THE FOUNTAIN CITY. WESTERN TRANSIT CO. v. BENHAM, 62 F. 87

TAFT, Circuit Judge, after stating the case, delivered tbe opinion of tbe court. It is assigned for error that tbe district judge called to bis assistance a nautical assessor, who was a captain of long experience in sailing the lakes. It has been tbe practice in this circuit, and par: tieularly in that court over which so experienced and able an admiralty judge as Mr. Justice Brown presided for nearly 20 years, for tbe district judge to call to his assistance navigators of experience as nautical assessors.

It was based on tbe practice, followed by tbe English admiralty judges, of advisiug with the elder brethren of Trinity House as to practical questions of seamanship and navigation. It has been approved by the supreme court of the United States, and it is of such long continuance that it is too late now to question its validity. In The Hypodame, 6 Wall. 216-224, Mr.

Justice Grier, in commenting on the weight to be given to the finding of facts by the district courts in admiralty cases, uses this language: “Tlio district courts have! better opportunities for examining such cases, and forming a correct conclusion, than any other.

They may examine witnesses ore tenus, and, although they may not have Trinity masters to assist them, yet, in difficult cases, depending on nautical experience, the judge may call to his aid experienced masters of vessels (as is done in one district at least), whose report will greatly assist the court in coming to a correct conclusion.” The district referred to by the learned justice was the eastern' district of Pennsylvania, as shown by footnote. We think the practice an admirable one, and one well adapted to assist the trial judge in reaching the right conclusion in an admiralty case.

The collision in this case occurred four years before the evidence was taken, and it is not surprising that there is great confusion among the witnesses as to what occurred.

The statement of the master of the Fountain City is that after hearing a signal of three blasts from tbe approaching steaming, which was nearly ahead, and a little off the port bow, be received a report from the mate that the tug was abeam, on the port side, and going up the lake in the same direction with the Fountain City; that thereafter a blast of two signals was heard from the tug, still but a point off the port bow, which he answered with two blasts, putting his wheel to starboard; that then he heard one blast from the tug, to which he responded with, one blast, bard a-ported bis wheel, and stopped his engines.

The -mate of the Fountain City says that be saw the lights of the tug on the port beam, and reported them to the captain after all the signals bad been blown, and not before the signals of two whistles, as stated by the captain. On the captain’s evidence, there is not the slightest question that he was guilty óf a fault, in not stopping and reversing, after hearing from the mate that the tug was on his port beam, and hearing from the tug signals of two blasts off his port bow, and nearly ahead.

We considered, in the case of the North Star, 62 Fed. 71, the duty of steam vessels, when approaching each other in a fog, under rule 21 of

section 4233 of the Revised Statutes, and held that a proper construction of the rule requires a steam vessel approaching another in a fog so that the bearing of the other’s whistle is ahead, or but one or two points off either bow, to stop and reverse until the course and position of the other vessel can "be definitely ascertained, unless the circumstances known to those in charge of the first vessel are such as would justify, in a careful, and skillful navigator, the confident belief that the position and courses of the vessels will make them, pass each other well apart.

If we accept the statement of the captain of the steamer, it is clear that the position of the tug with reference to his steamer was not definitely ascertained when he heard the report of his mate that the tug was on his port beam, and then heard her double blasts nearly dead ahead. He had then every reason to fear that if he proceeded there was danger of collision. It became his duty, therefore, to stop and reverse. If the mate’s statement is true, the captain failed in his duty, in not reversing when he stopped bis engines at hearing the one-blast whistle from the tug.

The one-blast, whistle was a change from the agreement established by the exchange of two signals to pass port to port, and necessitated a reversing of the helm of the Fountain City. The one-blast whistle of the tug sounded less than a point off the port bow of the steamer, and they were nearing each other, so that in a few moments thereafter the tug became visible to the steamer. A change from one side to the other, with the tug but two' or three minutes away; was obviously fraught with danger. It was clearly the duty of the captain, under these circumstances, not only to stop, but to reverse.

Had he done so, there would have been no collision. The argument is pressed upon us by counsel for appellant that the positions of the two vessels, at the time the one-signal blasts were said to have been exchanged, were those of vessels whose courses crossed, and that, by the rules prescribed by the board of inspectors of steam vessels for navigation, it was the duty of the Samson to port her wheel, and go under the stem of the Fountain City, while it was the duty of the Fountain City to keep her course or port her helm, if necessary to avoid collision, and that she had no right, therefore, to reverse.

We think the rules referred to have no application to the situation of these two vessels, in a fog, and so near together, when neither knew the course or exact position of the other. But if they have application the Fountain City was at fault, in not keeping her course, instead of stopping. The Britannia v. Cleugh (decided by the supreme court April 23, 1894) 14 Sup. Ct. 795; The Northfield v. The Hunter, 4 Ben. 112, Fed. Cas. No. 10,326. Bhe should have done one thing or the other.

