1. Under Rules II and VII of the Board of Supervising
Inspectors, when two steamships are on crossing courses, the
privileged vessel has no absolute right to keep her course and
speed, regardless
Page 308 U. S. 379
of danger involved; her right to maintain her privilege end when
there is danger of collision; and, in the presence of that danger,
both vessels must be stopped and backed if necessary, until signals
for passing with safety have been made and understood. P.
308 U. S.
382.
2. These rules should be construed with Article 27, and are not
essentially inconsistent with Articles 19-23, of the Inland Rules
established by Act of June 7, 1897, c. 4, § 2, 30 Stat. 103, 33
U.S.C. 157, and are valid. Pp.
308 U. S. 385,
308 U. S.
388.
101 F.2d 4 reversed.
Certiorari,
post, p. 532, to review the affirmance of
decrees of the District Court, in admiralty, 20 F. Supp. 373, which
dismissed a libel brought by the present petitioner and awarded
damages to the respondent, in a collision case.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The steamer
Eastern Glade, owned by petitioner,
collided with the steamer
El Isleo, owned by respondent,
in the waters of Baltimore harbor. Each owner filed a libel against
the vessel of the other. The District Court found that the
Eastern Glade was solely at fault (
The Eastern
Glade, 20 F.Supp. 373), and decrees dismissing petitioner's
suit and awarding damages to respondent were affirmed by the
Circuit Court of Appeals. 101 F.2d 4. In the view that there was
involved an important question of maritime law which had not been,
and should be, settled by this court, certiorari was granted.
October 9, 1939. 308 U.S. 532.
That question is said to arise from rulings of the Circuit Court
of Appeals with respect to the validity of
Page 308 U. S. 380
Rules II and VII of the Board of Supervising Inspectors
[
Footnote 1] in the light of
the applicable provisions of the Act of Congress. [
Footnote 2]
See The Fulton, 54 F.2d
467, 468.
The facts are thus stated by the Circuit Court of Appeals:
"The collision occurred in the waters of Baltimore Harbor near
the junction of Curtis Bay Channel with Fort McHenry Channel. The
latter is about 600 feet wide, and runs in a northwesterly
direction toward Baltimore; the former, running nearly east and
west, comes into Fort McHenry Channel from the west, but does not
cross it. The night was clear, the tide ebb, and a 15-mile breeze
was blowing from the northwest. The steamship
Eastern
Glade, light, was bound out of Curtis Bay Channel and was
intending to turn left into Fort McHenry Channel and proceed to
Baltimore. The steamer
El Isleo, laden with 1,000 tons of
steel ore, also bound for Baltimore, was proceeding up Fort McHenry
Channel at full speed -- about eight miles through the water, as
she was working only one boiler. When the vessels sighted each
other, they were more than a mile apart, the
El Isleo
being about four points on the starboard bow of the
Eastern
Glade. The latter stopped her engines and shortly thereafter
sounded a two blast signal to indicate, as her master says, that
his course was to the left and up Fort McHenry Channel.
El
Isleo answered the two blast signal with an alarm followed by
one blast, to indicate that she would keep her course and speed.
Captain Korn of
El Isleo testified that the
Eastern
Glade responded with four blasts followed by one, while her
captain says she responded with three blasts to indicate that she
was reversing her engines.
El Isleo kept on until she
reached
Page 308 U. S. 381
a buoy just opposite Curtis Bay Channel, when, believing
collision imminent, she put her rudder hard right and swung out of
Fort McHenry Channel to her starboard. The
Eastern Glade,
although her master testified that he intended to hold back in
Curtis Bay Channel until
El Isleo had passed the junction,
came clear across Fort McHenry Channel and brought her stem into
contact with the port side of
El Isleo about amidships.
The place of collision was east of Fort McHenry Channel. The
district court did not determine how far to the east, but McDonald
testified it was about 200 yards."
After referring to the question whether the vessels were on
crossing courses as the district court had held, or whether the
situation was one of special circumstances, as petitioner
contended, the Court of Appeals continued:
"It is not disputed that
El Isleo's course up Fort
McHenry Channel was always apparent to the
Eastern Glade.
