The district court found the Breakwater to have been wholly in fault ( 39 Fed. 511), and upon appeal to the circuit court this decree was affirmed by Mr. Justice Blatchford upon the following finding of facts:
Subsequently, and upon motion of the claimant, the court made the following additional finding:
From the decree of the circuit court the owners of the Breakwater appealed to this court.
Edward L. Owen and Frank D. Sturges, for appellant.
F. A. Wilcox and Geo. B. Adams, for appellee.
Mr. Justice BROWN (after stating the facts in the foregoing language) delivered the opinion of the court.
The principal contention of the appellant is that the Pavonia was in fault for leaving her slip at the time she did, in view of the strong ebb tide, northerly wind, and the proximity of the Breakwater.
The facts were that, at the time the Pavonia left her bridge, the Breakwater was off Barclay street, about 880 feet down the river, pursuing her course up the river about 400 feet distant from the outer line of the piers. It is true that there was a strong ebb tide and a northwest wind; but, although the effect of this was to swing the Pavonia's bow somewhat down the river as it emerged from the slip, this swing, with the aid of her wheel, which was put hard a-port, was overcome before the collision, at which time her bow was on a swing up the river. While the wind and tide had the effect of setting her bodily down the river, this was an incident which the pilot of the Breakwater must or ought to have anticipated, and, being warned by the Pavonia's whistle that she was about leaving her slip, ought also to have provided against.
In view of the large number of ferry boats plying between New York and the opposite shores, sometimes as often as once in three or four minutes from the same slip, their departure at any moment is a contingency which ought to be reckoned upon and guarded against. There is a necessity that these transits be made with great frequency and regularity, not only in order that the public may be accommodated, but that ferry boats arriving from the opposite shores shall not be compelled to lie in the stream, with a chance of encountering other vessels, to await the departure of their consorts from the New York slip. Steamers plying up and down the river should [155 U.S. 252, 262] therefore keep a sufficient distance from the dock, and hold themselves under such control, as to enable them to avoid ferry boats leaving their slips upon their usual schedules of time. The respective obligations of ferry boats and other steamers were fixed in accordance with this rule, by Judge Betts, as early as 1845, in the case of The Relief, Olcott, 104, Fed. Cas. No. 11,693, in which he spoke of the rights of ferry boats 'to an undisturbed passage between their landing places, in the performance of their duties in that capacity, as a species of privilege or immunity not accorded to other vessels,' and declared it to be the duty of other steam vessels to keep as near as possible to the center of the stream in passing up and down, in order that the exit from and entrance into the ferry slips should not be checked or embarrassed by the presence of other vessels passing close to them. This practice has been acquiesced in for at least half a century, and has been repeatedly recognize by the local courts. The Favorita, 8 Blatchf. 539, Fed. Cas. No. 4,695; The Monticello, 15 Fed. 474; The John S. Darcy, 29 Fed. 644; The West Brooklyn, 45 Fed. 60, 1 C. C. A. 415, 49 Fed. 688; The Brooklyn, 62 Fed. 759. The Favorita was also affirmed by this court upon a similar recognition of this rule. 18 Wall. 598.
It is hardly necessary to say, however, that it would not be applicable if the circumstances were such as to indicate that it would be impossible for an approaching steamer to avoid the ferry boat. This seems to have been the case in The Columbus, Abb. Adm. 384, Fed. Cas. No. 3,043, since it can hardly be supposed that the judge who decided the case of The Relief should have intended to overrule that case within three years without at least calling attention to the fact. Perhaps, too, the practice here suggested might be subject to some modification in a harbor less crowded than New York, where the transits of the ferry boats are made with less frequency. As Mr. Justice Davis remarked in the case of The Favorita: 'Manifestly, the rules of navigation must vary according to the exigencies of business and the wants of the public. The rule which would be applicable in a harbor where the business was light, and the passage of vessels not liable to be [155 U.S. 252, 263] impeded, would be inapplicable in a great thoroughfare like the East river.' As it is clear in this case that a collision might have been avoided by prompt and decisive action on the part of the Breakwater after the Pavonia left the wharf, and that with proper management there was no rist of collision, we think that no fault can be imputed to the latter in leaving at the time she did.
