answered, the omission to do so is not negligence, unless such failure contributed to the resulting collision; and that it did not must be shown by the vessel failing to answer; the rule of law being that, when a vessel has violated a known rule of navigation, and that violation of duty may have contributed to the disaster, the burden of proof is on her to show that such violation did not contribute to the collision.1 A steamer cannot escape responsibility by merely showing that the other did not respect her signals as required by the rules, she must show that she herself acted prudently, and took such measures as the law requires to avoid the collision. Instead of affording the signaling vessel any excuse for its own want of care, that its signals were not answered, this fact calls for special caution on its part,3 reason of her answer to the signals of an approaching vessel, to suspend the business in which she is engaged, and proceed in either direction. Such response is only a signal of acquiescence with the other's signal-an agreement that she will do nothing to embarrass the other's passage. The George L. Garlick, 20 Fed. R. 647. 1 Dougherty v. The Franconia, 3 Fed. R. 397; The Garden City, 19 Fed. R. 529; The Leland, 19 Fed. R. 771; The Mary Ida, 20 Fed. R. 741. Where a vessel having the right of way fails to respond to the signal of the vessel whose duty it is to keep out of the way, the latter has no right to assume that, because of such silence, the former abandons her right of way. The Louis Dole, 5 Biss. 172; The Pavonia, 26 Fed. R. 106. And where an affirmative response is given by a vessel ahead to one following, requesting permission to pass, it does not imply any relinquishment of the right of way, except so much as may be required to execute the maneuver. The Dentz, 29 Fed. R. 525. The duty of a steamer approaching another in a narrow channel at night, whose signals are not answered, to stop and reverse, on losing sight of the starboard-light of the other steamer, is not excusable by the fact that neglect in answering signals is common. A vessel not receiving an answer to its signal has no right to assume that her presence is known until her signals are answered. The New York, 53 Fed. R. 553. 2 The Mary Ida, 20 Fed. R. 741; The Pavonia, 26 Fed. R. 106; The Mary Shaw, 6 Fed. R. 918. 3 The D. Newcomb, 16 Fed. R. 274; The Pegasus, 15 Fed. R. 921; The Hudson, 14 Fed. R. 489. In the case of Ronan v. The Orange, 46 Fed. R. 411, a tug with a tow on her port side was cross and she is required to use the greatest care to avoid the other, and must take such precautions as the exigencies of the case demand.' Where passing signals are given by an approaching steamer, and consented to by the other, the latter has the right to rely upon the one first proposing, to abide by its selection of a course, and the former has no right to change its course as agreed on without first obtaining the other's consent, and will be held in fault for so doing. A steamer has no right to pass another otherwise than as required by the rules without first announcing to the other its intention of so doing, by appropriate signals, and obtaining the consent of the other; and until such final and mutual understanding is reached, it is the duty of both to pursue the course prescribed by the rules. The rule is strictly enforced by the courts that the steamer undertaking to reverse the statutory method of passing assumes the risk of any misunderstanding of the signals.* ing the course of a ferry at night, the ferry-boat having the tug on her starboard hand. The tug blew one whistle, and, receiving no reply, kept up her speed. Blowing again she received no reply, and thereupon she increased her speed to pass ahead of the ferry-boat, collision following. The court held that the fact that no reply was made by the ferry-boat was notice that the signal was not heard, and it was the duty of the tug to stop at once. Where a steamer crossed the bows of a sailing-vessel, apparently proceeding under sail, but which was being towed by a tug concealed from view by the sails and hull of the vessel, and which failed to respond to the steamer's signal, it was held the tug was at fault for not answering the steamer's signal, and for not disclosing its presence. Carter v. Morrisania, 3 Fed. R. 925. 1 Kiernan v. The Leonard Richards, 38 Fed. R. 767; Greenwood v. The Grape Shot, 38 Fed. R. 156; The Minnie, 31 Fed. R. 301; The Roslyn, 22 Fed. R. 687; The Sammy, 35 Fed. R. 327; The City of Albany, 34 Fed. R. 812; The W. M. Wood, 31 Fed. R. 569; Conover v. The City of Chester, 24 Fed. R. 91. 2 The Bermuda, 11 Fed. R. 913. 3 The Panama, 46 Fed. R. 496; The Nereus, 23 Fed. R. 448; The Edmund Levy, 6 Ben. 371; The Bristol, 11 Fed. R. 156; The Clifton, 14 Fed. R. 586; The Jay Gould, 19 Fed. R. 765; The Grand Republic, 16 Fed. R. 424; The Garden City, 19 Fed. R. 529. 4 The Frostberg, 25 Fed. R. 451. Sec. 78. Danger signals. It is the duty of a steamer to give warning signals to approaching vessels when it is in a situation involving danger, especially if in such position that the danger threatened is of such a nature as not to be observable by the approaching boat. The design of the rule for signals is not to make them a substitute for a continual lookout, nor to relieve the vessel from any other measures of precaution that prudence would suggest, but to add to these and supplement the means of safety that should otherwise be provided.2 Sec. 79. Reducing speed-Stopping and reversing.