follows that the burdened vessel is at fault: but I do say that under the circumstances of the instant case, where I gather from the testimony that the Sun as a privileged vessel maintained her course and speed until in extremis, the fact that a collision happened is another element tending to indicate fault on the part of the Gulfstar.
Respondent argues, however, that aside from the question of disputed left turn, the Sun was at fault for failing to stop and reverse her engines in time, and cites authorities to support his contention. Those authorities do not, however, govern the instant case. Only general language is cited from The New York, 175 U.S. 187, 20 S. Ct. 67, 44 L. Ed. 126. In The Cushing, 2 Cir., 292 F. 560, there was a failure to reverse the engines altogether -- not a failure "to reverse in time". It will be remembered that in the case at bar, the Sun's engines were reversed. Other cases cited by the respondent hold the privileged vessel negligent for failing to reverse in time, but I am convinced from the testimony here that any failure of the Sun to reverse more promptly was not a cause contributing to the collision. Moreover, where the Gulfstar, the burdened vessel, had placed the Sun in danger by bad navigation, the navigators of the privileged vessel are not held to the exercise of perfect and impeccable conduct in their navigation: they are only held to the exercise of their best judgment, which may not necessarily turn out to have been the best course to pursue; and the failure to adopt the best policy in an absolute sense, under the circumstances such as these, when faced by danger, does not charge them with negligence in navigation: Wilson v. Pacific Mail S.S. Co. (Newport-Svea), 276 U.S. 454, 48 S. Ct. 369, 72 L. Ed. 651. "Moreover, if error was made in the conclusion to change the course of the Nordpol, it was an error in extremis which is not chargeable as a fault." The Nordpol (Grace Steamship Company v. Anderson), 2 Cir., 84 F.2d 3, 5. See, also, Pacific Atlantic S.S. Company v. United States, 9 Cir., 63 F.2d 414, and The Binghamton, 2 Cir., 271 F. 69.
Cases cited by the respondent do not stand for the proposition that a failure to reverse or stop charges the privileged vessel with fault under any circumstances. Those cases merely hold what is perfectly patent -- that a privileged vessel's duty to maintain her course and speed persists only until it becomes obvious that such maintenance must result in a collision instead of avoiding one, as it was the purpose of the rule to bring about; and that even privileged vessels must take other measures to avoid collisions when necessary. Clearly, if reversing and stopping would avoid an otherwise inevitable collision, and this can be foreseen by the exercise of that degree of judgment to the exercise of which a navigator should be held even in the face of peril or extreme danger, then a failure to reverse or take other precautions might charge the privileged vessel with fault. Each case, however, depends upon its own circumstances; and when it is not established that failure to reverse within a particular time contributed to the collision, or that a navigator, even when faced by imminent danger, should nevertheless have entertained and carried through the policy of reversing, then it has not been established that the privileged vessel is at fault.
My final conclusion is that the Sun's version of the events in this case is the true one: that the Gulfstar was at fault, and was negligent in a way that caused the collision, and that the Sun is not chargeable with fault.
Let request for findings of fact and conclusions of law be submitted, together with a decree in proper from and in conformity with this Opinion, and including a provision for a reference to a Special Master to find damages.
© 1992-2004 VersusLaw Inc.