Brief for the Petitioner — Postal S.S. Corporation v. The El Isleo. Same v. Southern Pac. Co

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‘Supreme Court of the United States”

OCTOBER TERM 1999.

; NOS. 73 AND 74 __ ead Fs

POSTAL STEAMSHIP CORPORATION,

: Pri Petitioner,

ies “ " against .

' Steamsnip EL ISLEO, etc. ; 2

' SOUTHERN PACIFIC COMPANY,

ee y ayieae _ . Respondent.

POSTAL STEAMSHIP CORPORATION, |

Sa cigs So Petitioner,

ee \g ! againgt

\ SOUTHERN PACIFIC COMPANY,

i “—, ? 2 _. Respondent.

g See me :

. PETITIONER'S BRIEF.

° » nd :

: 3 2 JOHN C. CRAWLEY

eEU Rae. Ferg 4 EARLE FARWELL

i: "fo the Petitioner.: —

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INDEX

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Question presented . A: an Poo Ere ep ieseee ts .2F

Peo Se aa alt ees yrs eres

Decision to be Reviewed (El Isleo’s ‘right to sound

_cross-signal and continue until collision immi-. |

EMER oo pa reccoaesse ts wie View oe" Serer ee

Vessels subgequently i ip ¢ extremis, Dist ia no ee.

Argument: | 7 ; “han

Essential facts not controverted.. A Ua rays: “ eee aa

Analysis by Judge Learned Hand i in The Fulton... ey |

Question open in this court. diunlanssreniean st © 10, 11, 12

(ENS ae eee EE (ESE ieee ees

Appendix (Statutes and Inspectors’ Rules)..... meer

Reproduction El Isleo Exhibit—opposite page 18.

. eae

Ky ga . | Fy

. Crrartons P

wee PAGE

Belden v. Chase, 150 U. S. 674.."..... jdeaee Ore ids 13 —

. Breakwater, Tlie, 155 U. S; 252............ 02.0 ees eee

Britannia, The, 153 U. S. 190... Rees jetceoreine Tee

Delaware, The, 161 U. Oy BRS hile ke intenien . 2 10, 13

Eastern Glade—E]l Isleo, opinions ot 20 F. Supp.

373; 101 F. 2d 4....... [unees 6h 7estentaaaewses -

Fulton, The, 54 F.(9d) 467. ..95 0.06500... 08 cee <a

. Guy v. Donald, 203 U. S. 399-2. ....0ee eee. ensamedec o> MMe

New York; The, 196-0. Bs Vicia es ek ea

Wilson v. Pacific bese cc Vempany: 276 U. S. 454. . 1

; STATUTES :. 4

33 Ui S. Code ch. 2, tincenibanst Rules, § 106. . 11

- 33 U. 8. Code ch. 3, Inland Rules, §$ 204, 206, — a

— 207, 208, 212, D1... 5,9, 10 7

33 U. S, Code ch. 4, Great Lakes Rules, § 283, et

DUR ekoesacurecenteales Coedereranees .8, 12, 14, 15 ;

% ; i a.

Revisep Statutes:

COME Ne cpenoiienl sca ee es eae

MISCELLANEOUS : |

: Supervising Inspectors’ ‘Rules, Certain Inland | ’

WPM boda dk cvenesas tes reek anuteee ‘Sue 6 LO, 16, 17

Supervising Inspectors , Rules, Great Lakes. .3, 12, 15

‘

°

| Supreme Court of the Hnited States

OCTOBER TERM, 1939.

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Posrat Steamsané Conporarioy,

_ Petitioner, ed

AGAINST Shite skye No. 73

Steamship. Ex Isieo, ete.;

‘ SoutHern Pacizic Company,

| See hey Respondent.

PostaL ‘STEAMSHIP Corporation, ;

Petitioner,

AGAINST “s No. 74

'. SouTHern Pactrtc Company,

Respondent.

PETITIONER'S BRIEF.

* Certiorari was granted on October 9, 1939, ae review —

a decision of the Circuit. Court of Appeals for the.

‘Secdnd Circuit, in admiralty, affirming two decrees of the _

District Court for the Southern District of New York,

one a final decree dismissing the petitioner’s libel against _

the respondent’s steamship E] Isleo, and the other an in- |

terlocutory deeree in fdvor of the: respondent upon its -

cross-libel against. the . b oaguamcatl ~ steamship | Eastern |

lade. — a

The opinion of the Circuit Cui of Appeals (R. 281),

_ from which we quote below, is reported in 101 F. (2d).

