Henry Billings Brown

“ She heard her final signal of two blasts as she was passing the last barge, and should have known that if she continued her course a collision would be inevitable, and yet she did not stop or reverse. Her conduct was inexcusable. The lesson that steam vessels must stop their engines in the presence of danger, or even of anticipated danger, is a hard one to learn, but the failure to do so has been the cause of the condemnation of so many vessels that it would seem that these repeated admonitions must ultimately have some effect. ”

“ In this view, the question whether two American vessels running from one American port to another are bound, whenever they cross the boundary line between the United States and Canada, which at this point is the filum aquoe of Detroit river, to conform to the navigation laws of Canada, does not arise in this case. Were all the commerce of the lakes carried on in American vessels the question would be less difficult of solution. ”

“ These vessels were about to meet upon crossing courses, and to pass each other in the narrowest part of the channel. The Conemaugh had three times signaled her wish to take the Canadian side, and pass starboard to starboard. The New York had three times neglected to give her assent to this arrangement. The Conemaugh had construed her failure to reply as an acquiescence in her own signals. The New York might have construed such failure as a refusal to acquiesce. ”

“ What we do decide is that the duty to answer a signal is as imperative as the duty to give one. Not only does the 2d rule of the supervising inspectors require of crossing steamers that 'signals by whistles shall be given and answered promptly,' but ordinary prudence demands that an obligated steamer proposing by whistle to deviate from the customary course shall receive an immediate reply, that her wheel may be at once put to starboard or port, as the exigencies of the case may require. ”

“ But as much of this commerce is Canadian, and it is impossible to tell whether an approaching vessel be American or Canadian, an attempt to apply the laws of the United States in all cases might result in confusion and in great injustice to Canadian vessels, in case the rules and regulations of the two countries differed in any material respect. ”

“ A delay of even a few seconds may seriously embarrass her as to the intention of the preferred vessel. This is now made obligatory upon vessels navigating the Great Lakes by the act of February 8, 1895 (28 Stat. at L. 645) , the 23d rule of which declares that 'every steam vessel receiving a signal from another shall promptly respond with the same signal, or as provided in rule 26.' If the New York had promptly answered the Conemaugh's signals, probably no collision would have occurred. ”

“ However this may be, her failure to answer the whistles of the Conemaugh, or to stop and reverse, after her white light was seen, was wholly inexcusable, and, under the particular circumstances, cannot be justified by her general duty as a favored vessel to keep her course or by anything that was said by this court in The Britannia, 153 U.S. 130, sub nom. The Britannia v. Cleugh, 38 L. ed. 660, 14 Sup. Ct. Rep. 795. The master of a preferred steamer cannot, by blindly adhering to his course, atone for the neglect of other precautions. ”

“ But we think that for another reason the act is properly before us. After the case had been appealed to the circuit court of appeals, the libellant moved that court for an order requiring the testimony of a witness to be taken to prove the Canadian statute, and filed in support of this motion affidavits that in the printed record there was no copy of this statute, but that it was introduced in the district court and used and referred to in the arguments upon the rehearing before the district judge ”

“ Her officers failed conspicuously to see what they ought to have seen or to hear what they ought to have heard. This, unexplained, is conclusive evidence of a defective lookout. The Sea Gull, 23 Wall. 165, sub nom. The Sarah Watson v. The Sea Gull, 23 L. ed. 90; The James Adger, [5] 3 Blatchf. 515; The Fanita, [6] 14 Blatchf. ”