The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 15
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THE MARY B. CURTIS
gation, adopting this course, could have safely passed the dredge with-
out mishap. If so, there was no fault in inviting it to do so. The
fault was in the subsequent unskillful navigation of the fleet in ap-
proaching and passing the dredge, viz., in permitting the fleet to get in
shoal water, where navigation was difficult, and in the reversal of the
engines of the Curtis at a time when the effect was to draw the fleet
against the dredge. The fault would in that event have been solely
that of the fleet, if the position of the dredge in the canal was not
fault, and we have so determined.
The other contention is based upon the aspect of the evidence that
the fleet took the direct course across the river in approaching the
dredge; that the wind and current made this a dangerous thing to
do; that the dredge invited the fleet to approach in this course, know-
ing of the danger of doing so, and thereby participated in the fault
that produced the collision. Conceding that the dredge did more than
recognize the fleet's signal, and in fact invited the fleet to approach
and pass it, we do not think that fault can be based on such an invi-
tation for these reasons. It does not appear that the invitation directed
the course to be pursued by the fleet in accepting it, or that the dredge
had actual or imputed knowledge when it gave the invitation that the
fleet would act upon it by taking the dangerous course. It is also not
satisfactorily shown that careful navigation over the direct course
would not have availed to avert the collision, or that the dredge could
have reasonably anticipated that its invitation, carefully acted upon by
the fleet, whatever course it took, would have likely resulted in dis-
aster. That there was unskillful navigation in handling the fleet as
it passed the dredge, and that it precipitated the collision, is clear. We
think there is ample ground for a finding that, in the absence of such
improper navigation, the passage of the fleet over the direct course
would have been so reasonably free from danger as not to have made
an invitation to pursue it negligence.
It must be remembered, in considering this question, that the offi-
cers of the dredge knew that the officers of the fleet were familiar with
the canal and the position of the dredge in it; that they knew the width
of the fleet and its draft, and the width of the channel and its depth,
and were in a better position to know whether navigation by the direct
course was safe for a fleet of the width of beam and depth of draft of
the instant one than the officers of the dredge could be. The signal,
at most, amounted to a permission, and was in no sense a direction;
and this is true, though the dredge had the right of way and could
have prevented the passage of the fleet. The fleet had the right to
pass or anchor, as it saw fit. The dredge did no more than signify its
willingness for the fleet to pass, if it desired. Whatever might be the
effect of an invitation to proceed, when proceeding was fraught with
imminent danger, known to the person giving the invitation, and un-
known to the person acting on it, we do not think this is such a case.
The danger under proper navigation was not unreasonably great; it
was known as well or better to the fleet than to the dredge, and was
to be acted upon by the fleet only at its option and consequently at
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/30/: accessed April 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.