4, and that of the paket Court in 20 F. ave. 373.

_ Statement.

‘This is a ‘case of: egllision. Stwek: the petitioner’s.

steamspip Kastern Glade and the respondent *s steamship

* El Isleo which occurred near the junction. of Curtis Bay

» Channel and Fort McHenry ‘Chantel in the waters of

as Baltimore Harbor at 5:40 p.m. on Dé cember’ 19, 1935.

The vessels were on crossing courses, the Eastern ‘Glade ©

“iG, having El Isleo on, her starboard hand. Both vessels sus-

' tained damage. ‘The: courts below have found the peti-

_tioner’ s vessel solely at fault. |

ae, ¥ = e

ree ; - The Question Presented,

+

By the statutory starboard- hand rule, ieee ieee sia.

, ships are on crossing courses the one having the other fo

starboard is required to keep out of the way and’ the other

is:required to keep her course and speed.

In the absence of a distinct indication that the! so-called

burdened vessel ‘is ‘about to fail in her duty, ‘the point at

which the so-called: privileged vessel must herself take

action to avoid collision is the point at which it becomes

‘ evident to her navigator that the burdened » vessel alone -

* # cannot avoid collision. |

© What does er should constitute a “distinct indication’

at the burdened vessel is about te fail in her duty al-

‘ways has been a perplexing oe ’

In the case of The- Delaware, 161 U.S. 459, at 469, (infra, -

p. 10), this court “recognized and left open the question:

whether, in the inland ‘watérs, a two-blast signal, or an

alarm signal, from the burdened vessel ieee “AEP

“such an eon one

By the Act of June 7, 1897 (ch. 4 62, as ery

adopting the present statytory Inland Rules, the Super-

vising Inspectors of Steam. Vessels and the Director of the,

\

‘Bureau. of Mariné: Inspection ‘iia Navigation anger « ém- |

powered: to ‘‘establish such gules. to be observed by steam

vessels in passing each other * * * not inconsistent with

[the statute] * * * as they from.time to time may deem

. ’ necessary for safety,~which rules‘ when approved by the

, Secretary of Commerce,’’ shall have the force of the statu-

- tory enactments (33 U. S. C. § 157).*

In pursuance of their authority Me ‘supervising in-

spectors adopted regulations which, in substance, provide

that where the so-called privileged vessel in a crossing

\

situation receives an unacceptaMe proposal.to cross ahead,

. the privileged vessel my not maintain her course and ,

‘speed until collision becomes imminent .but at once must

sound danger signals and stop and back. if | —. until Z

a safe passage has been agreed: upon.

bad 4

I.

- The question presented is whether those siulatione of

thee supervising: inspectors, specifically Rules. H and Vl

“Of the Pilot Rules for,Certain. Inland Waters, are in con-"

"flict with Article 21 of the statutory Inland Rules, :

In the appendix to this brief ‘the pertinent sections of

the statutory Inland Rules, “together with the challenged

Rules of .the ‘Supervising Inspectors (in bold type), are .

printéd in one column, and in the other column are given:

-the comparable provisions of the statutory Rules (and the

Inspectors’ Rule X) governing navigation on the Great

akes. The latter are shown only because of their essential

‘sitkilarity to the statutory Inland ‘Rules as supplemented

e challenged Rules of the Supervising Inspectors. ,

The Facts..

‘It is believed’ that the facts sufficfently, appear in the

following’ excerpt from the opinion of Judge: Swan in.

the court. veo to whieh the footnotes have been. appended

ad the petitioner. pcan te °

he collision ncaa in the waters of Baltimore

r near the. junction of Curtis Bay Channel with

— =

* Set out on page 10 of Petition for Certiorari.

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45

Fort McHenry Channel. The latter i is about 600 feet wide

and runs in a northwesterly direction toward Baltimore;

the fgrmer running nearly east and ‘west, confes into Fort

McHenry Channél from the west but does not cross it.

The night was clear, the tide ebb, and a 15 mile breeze

was blowing from tlie northiwest. The steamship Eastern.

