The Britannia (Shiras)/Dissent Brown

Mr. Justice BROWN (with whom was Mr. Justice JACKSON), dissenting.

I cannot agree with the court in holding the Beaconsfield to have been in fault for this collision. Her conduct, so far from being reckless or in violation of the rules of good seamanship, appears to me to have been characterized by an excess of prudence, which, even if it were an error, was not a fault for which I would willingly condemn her. This court has had frequent occasion to hold steamers liable for too great speed. This is the first in which we have condemned one for too little. Indeed, cases in which steamers have been held liable for not maintaining their speed are extremely rare, both in this country and in England; and, if any such exist, I think they will be confined to those wherein tugs descending a river with tows have been held in fault for stopping and allowing their tows to spread out in the path of ascending vesels. It seems to me that the conclusion that the Beaconsfield was in fault for stopping and reversing can only be reached by ignoring the most vital findings of fact with respect to her conduct, and proceeding upon the theory that, because the collision would not have happened if she had kept her speed, it was necessarily a fault that she had not done so.

The findings, so far as they bear upon the questions at issue, are as follows:

(5) 'When about midway between Diamond reef and the New York piers she saw the Britannia as the latter came clear of Castle William, and blew a single whistle to her. The Beaconsfield was then heading about W. N. W. or W. By N. The full speed of the Beaconsfield was between nine and ten knots, with fifty-six revolutions. At this time her engines were moving under an 'easy ahead,' with thirty revolutions, which would make her speed through the water about five knots. The retardation due to the action of the wind and to that of the flood eddy (described in the fourth finding) greatly reduced her speed over the ground as she came within the influence of the eddy,-to considerably less than four knots. * *  * While getting clear of the bottom, and with her engines at full speed, she [the Britannia] blew a single whistle to the Beaconsfield. The whistle of the Beaconsfield referred to in the fifth finding was neither heard nor seen on the Britannia, but the latter's whistle, given while getting clear of the bottom, was heard on the Beaconsfield, and taken to be an answer to her own signal. At the time the Britannia thus signaled the distance between the steamers was not quite half a mile.'

(9) 'After clearing the bottom, the Britannia ported and hard a-ported her helm, but her bow while in the ebb tide near Governor's island did not swing to starboard, but, on the contrary, did for a brief space take a slight but perceptible swing to be westward.'

(10) 'When the Beaconsfield below her first whistle, her wheel was put to port a little and kept steady a-port, and under her slow engine she drew ahead, her head inclining a little toward the New York docks. A careful watch was kept on the movements of the Britannia, and it was observed not only that she did not swing to starboard, but also that she was showing a little more of her starboard side to the Beaconsfield; thereupon those upon the Beaconsfield, while still about four lengths from the Britannia, blew another single whistle, and, hearing no answer, put their wheel hard a-port, and stopped, and reversed full speed. Her engines were kept reversed until her headway was stopped. Then her engines were stopped, and at the time of the collision she was nearly, if not quite, dead in the water.'

(11) 'At the time the Beaconsfield reversed, she had approached so near the New York shore that, in view of her draft of water and the condition of the bottom in that locality, there was some risk of her running aground should she continue her headway much longer under her port helm. At that time the Britannia, not yet swinging to the eastward, was heading so as to cross the bows of the Beaconsfield, had advanced over a considerable part of the distance which separated them when she blew her first whistle, and was manifestly coming into the northern part of the channel.'

(12) 'This second whistle from the Beaconsfield was not heard on the Britannia. The latter also blew a second single whistle, and thereafter a third, neither of which was seen or heard on the Beaconsfield.'

(13) 'Shortly after the Beaconsfield began reversing, the Britannia commenced to swing to starboard, a motion which was perceived on the Beaconsfield.'

(14) 'The captain of the Britannia had noticed that she did not swing as promptly as he had expected after clearing the bottom, and, after she did begin to swing, he saw that she needed to come more to starboard, and that the ships for some reason did not get clear of each other; and, differing from the pilot as to the chance of clearing the Beaconsfield if he kept on, he gave the order to reverse his engines; thereafter he let go his port anchor when about one hundred feet from the Beaconsfield.'

(24) 'At the time these steamers sighted each other and signaled, they were crossing so as to involve risk of collision, within the meaning of the nineteenth rule, and the Britannia had the Beaconsfield on her starboard side.'

(25) 'At the time when the Beaconsfield stopped and reversed, the vessels were approaching each other so as to involve risk of collision. A prudent navigator viewing the situation at that moment from the deck of the Beaconsfield would have reached the conclusion that, if neither the course of the Britannia were altered nor her headway checked, collision was imminent and inevitable, unless avoided by some change in the movements of the Beaconsfield.'

