In entering the port of New York, the steamship
Britannia came so close to Governor's Island as to graze
the bottom. This made it necessary for her pilot to direct the
engines to be put at full speed till she cleared the ground. After
that, the speed of the vessel was slowed, and her wheel was put
hard-a-port to round into East River. About the time of touching
bottom, the
Britannia sighted the steamship
Beaconsfield on her starboard bow, and blew a single
whistle. The
Beaconsfield, going out from the port, had
also seen the
Britannia when it came around Governor's
Island, and about the time it was disengaging itself from the
ground, blew a single blast of her whistle, put her helm to port a
little, and went on at a slow speed. The whistle of the
Britannia was heard upon the
Beaconsfield, but
that of the
Beaconsfield was not heard on the
Britannia. After clearing the bottom and reducing her
speed, the
Britannia did not respond promptly to her helm,
owing to the fact that the condition of the wind and tide was such
as to form a flood eddy on the north side of the channel between
the Battery and Governor's Island, and an ebb tide on the south
side of the channel. These tides operate to turn the head of a
vessel attempting to enter the East River near Castle William to
the westward as it crosses the ebb until it enters the flood eddy.
Such tidal action, and its effect upon vessels, were known to the
pilot of the
Beaconsfield, and should have been known to
the pilot of the
Britannia. It retarded the efforts of the
Britannia to pass astern of the
Beaconsfield. The
Beaconsfield thereupon blew another single whistle, and,
hearing no answer, put her wheel hard-a-port, stopped her engines
and reversed full speed. Her engines were kept in this condition
until her headway was stopped. Then she lay still in the water
until struck by the
Britannia and sunk.
Held:
Page 153 U. S. 131
(1) [All concurring,] That the
Britannia was in fault
in running, at a place where she was liable to meet outward going
vessels, across the ebb tide in such a way that the current
prevented her from answering her helm with promptness, and that
such fault was enough to render her liable in whole or in part for
the loss occasioned by the collision.
(2) [BROWN and JACKSON, JJ., dissenting,] That the
Beaconsfield was also in fault (a) in disregarding Rule 23
of the Rules for preventing Collisions on the Water, Rev.Stat. §
4233, directing that when, by Rule 19, one of two vessels shall
keep out of the way, the other shall keep her course, subject to
the qualifications of Rule 24, and (b) in remaining motionless for
a minute and a half, in full view of the tardy motions of the
Britannia in getting astern.
The statement in Finding 31 that
"the conduct of those in charge of the
Beaconsfield . .
. does not warrant the inference that there was, on their part,
negligence contributory to produce the collision,"
is not a finding of fact, within the meaning of the rule, but is
a conclusion of law upon the previous facts.
The Act of August 19, 1890, c. 802, 26 Stat. 320, not having
been proclaimed by the President, as required by sec. 3 thereof, it
is not yet operative, and this Court is not bound by the
construction put by English courts on Art. 21, providing that
"where by any of these rules, one of two vessels is to keep out of
the way, the other shall keep her course and speed."
In the District Court of the United States for the Southern
District of New York, George Cleugh, of Newcastle, England, filed
his libel and complaint, as owner of the steamship
Beaconsfield, against the steamship
Britannia,
alleging that, on the 19th day of November, 1886, the
Beaconsfield, while proceeding to sea loaded with a full
cargo of grain, between Governor's Island and the Battery, was run
into by the
Britannia, bound in from sea, and so badly
damaged that she sank shortly afterwards in shoal water, to which
she had been towed by tug boats, and suffered damage, with loss of
freight, to the amount of $48,000. The libel further alleged that
the
Britannia was running at too high a rate of speed for
the place the vessels were in, without proper lookout or sufficient
attention to her navigation, and without regard to the rules of
navigation, and that the
Beaconsfield was wholly without
fault. An amended libel was subsequently filed containing a more
detailed statement of the position and movements of the vessels at
the time of the collision.
Page 153 U. S. 132
To this original and amended libel the owners of the
Britannia filed an answer traversing those allegations
which attributed fault to the
Britannia, alleging that the
Beaconsfield had been carelessly and negligently managed
in several particulars, which caused the collision, and praying
that the libel be dismissed.
Subsequently, J. L. Cotton, master, and George Cleugh, owner, of
the
Beaconsfield, filed another and joint libel against
the
Britannia to recover for loss of cargo, containing
substantially the same allegations as those made in the libel
previously field by Cleugh. This libel was likewise amended so as
to make a more particular and detailed statement of the facts as
claimed by the libelants.
To this libel an answer was duly filed by the owners of the
Britannia denying fault on her part and alleging careless
and improper management of the
Beaconsfield, which was the
real cause of the collision. They also gave security and procured
the discharge of their vessel. Thereafter the owners of the
Britannia filed a petition against the
Beaconsfield, again charging the fault of the collision
upon her, alleging damages suffered by the
Britannia, and
praying process against the
Beaconsfield, to the end that
such damages might be assessed in the same suit.
This petition was met by an answer on the part of George Cleugh,
the owner of the
Beaconsfield, traversing the allegations
of the petition.
At a subsequent term, the owners of the
Britannia filed
in the same court a libel and complaint, subsequently amended,
against the
Beaconsfield containing a detailed statement
of the transaction and praying process against and condemnation of
the
Beaconsfield. To this libel, as amended, exceptions
were filed on behalf of the owner of the
Beaconsfield on
the ground of insufficiency and indefiniteness in certain
particulars. Some of these exceptions were sustained, which led to
a further amendment of said libel. An answer to the amended libel
was then filed by the owner of the
Beaconsfield.