Glade, light, [Note 1] was bpund out of Curtis Bay Chan-

nel and was Sdteridinée to turn left into-Fort McHenry

Channel and proceed to Baltimore. The steamer El

. Isleo, laden with 1,000<tons : of steel ore, also bound for

Baltimore, was proceeding up Fort McHenry Channel at

. full .speed—about eight miles through the water, as she

was working’ only one boiler... When the vessels>sighted

~each other they were more than a mile apart, the El Isleo

being*about four points on the starboard bow of@the .

Eastern Glade. The latter stopped her engines “and

shortly thereafter sounded a two blast signal:to indicate,

as her master says, that his course was to the left and up:

Fort McHenry Channel. El Isleo answered the two blast

signal with an alarm followed by: one blast, to indicate

that she.would keep her course and speed, [Note 2] Cap-

tain Korn of El Isleo testified that the Eastern Glade °

responded with four blasts followed by one, while her -

captain says she responded with three blasts to indicate

‘that she was reversing her engines. El-Isleo kept. on

until she reached a buoy just) ‘opposite Curtis Bay Chan-

nel, when, believing collision’ imminent, she put her

rudder hard right-and swung out of Fort McHenry Chan-

nel te her starboard. The Eastern Glade, - although her

master .testified that he intended to hold .back in Curtis .

Bay Chanrel until'El Isleo had. passed the junction, came

-elear across Fort McHenry Channel-and brought her

Note ft. At the time of the collision the Eastern Glade was drawing

qf forward and 11.3 “feet aft (R. 146). Her bow was high, her

bit. er nalf exposed, the hub about at the water line (R. 61). She is

‘a single. screw steamer 400 feet long, 54.5 feet wide, of 27.6 feet

moulded depth. El Isleo is a single. screw steamer 334.6 feet long, 46.1

‘feet wide, of 26.1 feet moulded deptli. _(Lloyd’s Register.)

Note 2. The ‘master of El Isleo@estified on direct examination (R.

23):

= (Tha one blast signal following the four blast eal ‘nidicated

' what

-A. That I was coming up “the chaniriel and I demanded” the .

_ Tight to proceed on my way up the channel...

5

stem into contact. with the port’ side of EL Isleo about :

amidships. The place of collision was east of Fort Mc-

Henry Channel. The district. court did not determine

how far to the east, but McDonald testified it was about

200 yards.’” [Note 3]

After discussing the converging Courses of the two.

vessels, Judge Swan continued : pie oe a ,

**Such: converging courses involve the; very risk that °

resulted in the collision, and the rights and duties of the.

vessels are governed by Articles. ‘19, 22 and 23 of the

Inland Rules, 33 U. S. C. A. $§ 204, 207, 208. * * *’ .

“*'* * Accordingly, the District. rt was. right, in

treating the- situation as one of crossin Fcourses.”” . )

: The Decision to bé Re lowed.

Immediately followi ing the finding that the vessels were

on crossing courses the opinion of the Circuit: Court of

Appeals continued:

**So viewed no fault appears in the navigation of El

Isleo, the—privileged vessel. To the two blast ‘signal

of the Eastern Glade Captain Korn responded with an

alarm followed by one blast to indicate his refusal.to yield

his right of way. he Fulton, 2 Cir., 54 F. 2d 467,

we discussed the rule gstablished in this circuit that ina

crossing situation :the/ privileged vessel may ‘cross’ the

signal of the burdered vessel and hold her course and

speed gintil it becomes evident that the burdened vessel

either cannot or will not keep out of the way. Although

the rule was criticized, we thought it too firmly éStab- -

lished: to be dep rted- from until the. Supreme Court

speaks. We still adhere to that view.’” (Opinion, R. 284)

Note 3. This is a mistake on -the vaxt’s part. McDonald testified,

that the bearings which he took after the collision showed his vessel |

then to be about 200 yards to the eastward of the:channel? “That is

where we finally came to rest” (R. 204). His vessel proceeded at full

speed, turned: easterly under hard-right rudder, and her engines were

not stopped until about the time of collision (R. 220).

Vessels subsequently in-extremis.

