Hawgood Transit Co. v. Mesaba S. S. Co., 166 F. 697

Hawgood Transit Co. v. Mesaba S. S. Co.

166 F. 697 | 6th Cir. | 1909

KNAPPEN, District Judge

(after stating the facts as above). We are satisfied that the trial judge correctly concluded that both vessels were at fault for the collision.

As to the Etruria: By the undisputed proofs, she violated at least two of the rules prescribed for the express purpose of preventing collisions. By rule 14 (Act Feb. 8, 1895, c. 64, §' 1, 28 Stat. 645 [U. S. Comp. St. 1901, p. 2889]), she was required to sound as a fog signal, at intervals of not more than one minute, three distinct blasts of her whistle. It is undisputed that from the time she began to give passing signals she entirely ceased to give fog signals. The only excuse urged on her behalf for this neglect of the statutory requirement is that she had the right to and did substitute passing signals for fog signals. There is no warrant for this construction of the rules. Rule 14 relates only to “thick weather,” and is independent of rule 23, which requires passing signals “in all weathers.” The construction contended for offends against both the letter and the spirit of rule 14. The language of the rule is imperative, and admits of no substituted performance. Indeed, instead of there being less use for fog signals during, the period occupied in establishing or seeking to establish a passing agreement, or in making the attempted change of course, the necessity for such fog signals is thereby increased. It is enough to say that rule 14 is imperative in its requirement.

The Etruria also clearly violated rule 26. The Stone made no answer to either one of the Etruria’s four distinct passing signals, covering, as alleged, a period of six minutes or more. The Etruria, therefore, being unable to see the Stone, and knowing her. intentions and whereabouts only by her whistles, had no right to assume merely from the Stone’s silence that the latter assented to the Etruria’s passing signal, and that she would act accordingly. That the Etruria was in doubt as to the Stone’s course or intention is shown by the fact that she continued to blow her passing signals, apparently continuing to invite the assent of the Stone. Being in doubt as to the Stone’s movements, it was the Etruria’s duty to sound an alarm by giving *701several short, rapid blasts of her whistle; and under the circumstances shown by this record, including the density of the fog, the number of vessels on opposite and differing courses, and the confusion and interruption of signals, cautious navigation under rule 15, in connection with the other rules, required the Etruria, in case the location and intention of the Stone could not otherwise be determined, to stop, and, if necessary, to reverse, until the exact course and position of the Stone could be ascertained. The New York, 175 U. S. 187, 201, 20 Sup. Ct. 67, 14 L. Ed. 126; The North Star, 62 Fed. 71, 10 C. C. A. 262; The George W. Roby, 111 Fed. 601, 49 C. C. A. 481. In Re The North Star, supra, the inconclusive and speculative nature of the appearance of broadening off of signals created only by sound is commented upon. The Etruria had no right to go drifting (as claimed), in this dense fog, at an angle of two points across the course of the other steamer with no further warning of her' approach than a repetition, at two minute intervals, of a signal asserting that she was directing her course to port.

As to the Stone: Her fault, while not perhaps so great as that of the Etruria, is equally plain. She heard the Etruria’s passing signal. Her only excuse for not replying is that she did not suppose it was meant for her, but believed it was intended for the Aurania. In so assuming, she was obliged to take it for granted that the Etruria, in view of her position in the lake, was bound for Rake Superior, and so could not be intending to pass on the Stone’s starboard. There was no warrant for such conclusive assumption. The Stone’s navigator had no right to thus conclusively assume that a passing signal given by a vessel but two points off her bow, and distant about a mile, was not intended for her. The City of Chester, 78 Fed. 186, 188, 24 C. C. A. 51; The Great Republic, 23 Wall. 31, 23 L. Ed. 55. The construction of the situation most favorable to the Stone is that a doubt was or should have been raised in the mind of her navigator as to the course and intention of the Etruria as affecting the Stone. Indeed, he appears to have actually had such doubt, for the Etruria’s fog signals had caused him to check down his vessel. In so conclusively assuming that the Etruria’s proposed change of course could not affect her, the Stone acted at her peril. It was thus the Stone’s duty, upon hearing these passing signals, to either show her assent thereto, as provided by rule 23, or, if she deemed it unsafe to so assent, or if she had any doubt as to the course or intention of the Etruria as affecting the Stone — that is to say, any doubt whether the passing signal was meant for her — she was under obligation to give the alarm signal required by rule 26, and thereafter to act as the emergency might arise. Her duty at this juncture to answer the Etruria’s passing signal was as strong as that of the Etruria to give the signal before attempting to pass. The New York, 175 U. S. 187, 204, 205, 20 Sup. Ct. 67, 44 L. Ed. 126.

The conclusion we have reached, under the undisputed proofs, that each vessel was at fault for the collision, makes it unnecessary to determine the speed of either boat immediately preceding the collision, or to consider the other faults attributed by each vessel to the other. *702But it is urged on the part of each vessel that the violations of the rules of navigation so appearing on her part could not have contributed to the collision. The fact that a ship was at the time of collision in actual violation of a statutory rule designed to prevent collisions throws the burden upon her to show that such violation could not have contributed to the collision. The Pennsylvania, 19 Wall. 125, 126, 22 L. Ed. 148; The Martello, 153 U. S. 64, 74, 14 Sup. Ct. 723, 38 L. Ed. 637; The Ellis, 152 Fed. 981, 82 C. C. A. 112. Not only can it not be said in the case of either of these vessels that but for her violation of the rules the collision would have occurred solely bn account of the fault of the other vessel, but it would seem reasonably probable that, had either vessel observed the duties which we find to have been violated, the collision would not have occurred.

The decree of the District Court will be affirmed. The costs of this court will be equally divided.