as she had the right to do and as in
the judgment of her master it was best for her to do. Whereupon the
Dumois continued her course across the river and blew a
danger signal of three blasts of her whistle, but too late to avoid
a collision, the
Argo striking the
Dumois while
she was crossing the
Argo's bow about eight feet abaft her
stem, causing the
Argo to fill with water and sink about
four minutes thereafter, whereby she was totally lost and two of
her passengers were drowned.
The case of the
Dumois was that, while proceeding up
the Mississippi River about half-past twelve at night, on a voyage
from Port Limon, Costa Rica, to New Orleans, with her full
complement of officers and seamen, she had reached a point in the
Mississippi River about eighty miles below the City of New Orleans,
and was proceeding up the river as close to the east bank as it was
safe for her to do at a moderate speed of about
Page 177 U. S. 243
nine miles an hour, when her watch discovered the lights of a
steamer coming down the river close to the east bank, nearly "head
and head," but somewhat upon the starboard bow of the
Dumois; that the
Dumois, before any signal was
given by the approaching steamer, gave two clear and distinct
blasts of her steam whistle, indicating that she desired to pass
the
Argo to the left, starboard to starboard, and at the
same time her wheel was put to starboard. In answer, the
Argo wrongfully responded to this signal with one blast of
her whistle. Thereupon the pilot of the
Dumois, fearing
that the
Argo had misunderstood his signal, immediately
repeated it, and at once caused three or more short blasts of her
whistle to be given in quick succession, to indicate danger, and at
the same time stopped and backed her engines; but the
Argo
neglected to stop and back, and kept her course and speed until her
pilot saw the green or starboard light of the
Dumois, when
he attempted to pass her by putting his wheel hard-a-port, which
brought the
Argo in collision with the steamship, striking
her at right angles on the starboard side, about ten feet abaft the
stem, from which collision the
Argo sank and became a
total loss.
Upon a hearing upon pleadings and proofs, the district court
announced in an oral opinion its conclusion that the collision was
caused solely by the fault of the
Dumois, and awarded the
libellant Springer $11,000 for the loss of the
Argo; to
Mrs. Hester, $5,000; to Mrs. de Blesine, $2,500, and to the crew of
the
Argo the respective sums claimed by them.
From this decree the owner of the
Dumois appealed to
the circuit court of appeals, assigning in substance as error that
the collision was caused through the sole fault of the
Argo, and that the amount awarded was excessive. An appeal
was also taken by Springer, claiming that the amount awarded him as
the value of the
Argo was too small, but no appeal was
taken by the intervening libellants.
The circuit court of appeals reversed the decree of the district
court, holding that both vessels were in fault for the collision
and that, as between the owners of the steamships, the damages
should be divided. It further increased the allowance of damages to
Springer to $15,000, and assessed those sustained
Page 177 U. S. 244
by the
Dumois at $185. It was further decreed that
Springer recover $7,500 of the
Dumois and her bondsmen,
subject to a credit of one-half of the damages of the
Dumois, and one-half of the amounts decreed in favor of
Mrs. Hester and Mrs. de Blesine, leaving a balance due upon this
decree in favor of Springer of $3,657.50, for which he was awarded
execution. 59 U.S.App. 108. Both parties filed petitions for
rehearing, which were denied.
Whereupon both parties applied for and were granted writs of
certiorari from this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
This collision occurred in January, 1897, in the Mississippi
River about eighty miles below New Orleans, and the steamers in
their signals and manoeuvres were governed by the original rules
and regulations of the act of 1864, reproduced in Rev.Stat. sec.
4233. A brief review of the numerous acts subsequent thereto upon
the same subject will show that the act of 1864 continued in force
upon the Mississippi River at the time of this collision.
1. The original act, now known as Rev.Stat. sec. 4233, was
adopted from the British Orders in Council of 1863, was made of
general application "in the navigation of vessels of the navy and
of the mercantile marine of the United States," and was
supplemented by secs. 4412 and 4413, giving the board of
supervising inspectors power to
"establish such regulations to be
Page 177 U. S. 245
observed by all steam vessels in passing each other as they
shall from time to time deem necessary for safety."