- Haying thus held that El Isleo might sound a cross-

‘signal and- continue at fufl speed, the court found no fault —

in El Isleo’ 's conduct thereafter.’ \

“The district court found that El ‘ftaico. was justified

sin ‘holding her course and speed until she reached —

buoy 8 M, when she put her rudder hard right and

ran to starboard out’ of the channel. ‘The evidence

amply supports this finding. Nor can her captain be

charged. with fault because in extremis he chose that

chance of avoiding the collision instead of the chance

of reversing his-engines. The Nordpol, 2 Cir: 84°F. —

2% 3. We agree also. with the finding that the. proof ©

of - Kl Isleo’s navigation’ overcame any presumption

of fault arising from the fact that her captain had n

pilot’s licensggfor the localwaters. “The. fault of the

Eastern «Glad! was glaring and was alone sufficient

to account for the disaster; -hence any slight doubt as

to“the propriety of El Isleo’s navigation should. be

resolved or her favor. The City of New York, 147

U. 8.72, 13S. Ct. 211, 37 L.Ed. 84,” . :

The’ falas ‘question here is not whether E] Isleo —

was in extremis when her master chose to turn out of the |

channel at Buoy & M, or the correctness of what he did

- then. .The fault lay farther back, when E] Isleo’s master

chose to sound a cross- signal and to continue at full apoed

- until the vessels were ‘in extremis.

Both anaiie below have accepted respondent's $ conten-

tion that the vessels were in extremis when El Isleo

reached Buoy 8 M, where she. turned hard right out of the *

channel, and have held that ‘her master’s election not to.

‘reverse at that point is excusable, notwithstanding that

the Eastern Glade was seen alzegdy to have turned left

(McDonald, pilot, R. 219 appended chart, Position G).

Questionable as that conclusion is (cf. The Otranto,

(H. L.) 18 Asp. Mar. Cas. 193) it is ‘separate from the

clear-cut primary proposition before this court,.that the

9

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time whe: El Isleo should have- stopped ¥ was hes co

supervising inspectors’ rules required he® to do so; that

is, when: her master rejected the’ two-blast proposal and ~.

‘demanded the right to proceed’’.: El Isleo could have _

stopped her headway in about 200 yards by reversing (Rv.

37), and she was at léast. that distance below Buoy 8 M_.

when she sounded the alarm and cross-signal (MeDonald,

R.. 219 arid 232; appended chart, position A-; R. 201, 210).

Her master placed her still farther away from. the buoy

(R. 24). mY

Her pilot admitted, and her master guid not deny, that |

by .reversing at any .time before reaching Buoy 8. M,

El Isleo could have‘avoided collision. They tardily argued

that the Eastern Glade had answered their four blasts and .

one blast with like signals (McDonald, deposition Nov. 12, © -

1936, R. 193, 200, 220; Korn, Trial R. 23). The East-° ‘

ern Glade’s bridge officers had previously testified by

deposition (March 16, 1936, R. 104) to a three-blast back-

itg.signal (master, R. 147, 148; third officer, R. 123, 124;

the chiet{ officer, not on bridge duty, sald four blasts,

R. 44).

The contention that the. Eastern Glade blew four blasts .

and one was not made in El-Isleo’s:pleadings (R. 5, 11), -

where surély it would have appeared if respondent orig-

inally had intended to assert that there was a one-blast

passing agreement (cf, The based ci 153-U. 8S. 130 at o

).. \

"The danger signal is defined. by the inspectors’ Rule I

as ‘“‘several short and rapidsblasts, not less than four’’. -

Obviously the four blasts and one blast belatedly testi- ..

ied to by El Isleo’s officers were not the ‘‘signals for

passing with safety’” required by the inspectors’“Rule VII

io be ‘‘made and understood’’ before ‘El Isleo eases go

on (McDonald, R. 201).

The conclusive factor, of course, is that El Isleo’s ini-

ial fault, in sounding a cross-signa] and continuing at full

eam, was already operative. (R. 33; 218-9).

ig | | Argument. —

aoe “The five facts essential to the’ determination of the

question here involved are not controverted: | |

1. The vessels were on crossing courses,. the Eastern

Glade having El Isleo on her starboard hand.

2.° The Eastern Glade. sounded ‘a whistle signal of two

= blasts.

- .° 3. El Isleo = weil with a inate: an ond: one *

blast and-eontinued at full speed up 4o the moment”

- of collision. |

4. The Eastern Glade. promptly rev hed but failed to

ov ercome her headway before colfision. ,

If at the time El Isleo SO the alarm she had

‘stopped and backed- her engines there. wer: have

been no collision. j

- Qe

.

