Belden v. Chase/Concurrence Brown

Mr. Justice BROWN, concurring.

While I fully concur in the opinion of the court that this case should be reversed upon the ground of the contributory negligence of the Vanderbilt, I think the Yosemite was guilty of a breach of the regulations in failing to carry the range lights provided by rule 7, although it may be open to doubt whether such failure contributed to the collision, in view of the gross fault on the part of the Vanderbilt.

Rule 7, upon the construction of which the question turns, requires 'all coasting steam yessels and steam vessels other than ferry-boats and vessels otherwise expressly provided for, navigating the * *  * inland waters of the United States,' to carry range lights. Were the Yosemite an ordinary coasting vessel, there could be no doubt of her obligation to be provided with these lights when navigating inland waters. She was, however, licensed under Rev. St. § 4214, as a yacht 'used and employed exclusively as a pleasure vessel, and designed as a model of naval architecture,' on terms which authorized her 'to proceed from port to port of the United States, and by sea to foreign ports, without entering or clearing at the custom-house.' She was enrolled under Rev. St. tit. 50, which relates exclusively to coasting and fishing vessels. To put upon this statute (section 4214) the construction most favorable to her, it seems to me that she was invested with a double character-First, as an ocean-going steamer; and, second, as a coasting vessel,-and that, when navigating the inland waters of the country, she was bound to conform to the usages of those waters, and to carry the lights provided by law for 'steam vessels other than ferry-boats and vessels otherwise expressly provided for.' Even admitting that ocean vessels, when navigating inland waters, are not bound to carry these range lights, because it is not contemplated that they shall navigate these waters, I am clearly of the opinion that yachts, which ply chiefly between ports and places within the United States, and upon the inland waters of the country, should carry them. It seems to me an exceedingly dangerous practice, and one which, according to the theory of the Vanderbilt, had much to do with the collision in this case, to permit vessels not carrying the lights appropriate to inland navigation to navigate the narrow waters of the country. Vessels navigating those waters are entitled to expect that other vessels which they meet are required to carry the same lights which they carry, and any distinction in that particular in favor of yachts is liable to create uncertainty and confusion with regard to the character of the approaching vessel. While upon the ocean, I have no doubt her obligations would be discharged by carrying the white and colored lights provided by rule 3 for ocean-going steamers; but, while plying upon the Hudson river, I think she was navigating under her license as a coasting vessel, and should have carried the range lights required in inland navigation.

If the case required it, I would even go further, and say, as did the dissenting judge when this case was heard before the general term, (34 Hun, 571, 577,) that ocean-going steamers, when navigating the inland waters of the country, and not under sail, should carry the range lights provided by rule 7. If this be not obligatory, I find it difficult to understand to what the words, 'steam vessels other than ferry-boats and vessels otherwise expressly provided for,' apply. There is an exception of ferryboats, which is easy to understand. There is also an exception of 'vessels otherwise expressly provided for,' which, in the opinion of the court, applies to ocean-going steamers, which are provided for by rule 3; but in my opinion these words should be construed as if reading, 'steam vessels other than ferry-boats and vessels otherwise expressly provided for in respect to inland navigation.' After expressly excepting ferryboats, which are of a limited class, it seems to me a violation of the rule of ejusdem generis that under the words, 'vessels otherwise expressly provided for,' should be exempted the very large class of ocean-going steamers; and, as observed by the dissenting judge of the general term, these words are perhaps used as words of caution, either as to present or future possible provisions. I have no doubt that ocean-going steamers are not obliged to carry range lights when ascending the waters of a river as far as their customary wharves near the mouth of such river; but if such steamers were in the habit of ascending the Hudson river as far as Albany, or the Mississippi as far as St. Louis, it would be exceedingly dangerous to permit them to navigate without the customary range lights provided for those waters. But, as before observed, it is unnecessary to place the liability of the Yosemite upon this broad ground.