through anchorage ground.14 But a steamer running slowly in fog in the middle of Lake Michigan was held not at fault for a collision between a schooner and the steamer's tow, where she had no reason to know that the course of the schooner would cross her course, and, had she known it, could have done nothing except stop, which would have exposed both herself and the schooner to as much danger as she would by continuing.15 In case of doubt, it is the duty of a vessel to use the lead while navigating narrow and winding channels.1 16 § 6932. Speed of Sail-Vessels.-The navigation rules make no distinction between steam and sail-vessels as to the rate of speed: the requirement is that "every vessel" shall proceed at a moderate speed through a fog. The existence of the obligation of a sail-vessel to move at a moderate speed was recognized previously to the adoption of the present rules in the few cases passing upon the question." 17 18 § 6933. Duty to Stop on Hearing Signal.-A steam-vessel, on hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, should, so far as the circumstances of the case permit, stop her engines and then navigate with caution until the danger of collision is over. 19 It is not sufficient merely to where she is under such headway that she cannot be stopped until the float has progressed 921 feet after she is seen: The Eldorado, 47 Fed. Rep. 71. 14 The Northern Queen, 117 Fed. Rep. 906; The Ophelia, 44 Fed. Rep. 941. art. 16 (U. S. Comp. St. 1901, p. 2868); Rules for Harbors &c., art. 16 (U. S. Comp. St. 1901, p. 2880). Rule 15 of Navigation Rules for the Great Lakes provides that a steamvessel hearing, apparently not more than four points from right ahead, the fog signal of another vessel, 15 The W. H. Gratwick, 81 Fed. shall at once reduce her speed to Rep. 590. 18 The Buffalo, 50 Fed. Rep. 630; The Express, 48 Fed. Rep. 323. "International Navigation Rules, No. 16. 1844 is "Although the reports of the admiralty courts are extremely fertile of cases turning upon the proper speed of steamers in foggy weather, there is a singular paucity of such as deal with the speed of sailing-vessels. Such as there are, however, point to a uniformity of regulation applicable to the two classes": Brown, J., in The Chattahoochee, 173 U. S. 540. See The Virgil, 2 W. Rob. 201; The Victoria, 3 W. Rob. 49; The John Fenwick, L. R. 3 Adm. & Ecc. 500; The Rhode Island, 17 Fed. Rep. 554. International Navigation Rules, bare steerage and navigate with caution until the vessels shall have passed each other: U. S. Comp. St. 1901, p. 2890. See The City of New York, 35 Fed. Rep. 604; The City of New York, 147 U. S. 72; s. c. 37 L. ed. 84; 13 Sup. Ct. Rep. 211; The Elba, 123 Fed. Rep. 139; El Monte, 114 Fed. Rep. 796; The Flyer, 62 Fed. Rep. 615; The F. & P. M. No. 2, 36 Fed. Rep. 264; The Harold, 84 Fed. Rep. 698; Hunter v. The Tellus, 113 Fed. Rep. 525; The Kaga Maru, 123 Fed. Rep. 139; The Lawrence, 54 Fed. Rep. 542; The Midland, 48 Fed. Rep. 331; The North Star, 43 Fed. Rep. 807; The Nymphaea, 84 Fed. Rep. 711; The Phoenix, 50 Fed. Rep. 330; The Rappahannock, 114 Fed. Rep. 796; Tellus S. S. Co. v. The Belgian King, 113 reduce speed and then, after a short interval, to reverse.20 The vessel, before proceeding, should make sure of the location of the signalling vessel and not act on mere conjecture.21 The rule, however, has been construed not to oblige a steamer to stop at the first signal heard by her, unless its proximity be such as to indicate immediate danger.22 Stopping a vessel in a fog on the approach of another vessel in accordance with the rule will not be deemed a fault, although it directly contributes to produce a collision.20 $6934. Starboard Rule Inapplicable to Vessels Navigating in Fog. The starboard rule very obviously cannot apply to cases where the vessels, though crossing, cannot see each other or ascertain their respective locations and bearings because of the fog. 24 $6935. Burden of Proof where Moderate Speed is Exceeded. A steamer which, while navigating at more than a moderate speed in a fog, collides with another vessel, has the burden of showing that the collision would have happened substantially the same had she been going at the moderate speed required by the navigation rules,25 Fed. Rep. 525; Roberts v. The Paw- The Ludwig Holberg, 157 U. S. 60. "We certainly do not wish to be understood as holding that it is nec essary for a steamer to stop the moment she hears a whistle ahead of her in a fog. Under such circumstances she may proceed at a reduced rate of speed; but if the whistle be repeated two or three times and appears to be drawing nearer, the authorities generally hold that, if the fog be dense, prudent navigation requires that she shall stop her engines and drift ahead until the approaching steamer comes in sight or her whistles indicate that the two vessels will clear of each other": Brown, J., in The Umbria, 166 U. S. 404. 