. val

Rutes i AND Vila ARE Sav TARY AND ARE Nor. Incowststest

of WITH THE STaTure.

The following are the material portions of the’ ‘opinion

written by Judge Learned Hand in the case of The Fulton,

54 F.. (2d) 467, 468, ‘referred to in the opinion below :,

‘The Inspectors’ Rules have * always’ forbidden

- eross signals in passing situations, and in all others

too- since $909. They have—coupled the. injunction

with another which required the answering vessel, if

the first signal was inappropriate, to sound an alarm:

and. check her speed, nou parently» confined to

crossing situations (Rule vil. ‘In a number ‘of ©

- decisions. involving crossing stlhatione we have ex-

' onerated a vessel which pressed her statutory privi-

lege by crossing the signal and holding her course

and.-s . -The iene. King (C, C; A.) 49 F. 469;

The Cygnus (C. C. A.) 142 4y 85 ; The Transfer No,

15 (C. C. A.) 145 F. 503; The John H. Starin (C. ©.

A.). 162 F. 146; The: Montauk (C. C. A.) 180 F. 697:

_ The Ashley a C.A. ) 221 F. 423.

‘‘Our reasoning has been, that, as the statute (In-

. land Rules) article 21 (33 USCA § 206), puts a duty.

'. upon the privileged ship to keep her course and

speed, no rule can be valid which affects to relieve

- her of it, and that she may announce her detertfi-.

nation to insist by crossing the first signal. The

doctrine has been too long and too repeatedly es*—

tablished to allow any question now, but it is plain, |

. that the inspectors have never assented to it. We ©

‘have at times said that the rule promoted collisions,

which were to be avoided.only by rigid adherence to

the statutory rules.’ The supposed certainty is, how-

ever, somewhat illusory, for concededly there comes

a time when the privileged vessel’ inust yield; there

is never. a ‘right of way into collision.’ At best -

the point where she must do so, is ‘one of degree, and,

‘were the question res integra, we should hold the

rule valid. The inspectors apparently believe that in the

greater number of cases it will conduce ‘to collifon to

allow a pilot to keep on in the face of a:proposal by

the approaching vessel that she put herself across —

his bows. True, the proposer often will not act with-

‘out consent; but it is certainly possible that prudence

forbids speculation as to whether he bas still time or -

disposition to keep out of the way. Again and again

eases arise in which the proposal is repeated, the ves-

sels coming nearer all the time; sometimes, it is. re-

ated even after it has been crossed by a refusal. :

No substantial interest is at stake except to escape

*-¢allision which will certainly be avoided if bdth stop,

We Teeognize ‘that the requirement puts a premium

upon wilftiiness, for the burdened vessel need only.

announce her purpose and keep on; and if the other

* prove docile, she has’ Tost_her right of way and must

“ar the insolence. This ‘may perhaps. prove tio |

« much for ordinary human naturg, ‘safety is bett

than pride’; [The Quogue, 47 F. (2d)-873 (C. C. A.

.2)], and stopping is more likely to avoid~disaster °

than going on in the teeth of what is at least a pro- »

posal, and may be,a declaration. At any rate the

situation appears, tous proper for the-exercise of the

inspectors’ function in providing for cases not cov-

ered explicitly.’ They are certainly in better position

than we to determine which course is safer in the |

long run.

Qe

Gi ‘‘The court.as now constituted cannot see any con-

flict with the statute, unless"that be.read without

regard to its purpose. Articles nineteen and twenty- |

one (33 USCA §§ 204, 206) do not require any signals

at all; if one is given proposing a dangerous course,

it appears to us too verbal and rigid an interpreta-

tion to say that the — vessel is inevitably

still homed: at least) officials, vested with general

authority, are not helpless to'meet the situation by a

rule. All the steaming rules are themselves subject

to Article twenty-seven (33 USCA § 212) authorizing

- a departure ‘to dvoid immediate danger.’ Can it be

that though vessels themselves may so depart, the in-

spectors. may not say that a ‘situation ikeby to be

dangerous shajl be treated as:such? However, unless

the Supreme ‘ougt chooses finally to settle the whole

matter otherwise, in crossing situations we have no

optien and shall continue to disregard the rule, what-

ever our personal judgment.”’ {The F er 54 Se

(2d) 467, at 468; our italics.) - giv ts ,

To what’ Judge. Learned Hand’ has. writen, there may

‘be added. certain other considerations.

