62 F. 71 | 6th Cir. | 1894
after stating the case as above, delivered the opinion of the cour t.
Section 4233 of the Tievised Statutes provides that “the following rules for preventing collisions on the water shall be followed in the navigation of vessels of the navy and of the mercantile marine of the United Staf.es.” Kule 21 following, is: “Every steam vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or if necessary, stop and reverse; and every steam vessel shall when in a fog, go at a moderate speed.”
By act of March 3, 1885 (23 Sta.t. 438), congress provided “that the following revised international rules and regulations for preventing collisions at sea shall be followed in the navigation of all public and private vessels of the. United States upon the high seas and in all coast waters of the United States except such as are otherwise provided for, namely.” Then follow 27 rules for navigation. Section 2 provides “that all laws and parts of laws inconsistent with the foregoing revised international rules and regulations for the navigation of all public and private vessels of the United States upon the high seas, and in all coast waters of the United States, are hereby repealed, except as to the navigation of such vessels within the harbors, lakes and inland waters of the United States.”
By act of August 19, 1890 (20 Stat. 320), congress enacted that “the following regulations for preventing collisions at sea. shall be followed by all public and private vessels.of the United States upon the high seas and in all waters connected therewith by sea going vessels;” and then follow 31 articles for the navigation of vessels. Section 2 of that act provides that all laws or parts of laws inconsistent with the foregoing regala!ions for preventing collisions at sea, for the navigation of all public and private vessels of the United States upon the high seas, and in all waters connected therewith, navigable by seagoing vessels, are hereby repealed. Section 3 of 1he act provides that this act shall take effect at a time to be fixed by the president, by proclamation for that purpose. The president has never issued his proclamation, and the act of 1890 is not yet in force. The Britannia v. Cleugh, 14 Sup. Ct 795, decided by supreme court of United States, April 23, 1894. Moreover, the collision in rhis case occurred in June, 1889, so that the act could not apply, mum if it were in force. The act of 1885 only repeak'd the previous navigation rules so far as they affected the navigation by United States vessels of tbe high seas and coast waters, but it expressly excepted from its application tbe navigation of such vessels within the harbors, lakes, and inland waters of the United States. Now, it is true that the supreme court of the United States has construed the term “high seas,” as it is used in Kev. St. § 5340, denouncing certain offenses “upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any state,” to include the open, uninclosed waters of the Great Lakes; but we do not think it can be given
The first paragraph of rule 21 of section 4233, given above, is identical with article 18 of the British navigation rules, and the second paragraph is found in another-article. Many English cases involving the proper construction of the language of rule 21 are found in the Law Reports, and are here directly applicable.
The leading case on the subject in England is The Ceto, 14 App., Cas. 670. In that case the Lebanon and the Ceto — two steamships • — were approaching each other, in the open sea, in a dense fog. The Lebanon had reduced her speed to “easy,” while the Ceto, which had already been crippled by another vessel in the same fog, was going “dead slow.” The master of the Ceto first heard the whistle of the Lebanon about a mile away, and from what seemed to be four points upon his port below. He ported her helm, and edged off to starboard about two points. The Lebanon’s whistle, notwithstanding the Ceto’s change of helm, continued to draw nearer, and appeared to bear, as at first, four points from the Ceto. A collision resulted, and the discussion of the house of lords was as to the proper construction of article 18. Lord Watson states the effect of the article as follows:
“When the approaching vessels are enveloped in fog, and cannot see each other, the rule must, in my opinion, apply with greater stringency. Their respective officers are in that case guided solely by their sense of hearing, which may enable each of thorn to speculate with more or less accuracy as to the position of the other vessel at the time when its fog whistle is heard. But the direction from which the whistle comes can afford no- indication of the course of the approaching vessel, unless the sound is repeated and its bearing is, on each repetition, carefully observed. Even then the bearing of the vessel, and its course, are more or less matters of speculation, and cannot be ascertained with the same certainty as if her hull or lights were in view. When two steamships, invisible to each other by reason of a thick fog, find themselves gradually drawing nearer, until they are within a few ship’s lengths, they are, in my opinion, within the second direction of rule 18; and each of them ought at once to stop and reverse, unless the fog signals of the other vessel have distinctly and unequivocally indicated that she is steered on a relatively safe course, and will pass clear, without involving risk of collision. In the absence of such indications, it humbly appears to me that to negative the necessity for stopping and reversing when the vessels are near to each other, though still unseen, would be 'to thwart the very purpose for which the rule was enacted.”