These three cases were so proceeded in that, on the 9th day of
July, 1889, final decrees were entered, adjudging that both
Page 153 U. S. 133
the
Britannia and the
Beaconsfield were in
fault, and apportioning the damages between them in such a way that
there was found due from the
Britannia to the
Beaconsfield the sum of $14,978.90, and that there was due
by the
Britannia to J. L. Cotton and George Cleugh, as
bailees of the cargo of wheat laden on the
Beaconsfield,
the sum of $25, 124.63, being a moiety of the whole loss to cargo,
the other moiety of said loss being adjudged against the
Beaconsfield. 34 F. 546.
From these decrees of the district court appeals were taken by
the owners of both vessels to the circuit court. That court held
that the
Britannia was alone in fault, and accordingly
dismissed the libel of the
Britannia and awarded to
Cleugh's executor for the damages to the
Beaconsfield
$38,808.05, with costs, and to Cotton, for damages to the cargo,
$52,925.46, with costs. 42 F. 67.
From all three decrees the owners of the
Britannia have
appealed to this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As both the district court and the circuit court, though for
somewhat different reasons, found the
Britannia to be in
fault, and as we agree with them in that conclusion, it is not
necessary for us to go at length into that part of the controversy.
It is sufficient to say that it appears that the
Britannia
came so close to Governor's Island that she grazed the bottom and
rendered it necessary for her pilot to direct her engines to be put
at full speed till she cleared the ground. After that, the speed of
the vessel was slowed and her wheel was put
Page 153 U. S. 134
hard-a-port to round into East river. As found by the circuit
court, at about the time of touching the bottom, she sighted the
Beaconsfield on her starboard bow, and at that time she
blew a single whistle to the
Beaconsfield, thus signifying
an intention to pass under the stern of the
Beaconsfield.
After clearing the bottom and reducing her speed, the
Britannia did not respond promptly to her helm, owing to
the fact, as found in the fourth finding, that
"the condition of the wind and tide was such as to form a flood
eddy on the north side of the channel between the Battery and
Governor's Island, and an ebb tide on the south side of the
channel. These tides operate to turn the head of a vessel
attempting to enter the East river near Castle William, on
Governor's Island, to the westward, as she crosses the ebb until
she enters the flood eddy. Thereupon her head is turned to the
eastward. Such tidal action was within the knowledge of the pilot
of the
Beaconsfield, and should have been within the
knowledge of the pilot of the
Britannia."
Having placed herself in this predicament, the
Britannia's efforts to pass astern of the
Beaconsfield were retarded, and her fault was in that
particular -- that is, in running at a place where she was liable
to meet outwardgoing vessels, across the ebb tide in such a way
that the current prevented her from answering her helm with
promptness. While this fault was not, as we shall hereafter show,
the sole cause of the accident, it contributed to it, and upon the
findings we agree with both the lower courts in thinking the fault
was enough to render the
Britannia liable, in whole or in
part, for the loss occasioned by the collision. In exoneration of
the
Britannia, her advocate cites the case of
The
Rhondda, 8 App.Cas. 549, 555. That was a case somewhat similar
in its facts to the present one. The
Rhondda was coming
around a point in the Straits of Messina, meeting another steamer,
the
Alsace-Lorraine. They came into collision, and the
Alsace-Lorraine was sunk. Her owners libeled the
Rhondda, but the Privy Council sustained the navigation of
Rhondda. She had the other vessel on her starboard bow,
and therefore it was her duty to keep out of the way of the
Alsace-Lorraine. This she attempted to do by going to
Page 153 U. S. 135
the starboard and passing under the stern of the other vessel.
There was a current which checked the swing of the
Rhondda
to the starboard, and her captain, as soon as he saw that his
vessel was not swinging off to starboard under his port helm as he
had expected, stopped and reversed his engines. The court held that
as it appeared that the
Rhondda had ported her helm, and
that such action would have carried her clear of the other steamer
if she had not been prevented by the current, the
Rhondda
was free from blame. The maneuvers, therefore, of the
Britannia and the
Rhondda were alike. They were
both meeting another steamer on their starboard bow. They both, in
compliance with the rule of navigation applicable to such a case,
endeavored to pass under the stern of the other vessel by porting
the helm, and they both, when it was seen that the vessel was not
swinging as rapidly to the starboard as was expected, stopped and
reversed engines. The reason why, if the
Rhondda was
justly exonerated, the
Britannia is not entitled to a like
judgment is found in the different circumstances in which the
vessels were placed.
As we have seen, the
Britannia was entering one of the
most crowded harbors in the world, and was liable to meet other
vessels outward bound at any moment. It was also obvious from her
course in running close to Governor's Island that any vessel she
would meet as she entered the strait after she cleared the island
would probably be on her starboard bow. Knowing, as she was bound
to know, that in the condition of the tide at the time, there was a
conflict between the current and the eddy which would be apt to
thwart or retard her movement to the starboard, it was her duty to
have rounded the island at the very lowest rate of speed which
would have enabled her to answer to her helm. This she failed to
do, and, although her subsequent movements were skillful and in
accordance with the rules, she must be held answerable for her
original fault in rounding the island so closely that it was found
necessary to put her engines for a time at full speed in order to
clear her from the ground. This temporary enhancement of speed, and
the failure to anticipate and guard against
Page 153 U. S. 136
the consequences of a well known current, rendered her
subsequent efforts to avoid the collision unavailing.
On the other hand, in the case of
The Rhondda, Sir
James Hannen, in the course of his opinion, said:
"Undoubtedly it was strongly in evidence that there was such a
stream at this place, whether it be called current or eddy, as was
calculated to have an effect in the manner suggested on a vessel
coming round into the neck of the channel, . . . and would be felt
upon the starboard bow of a vessel precisely at the point where the
Rhondda had arrived."
But he proceeded to say:
"The
Rhondda had no reason to anticipate that the
operation of the current or eddy would have any bearing upon her
duty with reference to the
Alsace-Lorraine, because she
had a right to expect that the coast would be clear from steamers
coming out in the direction in which the
Alsace-Lorraine
was."
