When a steam vessel proceeding in a fog hears apparently forward
of her beam the fog signal of another vessel whose position is not
ascertained, the duty to stop the engines, if the circumstances
admit, is imperative, under Article 16 of the International
Regulations for preventing collisions at sea, adopted by the Act of
August 19, 1890, 26 Stat. 320, and effective July 1, 1897, 29 Stat.
885.
A negligent breach of this statutory duty, contributing directly
to cause a collision, is not excusable upon the ground that the
vessel was navigated in accordance with what would have been good
seamanship had not the duty been imposed.
When a collision is attributable to the palpable negligence of
both masters, the negligence of each continuing to operate as an
efficient cause until the moment when the accident occurs, the
doctrine of major and minor fault does not apply.
219 F. 134 affirmed.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
On his own behalf and on behalf of the owners, officers, and
crew of the Norwegian steamship
Selja, the petitioner,
Page 243 U. S. 292
Olaf Lie, her master, instituted this suit in admiralty against
the American steamship
Beaver, to recover for the loss of
the
Selja, her equipment and the personal effects of her
officers and crew, which was occasioned by the collision of the two
ships on the afternoon of November 22, 1910, near Point Reyes, on
the California coast. For the purposes of trial, this case was
consolidated with an intervening libel by the owners of the cargo
of the
Selja, and with an independent suit by her
charterers to recover for loss of freight.
When approaching San Francisco, the end of her voyage from
Yokohama, the
Selja, a freight-carrying steamship,
collided in a fog with the
Beaver, a passenger and
freight-carrying steamer then on a voyage from San Francisco to
Portland, Oregon, and was so damaged that she sank, a total loss,
in about fifteen minutes.
From one o'clock in the morning of November 22nd, the
Selja had been running in a fog which, for a considerable
time before the collision, was so thick that it was possible to see
only about twice her length -- about 800 feet.
The master of each ship makes the characteristic claim that, at
the moment of collision, he had his engines working full speed
astern, and each claims that his vessel was without headway when
the two came together. It is beyond controversy, however, that the
Beaver was running at a rate of speed much too high for
prudent navigation in the then prevailing fog until her master
heard the whistle of the
Selja, about three minutes before
the accident, and it is beyond controversy also that this negligent
speed contributed directly to cause the collision. The two lower
courts agree that the
Beaver was culpably negligent, but
they also find that the master of the
Selja was likewise
negligent in the navigation of his ship in a manner which
contributed directly to bring about the accident, and therefore,
while allowing
Page 243 U. S. 293
recovery by the owners and underwriters of the cargo, by the
charterers of the
Selja, and by her other officers and
crew, they decreed that, apportioning the damages suffered by the
owner and master of the
Selja and by the owner of the
Beaver, under the usual rule of cross liabilities, there
could be no recovery by the master, Lie, personally, or by the
owners of the
Selja, and it is from this denial of the
right to recover by Lie and by the owners of the
Selja,
and from the order as to the payment of costs, that this appeal is
prosecuted.
The petitioner claimed in the courts below, and in this Court
still claims, that, if the master of the
Selja was
negligent at all, which is denied, his negligence was of such a
character and had so spent its effect long before the accident,
that, in the most unfavorable view that can be taken of it, it was
a remote, and not a proximate, cause of the collision, and that
therefore the
Beaver being palpably negligent, he has a
lawful right to recover.
The master of the
Selja admits that he heard what
ultimately proved to be the warning fog whistle of the
Beaver at three o'clock, and therefore the ships must be
considered as within the danger zone from that time forward, and
the decision of the case turns upon what was done by the two
vessels during the sixteen minutes which elapsed between three
o'clock and the moment of collision.
There is all of the customary conflict between the stories told
by the officers of the respective vessels, but we think that a
correct and just decision of the case may be arrived at by
accepting the statements of the master of the
Selja as
they appear in various parts of the record.