Lord Watson quotes with approval this language of the master -of the rolls in The John McIntyre, 9 Prob. Div. 135, as follows;
“It may be laid down as a general rule of eomtuct that it is necessary to ¡stop and reverse, not, indeed, every time that a steamer hears a whistle or fog horn in a dense fog, but when, in such a fog, it is heard on either bow, ¡and approaching, and is in the vicinity, because there must then be a risk of collision.”
And then continues:
“When the approaching vessel is nearly ahead, the duty to stop and reverse is obvious; but it appears to me to be equally imperative when the*77 other vessel is drawing near, upon either bow. It matters not whether the bearing of the approaching ship he one point or four. Either position is fraught with danger of collision, if it continues to advance without chango of bearing.”
Lord Herschel put the rule in this way:
“I think that, when a steamship is approaching another vessel in a dense fog, she (night to stop, unless there be such indications as to convey to a seaman of reasonable skill that, the two vessels are so approaching that they will pass well clear of one another.”
The same principle is laid down in the cases of The Kirby Hall, 8 Prob. Div. 78; The John McIntyre, 9 Prob. Div. 135; The Dordogne, 10 Prob. Div. 6; The Ebor, 11 Prob. Div. 25; The Lancashire [1894] App. Cas. 1.
Haid Mr. Justice Brown in the case of The City of New York, 147 U. S. 72-84, 13 Sup. Ct. 231:
"There is no such certainty of the exact position of a horn blown in a fog as will justify a steamer in speculating upon the probability of avoiding it by a change of the helm, without taking the additional precaution of stopping until its location is definitely ascertained.” Citing The Ceto, 14 App. Cas. 670.
See, also, The Martello v. The Willey, 14 Sup. Ct. 723, decided by the supreme court of the United States April 16, 1894, where the same learned justice referred with approval to the English cases above cited.
In this connection, it is useful to refer to rule 16 of the act of 1890 (26 Stat. 320) which, though not governing the conduct of the masters of the vessels in this case, as a positive law, is significant, as showing the views of congress, and the experienced navigators who prepart'd it, in respect to the duty of vessels in a fog. The part of the rule here material is as follows:
"A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so l’ai" as the circumstances of the ease admit, stop her engines and then navigate with caution until danger of collision is over.”
It, after all, comes to this, — and such, is the proper construction of rule 21: That where a steam vessel is approaching another vessel in a fog, so that the bearing of the whistle of the one is a few points off either bow, it is the duty of the master of the approaching vessel to stop his vessel, and, if necessary reverse, until the exact position and course of the other vessel can he ascertained, unless such circumstances present themselves to him at the time as would lead a reasonably prudent and skillful navigator to the confident belief that no risk of collision exists.
Having thus, as definitely as may be, formulated the standard of due care by which the conduct of a steam vessel colliding with another in a fog, is to he measured and its legal responsibility for the resulting damage fixed, we come now to apply it to the facts of this case.
Lord Watson, in giving judgment in the house of lords in The Ceto, 14 App. Cas. 670, 687, reports Lord Esher, the master of the rolls, to have said in the court ol* appeals, in the same case, that “You can never try an admiralty case, so as to get at the truth, unless you look with great scepticism at (he evidence on both sides.”
Counsel for libelants attempted at the trial to show that the Badger. State could not have been at the point of collision, because of the time at which she reached Whitefish Point. Her officers say that she passed there at about 2 o’clock next morning, after stopping for an hour, and running the rest of the time at half speed, or 5J miles a.n hour. The argument was that, in the eight hours and a half between half past 5 — the time of the collision — and 2 o’clock the next morning, she could only have gone between 40 and 4.5 miles, while the collision is said to have taken place about 60 or 65 miles from Whitefish Point. We do not regard this evidence as of any great weight, it depends on the memory of the mate and captain of the Badger State as to the speed of their vessel during a certain eight hours of a long trip, with respect, to which they might much more easily be mistaken than they could as to the circumstances that they were followed within a few miles by the North Star that afternoon, that the Sheffield passed them, that double signals were exchanged, and that then a cross signal followed, all of which must have been deeply impressed in their minds, both by the unusual character of the occurrence, and by the fact of the collision of which they learned the next day. The log of the Badger State, produced in the circuit court, shows that the memory of her officers, as to her speed, was defective. More than this, the location of the collision itself depends on measurement of distance by the estimated speed of the Sheffield, and her time from Whitefish Point, which is by no means exact. On the whole, we think the proximity
For the same reason, we cannot believe that the Sheffield ported her helm, and then blew signals to indicate that she was keeping her course. The only reasonable explanation is that suggested by the district judge, — a confusion of signals. The Sheffield mistook a double blast from the Star for a single blast, or perhaps two of them, and, without stopping to ascertain the Star’s exact position and course, recklessly took it for granted that she was going to port, and herself ported, and thus ran across the bows of the Star. Of cotirse, this was reckless navigation, and gross negligence, for which, she must be condemned, (in her own story, the district judge thought the Sheffield guilty of three or four faults. As we find the fact to be, we think her recklessness and negligence even greater. She has not appealed from the decree against her; but it is claimed in her behalf that the appeal of the North Star gives this court the right to modify the decree below so as to enter a full decree against the Star for all the damages. This is denied by counsel for' the North Star, who contend that the decree, in so far as it fixes the faults of the Sheffield, not being appealed from, is res judicata, and cannot be disturbed. The question of practice thus presented, we do not feel called upon to decide, because, if the question is open to ns, we have no hesitation in convicting the Sheffield of gross fault.
