Sec. 45. Moderate speed. The term "moderate speed," as required by the rules, is that degree of speed which will enable a vessel to stop after seeing a vessel or hearing a fogsignal of an approaching ship, in time to avoid the vessel speed. Barry v. Steamship Utopia, 1 Fed. R. 892; The City of New York, 35 Fed. R. 604; The Charlotte Webb, 43 Fed. R. 151; The Britannic, 39 Fed. R. 395. Ten miles held to be immoderate speed.—In a fog so dense that a vessel cannot be distinguished except at a very short distance, ten miles an hour was held to be immoderate speed even in mid-ocean. Hardy v. The Fulda, Dist. Ct. S. D. N. Y., July 29, 1892; The Westphalia, 4 Ben. 404; The Marathon v. The Andrew Hicks, 24 Fed. R. 653; La Normandie, 58 Fed. R. 427; The Saale, 63 Fed. R. 478. Where two steamers are navigating the most frequented waters of Lake Superior by night in a dense fog, one running at the rate of ten miles per hour, and the other at the rate of six miles, each hearing several signals from the other indicating that they were approaching each other, it was held that both vessels were at fault for excessive speed. The Alberta, 23 Fed. R. 807. Where a steamer in a dense fog kept on at the usual speed of ten knots an hour after hearing the foghorn of a sailing-vessel about a point on her starboard bow, and starboarded her helm without moderating her speed, until she saw the bark coming across her bow about an eighth of a mile distant, a collision ensuing, it was held that the steamer was at fault for maintain ing too great a rate of speed. The City of New York, 15 Fed. R. 624. Nine knots an hour immoderate. Steaming nine miles an hour on a foggy night in the path of other vessels, no pressing emergency existing, held to be excessive speed. Prescott v. The United States, 19 Ct. Cl. 684; The Pennsylvania, 12 Fed. R. 914; The Blenheim, 14 Fed. R. 797. Moderate speed means reduced speed; therefore, when a steamer whose full speed is nine knots an hour was moving at that rate in a fog through which lights could be seen but about a quarter of a mile away, it was held immoderate speed. The City of Atlanta, 26 Fed. R. 456; Hood v. The Lehigh, 43 Fed. R. 597. Eight miles an hour held excessive.- Eight miles an hour in a fog and in the usual track of vessels approaching a harbor is excessive speed. The City of Panama, 5 Saw. 63; The Martello, 34 Fed. R. 71; The City of Guatemala, 7 Ben. 521; Leonard v. Whitwell, 10 Ben. 638. Seven miles per hour excessive.— A steamer running at the rate of more than seven knots an hour in a fog so dense that a ship can hardly be seen at the distance of a ship's length is guilty of negli gence. The Catalonia, 43 Fed. R. 396; Leonard v. Whitwell, 10 Ben. 638; The Pennsylvania, 19 Wall 125; 9 Blatch. 451; 4 Ben. 257; The complying with the law in giving it,' due allowance being made for the approach of each. Sec. 46. What speed is permissible.- The courts require a strict compliance with the rule requiring moderate speed in a fog or thick weather. There may, however, conditions arise where, under the peculiar circumstances of the case, this rule would not be adhered to with the usual degree of strictness; but a violation of the rule can only be justified by the existence of a present and threatening danger, and a necessity to go at a higher rate of speed than would otherwise be permitted, to avoid this danger. The peril, however, must be a present one; and a belief on the part of the ship's officers that danger, under certain circumstances, may arise in the future, is not a sufficient excuse to Magna Charta, 25 L. T. (N. S.) 512; The Wyanoke, 40 Fed. R. 702; The Nacoochee, 22 Fed. R. 855; 11 S. Ct. 122; 137 U. S. 330; The Allianca, 39 Fed. R. 476. speed of over five miles an hour unnecessarily in a river in a dense fog, on a course where other vessels are liable to be encountered. The Raleigh, 41 Fed. R. 527; The Luray, 24 Fed. R. 751; The Pottsville, 12 Fed. R. 631. Six miles held excessive. A steamer moving at the rate of six miles per hour down a river fre- Four miles per hour held excessive. quently used by passing boats, held A sailing-vessel in a fog, and in a liable for excessive speed. The situation where other vessels are John E. Berwind, 49 Fed. R. 956; likely to pass, is bound to moderate 1 U. S. App. 72; The Wyanoke, 40 her speed, and four miles per hour Fed. R. 702; The Energy, 42 Fed. in a sailing-vessel approaching New R. 301; The Michigan, 63 Fed. R. York harbor in a thick fog held 280; The Fulda, 52 Fed. R. 400. excessive. The Martello, 34 Fed. R. 71. Five miles an hour held excessive. Five miles an hour in a thick fog is not the moderate speed required by the International Rules, article 13, of a steamer nearing New York port, whose full speed is twelve knots an hour. The Martello, 84 Fed. R. 71; 39 Fed. R. 505; Hardy y. The Raleigh and The Niagra, 44 Fed. R. 781. It is faulty navigation for a vessel to continue her course at a 1 The Michigan, 63 Fed. R. 295. Moderate speed.- In the case of Bradley v. The John Pridgeon, Jr., 38 Fed. R. 261, the court held that a speed of five miles an hour, when there was some sea and wind, did not show such negligence as would render the vessel liable, and was moderate speed under the circumstances. A steamer running at half her permit the violation of the rule. It is no excuse for violation of the rule that the vessel is employed on public busirequiring haste, such as carrying the mails, bearing government dispatches, or other public business. The rule is inflexible, and must bear alike upon all who come within its force.2 ness Sec. 47. Stopping and reversing. The international rules of 1890 provide that "every steam-vessel which is di rected by these rules to keep out of the way of another ves regular speed in a snow-storm at Fed. R. 462, where a steamer collided with a vessel which it was seeking to rescue, the court held that notwithstanding the laudable enterprise in which it was