1. A collision occurred in a very dense fog between a sailing
bark and a large steamer about two hundred miles from Sandy Hook,
and therefore in the track of inward and outward bound vessels. The
bark was under way moving slowly, and at about the rate of a mile
an hour, and was
ringing a bell as a fog signal. The
steamer was going at the rate of seven knots an hour.
Page 86 U. S. 126
Held that the damages were to be equally divided
between the two vessels, as, being both in fault, the steamer in
moving in such a place at so rapid a rate in so dense a fog, the
bark for her violation of the Act of Congress for preventing
collisions at sea (identical in this respect with the British
Merchants' Shipping Act), which requires, in its "Rules concerning
Fog Signals," that "sailing vessels under way shall use a
fog
horn," and "when not under way shall use a bell."
2. Although if it clearly appears that a fault committed by a
vessel has had nothing to do with a disaster which has occurred,
the liability for damages is against the vessel alone which has
produced the disaster, still where 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 certainly it
did not; that it could not have done so. In this case, therefore,
Congress having made the use of a fog horn obligatory on sailing
vessels under way in a fog, it was declared to be out of place to
go into an inquiry whether in fact a bell gave notice to the
steamer that the bark teas where she was as soon as a fog horn
would have done.
An act of Congress for preventing collisions at sea [
Footnote 1] -- the act being
essentially the same as one [
Footnote 2] enacted by the British Parliament -- lays down
these
"
Rules governing Fog Signals"
Whenever there is a fog, whether by day or night, the fog
signals described below shall be carried and used:
Steamships under way shall use a steam whistle.
Sailing ships under way shall use a fog horn.
Steamships and sailing ships when not under way shall use a
bell.
This statute being in force, the Mary Troop, a British bark, was
bound from Androssan, in Scotland, to New York, with a cargo of
iron, and at ten o'clock on a morning of June, 1869, found herself
still on the high seas, about two hundred miles from Sandy Hook. A
dense fog was prevailing at the time, so thick that a large vessel
could hardly be seen at the distance of fifty feet. The wind was
variable, and rather strong from south to southwest. The bark was
under
Page 86 U. S. 127
way, heading from southeast to south-southeast, and moving at
least a mile an hour, her helm lashed three-quarters to port, but
on her starboard tack, carrying two close-reefed topsails,
foresail, foretopmast and mizzenstay sails; no sail aback. She had
a bell, hung to the forestay by a reef-earing to the forestay, and
this bell was rung by a lanyard tied to the tongue of the bell,
from fifteen to twenty times a minute. She also had a good fog
horn. This horn had been used the day before, but was not used on
the morning of which we are speaking.
The whistle of a steamer was heard through the fog off the port
side. The second mate, who had just at that moment reached the
deck, called to the captain and mate, "Do you hear that fog horn?"
The mate replied, "It is a whistle," and he and the captain at once
ran aft. As they got on the quarter deck, the bows of a large
steamer appeared through the fog heading rapidly for the bark, and
but a short distance off. The steamer appeared to be then swinging
on a starboard helm, but almost instantly changed her course on a
port helm and struck the bark stem on, on the port side of the bark
by the fore-rigging. The blow cut the bark in two and she sank
instantly. The captain, the second mate, and four of the crew were
drowned. The only persons saved were the mate, the cook, and two
men who were in the watch below.
The steamer proved to be the British steam propeller
Pennsylvania, a vessel of 300 horsepower, 2,388 tons, and
341 feet long. Her speed at the time when she thus appeared to the
bark and coming down upon her, was seven knots an hour.
There was nothing in the evidence beyond the evidence of her
speed -- if that was proof of want of precaution -- to show any
want of efficiency, vigilance, or precaution in the navigation and
management of the steamer up to the first intimation of the bark's
proximity. She had two lookouts at their stations, "keeping their
eyes and ears open for anything that might come in the way." They
heard the bell of the bark and reported, "ship ahead, a little on
the starboard
Page 86 U. S. 128
bow." Order was given to the engineer, "Full speed astern," and
the order was executed as soon as practicable. The helm was ported;
then a call to "starboard" was heard from some quarter, and she
starboarded; then again ported, but in less than half a minute
after the report of "ship ahead" was made, and before the steamer
had run her own length, she went head on into the bark, with the
deplorable result already stated.
