The Federal Reporter (Annotated), Volume 172: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. October-November, 1909. Page: 57
xv, 1023 p. ; 23 cm.View a full description of this legislative document.
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UNITED STATES V. ERIE . CO.
"This court has repeatedly held the fault, and even the gross fault of one
vessel, does not absolve the other from the use of such precautions as
good judgment and accomplished seamanship require. The Maria Martin, 12
Wall 31, 20 L. Ed. 251; The America, 92 U. 8. 432, 23 L. Ed. 724; The
Lucille, 15 Wall. 676, 21 L. Ed. 247; The Sunnyside, 91 U. 8. 208, 23 L. Ed
802."
After commenting on the decision in The Britannia, 153 U. S. 130
14 Sup. Ct. 795, 38 L. Ed. 660, from which the learned justice had dis-
sented, he said (page 254 of 177 U. S., and page 601 of 20 Sup. Ct
[44 L. Ed. 751]) :
"Now, as it appears from the testimony of the Argo's crew that they not
only heard the signal of two whistles from the Dumois, but saw her turn
under her starboard wheel, and exhibit her green light when she should
have ported, they were at once apprised of the fact that she was violating
a rule of navigation, and that prompt action was required to avoid a col.
lision. * * * We are of opinion that the Dumois was primarily in fault
for this collision, in starboarding instead of porting when she first sighted
the Argo: and, while the case with respect to the Argo is by no means free
from doubt, the majority of the court are also of opinion that the Argo was
in fault for failing to observe the twenty-first rule, which required her to stop
when risk of collision was involved. * * "
Hall v. Chisholm, 117 Fed. 807, 813, 55 C. C. A. 31, 37, involved a
question of duty under circumstances disclosing nonobservance of rules
and consequent danger of collision. Judge (now Mr. Justice) Day, said:
"No matter how flagrant the fault of the navigators of the raft may have
been, that would not excuse the Wade from adopting every proper precaution
to avoid a collision after it became apparent that it was likely to occur."
In Lake Transp. Co. v. Gilchrist Transp. Co., 142 Fed. 89, 73 C. C.
A. 313, this court recognized the rule that prompt and decisive meas-
ures must be taken to avoid collision where violation of a passing agree-
ment is apparent. When distinguishing the case of The Elphicke, 123
Fed. 405, 59 C. C. A. 286, Judge Lurton said (page 97 of 142 Fed., and
page 321 of 73 C. C. A.):
"The collision involved in that case between the Poe and the Elphicke
occurred in broad daylight. The Poe saw that the Elphicke was not doing
her duty, and 'was out of her proper place and taking measures to right her-
self'; but she depended upon the Elphicke being able to retrieve her fault,
and refused to vary her own course. It was a clear case of apparent danger
of collision with time to avoid it."
Again, in the Elphicke Case, Judge Severens said (page 406 of 123
Fed., and page 287 of 59 C. C. A.) :
"The law gives no countenance to such perversity, but, on the other hand,
exacts of each vessel that. notwithstanding the errors of the other, it shall
to the end do all in its power to avoid the consequences of the fault"
The Delaware, 161 U. S. 459, 467, 16 Sup. Ct. 516, 520, 40 L. Ed.
771, involved a discussion of the mutual rights and duties of steamers
approaching each other as here upon crossing courses. The preferred
steamer, the Talisman, kept its course and speed--exactly opposite con-
duct from that of the Hancock. The Talisman was found blameless
and the Delaware in fault. . Mr. Justice Brown said:
"The main fault charged upon the Talisman, however, is that of not stop'
ping and reversing, when the failure of the Delaware to take measures to
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The Federal Reporter (Annotated), Volume 172: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. October-November, 1909., legislative document, 1909; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38218/m1/68/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.