APPEAL from the Circuit Court for the Southern District of New York; the case being thus:

An act of Congress for preventing collisions at sea1—the act being essentially the same as one2 enacted by the British Parliament—lays down these

Rules governing Fog Signals.

Whenever there is a fog, whether by day or night, the fog signals described below shall be carried and used:

Steamships under way shall use a steam whistle.

Sailing ships under way shall use a foghorn.

Steamships and sailing ships when not under way shall use a bell.

This statute being in force, the Mary Troop, a British bark, was bound from Androssan, in Scotland, to New York, with a cargo of iron, and at ten o'clock on a morning of June, 1869, found herself still on the high seas, about two hundred miles from Sandy Hook. A dense fog was prevailing at the time, so thick that a large vessel could hardly be seen at the distance of fifty feet. The wind was variable, and rather strong from south to southwest. The bark was under way, heading from southeast to south-southeast, and moving at least a mile an hour; her helm lashed three-quarters to port, but on her starboard tack, carrying two close-reefed topsails, foresail, foretopmast and mizzenstay sails; no sail aback. She had a bell, hung to the forestay by a reef-earing to the forestay, and this bell was rung by a lanyard tied to the tongue of the bell, from fifteen to twenty times a minute. She also had a good foghorn. This horn had been used the day before, but was not used on the morning of which we are speaking.

The whistle of a steamer was heard through the fog off the port side. The second mate, who had just at that moment reached the deck, called to the captain and mate, 'Do you hear that foghorn?' The mate replied, 'It is a whistle,' and he and the captain at once ran aft. As they got on the quarter deck, the bows of a large steamer appeared through the fog heading rapidly for the bark, and but a short distance off. The steamer appeared to be then swinging on a starboard helm, but almost instantly changed her course on a port helm and struck the bark stem on, on the port side of the bark by the forerigging. The blow cut the bark in two and she sank instantly. The captain, the second mate, and four of the crew were drowned. The only persons saved were the mate, the cook, and two men who were in the watch below.

The steamer proved to be the British steam propeller Pennsylvania, a vessel of 300 horse-power, 2388 tons, and 341 feet long. Her speed at the time when she thus appeared to the bark and coming down upon her, was seven knots an hour.

There was nothing in the evidence beyond the evidence of her speed—if that was proof of want of precaution—to show any want of efficiency, vigilance, or precaution in the navigation and management of the steamer up to the first intimation of the bark's proximity. She had two lookouts at their stations, 'keeping their eyes and ears open for anything that might come in the way.' They heard the bell of the bark, and reported, 'Ship ahead, a little on the starboard bow.' Order was given to the engineer, 'Full speed astern,' and the order was executed as soon as practicable. The helm was ported; then a call to 'starboard' was heard from some quarter, and she starboarded; then again ported, but in less than half a minute after the report of 'ship ahead' was made, and before the steamer had run her own length, she went head on into the bark with the deplorable result already stated.

When the steamer had got in the port of New York, the owners of the bark libelled her in the District Court there.

There was comparatively little dispute about facts. It was admitted that the steamer's rate was seven knots an hour. Her master was examined, and said:

'The steamer was going seven knots. Her highest rate of speed under the most favorable circumstances, is thirteen and a half knots. The wind, the day of the collision, was south-southwest, strong. The wind had been this way all the morning, and I think all the night. There was a good heavy swell—more than there should have been for the wind there was.

'Question. I with the wind and sea as it was, could you have run your vessel safely at a less rate of speed?

'Answer. I don't consider we could have steered the vessel, going slower; that is, could not have steered her straight.'

Two other masters were examined, and confirmed this view; but they had never, either of them, sailed the Pennsylvania, and each of them had sailed other vessels at a less rate.

On the other hand, one Lovett, a shipmaster for sixteen years, who had happened in 1865—she being then heavily laden—to be a passenger on the Pennsylvania, testified that on the whole day then, her speed, he thought, did not average over four knots an hour, and that he noticed no difficulty in her steerageway.

So, too, while the technical violation of law in ringing a bell instead of blowing a foghorn was not denied, evidence was introduced by the owners of the bark to show that a good bell could be heard further than a foghorn; evidence, however, which was contradicted by witnesses in behalf of the steamer, who swore that if the foghorn was a good one it could be heard further off than could a bell.

The District Court condemned the steamer for the whole loss. On appeal by her to the Circuit Court, that court affirmed the decree, yielding assent, however, with great hesitation, to the view of the District Court, that notwithstanding the conceded violation on the part of the bark, of a plain rule of navigation, the consequences of the disaster were to be visited entirely upon the steamer. From the decree of the Circuit Court thus affirming the decree of the District Court, the present appeal was taken.

Before the case came here, and on the steamer's return to England, the owners of the cargo of the bark libelled her in the British admiralty. The case was heard there on evidence much less full than that upon which it was heard in New York, especially less full on the part of the steamer. The admiralty, admitting the violation of law by the bark in not sounding a foghorn, condemned, nevertheless, the steamer for the whole loss; considering that it was attributable to the improper rate of speed of the steamer in a fog so thick as here existed, and this decree was affirmed by the judicial committee of the Privy Council.3

Messrs. William Allen Butler and John Chetwood, for the appellants:

1. The presence of the bark was discovered by the steamer's lookouts at the earliest possible moment, and the steamer was, therefore, without fault in respect to that point. And the steamer was equally without fault in respect to every act done after the presence of the bark in her neighborhood was first indicated.

