of Captain Welde on many of the essential points by wholly disinterested witnesses, I am unable to accept Gilliland's story.
On the facts as found, the fault of the Gatco is obvious and inexcusable. Captain Gilliland, from beginning to end, proceeded exactly as though there were no other vessels on the river. This would have been understandable, if not entirely correct, had he been outside the channel to the east, except momentarily in rounding the 2R buoy, as he testified. I cannot doubt, however, that he was well in toward the middle of the channel when he got the Hayes' one-blast signal. He never answered this, nor for that matter any other signal either from the Havmann or the Hayes, until he gave his last minute double blast just before the collision. He testified that he did not hear any signal from the Hayes or Havmann, but I cannot accept this statement. The two witnesses from the Havmann who were not particularly interested in the manner in which the Hayes, back of them, passed the tug (as Gilliland should have been) plainly heard the first one-blast signal from the Hayes. I am satisfied that Gilliland got the one-blast signals from the Hayes when he was in the channel and he could and should have assented to a port to port passing. Instead, intending to go out of the channel to the east in order to shorten his course, he persisted in complete disregard of the narrow channel rule, the passing signal rule and the principles of safe navigation, apparently relying on the Hayes to abandon her lawful course and keep out of his way by swerving to port.
The fault of the Gatco being clear, the question arises whether the Hayes was also guilty of fault such as would require a division of the damages.
After his one-blast signal, Captain Welde continued on for a full minute without reducing his speed and then gave his second single blast. The vessels were then approaching each other, head and head, at a combined speed of 15 knots.
Article 18, Rule III, of the Inland Navigation Rules, 33 U.S.C.A. § 203, provides 'If, when steam vessels are approaching each other, either vessel fails to understand the course or intention of the other, from any cause, the vessel so in doubt shall immediately signify the same by giving several short and rapid blasts, not less than four, of the steam whistle.' In Socony Vacuum Transp. Co. v. Gypsum Packet Co., 2 Cir., 153 F.2d 773, 777, and James McWilliams Blue Line v. Card Towing Line, 2 Cir., 168 F.2d 720, 721, Judge Hand ruled that where a passing signal has not been answered, the giving of a second such signal, instead of the danger signal, establishes a violation of this rule. He said that 'to repeat an invitation for a passing or a crossing inevitably presupposes that the inviting vessel is 'in doubt' as to the 'intention' of the other', McWilliams case, supra, at page 721. In other words, if a second signal is required, it can only be because there is doubt as to whether the first one was understood and in that situation a danger signal is required by the rule.
There is no question that the negligence of the Gatco was gross and was a much larger factor in bringing about the collision than anything which Captain Welde did or omitted to do. However, under the circumstances of this case, I am unable to give the Hayes the benefit of the rule of The Ambridge, 4 Cir., 42 F.2d 971, 976, that 'Where, as here, the fault of one vessel is clearly established, the evidence of the other vessel's fault must also be clear and convincing in order to make out a case for apportionment of damage.' See also The Umbria, 166 U.S. 404, 17 S. Ct. 610, 41 L. Ed. 1053. The trouble is that under Judge Hand's view (to which I subscribe) the evidence is clear and convincing that there was a violation by Captain Welde of a statutory rule and, under the rule of The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L. Ed. 148, where there is a violation, affirmative evidence that it was the cause of the collision is not required in order to fix liability upon the transgressor. The burden is upon one who has failed in respect of a statutory duty to show not only that his failure probably did not contribute to the collision but that it could not have contributed to it, and I cannot find that, had Captain Welde blown the danger signal and immediately backed, Captain Gilliland would not have desisted from his intended course and taken action which could have avoided the collision.
Captain Welde's conduct, if not excusable, was at least understandable. As Judge Hand said in the McWilliams case, supra, 'No doubt an effort to force an assent to a proper invitation is natural enough; resolute men find it hard to give in before an insolent disregard of their rights; but in such situations the masters of vessels, if it be necessary to avoid the 'risk of collision,' must yield even though it may seem to them timid or pusillanimous to do so.'
A decree may be submitted in accordance with the foregoing.