This Code remained in force substantially unaffected by
legislation until March 3, 1885, when the "Revised International
Regulations for Preventing Collisions at Sea" were adopted by act
of Congress, Act of March 3, 1885, 23 Stat. 438, c. 354, and made
applicable to
"the navigation of all public and private vessels of the United
States upon the
high seas and in all
coast waters
of the United States
except such as are otherwise provided
for."
By section two, all laws inconsistent with these rules were
repealed "
except as to the navigation of such vessels
within the
harbors, lakes, and inland waters of the United
States." As to such waters, the original Code of 1864 remained in
force, explained and supplemented by the rules of the supervising
inspectors.
The Delaware, 161 U.
S. 459,
161 U. S. 463;
The New York, 175 U. S. 187,
175 U. S.
193.
On August 18, 1890, Congress adopted a new Code
"to be followed by all public and private vessels of the United
States upon the
high seas and in all waters connected
therewith, navigable by seagoing vessels,"
Act of August 19, 1890, 26 Stat. 320, article thirtieth of which
declared that
"nothing in these rules shall interfere with the operation of a
special rule duly made by local authority, relative to the
navigation of any
harbor, river, or inland waters."
The second section repealed all inconsistent laws, and the third
section provided that the act should take effect at a time to be
fixed by the President by proclamation issued for that purpose.
This act was amended by Act of May 28, 1894, 28 Stat. 82, c. 83,
providing certain lights for small vessels. By another Act of June
10, 1896, 29 Stat. 381, c. 401, amending the law with regard to
signals, it was declared in the second section that the original
act as amended should "take effect at a subsequent time to be fixed
by the President by proclamation," although another Act approved
February 23, 1895, 28 Stat. 680, c. 127, had already provided that
it should take effect at a time to be fixed by the President. The
President at first declared that the act should take effect March
1, 1895, 28 Stat. 1250, which date was subsequently postponed by
another proclamation, 28 Stat. 1259.
Page 177 U. S. 246
By still another proclamation of December 31, 1896, 29 Stat.
1885, it was declared that the Act of August 19, 1890, as
subsequently amended, should take effect July 1, 1897.
Meantime, however, and on February 8, 1895, 28 Stat. 645,
Congress passed another Code to be
"followed in the navigation of all public and private vessels of
the United States upon the
Great Lakes and their
connecting and tributary waters as far east as
Montreal,"
to take effect March 1, 1895. This act repealed the act of 1864
so far as it applied to the Great Lakes and their connecting
waters. All this legislation, however, left the harbors, rivers,
and other inland waters of the United States unaffected either by
the acts of 1885, 1890, or 1895, and to make the intention of
Congress more certain in this particular, on February 19, 1895, 28
Stat. 672, c. 102, Congress enacted that the original provisions of
sections 4233, 4412, and 4413 of the Revised Statutes, and
regulations of the supervising inspectors pursuant thereto, shall
be followed on the
harbors, rivers, and
inland
waters of the United States, and the provisions of said secs.
were declared special rules duly made by local authority relative
to the navigation of such waters, as provided for in article 30 of
the Act of August 19, 1890, above quoted. Section 4 provided that
the words "inland waters" should not be held to include the Great
Lakes and their connecting and tributary waters as far east as
Montreal, and that the act should not in any respect affect the Act
of February 8, 1895.
Finally, on June 7, 1897, 30 Stat. 96, c. 4, Congress adopted a
set of regulations to be
"followed by all vessels navigating all
harbors,
rivers, and
inland waters of the United States,
except the Great Lakes and their connecting and tributary waters,
as far east as Montreal and the Red River of the north and rivers
emptying into the Gulf of Mexico, and their tributaries."
This act, as well as that of August 19, 1890, adopting
regulations for preventing collisions at sea, was amended February
19, 1900, so far as it related to lights on steam pilot vessels,
but as this act of 1897 was approved June 7, to take effect four
months thereafter, it is unnecessary to consider to what waters it
is applicable. It certainly has no bearing upon this collision,
which took place
Page 177 U. S. 247
January 28, 1897, and is cited merely as a part of the history
of Congressional action upon the general subject.
The effect of all this legislation was, at the time of the
collision, and perhaps is still, to leave the rivers emptying into
the Gulf of Mexico subject to the provisions of the original act,
Rev.Stat. section 4233.
