THE BELGIAN KING. HUNTER et al. v DAMPSKIBSSELSKABET TELLUS et al.; SAME v. DAMPSKIBSSELSKABET TELLUS; CALIFORNIA & ORIENTAL S. S. CO. v. SAME, 125 F. 869

MORROW, Circuit Judge, after the foregoing statement of the case, delivered the opinion of the court. The assignments of error relate to the various findings and conclusions of the court, upon which its holding was based that the legal responsibility for the collision in which the injuries were received was upon the Belgian King. As an appeal in admiralty causes brings both the law and the facts before the appellate court for review, the principal question for consideration is whether either vessel was solely in fault in causing the collision upon which the libels in controversy are based.

It is undisputed that the steamship Belgian King left the port of San Francisco, in ballast, on the afternoon of July 17, 1900, bound for the port of Seattle, in the state of Washington; that the steamship Tellus was laden with coal, and was nearing the end of her voyage from British Columbia to San Francisco; that a dense fog set in about 6 o’clock in the afternoon, and continued until after the collision ; that the steamships collided at some time between 10:4o and 11 p. m. of that day, at a point some 16 to 26 miles south of Point Arena; that the lights on both steamers were in proper place and condition; that proper lookouts were on duty, and that both steamers were properly manned as to the number and degree of officers in charge; that the Belgian King struck the Tellus on the port bow, piercing the hold of the Tellus to the distance of 16 feet, and cutting her down to about io feet below the water line; that the Belgian King was but slightly injured, her sharp stem not being damaged at all.

The main controversy turns upon the speed of the two vessels just prior to the collision, the

interpretation of signals given by the respective steamers, and the maneuvers of the steamers upon those signals. The captain of the Tellus was on the bridge at and for some time before the occurrence of the collision.

He testifies that at about half past io of that evening the fog became very thick, and he slowed his engines down to “slow speed,” or about three knots an hour; that he had been sounding his regular fog whistle, a long blast every two minutes, all the evening; that at io 132 p. m. he heard a long whistle right ahead, a good way off; that he answered it with a long whistle; that he heard three long whistles from the other ship at intervals of two minutes, and, being then sure of the bearing, he ported the helm 45 degrees, with the object of turning his vessel to starboard, at the same time giving the direction signal that he was going to starboard, consisting of the regular fog whistle of one long blast followed in 30 seconds by a short whistle; that he received one long whistle from the other ship after that, about half a point on the port bow; that he heard nothing for three-quarters of a minute after that, so stopped his engine and repeated the signal of one long blast with a short one 30 seconds thereafter; that he counted the seconds between the blasts; that he then heard two short whistles from the other ship, followed almost immediately by three short ones, which he understood to mean that the other ship was starboarding its helm and reversing its engine; that at this time the Tellus had been drifting under a stopped engine for about five minutes; that as soon as he heard the two short blasts from the other ship he reversed the engines of the Tellus, and in about two minutes sighted the0 masthead light of the other ship, about two points off the port bow; that the green light came in view immediately after, and the collision took place about one minute afterwards.

He testifies that the Tellus was “about dead” when the two ships met, but that the other ship must have had a good motion on. This testimony was corroborated by Olsen, the lookout on duty on the Tellus at the time, and by Berger, the second mate, who was on the bridge with the captain, and attended to the whistle. The testimony of the engineer on duty at the time corresponds with that of the captain, as to receiving orders for the slowing and stopping of the engines, and soon after reversing them.

The captain of the Belgian King was also on the bridge of his vessel at the time of the collision, and for some hours before.