But the latter's course was not immediately apparent to
El
Isleo, when the
Eastern Glade should reach the end of
Curtis Bay Channel, she might turn left, she might turn right, or
she might conceivably, though improbably, cross Fort McHenry
Channel, since there was water enough to the East of that channel,
although neither pier, port, nor anchorage to which she might be
bound appears on the chart. When, however, she sounded her two
blast signal, she indicated an intention either to cross the bows
of
El Isleo by proceeding across Fort McHenry Channel or
to turn to the left and proceed up that channel. The former
alternative would clearly result in crossing courses; the latter
would result in converging courses, since the
Eastern
Glade's course, if projected, would carry her into the
starboard lane of Fort McHenry Channel, unless she violated her
duty by going up on the wrong side. Such converging courses involve
the very risk that resulted in the collision, and the rights
Page 308 U. S. 382
and duties of the vessels are governed by Articles 19, 22 and 23
of the Inland Rules 33 U.S.C. §§ 204, 207, 208. . . . Accordingly,
the district court was right in treating the situation as one of
crossing courses."
The Articles of the Inland Rules established by Congress
[
Footnote 3] provide:
"Art. 19. When two steam vessels are crossing, so as to involve
risk of collision, the vessel which has the other on her own
starboard side shall keep out of the way of the other."
"Art. 21. Where, by any of these rules, one of the two vessels
is to keep out of the way, the other shall keep her course and
speed."
"Art. 22. Every vessel which is directed by these rules to keep
out of the way of another vessel shall, if the circumstances of the
case admit, avoid crossing ahead of the other."
"Art. 23. Every steam vessel which is directed by these rules to
keep out of the way of another vessel shall, on approaching her, if
necessary, slacken her speed or stop or reverse."
Applying these statutory provisions, and viewing the situation
as one of "crossing courses," the Court of Appeals found that no
fault appeared in the navigation of
El Isleo, the
"privileged vessel." The fault of the
Eastern Glade was
found to be glaring, and alone sufficient to account for the
disaster.
Petitioner does not contest the ruling that the
Eastern
Glade was at fault, but insists that the
El Isleo was
also at fault. Petitioner argues the
El Isleo violated
Rules II and VII of the Supervising Inspectors, purporting to have
been adopted under the authority of the statute. These rules are as
follows: [
Footnote 4]
Page 308 U. S. 383
"Rule II. Steam vessels are forbidden to use what has become
technically known among pilots as 'cross signals,' that is,
answering one whistle with two, and answering two whistles with
one."
"Rule VII. When two steam vessels are approaching each other at
right angles or obliquely so as to involve risk of collision, other
than when one steam vessel is overtaking another, the steam vessel
which has the other on her own port side shall hold her course and
speed, and the steam vessel which has the other on her own
starboard side shall keep out of the way of the other by directing
her course to starboard so as to cross the stern of the other steam
vessel, or, if necessary to do so, slacken her speed or stop or
reverse."
"If from any cause the conditions covered by this situation are
such as to prevent immediate compliance with each other's signals,
the misunderstanding or objection shall be at once made apparent by
blowing the danger signal, and both steam vessels shall be stopped
and backed if necessary, until signals for passing with safety are
made and understood."
Petitioner says that these rules are not inconsistent with the
statute, and have the force of law; that they provide in
substance
"that, where the so-called privileged vessel in a crossing
situation receives an unacceptable proposal to cross ahead, the
privileged vessel may not maintain her course and speed until
collision becomes imminent, but must at once sound danger signals
and stop and back, if necessary, until a safe passage has been
agreed upon."
Hence, it is argued, that
El Isleo was required to
"stop, and reverse if necessary," when the
Eastern Glade
sounded her two-blast signal, and that the only question here is as
to the validity of the Inspectors' requirements.
Respondent contends that the statutory provisions of Articles
19-23 govern; that it was not only the privilege
Page 308 U. S. 384
but the duty of
El Isleo to "keep her course and
speed;" that it was not the intention of the Supervising Inspectors
to modify that affirmative duty; that
El Isleo was not
bound to agree to the two-blast signal from the
Eastern
Glade; that the signals had been made and were understood by
each vessel, and the collision was due to the miscalculation of the
master of the
Eastern Glade, and that, if there were any
errors in
El Isleo's navigation, they were errors
in
extremis for which she is not liable.
