The Umbria
after stating the case, delivered the opinion of the court.
1. That the Umbria was gravely in fault in the matter of speed is too clear for serious argument. She was within twelve miles of one of the most frequented harbors in the world, in the track of vessels bound into and out of this harbor, and was running at a speed of from sixteen to nineteen knots an hour through an intermittent or variable fog, which was sometimes so dense that vessels could not see each other more than one or two lengths off. She had heard at least two whistles from the Iberia, and without waiting definitely to locate her, had ordered her engines full speed ahead within a minute from the time she hove in sight. Her excuse is that the first whistle of the Iberia, which does not seem to have been heard by the master, but was heard by some of the other officers, appeared to be upon the starboard bow, apparently a long distance off; that the second whistle also seemed a long distance off and well to the southward; and the master, supposing they were from a steamer approaching upon a course parallel to his own, concluded that he ivas clear of her or had shaken her off; that the approaching steamer would probably port her helm to avoid the Normandie, which was coming up on the Umbria’s starboard quarter, and therefore ordered his engines full speed ahead to avoid the danger consequent upon such a movement on the part of the Iberia. This assumption was clearly an insufficient excuse for the order. It is difficult to locate the exact position of a vessel in a fog, and still more difficult to determine her course and distance; and while a whistle continues tobe heard so nearly ahead, it is manifestly unsafe to assume that she is upon a course that will take her clear. The assumption might be justified if the signals were often repeated and kept constantly growing fainter or broader off the bow; but in this case the Umbria
2. But notwithstanding the negligence of the Umbria, the Iberia was chargeable with the duty of taking proper precautions, and, in judging of the propriety of her manoeuvres,
It appears that s.he was bound toward New York harbor upon a course crossing to the northward, but still not far from parallel to that of the Umbria, and was proceeding at a speed of from three and a half to four knots an hour. Her officers say that they heard the Umbria’s first whistle about two points on her port bow; that her helm was immediately ported and her head put two points more to starboard, bringing her upon a northwest course, which she held until she came in sight of the Umbria. This brought her upon a course more than two points divergent from that of the Umbria. While proceeding under this course, several more whistles were heard from the Umbria, bearing in about the same direction (allowing two points for the porting), and rapidly increasing in volume. There could be but one interpretation put upon these signals. A steamer was drawing rapidly nearer upon a course crossing that of the Iberia. That she was nearing her was evident from the increasing loudness of each succeeding whistle; that she was not upon a parallel course was evident from the fact .that the Iberia was herself upon a course which, if continued, would have carried her ashore upon Rockaway Beach. The probabilities all were that the other steamer was bound out from New York harbor.
Under such circumstances, and in view of the fact that the exact position and course of the Umbria could not' be determined, we think it would have been more prudent on the part of the Iberia not to have changed hér course until the position and course of the approaching steamer had been definitely ascertained, although we should be reluctant to hold that such change of course was a fault on her part, which should condemn her in a moiety of the damages. There are undoubtedly authorities and some expressions of this court to the effect that a change of the helm, in ignorance of the exact position and course of an approaching vessel, is a fault, although we have never held that it would be a fault in every case presenting these conditions.
The Sea
Gull,
TVe think, however, that a more reasonable position in this connection was taken by the House of Lords in the case of
The Yindomora,
(1891) App. Cas. 1, in which it was held that there was no rigid rule that where two steamships were approaching each other in a-fog so as to involve risk of collision, neither ship ought to alter her helm until the signals of the other gave clear indication of her direction; and that each case must depend upon its own circumstances, which might afford reasonable ground for believing what the direction must be. In that case it was argued that one of the steamers concerned must be held in fault for having starboarded before her officers knew the direction in which the approaching steamer was coming. In considering this, Lord Herschell remarked : “ I do not think the cases which the learned counsel cited support the proposition that there is any such absolute hard and fast rule as that a vessel having only the indication of a single whistle from the other vessel is never justified in manoeuvring, and must always be held to. blame if she does manoeuvre. I should be very sorry to say anything to indicate any dissent from the view that where two vessels are approaching one another in a fog, without any sufficient indication to justify action, neither vessel would be justified in altering her course. I think the proper steps to be taken in such a case would be for each vessel to keep the course on which she was proceeding. But although I entirely agree that that is a good general rule to lay down, yet that rule must be interpreted in each case according to the circumstances of that case. It is impossible to lay down an abstract rule of that description which shall be applicable to all cir
Upon these considerations, while we think it would have been more prudent in the Iberia not to have changed her course, yet in view of the fact that the whistle of the Umbria appeared to come from off her port bow, we should be unwilling to say that it was necessarily a fault on her part to port her helm two points, the effect of which wóuld be to give the Umbria more room. It is possible that, under the peculiar circumstances, the Iberia had a right to assume that the Umbria was outward bound from New York, and pursuing a course substantially parallel to her own.