He testifies that at about 6:45 p. m., and again at 7:45 p. m., they had heard the whistles of another vessel, and in each instance had stopped the engines until the sound of the whistles was definitely located, when he put the vessel at half speed again; that he kept the vessel at half speed until 10 .-45 p. m.; that “half speed” was 8y2 knots, in ballast; that at 10 45 p. m. he heard another steamer’s whistle off the starboard bow about three points; that he then put the engines to “slow,” and continued sounding the regulation fog whistle every two minutes; that he then heard two blasts from the other vessel, both appearing to him to be pretty long and of about the same length; that he imagined from these whistles that the other vessel was putting its helm to starboard and directing its course to port; that he then stopped the engines of the Belgian King, put the helm to starboard, and blew two whistles; that he then heard another two blasts from the other vessel,.in the same direction, but much nearer; that he then reversed his engines full speed, and gave three blasts of the whistle; that shortly after that he sighted the masthead light of the other vessel about four or five hundred feet away, about two points on the starboard bow, and then saw the red light; that he gave an extra ring in the engine room to increase the sternway, if possible, and blew three blasts of the whistle again; that in about two minutes after the light was sighted the vessel struck the Belgian King on the starboard bow and heeled her over to port; that the momentum of the other vessel coming against the starboard bow of the Belgian King lifted her bow up a certain distance, and in recovering herself the Belgian King came down upon the Tellus, smashing into her hull.

He testifies that the Belgian King had about come to a standstill when the vessels came together; that, she backed away, and cleared the Tellus in about two minutes after striking.

The third officer, L,ord, who was on the bridge with the captain, testifies that he heard the long blast of the other vessel three or four times on the starboard bow, and then heard the regulation two short blasts, signifying that the vessel was going to port; that his own vessel then stopped and starboarded, giving two short whistles, and after that he heard two blasts again, very close on the starboard bow; that they then put their ship full speed astern, giving three blasts of the whistle; that about two minutes after hearing the last two short blasts he saw the masthead light, and a few seconds later the port light.

The lookout on the Belgian King was a Chinaman, who testifies that he went on duty at io :3o p. m., and five, six, or seven minutes after that he heard a whistle on the -starboard side of his vessel; that he heard nothing else for five or six minutes, when he heard two short whistles, and at the same time saw the masthead light of the vessel; that when he heard the first whistle he reported it to the officers, and they then blew the whistle of the Belgian King three times; that when they saw the lights they blew the whistle again three times, and three more right after that.

The quartermaster on duty at the time was also a Chinaman. Soon after 10:3o p. m. he heard one long whistle, which was answered by the Belgian King. He heard nothing more for five or six minutes, when at the same time, practically, he saw the lights of the other vessel, heard two short whistles, heard the Belgian King give three short whistles, and received orders from the captain to put the helm hard astarboard; that the course of the Belgian King was not changed until the lights of the other ship were seen, and only a minute or two then elapsed before the collision.

The chief engineer of the Belgian King testifies that the engines were at half speed at 9:15 p. m., slow at 10:45, stopped and full astern at 10:5o, and the ship stopped entirely at 10 ¡55, according to the log slate kept by him; that the engine was going astern for two minutes before the collision, and continued going astern for three minutes thereafter.

Article 16 of the act of August 19, 1890, as amended May 28, 1894 [U. S. Comp.

St. 1901, p. 2868 (see 28 Stat. 1250)], prescribing regulations for preventing collisions at sea, provides as follows: “Every vessel shall, in a fog, mist, falling snow, or heavy rain storm, go at a moderate speed, having careful regard to the existing circumstances and conditions. “A steam vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over. “Steering and Sailing Rules. “Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass-bearing of an approaching vessel.

If the bearing does not appreciably change, such risk should be deemed to exist.” “Article 18. When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other.” Did the vessels act in accordance with these regulations? There is evidence tending to show that the Belgian King had been going at a greater rate of speed than “half speed” prior to the hearing of the fog whistle of the Tellus at 10:45 p. m.