2. If the legislation of Congress in this connection be somewhat
complicated, the result is at least clear that the navigation of
the Mississippi was subject to the original rules and regulations
of Revised Statutes, ยง 4233, but the rules of the supervising
inspectors supplementary thereto are ambiguous, and in one respect
quite difficult of interpretation. There are three sets of these
rules: 1. pilot rules for Atlantic and Pacific inland waters; 2.
pilot rules for western rivers; 3. pilot rules for the Great Lakes
and their connecting tributary waters as far east as Montreal. The
third may be left out of consideration in this case.
The pilot rules for western rivers are entitled
"Rules and Regulations for the Government of Pilots of Steamers
Navigating the Red River of the North and Rivers Whose Waters Flow
into the Gulf of Mexico, and their Tributaries."
There can be no doubt whatever that these rules apply to the
Mississippi and its tributaries, and there could be no doubt that
it applied to the river below New Orleans, were it not for Rule
XIV, which declares that
"the line dividing jurisdiction between the pilot rules on
western rivers and harbors, rivers, and inland waters at New
Orleans shall be the lower limits of the city."
This should evidently be construed as if it read
"he line dividing jurisdiction between the pilot rules on
western rivers and
the pilot rules on harbors, rivers, and
inland waters at New Orleans shall be the lower limits of the
city."
This excludes the Mississippi below New Orleans, and indicates
that some other rules are applicable.
But, on referring to the pilot rules for the Atlantic and
Pacific coast inland waters, we find them entitled,
"Rules and Regulations for the government of Pilots of Steamers
Navigating
Harbors, Rivers, and
Inland Waters
(except the Great Lakes, the Red River of the North, and
Rivers
Emptying into the Gulf of
Page 177 U. S. 248
Mexico and their Tributaries) when Meeting or
Approaching Each Other, Whether by Day or Night, and as Soon as
Fully Within Sound of the Steam Whistle."
Rule IX of these pilot rules contains the same provisions as
Rule XIV of the pilot rules for western rivers, namely that the
line dividing jurisdiction between pilot rules on western rivers
and harbors and inland waters at New Orleans shall be the lower
limits of the city. There could be no doubt whatever that the
intention was to divide the jurisdiction as to the Mississippi
River between the rules applicable to western rivers and the rules
for Atlantic and Pacific coast inland waters, were it not for the
fact that in the entitling of these latter rules rivers emptying
into the Gulf of Mexico are excepted. But we are of opinion that
these words were intended as a general exception of the waters
covered by the pilot rules for western rivers, and that they were
not intended to apply to the Mississippi below New Orleans, in view
of the provision of both sets of rules that the pilot rules for
western rivers should cease to be applicable at the lower limits of
that city. As New Orleans is practically the head of navigation for
foreign trade, it was perfectly reasonable that the supervising
inspectors should apply to the lower Mississippi the rules and
regulations adopted for the harbors, rivers, and inland waters
navigated by vessels engaged in foreign trade, while they still
left the regulations provided for western rivers to remain
applicable to the Mississippi above New Orleans, where the commerce
is almost altogether domestic in its character. The only
alternative of this proposition is to hold that the supervising
inspectors intended to exempt from their jurisdiction altogether
the waters of the Mississippi below New Orleans, some 150 miles in
length -- a supposition so improbable that it must be rejected at
once. We hold, therefore, that the Atlantic and Pacific coast rules
apply to these waters.
Such being the rules and regulations applicable to this case, we
are remitted to the inquiry how far they were obeyed and how far
disregarded by the vessels concerned in this collision. The night
was clear and starlight, the river substantially straight at this
point, and about half a mile wide, with no obstruction or other
special circumstances, under Rule 24, rendering a departure
Page 177 U. S. 249
from the general rules necessary in order to avoid immediate
danger. In short, the conditions were all favorable to safety, and
the collision could not have occurred without egregious fault on
the part of one or both vessels. In endeavoring to locate this
fault, we are at liberty to consider the movements of each vessel
from its own standpoint, and, without attempting to reconcile the
conflicting statements of the two crews or to settle disputed
questions of fact, to inquire upon the showing made by each whether
that vessel was guilty of fault contributing to the collision.
