Opinion of the Court. the part of the courts, and only when an adherence to such rules must almost necessarily result in a collision--such, for instance, as a manifestly wrong manoeuver on the part of an approaching vessel. Belden v. Chase, 150 U. S. 674, 699; The Britannia, 153 U. S. 130; The Test, 5 Notes of Cases, 276; The Superior, 6 Notes of Cases, 607; The Khedive, 5 App. Cases, 876; The Benares, 9 Prob. Div. 16; Marsden on Collisions, 480. As was said in The John Buddle, 5 Notes of Cases, 387: "All rules are framed for the benefit of ships navigating the seas, and, no doubt, circumstances will arise in which it would be perfect folly to attempt to carry into execution every rule, however wisely framed. It is, at the same time, of the greatest possible importance to adhere as closely as possible to established rules, and never to allow a deviation from them unless the circumstances which are alleged to have rendered such a deviation necessary, are most distinctly approved and established; otherwise, vessels would always be in doubt and doing wrong." The case of The Concordia, L. R. 1 Ad. & Ecc. 93, resembles much the instant case in this particular. That was a collision between two steam vessels meeting nearly end on in the river Thames. Defendants alleged that the helm of their vessel was put to starboard to avoid a barge. It was held that the burden of proof that a departure from the rule, which required both steamers to port, was necessary in order to avoid immediate danger, rested upon the defendants, and that in the absence of sufficient evidence to show what became of the barge, the defendants had failed in their proof, and were therefore in fault for the collision, the result of not porting their helm. See also The Agra, L. R. 1 P. C. 501. Manifestly the Argo had a right to rely upon the Dumois pursuing the usual course of putting her helm to port, and her failure to do so was likely to raise a doubt on the part of the Argo as to her own duty, and to bring about the collision it was designed to avoid. If, as insisted by the crew of the Argo, the Dumois was nearer to the east bank than the descending steamer, and exhibited to the latter her white and red lights only, the fault of the Dumois in starboarding and crossing the course of the Argo becomes still more manifest. The fact put Opinion of the Court. forward by the pilot of the Dumois, that the Argo seemed so close to the luggers that she appeared to be one of them, (although contradicted by the testimony of the libellant that the Argo was in the middle of the river,) was one which undoubtedly called for caution on the part of the Dumois, but it did not involve an immediate danger which justified a departure from the general rule. 4. The Argo, a vessel of forty-eight tons burthen, 101 feet in length and drawing six feet of water, had been chartered by some representatives of the press to meet, at the mouth of the river, a Congressional committee sent to inspect the jetties, and to report the proceedings of the committee. According to her inspection certificate the Argo should have had one pilot, one engineer and a crew of five men, but as they were in great haste to get away, Messrs. Hester, Lindauer and Blesine, newspaper correspondents, all of whom were said to be familiar with the management of water craft, agreed to enroll themselves as part of the crew, and if necessary to lend a hand. Their assistance does not seem to have been of any great value, as they all "turned in" immediately upon coming on board. The Argo left New Orleans about seven o'clock in the evening, having on board a master, who also served as pilot, an engineer, a fireman, one deck hand and a steward, who also served as cook, besides the newspaper correspondents. She took her course down the river at a speed of about twenty miles an hour, and at the time of making the lights of the Dumois was either in the middle of the river or between that and the east bank. There was conflict of evidence upon her exact location, but in the view we have taken of the case it does not become necessary to determine this with accuracy. Her testimony indicates that she made the white and red lights of the Dumois upon her port bow, and blew her a signal of one whistle; that the Dumois responded with a signal of two whistles, starboarded her helm, shut in her red and exhibited her green light, and took her course across the path of the Argo. The Argo again blew her a signal of one whistle, to which the Dumois again responded with two, followed it with a danger signal, and the Argo, still maintaining her great speed, put her wheel hard-a-port, struck Opinion of the Court. the Dumois upon her starboard bow, and was herself almost immediately sunk by the force of the impact. The master of the Argo excuses his failure to stop and reverse, which it was his duty to do as soon as he saw the wrong manoeuver of the Dumois, by the fact that the starboarding of the Dumois put him in a position in which he was obliged to decide instantly what ought to be done; that, in the exercise of his best judgment, he determined to put his helm hard-a-port, and endeavor to cross the bows of the Dumois; and that, if he made a mistake in this particular, it was an error in extremis, for which the Argo is not responsible. The argument is undoubtedly entitled to great weight, but we think the real error was not committed in extremis. The theory of the