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THE ALBERT DU MOIS.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH
Nos. 139, 272. Argued January 31, 1900. — Decided April 9, 1900.
In January, 1897, the navigation of the Mississippi River below New Orleans
was governed by the rules and regulations of 1864, (Rev. Stat. sec. 4233) and also by the supervising inspectors' rules for Atlantic and Pacific in
land waters. A steamer ascending the Mississippi within 500 feet of the eastern bank,
made both colored lights of a descending steamer, approaching her "end on, or nearly end on." She blew her a signal of two whistles and starboarded her wheel. Held: That she was in fault for so doing, and that this was the primary cause for the collision which followed. Held also: That the fact the descending steamer seemed to be nearer the eastern bank and that her lights were confused with the lights of other vessels moored to that bank, was not a “special circumstance” within the meaning of Rule 24, rendering a departure from Rule 18 necessary “to avoid immediate danger,” since if there were any danger at all, it was not an immediate one, or one which could not have been provided against by easing
the engines and slackening speed. Exceptions to general rules of navigation are admitted with reluctance on
the part of courts, and only when an adherence to such rules must almost
necessarily result in a collision. The descending steamer, running at a speed of twenty mile: an hour, made
the white and red lights of the Dumois, the ascending steamer, upon her port bow, and blew her a signal of one whistle to which the Dumois responded with a signal of two whistles, starboarded her helm, shut in her red and exhibited her green light. Held : That the descending steamer, the Argo, in view of her great speed, should at once upon observing the faulty movement of the Dumois, have stopped and reversed, and that her failure to do so was a fault contributing to the collision; and that the
damages should be divided. While a steamer may be so built as to attain the utmost possible speed,
she ought also to be provided with such means of stopping or changing her course as are commensurate with her great speed, and the very fact of her being so fast and apparently uncontrollable is additional reason
for greater-caution in her navigation. The nineteenth rule, which declares that the vessel which has the other on
her own starboard side shall keep out of the way of the other," does not absolve the preferred vessel from the duty of stopping and reversing, in case of a faulty movement on the part of the other vessel.
Statement of the Case.
The representatives of two passengers on the descending steamer who lost
their lives, filed a libel against the owner of the ascending steamer for damages, and recovered. Held: That as both vessels were in fault, one half of such damages should be deducted from the amount recovered from the Dumois, notwithstanding that the local law gave no lien or privilege
upon the vessel itself. The limited liability act applies to cases of personal injury and death, as
well as to those of loss of, or injury to, property.
This was a libel in admiralty filed by Oscar M. Springer, owner of the steamer Argo, a small vessel of forty-eight tons burthen, against the steamship Albert Dumois, to recover damages sustained by a collision between these two vessels in the early morning of January 28, 1897, in the Mississippi River, about eighty iniles below the city of New Orleans. An intervening libel was also filed against the Dumois by the crew of the Argo, to recover the value of their clothing lost by the collision.
Upon the seizure of the Dumois, one Anders Jakobsen, of Christiana, Norway, appeared as claimant and owner, and on February 3, 1897, filed a petition for a limitation of liability, in which he also denied any negligence on behalf of the Dumois. Upon the same day, Marie B. Bourgeois de Blesine, mother of Faure de Blesine, a passenger on board the Argo, filed a libel in personam against Jakobsen, claiming damages for the death of her son through the negligence of the Dumois. Her suit was thereupon consolidated with that of Springer, and treated as a petition against the stipulation given for the release of the steamer under the proceedings for a limitation of liability. Upon the appraisement of the Albert Dumois at the sum of $30,000, and pending freight at the sum of $1333.75, and the filing of a stipulation to pay these sums into court, an order was issued enjoining further proceedings against the steamship and her owner, and directing all persons claiming damages by reason of the collision to appear before a commissioner and make proof thereof.
On May 5, 1897, Genevieve Keplinger Hester, widow of Harrison P. IIester, a passenger on the Argo, and natural tutrix of his minor child, filed an intervening petition under the limited liability proceedings, claiming damages for the death of her
Statement of the Case.
husband, and alleging that the same was caused solely through the fault of the Dumois.
Thereafter, on December 16, 1897, Springer, as the owner of the Argo, filed a surrender of his vessel and pending charter money to the intervening claimants against the Dumois, and prayed for relief under the limited liability act.