3. As to the
Albert Dumois, she was a Norwegian vessel,
210 feet long, drawing 17 feet of water, and was bound up the river
to New Orleans. While proceeding up the east side of the river at a
speed of about nine miles an hour, and from 250 to 500 feet from
the east bank, she made directly ahead, and at a probable distance
of about half a mile, the white and colored lights of the
Argo coming down the river. Her theory of the case was,
and the entire testimony of her watch showed, that the
Argo was approaching her "end on, or nearly end on,"
within the meaning of Rule 18, which declares that
"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."
Notwithstanding this, however, the wheel of the
Dumois
was put to starboard, and a signal of two whistles blown to the
Argo, manifesting an intention on the part of the
Dumois to sheer out into the river and pass the
Argo starboard to starboard. Her excuse for doing this was
her own proximity to the east bank and a cluster of white lights
belonging to a tug and two luggers inside of the
Argo, and
in fact moored to the east bank of the river.
We cannot, however, accept this as a "special circumstance"
within the meaning of Rule 24 rendering a departure from Rule 18
necessary "to avoid immediate danger," since, if there were any
danger at all, it was not an immediate one, or one which could not
have been provided against by easing the engines of the
Dumois and slackening her speed. Exceptions to the general
rules of navigation are admitted with reluctance on the part of the
courts, and only when an adherence to such rules must almost
necessarily result in a collision -- such, for instance, as a
manifestly wrong manoeuvre on
Page 177 U. S. 250
the part of an approaching vessel.
Belden v. Chase,
150 U. S. 674,
150 U. S. 699;
The Britannia, 153 U. S. 130;
The Test, 5 Notes of Cases 276;
The Superior, 6
Notes of Cases 607;
The Khedive, 5 App.Cas. 876;
The
Benares, 9 Prob. Div. 16; Marsden, Collisions 480. As was said
in
The John Buddle, 5 Notes of Cases 387:
"All rules are framed for the benefit of ships navigating the
seas, and, no doubt, circumstances will arise in which it would be
perfect folly to attempt to carry into execution every rule,
howsoever wisely framed. It is at the same time of the greatest
possible importance to adhere as closely as possible to established
rules, and never to allow a deviation from them unless the
circumstances which are alleged to have rendered such a deviation
necessary are most distinctly approved and established; otherwise,
vessels would always be in doubt and doing wrong."
The case of
The Concordia, L.R. 1 Ad. & Ecc. 93,
resembles much the instant case in this particular. That was a
collision between two steam vessels meeting nearly end on in the
River Thames. Defendants alleged that the helm of their vessel was
put to starboard to avoid a barge. It was held that the burden of
proof that a departure from the rule which required both steamers
to port was necessary in order to avoid immediate danger rested
upon the defendants, and that, in the absence of sufficient
evidence to show what became of the barge, the defendants had
failed in their proof, and were therefore in fault for the
collision, the result of not porting their helm.
See also The
Agra, L.R. 1 P. C. 501.
Manifestly the
Argo had a right to rely upon the
Dumois' pursuing the usual course of putting her helm to
port, and her failure to do so was likely to raise a doubt on the
part of the
Argo as to her own duty, and to bring about
the collision it was designed to avoid. If, as insisted by the crew
of the
Argo, the
Dumois was nearer to the east
bank than the descending steamer, and exhibited to the latter her
white and red lights only, the fault of the
Dumois in
starboarding and crossing the course of the
Argo becomes
still more manifest. The fact put
Page 177 U. S. 251
forward by the pilot of the
Dumois, that the
Argo seemed so close to the luggers that she appeared to
be one of them (although contradicted by the testimony of the
libellant that the
Argo was in the middle of the river)
was one which undoubtedly called for caution on the part of the
Dumois, but it did not involve an immediate danger which
justified a departure from the general rule.
