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heard but one such signal, just preceding the danger blasts.

The Plymothian came practically to a standstill before the collision, with buoy No. 7 close under her starboard bow; but the Victory came on, and struck the Plymothian's port side at the bridge, at an angle variously estimated at from 45 to 60 degrees, penetrating about 15 inches into the ship, through her three steel decks, stringer plates, and beams. The force of the blow threw the Plymothian's head around to the starboard, so that buoy No. 7, which, prior to the collision, had been under her starboard bow, was seen to come around in front of her stem, to her port bow.

The Plymothian rapidly filled with water, and, to prevent her sinking in the channel, her engines were put at full speed ahead, until she grounded on the mud flats to the eastward of the channel, where she sank in shallow water. She was subsequently raised, repaired temporarily at Newport News, and finally in England, on the completion of the voyage. Victory was able to proceed to Norfolk. was also temporarily repaired at Newport News, and finally in England.

The She

Of the cargo of 3,682 bales of cotton shipped on the Plymothian at Galveston, 1,671 bales were shipped under bills of lading containing the provisions, among others, that the vessel should not be liable for loss or damage occasioned by collisions or other accidents of navigation, even though occasioned by negligence, and that the contract should be governed "by the law of the flag of the vessel carrying the goods."

The other 2,011 bales were shipped from interior points under bills of lading given by the inland carrier to the shipper. On reaching Galveston this cotton was delivered to the Plymothian, which issued bills of lading or receipts to the inland carrier, containing the negligence and flag clauses. The bills of lading given by the inland carriers had the negligence, but not the flag, clause.

Floyd Hughes and J. Parker Kirlin, for the Plymothian. Robert M. Hughes, for the Victory. Wilhelmus Mynderse, for Insurance Cos.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The district court and the circuit court of appeals concurred in finding the Victory grossly in fault, and we see no reason for arriving at any other conclusion. In our opinion, the collision was the direct consequence of the Victory's disregard of the rule of the road, and her reckless navigation.

In any aspect of the case, the rule of the road was to keep to the right.

By rule 18 of the regulations prescribed by the act of April 29, 1864, carried forward in section 4233 of the Revised Statutes, "if two vessels under steam are meeting end on, or nearly end on, so as to involve risk of collision,

the helms of both shall be put to port, so that each may pass on the port side of the other." The first rule of the supervising inspectors is to the same effect.1

And this was proven to be the usage in the navigation of the Elizabeth river, and known to the master of the Victory.

These vessels were approaching each other in such directions and with such bearings as required them to keep to the right. The distance between Craney Island light and buoy No. 9 was about a mile and one-eighth. When the Plymothian was at buoy No. 9, the Victory was somewhat to the north of, or near, Craney Island. As the Plymothian straightened down the channel, opposite buoy 9, she was near the eastern side, and heading straight down the channel course N. 4 or 11⁄2 E. She was obliged to swing, on leaving the pier, to round the buoy, but had steadied down as she passed it. The evidence thoroughly established that she was never on the westerly side of the channel. We think the district judge was amply justified in finding as he did that the Plymothian had not, "in coming out from Lambert's pier, gone over to the west of the channel, near to red buoy No. 22, and had not, after doing so, recrossed the chan

1 "Rule 1. When steamers are approaching each other 'head and head' or nearly so, it shall be the duty of each steamer to pass to the right or port side of the other; and the pilot of either steamer may be first in determining to pursue this course and thereupon shall give as a signal of his intention one short and distinct blast of his steam whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam whistle, and thereupon such steamers shall pass to the right or port side of each other; but if the course of such steamers is so far on the starboard of each other as not to be considered by pilots as meeting head and head' or nearly so, the pilot so first deciding shall immediately give two short and distinct blasts of his steam whistle, which the pilot of the other steamer shall answer promptly by two similar blasts of his steam whistle, and they shall pass on the left or on the starboard side of each other.

"Note. In the night, steamers will be considered meeting head and head so long as both the colored lights on each are in view of the other.

"Second Situation. Here the green light only will be visible to each, the screens preventing the red light from being seen. They are therefore passing to starboard, which is rulable in this situation, each pilot having previously signified his intention by two blasts of the steam whistle.

"Rule 2. When steamers are approaching each other in an oblique direction (as shown in diagram of the fourth situation), they shall pass to the right of each other, as if meeting head and head or nearly so, and the signals by whistles shall be given and answered promptly as in that case specified.

"Rule 3. If when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam whistle; and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerage-way until the proper signals are given, answered and understood, or unt the vessels shall have passed each other."

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nel to reach its position near buoy 9, as claimed by the Victory's counsel. The tide was not strong enough to force her over there, and it would have been out of her course to have gone there. The testimony is conclusive to that effect."