The Inspectors' prohibition against "cross signals" found in
Rule II was originally applicable to "vessels approaching each
other from opposite directions," [
Footnote 5] but was amended so that its terms apply to
crossing situations as well. [
Footnote 6]
The Fulton, supra. But the Court of
Appeals, in a number of decisions involving crossing situations,
has disregarded the Inspectors' rule and has "exonerated a vessel
which pressed her statutory privilege by crossing the signal and
holding her course and speed." [
Footnote 7]
Id. It is unnecessary to review the
many cases which the present parties cite, as the court itself has
summarized its position:
"Our reasoning has been, that, as the statute (Inland Rules)
article 21 (33 U.S.C. § 206), puts a duty upon the privileged ship
to keep her course and speed, no rule can be valid which affects to
relieve her of it, and that she may announce her determination to
insist by crossing the first signal. The doctrine has been too long
and too repeatedly established to allow any question now, but it is
plain that the inspectors have never assented to it."
Id.
Page 308 U. S. 385
Although the Court of Appeals, after making this statement in
The Fulton, said that, as the court was then constituted,
it could not see any necessary inconsistency between the
Inspectors' rule and the statute, the court concluded that, "unless
the Supreme Court chooses finally to settle the whole matter
otherwise," it had no option "in crossing situations," and would
"continue to disregard the rule."
The Fulton, however,
presented a "head-on situation," and the Court of Appeals, feeling
that it was not committed in such a case, decided that the
steamship there in question was "at fault for crossing the signal."
Id., p. 469.
In the instant case, the Court of Appeals again referred to the
rule as established in the second circuit,
"that, in a crossing situation, the privileged vessel may
'cross' the signal of the burdened vessel and hold her course and
speed until it becomes evident that the burdened vessel either
cannot or will not keep out of the way."
And the court observed that, although this rule was criticized
in
The Fulton, it was thought to be "too firmly
established to be departed from until the Supreme Court speaks."
The court added that it still adhered to that view. 101 F.2d p.
6.
We may assume that the Supervising Inspectors had no intention
to depart from the statute under which they claimed authority to
make their regulations. And Articles 19-23 of the statute are to be
read in the light of Article 27, which has the following
controlling qualification:
"Art. 27. In obeying and construing these rules, due regard
shall be had to all dangers of navigation and collision, and to any
special circumstances which may render a departure from the above
rules necessary in order to avoid immediate danger."
Moreover, the Inspectors expressly recognize and follow the
statute in providing in Rule VII, first paragraph, that "the steam
vessel which has the other on her own port
Page 308 U. S. 386
side shall hold her course and speed;" and
"the steam vessel which has the other on her own starboard side
shall keep out of the way of the other by directing her course to
starboard so as to cross the stern of the other steam vessel, or,
if necessary to do so, slacken her speed or stop or reverse."
The second paragraph of Rule VII, providing for the stoppage and
backing of both vessels if necessary "until signals for passing
with safety are made and understood," was clearly intended to apply
to the dangerous situation envisaged in Article 27 of the
statute.
The grounds for criticizing the rulings of the Court of Appeals
of the second circuit in disregarding the Inspectors' requirement
cannot be better stated than in the court's own language in
The
Fulton. After referring to its former decisions, by which it
felt itself bound, the court observed that "concededly, there comes
a time when the privileged vessel must yield;" that there is never
a "right of way into collision;" that the point, at best, "is one
of degree;" and that, if the question were
res integra,
the Inspectors' rule would be held valid. The court continued:
"The inspectors apparently believe that, in the greater number
of cases, it will conduce to collision to allow a pilot to keep on
in the face of a proposal by the approaching vessel that she put
herself across his bows. True, the proposer often will not act
without consent, but it is certainly possible that prudence forbids
speculation as to whether he has still time or disposition to keep
out of the way. Again and again, cases arise in which the proposal
is repeated, the vessels coming nearer all the time; sometimes it
is repeated even after it has been crossed by a refusal. No
substantial interest is at stake except to escape collision which
will certainly be avoided if both stop."
Stopping "is more likely to avoid disaster than going on in the
teeth of what is at least a proposal, and may be a declaration." So
the court thought that the situation was a proper one "for the
exercise of the inspectors'
Page 308 U. S. 387
function in providing for cases not covered explicitly." The
court could not see "any conflict with the statute, unless that be
read without regard to its purpose." For Articles 19 and 21 "do not
require any signals at all," and "if one is given proposing a
dangerous course," the court thought it
"too verbal and rigid an interpretation to say that the
privileged vessel is inevitably still bound; at least officials,
vested with general authority, are not helpless to meet the
situation by a rule."