4. The
Argo, a vessel of forty-eight tons burthen, 101
feet in length, and drawing six feet of water, had been chartered
by some representatives of the press to meet at the mouth of the
river, a congressional committee sent to inspect the jetties and to
report the proceedings of the committee. According to her
inspection certificate, the
Argo should have had one
pilot, one engineer, and a crew of five men, but as they were in
great haste to get away, Messrs. Hester, Lindauer, and Blesine,
newspaper correspondents, all of whom were said to be familiar with
the management of watercraft, agreed to enroll themselves as part
of the crew, and if necessary to lend a hand. Their assistance does
not seem to have been of any great value, as they all "turned in"
immediately upon coming on board. The
Argo left New
Orleans about 7 o'clock in the evening, having on board a master,
who also served as pilot, an engineer, a fireman, one deck hand,
and a steward, who also served as cook, besides the newspaper
correspondents. She took her course down the river at a speed of
about twenty miles an hour, and at the time of making the lights of
Dumois, was either in the middle of the river or between
that and the east bank. There was conflict of evidence upon her
exact location, but in the view we have taken of the case, it does
not become necessary to determine this with accuracy. Her testimony
indicates that she made the white and red lights of the
Dumois upon her port bow, and blew her a signal of one
whistle; that the
Dumois responded with a signal of two
whistles, starboarded her helm, shut in her red and exhibited her
green light, and took her course across the path of the
Argo. The
Argo again blew her a signal of one
whistle, to which the
Dumois again responded with two,
followed it with a danger signal, and the
Argo, still
maintaining her great speed, put her wheel hard-a-port, struck
Page 177 U. S. 252
the
Dumois upon her starboard bow, and was herself
almost immediately sunk by the force of the impact.
The master of the
Argo excuses his failure to stop and
reverse, which it was his duty to do as soon as he saw the wrong
manoeuvre of the
Dumois, by the fact that the starboarding
of the
Dumois put him in a position in which he was
obliged to decide instantly what ought to be done; that, in the
exercise of his best judgment, he determined to put his helm
hard-a-port, and endeavor to cross the bows of the
Dumois,
and that, if he made a mistake in this particular, it was an error
in extremis, for which the
Argo is not
responsible. The argument is undoubtedly entitled to great weight,
but we think the real error was not committed
in extremis.
The theory of the
Argo is that she was coming down the
middle of the river, and that she made the
Dumois on her
port bow, exhibiting a red light. She was running herself at twenty
miles an hour, with the added force of the current. The
Dumois was running against the current at the rate of nine
miles an hour. That the
Dumois must have starboarded and
shown her green light some time before the
Argo ported is
evident from the place of the collision, which was to the westward
of the middle of the river, and, upon the theory of the
Argo, was near the westerly bank. As the
Dumois
was within five hundred feet of the easterly bank when she
starboarded -- the river at that point being about 2,500 feet wide
-- she must have run under her starboard helm about a quarter of a
mile before reaching the point of collision. Now if the
Argo had promptly ported as soon as she heard the
cross-signal or observed the starboarding of the
Dumois,
she would inevitably have passed the point of intersection before
the
Dumois reached it. The fault of the
Argo was
not in the hard-a-port order when the collision was inevitable, but
in failing to stop and reverse at once as soon as she noticed the
starboarding of the
Dumois. The testimony from the
Dumois indicates that she blew her first whistle and
starboarded as soon as the
Argo's lights were seen, and
that, if the
Argo had starboarded and reversed, the
collision would not have occurred. The truth seems to be that the
Argo did not port when giving her first signal, but waited
for some time, and then put her helm hard-a-port, but too late to
be of any avail.
Page 177 U. S. 253
The testimony indicates that the
Argo is chargeable
with an infraction of the third rule of the supervising inspectors
in failing to stop and reverse after receiving the cross-signals
from the
Dumois. This rule requires that
"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 repeated blasts of the steam
whistle, and if the vessels shall have approached within half a
mile of each other, both shall be immediately slowed to a speed
barely sufficient for steerage way until the proper signals are
given, answered, and understood, or until the vessels shall have
passed each other. Vessels approaching each other from opposite
directions are forbidden to use what has become technically known
among pilots as 'cross-signals' -- that is, answering one whistle
with two, and two whistles with one. In all cases and under all
circumstances, a pilot receiving either of the whistle signals
provided in rules, which for any reason he deems injudicious to
comply with, instead of answering with a cross-signal, must at once
observe the provisions of this rule."