Was she in fault for her manner of leaving? The finding is that, as she began to move, she sounded the usual long, single whistle to warn approaching vessels, and, as her bow reached the outer end of the pier, she received in reply a single whistle from the Breakwater. From this moment, at least, the statutory rules of navigation became operative, and required the ferry boat to keep her course and speed, and the Breakwater to keep out of her way. But, that there might be no misunderstanding as to her intention, the Pavoma again gave a single whistle, in reply to that of the Breakwater, and the latter answered by another single whistle. Finding 8 indicates, also, that the same signals were exchanged the third time. Under these circumstances there certainly should have been no misunderstanding as to the proposed movements of each vessel, and no misapprehension as to their respective duties. The Pavonia fulfilled her obligation by keeping her wheel hard a-port and her engine at full speed, to counteract the tendency of the wind and tide to carry her down the river. The Breakwater knew, or was bound to know, as well as the Pavonia, that the immediate effect of the wind and tide, striking the ferry boat broadside, would cause her to sag down the stream as she passed the outer end of the pier, and was bound to provide against this contingency. This she failed to do effectively. As she sounded her first whistle her engine was stopped, but not until the Pavonia sounded her second whistle did she reverse.
In this connection, counsel for the Breakwater claims that rule 19, requiring, in the case of crossing steamers, that the one having the other upon her starboard side shall keep out of the way of the other, has no application. We think, however, the rule became obligatory from the moment the [155 U.S. 252, 264] Pavonia got under way, when it became her duty to keep her course and speed, and that of the Breakwater to avoid her. The Britannia, 153 U.S. 130 , 14 Sup. Ct. 795. It was said by this court in the case of The Pacific ( Steamship Co. v. Rumball), 21 How. 372, 384, and The Wenona, 19 Wall. 41, 52, that 'rules of navigation, such as have been mentioned, are obligatory upon vessels approaching each other from the time the necessity of precaution begins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain.' Where rules of this description are adopted for the guidance of seamen who are unlearned in the law and unaccustomed to nice distinctions, exceptions should be admitted with great caution, and only when imperatively required by the special circumstances mentioned in rule 24, which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger. The moment the observance or nonobservance of a rule becomes a matter of doubt or discretion, there is manifest danger, for the judgment of one pilot may lead him to observe the rule, while that of the other may lead him to disregard it. The theory of the claimant that a vessel at rest has no right to start from her wharf in sight of an approaching vessel, and thereby impose upon the latter the obligation to avoid her, is manifestly untenable, and would impose a wholly unnecessary burden upon the navigation of a great port like that of New York. In the particular case, too, the signals exchanged between the steamers indicated clearly that the Breakwater accepted the situation and the obligation imposed upon her by the starboard-hand rule, and was bound to take prompt measures to discharge herself of such obligation.
No fault is to be imputed to the Pavonia for her failure to stop and reverse, since it is quite obvious that if she had slackened speed her tendency to sag down the river would have been greatly increased, and she would practically have been at the mercy of the wind and tide. Her only safe course was to do precisely as she did,-put her wheel hard a port and her engine at full speed. The duty to slacken speed manifestly [155 U.S. 252, 265] does not apply where the effect would be to carry a steamer bodily down the current upon another vessel which is trying to avoid her.
That the Breakwater did not reverse with sufficient promptness is evident from the fact that, at the time the Pavonia started, she was off Barclay street, a distance of nearly 900 feet, while the collision occurred abreast the slip immediately below the one from which the Pavonia started, or about 580 feet from where the Breakwater was when the Pavonia left her bridge, while, if the Breakwater had promptly reversed, she would have stopped within her own length (212 feet) or about 360 feet below the spot where the collision took place.
Upon the whole, notwithstanding the earnest argument of appellant's counsel, we think the decision of the circuit court was correct, and its decree is therefore affirmed.