The Britannia (Shiras)/Opinion of the Court

As both the district court and the circuit court, though for somewhat different reasons, found the Britannia to be in fault, and as we agree with them in that conclusion, it is not necessary for us to go at length into that part of the controversy. It is sufficient to say that it appears that the Britannia came so close to Governor's island that she grazed the bottom, and rendered it necessary for her pilot to direct her engines to be put at full speed till she cleared the ground. After that the speed of the vessel was slowed, and her wheel was put hard a-port to round into East river. As found by the circuit court, at about the time of touching the bottom she sighted the Beaconsfield on her starboard bow, and at that time she blew a single whistle to the Beaconsfield, thus signifying an intention to pass under the stern of the Beaconsfield. After clearing the bottom and reducing her speed, the Britannia did not respond promptly to her helm, owing to the fact, as found in the fourth finding, that 'the condition of the wind and tide was such as to form a flood eddy on the north side of the channel between the Battery and Governor's island, and an ebb tide on the south side of the channel. These tides operate to turn the head of a vessel attempting to enter the East river near Castle William, on Governor's island, to the westward, as she crosses the ebb until she enters the flood eddy. Thereupon her head is turned to the eastward. Such tidal action was within the knowledge of the pilot of the Beaconsfield, and should have been within the knowledge of the pilot of the Britannia.' Having placed herself in this predicament, the Britannia's efforts to pass astern of the Beaconsfield were retarded, and her fault was in that particular, that is, in running, at a place where she was liable to meet outwardgoing vessels, across the ebb tide in such a way that the current prevented her from answering her helm with promptness. While this fault was not, as we shall hereafter show, the sole cause of the accident, it contributed to it, and upon the findings we agree with both the lower courts in thinking the fault was enough to render the Britannia liable, in whole or in part, for the loss occasioned by the collision. In exoneration of the Britannia, her advocate cites the case of The Rhondda, 8 App. Cas. 549. That was a case somewhat similar in its facts to the present one. The Rhondda was coming around a point in the Straits of Messina, meeting another steamer, the Alsace-Lorraine. They came into collision, and the Alsace-Lorraine was sunk. Her owners libeled the Rhondda, but the privy council sustained the navigation of Rhondda. She had the other vessel on her starboard bow, and therefore it was her duty to keep out of the way of the Alsace-Lorraine. This she attempted to do by going to the starboard and passing under the stern of the other vessel. There was a current which checked the swing of the Rhondda to the starboard, and her captain, as soon as he saw that his vessel was not swinging off to starboard under his port helm as he had expected, stopped and reversed his engines. The court held that, as it appeared that the Rhondda had ported her helm, and that such action would have carried her clear of the other steamer if she had not been prevented by the current, the Rhondda was free from blame. The maneuvers, therefore, of the Britannia and the Rhondda were alike. They were both meeting another steamer on their starboard bow. They both, in compliance with the rule of navigation applicable to such a case, endeavored to pass under the stern of the other vessel by porting the helm, and they both, when it was seen that the vessel was not swinging as rapidly to the starboard as was expected, stopped and reversed engines. The reason why, if the Rhondda was justly exonerated, the Britannia is not entitled to a like judgment, is found in the different circumstances in which the vessels were placed.

As we have seen, the Britannia was entering one of the most crowded harbors in the world, and was liable to meet other vessels outward bound at any moment. It was also obvious, from her course in running close to Governor's island, that any vessel she would meet, as she entered the strait after she cleared the island, would probably be on her starboard bow. Knowing, as she was bound to know, that, in the condition of the tide at the time, there was a conflict between the current and the eddy which would be apt to thwart or retard her movement to the starboard, it was her duty to have rounded the island at the very lowest rate of speed which would have enabled her to answer to her helm. This she failed to do, and, although her subsequent movements were skillful and in accordance with the rules, she must be held answerable for her original fault in rounding the island so closely that it was found necessary to put her engines, for a time, at full speed in order to clear her from the ground. This temporary enhancement of speed, and the failure to anticipate and guard against the consequences of a well-known current, rendered her subsequent efforts to avoid the collision unavailing.

On the other hand, in the case of The Rhondda, Sir James Hannen, in the course of his opinion, sai: 'Undoubtedly it was strongly in evidence that there was such a stream at this place, whether it be called current or eddy, as was calculated to have an effect in the manner suggested on a vessel coming round into the neck of the channel, * *  * and would be felt upon the starboard bow of a vessel precisely at the point where the Rhondda had arrived.' But he proceeded to say: 'The Rhondda had no reason to anticipate that the operation of the current or eddy would have any bearing upon her duty with reference to the Alsace-Lorraine, because she had a right to expect that the coast would be clear from steamers coming out in the direction in which the Alsace-Lorraine was.'

