271 F. 83 | 2d Cir. | 1921
(after stating the facts as above). In our judgment the apostles present no material disputed question of fact. There is controversy as to the hour and place of collision, but it is uncontradicted that the accident happened in a very dense fog, that
Consequently it makes no difference whether collision occurred at 7:30 a. m., or a half hour or more earlier, or whether the New London,was (as she plainly was) considerably off her course when she ■struck the Egerton. For neither the time of contact nor the place of collision affected the rules of navigation applicable to- both tug and ■steamer. Both alike were bound to observe the-duty of maintaining a vigilant lookout, and to obey article 16 of the Inland Rules (Comp. St. § 7889).
The New London, by her own account, heard the fog whistles of the Egerton forward of her own beam after she had been ip fog for well over a half an hour. It may be admitted that on hearing the Egerton’s whistles she at once stopped her engines, but it is plain that she •came in view of the tug and then into collision at such speed as rendered her unable to stop within the distance other vessels could be seen. Thus she violated one of the oldest rules of steam navigation, often announced and lately restated by us in The Manchioneal, 243 Fed. 805, 156 C. C. A. 313. We therefore agree with the lower court in its finding as to the New London.
The Egerton, by her own testimony, had stopped her engines not long before collision so as to insure safety from another steamer (said to be the Sagamore). That vessel passed close aboard, and thereupon the tug proceeded under “one slow bell,” although at least her pilot then heard, or almost immediately heard, the fog signals of the New London. When the steamer appeared through the fog collision was probably inevitable, and then the Egerton “gave a jingle to see if [her captain] could throw her astqrn.” Collision occurred almost immediately.
Under the circumstances it was a violation of rule 16 not to stop the Egerton’s engines on hearing the New London’s fog whistles forward ' of her beam. The rule contains “an imperative requirement.” The Suffolk, 258 Fed., 219, 169 C. C. A. 287. It has been urged that this •error did not contribute to the collision, and that when the fault of the New London is glaring the court should not be astute to discover minor error on the part of the tug. Both arguments rest upon well-settled rules of decision; hut it is always equally true that where a violation of rule is proven the burden is upon the violator to show that disobedience did not contribute. The No. 25 (C. C. A.) 266 Fed. 331. It is to say the least doubtful whether that burden has been borne by the Egerton in respect of the fault just discussed.
But in two other respects the tug is in our judgment plainly at fault. There is no reason to doubt that the New London approached blowing proper fog signals, and they were not timely heard by the Egerton. Considering that her own signals were heard, that she had heard the whistles of the vessel referred to as the Sagamore, no excuse can be received for this failure in vigilance. Again, the Egerton was without any proper lookout. It is said that there was a'deckhand forward; but lie was undoubtedly aft of one of the engineers who was idling in the
It is not only impossible to say that the absence of a vigilant lookout did not contribute to this collision, but it is in our judgment plain that it did so contribute. It makes no difference that the Egerton, at and for some time before' collision, was moving very slowly; a lookout must be maintained even when a vessel is stopped, as we held in The Plainfield, 205 Fed. 730, 124 C. C. A. 24, a case which in its material aspects is not unlike the present.
The decree below is modified, so as to hold both vessels at fault, and appellants are granted the costs of this court.