3

In .The Ielesars, 161 U. .s. 459, the vessels were on

crossing courses, the tug Talisman being the preferred

vessel, and the tanker Delaware required to give way.

No signals were blown by the ‘Delaware, and on two ocea-

- ‘signs the Talisman blew a signal of one blast to indicate

that she would hold her course and speed. There was

nothing to suggest to the Talisman,-until the vessels were :

in extremis, that the Delaware would ot beats out of the

“i. Court. 7

The- cases of The "Britannia, 153 U. 's§, 130, and The --

Northfield, 154 U: 8. 629, must be regarded, ‘however, as

settling the law that the preferred steamer will not be held

in fault for maintaining her course and speed, so long as |

it is possible for the other to avoid‘her by. porting, at ©

least:in the absence of some distinet | indication that she

is about to fail in her duty.”

The Court added that there had- ‘been nothing: to onggest

to the tug Talisman, until the vessels were in. satverpie,

Ree artis |= ie

“es

that the derinad would not keep out of the way, ay

concluded, page 469, that if for any reason | the Delaware:

were unable to do so,

“* * * it was her plain duty to. apprize ithe tox of the.

~ facet, either by blowing the starboard signal of two.xhistles

or an alarm ‘whistle, to indicate that the circumstances |

_ Were such as to.render jt impossible for her to fulfill her

obligation to keep out .of-the yay of the tug.. Jf she had

. done so a different question would h ve been. presented”

-(our. italics).

The supervising inspecters have'in fact*done no niore —

here than tor resolve what this.court there. considered to be

_ an -open question. Unless the question were to. be an-

swered. by Congress directly, it could be resolved only by

the supervising oi or r by the courts. ;

sn

iccicies of that question Sas not been - affected by :

anything’ said or decided. by this court in any other case, |

The most closely’ related cases on aim: ‘this court has

passed since 1880 include:

_. Wilson v. Pacific Steamship Acaieiai 276 U. S. 454,

which involved the application. of the Faternational Rules

(33 U. S.C. ch. 2), and ‘in -which the burdened vesgel .

sdunded no signal and. gave no other indication that she-

intended to cross ahead. It was .expressly noted by Mr.

Justice MoReyndlds that the situation.there was indis-

tinguishable - from the one presented in T he Delaware,

supra.

a timely signal of one blast, . but the privileged vessel,

after a final: signal. of one blast,“stopped, reversed, and

then remained stationary ‘for a minute and a half in the

path of the burdened vessel. Both vessels were nee . ee

fault.

The Bréahweter, 155 U. S. 252, in which there were

three exchanges of one-blast passing signals and no timely

‘intimation that the burdened vessel would not comply with?

the clear understaniling.

The Britannia, 153 U.S. 130, where each weasel sounded,

oe)

Qe

Wetnndeneenensons a ,

In The New Y vn 175° UW S. 187, both vessels were. e held

‘at fault, the preferred. vessel for violation of what was |

then Rule 21 of the Revised Statutes, § 4233, which pro-

- wided that every vessel w hen approaching another vessel

so’ as to involve risk of collision should slaeken her speed,

or, if necessary, stop and reverse. There were other faults

also in that. case.

~ Attention has already been invited to the comparable

| provisions. of the statutery rules for. theoGreat Lakes (33°

‘vu. &. Code, — er’.4) “and the statutory Inland Rules,

as supplemented by: the Supervising Inspectors’ rules un-

der consideration. It may be noted *that the- requirements

of No. 26 of the Great’ Lakes Rules, .33 U. S. Code 291,.

Y

-.

and the provisions of Rules II, IIT and VII of the Super-

vising Inspectors, might be interchanged without altering

in any essential. particular the: duties of the vessels to

which _the res pective rules apply.

It would not bea ‘new experience with names to realize

that the use of the word privilegéd to’ describe the status

of the vessel that ordinarily will hold ‘her course ‘and speed,

has been unfortunate.