This brings us to a consideration of the conduct of the Beaconsfield, and here the courts below parted company,-the district court having held that the Beaconsfield's management was faulty, while that circuit court found her free from blame. Of course, this court must accept the facts as found for us by the circuit court, but we do not observe any substantial difference in the facts as understood by the respective courts. Their diversity in opinion arose from a difference in their application of the rules of navigation to the admitted or established facts.

What were those facts? The Beaconsfield descried the Britannia when the latter vessel came around Governor's island, and about the time she was disengaging herself from the ground. The Beaconsfield thereupon blew a single blast of her whistle, which meant that she expected the Britannia to pass under her stern. It is found that this whistle of the Beaconsfield 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 whistle. It is thus evident that the pilots of both vessels agreed in the view that the proper thing to avoid collision was for the Britannia to swing to starboard, and pass behind the Beaconsfield. It is next found that the Beaconsfield, when she blew her first whistle, put her helm to port a little, and went on at a slow speed. Her observation of the Britannia did not show that the latter was swinging to starboard, but even was disclosing a little more of her starboard side to the Beaconsfiled. Thereupon the latter blew another single whistle, which still signified her expectation that the Britannia would pass astern, and, hearing no answer, put her wheel hard a-port, and stopped her engines, 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. After her headway was thus stopped, the Beaconsfield took no further action, and lay still in the water until struck. The time from such stopping of her headway until the collision, during which she lay still, was about a minute and a half. It is further found that, if the Beaconsfield had not stopped and backed, it is probable that the Britannia would have passed a short distance astern of her; and, indeed, under the finding as to her rate of speed before she stopped, this is quite evident.

Was this behavior of the Beaconsfield in stopping her headway and remaining still, without further effort, for a minute and a half, proper, or, at least, excusable, as held by the circuit court? Or was it improper, and did it put her in contributory fault, as held by the district court?

In answering this question, we must have regard to the well-known rules of navigation. Those chiefly applicable to the present controversy are rules 19, 21, 23, and 24, Rev. St. § 4233.

The nineteenth rule is as follows: 'If two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way of the other.' We do not understand this rule to signify, as the circuit judge seems to have thought, that the Britannia was, at all hazards and in some way or other, to avoid the Beaconsfield. Such a rendering of the rule would dispense with all inquiry beyond the single one, which vessle had the other on her starboard side. The plain meaning of the rule was, as applied to the situation under consideration, that the Britannia, which had the Beaconsfield on her starboard side, should yield the path to the latter, and pass behind her. This reading of the rule was recognized and complied with in the first instance by the pilots of both vessels in signaling each other that the Britannia would go astern.

Rule 21 provides 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 rule was likewise obeyed by both ships, in that, so long as they were advancing, after having seen and signaled each other, they went at a slow rate of speed. Later in the history of the incident, they both stopped and reversed. In so doing the Britannia was clearly obeying the letter and spirit of the rule. Whether the Beaconsfield was justified in stopping and reversing we shall presently consider.

The twenty-third rule directs that 'when by rule nineteen, one of two vessels shall keep out of the way, the other shall keep her course, subject to the qualifications of rule twenty-four.' This rule throws light on the meaning of the nineteenth rule, and confirms the view that the latter rule means that the vessel having the other on her starboard shall yield the way or path to the other, and it further provides that the latter vessel not only may, but must, keep on her course, except as qualified by the twenty-fourth rule. That rule is as follows: '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.'

As we have seen, the Britannia fulfilled the duty imposed on her, by signaling that she would keep out of the way and pass to the stern of the Beaconsfield, by slackening her speed, and, finally, by stopping and reversing. Her only fault was in overlooking or disregarding the effect of the wind and tide, so that, when she endeavored to swing to the starboard, she was unable to do so with reasonable quickness.

But did not the Beaconsfield manifestly depart from and disobey rule 23 in not keeping her course, and thus avoiding collision? Her excuse, in application of rule 24, is that the Britannia, after having signaled that she was going astern, did not appear to be doing so, and that this erratic behavior justified the Beaconsfield in stopping and reversing. But, as already stated, the pilot of the Beaconsfield was well aware of the existence of the counter current against which the Britannia had to contend in changing her course to the starboard, and if we are obliged to impute fault to the Britannia, in not having foreseen and provided against that current, so we must likewise blame the Beaconsfield for overlooking the effect of such current in delaying the movement of the Britannia to the starboard. The course of the Britannia was precisely what might have been anticipated, after her first and only fault, and did not, in our judgment, warrant the Beaconsfield in disregarding the injunctions of the twenty-third rule, which, if obeyed, would have prevented the collision.