This brings us to a consideration of the conduct of the
Beaconsfield, and here the courts below parted company,
the district court having held that the
Beaconsfield's
management was faulty, while that circuit court found her free from
blame. Of course this Court must accept the facts as found for us
by the circuit court, but we do not observe any substantial
difference in the facts as understood by the respective courts.
Their diversity in opinion arose from a difference in their
application of the rules of navigation to the admitted or
established facts.
What were those facts? The
Beaconsfield described the
Britannia when the latter vessel came around Governor's
Island, and about the time she was disengaging herself from the
ground. The
Beaconsfield thereupon blew a single blast of
her whistle, which meant that she expected the
Britannia
to pass under her stern. It is found that this whistle of the
Beaconsfield was neither heard nor seen on the
Britannia, but the latter's whistle, given while getting
clear of the bottom, was heard on the
Beaconsfield, and
taken to be an answer to her own whistle. It is thus evident that
the pilots of both vessels agreed in the view that the proper thing
to avoid collision was for the
Britannia to swing to
starboard, and pass behind the
Beaconsfield. It is next
found that the
Beaconsfield,
Page 153 U. S. 137
when she blew her first whistle, put her helm to port a little,
and went on at a slow speed. Her observation of the
Britannia did not show that the latter was swinging to
starboard, but even was disclosing a little more of her starboard
side to the
Beaconsfield. Thereupon the latter blew
another single whistle, which still signified her expectation that
the
Britannia would pass astern, and, hearing no answer,
put her wheel hard-a-port, and stopped her engines, and reversed
full speed. Her engines were kept reversed until her headway was
stopped. Then her engines were stopped, and at the time of the
collision, she was nearly, if not quite, dead in the water. After
her headway was thus stopped, the
Beaconsfield took no
further action, and lay still in the water until struck. The time
from such stopping of her headway until the collision, during which
she lay still, was about a minute and a half. It is further found
that, if the
Beaconsfield had not stopped and backed, it
is probable that the
Britannia would have passed a short
distance astern of her, and indeed, under the finding as to her
rate of speed before she stopped, this is quite evident.
Was this behavior of the
Beaconsfield in stopping her
headway and remaining still, without further effort, for a minute
and a half, proper, or at least, excusable, as held by the circuit
court? Or was it improper, and did it put her in contributory
fault, as held by the district court?
In answering this question, we must have regard to the well
known rules of navigation. Those chiefly applicable to the present
controversy are rules nineteen, twenty-one, twenty-three, and
twenty-four. Rev.Stat. § 4233.
The nineteenth rule is as follows:
"If two vessels under steam are crossing so as to involve risk
of collision, the vessel which has the other on her starboard side
shall keep out of the way of the other."
We do not understand this rule to signify, as the circuit judge
seems to have thought, that the
Britannia was at all
hazards and in some way or other to avoid the
Beaconsfield. Such a rendering of the rule would dispense
with all inquiry beyond the single one which vessel had the other
on her starboard side. The plain meaning of
Page 153 U. S. 138
the rule was, as applied to the situation under consideration,
that the
Britannia, which had the
Beaconsfield on
her starboard side, should yield the path to the latter, and pass
behind her. This reading of the rule was recognized and complied
with in the first instance by the pilots of both vessels in
signaling each other that the
Britannia would go
astern.
Rule 21 provides 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." This rule was
likewise obeyed by both ships in that, so long as they were
advancing after having seen and signaled each other, they went at a
slow rate of speed. Later in the history of the incident, they both
stopped and reversed. In so doing, the
Britannia was
clearly obeying the letter and spirit of the rule. Whether the
Beaconsfield was justified in stopping and reversing we
shall presently consider.
The twenty-third rule directs that "when by rule nineteen, one
of two vessels shall keep out of the way, the other shall keep her
course, subject to the qualifications of rule twenty-four." This
rule throws light on the meaning of the nineteenth rule, and
confirms the view that the latter rule means that the vessel having
the other on her starboard shall yield the way or path to the
other, and it further provides that the latter vessel not only may,
but must, keep on her course, except as qualified by the
twenty-fourth rule. That rule is as follows:
"In construing and obeying these rules, due regard must be had
to all dangers of navigation and to any special circumstances which
may exist in any particular case rendering a departure from them
necessary in order to avoid immediate danger."
As we have seen, the
Britannia fulfilled the duty
imposed on her by signaling that she would keep out of the way and
pass to the stern of the
Beaconsfield, by slackening her
speed, and finally by stopping and reversing. Her only fault was in
overlooking or disregarding the effect of the wind and tide, so
that, when she endeavored to swing to the starboard, she was unable
to do so with reasonable quickness.
But did not the
Beaconsfield manifestly depart from
and
Page 153 U. S. 139
disobey rule twenty-three in not keeping her course, and thus
avoiding collision? Her excuse, in application of rule twenty-four,
is that the
Britannia, after having signaled that she was
going astern, did not appear to be doing so, and that this erratic
behavior justified the
Beaconsfield in stopping and
reversing. But, as already stated, the pilot of the
Beaconsfield was well aware of the existence of the
counter-current against which the
Britannia had to contend
in changing her course to the starboard, and if we are obliged to
impute fault to the
Britannia in not having foreseen and
provided against that current, so we must likewise blame the
Beaconsfield for overlooking the effect of such current in
delaying the movement of the
Britannia to the starboard.
The course of the
Britannia was precisely what might have
been anticipated after her first and only fault, and did not, in
our judgment, warrant the
Beaconsfield in disregarding the
injunctions of the twenty-third rule, which, if obeyed, would have
prevented the collision.