engaged, in seeking to aid those supposed to be in distress, she was nevertheless liable for immoderate speed. A concurrent fault will not excuse either of the parties violating the rule. The fact that one of two vessels in a fog did not reduce her speed is no excuse to the other for Where a steamer was going in a fog at about three and a half miles per hour, which was, according to her master's testimony, as slow as she could go against sea and wind, violating the rule. it was held that her speed was Appleton v. The Kate Irving, 2 Fed. R. 919; The moderate. The Johns Hopkins, 13 City of New York, 15 Fed. R. 624. Fed. R. 185. It was held that where a steamer Where a vessel requires four hears another's fog-signal, when at knots an hour for steerage-way, a distance of three miles, with such sufficient to give control over her, distinctness as to enable her to four knots an hour at the entrance locate the other correctly, it is to New York harbor, in a thick chargeable with notice of subsefog, will not render her liable for quent signals indicating a change excessive speed. The Martello, 39 of course; and if through inattenFed. R. 505; The Lorenzo D. Baker, tion she fails to hear the subse 24 Fed. R. 814. The Iberia, 40 Fed. R. 893. ? Rogers How. v. The St. Charles, 19 108; The James Adger, 3 quent signals, but continues on her course at full speed until a near approach renders the situation critical, and reversing fails to pre Blatch. 515; The Northern Indiana, vent collision, she is chargeable 3 Blatch. 92. In the with contributing fault. The Kate case of The Nacooche, 28 Butteroni, 59 Fed. R. 494. sel shall, on approaching her, if necessary, slacken her speed, or stop or reverse.' 99 1 The international rules of 1885 provide that "every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or stop and reverse, if necessary." The rule governing the navigation of the Great Lakes3 is the same as the international rule of 1890. It will be observed that there is something of a change in the requirement of the rule of 1890. The rule of 1885 requires a steamvessel, when approaching another so as to involve risk of collision, to slacken her speed, or stop and reverse, if necessary the rule requiring the vessel to both stop and reverse. The rule of 1890 is so modified that the necessity of either slackening speed, stopping or reversing must be apparent, and the vessel may either slacken speed without reversing or may slacken speed and reverse. It may be stated, as a general rule, that it is necessary for a steamer to stop and reverse in a dense fog when a whistle or fog signal is heard approaching on either bow, and apparently in the vicinity, unless the fog signals of the approaching ship unequivocally indicate that it is headed so as to pass clear, without involving risk of collision. Where two steamships are invisible to each other in a dense fog, and find themselves drawing near together, ordinary prudence requires them to stop or reverse, without waiting until they become visible to each other, unless there are attending circumstances of unusual character which make it more dangerous to stop or reverse than to advance. Such danger, 126 U. S. Stat. at L. 320, art. 23; The North Star, 62 Fed. R. 71; Alexander v. Machan, 147 U. S. 72. 223 U. S. Stat. at L. 441, art. 18. 3 Rules governing the navigation of the Great Lakes, Rule 21. Approved February 8, 1895. Page 72. 4 The Lebanon v. The Cilo, L. R. 14 App. Cas. 670; The Anna, 14 Phila. 521; The Britannic, 39 Fed. however, must not be imaginary or speculative, but must be a positive, present and imminent one. In the absence of such imminent danger as prevents stopping or reversing, it is the duty of steamers approaching on opposite courses to stop until they come to a clear understanding with regard to their respective positions and courses; and where there is any confusion of signals or any other apparent risk of collision, it is their duty not only to stop but to reverse until all way is lost.1 It is not sufficient that a steamer proceeding in a thick fog change her course merely, after hearing the signal of an approaching ship, when the fog is so dense that the approaching vessel is not visible, and her exact location cannot be definitely determined. The rule requires a steamer under such circumstances to proceed with the utmost caution, and not to change her course without knowing the position and direction of the other; and when the signals of the approaching vessel indicate a near approach, it is the McWilliams v. The Vim, 12 Fed. R. 906; Hoben v. The Westover, 2 Fed. R. 91; The Havanna, 54 Fed. R. 411. 1 The North Star, 43 Fed. R. 807; 62 Fed. R. 71. When two steam-vessels are approaching each other from opposite directions, if from darkness, fog or haziness of the atmosphere it is difficult to ascertain the character, position or direction of each other, it is the duty of each, when the other is observed, to instantly check its speed, and if necessary to stop and reverse. Ward v. Ogdensburg, 5 McLean, 622. When by reason of smoke or fog the side-lights of an approaching vessel cannot be readily ascertained, it is the duty of a steamer navigating under such circumstances to give frequent sound sig nals and to slacken her speed, and if necessary to stop and reverse, on meeting a vessel whose situation and course are uncertain. The Ping-on v. Blethen, 11 Fed. R. 607; The D. S. Gregory, 16 Blatch. 542; The Pennland, 23 Fed. R. 551. On making the light of another steamer, or hearing her fog signal, if there is the least uncertainty as to her position and direction, speed should be instantly checked, and, if occasion requires, the vessel should be backed; keeping a powerful steamer at full speed under such circumstances is negligence per se. The Ogdensburg, 1 Newb. 139; The Pottsville, 24 Fed. R. 655; Bradley v. The John Pridgeon, Jr., 38 Fed. R. 261; The Wydale, 37 Fed. R. 716; The Illinois, 5 Blatch. 256. |