We think there was likewise fault in the action of the Beaconsfield in remaining motionless for a minute and half, in full view of the tardy motion of the Britannia in getting astern. This is sought to be excused by the fact that her pilot feared certain rocks, or a rocky bottom, which were not far from the place where his vessel was. The actual existence of such rocks or rocky bottom was somewhat in dispute; but accepting, as we do, the statement of the circuit court on the subject, we cannot sustain the conduct of the Beaconsfield. That statement is that 'a careful collocation of the testimony of those on both steamers and elsewhere, assisted by elaborate plotting on the chart, indicates that the probabilities are that the Britannia would have passed astern of the Beaconsfield if the latter had kept her headway, even though she straightened out sufficiently to clear the reef her pilot spoke of, but by a very small margin only.'

Stress is laid in the argument for the Beaconsfield, on the eleventh finding, that '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 way much longer under her port helm.'

But the exigency, as shown by the other findings, did not require that she should continue her way 'much longer.' Had she advanced 150 feet, the collision would not have taken place.

This alleged danger of running aground on the New York shore, if she continued her course, was not set up in the thrice-amended pleadings, and seems, as well as the suggestion that there were rocks, not shown on the charts, on the course the Beaconsfield was going, to have been an afterthought, by way of excuse, of the pilot of the Beaconsfield.

But allowing the finding to stand, it does not establish as a fact in the case that there was any real danger to the Beaconsfield in keeping on her course for the very short distance that would have avoided the collision. Nor was it necessary, as the findings show, that, in going on, the Beaconsfield should have approached any closer to the New York shore. There was plenty of time and room for her to have changed her course sufficiently to have avoided a nearer approach to the north shore.

As for the other excuse, advanced by the pilot of the Beaconsfield, that there were rocks ahead, as already stated, it was disposed of by the learned judge of the circuit court, who, when asked to affirmatively find that there was no reef of rocks about 1,500 feet from the Battery flag, or in that neighborhood, as testified to by the pilot of the Beaconsfield, refused on the stated ground that it was 'immaterial, as by findings already made the collision happened well inside of such point.'

The thirteenth finding, that 'shortly after the Beaconsfield began reversing the Britannia commenced to swing to starboard, a motion which was perceived on the Beaconsfield,' is important, and strengthens the case against her. Seeing the Britannia at last, however tardily, taking the direction which the rule and the exchanged signals required, it was misconduct in the Beaconsfield to continue reversing, and to finally remain motionless.

It cannot be reasonably held that the thirty-first finding was a finding of fact, obligatory upon this court. It is in these words: 'The conduct of those in charge of the Beaconsfield, as specifically set forth in the foregoing finding, does not warrant the inference that there was, on their part, negligence contributory to produce the collision.'

Of course, if this were a finding of fact, within the meaning of the rule, it would be conclusive of the case, and all the other findings would become mere surplusage. But it is evident that the learned judge did not intend it to be so regarded. It was plainly meant as an additional conclusion in law. He speaks of it as 'an inference from the foregoing finding.' Nor can we assent to the proposition that it is competent for the judge, who is to find the fact for this court, to shut us off from a consideration of the legal effect of the other facts found, by a conclusive finding that, in his opinion, a particular inference is or is not warranted by the facts so found.

Regarding, therefore, this finding as merely expressive of the learned judge's view of the legal conclusion that arose upon the facts as found, and giving reasonable effect to his findings of fact, we are unable to concur in his conclusion.

The disregard by the Beaconsfield of the Britannia's signal, her failure to obey the rule and keep her course, and her supine negligence in remaining motionless for so long a period, while she saw the Britannia approaching her, clearly put her in fault.

It is argued that the words 'shall keep her course' do not mean that she shall maintain her speed, and English cases are cited to the effect that the rule does not imply that the vessel shall maintain the same speed. If this is all that is meant in the cases cited, and we so read them, we have no reason to disagree with them, and they do not, in the slightest, degree, impugn our reasoning. But if the contention, is, and if those cases must be understood as holding, that a vessel whose duty it is to keep her course complies with that duty by reversing her engines and ceasing to Move at all, we are unable to concur in such a view. It is inconsistent with both the words and the sense of the rule. A vessel which voluntarily becomes motionless cannot properly be said to keep her course. The word 'course,' both from its etymology and the primary meaning given to it by lexicographers, signifies a running or moving forward,-a continuous progression or advance.