We think there was likewise fault in the action of the
Beaconsfield in remaining motionless for a minute and
half, in full view of the tardy motion of the
Britannia in
getting astern. This is sought to be excused by the fact that her
pilot feared certain rocks, or a rocky bottom, which were not far
from the place where his vessel was. The actual existence of such
rocks or rocky bottom was somewhat in dispute, but accepting, as we
do, the statement of the circuit court on the subject, we cannot
sustain the conduct of the
Beaconsfield. That statement is
that
"a careful collocation of the testimony of those on both
steamers and elsewhere, assisted by elaborate plotting on the
chart, indicates that the probabilities are that the
Britannia would have passed astern of the
Beaconsfield if the latter had kept her headway, even
though she straightened out sufficiently to clear the reef her
pilot spoke of, but by a very small margin only."
Stress is laid in the argument for the
Beaconsfield on
the eleventh finding, that
"at the time the
Beaconsfield reversed, she had
approached so near the New York shore that, in view of her draft of
water and the condition of the bottom in that locality, there was
some risk of her running aground
Page 153 U. S. 140
should she continue her way much longer under her port
helm."
But the exigency, as shown by the other findings, did not
require that she should continue her way "much longer." Had she
advanced one hundred and fifty feet, the collision would not have
taken place.
This alleged danger of running aground on the New York shore, if
she continued her course, was not set up in the thrice-amended
pleadings, and seems, as well as the suggestion that there were
rocks, not shown on the charts, on the course the
Beaconsfield was going, to have been an afterthought, by
way of excuse, of the pilot of the
Beaconsfield.
But allowing the finding to stand, it does not establish as a
fact in the case that there was any real danger to the
Beaconsfield in keeping on her course for the very short
distance that would have avoided the collision. Nor was it
necessary, as the findings show, that in going on, the
Beaconsfield should have approached any closer to the New
York shore. There was plenty of time and room for her to have
changed her course sufficiently to have avoided a nearer approach
to the north shore.
As for the other excuse, advanced by the pilot of the
Beaconsfield, that there were rocks ahead, as already
stated, it was disposed of by the learned judge of the circuit
court, who, when asked to affirmatively find that there was no reef
of rocks about 1,500 feet from the Battery flag, or in that
neighborhood, as testified to by the pilot of the
Beaconsfield, refused on the stated ground that it was
"immaterial, as by findings already made the collision happened
well inside of such point."
The thirteenth finding, that
"shortly after the
Beaconsfield began reversing, the
Britannia commenced to swing to starboard, a motion which
was perceived on the
Beaconsfield,"
is important, and strengthens the case against her. Seeing the
Britannia at last, however tardily, taking the direction
which the rule and the exchanged signals required, it was
misconduct in the
Beaconsfield to continue reversing, and
to finally remain motionless.
Page 153 U. S. 141
It cannot be reasonably held that the thirty-first finding was a
finding of fact, obligatory upon this Court. It is in these
words:
"The conduct of those in charge of the
Beaconsfield, as
specifically set forth in the foregoing finding, does not warrant
the inference that there was, on their part, negligence
contributory to produce the collision."
Of course, if this
were a finding of fact within the
meaning of the rule, it would be conclusive of the case, and all
the other findings would become mere surplusage. But it is evident
that the learned judge did not intend it to be so regarded. It was
plainly meant as an additional conclusion in law. He speaks of it
as "an
inference from the foregoing finding." Nor can we
assent to the proposition that it is competent for the judge, who
is to find the fact for this Court, to shut us off from a
consideration of the legal effect of the other facts found, by a
conclusive finding that, in his opinion, a particular inference is
or is not warranted by the facts so found.
Regarding, therefore, this finding as merely expressive of the
learned judge's view of the legal conclusion that arose upon the
facts as found, and giving reasonable effect to his findings of
fact, we are unable to concur in his conclusion.
The disregard by the
Beaconsfield of the
Britannia's signal, her failure to obey the rule and keep
her course, and her supine negligence in remaining motionless for
so long a period while she saw the
Britannia approaching
her clearly put her in fault.
It is argued that the words "shall keep her course" do not mean
that she shall maintain her speed, and English cases are cited to
the effect that the rule does not imply that the vessel shall
maintain the same speed. If this is all that is meant in
the cases cited, and we so read them, we have no reason to disagree
with them, and they do not in the slightest degree impugn our
reasoning. But if the contention is, and if those cases must be
understood as holding, that a vessel whose duty it is to keep her
course complies with that duty by reversing her engines and ceasing
to move at all, we are unable to concur in such a view. It is
inconsistent with both the words and
Page 153 U. S. 142
the sense of the rule. A vessel which voluntarily becomes
motionless cannot properly be said to keep her course. The word
"course," both from its etymology and the primary meaning given to
it by lexicographers, signifies a running or moving forward, a
continuous progression or advance.
The collocation of the rule, and its direct references to rules
17, 19, 20, and 22, plainly point to the meaning that, while the
other vessel must keep out of the way, the preferred vessel shall
not interfere with or thwart the movements of such other vessel by
bringing a new element into the calculation, which would be done
if, instead of pursuing her course, she stopped her headway. It is
not meant that some exigency or obvious danger might not justify
her in checking her speed and even in stopping altogether. But such
a case is provided for in the twenty-fourth rule. As we have seen,
no such exigency is found to have existed in the present case.
We are relieved from any force there may be in the suggestion
that we ought to follow the construction supposed to have been put
upon this rule by the English courts, in order that there should be
no difference between the courts of the two countries in construing
the same rule, by the Act of August 19, 1890, 26 Stat. 327, which
declares that the rule shall be read as follows: "Where by any of
these rule one of two vessels is to keep out of the way, the other
shall keep her course and speed." It however appears that this act
awaits the proclamation of the President to become operative.