And, after noting that Article 27 of the statute authorized a
departure "to avoid immediate danger," the court posed the question
-- "Can it be that, though vessels themselves may so depart, the
inspectors may not say that a situation likely to be dangerous
shall be treated as such?"
We are in accord with the criticism thus effectively expressed
by the Court of Appeals of its established rule, and we think that
the court should be relieved of its assumed obligation to follow
its former decisions holding that Inspectors' requirement invalid.
We think that Inspectors' Rule II should be read in connection with
their Rule VII, and that both should be construed in the light of
the statutory provision in Article 27.
The plain purpose of the Inspectors' Rules is to minimize the
danger of collision. The so-called privileged vessel has no
absolute right to keep her course and speed regardless of the
danger involved in that action. Her right to maintain her privilege
ends when there is danger of collision, and, in the presence of
that danger, both vessels must be "stopped and backed if necessary,
until signals for passing with safety are made and understood."
In
The Quogue, 47 F.2d 873, 874, where the Court of
Appeals of the second circuit had before it a "head-on situation,"
the court condemned a vessel "for crossing signals and insisting
upon her rights." That vessel was
The Transfer, and the
right insisted upon was that of port
Page 308 U. S. 388
to port passage. The fault of the other vessel,
The
Quogue, in undertaking to cross the bow of
The
Transfer was found to be "most glaring," but
The
Transfer was also held at fault because her master was not
justified in acting on the assumption that
The Quogue
would not carry out the maneuver indicated by her signals unless he
consented. He did not "reverse as promptly as he should," for, when
the dangerous situation was presented, "he was not privileged to
continue on his course on the chance that the other vessel would
change her announced purpose if he refused to consent." The Court
of Appeals aptly said:
"It is a hard rule which requires a master, when he sees another
vessel about to cross his bow with wanton disregard of his rights,
to stop and allow the arrogant usurper to pursue his wrongful
course. But safety is better than pride, and, however slight the
hope that rules to promote safety will be observed under such
circumstances whatever courts may say, the vessels must be judged
according to their legal duties."
The Court of Appeals, in
The Fulton, considered these
observations in
The Quogue to be pertinent, and we think
that they are pertinent to a dangerous situation arising in
connection with crossing courses. We see no sufficient ground for a
distinction in upholding and applying the Inspectors' requirements
in such cases.
We deal simply with the question presented with respect to the
validity of the Inspectors' rules here in question. We hold these
rules are not essentially inconsistent with the statute, and are
valid, both the statutory provisions and the Inspectors' Rules
being designed to promote safety in situations fraught with danger.
We do not pass, or intimate any opinion, upon the particular facts
of the instant case, as it is the appropriate province of the Court
of Appeals to deal with these. As the Court of Appeals apparently
did not consider the conduct of
El Isleo in the light of
the Inspectors' requirements, but
Page 308 U. S. 389
thought, under the compulsion of its former decision, that it
must disregard those requirements, we think that the cause should
be returned to the Court of Appeals to be decided by it, free of
that compulsion.
To afford that freedom, we reverse the judgment and remand.
Reversed.
* Together with No. 74,
Postal Steamship Corp. v. Southern
Pacific Co., also on writ of certiorari to the Circuit Court
of Appeals for the Second Circuit.
[
Footnote 1]
"Pilot Rules for Certain Inland Waters," etc., effective, as
amended, May 1, 1912.
[
Footnote 2]
Inland Rules, Act of June 7, 1897, Arts.19, 21-23, 27, 30 Stat.
101, 102; 33 U.S.C. §§ 204, 206-208, 212.
[
Footnote 3]
Act of June 7, 1897, c. 4, § 2, 30 Stat. 102, 33 U.S.C. §
157.
[
Footnote 4]
See Note 1
[
Footnote 5]
See Rule III, "Pilot Rules for Atlantic and Pacific
Coast Inland Waters," edition October 23, 1906.
[
Footnote 6]
See Rule II, edition July 1, 1907; edition May 1,
1912.
[
Footnote 7]
In
The Fulton, 54 F.2d 467, page 468, the Circuit Court
of Appeals cited to this effect
The John King, 49 F. 469;
The Cygnus, 142 F. 85;
The Transfer No. 15, 145
F. 503;
The John H. Starin, 162 F. 146;
The
Montauk, 180 F. 697;
The Ashley, 221 F. 423.