(26) 'The Britannia's movements, visible to the Beaconsfield, were not in accordance with the single whistle she had blown, but were such as to create a natural, reasonable, and strong apprehension of collision in those in charge of the Beaconsfield, and they were thereby justified in taking the statutory precaution to avoid risk of collision, which is prescribed by the twenty-first rule for a vessel approaching another vessel so as involve risk of collision.'

Although the collision occurred in November, 1886, after the revised international regulations, adopted by act of congress of March 3, 1885 (23 Stat. 438), took effect, the case was treated by court and counsel as covered by the rules prescribed in Rev. St. § 4233, which do not, however, differ materially from the revised regulations.

In connection with the above findings, the following rules are pertinent: Rule 19. 'If two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.'

21. 'Every steam vessel, when approaching another vessel, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.'

23. 'Where, by rules 17, 19, 20, and 22, one of two vessels shall keep out of the way, the other shall keep her course, subject to the qualifications of rule 24.'

24. 'In construing and obeying these rules, due regard must be had to all dangers on navigation, and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger.'

Two questions are naturally raised by the above findings: (1) Whether the obligation imposed upon the privileged vessel by rule 23, to 'keep her course,' also obliges her to maintain her speed; (2) granting that it does, whether this requirement applied to the Beaconsfield under the peculiar circumstances of this case.

(1) The first proposition depends upon what is meant by keeping the course of a vessel. The word 'course,' as used in this connection, is defined by the lexicographers as follows: By Webster, as 'progress from point to point without change of direction; any part of a progress from one place to another, which is in a straight line or in one direction.' By Worcester, as 'the track or line of motion; direction in which motion takes place.' And by the Imperial Dictionary, as 'the direction of motion; the line in which a body moves; as what course shall the pilot steer; the course of a projectile through the air.'

Now, unless we are to give to the word 'course' a meaning quite different from that given by the grammarians, we must hold that the steamer discharged her obligation to 'keep her course' by keeping steadily in the direction in which she had been previously going. But we are not without authority upon this point. In the case of The Beryl, which was a collision in the North sea between the steamship Abeona and the steamship Beryl, the two vessels were approaching each other at right angles, the Beryl being upon the starboard side of the Abeona. The Abeona admitted that the Beryl kept her course, but claimed that she kept it too long, directly the contrary of the claim made by the Britannia in this case. The Beryl eased her engines from a quarter to half a mile distant from the Abeona. It was held by the admiralty court (9 Prob. Div. 4) that, although the obligation to keep her course was applicable, yet the Beryl was bound not to disregard the obligation of the other article to stop and reverse, if necessary to avoid a collision, and that both articles were applicable to the case. The admiralty court held that the Beryl did act in time in stopping her engines, but on appeal to the court of appeals the case was reversed (Id. 137, 140, 141, 142, 144), and the Beryl held to be in fault, not for failing to maintain her speed, but for failing to stop and reverse her engines in due time. In delivering the opinion of the court, Brett, M. R., observed: 'It was suggested to us to-day that 'keeping her course' meant keeping her course at the same pace at which she was going before she was called upon to obey this rule. But keeping her course means that she is to keep on the same direction as before; it has nothing to do with the question of speed. * *  * The Abeona was bound to get out of the way of the Beryl; the moment that rule applied to the Abeona, article 22 applied to the Beryl, namely, to keep her course. * *  * The Abeona did everything that was wrong; and then the question arises, did the Beryl break any of the rules? She kept her course, and, when she saw that the Abeona was not doing her duty, she whistled. * *  * Seeing the Abeona was still keeping on, she whistled again, and slackened her speed. The first question upon that is this: Were the circumstances such then that there was risk of collision? The vessels were at a distance of from a quarter to half a mile. At that time the officer of the Beryl slackened his speed.'

Bowen, L. J., observed: 'It has been suggested that the expression 'keep her course,' used in article 22, refers to the speed of the vessel as well as to the direction of her head, but this is an untenable argument. In article 18 we find the words 'stop and reverse if necessary,' which obviously are intended to point out that the vessel, when it is necessary, is to do more than simply slacken her speed. It may, however, be a matter of consideration whether 'if necessary' is to be construed as meaning if it is actually necessary, or only if the captain should reasonably think that a necessity has arisen; but, even if we were to take the latter as the construction most favorable to the master of the Beryl, the answer of our assessors to the question put to them, which the master of the rolls has already referred to, puts him clearly in the wrong, and obliges us to hold that the Beryl was also to blame for this collision.'