When the steamer had got in the port of New York, the owners of
the bark libeled her in the district court there.
There was comparatively little dispute about facts. It was
admitted that the steamer's rate was seven knots an hour. Her
master was examined, and said:
"The steamer was going seven knots. Her highest rate of speed
under the most favorable circumstances, is thirteen and a half
knots. The wind the day of the collision was south-southwest,
strong. The wind had been this way all the morning, and I think all
the night. There was a good heavy swell -- more than there should
have been for the wind there was."
"
Question. I with the wind and sea as it was, could you
have run your vessel safely at a less rate of speed?"
"
Answer. I
don't consider we could have
steered the vessel, going slower -- that is could not have steered
her straight."
Two other masters were examined and confirmed this view, but
they had never, either of them, sailed the
Pennsylvania,
and each of them had sailed other vessels at a less rate.
On the other hand, one Lovett, a shipmaster for sixteen years,
who had happened in 1865 -- she being then heavily laden -- to be a
passenger on the
Pennsylvania, testified that on the whole
day then, her speed, he thought, did not average over four knots an
hour, and that he noticed no difficulty in her steerageway.
So too, while the
technical violation of law in ringing
a bell instead of blowing a fog horn was not denied, evidence was
introduced by the owners of the bark to show that a good bell could
be heard further than a fog horn; evidence, however, which was
contradicted by witnesses in behalf of
Page 86 U. S. 129
the steamer, who swore that if the fog horn was a good one it
could be heard further off than could a bell.
The district court condemned the steamer for the whole loss. On
appeal by her to the circuit court, that court affirmed the decree,
yielding assent, however, with great hesitation, to the view of the
district court that notwithstanding the conceded violation on the
part of the bark of a plain rule of navigation, the consequences of
the disaster were to be visited
entirely upon the steamer.
From the decree of the circuit court thus affirming the decree of
the district court the present appeal was taken.
Before the case came here and on the steamer's return to
England, the owners of the cargo of the bark libeled her in the
British admiralty. The case was heard there on evidence much less
full than that upon which it was heard in New York, especially less
full on the part of the steamer. The admiralty, admitting the
violation of law by the bark in not sounding a fog horn, condemned,
nevertheless, the steamer for the whole loss, considering that it
was attributable to the improper rate of speed of the steamer in a
fog so thick as here existed, and this decree was affirmed by the
judicial committee of the Privy Council. [
Footnote 3]
Page 86 U. S. 133
MR. JUSTICE STRONG delivered the opinion of the Court.
It may be that when the bark was discovered by those on board
the steamer, it was too late to avoid a collision. The two vessels
were then not more than three or four hundred feet apart, and the
steamer had the bark almost across her bow. Yet it is possible that
if her helm had been put to starboard instead of to port when the
lookout announced, "Bell on the starboard bow," and had been kept
starboarded, the collision might either have been avoided or have
been much less disastrous. By porting her helm, she was turned
toward the point where the bell indicated the bark was, and this
apparently increased the danger of a collision.
But if this is not to be attributed to her as a fault, there is
no excuse to be found in the evidence for the high rate of speed at
which she was sailing during so dense a fog as prevailed when the
vessels came together. The concurrent testimony of witnesses is
that objects could not be seen at any considerable distance,
probably not farther than the length of the steamer, and yet she
was sailing at the rate of at least seven knots an hour, thus
precipitating herself into a position where avoidance of a
collision with the bark was difficult, if not impossible, and would
have been even if the bark had been stationary. And she ought to
have apprehended danger of meeting or overtaking vessels in her
path. She was only two hundred miles from Sandy Hook, in the track
of outward and inward bound vessels and where their presence might
reasonably have been expected. It was therefore her duty to
exercise the utmost caution. Our rules of navigation, as well as
the British rules, require every steamship, when in a fog, "to go
at a moderate speed." What is such speed may not be precisely
definable. It must depend upon the circumstances of each case. That
may be moderate and reasonable in some circumstances which would be
quite immoderate in others. But, the purpose of the requirement
Page 86 U. S. 134
being to guard against danger of collisions, very plainly the
speed should be reduced as the risk of meeting vessels is
increased. In the case of
The Europa, [
Footnote 4] it was said by the Privy Council:
"This may be safely laid down as a rule on all occasions, fog or
clear, light or dark, that no steamer has a right to navigate at
such a rate that it is impossible for her to prevent damage, taking
all precaution at the moment she sees danger to be possible, and if
she cannot do that without going less than five knots an hour, then
she is bound to go at less than five knots an hour."