The much more doubtful question is as to the conduct of the North Star. As we have already said, we think that there was an exchange of double-blast signals between the two vessels when they were a mile or less apart, but that the Sheffield mistook some of the answers by the Star for single blasts, and ported. It is probable, also, that those navigating the Star did not at once perceive the change of signal hv the Sheffield. The question is, had the master of the Star reason to' doubt whether the Sheffield was keeping a course to the starboard of him? If so, then there was risk of collision, requiring him to stop and reverse. The, bearing of the Sheffield’s whistle when the master of the Star says he first heard it was three-fourths to one point over the starboard bow. He places the Sheffield only half a mile away at that time. If so, their courses; assuming them to have been nearly parallel, were only 500 feet apart. He then starboarded bis helm half a point, and a minute later heard the approaching whistle a point and a half over the starboard bow. This was not a widening off bis bow, which could indicate to him that the Sheffield was on a course which would certainly go by him, because be had starboarded' half a point, and that change in his own course was nearly enough to account for the change in the bearing of the Sheffield. A minute later, he says, he heard another whistle, still only a point and a half off the starboard bow. If his judgment of the hearing was correct, this was conclusive evidence that the Sheffield was on a course drawing
It is true that the agreement to pass starboard to starboard, if it had certainly been established, would have been good ground for the master of the Star to suppose that the Sheffield would keep off to starboard, but could he be certain that the agreement had been safely established? With a vessel only five minutes away from him, in a dense fog, and but a point off from dead ahead, it was his duty to note with care 'the bearing of each whistle. Says Marsden on Collisions (2d (Ed. p. 350):
“In practice, one of tlie most usual indications of risk of collision is that the approaching ship remains upon the same hearing from the observing ship for an appreciable length of time.”
In article 16 of the act of 1890, to prevent collisions at sea (26 Stat. 320), appears the following:
“Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change, such risk shall be deemed to exist.”
The act in which this language appears is not, as we have found, applicable to the collision in this case, but it is evidently only declaratory of a well-understood rule of prudent navigation, and is useful here as such. The master of the North Star could not be certain that he had correctly placed the whistle, nor could he, as is evident from what happened, be sure that he had correctly interpreted the signals of the approaching vessel. The vessel was getting nearer and nearer. The bearing was suspicious, to say the least. There was a risk of collision when, he heard what he took to be the third double blast of the Sheffield. • He ought then to have stopped his engines. If he had done so, there would have been no collision. We think that reasonable care on his part required this course. To go on was to risk collision, and that was a violation of the twenty-first rule. Even if he was not required to stop, under such circumstances, he should at least have reduced his speed to the lowest point consistent with retention of control of the vessel. The North Star would Steer at a speed of four miles, and perhaps less. It is conceded by the witnesses that at this time she was running at least five miles an hour, and probably a half mile or a mile more. A reduction of speed at the time of the third whistle heard from the Sheffield, by a mile and a half or two miles an hour, would have enabled the Star to stop her headway before the Sheffield was
The master of the North Star says in his protest that the first whistle he heard from the Sheffield was a fog whistle, and that the double blasts came afterwards. This accords with the probabilities, because, until the Sheffield began to blow double blasts, she had been blowing single blasts. She was doing this as she passed the Badger State, and until she had passed a mile astern of that vessel. It would be singular if some of these blasts had not been heard by those upon the North Star. A light breeze was blowing- from W. N. W., but certainly not enough to prevent the North Star’s men from hearing whistles several miles to leeward. Otherwise, how could the Star have heard the chime whistle' of the Badger State, three points off her- starboard bow, nearly down to the time of collision? We do not think the evidence of the North Star witnesses to the contrary'overcomes the evidential weight of the statement-. in the protest, or of the inferences to be drawn from the testimony of those on the Badger State, (hat the double blasts from the Sheffield were not the first whistles heard by those on the North Star, but that single blasts must have been heard before. The moment such a single blast was heard, the master of the North Star should have reduced her speed to the lowest point, and even the subsequent double blasts, with tlieir suspicious bearing, would not have justified any increase of it.