Fry, L. J., was of the same opinion, and thought that the Beryl should have stopped and reversed earlier than she did.

This case is not only inconsistent with the opinion of the court in the case under consideration, but is absolutely the reverse of it.

In view of the fact that these rules are international, and have been pronounced by this court to be a branch of the international law (The Scotia, 14 Wall. 170), it is of the utmost importance that the same construction should be placed upon them by all courts upon which they are obligatory, and the fact that the courts of the country in which they were first adopted has given them a certain construction is a cogent argument in favor of a similar construction elsewhere. There is a peculiar propriety in its application in this case in view of the fact that the Beaconsfield was a British vessel, and its officers presumably acquainted with the law of their flag. The only case to the contrary to which our attention has been called is that of The Northfield and the Hunter, 4 Ben. 112, Fed. Cas. No. 10,326, in which, however, no such general rule of construction was laid down. But, under the peculiar circumstances of that case, to which I shall advert hereafter, as distinguishing it from the case under consideration, it was held that the privileged vessel was in fault for stopping and reversing.

(2) But, whatever be the interpretation of this rule, it seems to me clear that, under the circumstances of the particular case, the Beaconsfield was guilty of no fault in stopping and reversing. It will not for a moment be claimed that a steamer is bound to keep up her speed, if her master can see that by so doing she must inevitably be brought into collision with the other vessel. He is not, by a persistent adherence to any rule, at liberty to thrust himself directly in the path of an approaching vessel. There is certainly a point in every case beyond which he is not bound to proceed. The obligation to avoid a collision, if it be possible to do so, must be read into and made a part of all steering and sailing rules, and is specially provided for in rule 24, that 'in construing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering a departure from them necessary in order to avoid immediate danger.' There is no rule of more general observance than that which requires sailing vessels to keep their course when approaching a steamer, and yet in The Sunnyside, 91 U.S. 208, a sailing vessel was condemned for persistently adhering to the rule, and running down a steam tug, which lay motionless upon the water, although the latter was conceded to be in fault for not getting out of her way. 'Negligence more manifest,' said Mr. Justice Clifford, 'culpable, or indefensible, in view of the circumstances, is seldom exhibited in controversies of this character; and the only excuse offered for it is that the eighteenth sailing rule provides that, where one of two ships is required to keep out of the way, the other shall keep her course; entirely overlooking the fact that the mandate of that rule is declared by the rule itself to be subject to the qualification' of rule 24. See, also, Crockett v. The Isaac Newton, 18 How. 581; The Lake St. Clair & Underwriter, 2 App. Cas. 389.

So, rule 23, which requires the privileged steamer to keep her course, must, like all others, be read in connection with rule 21, that every steam vessel when approaching another vessel so as to involve risk of collision shall slacken her speed, or, if necessary, stop and reverse.

This case then reduces itself to the question whether, at the time the order was given upon the Beaconsfield to stop and reverse, the master had a right, in the exercise of a reasonable judgment, to suppose that, if he persisted in his speed, a collision was probable; in other words, had he reason to believe there was danger of collision? The sequence of events after the steamers came in sight of each other, as appears from the findings, was as follows:

When about midway between Diamond reef and the New York piers, she (the Beaconsfield) saw the Britannia as the latter came clear of Castle William, and blew a single whistle to her. Owing, probably, to a strong wind then blowing from the west (about 22 miles an hour), this whistle of the Beaconsfield was not heard upon the Britannia. The latter, however, while getting clear of the bottom, and her engines at full speed, blew a single whistle to the Beaconsfield, which was heard and taken to be an answer to her own signal. At this time the vessels were not quite half a mile apart. Although, after clearing the bottom, the Britannia ported and hard a-ported her helm, her bow, while in the ebb tide near Governor's island, did not swing to starboard, but, on the contrary, for a brief space took a slight but perceptible swing to the westward,-to port. It was seen upon the Beaconsfield, not only that the Britannia did not swing to starboard, but that she was showing a little more of her starboard side to the Beaconsfield; whereupon the Beaconsfield, while still about four lengths from the Britannia, blew another single whistle and, hearing no answer, put her wheel hard a-port, and stopped, and reversed at full speed until her headway was stopped, when her engines were stopped, and she remained motionless in the water.