23 The George E. Starr, 47 Fed. Rep. 749. 24 The Grenadier v. The August Korff, 74 Fed. Rep. 974. § 6938. Errors in Extremis.-A navigator who is confronted with a sudden peril brought about by the negligence of another vessel, is not regarded as in fault for an error of judgment in the navigation of his vessel where he exercises his best judgment in view of the circumstances as they are presented to him at the time. But the navi 1 The America, 37 Fed. Rep. 813; The Excelsior v. The Bruce, 38 Fed. Rep. 271; The City of New York, 35 Fed. Rep. 604; McCormick v. The Gladys, 35 Fed. Rep. 160; The George W. Childs, 67 Fed. Rep. 269; The E. A. Packer, 49 Fed. Rep. 92; Roanoake &c. Co. v. The Lucy, 44 Fed. Rep. 938; The Sarah Thorp, 44 Fed. Rep. 637; The Transfer No. 8, 13 C. C. A. 684; The Queen Elizabeth, 122 Fed. Rep. 406; Fulton v. Holmes, 122 Fed. Rep. 406; The City of Springfield, 29 Fed. Rep. 923; The Maurice B. Grover, 92 Fed. Rep. 678; s. c. 34 C. C. A. 616; The Maggie J. Smith, 123 U. S. 349; s. c. 31 L. ed. 175; The Zouave, Brown Adm. (U. S.) 110. Where two tugboats were making up parallel tows in East River and were both headed up stream against a strong ebb tide, and the one nearest the Brooklyn shore, upon completion of the tow, and while attempting to turn out of the river, struck a canal-boat in tow on the starboard side of the other tug, as she took the responsibility of being able to effect her turn, she alone was liable. The failure of the other tug to stop her engines, and allow her tow to drift back with the tide, was an excusable error in extremis: The Osceola, 33 Fed. Rep. 719. An engineer of a steamer who comes suddenly from his engineroom upon the crash of a collision by which a considerable portion of the side of a steamer has been carried away, and in the alarm attending a collision in the night, is not guilty of negligence, but of a mere mistake of judgment in extremis, in attempting to jump to a float in tow of the tug which has collided with the steamer, where he has seen one or more of his shipmates jump to such float just before: The City of Norwalk, 55 Fed. Rep. 98. The C., passing in through the Narrows at a time when the channel had been mined by the Government, was directed by the patrol-boat to go to the west side of the open passage. The tug Ceres, with tow, following the tug G. with tow, coming out, was directed to keep to the east. The G. signalled the C. that she would pass to the east, but the Ceres, without signalling, passed diag onally across the passage, so that the last scow of her tow swung close to the west buoy, and was run into by the C. It was held that the fact that the C. stopped her engines three minutes before the collision, and backed one minute, thereby canting her head slightly to the starboard, nearer the scow, being a manœuvre in extremis, and in compliance with the rule requiring reversal in imminent danger, did not render her at fault: The Chalmette, 93 Fed. Rep. 500. gator urging this defense must himself be free from fault. An error is extremis cannot be urged in exculpation of a vessel whose prior negligence has brought about the situation in which the mistake of judgment occurs. Thus, the master of a tug who sees the light of an approaching vessel in time to avoid collision, is not excusable as acting in extremis in attempting to cross the bows of such steamer in consequence of the crossing of signals giving rise to the erroneous supposition that the steamer has answered the tug's signal of two blasts with but one. On the other hand, the luffing up of a vessel, just before collision with another, which was bound to keep out of the way, in order to ease the blow, has been deemed a manœuvre in extremis. So, a barge in tow which has followed her tug up to the time she is placed in extremis through the fault of such tug and a meeting vessel, cannot be imputed with fault for a collision because of a slight variation of her course thereafter." § 6939. Navigation Rules may be Departed From under Special Circumstances. The navigation rules specially provide that in obeying and construing such rules due regard must be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the rules necessary in order to avoid immediate danger. The precautions enjoined in these rules are intended to prevent collision and afford security to life and property; and where the rules cannot be followed without defeating the end for which they were established and without producing the mischief which it was the design of the rules to avert, a departure therefrom will not only be justified, but will become a duty. But exceptions The Golden Age, 113 Fed. Rep. 868; s. c. 51 C. C. A. 492; The Protector, 113 Fed. Rep. 868; s. c. 51 C. C. A. 492; The Transfer No. 8, 53 Fed. Rep. 670; The Elizabeth Jones, 112 U. S. 514. 