The case of the Argo as set forth in her libel, and answer to the petition of the owner of the Dumois for a limitation of liability, was this: On January 27, 1897, at seven o'clock in the evening, the Argo started from the port of New Orleans on a trip to the jetties at the mouth of the Mississippi River. Upon the following morning, about 12.40 A. M., while proceeding down the middle of the river, at or near Oyster Bayou, the master noticed the white and red lights of a steamer coming up stream about 500 feet from the east bank and immediately gave a signal of one blast of his whistle, signifying that he would turn to starboard and pass on the port side of the approaching steamer, to which the latter responded with two blasts of her whistle, and began crossing the river, shutting out her red and showing her green light. Thereupon the Argo promptly responded with one blast of her whistle, still claiming her right to pass on the port side of the approaching steamer, and put her helm hard-aport to clear the Dumois, as she had the right to do, and as in the judgment of her master it was best for her to do. Whereupon the Dumois continued her course across the river and blew a danger signal of three blasts of her whistle, but too late to avoid a collision, the Argo striking the Dumois while she was crossing the Argo's bow about eight feet abaft her stem, causing the Argo to fill with water and sink about four minutes thereafter, whereby she was totally lost and two of her passengers were drowned.
The case of the Dumois was that, while proceeding up the Mississippi River, about half-past twelve at night, on a voyage from Port Limon, Costa Rica, to New Orleans, with her full complement of officers and seamen, she had reached a point in the Mississippi River, about eighty miles below the city of New Orleans, and was proceeding up the river as close to the east bank as it was safe for her to do, at a moderate speed of about
Statement of the Case.
nine miles an hour, when her watch discovered the lights of a steamer coming down the river close to the east bank, nearly “head and head," but somewhat upon the starboard bow of the Dumois; that the Dumois, before any signal was given by the approaching steamer, gave two clear and distinct blasts of her steam whistle, indicating that she desired to pass the Argo to the left, starboard to starboard, and at the same time her wheel was put to starboard. In answer, the Argo wrongfully responded to this signal with one blast of her whistle. Thereupon the pilot of the Dumois, fearing that the Argo had misunderstood his signal, immediately repeated it, and at once caused three or more short blasts of her whistle to be given in quick succession, to indicate danger, and at the same time stopped and backed her engines; but the Argo neglected to stop and back, and kept her course and speed until her pilot saw the green or starboard light of the Dumois, when he attempted to pass her by putting his wheel hard-a-port, which brought the Argo in collision with the steamship, striking her at right angles on the starboard side, about ten feet abaft the stem, from which collision the Argo sank and became a total loss.
Upon a hearing upon pleadings and proofs the District Court announced in an oral opinion its conclusion that the collision was caused solely by the fault of the Dumois, and awarded the libellant Springer $11,000 for the loss of the Argo; to Mrs. Hester, $5000; to Mrs. de Blesine, $2500, and to the crew of the Argo the respective sums claimed by them.
From this decree the owner of the Dumois appealed to the Circuit Court of Appeals, assigning in substance as error that the collision was caused through the sole fault of the Argo, and that the amount awarded was excessive. An appeal was also taken by Springer, claiming that the amount awarded him as the value of the Argo was too small; but no appeal was taken by the intervening libellants.
The Circuit Court of Appeals reversed the decree of the District Court, holding that both vessels were in fault for the collision, and that as between the owners of the steamships the damages should be divided. It further increased the allowance of damages to Springer to $15,000, and assessed those sustained
Opinion of the Court.
by the Dumois at $185. It was further decreed that Springer recover $7,500 of the Dumois and her bondsmen, subject to a credit of one half of the damages of the Dumois, and one half of the amounts decreed in favor of Mrs. Hester and Mrs. de Blesine, leaving a balance due upon this decree in favor of Springer of $3657.50, for which he was awarded execution. 59 U. S. App. 108. Both parties filed petitions for rehearing, which were denied.
Whereupon both parties applied for and were granted writs of certiora ri from this court.
Mr. Richard De Gray and Mr. Timothy E. Tarsney for Springer.
Mr. Wilhelmus Mynderse for the Albert Dumois.
Mr. John D. Rouse and Mr. William Grant filed a brief on behalf of Jakobsen.
Mr. George Denègre, Mr. J. P. Blair and Mr. Walter D. Denègre filed a brief on behalf of Mrs. Hester.
Mr. JUSTICE Brown, after stating the case as above, delivered the opinion of the court.
This collision occurred in January, 1897, in the Mississippi River about eighty miles below New Orleans, and the steamers in their signals and manoeuvers were governed by the original rules and regulations of the act of 1864, reproduced in Rev. Stat. $ 4233. A brief review of the numerous acts subsequent thereto upon the same subject will show that the act of 1864 continued in force upon the Mississippi River at the time of this collision.
1. The original act, now known as Rev. Stat. sec. 4233, was adopted from the British Orders in Council of 1863, was made of general application “in the navigation of vessels of the Navy and of the mercantile marine of the United States," and was supplemented by secs. 4412 and 4413, giving the board of supervising inspectors power to “establish such regulations to be