2. The bark was clearly in fault in not complying with the rule which required the use of a foghorn while she was under way. The rule is imperative:

'Sailing ships, when under way, shall use a foghorn.'

3. The steamer was not to blame on account of her rate of speed at the time of the collision. Lovett's evidence as to the speed five years before the collision, when she was very heavily loaded, is irrelative to the present case.

The law prescribes no rate of speed, and in the absence of controlling evidence that seven knots is an unsafe rate of speed for a steamer under the circumstances shown in this case, the court cannot say that it is evidence of negligence when all the testimony shows that in every other respect the utmost care and vigilance were exercised to navigate the steamer safely. The weight of evidence shows that it was the lowest rate of speed at which this steamer could go in the then state of the wind, consistently with safety. A steamer has a right to go as fast as she can, provided that it is not so fast as to prevent her from avoiding vessels under way or at anchor which are complying with the law. Had the bark been properly blowing a horn, or even regularly and loudly ringing a bell, it could have been heard, with the wind blowing as it was from the boat toward the steamer, at such a distance that the steamer might, and the court's bound to assume in this case would, have avoided the bark. Any other rule would impose upon ocean steamers the alternative of reducing their rate of speed, so as to render them much less serviceable by prolonging their voyage, or of taking the risk of being punished for every collision with a sailing vessel, however carelessly or illegally navigated. It would virtually announce to sailing vessels that in every case of collision with a steamer, the court would punish the steamer, even though innocent, and indemnify the sailing vessel, even though guilty.

4. The court below erred in attempting to speculate upon the question whether the established negligence and violation of law, on the part of the bark, was or was not the cause of the disaster. The fact of such violation without excuse being proved, and the extent to which it operated as a proximate cause of the collision not being ascertained, it was error to impose the burden of the disaster upon a vessel which was complying with the law in all respects.

The decree below should be wholly reversed.

Mr. R. D. Benedict, contra:

The decree below is right.

The Pennsylvania was in fault in the contradictory orders which were given as to her helm. It was first ported, then starboarded, and then again ported. This shows that there was confusion on the part of the steamer. Such confusion is a fault. There was abundance of time for the steamer to have avoided the bark after her presence was known, by either starboarding or porting, if the steamer had been properly managed.

The fact that the bark was ringing a bell instead of blowing a foghorn, if a fault at all under the circumstances, was only a technical, not a substantial fault, and did not in any way contribute to the collision.

The bark was lying-to under close-reefed sails, with her helm lashed three-quarters to port. She was making lee-way, heading from southeast to south-southeast, but going east by south, and making a speed of one mile per hour on that course, practically drifting helpless; as the opinion of the British Privy Council says, 'forging ahead very softly.'4 Although the foghorn was the signal which the law requires for a vessel under way, yet the bell gave the louder signal, and could be heard farther. The fact that this master and mate, having a good foghorn on board, hung this bell on the stay to use as a fog signal, is conclusive. Their property and their lives were at stake, and it would require very strong evidence to induce any court to believe that they deliberately chose that one of the two signals, which carried with it the smaller measure of protection.

If it is to be held that this bark was 'under way,' still she was barely under way. And the case then is one in which the vessel being barely under way, used the signal for a vessel not under way, which was in fact a louder signal than the law required, and gave the notice required by the rule, viz., that the vessel was helpless, as was the fact. If that was a fault it was already said not a substantial fault. To visit it upon these owners with the loss of their vessel, would be a hard measure. If it was clearly made to appear that the steamer had been misled by it, the case would be a very different one. But the steamer was not misled in the slightest. It is not even suggested by opposing counsel that she was. And it is clear that she could not have been, because she don't pretend to have heard the bell at all; but acted confessedly on the call, 'Ship ahead.' If a horn had been blown, therefore, instead of a bell being rung, the movements of the steamer would have been the same. The collision then was absolutely unaffected by the substitution of the bell for the horn.

It is urged that the courts below should not have considered the question whether or not the ringing of the bell contributed to the collision. Doubtless it would simplify the trial of collision cases, if the courts were only called upon to inquire whether each vessel had complied with all the requirements of the law, and not to inquire whether any failure to comply with them had anything to do with the collision. But that would be an unheard of mode of disposing of these cases. The question always is: 'Did the vessel commit a fault which contributed to the collision?' As Judge Phillimore puts it in this very case, 'not which vessel was to blame, but which was to blame for this collision,' is to be considered. And a fault which did not contribute to it, has never been held a reason for refusing to a libellant his full damages.

In The Farragut,5 the absence of a special lookout was charged as a fault, and this court said:

'It is perfectly evident that the absence of a special lookout had nothing to do with the happening of the accident, and therefore it can have nothing to do with fixing the liability of the parties.'

In addition to concurring decrees in the District and Circuit Court, which when they exist this court will not lightly disturb, we have on our side the high authority of the judicial committee of the British Privy Council, affirming the decree of the British admiralty. This court will not readily disturb the concurring decrees of so many tribunals.

Mr. Justice STRONG delivered the opinion of the court.