Squires v. Parker , 42 C.C.A. 51 ( 1900 )

SEVERENS, Circuit Judge,

having stated the case as above, delivered the opinion of the court.

The. learned district judge did not file an opinion in disposing of this case, and we have not, therefore, the advantage of knowing on ■what .grounds he rested Ms decision. Upon an attentive review of the record, we are constrained to a different conclusion. By rulé 20, prescribed by section 4233 of the Revised Statutes, it is declared that “if two vessels, one of which is a sail vessél and the other a steam vessel, are proceeding in such directions as to involve risk, of collision, -the steam vessel shall keep out of the way of the sail vessel”; and by rule 23 that, when oné of two vessels is required to “keep out of her way, the other shall keep her course, subject to the qualifications of rule 24.” Where, as here, a collision has occurred in the ■condition stated, between a sail vessel and a steam vessel, and the sail vessel is shown to have kept her course, a presumption at once ■arises that it-resulted from the failure of the steamship to keep out of the way of the other. And this presumption must form the basis of the judgment, unless it shall be made clearly to appear that the ■.accident was inevitable. The following among many other cases will show how constantly this presumption has been upheld and enforced: The Carroll, 8 Wall. 302, 19 L. Ed. 392; The Fannie, 11 Wall. 238, 20 L. Ed. 114; The Scotia, 14 Wall. 170, 20 L. Ed. 822; Farr v. The Farnley (D. C.) 1 Fed. 631; The Hercules, Id. 925; The Badger State (D. C.) 8 Fed. 526; The Pennland (D. C.) 23 Fed. 551; The Seneca (D. C.) 47 Fed. 87.

. There does not appear to have been any fault on the part of the ■steamer directly contributing to the collision until the time when ■she touched bottom on the eastern side of the channel. Up to that time her purpose was to pass the schooner on her starboard hand, .and.her course, barring that she kept too near the edge of the channel, .seems' to have been correct, and according to her duty, and, if there liad been no radical departure from it, she would have passed fairly behind the schooner, and the accident would not have occurred. But at this time she took a sudden and inexplicable turn to starboard, and went directly across the bow of the schooner, and so brought on the collision, which was the probable result of her course. We say that the course of the steamer was inexplicable; for it was a,n unreasonable proceeding upon her own assumption that the schooner was intending to go up the river. She knew the duty of the schooner, and she saw that the latter was pursuing it, and there was fair opportunity for both to get on safely by proceeding in faithful observance of the rules. The water way was ample to the westward of the steamer’s course, even if the schooner had been intending to do what the steamer assumed. The blowing of the signal to pass the steamer by the port side was an invitation to danger. Besides, as was said in the case of MaGuire v. The Sylvan Glen (D. C.) 2 Fed. 905, 910, where there was a similar situation, “the steamer had no right to call on the sailing vessel to give way or to change her course.” It seems to us entirely clear that there was nothing in the circumstances approaching the character of an inevitable accident to relieve the steamer from blame. We concede that, as urged by counsel for the respondent, the governing rule is modified when the steamer cannot obey it without getting into serious peril and there is no other way to avoid it but to disregard the rule. The Marguerite (D. C.) 87 Fed. 953. But in such case it is obvious that the steamer is bound to resort to all other practicable means before she can be justified in violating the statutory regulation.

There is a suggestion in the brief of counsel for the appellees that the steamer was in a “crippled condition,” and that on that account there wTas a duty on the part of the schooner to accommodate herself to the condition of the steamer. But there is nothing in the proofs to lead one to the conclusion that the steamer was not entirely manageable, and certainly there is nothing to show that it was easier for her to run her erratic course than it would have been to have followed on down the channel under the stem of the schooner. We have referred to the fact that those on the steamer supposed the schooner was going up the river, and have considered how the case would stand if it were admitted that the steamer had the right to take that for granted. But it would not be permissible to concede that the steamer had the right to assume as a certain fact that such was the intention of the schooner. Such was not, in fact, her intention. She was endeavoring to get on her way in the other direction, and was taking appropriate measures to do so. That which she was intending to do was equally as consistent with her conduct as that which was imputed to her, and in such a situation it was the duty of the steamer to delay final action until a clear understanding of the intention of the schooner could be had. The Falcon, 19 Wall. 75, 22 L. Ed. 98; The Iron Chief, 22 U. S. App. 473, 11 C. C. A. 196, 63 Fed. 289.

It is further urged that, if the proposition made by the signal blast of the steamer was not acceptable to the schooner, she “should have displayed a danger signal (a torch).” But, as we have said, there was nothing in the circumstances to give the right to call the schooner from her course and duty, and it is more than doubtful if the acceptance of the proposition would not have been as full of danger as the adhering of the schooner to her course. Besides, all the conditions were evident, and the indications of peril, not only of the existing situation, but also of the course proposed, were as manifest as if the schooner had expressly declared it. Nor do we think that the giving of such a signal would have affected the conduct of the steamer. And in such circumstances there is no fault in omitting the super-serviceable act. The Hercules (D. C.) 1 Fed. 925; The Pennland (D. C.) 23 Fed. 551. These views lead to the conclusion that the decree of the district court should be reversed, with costs, and the case remanded, with directions to enter á decree for the libelant and án assessment of damages. It is so ordered.