Argo is that she was coming down the middle of the river, and that she made the Dumois on her port bow exhibiting a red light. She was running herself at twenty miles an hour, with the added force of the current. The Dumois was running against the current at the rate of nine miles an hour. That the Dumois must have starboarded and shown her green light some time before the Argo ported, is evident from the place of the collision, which was to the westward of the middle of the river, and, upon the theory of the Argo, was near the westerly bank. As the Dumois was within five hundred feet of the easterly bank when she starboarded,--the river at that point being about 2500 feet wide, she must have run under her starboard helm about a quarter of a mile before reaching the point of collision. Now, if the Argo had promptly ported as soon as she heard the crosssignal or observed the starboarding of the Dumois, she would inevitably have passed the point of intersection before the 'Dumois reached it. The fault of the Argo was not in the hard-aport order when the collision was inevitable, but in failing to stop and reverse at once as soon as she noticed the starboarding of the Dumois. The testimony from the Dumois indicates that she blew her first whistle and starboarded as soon as the Argo's lights were seen, and that if the Argo had starboarded and reversed, the collision would not have occurred. The truth seems to be that the Argo did not port when giving her first signal, but waited for some time, and then put her helm hard-a-port, but too late to be of any avail. Opinion of the Court. The testimony indicates that the Argo is chargeable with an infraction of the third rule of the supervising inspectors in failing to stop and reverse after receiving the cross-signals from the Dumois. This rule requires that "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 repeated 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 steerageway until the proper signals are given, answered and understood, or until the vessels shall have passed each other. Vessels approaching each other from opposite directions are forbidden to use what has become technically known among pilots as 'cross-signals,'-that is, answering one whistle with two, and two whistles with one. In all cases, and under all circumstances, a pilot receiving either of the whistle signals provided in rules, which for any reason he deems injudicious to comply with, instead of answering with a cross-signal, must at once observe the provisions of this rule." The master also seeks to excuse himself by alleging that the Argo was so constructed that her headway could not have been stopped in time to be of any service. This may be true, and yet the Dumois should not be held responsible for the faulty construction of the Argo in this particular. 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 an additional reason for the greater caution in her navigation. Her increase of speed should have been obtained with as little increase of risk to other vessels as was possible, and if any precautions in that direction were neglected, it was a fault for which she alone ought to be called upon to respond. This court has repeatedly held the fault, and even the gross fault of one vessel, does not absolve the other from the use of such precautions as good judgment and accomplished seamanship require. The Opinion of the Court. Maria Martin, 12 Wall. 31; The America, 92 U. S. 432; The Lucille, 15 Wall. 676; The Sunnyside, 91 U. S. 208. But counsel for the Argo also insists that, as the two vessels, from the moment the Argo ported and the Dumois starboarded, were upon crossing courses, 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," applied, and that the Dumois should have ported, and the Argo was bound, under the case of The Britannia, 153 U. S. 130, to keep her course and speed. We are reluctant, however, to say that, where two vessels are meeting end on or nearly end on, under the 18th rule, the faulty movement of starboarding by one absolves the other from the obligation of Rule 21, which requires 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." It In the case of The Britannia, the decision of the court that of two crossing steamers the preferred vessel should have kept her course and speed, was put upon the ground that the course of the Britannia, the obligated vessel, was precisely what might have been anticipated, and did not warrant the Beaconsfield, the preferred vessel, in disregarding the injunctions of the twenty-third rule, which required her to keep her course. was intimated that a different conclusion might have been reached if it had appeared that the Britannia was herself violating a rule of navigation. Now, as it appears from the testimony of the Argo's crew that they not only heard the signal of two whistles from the Dumois, but saw her turn under her starboard wheel, and exhibit her green light when she should have ported, they were at once apprised of the fact that she was violating a rule of navigation, and that prompt action was required to avoid a collision. The fact that the Argo was short handed and was also running without a proper lookout, though not decisive of a fault contributing to the collision, may be taken into consideration as bearing upon the probabilities of the case, and raising a presumption against her. We are of opinion that the Dumois was primarily in fault |