His narrative of what occurred during the fateful sixteen
minutes after three o'clock may be condensed into the
following:
At three o'clock, I was running at half speed (six knots an
hour), and very shortly after that, I heard for the first
Page 243 U. S. 294
time "a whistle about right ahead" -- "dead ahead" -- which
proved to be the whistle of the
Beaver. "It sounded faint,
but distant," and I could then see only about two lengths of my
ship (about 800 feet). The sea was calm, with a long westerly
swell, there were no noises on the ship to interfere with my
hearing the whistle, which blew at intervals of fifty-six or
fifty-seven seconds and for five seconds each time. When I first
heard the whistle, it sounded far away, and "it just came into my
mind that it might be one of the fog horns off the Golden Gate," at
Point Bonita, about 20 miles away. After I heard the whistle the
third time, I commenced to time it, and continued to do so until
five minutes past three o'clock, when I concluded that it was the
whistle of an approaching steamer, and I reduced speed from half
speed (six knots) to slow speed (three knots an hour) because "I
considered that six knots was not moderate enough under the
circumstances." I did not stop my engines when I first heard the
whistle or when I concluded that it was that of an approaching
steamer "because the sound was located as good as it could be
located in the fog, and showed absolutely no danger of collision."
(This statement is twice repeated in the testimony.) "I was
familiar with the international rule which requires a steamer to
stop in a fog." During the entire fifteen minutes before the
accident I heard the whistle of the
Beaver blow every
fifty-six or fifty-seven seconds and for five seconds at a time,
and the
Selja blew one single blast between each two
blasts of the
Beaver's whistle; I "answered his whistle"
from three o'clock until the collision. My engines were reduced to
slow speed at five minutes after three o'clock, and they were kept
at this speed -- three knots an hour -- until 3:10 o'clock, when
they were stopped. At 3:13 my ship still had steerage way upon her,
and at 3:14 she was not quite at a standstill, but was still moving
a little through the water, and I intended to answer the
Beaver's next whistle with
Page 243 U. S. 295
two blasts of my whistle, which would have meant that my boat
was stopped and had no way upon her. I did not tell my third
officer to blow the two whistles, as I intended to do, "because the
Beaver loomed in sight and I saw her blow three whistles."
I mean "I saw steam come out of his whistle and I heard it, of
course at the same time." "She loomed in sight and the three
whistles were almost at the same time." When I saw and heard the
three whistles from the
Beaver, I told my third officer to
blow three whistles, and I rang "full speed astern" on my engine at
the same time. I noticed that the
Beaver was coming fast
by the way she cut the water. I was watching the
Beaver
carefully, and I thought probably she would pass wide of me, her
starboard side was widening all the time and I was watching her. I
first saw the
Beaver approaching at about 3:15. She was
then about 900 feet away, and about a minute after, the collision
came.
The foregoing statements of fact are as favorable to the
petitioner as he can possibly deserve. They leave out of account a
number of statements claimed to have been made by him to the master
of the
Beaver immediately after the accident, to the agent
of the company which had the
Selja under charter on the
day after the accident, and to the United States inspector of steam
vessels on the second day after the accident, all of which are in
serious conflict with, and are much less favorable to, his claim
than the summary we have given.
In the year 1889, representatives of over thirty of the maritime
nations of the world met in convention at Washington for the
purpose of discussing the international code of rules to prevent
collisions at sea, and of suggesting such changes and modifications
as experience had shown to be necessary. The recommendations of
this convention were adopted by Act of Congress of August 19, 1890
(26 Stat. 320), became effective by proclamation of the
Page 243 U. S. 296
President (28 Stat. 1250) on the first day of July, 1897, and
have been operative ever since.
Of these rules the following is applicable to the case we are
considering:
"Art. 16. Every vessel shall, in a fog, mist, falling snow, or
heavy rainstorms, go at a moderate speed, having careful regard to
the existing circumstances and conditions."
"A steam vessel hearing, apparently forward of her beam, the fog
signal of a vessel the position of which is not ascertained shall,
so far as the circumstances of the case admit, stop her engines,
and then navigate with caution until danger of collision is
over."
The most cursory reader of this rule must see that, while the
first paragraph of it gives to the navigator discretion as to what
shall be "moderate speed" in a fog, the command of the second
paragraph is imperative that he shall stop his engines when the
conditions described confront him. The difficulty of locating the
direction or source from which sounds proceed in a fog renders it
not necessary to dwell upon the purpose and obvious wisdom of this
second paragraph of the rule.