But accepting the testimony of the captain of the Belgian King that his vessel was proceeding on her course at half speed, or at the rate of 8j4 knots per hour; that between 10:25 and 10:3o p. m. the fog had become dense and “had shut in thick”; and accepting the testimony of the captain of the Tellus that at half past 10 o’clock his vessel also encountered the fog, and that the engines of his vessel were brought down to “slow speed,” or three knots per hour, which speed, the captain testified, was the lowest at which steerageway of the ship could be maintained; and that seven or eight minutes later, according to the engineer of the Tellus, the engine was brought to a stop—we have this situation: From the time the dense fog set in at 10:3o p. m. until the Belgian King was made aware of the approach of the Tellus, at about 10 45 p. m., the Belgian King was going at 8J4 knots per hour, and the Tellus at 3 knots per hour, the slowest rate consistent with the maintenance of steerageway; that this speed was maintained for 7 or 8 minutes, when the engine was stopped.

It is evident from this statement of the testimony that the Belgian King was not during this time going at a moderate rate of speed, having careful regard for the existing circumstances and conditions.

This is determined partly by the inference to be drawn from the fact that the Tellus under the same conditions reduced her speed to 3 knots per hour, and after 7 or 8 minutes stopped her engine, while the Belgian King maintained a speed of 8yí knots per hour; but it is also determined by the fact that, while the Tellus was being navigated at the moderate rate of speed required by law, the speed of the Belgian King was maintdined at such a rate that she could not and did not stop in time to avoid a collision after the Tellus came in sight.

The-rule is that a vessel in a dense fog is bound to observe unusual caution, and to maintain only such a rate of speed as would enable her to come to a standstill by reversing her engines at full speed before she could collide with a vessel which she could see through the fog. The Colorado v. The H. P. Bridge, 91 U. S. 692, 702, 23 L. Ed. 379; The Nacoochee v. Moseley, 137 U. S. 330, 339, 11 Sup. Ct. 122, 34 L. Ed. 687.

That the Tellus observed this rule, and that the Belgian King did not,, is established by the testimony as to the rate of speed each vessel maintained prior to the collision, and the fact that at the time of the collision the Tellus had stopped and the Belgian King had hot; also, by the character of the wound inflicted upon the Tellus. This was-the finding of the court below, and is supported by the evidence, not only did the officers and crew of the Tellus testify that the engines-of the Tellus had been stopped for some time, but the testimony of other parties, entirely disinterested, supports this presumption.

Capt. C. M. Goodall, of large experience in the steamship business, examined the Tellus as soon as she was discharged at San Francisco, as a matter of general interest, and states positively that in his opinion the Tellus must have been still when the collision occurred, from the nature of the injury received. Capt. Thayer, inspector of the Bureau Veritas, inspected the Tellus as soon as she was discharged, and reaches the same conclusion. Capt.

Turner, marine surveyor for the Fireman’s Fund Insurance Company and for the Bureau Veritas, examined the Tellus with a view to estimating the repairs necessary to put her again in her class, and testifies that in his judgment she was lying still, or nearly so, when collided with by another vessel. Capt.

Metcalfe, surveyor to Eloyd’s Register of British and Foreign Shipping, surveyed the Tellus and reported upon her condition as to necessary repairs, and afterwards attended while the repairs were being made, and says, “The indications, I think, pretty conclusively point to the fact that the Tellus had no headway on her at the time,” also stating that the other vessel must have had some motion. We are of the opinion that had the Belgian King when she encountered the dense fog, reduced her speed as did the Tellus, the collision would not have occurred. The next inquiry relates to the

interpretation of signals given by the respective steamers, and the maneuvers of the vessels upon those signals. When the whistle of the Belgian King was first heard, the position was sufficiently ascertainable by the Tellus to permit her to continue on her course at slow speed, and give the direction signal that she was going to starboard. Not receiving a proper response to that signal, the engines were stopped and the signal repeated, the ship drifting for some minutes before the collision. The Belgian King was going at half speed until the fog whistle, of the Tellus was heard.

Her engines were then put to “slow.” Two blasts were heard from the Tellus, which the captain of the Belgian King understood to be of the same length, signifying that the Tellus was directing its course to port. The engines were then stopped, and the signal answered. Hearing two more blasts of the whistle much nearer, the engines were reversed, but it was too late, as in about two minutes the vessels came together.