And we do not think the evidence shows any necessity for such a
rate of speed as the steamer maintained. It is true her master,
while admitting she was going seven knots, states that he didn't
consider she could have been steered going slower -- could not have
been steered straight. And two other witnesses testify that in
their opinion she could not have been navigated with safety and
kept under command at a less rate of speed than seven miles an
hour. These, however, are but expressions of opinions based upon no
facts. They are of little worth. And even if it were true that such
a rate was necessary for safe steerage, it would not justify
driving the steamer through so dense a fog along a route so much
frequented, and when the probability of encountering other vessels
was so great. It would rather have been her duty to lay to. But
there is the evidence of one who had been a shipmaster, and who
once crossed the Atlantic as a passenger in this steamer. He states
that on the passage, she did not, to the best of his knowledge,
average over four knots during twenty-four hours, and that he
noticed no difficulty in her steerageway at that low rate of speed.
As he was in the habit of going to sea, he would probably have
noticed difficulty if there had been any. This is a fact of more
weight than any mere opinions unsupported by observation or trial.
We think, therefore, it must be concluded that the steamer was
going at an undue rate of speed, and that it was her fault that she
came into a position from
Page 86 U. S. 135
which she could not, or certainly did not, escape without
colliding with the bark.
It is next to be considered whether any fault of the bark
contributed to the collision. That she was in fault is beyond
controversy. She was in plain violation of the rules of navigation
which required her to blow a fog horn. Both our own and the British
shipping acts enact that sailing ships, when under way, shall use a
fog horn, and, when not under way shall use a bell. The British
Merchants' Shipping Acts expressly declare that owners and masters
of ships shall use no other fog signals than such as are required
by the regulations, and that if in any case of collision it appears
to the court before which the case is tried that such collision was
occasioned by the nonobservance of any regulation made by the act
or in pursuance thereof, the ship by which the regulation has been
infringed shall be deemed to be in fault unless it is shown to the
satisfaction of the court that the circumstances of the case made a
departure from the regulation necessary. Our own statute does not
contain this provision expressed, but its meaning is the same. The
bark in this case was a British ship, as was the steamer. She was
under way, moving slowly, indeed little if any more than a mile an
hour, with her helm lashed three-quarters to port, but on her
starboard tack, carrying two close-reefed top-sails, foresail,
foretopmast and mizzen staysails, and with no sails aback, so far
as it appears. She was constantly changing her position. It was her
duty, therefore, to blow a fog horn, and not to ring a bell. By
ringing a bell, as she did, she gave a false signal, and, so far as
she could, assured all approaching vessels that she was not under
way. There is some evidence that a bell can be heard as far as can
a fog horn, and some that it can be heard farther. On the other
hand, there is evidence that a fog horn can be heard farthest.
However this may be, the bark had no right to substitute any
equivalent for the signal required by the navigation rules. In the
case of
The Emperor, [
Footnote 5] it was said,
"It is not
Page 86 U. S. 136
advisable to allow these important regulations to be satisfied
by equivalents or by anything less than a close and literal
adherence to what they prescribe."
In addition to this, it may be remarked that a bell can never be
an equivalent for a fog horn. It gives different information. Both
may notify an approaching vessel that the signaling ship is in the
neighborhood, but the one gives notice that the ship is moving, and
the other that the ship is stationary.
