to the wheel. Therefore, notwithstanding Longdon's knowledge, those in charge of navigation on the Pilar still did not know of the whereabouts of the Pastores.
It may be objected that Longdon's knowledge is imputed to those navigating the Pilar. But imputed knowledge is not, for the purposes of the present discussion, actual knowledge, and -- again for the purposes of this discussion -- it has not the legal effect of actual knowledge. For I am at this moment occupied in determining whether the Pastores' failure to whistle contributed to the happening of the accident. If she had whistled, those navigating the Pilar would actually have known of her presence and would not, in my belief, have swung the Pilar to starboard, and the collision would not have happened. Any knowledge merely imputed to the navigators would not, and in this case did not, prevent the collision. Actual knowledge would have prevented the collision.
In weighing the problem whether the Pastores must be held for liability for the damages suffered in the collision, I have before me really a stark factual question: Would the accident have happened if the Pastores had not committed the negligent act complained of (failure to blow the whistle)? I believe the answer should be in the negative -- I believe the accident would not have happened if the Pastores had blown the whistle; wherefore, I conclude that she was guilty of negligence which contributed to the happening of the accident, and consequently should be held to equal liability with the Pilar, which was likewise guilty of negligence in a way that contributed to the collision, and of negligence but for which the collision would not have occurred.
The Pastores strongly urges that whatever negligence she was guilty of in not blowing the whistle had, so to speak, passed out of the picture by the time the negligent act of the Pilar intervened, wherefore the Pastores claims exculpation, and cites authorities purporting to sustain her position.
I have, however, already indicated my opinion that the negligence of the Pastores was a contributing factor in the collision.
As to the cases relied on by the Pastores:
The Blue Jacket, 144 U.S. 371, 12 S. Ct. 711, 36 L. Ed. 469, is cited for the proposition that an infraction of statutory regulations in the navigation of the vessel does not in itself establish liability. There is no quarrel with that principle, but I have already stated that under the circumstances in this case the infraction was not only an infraction but an act of negligence.
The Illinois, supra, and The Philadelphian, 1 Cir., 61 F. 862, are readily distinguishable on the facts from the case at bar, as clearly demonstrated in The Industry, supra.
The Virginia, supra, might be cited in an argument seeking to hold the Pilar liable, but does not operate to exculpate the Pastores. As a matter of fact, in The Virginia, the damages were divided.
Long Island Railroad Company v. Killien, supra, does not govern. That was simply a case where, unlike the present, the court exonerated the overtaking vessel, apparently on the ground that her negligence did not contribute to the happening of the accident. It was said in that case (67 F. page 367): "Only such vessels can invoke the violation of the statute as an actionable fault as have been prejudiced by it, either because their own movements have been embarrassed by the presence of the offending vessel, or because they have omitted to take some precaution in ignorance of her presence, which they might otherwise have avoided danger by adopting."
The Pleiades, 2 Cir., 9 F.2d 804, merely holds that an overtaking vessel need not anticipate improper navigation on the part of the overtaken vessel. It certainly does not say that a negligent act of the burdened ship contributing to the collision would not render her liable.
The Artemis, supra, is not in point. There the overtaking ship signalled her intention to pass by the proper whistle, and the privileged ship knew of the whereabouts of the other.
The same situation exists in Larsen v. Portland California S.S. Co., 9 Cir., 66 F.2d 326.
In summary I find:
(1) The Pilar "crowded upon the course of the passing vessel", the Pastores, in violation of Rule VIII; she made an unnecessary, unjustifiable and risky swing to starboard at a time when the Pastores was in such a position that the maneuver was dangerous and negligent, and when the Pastores was in such a position that she either could or should have been seen by the Pilar since the two vessels were then abeam. The Pilar was therefore negligent in a way that contributed to the happening of the accident.
(2) The Pastores was negligent in that, being the burdened and overtaking vessel, she failed to signal her intention to pass.Had she signalled, those in charge of navigation aboard the Pilar (the pilot, the third mate or both) would have known of her presence to starboard and would not, I think, have executed or permitted to be executed the Pilar's swing to starboard: hence, the negligence of the Pastores contributed to the happening of the accident.
(3) Both vessels are liable, each having committed acts of negligence which contributed to the happening of the accident, and the damages should be divided accordingly.
I think the findings of fact and conclusions of law have been sufficiently stated.
If it is desired, requests for findings of fact and conclusions of law may be submitted, together with a decree in proper form, and in conformity with this opinion, with provision for a reference to a special master to final damages, if the parties cannot agree upon the respective amounts.
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