The regulations prescribe one long blast, of from four to six seconds’ duration, sounded at intervals of two minutes during a fog, and the signal that a vessel is directing her course to starboard is one short blast of about one second’s duration. The Tellus claims to have given one long blast, followed at an interval of 30 seconds by a short blast. The captain of the Belgian King claims to have heard two rather long blasts of about the same length. It is our opinion that the captain of the Belgian King misunderstood the signals of the Tellus.

He states that he understood the signals to- mean that the vessel was directing its course to port. Had the blasts been long, as he stated, such an

interpretation would have been incorrect. Two long blasts indi-* cate a steam vessel under way, but stopped, while the direction of a vessel’s course to port is signaled by two short blasts. When this fact was called to his attention by counsel upon cross-examination, the captain stated that such was not his understanding of the regulations, and in other particulars showed that he was not familiar with the distinctions made in the regulations between the different signals.

Had the course of the Belgian King been directed to starboard, in response to the signal of the Tellus. no collision would have occurred between them. It is charged against the Tellus that she changed her course after the fog signals of the Belgian King indicated that the two vessels were drawing together, and that she notified the Belgian King of this change of course by sound signals.

This charge appears to be based upon the theory that the two vessels were on parallel courses, or nearly so, and that, without any change of course on the part of the Tellus, and signals to that effect, the two vessels would have passed each other starboard to starboard. But this view of the situation is not supported by the evidence. The course of the two vessels,'when each became aware of the presence of the other, was not parallel, but crossing. The course of the Belgian King was N. W. YX W. magnetic, and the course of the Tellus was S. E. E. magnetic.

These courses were similar to the courses of the Umbria and the Iberia in The Umbria, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053. In that case the captain of the Iberia heard the whistle of the Umbria two points on the port bow, and apparently a long distance away. He ported his helm and directed his course to starboard, signaling the Umbria to that effect.

This course was in fact across the path of the Umbria, but the" captain of the Iberia appears to have determined that by porting his helm he could cross the path of the Umbria before the latter vessel could reach the point of intersection, assuming, of course, that the Umbria was going at a moderate rate of speed. In the present case the captain of the Tellus heard the whistle of a steamer right ahead. The sound appeared to be a long way off. It was a long whistle. The Tellus answered with a long whistle. The captain of the Tellus heard three long whistles from the Belgian King at intervals of two minutes.

Then, being sure of the bearings, he ported his helm and went to starboard, giving one short blast to notify the Belgian King that the Tellus was going to starboard. The Belgian King, he says, was “right ahead.” It was certainly not a fault on the part of the Tellus to turn away from an approaching vessel right ahead, and in going to starboard he took the course required of approaching vessels in sight of each other.

In the case of The Umbria, the Supreme Court, commenting on the action of the Iberia in changing her course under circumstances less favorable under the apparent conditions, said: “Under such circumstances, and in view of the fact that the exact position and course of the Umbria could not be determined, we think it would have been more prudent on the part of the Iberia not to have changed her course until the position and course of the approaching steamer had been definitely ascertained, although we should be reluctant to hold that such change of course was a fault on her part which should condemn her in a moiety of damages.

There are undoubtedly authorities and some expressions of this court to the effect that a change of the helm, in ignorance of the exact position and course of an approaching vessel, is a fault, although we have never held that it would be a fault in every case presenting these conditions.” (Citing cases.) The majority of the court were of opinion that the Iberia was not in fault, while the other members of the court rested their conclusion upon the view that, even if she were a.t fault, such fault did not contribute to the collision. The court held that the Umbria was alone at fault.

Applying the rule of that case to the present one, we have no difficulty in reaching the conclusion that the Tellus was not at' fault. The responsibility for the collision, and the damage resulting therefrom, must therefore be laid upon the Belgian King. The decree of the District Court is affirmed.