The case of
The Northfield and The Hunter, 4 Ben. 112,
116, is applicable to the present question in regard to the
management of the
Beaconsfield. There, the
Northfield, a Staten Island ferryboat, had left her slip
to go west of Governor's Island, and was swinging round from south
to southwest. The
Hunter was coming down the North River
and heading south to go down west of Governor's Island. The vessels
were therefore in similar positions in respect to each other as the
vessels in the present case. The District Court for the Southern
District of New York held, per Blatchford, J., as follows:
"Under the circumstances, the
Northfield had the
Hunter on her own starboard side, and it was the duty
of
Page 153 U. S. 143
the
Northfield, under the rule, to 'keep out of the
way' of the
Hunter. It was equally the duty of the
Hunter 'to keep her course.' The
Northfield
ported her helm to a sufficient extent to enable her to pass safely
under the stern of the
Hunter. When, however, the
Hunter was about three hundred yards distant from the
Northfield, instead of keeping her course, she stopped her
engines. It is quite clear that if the
Hunter had not
stopped at all, but had kept her course, the
Northfield
would have passed safely under the stern of the
Hunter.
The stopping by
Hunter was the cause of the
collision."
Disposing of the excuse set up by the
Hunter for her
stopping, that her navigator assumed that the
Northfield
was intending to pass ahead of the
Hunter, rather than
astern of her, the learned judge said: "In so assuming, they took
the risk of being wrong in the assumption." This case was affirmed
in the circuit court, and also in this Court, in which this
language was used:
"The officers of the tug perfectly understood that under the
rule it was their duty to keep the tug on its course. The officers
of each vessel had the right to assume that the other vessel would
do its duty, and to make their course and keep their speed on that
assumption."
Hutchinson v. Northfield, 24 L.C.P.Co.Rep. 680, 681. In
the case of
The Elizabeth Jones, 112
U. S. 522, it was said:
"Conceding it to have been the duty of the
Willis,
under article 12, to keep out of the way of the
Jones, it
was equally the duty of the latter not to baffle or to prevent the
efforts of the
Willis to that end. Her departure from the
requirement of article 18 that she should keep her course cannot be
justified under article 19, because there were no special
circumstances in such departure necessary in order to avoid
immediate danger."
In
Belden v. Chase, 150 U. S. 699,
it was said:
"It is a settled rule in this Court that when a vessel has
committed a positive breach of statute, she must show not only that
probably her fault did not contribute to the disaster, but that it
could not have done so. Obedience to the rule is not a fault, even
if a different course would have prevented the collision. . . .
Masters are bound to obey the rules and entitled to rely on the
assumption that they will be obeyed, and
Page 153 U. S. 144
should not be encouraged to treat the exceptions as subjects of
solicitude, rather than the rules."
In
Crockett v.
Newton, 18 How. 583, it was said by Mr. Justice
Curtis:
"It must be remembered that the general rule is for a sailing
vessel meeting a steamer to keep her course while the steamer take
the necessary measures to avoid a collision, and though this rule
should not be observed when the circumstances are such that it is
apparent its observance must occasion a collision, while a
departure from it will prevent one, yet it must be a strong case
which puts the sailing vessel in the wrong for obeying the rule.
But the duty of the steamer to port her helm and go to the
starboard implies a correlative obligation of the ship to keep her
course."
The Scotia, 14
Wall. 170,
81 U. S.
181.
"It is the duty of a steamer to keep out of the way of a sailing
vessel when they are approaching in such directions as to involve a
risk of collision. The correlative obligation rests upon the
sailing vessel to keep her course, and the steamer may be managed
upon the assumption that she will do so."
The Free State, 91 U. S. 200.
It is true that some of the cases just cited were cases wherein
the vessel whose duty it was to keep her course was a sailing
vessel, yet the principle involved is the same in the case of two
steamships crossing, where it is the duty of the one who has the
other on her starboard bow to keep out of the way of the other, and
of the latter to keep on her course.
The conclusion reached is the same as that arrived at in the
district court, and accordingly we reverse the three decrees and
remand the causes to the circuit court with directions to enter
decrees in accordance with this opinion, that both vessels were in
fault, and the damages should be divided.
Reversed.
MR. JUSTICE BROWN, with whom was MR. JUSTICE JACKSON,
dissenting.
I cannot agree with the Court in holding the
Beaconsfield to have been in fault for this collision. Her
conduct, so far
Page 153 U. S. 145
from being reckless or in violation of the rules of good
seamanship, appears to me to have been characterized by an excess
of prudence, which, even if it were an error, was not a fault for
which I would willingly condemn her. This Court has had frequent
occasion to hold steamers liable for too great speed. This is the
first in which we have condemned one for too little. Indeed, cases
in which steamers have been held liable for not maintaining their
speed are extremely rare both in this country and in England, and
if any such exist, I think they will be confined to those wherein
tugs descending a river with tows have been held in fault for
stopping and allowing their tows to spread out in the path of
ascending vessels. It seems to me that the conclusion that the
Beaconsfield was in fault for stopping and reversing can
only be reached by ignoring the most vital findings of fact with
respect to her conduct and proceeding upon the theory that, because
the collision would not have happened if she had kept her speed, it
was necessarily a fault that she had not done so.
The findings, so far as they bear upon the questions at issue,
are as follows:
"Fifth. . . . When about midway between Diamond reef and the New
York piers, she saw the
Britannia as the latter came clear
of Castle William, and blew a single whistle to her. The
Beaconsfield was then heading about W. N.W. or W. By N.
The full speed of the
Beaconsfield was between nine and
ten knots, with fifty-six revolutions. At this time, her engines
were moving under an 'easy ahead,' with thirty revolutions, which
would make her speed through the water about five knots. The
retardation due to the action of the wind and to that of the flood
eddy (described in the fourth finding) greatly reduced her speed
over the ground as she came within the influence of the eddy, to
considerably less than four knots."
"Eighth. . . . While getting clear of the bottom, and with her
engines at full speed, she [the
Britannia] blew a single
whistle to the
Beaconsfield. The whistle of the
Beaconsfield referred to in the fifth finding was neither
heard nor seen on the
Britannia, but the latter's whistle,
given while getting
Page 153 U. S. 146
clear of the bottom, was heard on the
Beaconsfield, and
taken to be an answer to her own signal. At the time the
Britannia thus signaled, the distance between the steamers
was not quite half a mile."