The collocation of the rule, and its direct references to rules 17, 19, 20, and 22, plainly point to the meaning that, while the other vessel must keep out of the way, the preferred vessel shall not interfere with or thwart the movements of such other vessel by bringing a new element into the calculation, which would be done if, instead of pursuing her course, she stopped her headway. It is not meant that some exigency or obvious danger might not justify her in checking her speed, and even in stopping altogether. But such a case is provided for in the twenty-fourth rule. As we have seen, no such exigency is found to have existed in the present case.

We are relieved from any force there may be in the suggestion that we ought to follow the construction supposed to have been put upon this rule by the English courts, in order that there should be no difference between the courts of the two countries in construing the same rule, by the act of August 19, 1890 (26 Stat. 327), which declares that the rule shall be read as follows: 'Where by any of these rule one of two vessels is to keep out of the way, the other shall keep her course and speed.' It, however, appears that this act awaits the proclamation of the president to become operative.

The case of The Northfield and The Hunter is applicable to the present question in regard to the management of the Beaconsfield. There, the Northfield, a Staten Island ferryboat, had left her slip to go west of Governor's island, and was swinging round from south to southwest. The Hunter was coming down the North river, and heading south to go down west of Governor's island. The vessels were therefore in similar positions in respect to each other as the vessels in the present case. The district court for the southern district of New York held, per Blatchford, J., as follows: 'Under the circumstances, the Northfield had the Hunter on her own starboard side, and it was the duty of the the Northfield, under the rule, to 'keep out of the way' of the Hunter. It was equally the duty of the Hunter 'to keep her course.' The Northfield ported her helm to a sufficient extent to enable her to pass safely under the stern of the Hunter. When, however, the Hunter was about three hundred yards distant from the Northfield, instead of keeping her course, she stopped her engines. It is quite clear that if the Hunter had not stopped at all, but had kept her course, the Northfield would have passed safely under the stern of the Hunter. The stopping by Hunter was the cause of the collision.' Disposing of the excuse set up by the Hunter for her stopping, that her navigator assumed that the Northfield was intending to pass ahead of the Hunter rather than astern of her, the learned judge said: 'In so assuming, they took the risk of being wrong in the assumption.' 4 Ben. 112, Fed. Cas. No. 10,326. This case was affirmed in the circuit court, and also in this court, in which this language was used: 'The officers of the tug perfectly understood that under the rule it was their duty to keep the tug on its course. The officers of each vessel had the right to assume that the other vessel would do its duty, and to make their course and keep their speed on that assumption.' 24 U.S. (Lawy. Ed.) 680, 681. In the case of He Elizabeth Jones, 112 U.S. 522, 5 Sup. Ct. 468, it was said: 'Conceding it to have been the duty of the Willis, under the rule, to keep out of the way of the Jones, it was equally the duty of the latter not to baffle or to prevent the efforts of the Willis to that end. Her departure from the rule that she should keep her course cannot be justified, because there were no special circumstances in such departure necessary in order to avoid immediate danger.'

In Belden v. Chase, 150 U.S. 699, 14 Sup. Ct. 264, it was said: 'It is a settled rule in this court that when a vessel has committed a positive breach of statute she must show not only that probably her fault did not contribute to the disaster, but that it could not have done so. Obedience to the rule is not a fault, even if a different course would have prevented the collision. * *  * Masters are bound to obey the rules and entitled to rely on the assumption that they will be obeyed, and should not be encouraged to treat the exceptions as subjects of solicitude rather than the rules.'

In Crockett v. The Isaac Newton, 18 How. 583, it was said by Mr. Justice Curits: 'It must be remembered that the general rule is for a sailing vessel metting a steamer to keep her course while the steamer take the necessary measures to avoid a collision; and though this rule should not be observed when the circumstances are such that it is apparent its observance must occasion a collision, while a departure from it will prevent one, yet it must be a strong case which puts the sailing vessel in the wrong for obeying the rule. But the duty of the steamer to port her helm and go to the starboard implies a correlative obligation of the ship to keep her course.' See, also, the Scotia, 14 Wall. 181.

'It is the duty of a steamer to keep out of the way of a sailing vessel when they are approaching in such directions as to involve a risk of collision. The correlative obligation rests upon the sailing vessel to keep her course, and the steamer may be mannaged upon the assumption that she will do so.' The Free State, 91 U.S. 200.

It is true that some of the cases just cited were cases wherein the vessel whose duty it was to keep her course was a sailing vessel, yet the principle involved is the same in the case of two steamships crossing, where it is the duty of the one who has the other on her starboard bow to keep out of the way of the other, and of the latter to keep on her course.

The conclusion reached is the same as that arrived at in the district court, and, accordingly, we reverse the three decrees, and remand the causes to the circuit court, with directions to enter decrees in accordance with this opinion, that both vessels were in fault, and the damages should be divided. Reversed.