The Victory, when in the neighborhood of Craney Island, was either in midchannel, or to the westward of it, and on the Plymothian's port bow. The Victory's witnesses admitted starboarding twice for different schooners, and hard starboarding just before the collision; but both of the lower courts, in accordance with the great weight of evidence, found that the Victory was not prevented by other vessels in the channel, either from going on the westerly side, or from staying there, while the testimony of the Victory's pilot indicated that his object in heading over for the easterly side of the channel was to cut off some of the distance into port, by passing close to buoys Nos. 7 and 9.

Moreover, as immediately after straightening down the Plymothian ported a little, and then hard ported, even if the Victory had been heading at a gradual angle across the channel all the way from Craney Island, the vessels would have been approaching each other from an oblique direction, which would have brought the inspectors' second rule into play, that vessels so situated "shall pass to the right of each other as if head and head, or nearly so."

The starboard-hand rule had no application. Although, when the Plymothian started from the pier, her starboard side must necessarily have been down stream as she turned, the vessels were never starboard to starboard after she had rounded buoy 9 and straightened down the channel, and the Victory had passed Craney Island and straightened up S. 1⁄2 W. Indeed, the rule applicable when two vessels "are crossing so as to involve risk of collision," that "the vessel which has the other on her own starboard side shall keep out of the way," is ordinarily inapplicable to vessels coming around bends in channels, which may at times bring one vessel on the starboard of the other. It has often been held, as a general rule of navigation, that vessels approaching each other in narrow channels, or where their courses diverge as much as 12 or 2 points, are bound to keep to port, and pass to the right, whatever the occasional effect of the sinuosities of the channel. Transportation Co. v. Navigation Co., 22 How. 461; Union S. S. Co. v. New York S. S. Co., 24 How. 307; The Vanderbilt, 6 Wall. 225; The Johnson, 9 Wall. 146; The John S. Hasbrouck, 93 U. S. 405; The Berkshire, 33 U. S. App. 531, 540, 21 C. C. A. 169, and 74 Fed. 906.

It is interesting to note that Union Steamship Co. v. New York Steamship Co. was a case of collision in the channel of the Elizabeth river, where the steamship Jamestown, outward bound, took the eastern side of the channel, rounding *Lambert's point near the buoy, and proceeded on her course N. 4 E.

She was struck by the Pennsylvania, coming up, by reason of the Pennsylvania putting her helm to starboard, instead of keeping her proper course, or porting when it became known that the Jamestown was approaching; and it was held that the Pennsylvania was solely to blame.

The principle was embodied in article 21 of the international regulations adopted by the act of March 3, 1885 (23 Stat. 438, c. 354), providing that "in narrow channels every steamship shall, when it is safe and practicable, keep to that side of the fairway or midchannel, which lies on the starboard side of such ship," which is article 25 of the regulations adopted August 19, 1890 (26 Stat. 320, c. 802), and put in operation, after some postponements and amendments, in 1897 (29 Stat. 885, 893), and of the act of June 7, 1897 (30 Stat. 96, c. 4).

In The Pekin (1897) App. Cas. 532, articles 21 and 22 of these regulations were considered. Article 21 is given above, and article 22 read as follows: "Where by the above rules one of two ships is to keep out of the way, the other shall keep her course."

That was an appeal from the decision of the supreme court for China and Japan, sitting in admiralty, in which the steamship Normandie was alone held to blame for a collision which took place between her and the steamship Pekin in the river Whangpoo on April 3, 1896. The case was thus stated by Sir Francis Jeune, delivering judgment in the privy council: "At Pootung point the Whangpoo makes a sharp bend towards the south, returning, indeed, on its course, at something more than a right angle; and to the eastwards of that point the stream is divided by a line of buoys into two navigable channels,-the northern being called the inside, and the southern the outside, channel. The westernmost of these buoys is known as the 'Old Dock Buoy.' The Pekin was proceeding up the inside channel along the line of buoys (that is to say, on the starboard side of that channel), and the Normandie was coming down the river to the southward of midchannel. It is clear that when near the Old* Dock buoy the Pekin ported, and that at or about the same time the Normandie starboarded. The Normandie afterwards endeavored to port, but her helm failed to act owing to what is termed the 'Chow Chow' water, which is, it would appear, a well-known area of eddies or whirlpools off Pootung point. The result was that a colision occurred well to the north of the river, and somewhat to the eastward of Pootung point; the stem of the Normandie striking the port bow of the Pekin.