— The rules of 1890 provide that "every steam-vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed, or stop or reverse.' The international rule for 1885 provides that "every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or stop and reverse, if necessary." The rules governing the navigation of the Great Lakes provide that "every steam-vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed, or stop or reverse." 5 1 The Blue Bonnet, 10 Fed. R. 150. When by reason of the obscuration of the lights of a vessel her situation and course are not apparent, it is the duty of an approaching vessel to give such danger signals as may be necessary to come to a full understanding as to the relative situation of each. The Ping-On v. Blethen, 11 Fed. R. 607. 2 The Chicago, 61 Fed. R. 521; The City of Savannah, 41 Fed. R. 891; The Clara, 49 Fed. R. 765; The Ice King, 52 Fed. R. 894. 326 U. S. Stat. at L. 327, art. 23; The Fred W. Chase, 31 Fed. R. 91; The rule of 1890 is somewhat different in phraseology than the rule of 1885, in that it primarily imposes, by express language, upon the vessel whose duty it is to keep out of the way, the duty of stopping or reversing. The effect of both rules, however, is the same when construed with. all the other rules. Under the rules of 1885 it is the duty of a steamer having the right of way to continue her course, imposing thereby upon the other the duty of avoiding her, and of primarily assuming the whole duty of taking active measures to keep out of the way; these measures include the necessity of stopping or reversing, if the exigencies of the case require it. Under the old rules it became apparent that if both vessels were primarily to undertake the duty of avoiding each other, confusion and fatal results would often ensue from conflicting movements, the maneuvers of one being neutralized by the efforts of the other. Taken by itself, article 18 of the rules of 1885 might be taken to mean that both vessels should slacken speed, stop or reverse when approaching and in positions liable to produce collision; but the rules are to be taken and construed together and with reference to each other,1 and the object for which they were created, the prevention of collision. So construed, the rule of 1885 does not explicitly state the real object sought to be obtained by it. It was evidently the intention of the framers of the rule to throw the primary burden of acting entirely upon the vessel required to keep out of the way. The rule of 1890 is substantially the same as that of 1885 in effect; the language of the rule of 1890 being explicit in stating what the rule of 1885 only implies when construed with the other rules. The former rule explicitly requires every steamvessel, whose duty it is to avoid another, to stop or reverse, if necessary, thus primarily casting upon it the responsibility of deciding upon the necessities of the occasion. It is liable for an error of judgment in failing to comply with 1 The Cayuga, 14 Wall. 270; The Benares, 9 Prob. Div. 16; Sunny Side, 91 U. S. 208; The Columbia, 25 Fed. R. 844. the rule when the exigencies of the occasion require it.' Where danger of collision is obvious, a steamer takes on herself the risk of the consequences if she departs from the rule. A steamer bound to keep out of the way has the right to assume that the other will perform her duty and pursue the ordinary and accustomed course, and the rules do not require her to stop or reverse until the situation involves risk of collision. The burden of proof, however, is upon her to show the absence of reasonable cause to apprehend danger. While the rule does not contemplate a reduction of speed until there is risk of collision, where vessels are in situations open and visible to each other, it does not mean that they may wait until the danger is imminent before the rule becomes operative; nor does it mean that a vessel is to be excused from slacking speed because of a fault in the other. When the necessity becomes apparent the reversing should be prompt and effective,—liability will follow delay. 3 Where one of two methods of avoiding a collision is safe and certain, and the other is doubtful and attended with danger, ordinary prudence requires that the steamer should select the course attended by the least danger. So long as a vessel bound by the rules to keep out of the way clearly has time and space enough to do so, and there are no certain indications of a contrary intent, the other has a right to presume that she will do her duty, and is not bound to stop and reverse. Until it appears that the other is not keeping off, and there is risk of collision, then, and only then, may she stop, reverse or depart from her course. Mere doubt or apprehension that the vessel required to keep off will not do so is not sufficient to justify the other in departing from the rule. There must be a reasonable certainty 1 The Fountain City, 62 Fed. R. 87; The Midland, 48 Fed. R. 331. 2 The City of Atlanta, 26 Fed. R. 456. The Galileo, 24 Fed. R. 386; The Servia, 30 Fed. R. 502; La Champagne, 47 Fed. R. 122. 4 The State of Alabama, 17 Fed. R. 847; The Breakwater, 39 Fed. R. 511. 5 The John King, 49 Fed. R. 469. |