The question whether the Iberia performed her whole duty in continuing upon her course, even at a low rate of speed, instead of stopping when the whistles of the Umbria were repeated and apparently drawing nearer, remains to be considered. The only two articles of the Revised International Regulations of 1885 (23 Stat. 438) which have any pertinence to the case are the following:
“Art. 13. Every ship, whether a sailing ship or a steamship, shall in a fog, mist or falling snow go at a moderate speed.”
“ Art. 18. Every steamship, when approaching another ship so as to involve risk of collision shall slacken her speed, or stop and reverse, if necessary.”
The former of these articles deals with the general spéed of ships in a fog; the latter, with the special precautions to be observed after the proximity of another vessel has been ascertained by her signals. As the general speed of the Iberia did not exceed four knots an hour — the lowest, speed necessary to the maintenance of steerage way — it is clear that she was guilt}’- of no violation of the thirteenth article.
Her conduct, after the whistles of the Umbria began to be heard by the Iberia’s officers, is deserving of more serious
A review of the leading cases upon the subject will exhibit the circumstances under which it has been held that steamships, navigating in a fog or other atmospheric obscuration, are bound to stop upon hearing signals from vessels, the exact position and course of which it is impossible to ascertain.
In the case of
The Hypodame,
The next is that of
The
Colorado,
In
The City of New
York,
The English cases, upon the subject of speed, are much more numerous and explicit. In that of The Frankland & Kestrel, L. R. 4 P. C. 529, two steamships were approaching each other in a fog so dense that vessels could not be seen at a greater distance than 200 or 300 feet. The speed of each vessel was not ovet' two to two and a half knots through the water. The finding of the admiralty court was that “ both vessels were going, in truth, in the most absolute uncertainty as to the proceedings of the other”; and the opinion of that court, fortified by that of its nautical assessors, was “ that upon hearing the whistles of each other so near and approaching each other,each vessel ought not only to have stopped, but to have reversed until its way was stopped, when it could have hailed and ascertained with certainty Avhich Avay the head of the other vessel was, and which Avay she AAras proceeding; and by that means the collision would or might have been avoided.” The Privy Council Avas of the opinion that both vessels Avere going at a moderate speed; but that the Frankland, the only vessel which appealed, having heard a whistle sounded many times, indicating that a steamer was approaching her and had come very near to her — so near indeed that if the vessels had then stopped they would have been within hailing distancp — should not only have stopped the motion of her engines, but should have reversed them, and that she ought not to have waited until the vessels sighted each other, Avhen such a manoeuvre would have been too late.
In
The Kirby Hall,
8 P. D. 71, it Avas said to be the first duty of those Avho have charge of a steamship in motion during a dense fog, on first hearing the Avhistle of a steamship in such close proximity to them that a risk of collision is involved,
In The John McIntyre, 9 P. D. 135, a steamer hearing a whistle on her port bow in a dense fog, “ so thick that she can hardly see before her,” slackened her speed. Later on the whistle was repeated two or three times, clearly nearing her and in her vicinity, but she did not then ■ stop and reverse; and it was held that she was in fault. The approaching steamer, the Monica, though making only three knots an hour, was admitted to have been in fault.
In The Dordogne, 10 P. D. 6, the master of the Dordogne, while running in a dense fog, heard a whistle three points off her starboard bow. On hearing it, the engines were stopped. The whistle was again heard broader on the starboard bow, and was replied to and the engines again set ahead. The engines were again stopped and again moved ahead. It was held that, considering the way in which these vessels were approaching each other, the officer in charge ought to have brought the Dordogne to a standstill, and, when the other vessel was coming nearer to him, he should have stopped and reversed. The other vessel — the Edith — was admitted to be in fault, though proceeding “ dead slow.”