"The evidence is not clear as to the whistles given by the two vessels. The learned chief justice of the supreme court has found that, 'at the same time two blasts of the Normandie's whistle were blown as a signal to the Pekin, those on board the Pekin simultaneously blew one blast of her whistle.' Those on the Pekin dispute the double blast

of the Normandie; but their lordships think that, accepting, as they do, the above finding as correct, it may well be that one of the two whistles of the Normandie coincided with the one whistle of the Pekin, and so those on the Pekin heard only one whistle from the Normandie, and believed that only one was given."

The appeal raised the question of the conduct of both vessels. The Normandie was held manifestly in fault. As to the conduct of the Pekin, two charges were insisted on by counsel; and, after setting them forth, the opinion thus proceeded: "The first of these charges raises the question, were those two vessels crossing vessels, within the meaning of article 22, and also the further question, whether the Pekin kept her course. The effect of article 22 has been made clear by several authorities. The cases of The Velocity, L. R. 3 P. C. 44, The Ranger, L. R. 4 P. C. 519, and The Oceano, 3 Prob. Div. 60, have explained and illustrated the distinction which exists in the effect of this rule as regards vessels navigating the open sea, and those passing along the winding channels of rivers. The crossing referred to in article 22 is 'crossing so as to involve risk of collision'; and it is obvious that while two vessels, in certain positions and at certain distances, in regard to each other, in the open sea, may be crossing so as to involve risk of collision, it would be completely mistaken to take the same view of two vessels in the same positions and distances in the reaches of a winding river. The reason, of course, is that the vessels must follow, and must be known to intend to follow, the curves of the river bank. But vessels may, no doubt, be crossing vessels, within article 22, in a river. It depends on their presumable courses. If at any time two vessels, not end on, are seen, keeping the courses to be expected with regard to them, respectively, to be likely to arrive at the same point at or nearly at the same moment, they are vessels crossing, so as to involve risk of collision; but they are not so crossing if the course which is reasonably to be attributed to either vessel would keep her clear of the other. The question, therefore, always turns on the reasonable inference to be drawn as to a vessel's future course from her position at a particular moment, and this greatly depends on the nature of the locality where she is at that moment.

"Their lordships have restated these propositions because they appear to them decisive of this part of the present case. They are advised by their assessors, and it appears to them clear, that, having regard to the features of the locality at the time the Pekin ported her helm (that is to say, when she was near the Old Dock buoy), the vessels were not crossing vessels, within the meaning of article 22. It was reasonable for those on the Pekin-as, without fault on their part, they did not hear the double blast of the Normandie before they took action

with their helm-to assume that the Nor mandie would take the outside channel, in which case their courses would not cross, or would take the southern side of the inside channel, in which case their courses would indeed cross, but not so as to involve risk of collision."

We ought to add that in the case before us, even if the steamers had been so far on the starboard of each other as to justify the pilots in considering that they were not meeting "head and head," or nearly so, there was no pretense of an agreement to go starboard to starboard, under inspectors' rule 1; nor was this a case for the application of rule 3.

Testing the Victory's conduct by settled rules, she was* plainly in fault for not keeping to the right, and in attempting to cross the Plymothian's course, and her speed renders her conduct still more blameworthy. It does not seem to be controverted that at the time of leaving the lighthouse her speed was 51⁄2 knots through the water, and there was a tide force of 2 knots, which would make 71⁄2 knots over the ground. The circuit court of appeals found that, from Craney Island up, her speed through the water was 6 or 7 miles an hour, with a 2-mile tide assisting her, which would make her speed over the bottom 8 or 9 miles. Certainly she must be held to have known that she was approaching the Plymothian so as to involve the risk of collision, and should have slackened her speed, under rule 21, and have stopped and reversed sooner than she did, when she was informed by sight and hearing that her ef fort to crowd the Plymothian off her rightful course must be unsuccessful.

If she could not port and keep on her own side, she should have reversed at least as early as when her second two-blast signal was blown and not assented to by the Plymothian, yet it was the Plymothian that immediately reversed on hearing that signal, and blew three danger signals, while the Victory did not blow her danger signals until after that, and manifestly did not reverse as early as the Plymothian. At the collision the Plymothian's headway had been stopped, but the Victory had such headway on that she threw the Plymothian's bows around to starboard, while her own bows cut through the Plymothian's three decks and stringer plates, a distance of at least 15 inches, and were damaged as far back as 3 feet.

None of the excuses the Victory set up for being on the wrong side of the channel tended to palliate her guilt. The only time at which the Plymothian could have been on the Victory's starboard bow was when the Victory was below Craney Island, and she was bound to govern herself by the bearings of the vessels as they were after she straightened up the channel course from Craney Island south, and then the vessels were port to port. The Victory met a few steamers, but her captain and pilot admitted that they did not force the Victory out of her course; and they were passed near Craney

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Island, or the lighthouse, or far below the place of collision. So there were two or three schooners in the channel, but both the courts below found that they did not prevent the Victory from doing her duty by porting and keeping to the right, and her presence near them at all was attributable to her having left the western side of the channel.