"Ninth. After clearing the bottom, the
Britannia ported
and hard-a-ported her helm, but her bow while in the ebb tide near
Governor's Island did not swing to starboard, but, on the contrary,
did for a brief space take a slight but perceptible swing to be
westward."
"Tenth. When the
Beaconsfield blew her first whistle,
her wheel was put to port a little and kept steady a-port, and
under her slow engine she drew ahead, her head inclining a little
toward the New York docks. A careful watch was kept on the
movements of the
Britannia, and it was observed not only
that she did not swing to starboard, but also that she was showing
a little more of her starboard side to the
Beaconsfield;
thereupon those upon the
Beaconsfield, while still about
four lengths from the
Britannia, blew another single
whistle, and, hearing no answer, put their wheel hard-a-port, and
stopped, and reversed full speed. Her engines were kept reversed
until her headway was stopped. Then her engines were stopped, and
at the time of the collision she was nearly, if not quite, dead in
the water."
"Eleventh. At the time the
Beaconsfield reversed, she
had approached so near the New York shore that, in view of her
draft of water and the condition of the bottom in that locality,
there was some risk of her running aground should she continue her
headway much longer under her port helm. At that time, the
Britannia, not yet swinging to the eastward, was heading
so as to cross the bows of the
Beaconsfield, had advanced
over a considerable part of the distance which separated them when
she blew her first whistle, and was manifestly coming into the
northern part of the channel."
"Twelfth. This second whistle from the
Beaconsfield was
not heard on the
Britannia. The latter also blew a second
single whistle, and thereafter a third, neither of which was seen
or heard on the
Beaconsfield."
"Thirteenth. Shortly after the
Beaconsfield began
reversing,
Page 153 U. S. 147
the
Britannia commenced to swing to starboard, a motion
which was perceived on the
Beaconsfield."
"Fourteenth. The captain of the
Britannia had noticed
that she did not swing as promptly as he had expected after
clearing the bottom, and after she did begin to swing, he saw that
she needed to come more to starboard, and that the ships for some
reason did not get clear of each other, and, differing from the
pilot as to the chance of clearing the
Beaconsfield if he
kept on, he gave the order to reverse his engines; thereafter he
let go his port anchor when about one hundred feet from the
Beaconsfield."
"Twenty-fourth. At the time these steamers sighted each other
and signaled, they were crossing so as to involve risk of collision
within the meaning of the nineteenth rule, and the
Britannia had the
Beaconsfield on her starboard
side."
"Twenty-fifth. At the time when the
Beaconsfield
stopped and reversed, the vessels were approaching each other so as
to involve risk of collision. A prudent navigator viewing the
situation at that moment from the deck of the
Beaconsfield
would have reached the conclusion that if neither the course of the
Britannia were altered nor her headway checked, collision
was imminent and inevitable unless avoided by some change in the
movements of the
Beaconsfield."
"Twenty-sixth. The
Britannia's movements, visible to
the
Beaconsfield, were not in accordance with the single
whistle she had blown, but were such as to create a natural,
reasonable, and strong apprehension of collision in those in charge
of the
Beaconsfield, and they were thereby justified in
taking the statutory precaution to avoid risk of collision, which
is prescribed by the twenty-first rule for a vessel approaching
another vessel so as involve risk of collision."
Although the collision occurred in November, 1886, after the
revised international regulations, adopted by Act of Congress of
March 3, 1885. c. 354, 23 Stat. 438, took effect, the case was
treated by court and counsel as covered by the rules prescribed in
Rev.Stat. § 4233, which do not, however, differ materially from the
revised regulations.
In connection with the above findings, the following rules are
pertinent:
Page 153 U. S. 148
"Rule nineteen. If two vessels under steam 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."
"Rule twenty-one. Every steam vessel, when approaching another
vessel, so as to involve risk of collision, shall slacken her
speed, or, if necessary, stop and reverse."
"Rule twenty-three. Where, by rules seventeen, nineteen, twenty,
and twenty-two, one of two vessels shall keep out of the way, the
other shall keep her course, subject to the qualifications of rule
twenty-four."
"Rule twenty-four. In construing and obeying these rules, due
regard must be had to all dangers on navigation, and to any special
circumstances which may exist in any particular case, rendering a
departure from them necessary in order to avoid immediate
danger."
Two questions are naturally raised by the above findings: (1)
whether the obligation imposed upon the privileged vessel by rule
23, to "keep her course," also obliges her to maintain her speed;
(2) granting that it does, whether this requirement applied to the
Beaconsfield under the peculiar circumstances of this
case.
(1) The
first proposition depends upon what is meant by
keeping the course of a vessel. The word "course," as used in this
connection, is defined by the lexicographers as follows: by
Webster, as "progress from point to point without change of
direction; any part of a progress from one place to another, which
is in a straight line or in one direction." By Worcester, as "the
track or line of motion; direction in which motion takes place."
And by the Imperial Dictionary, as "the direction of motion; the
line in which a body moves; as what
course shall the pilot
steer; the
course of a projectile through the air.�
Now unless we are to give to the word "course" a meaning quite
different from that given by the grammarians, we must hold that the
steamer discharged her obligation to "keep her course" by keeping
steadily in the direction in which she had been previously going.