In the case of
The Ebor,
11 P. D. 25, the rule was still more stringently enforced. In this case, the plaintiff’s steamer heard a whistle almost directly ahead in a
“
thick ” fog. She was
In the case of The Ceto, 14 App. Cas. 670, it was held that ■where two steamships, invisible to each other by reason of a dense fog, find themselves gradually drawing nearer .until they are within a few ship’s lengths, each of them ought at once to stop and reverse; unless the fog signals of the other vessel have unequivocally indicated that she is steered so as to pass clear without involving risk of collision; or unless other circumstances exist which make it dangerous to stop and reverse. The exact speed of the two steamers was not given, although it is stated in one of the opinions that the Ceto was going “dead slow,” while the Lebanon had reduced her speed to “ easy.” Both were held to blame. In the latest English case upon this point, The Lancashire, (1894) App. Cas. 1, two steamships were approaching one another on opposite courses in a fog. They came in sight of each other at a distance of 450 feet. The Ariel was conceded to be in fault. The Lancashire, although proceeding only at the rate of three and one half knots an hour, stopped her engines on hearing the repeated whistles of the Ariel a point and a half on her starboard bow, but was held in fault for not • reversing.
It is apparent from an examination of these cases that they are distinguishable from the one under consideration in two important particulars, viz., that the fog was dense, and that the approaching vessel was herself running at a comparatively low rate of speed.
In every case the fog was described as “dense” — in
The Frankland &
Kestrel, “so dense that vessels could not be seen at a greater distance than two or three hundred feet” —
So, too, in the case of
The Great
Eastern, Browning & Lushington, 287, it was said that “ their lordships are of opinion that it is the duty of the steamer to proceed only at such' a rate of speed as will enable her, after discovering a vessel meeting her, to stop and reverse her engines in sufficient time to prevent any collision from taking place.” Similar language was used by this court in the case of
The
Nacoochee,
The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law. In a dense fog this might require both vessels to come to a standstill, until the course of each was definitely ascertained,. In a lighter fog it might authorize them to keep their engines in sufficient motion to preserve their steerageway.
The fog in this case was what is termed intermittent; sometimes dense; sometimes light; occasionally lifting so much as
It should also be borne in mind that she had a right to assume that, even if the Umbria were not pursuing the moderate speed required by the statute, at least she was not guilty of maintaining the extraordinary and reckless speed of nineteen knots per hour. While the signals of the Umbria indicated that she.was approaching her very fast, the bearing of these signals tended to show that she was broadening off from, rather than bearing in upon, her course, and that the Iberia would probably pass the point of intersection before the Umbria reached it. Indeed, if it be true, as sworn by her witnesses, that the Iberia was proceeding on a N.W. course after she had ported, and the Umbria was proceeding on a course E. by S', f S., and the whistles were several times heard four points on the bow of the Iberia, there could not have been any collision, since the courses of the two vessels would have crossed each other far astern of the Iberia. It is probably also true that, considering the great speed of the Umbria, it were better that the Iberia should keep her steerageway rather than stop her engines and reverse, since she would respond to her wheel more readily, if her engines were kept in motion than if her headway were entirely stopped. The case presented is not one where, if both vessels had stopped and reversed, the collision might have been avoided; but whether, under the facts as they subsequently appeared to be, the Iberia could be deemed in fault for a manoeuvre which would have- tended to avoid the collision rather than bring •
The English cases are also distinguishable in the fact that the approaching vessel was herself running at a low rate of speed — generally at “dead slow,” or, as in one or two of the cases, at “ easy speed.” Indeed, it does not appear that either vessel was running at a speed to exceed three and one half or four knots an hour, Avhich, however, was held to be too great to enable tAvo Aressels to avoid a collision after they came in sight of each other. Undér such circumstances, these decisions can have but an imperfect application to a case where one of the steamers is proceeding at “ dead slow,” and the other at her full speed of sixteen to nineteen knots an hour. "While ' Ave do not question the soundness of Lord Halsbury’s observations in the case of
The