We need not elaborate, in view of the concurrence of the courts below, and have gone so far into the evidence on this branch of the case because it illustrates the point on which those courts were at variance.

As between these vessels, the fault of the Victory being obvious and inexcusable, the evidence to establish fault on the part of the Plymothian must be clear and convincing, in order to make a case for apportionment. The burden of proof is upon each vessel to establish fault on the part of the other.

The recognized doctrine is thus stated by Mr. Justice Brown in The Umbria, 166 U. S. 404, 409, 17 Sup. Ct. 610: "Indeed, so gross was the fault of the Umbria in this connection that we should unhesitatingly apply the rule laid down in The City of New York, 147 U. S. 72, 85, 13 Sup. Ct. 211, and The Ludvig Holberg, 157 U. S. 60, 71, 15 Sup. Ct. 477, that any doubts regarding the management of the other vessel, or the contribution of her faults, if any, to the collision, should be resolved in her favor."

"Collision" was an exception in all the bills of lading, and, laying out of view the "negligence" and "flag" clauses, as the damage was occasioned by collision, and within the exception, it rested upon the underwriters in this case to defeat the operation of the exception by proof of such negligence on the part of the Plymothian as would justify a decree against her if sued alone. Clark v. Barnwell, 12 How. 272, 280; Transportation Co. v. Downer, 11 Wall. 129; The City of Hartford and The Unit, 97 U. S. 323, 325; The Ludvig Holberg, 157 U. S. 60, 15 Sup. Ct. 477.

Apparently, it is a hardship for the underwriters on the Plymothian's cargo to be compelled to bear a portion of their own loss; but, if the Plymothian was free from fault, this is merely the result of the limitation of liability acts, the value of the Victory not being sufficient to pay the entire damages sustained.

The circuit court of appeals and the district court arrived at different conclusions in respect of the Plymothian's entire freedom from fault. The district court held that the Plymothian was without blame, while the circuit court of appeals was of opinion that she was not wholly blameless, because she kept her course "without taking any precaution whatever until too late, and when the pending collision became inevitable." Whether she may not have been slightly in fault, may be a close question. This is often so. when subsequent knowledge of what might have prevented disaster tends to qualify the

inquiry as to the prior duty to avert it. But, after all, the question is, as pointed out by Mr. Justice McLean in Williamson v. Barrett, 13 How. 101, whether it was the duty of the master, in the exercise of due care and caution in the management of his vessel, to give a particular order. And, on a careful consideration of the evidence, we think that the Plymothian was not bound to change her course, or to stop and reverse earlier than she did, and these are the only elements of fault imputed to her.

Were the position and course and signals of the Victory such that the Plymothian was bound to change her course, or to stop and reverse sooner than she did?

The Plymothian, in passing the buoy, straightened down the channel course, on the easterly side. The only change she made after straightening down was by porting her helm, which put her closer to the easterly edge of the channel at the time of the collision. She left her pier at 4 o'clock p. m., under half speed, until she rounded the buoy, when the engines were put full speed ahead, 767 yards from the point of collision. The full speed of the Plymothian was 7 knots. The tide was running against her with a force of 2 knots. She had her engines at full speed against the tide perhaps 5 minutes, and both the courts below found her speed over the ground was about 4 miles an hour. The Victory blew two double-blast signals and a three-blast signal before the collision.* The evidence of her crew was that the two-blast signals were sounded within a half a minute or a minute of each other, when the steamer was halfway between Craney Island and buoy No. 7, and that the three blasts followed a minute or so later. The Plymothian heard only one two-blast signal and the threeblast signal at that time, as appeared from disinterested evidence on both sides. None of these independent witnesses heard two double blasts and a three-blast signal from the Victory in short succession. All of them who saw or heard the first two blasts testified that that signal was blown when the Victory was to the north of or about Craney Island. And in her petition for limitation of liability the Victory claimed to have blown that signal "soon after passing Craney Island light," and placed the Plymothian at that time as "apparently starting down the river from opposite Lambert's point." But if she blew two blasts twice, where her captain and pilot said she did, they were blown close together. The Plymothian's evidence showed that she heard but one, and, if the Victory blew two blasts twice within such a short interval as she claims, it would seem that one of them overlapped the whistle from the Plymothian, or it may be that the last two blasts were overlapped by the Plymothian's danger signal.

The evidence largely preponderates that only one signal of two blasts and the signal of three blasts could be heard in the neigh

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