The master also seeks to excuse himself by alleging that the
Argo was so constructed that her headway could not have
been stopped in time to be of any service. This may be true, and
yet the
Dumois should not be held responsible for the
faulty construction of the
Argo in this particular. While
a steamer may be so built as to attain the utmost possible speed,
she ought also to be provided with such means of stopping or
changing her course as are commensurate with her great speed, and
the very fact of her being so fast and apparently uncontrollable is
an additional reason for the greater caution in her navigation. Her
increase of speed should have been obtained with as little increase
of risk to other vessels as was possible, and if any precautions in
that direction were neglected, it was a fault for which she alone
ought to be called upon to respond. This Court has repeatedly held
the fault, and even the gross fault of one vessel, does not absolve
the other from the use of such precautions as good judgment and
accomplished seamanship require.
The
Page 177 U. S. 254
Maria Martin, 12 Wall. 31;
The America,
92 U. S. 432;
The
Lucille, 15 Wall. 679;
The Sunnyside,
91 U. S. 208.
But counsel for the
Argo also insists that, as the two
vessels, from the moment the
Argo ported and the
Dumois starboarded, were upon crossing courses, the
nineteenth rule, which declares that "the vessel which has the
other on her own starboard side shall keep out of the way of the
other," applied, and that the
Dumois should have ported,
and the
Argo was bound, under the case of
The
Britannia, 153 U. S. 130, to
keep her course and speed. We are reluctant, however, to say that
where two vessels are meeting end on, or nearly end on, under the
eighteenth rule, the faulty movement of starboarding by one
absolves the other from the obligation of Rule 21, which requires
that "every steam vessel, when approaching another vessel, so as to
involve risk of collision, shall slacken her speed, or, if
necessary, stop and reverse."
In the case of the
Britannia, the decision of the Court
that, of two crossing steamers, the preferred vessel should have
kept her course and speed, was put upon the ground that the course
of the
Britannia, the obligated vessel, was precisely what
might have been anticipated, and did not warrant the
Beaconsfield, the preferred vessel, in disregarding the
injunctions of the twenty-third rule, which required her to keep
her course. It was intimated that a different conclusion might have
been reached if it had appeared that the
Britannia was
herself violating a rule of navigation. Now as it appears from the
testimony of the
Argo's crew that they not only heard the
signal of two whistles from the
Dumois, but saw her turn
under her starboard wheel, and exhibit her green light when she
should have ported, they were at once apprised of the fact that she
was violating a rule of navigation, and that prompt action was
required to avoid a collision.
The fact that the
Argo was short-handed and was also
running without a proper lookout, though not decisive of a fault
contributing to the collision, may be taken into consideration as
bearing upon the probabilities of the case and raising a
presumption against her.
We are of opinion that the
Dumois was primarily in
fault
Page 177 U. S. 255
for this collision, in starboarding instead of porting when she
first sighted the
Argo, and while the case with respect to
the
Argo is by no means free from doubt, the majority of
the Court are also of opinion that the
Argo was in fault
for failing to observe the twenty-first rule, which required her to
stop when risk of collision was involved, as well as the third rule
of the supervising inspectors to the same effect.
5. There was no error in fixing the value of the
Argo
at the sum of $15,000, an increase of $4,000 over the amount fixed
by the district court. The evidence of her builders was that she
originally cost $18,000, and that, if she had been kept in good
repair, she would have been worth two-thirds of that amount at the
time of the collision. There was also testimony to the effect that
her owner had at the time of the collision, concluded a sale of
one-half the
Argo for $7,500, and that it was to have been
delivered and the money paid for this moiety on the day following
that upon which she was lost, and upon her return to the city. This
is better evidence of her actual value than the conflicting
opinions of experts more or less friendly to the owner, who put her
value at from $8,500 to $30,000. As the district court and the
circuit court of appeals agreed that her value did not exceed
$15,000, we should be unwilling to increase that amount unless upon
clear proof of inadvertence or mistake.
There was no error in refusing to allow interest upon her
valuation. The allowance of interest in admiralty cases is
discretionary, and not reviewable in this Court except in a very
clear case.
The Scotland, 118 U.
S. 507,
118 U. S.
518.
6. In the assessment of damages, an important question arose as
to whether a moiety of the amounts awarded to Mrs. Blesine and Mrs.