Ceto, that the solution of the question of speed must not depend upon the state of facts aftenvards ascertained, unless there was enough to tell both parties at the time Avhat the condition of fact was, still the whole theory of the cases Avhich hold it to be the duty of a steamer, meeting another steamer in a fog, to stop or reverse, is based upon the hypothesis that a collision may thereby be avoided; and if the facts aftenvards ascertained indicate that such manoeuvre, under the circumstances of a particular case* could not have subserved any useful purpose, the steamer ought not to be held in fault for the non-observance of the rule. These rules are intended solely for the prevention of collisions, and if it be clearly apparent that the observance of a certain rule Avould not have prevented a collision in the particular case, the non-observance of such rule becomes immaterial. Thus, there are a number of cases holding that after two vessels have approached each other so near that a collision has become inevitable or imminent, the master of either may, in the exercise of a sound judgment, put his engines at full speed Avith a possibility thereby of escaping contact, or of easing the bloAv (as was actually done .by the Iberia in this case); although if he had done it before the collision' had become imminent, it would haATe been a gross fault. Indeed, Article 23 of the International Negulations makes special provision for exceptional
Upon this subject, it was said by this court in
The Cayuga,
In the English.cases above cited, both vessels were proceeding at a rate of speed no greater than that of the Iberia, and both were held in fault for not stopping and revei’sing, because, if that had been done promptly,' no collision would have occurred; but, if it turn out that the approaching vessel was proceeding at such a rate of speed that a collision could not possibly have been avoided by the other stopping and reversing, it cannot be said to have been at fault with respect to such approaching vessel, that she still continued to keep her engines in motion. In this case it is manifest that no precautions on the part of the Iberia would have been of the slightest avail, in view of- the extraordinary speed of the Umbria. It is true that if she had stopped promptly, she might not have reached the point where the courses of the two steamers intersected ; but it is equally true that if she had been going at a much greater speed than she was, she would have passed the point of intersection before the Umbria reached it. Manifestly this is not the proper test. The propriety of certain manoeuvres cannot be determined by the chance that the two vessels may, or may not, reach the point of intersection
at the same time,
but by the question whether their speed can be stopped
The court is, therefore, unanimously of opinion that the damages should not have been divided. The majority think that the Iberia was not in fault, while other members of the court rest their conclusion upon,the view that, even if she-were in fault, such fault did not contribute to the collision.
3. Error is also alleged in the refusal of the Court of Appeals to allow as an item of damage the probable profits of a charter party made October 27, 1888, about a fortnight before the collision, under which the Iberia, described as then being on a voyage from Aden to New York, was to proceed to Cadiz in Spain with a cargo of tobacco. There was clearly no error in rejecting this item. There is nothing in-the peculiar facts of the case to take it out of the general rule that in cases of total loss by collision damages are limited to the value of the vessel,- with interest thereon, and the net freight pending at the time of the collision. .The probable net profits of a charter may be considered in cases of delay, occasioned by a partial loss, where the question is as to the value of the use of the vessel pending her repairs.. In such cases the net profits of a charter, which she would have performed except for the delay, may be treated as a basis for estimating the value of her use.
Williamson
v.
Barrett,
But in cases of total loss the probable profits of a charter, not yet entered upon, are always rejected. In the case of
The
So, in England, in the case of
The Columbus,
3 W.
In cases of a partial loss there is no injustice in allowing the probable profits of a charter for the short time during which the vessel is laid up for repairs, but in cases of a total loss the recovery of such profits is limited to the voyage which the vessel is then performing, since, if th'e owner were entitled to ■recover the profits of a future voyage or charter, there would seem to be no limit to such right so far as respects the time of its continuance; and if the vessel were under a charter-which had months or years to run, the allowance of the probable profits of such charter might work a great practical injustice to the owner of the vessel causing the injury.
The cases relied upon by the libellant do not support his con
Upon the whole, we think the opinion of the Court of Appeals dividing the damages was erroneous, and that
The decree of the District Court of January 13, 1890, with respect to the question of liability should have been affirmed, and the case is therefore remanded to that court with directions to enter a new decree in conformity with this opinion,