But we are not without authority upon this point. In the case of
The Beryl, which was a collision in the North sea between
the steamship
Abeona and the
Page 153 U. S. 149
steamship
Beryl, the two vessels were approaching each
other at right angles, the
Beryl being upon the starboard
side of the
Abeona. The
Abeona admitted that the
Beryl kept her course, but claimed that she kept it too
long, directly the contrary of the claim made by the
Britannia in this case. The
Beryl eased her
engines from a quarter to half a mile distant from the
Abeona. It was held by the admiralty court, 9 P.D. 4, that
although the obligation to keep her course was applicable, yet the
Beryl was bound not to disregard the obligation of the
other article to stop and reverse if necessary to avoid a
collision, and that both articles were applicable to the case. The
admiralty court held that the
Beryl did act in time in
stopping her engines, but on appeal to the Court of Appeals, the
case was reversed, 9 P.D. 137, 140, 141, 142, 144, and the
Beryl held to be in fault
not for failing to maintain
her speed, but for failing to stop and reverse her engines in
due time. In delivering the opinion of the court, Brett, M.R.,
observed:
"It was suggested to us today that 'keeping her course' meant
keeping her course at the same pace at which she was going before
she was called upon to obey this rule. But keeping her course means
that she is to keep on the same direction as before; it has nothing
to do with the question of speed. . . . The
Abeona was
bound to get out of the way of the
Beryl; the moment that
rule applied to the
Abeona, article 22 applied to the
Beryl, namely, to keep her course. . . . The
Abeona did everything that was wrong, and then the
question arises, did the
Beryl break any of the rules? She
kept her course, and, when she saw that the
Abeona was not
doing her duty, she whistled. . . . Seeing the
Abeona was
still keeping on, she whistled again and slackened her speed. The
first question upon that is this: were the circumstances such then
that there was risk of collision? The vessels were at a distance of
from a quarter to half a mile. At that time, the officer of the
Beryl slackened his speed."
Bowen, Lord Justice, observed:
"It has been suggested that the expression 'keep her course,'
used in art. 22, refers to the speed of the vessel as well as to
the direction of her
Page 153 U. S. 150
head, but this is an untenable argument. In article 18, we find
the words 'stop and reverse if necessary,' which obviously are
intended to point out that the vessel, when it is necessary, is to
do more than simply slacken her speed. It may, however, be a matter
of consideration whether 'if necessary' is to be construed as
meaning if it is actually necessary, or only if the captain should
reasonably think that a necessity has arisen; but even if we were
to take the latter as the construction most favorable to the master
of the
Beryl, the answer of our assessors to the question
put to them, which the master of the rolls has already referred to,
puts him clearly in the wrong and obliges us to hold that the
Beryl was also to blame for this collision."
Fry, Lord Justice, was of the same opinion, and thought that the
Beryl should have stopped and reversed earlier than she
did.
This case is not only inconsistent with the opinion of the Court
in the case under consideration, but is absolutely the reverse of
it.
In view of the fact that these rules are international, and have
been pronounced by this Court to be a branch of the international
law,
The Scotia, 14
Wall. 170, it is of the utmost importance that the same
construction should be placed upon them by all courts upon which
they are obligatory, and the fact that the courts of the country in
which they were first adopted has given them a certain construction
is a cogent argument in favor of a similar construction elsewhere.
There is a peculiar propriety in its application in this case in
view of the fact that the
Beaconsfield was a British
vessel, and its officers presumably acquainted with the law of
their flag. The only case to the contrary to which our attention
has been called is that of
The Northfield and The Hunter,
4 Ben. 112, in which, however, no such general rule of construction
was laid down. But under the peculiar circumstances of that case,
to which I shall advert hereafter, as distinguishing it from the
case under consideration, it was held that the privileged vessel
was in fault for stopping and reversing.
Page 153 U. S. 151
(2) But whatever be the interpretation of this rule, it seems to
me clear that under the circumstances of the particular case, the
Beaconsfield was guilty of no fault in stopping and
reversing. It will not for a moment be claimed that a steamer is
bound to keep up her speed if her master can see that by so doing
she must inevitably be brought into collision with the other
vessel. He is not, by a persistent adherence to any rule, at
liberty to thrust himself directly in the path of an approaching
vessel. There is certainly a point in every case beyond which he is
not bound to proceed. The obligation to avoid a collision, if it be
possible to do so, must be read into and made a part of all
steering and sailing rules, and is specially provided for in rule
24, that
"in construing and obeying these rules, due regard must be had
to all dangers of navigation, and to any special circumstances
which may exist in any particular case rendering a departure from
them necessary in order to avoid immediate danger."
There is no rule of more general observance than that which
requires sailing vessels to keep their course when approaching a
steamer, and yet, in
The Sunnyside, 91 U. S.
208, a sailing vessel was condemned for persistently
adhering to the rule and running down a steam tug which lay
motionless upon the water, although the latter was conceded to be
in fault for not getting out of her way. "Negligence more
manifest," said Mr. Justice Clifford,
"culpable, or indefensible in view of the circumstances is
seldom exhibited in controversies of this character, and the only
excuse offered for it is that the eighteenth sailing rule provides
that where one of two ships is required to keep out of the way, the
other shall keep her course, entirely overlooking the fact that the
mandate of that rule is declared by the rule itself to be subject
to the qualification"
of rule 24.
See also 59 U. S.
Newton), 18 How. 581;
Wilson v. Canada Shipping, 2
App.Cas. 389.
So rule 23, which requires the privileged steamer to keep her
course, must, like all others, be read in connection with rule 21,
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.
Page 153 U. S. 152
This case then reduces itself to the question whether, at the
time the order was given upon the
Beaconsfield to stop and
reverse, the master had a right, in the exercise of a reasonable
judgment, to suppose that if he persisted in his speed, a collision
was probable -- in other words, had he reason to believe there was
danger of collision? The sequence of events after the
steamers came in sight of each other, as appears from the findings,
was as follows:
When about midway between Diamond reef and the New York piers,
she (the
Beaconsfield) saw the
Britannia as the
latter came clear of Castle William, and blew a single whistle to
her. Owing probably to a strong wind then blowing from the west
(about 22 miles an hour), this whistle of the
Beaconsfield
was not heard upon the
Britannia. The latter, however,
while getting clear of the bottom, and her engines at full speed,
blew a single whistle to the
Beaconsfield, which was heard
and taken to be an answer to her own signal. At this time, the
vessels were not quite half a mile apart. Although, after clearing
the bottom, the
Britannia ported and hard-a-ported her
helm, her bow, while in the ebb tide near Governor's Island, did
not swing to starboard, but, on the contrary, for a brief space
took a slight but perceptible swing to the westward, to port. It
was seen upon the
Beaconsfield not only that the
Britannia did not swing to starboard, but that she was
showing a little more of her starboard side to the
Beaconsfield, whereupon the
Beaconsfield, while
still about four lengths from the
Britannia, blew another
single whistle and, hearing no answer, put her wheel hard-a-port
and stopped and reversed at full speed until her headway was
stopped, when her engines were stopped, and she remained motionless
in the water.