Hester should be deducted from the amount recoverable by the owners
of the
Argo. The libel of Mrs. Blesine was filed against
Jakobsen as owner of the
Dumois, and process of attachment
prayed against his goods and chattels, credits and effects. This
libel, subsequently consolidated with that of Springer, was treated
as a petition against the bond given for the release of the steamer
under the proceedings for a limited liability. A similar petition
was filed by Mrs. Hester. In the
Page 177 U. S. 256
following December, Springer, the libellant and owner of the
Argo, surrendered to the claimants and interveners his
vessel and the freight. These intervening libels, as well as that
of the seamen, proceeded as one suit, and in the decree of the
circuit court of appeals, Mrs. Blesine was awarded $2,500 and Mrs.
Hester $5,000, one-half of which was deducted from the amount
awarded to Springer.
Admitting that, if these intervening libels had been filed
against Springer as owner of the
Argo, nothing could have
been recovered of him by reason of the total loss of the
Argo and her freight and the consequent extinguishment of
personal liability on the part of the owner, does it follow that
the
Dumois is not entitled to deduct from the amount
awarded to the
Argo; or, in other words, to recover of the
Argo one-half of the amount payable to these libellants,
in view of the fact that the
Argo was also in fault? We
think this question is practically answered by prior decisions of
this Court.
The case of
The North Star, 106 U. S.
17, arose from the mutual fault of two steamers, in
which one, the
Ella Warley, was totally lost. The court
awarded the owners of the Ella Warley so much of their damage as
exceeded one-half of the aggregate damage sustained by both
vessels. The owners of the
Warley contended that, as she
was a total loss, her owners were not liable at all, and that they
were entitled to one-half of their damages in full, without
deduction for the half of the damage sustained by the
North
Star, the other vessel. We held, however, that the admiralty
rule that where both vessels are in fault, they must bear the
damage equally, applied, and that the one suffering least should be
decreed to pay to the other the amount necessary to make them
equal, namely, one-half of the difference between the respective
losses sustained, and that when this resulting liability of one
party to the other has been ascertained, then, and not before, was
the proper time to apply the rule of limited responsibility, if the
party decreed to pay is entitled to it. "It will enable him to
avoid payment
pro tanto of the balance found against him."
"The contrary view," said the Court,
"is based on the idea that, theoretically (supposing both
vessels in fault), the owners of the one are liable to
Page 177 U. S. 257
the owners of the other for one-half of the damage sustained by
the latter; and,
vice versa, that the owners of the latter
are liable to those of the former for one-half of the damage
sustained by her. This, it seems to us, is not a true account of
the legal relations of the parties. . . . These authorities
conclusively show that, according to the general maritime law, in
cases of collision occurring by the fault of both parties, the
entire damage to both ships is added together in one common mass
and equally divided between them, and thereupon arises a liability
of one party to pay to the other such sum as is necessary to
equalize the burden. This is the rule of mutual liability between
the parties."
In
The Chattahoochee, 173 U. S. 540,
which was also a collision occasioned by the mutual fault of a
steamer and a schooner, followed by a total loss of the latter, the
survivor was permitted to deduct from one-half of the damages
recovered for the loss of the vessel one-half of the value of the
cargo of the latter, notwithstanding the total loss of the
schooner, and the fact that, under the Harter Act, she would not
have been liable to the owner of the cargo for negligence in
navigation. We held in that case that the sunken vessel was not
entitled to the benefit of any statute tending to lessen its
liability to the other vessel, or to an increase of the burden of
such other vessel, until the amount of such liability had been
fixed upon the principle of an equal division of damages.
The case under consideration is distinguishable from this only
in the fact that intervening libels are for loss of life, for which
no lien is given upon the vessel, in the absence of a local law to
that effect, while in the case of the
Chattahoochee, the
libel sought to recover for the loss of the cargo, for which a lien
was given by the law maritime upon the vessels in fault.
Assuming for the present that the question of lien is material,
we are next to inquire whether such lien is given by the local law
of Louisiana. We are cited in this connection to two articles of
the Civil Code, the first of which, article 2315, as amended in
1884, declares that
"every act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it; the right of this
action shall survive, in
Page 177 U. S. 258
case of death, in favor of the minor children or widow of the
deceased, or either of them, and in default of these, in favor of
the surviving father and mother, or either of them, for the space
of one year from the death. The survivors above mentioned may also
recover the damages sustained by them by the death of the parent,
or child, or husband, or wife, as the case may be."