Mr. Brown, an experienced admiralty lawyer, but repeated the
expression of many cases, which finds new illustration in the
mistake in this case made by the master, Lie, in determining the
location and the distance of the
Beaver, when he said, in
The Umbria, 166 U. S. 404,
166 U. S. 408:
"It is difficult to locate the exact position of a vessel in a fog,
and still more difficult to determine her course and distance." And
the circuit court of appeals in this case expresses the result of
testimony constantly met with in the trial of such cases when it
says:
"The cases are very numerous in which an approaching whistle,
which sounded far off, was really very close, and in which the
sound seemed to come from one direction, while in fact it came from
another. Indeed, it is a matter of common
Page 243 U. S. 297
knowledge that sounds in a dense fog are very deceptive."
It is enough to say that this second paragraph is an addition to
the former rule for preventing collisions at sea, which the
International Conference recommended, after full discussion by the
most intelligent seafaring men of many nations; that at the time of
the collision, obedience to it was commanded by act of Congress and
by the law of the country under the flag of which the
Selja was sailing, and that, if it had been obeyed, the
collision would not have occurred.
By his own statement, as we have epitomized it, Lie, the master
of the
Selja, confesses that, when he first heard the
whistle of the
Beaver, he realized that it was "forward of
the beam" of his ship, and although it is plain that he was not
able to ascertain the position of the vessel from which the danger
warning came, for he thought it the whistle at Point Bonita, 20
miles away, yet he not only did not stop his engines, as required,
but, on the contrary, he continued to run them for five minutes
following at half speed (six knots an hour) in thick fog, until
each succeeding whistle of the
Beaver, sounding nearer
than the one before at length convinced him that it was the whistle
of an approaching steamer. But even then, when convinced that the
danger signals which he had been hearing repeated at one minute
intervals for five minutes were from an approaching steamer still
"forward of his beam," he did not obey the rule by stopping his
engines, but contented himself with reducing his speed to slow,
three knots an hour, not out of deference to the rule of law, but
because, as he says, "I considered that six knots was not moderate
enough under the circumstances," and this speed he continued for
five minutes longer, until ten minutes past three, when at length,
he ordered his engines stopped, with the result, he is obliged to
confess, that at 3:14, two minutes before
Page 243 U. S. 298
the collision, his ship still had steerage way upon her, "was
not quite at a standstill," and a moment later the crash came. It
is of no avail for this master to say that, at the instant of the
accident, he thinks the momentum of his ship had been overcome, and
that she was commencing to move backward in response to the "full
speed astern" order, which had been given during the instant that
had elapsed between the appearance of the
Beaver through
the fog and the coming of the ships together, for the evil had been
done, and the collision rendered inevitable.
When it is considered that the statement of the master of the
Selja as to the moment when he gave the order to reduce
speed from half to slow, and then from slow to stop, and then from
stop to full speed astern, are all but approximations, arrived at
after the disaster to his ship had occurred, when every possible
influence, conscious and unconscious, was operating to induce a
recollection favorable to the conclusion he most desired, it is not
possible in the administration of practical justice to avoid the
conclusion that the effect of the willful disobedience of this
imperative and important statutory rule of law, which should have
governed his conduct, continued as an effective force, operating on
the movement of his vessel to the instant of collision, driving her
forward steadily, even though in the last moments slowly, to the
fateful point of intersection of the courses of the two ships.
Such a state of fact makes sharply applicable the conclusion of
this Court in
The
Pennsylvania, 19 Wall. 125:
"But when, as in this case, a ship at the time of a collision is
in actual violation of a statutory rule intended to prevent
collisions, it is no more than a reasonable presumption that the
fault, if not the sole cause, was at least a contributory cause of
the disaster. 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. "
Page 243 U. S. 299
The record before us not only fails to show that the fault of
the
Selja might not have been one of the causes of the
accident, or that it probably was not, or that it could not have
been one of the causes of it, but, on the contrary, it clearly
shows, as we have seen, that the negligent failure to observe the
statutory rule contributed directly to cause the collision.
The case is not one for the application of refinements as to
what would have been good seamanship without the rule, such as we
are invited in argument to consider, nor is it a case for
consideration of the doctrine of major and minor fault. Both of the
masters were palpably negligent in respects which contributed
directly to cause the collision; the negligence of each continued
to operate as an efficient cause until the moment when the accident
occurred, and we agree with the lower courts that the case is one
in which the master and owner of the
Selja must be left to
suffer their self-inflicted loss.
The judgment of the circuit court of appeals is
Affirmed.