Was she in fault for so doing? There were three circumstances calculated to excite the apprehension of her master: (1) The Britannia, instead of swinging to starboard, appeared to be swinging to port. That this also alarmed those on the Britannia is evident from the fourteenth finding,-that, after she began to swing, her master saw that she needed to come more to starboard; that the ships did not, for some reason, get clear of each other; and, differing in opinion from the pilot, he gave the order to reverse the engines. (2) She did not at once answer the Beaconsfield whistle; a circumstance tending to show, either that she did not hear it, or disregarded it. In view of the fact that the steamers were not more than ten or twelve hundred feet apart, this silence was certainly alarming. (3) At this time, too, the Beaconsfield had approached so near the New York shore that, in view of her draft of water and the condition of the bottom, there was some risk of her running aground, should she continue her headway much longer under her port helm. In this condition of things we are confronted by the twenty-fifth and twenty-sixth findings,-that, at the time the Beaconsfield stopped and reversed, the vessels were approaching so as to involve risk of collision; that a prudent navigator, viewing the situation from the deck of the Beaconsfield, would have reached the conclusion that, if the course of the Britannia were not altered nor her headway checked, a collision was imminent and inevitable, unless avoided by some change on the part of the Beaconsfield; and (finding 26) that the Britannia's movements visible to the Beaconsfield were not in accordance with the single whistle she had blown and were such as created a natural, reasonable, and strong apprehension of collision in those in charge of the Beaconsfield. Under these circumstances, I agree with the opinion of the court below that the Beaconsfield was justified in taking the statutory precautions to avoid risk of collision prescribed by the twenty-first rule, as to stopping and reversing.

The case of The Northfield and The Hunter, 4 Ben. 112, Fed. Cas. No. 10,326, decided by Judge Blatchford, whose experience as an admiralty judge undoubtedly entitles his opinions to most respectful consideration, is clearly distinguishable from this. In that case the Northfield was going at a speed or from 9 to 10 knots an hour, while the Hunter, the privileged vessel, with a schooner in tow, was not going more than 2 knots an hour. The master of the Hunter, who was fearful that the schooner would get adrift if any extra strain should come upon his lines, stopped his vessel. But the court expressly finds that such stopping did not occur in articulo periculi, but took place at a distance from the Northfield which would have enabled the latter easily to have avoided her.

The only excuse for holding the Beaconfield in fault is that her pilot was bound to know the existence of the eddy which gave the Britannia's bow a swing to port before she answered her wheel to swing to starboard. Considering, however, the proximity of the two vessels at this time, and the failure of the Britannia to promptly respond to the Beaconsfield's whistle, I do not think the pilot of the latter was bound to know the precise moment when the Britannia would begin to answer her helm, and swing her bow to starboard. The vessels were in such proximity that seconds became of the utmost importance, and the failure of the Britannia to do exactly what she ought to have done meant inevitable disaster.

The case of The Rhondda, 8 App. Cas. 549, so far from being an authority in favor of the position assumed by the court in this case, is, as I read it, directly the contrary. The Rhondda, having the Alsace-Lorraine on her starboard side, was rounding Faro point at the entrance of the Straits of Messina, when she observed the Alsace-Lorraine at a distance of half a mile and about a point on her starboard bow. The Rhondda at once put her helm hard a-port, but failed to answer her wheel in consequence of the strong current at the entrance of the straits (the ancient Charybdis). She then blew her whistle, and stopped, and reversed her engines at full speed, and was held to have performed her full duty. The Alsace-Lorraine did not ease or stop her engines, but put her helm hard a-port, and was struck by the Rhondda nearly amidships, and was held to have been in fault. I think the case tends to show that the Beaconsfield was right in her maneuver.

I would apply to this case the observations of this court in the case of The Favorita, 18 Wall. 598, 603, in while a collision occurred under somewhat similar circumstances: 'It is said, if the Manhasset had advanced instead of stopping, she would have cleared the steamship. This may or may not be true; but, if true, she is not in fault for this error of judgment. It was a question whether to advance or stop and back, and the emergency was so great that there was no time to deliberate upon the choice of modes of escape. In such a moment of sudden danger, caused by the misconduct of the Favorita, the law will not hold the pilot of the Manhasset, acting in good faith, guilty of a fault, if it should turn out after the event that he chose the wrong means to avoid the collision, unless his seamanship was clearly unskillful. And this we do not find to be the case. On the contrary, if there were error at all, it was such a mistake of judgment as would likely be committed by any one in similar peril.' See Id., 1 Ben. 30, Fed. Cas. No. 4,693; 8 Blatchf. 539, Fed. Cas. No. 4,695.

I agree with the court that the thirty-first finding is a finding of law and not of fact, but I think it was such a legal conclusion as was justified by the other findings.

For these reasons I am of opinion that the decree of the circuit court should be affirmed.