It was held by us in
The Corsair, 145 U.
S. 335, a case arising out of a collision which also
took place on the lower Mississippi, that this local law did not
give a lien or privilege upon the vessel, and that nothing more was
contemplated by it than an ordinary action according to the course
of the law as administered in Louisiana.
Our attention is also called by the owners of the
Dumois to subdivision 12 of Art. 3237 of the Civil Code,
which reads as follows:
"Where any loss or damage has been caused to the person or
property of any individual by any carelessness, neglect, or want of
skill in the direction or management of any steamboat, barge,
flatboat, water craft, or raft, the party injured shall have a
privilege to rank after the privileges above specified."
No reliance was placed upon this article in the case of the
Corsair, probably because it was thought to refer only to
losses or damages to persons still living, and that an action would
lie in favor of the party injured. Certainly if this article had
been supposed to give a remedy for damages occasioned by death to
the representatives of the deceased person, it would never have
escaped the attention of the astute counsel who participated in
that case.
The question whether "damage done by any ship," jurisdiction
over which was given to the High Court of Admiralty in England,
included actions brought by the personal representatives of seamen
or passengers killed in a collision, has been the subject of many
and conflicting judicial opinions in the English courts, a summary
of which may be found in
The Corsair, 145
U. S. 345, and was finally settled against the
jurisdiction by the House of Lords in the case of
The
Franconia, 10 App.Cas. 59.
In this country, the law is so well settled that, by the
common
Page 177 U. S. 259
law, no civil action lies for an injury resulting in death that
we need only refer to the case of
Insurance Co. v. Brame,
95 U. S. 754, and
to the same doctrine applied in admiralty in the case of
The
Harrisburg, 119 U. S. 199. The
object of Article 3237 was not to extend the cases in which damages
might be recovered to such as resulted in death, but merely to
provide that, in cases of damages to person or property, where such
damage was occasioned by negligence in the management of any
watercraft, the party injured should have a privilege or lien upon
such craft. We deem it entirely clear that the article was not
intended to apply to cases brought by the representatives of a
deceased person for damages resulting in death.
But it does not necessarily follow that, because there is no
lien, there can be no deduction of a moiety of these damages from
the sum awarded to the
Argo. Neither the case of the
North Star nor that of the
Chattahoochee is put
upon the ground of a lien, since in both cases the vessel against
which the deductions were made were totally lost by the collision,
and in the
Chattahoochee, the provisions of the Harter Act
would have exonerated her even if no total loss had occurred. But
no extended discussion of this is necessary, since the question is
settled by the case of
Butler v. Boston and Savannah Steamship
Co., 130 U. S. 527, in
which it was unanimously held that the Limited Liability Act
applied to cases of personal injury and death as well as to those
of loss of or injury to property. This was an independent libel
in personam against the steamship company to recover
damages for death, and the company pleaded in defense certain
proceedings in a case of limited liability instituted by it and
then pending. There was a statute of Massachusetts relied upon
which gave a personal remedy, but no lien upon the vessel. The loss
occurred within the jurisdiction of the state. The single question
presented was whether the Limited Liability Act applied to damages
for personal injury and loss of life, and thus deprived those
entitled to damages of the right to entertain suit for recovery,
provided the ship owner had taken appropriate proceedings to limit
his liability. The Court, after a careful examination of the law of
limited liability of ship owners, had no difficulty
Page 177 U. S. 260
in reaching the conclusion that it covered the case of injuries
to persons as well as that of injury to goods and merchandise, and
that these proceedings were a good defense to the libel.
It follows that the claims of the intervening libellants, Mrs.
Blesine and Mrs. Hester, were valid claims under the Limited
Liability Act, notwithstanding that there was no lien under the
local law, and that there was no error in deducting a moiety of
these claims from the amount awarded Springer.
Upon the whole case, we are of opinion that the decree of the
circuit court of appeals was right, and it is therefore, as to both
cases,
Affirmed.
THE CHIEF JUSTICE and MR. JUSTICE PECKHAM dissented.