Concluding then, as we must, that the bark was in fault, it
still remains to inquire whether the fault contributed to the
collision, whether in any degree it was the cause of the vessels'
coming into a dangerous position. It must be conceded that if it
clearly appears the fault could have had nothing to do with the
disaster, it may be dismissed from consideration. The liability for
damages is upon the ship or ships whose fault caused the injury.
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. Such a rule is necessary to enforce obedience to the mandate
of the statute. In the case of
The Fenham, [
Footnote 6] the Lords of the Privy Council
said,
"It is of the greatest possible importance, having regard to the
admiralty regulations and to the necessity of enforcing obedience
to them, to lay down this rule: that if it is proved that any
vessel has not shown lights, the burden lies on her to show that
her noncompliance with the regulations was not the cause of the
collision."
In some cases, it is possible to show this with entire
certainty. In others, it cannot be. The evidence in the present
case leaves it uncertain whether, if a fog horn had been blown on
the bark, it would not have been heard sooner than the bell was
heard, and thus earlier warning
Page 86 U. S. 137
have been given to the steamer -- seasonable warning to have
enabled her to keep out of the way. It was not without reason that
the statute required a fog horn for ships under way and a bell for
those not under way. The legislature must have known it was
important ships should have the earliest possible notice of the
proximity of other moving vessels. They might be approaching each
other. If so, they would come together sooner than they could if
one of them was not under way. It may be assumed, therefore, that
the legislature acted under the conviction that a fog horn could be
heard at a greater distance than a bell, and required the use of
one rather than that of the other for that reason. To go into the
inquiry whether the legislature was not in error -- whether in fact
a bell did not give notice to the steamer that the bark was where
she was as soon as a fog horn would have done -- is out of place.
It would be substituting our judgment for the judgment of the
lawmaking power. It would be admitting the validity of an
equivalent for that which the statute has made a positive
requirement. Then how can it be shown on the part of the bark that
the failure to use a fog horn certainly contributed in no degree to
the collision? How can it be proved that if a fog horn had been
blown those on board the steamer would not have heard it in season
to have enabled them to check their speed or change their course,
and thus avoid any collision? Though there were two lookouts on the
steamer, each in his proper place, the bark's bell was not heard
until the vessels were close upon each other. Who can say the
proximity of the vessels would not have been discovered sooner if
the bark had obeyed the navy regulations? If it be said this is
speculation, it may be admitted, but it is speculation rendered
necessary by a certain fault of the bark. It is equally speculative
to conclude that the collision would have taken place if a fog horn
had been used instead of a bell, and infer therefrom that the fault
of the bark had no relation to the disaster. The truth is the case
is one in which, while the presumption is that the failure to blow
a fog horn was a contributory cause of the collision,
Page 86 U. S. 138
and while the burden of showing that it was in no degree
occasioned by that failure rests upon the bark, it is impossible to
rebut the presumption. It is a well known fact that in some states
of the atmosphere a fog horn can be heard at much greater distances
than in others. How far it could have been heard when this
collision occurred can never be known. Nor can it be known what
precautions the steamer would have adopted if the true and proper
signal had been given her. Hence, it appears to us the bark has not
proved that her failure to obey the shipping regulations was not a
concurrent cause of the injury she received; and consequently, as
both vessels were in fault, the damages, according to the admiralty
rule, should be divided.
We have not overlooked the fact that in a libel by the owners of
the cargo of the bark against the steamer for damages resulting
from the same collision, it was held by the judicial committee of
the Privy Council in England, that the disaster was chargeable to
the steamer alone. But with great respect for the tribunal that
thus decided, we do not feel at liberty to surrender our judgment,
especially in view of the fact that the case is now more fully
presented and the evidence is more complete than it was in the
British court.
Decree reversed and the cause remanded with instructions to
enter a decree in accordance with this opinion.
[
Footnote 1]
Act of April 29, 1864, 13 Stat. at Large 61, Article 10.
[
Footnote 2]
The Merchants' Shipping Act of 1862.
[
Footnote 3]
The Pennsylvania, 23 Law Times 55.
[
Footnote 4]
Jenkins's Rule of the Road at Sea 52.
[
Footnote 5]
Holt's Rule of the Road 38.
[
Footnote 6]
23 Law Times 329.