'The Newport News, 83 Fed. Rep. 522. 'The Gypsum Prince, 67 Fed. Rep. 612; The Grace Seymour, 63 Fed. Rep. 163. 'The Teaser, 118 Fed. Rep. 81; The Transfer No. 14, 118 Fed. Rep. 81. 'Article 27 International Navigation Rules; Article 27 Inland Rules; Rule 27 Great Lakes Rules; Rule 24 for the Red River of the North &c. The Britannia, 34 Fed. Rep. 546; Fulton v. Holmes, 122 Fed. Rep. 406; The Non Pareille, 33 Fed. Rep. 524; The Queen Elizabeth, 122 Fed. Rep. 406; The S. Anderson, 27 Fed. Rep. 392; The Rockaway, 38 Fed. Rep. 856; The Rio Grande, 38 Fed. Rep. 849; The Catskill, 38 Fed. Rep. 367; Kiernan v. The Leonard Richards, 38 Fed. Rep. 767; The Frisia, 28 Fed. Rep. 249; s. c. 24 Blatchf. (U. S.) 40; The America, 92 U. S. 432; Tne Cayuga, 14 Wall. (U. S.) 270; New York &c. S. S. Co. v. Rumbull, 21 How. (U. S.) 372; The Maria Martin, 12 Wall. (U. S.) 47; Peck v. Sanderson, 17 How. (U. S.) 178. Where a vessel without excuse disobeys the rules and attempts to cross the bow of another, the latter is chargeable with the duty only to stop and reverse as soon as it is evident that a collision will otherwise result: The Cement Rock, 38 Fed. Rep. 764. to the rules are to be admitted with great caution, and departures from them can be justified only when imperatively required by these special circumstances; under ordinary circumstances a vessel will discharge her full duty by a full and literal observance of the rules. Courts recognize that where the observance or non-observance of these rules becomes a matter of doubt and discretion, danger cannot always be avoided, as the judgment of one navigator may lead him to observe the rule, while that of another may lead him to disregard it. Under this view it has been held that a vessel following the course required by the rules is not at fault for not changing her course upon meeting another vessel where the other changes her course when the rules require her to hold it, and a collision, appears imminent, since it cannot be known that the other will not realize her mistake and alter her helm accordingly.10 § 6940. Burden of Proof in Collision Cases.-The burden of showing the failure to exercise ordinary care and nautical skill under the particular circumstances is upon the party alleging such failure.11 Where, however, the complaining vessel has committed a positive breach of the navigation rules, she must show not only that her fault in this respect probably did not contribute to the disaster, but that, it could not have done so.' 12 Where the fault of one vessel is established by uncontradicted testimony, and the fault is of itself sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel, but, on the contrary, any reasonable doubt as to whether the fault of the latter contributed to the collision should be resolved in its favor.13 In collision cases the admiralty courts incline to accept the statements of the The Breakwater, 155 U. S. 252; s. c. 39 L. ed. 139; 15 Sup. Ct. Rep. 99; The Oregon, 158 U. S. 186; s. c. 39 L. ed. 943; 15 Sup. Ct. Rep. 804; The Maggie J. Smith, 123 U. S. 349; s. c. 31 L. ed. 175. The Breakwater, 155 U. S. 252. 10 The Thingvalla, 1 U. S. App. 32; s. c. 48 Fed. Rep. 764; 1 C. C. A. 87 (stopping and reversing is the proper action in such a case). "The Charles L. Jeffrey, 55 Fed. Rep. 685; The Lady Wimett, 92 Fed. Rep. 399; The Wioma, 55 Fed. Rep. 338; John Spry Lumber Co. v. The C. H. Green, 76 Mich. 320; s. c. 43 N. W. Rep. 576; Wintringham v. Hayes, 3 Misc. (N. Y.) 604; s. c. 52 N. Y. St. Rep. 858; 23 N. Y. Supp. 338; The Victory and The Plymothian, 168 U. S. 410; s. c. 42 L. ed. 519; 18 Sup. Ct. Rep. 149. 12 The Roman, 14 Fed. Rep, 61; The Britannia, 153 U. S. 130; s. c. 38 L. ed. 660; 14 Sup. Ct. Rep. 795; St. Louis &c. Co. v. United States, 33 Ct. Cl. (U. S.) 251; Eastern Steamship Co. v. Smith, L. R. 1 A. C. 310. 13 The Australia, 120 Fed. Rep. 220; The Livingstone, 113 Fed. Rep. 879; s. c. 51 C. C. A. 560; rev'g s. c. 101 Fed. Rep. 918; The Rescue, 51 Fed. Rep. 927; The Oregon, 158 U. S. 187; s. c. 39 L. ed. 943; 15 Sup. Ct. Rep. 804; The City of New York. 147 U. S. 72; s. c. 37 L. ed. 84; 13 Sup. Ct. Rep. 211. |