Mills v. The America

| U.S. Circuit Court for the District of Southern New York | Mar 18, 1889

Lacombe, J.,

(after stating the facts as above.) I have no doubt from the-testimony that the last signal blown by the America v'as an alarm of three short blasts, which was misunderstood by those on the Talisman as an affirmative response to their two-whistle signal. The evidence as to the situation of the tugs when they first sighted each other is conflicting, the witnesses for the Talisman insisting that the America showed her green light and those on the latter that she showed the red. There are no new proofs in this court, and the district judge’s conclusion, viz., that she showed the red, seems in accord with the weight of evidence. Háving the America on her starboard hand, the Talisman was bound to keep out of the way, and the decision of the district judge that she was in fault for not porting, and for undertaking to crdss the America’s bows to starboard instead of passing port to port, is sirstained.

The America, as her witnesses swear, while yet from 300 to 400 yards off,—both lights on the Talisman showing,—blew a single whistle. Getting no response, her navigator ordered the engines slowed, and blew again,—still seeing both of the Talisman’s colored lights. Directly after the last signal he observed the Talisman’s red light shut in, leaving her green light visible, and heard her signal of two whistles, the change of course and signal indicating for the first that, she was hauling towards .the-New York shore and across the America’s bows. Thereupon the captain of the America gave a danger-signal of three short blasts, and ordered’ his engine reversed. I am unable to agree with the district judge in the-conclusion that he delayed reversing longer than was justifiable. How far apart the vessels were at the time is not entirely clear; the estimates vary from 150 to “over 500, and less than 1,000, feet.” . That-the order to -reverse, however, -followed immediately upon, the Talisman’s manifesting her intent to cross the America’s bows, is testified to affirmatively by the latter’s, witnesses, is contradicted by no. one, .and-I find nothing in the other testimony indicating that their evidence in that respect is incredible. The America held on the course which would take her from the fourth situation, where she was, to the light of the other, as required by inspectors'' rule II. She slowed while awaiting an answer to her single whistle, and reversed when the change of lights and two-whistle signals of the Talisman indicated that the latter was about to disregard the rules, and navigate so as to involve risk of collision. The America therefore fulfilled her whole duty, unless she was also bound, as the district judge found, to starboard her wheel as soon as the Talisman indicated an intention to cross her bows. It has been repeatedly held that there is no such thing as right of way to ran into unnecessary collisions, and a careful examination of the situation after the event no doubt shows that, had the America changed her course by starboarding, the collision might have been avoided. In determining, however, whether or not it was faulty navigation not to make such change, the situation must he considered from the point of view of the individual, who is first called upon to decide the question. Rules prescribing courses are enacted for the purpose of avoiding collision, .and are framed on the theory that a scrupulous adherence to them will render such a mishap impossible. Before a navigator departs from a rule directing him to hold a particular course, the existing situation should afford reasonable assurance that such a change will prevent an accident otherwise imminent, and will not itself tend to produce the very mishap it was intended to avoid by cooperating with a belated effort on the part of the other vessel to return to her true course, or to reverse,—an effort induced perhaps by the very danger-signal he has given. Tried by this test, I do not think the facts in this case warrant a finding that the America was in fault for not shifting her helm to starboard at the moment the lights and whistles of the Talisman indicated an intent to cross her bows. The Talisman is therefore solely in fault. Decree accordingly, with costs.