It has been pressed on ns with great force that we should not apply the same rule in this case as was applied in the English eases cited, because of ihe very marked difference in the circumstances. It is said — with what accuracy it is not necessary to discuss — that in all those cases (he collisions occurred where the usual courses of vessels crossed, while here the master of the North Star knew that the vessel approaching was necessarily on a course parallel, or nearly parallel, with his own, and that she would naturally pass to his starboard if she kept on her course, and did not port. When, therefore, he established an agreement to pass starboard to starboard, it is said he had the right to feel entirely secure. Fonsidering the uncertainty of sound in a fog, we cannot concede that the master of the Piar had sufficient ground for a feeling of entire security when the first whistle he says he heard showed the vessel only half a mile away from him, and hut 500 feet off his course, and the hearing of the subsequent whistles showed, not parallel, but converging, courses.
But suppose that we have been too stringent in respect to the conduct of the master of the North Star when he thought he was in agreement with the Sheffield. How was it when he heard the first cross signal from the Sheffield? In the answer for the North Star, the averment is that at the first cross signal the speed was only chocked, that the engines were not stopped until the second cross signal, and that they were not reversed until the vessel hove in sight, a little later. On the stand the witnesses for the North Star, except one, said that the signals to check, to stop, to hack, and
Much evidence is contained in the record in reference to the speed of the North Star. Her full speed was 12 miles an hour. The district judge found that just before the collision her speed was nearly 10 miles an hour. She could steer at 4 miles an hour or less. Rule 21 requires her speed to be moderate in a fog. It is conceded that in going at 10 miles, or even at 8 miles, an hour, she could not have stopped in the distance in which, in that fog, she could have seen an approaching vessel. Eight or 10 miles an hour, when a vessel was approaching her from a direction only a point off her bow, would therefore be excessive speed. The Bolivia, 1 U. S. App. 26, 30, 1 C. C. A. 221, 49 Fed. 169; The Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122. What was the fact concerning her speed? The .evidence of the Star’s own witnesses on this subject is by no means
We have been pressed with the argument in this case that in view
The district judge allowed interest on the total value of the Sheffield. He stated his reasons as follows:
“With reference to the allowance of the item of $12,000 interest upon the total value of the Sheffield (which the commissioner puts at $160,000), I have felt more doubt. The Sheffield was guilty of so many faults in connection with this catastrophe that I have been strongly disposed to reject this item of interest, as its allowance is a matter of discretion; but, upon reflection, I am satisfied that with regard to the main fault, viz. the failure to stop and reverse, — a fault but for which the cpllision would not have occurred, — the steamers were equally to blame. In addition to this, there was a frankness upon the part of ffie Sheffield officers and crew, in admitting their faults, which, while it does not disarm criticism with respect to their conduct, inclines one to take as favorable a view of their case as the facts will warrant. Upon the other hand, there was such a marked discrepancy between the testimony of the men upon the Star, and the statements made by them in their protest, and even in their answer, and such obvious improbabilities upon the face of their testimony, that there is raised in my mind something more than a suspicion that their intention was to make the testimony, so far as possible, fit the exigencies of their case, as they had been developed by the libelant’s evidence, — a practice very common in collision cases, and one which the English rule with regard to the filing of preliminary acts was intended to provide against. Upon the whole, I have concluded not to disturb the report of the commissioner upon this point.”
We are constrained to differ with, the foregoing, both in respect of the comparative delinquency of the two vessels, and of the credibility and candor of the two crews. It seems to us that the fault of the Sheffield, in porting so near the point of meeting, and crossing the bows of the North Star, involved gross recklessness, while the faults of the North Star were more excusable. Moreover, we are convinced that the story of those from the deck of the Star is much nearer the truth than that of the Sheffield’s witnesses. With respect to circumstances, their account of which was manifestly impossible, the officers and crew of the Sheffield preserved a, uniformity of statement only to be explained by previous agree-
We shall therefore modify the decree of the circuit and district courts, and divide the damage's, exclusive of any interest on the reported value of the Sheffield, and award half the costs of the court below and of this appeal to each party. Let a decree he entered accordingly.