She should have treated' ¡.he situation as that of vessels in a fog approaching each other nearly •head on, or as that of vessels whose courses were crossing, with the duty upon the tug to keep out of the way, and of the Fountain City to keep her course. The Fountain City did not follow the rules prescribed for either situation.

We fully concur with ihe district judge in his conclusion that the Fountain City was at fault in this collision, and that her fault was a contributing cause thereof; but we differ with the district judge in his conclusion that the tugwaswithout fault, and we reach this result from the statements of ihe men upon the Samson.

Their evidence is that, as their vessel was proceeding down the lake, they heard the whistle of the Fountain City, 30 or 15 minutes before the collision; that a lookout was sent up to the top of the pilot house, and through the mist, far above the water, caught a glimpse of the masthead light of ihe Fountain City, less than a point off their starboard bow; that the Samson then blew two blasts, which were answered by two from the Fountain City, still hut a. little off the starboard bow; that the Bainson starboarded her helm a point, and then blew another blast of two whistles, which the Fountain City answered, still off* the starboard how, and widening a little; that then the Samson blew’ a third blast of two whistles, which was not answered, and that she starboarded another point, and kept right along under a slow check; and that a few minutes after her third signal she saw first the masthead light, and then the red light, of ihe Fountain City, less than a point off her starboard how, swinging under what appeared to he a hard-a-port wheel across her bow.

We think it very evident, from the testimony of the mate in charge of the tag, and her captain, who was in his room, and of her lookout, that (he failure of the Fountain City to answer the third double blast, properly caused all who noticed it anxiety and alarm as to what the Fountain City was doing, where her exact posit ion was, and what her course was. The mate was asked: “How long- after the tim'd signal was it that you saw the masthead light of the Fountain Oily? A. Shortly afterwards. Q. How long- would you say? Five minutes? A. A couple, of minutes, probably. Q.

That last signal, you say, you did not hear any response to? A. They never answered me but twice. Q. You never heard any blast or signal from the Fountain City after your second signal was Mown, — after he replied to your second signal? A. No, sir. Q. When was it that you stopped the engine, — before or after you saw the masthead light? A. I stopped the engine just when I saw his masthead light.” The lookout said: “We had already Mowed two’whistles, and we got two from the Fountain City. We ran on for about a minute or two, and our mate blew two whistles, and we got two back. Q. Where did they bear? A.

Off on our starboard bow. We went oil a little while longer, and bio wed two, and we didn’t get any from the Fountain City. Q. Go ahead. A. Weil, then I heard the mate say to the man at the wheel, ‘Starboard half a point.’ Before the man had starboarded her he said, ‘Bet her go a point.’ So we ran along, and I was down forward at the time.” The captain of the tug was in his room, off duty. His evidence was as follows: “Q. Now will you tell the court — starting with the time of your hearing two blasts blown on your whistle, and two blasts answered by some other, vessel — all you know about the collision? A.

Well, I think I heard the signal answered twice, if I remember right, and then I heard us give another signal; and it was not replied to, and 1 got out on deck. Q. What signal? A. Passing signal. Q. How many blasts? A. Two- blasts. I did not hear it answered, and I came out on dock. Q. I wish you would, in your own mind, go right back there to your coming on deck, and tell the court how you came on deck? A.

X came out of the door, which was on the port side, and walked forward only a short distance before I asked the mate, ‘What is. the trouble?’ He says, ‘There is a boat across our bow.’ With that, I saw the outline of the boat in the fog myself.” On cross-examination he said, in answer to the question: “Q. How long would you say that it was between the time of the last signal of two blasts and the boats coming, together? A. Well, it might have been two and throe minutes. Q. How long after that last signal was given were you on deck? A. As soon as I could get out there. It did not take a great while. Q.

Had you taken your clothes off? A. Yes, sir; X did not wait to dress when I went on deck.” The lookout also says that the captain came running on to the deck. It is very clear from this evidence that the failure of the Fountain City to reply to the third signal carried doubt as to her course to the minds of the mate, the captain, and the lookout. Counsel for appellee admits in his brief that there was then uneasiness on the part of those navigating the tug as to where the Fountain City was, and what she was doing.

That uneasiness was born of uncertainty, and uncertainty in a fog, when the vessels are so close together, imperatively requires that they shall stop and reverse. A minute — perhaps two minutes — would have been gained, had the tug, instead of starboarding, stopped and reversed, when the Fountain City failed to answer. This would certainly have prevented the collision, because, as it was, the steamer struck the tug but a grazing blow. We think, therefore, that both vessels were at fault.

We shall therefore enter a decree in this court dividing the damages found between the two vessels, and dividing the costs of the court below and of the appeal.