of at least 3 1/2 miles, it was his duty, as a measure of precaution, and under the rules, regardless of whether he considered it a "head and head" situation, to signal his intention to pass port to port within a half mile of the Minerva. That he considered it unnecessary because he felt certain of his position is not a proper excuse. The obvious purpose of the rules of the road respecting signals is to avoid collisions brought about by misunderstanding or inability to recognize correctly the course of an approaching vessel. Had Captain Cox blown a one blast signal, Captain Gray would not have persisted in his belief that a starboard to starboard pass was in the offing.
A similar offense is attributable to Captain Gray. Considering the situation to be that of a starboard to starboard pass rather than a head and head meeting, giving him the benefit of the doubt, he still came within Article 18, Rule I of the Inland Rules (Pilot Rule IV). Although he did sound a two blast signal, it was not until the vessels were about 500 feet, or at most, 1000 feet apart. This allowed, at most, something over a minute in which to maneuver the two heavily loaded and cumbersome flotillas. The required precautions should be seasonably adopted. The America, 1875, 92 U.S. 432, 23 L. Ed. 724. The delay of a signal constitutes fault. Henry DuBois Sons Co. v. A/S Ivarans Rederi, 2 Cir., 1940, 116 F.2d 492, certiorari denied 313 U.S. 568, 61 S. Ct. 942, 85 L. Ed. 1526. If signals are to be of any value they must be given with an allowance for sufficient time to exchange signals and agree on a passing, taking into consideration the speed, power and apparent agility of the vessels. The estimation of each captain that the situation was so clear no signals were necessary is exploded by the very fact that there was a misunderstanding.
Parenthetically, it may be suggested that when the Dauntless, showing her green light at 1000 feet, suddenly showed red and then green again, Captain Gray ought to have blown the danger signal and backed rather than blow two blasts and wait until the vessels were 400 feet apart to blow the danger signal. He was bound to stop until the course and movements of the Dauntless had been satisfactorily ascertained. The New York, 1899, 175 U.S. 187, 201, 20 S. Ct. 67, 44 L. Ed. 126.
Viewing the approach of the Dauntless from aboard the Minerva, according to Captain Gray, the former was something less than two points off the starboard bow of the latter. If the course of the Minerva were southwest, and the course of the Dauntless were NE by E1/2E, it is evident that the Dauntless was about 1 1/2 points off the starboard bow of the Minerva. Under this set of facts, Article 18, Rule I of the Inland Rules (Pilot Rule IV) and Pilot Rule III apply. Very likely a port to port pass was required, for in the case of The Victory and The Plymothian, 1897, 168 U.S. 410 at page 418, 18 S. Ct. 149, at page 153, 42 L. Ed. 519, the Supreme Court said: "It has often been held, as a general rule of navigation, that vessels approaching each other in narrow channels, or where their courses diverge as much as 1 1/2 or 2 points, are bound to keep to port, and pass to the right, whatever the occasional effect of the sinuosities of the channel." See also, The Amolco, supra.
While under this rule a port to port passing is normal in the "head and head" situation, one vessel is not entitled to assume that another will pass to the starboard until two whistles have not only been blown, but answered. The Sabine Sun, D.C.E.D.Pa., 1927, 21 F.2d 121, affirmed, 3 Cir., 1929, 33 F.2d 42; Chester A. Poling, Inc. v. United States, supra.
It may be noted in passing that if the Dauntless were on the outside of the west edge of the channel it was in violation of the Narrow Channel Rule (Inland Rules, Article 25, 30 Stat. 101, Act June 7, 1897, 33 U.S.C.A. § 210), since there is no evidence that it was unsafe or impracticable to be on her starboard side of the channel, and such navigation constitutes statutory fault. See Matton Oil Transfer Corporation v. The Greene, 2 Cir., 1942, 129 F.2d 618, 620.
The case for mutual fault is unassailable. The night of the collision was clear; visibility was good. Proceeding through a narrow channel, having made out each other at a great distance, and having determined their course, it was incumbent upon each officer to proceed with caution, obeying all the rules of the road. Nevertheless, it is apparent from the record that neither navigated with respect to the other until too late to avoid colliding. Captain Cox repeatedly stated that he paid no attention to the Minerva and Captain Gray stated that he did nothing until he approached within 1000 feet, when he blew the two blast signal. As the Supreme Court said long ago, "Sailing rules were ordained to prevent collisions * * and not to enable those whose duty it is to adopt, if possible, the necessary precautions to avoid such a disaster, to determine how little they can do in that direction without becoming responsible for its consequences, in case it occurs." The America, 1875, 92 U.S. 432, 23 L. Ed. 724.
True, both captains were "certain" of each other's intention but such certainty was not warranted under the circumstances. As stated in A.H. Bull S.S. Co. v. United States, 2 Cir., 1929, 34 F.2d 614, at page 616: "Masters who choose to divine the purposes of other vessels and keep on, may avoid the charge of overcaution, but they take their chances. If they escape, well and good; if they fail, their owners pay."
As a final matter, it is urged that the Dauntless and the Gretchen were further at fault in not having a proper lookout on the Gretchen, and in not having proper lights on that vessel. Since the Minerva and her tow were sighted by Captain Cox and his mate at least 3 1/2 miles away, and since it is not denied that the signals blown were heard, the lookout would have contributed nothing to the eyes and ears of the ship. See Puratich v. United States, 9 Cir., 1942, 126 F.2d 914. Moreover, Captain Gray and his lookouts made out the Dauntless and her tow at least a half mile away, and it does not appear that improper lights, if any, on the Gretchen contributed to the collision.
Accordingly, I state the following conclusions of law:
1. The Gretchen was under the charge and direction of the Dauntless No. 12 and committed no independent fault.
2. The Minerva was at fault in failing to blow a proper passing signal at a seasonable time.
3. The Dauntless No. 12 was at fault in failing to blow a proper passing signal at a seasonable time.
4. The Minerva, her owners and stipulators, and the Dauntless No. 12, her owners and stipulators, were in mutual fault and are liable to the Gretchen for its damages.
An order may be submitted in accordance with this opinion.
© 1992-2004 VersusLaw Inc.