Was she in fault for so doing? There were three circumstances
calculated to excite the apprehension of her master: (1) The
Britannia, instead of swinging to starboard, appeared to
be swinging to port. That this also alarmed those on the
Britannia is evident from the fourteenth finding, that
after she began to swing, her master saw that she needed to come
more to starboard; that the ships did not, for some reason,
Page 153 U. S. 153
get clear of each other, and, differing in opinion from the
pilot, he gave the order to reverse the engines. (2) She did not at
once answer the
Beaconsfield whistle, a circumstance
tending to show either that she did not hear it or disregarded it.
In view of the fact that the steamers were not more than ten or
twelve hundred feet apart, this silence was certainly alarming. (3)
At this time, too, the
Beaconsfield had approached so near
the New York shore that in view of her draft of water and the
condition of the bottom, there was some risk of her running aground
should she continue her headway much longer under her port helm. In
this condition of things, we are confronted by the twenty-fifth and
twenty-sixth findings, that at the time the
Beaconsfield
stopped and reversed, the vessels were approaching so as to involve
risk of collision; that a prudent navigator, viewing the situation
from the deck of the
Beaconsfield, would have reached the
conclusion that, if the course of the
Britannia were not
altered nor her headway checked, a collision was imminent and
inevitable unless avoided by some change on the part of the
Beaconsfield, and (finding 26) that the
Britannia's movements visible to the
Beaconsfield
were not in accordance with the single whistle she had blown and
were such as created a natural, reasonable, and strong apprehension
of collision in those in charge of the
Beaconsfield. Under
these circumstances, I agree with the opinion of the court below
that the
Beaconsfield was justified in taking the
statutory precautions to avoid risk of collision prescribed by the
twenty-first rule, as to stopping and reversing.
The case of
The Northfield and The Hunter, 4 Ben. 112,
decided by Judge Blatchford, whose experience as an admiralty judge
undoubtedly entitles his opinions to most respectful consideration,
is clearly distinguishable from this. In that case, the
Northfield was going at a speed or from nine to ten knots
an hour, while the
Hunter, the privileged vessel, with a
schooner in tow, was not going more than two knots an hour. The
master of the
Hunter, who was fearful that the schooner
would get adrift if any extra strain should come upon his lines,
stopped his vessel. But the court expressly finds that such
stopping did not occur
in articulo periculi, but took
Page 153 U. S. 154
place at a distance from the
Northfield which would
have enabled the latter easily to have avoided her.
The only excuse for holding the
Beaconsfield in fault
is that her pilot was bound to know the existence of the eddy which
gave the
Britannia's bow a swing to port before she
answered her wheel to swing to starboard. Considering, however, the
proximity of the two vessels at this time and the failure of the
Britannia to promptly respond to the
Beaconsfield's whistle, I do not think the pilot of the
latter was bound to know the precise moment when the
Britannia would begin to answer her helm, and swing her
bow to starboard. The vessels were in such proximity that seconds
became of the utmost importance, and the failure of the
Britannia to do exactly what she ought to have done meant
inevitable disaster.
The case of
The Rhondda, 8 App.Cas. 549, so far from
being an authority in favor of the position assumed by the Court in
this case, is, as I read it, directly the contrary.
The
Rhondda, having the
Alsace-Lorraine on her starboard
side, was rounding Faro point at the entrance of the Straits of
Messina, when she observed the Alsace-Lorraine at a distance of
half a mile and about a point on her starboard bow. The Rhondda at
once put her helm hard a-port, but failed to answer her wheel in
consequence of the strong current at the entrance of the straits --
the ancient Charybdis. She then blew her whistle, and
stopped
and reversed her engines at full speed, and was held to have
performed her full duty. The
Alsace-Lorraine did not ease or
stop her engines, but put her helm hard-a-port, and was struck
by the
Rhondda nearly amidships, and was held to have been
in fault. I think the case tends to show that the
Beaconsfield was right in her maneuver.
I would apply to this case the observations of this Court in the
case of
The Favorita,
18 Wall. 598,
85 U. S. 603,
in while a collision occurred under somewhat similar
circumstances:
"It is said if the
Manhasset had advanced instead of
stopping, she would have cleared the steamship. This may or may not
be true, but, if true, she is not in fault for this error of
judgment. It was a question whether to advance or stop and back,
and the emergency was so great that there was no time to
Page 153 U. S. 155
deliberate upon the choice of modes of escape. In such a moment
of sudden danger, caused by the misconduct of the
Favorita, the law will not hold the pilot of the
Manhasset, acting in good faith, guilty of a fault if it
should turn out after the event that he chose the wrong means to
avoid the collision, unless his seamanship was clearly unskillful.
And this we do not find to be the case. On the contrary, if there
were error at all, it was such a mistake of judgment as would
likely be committed by anyone in similar peril."
See 1 Ben. 30; 8 Blatchford 539.
I agree with the Court that the thirty-first finding is a
finding of law and not of fact, but I think it was such a legal
conclusion as was justified by the other findings.
For these reasons, I am of opinion that the decree of the
circuit court should be affirmed.
MR. JUSTICE JACKSON concurred in this opinion.