‘*As long as the matter to be considered is debated

in artificial terms there is danger of ‘being led by-a

technical definition to apply a certain-name, and then |

_ #6 deduce consequences which have no relation to. the

grounds on which the name was applied.’’ Guy v.’

Donald, 203 U.S. 399, 406. .

3,1 ie statute and -the inspectors’ rules do not use the

word privileged at.all; but both the word and its connota-

tions are evident in the opinions that Judge Hand criti-

cized and in others that he might have mentioned.

When considerations 9f prestige or: special dignity are

laid aside, and it is appreciated that the sole purpose of.

Congress was to provid a way of avoiding collfsions, the

- consistency between th ‘statute and the ape: rules

is unmistakable. : . oper :

\

g ec

13

Conclusion. x ¢

It has never been suggested by this court that’ a: so-called

privileged vesse] should maintain her course and speed 4

the face of another’s two- ‘blast proposal to cross ahea

~ On the contrary, this court’s express recognition of the .

_ problem that would be presented in*those citgsmstances

‘is at least consistent. with the idea that this court itself,.

if called on, would have met the problem as the supervis- |

ing inspectors ‘haveg@one ( The Delaware, supra). ‘

Nor “has this court ever suggested that the Sore riing

Inspectors are* unequal -to the business that Congre

entrusted to them as erts. Indeed, this court has -

_ddmonished | the lower courts that the inspectors’ rules,

* unless in conflict with the statutes,. must be given the:

- force of statutory law. (Belden v. ‘Chase, 150 U. S. .674, - |

698.). bg

Judge Learned Hand’s - ‘anaiveis in The Fulton case

‘eaves no. room to doubt the correctness of the conclusion

“that has.been reached by. the present members of the Circuit

‘Conrt of Appeals as.to the efficacy as well as to the validity

of the Inspectors’ Rules.

Petitioner does not agree with so much’ of the decifion

below ‘as holds El Isleo free from fault if the Inspectors’

~ Rules are invalid, but presumably. petitioner must bew here

’ to that part of the decision: - It is .manifest, however, that .

_unless this court finds those rules ‘inv alid, El Isleo was

_ at fault with the Eastern Glade.

“It is. most respectfully. submitted ehice the duesies anne

Should be reversed, with directions -to enter a mutual-

fault decree i in each case.

———* i: . Joun C. :Craw ey,

; < . “. Karte Farwerr,

+ "+ for the Petitioner.

oi | Spee | MOC

_’ New York; November, 1939. ie .

, | | ;

o-

.

Statutory Rules and Inspec-

tors’ Rule.X for the

Great Lakes.

(33' U.S. Code, ch. 4)

§ 283, Rule 18.

14

| Appendix.

Statutory Rules and Inspec-

tors’ Rules II, III and VII

for the Inland WatePs.

4 (33.0. 8. Code, ch. 3)

. \

~ § 204. Art. 19:

“When ‘two steam vessels are crossing so as to involve

risk of collision the vessel which has the other on her

own starboard side shall keep out of the way. of the other.”’

&S

‘¢ §.285. ‘Rule 20. . Where,

‘by any of the rules in this

chapter prescribed, one of

two vessels shall keep out

of the way, the other shail -

keep her course and speed.”’

Supervising Inspectors’:

-**Rule X. When two steam-

‘ers. are. approaching each

other at right angles of

obliquely so as to involve

risk of collision, other than

when. one™steamer is over-

taking another, the steamer

which has the other on her

§ 206. -‘‘Art. 21. Where,

‘by any~of these rules, one

of. the two vessés ‘is to

keep out of, the way, the

other shall keep her course —

., and gpeed.” ,

§ 207: ‘Art. 22." Every

vessel* which is directed by

-these rules to keep out?of

the way of another vessel

shall, if the circumstances of .

the case admit, avoid cross-

ing ahead of the other.”

own port ‘side shall hold her.

' course and speed; ‘and the.

~ steamer which has the other .-

on, her own starboard. side

shall keep out of the way .of

the other by. directing her

course to starboard - sO as- ,

‘to eross

' other steames, or, if neces-

e ‘stern sof the

sary to do so, slacken her

speed or stop or reverse. -.

The steamer having the

'. other on het own port bow

shall blow one blast’ of her

whistle as a signal of her in-

tention to cross tlie bow of

the other, holding her course

and speed, which signal shall

md ’

'

ae

S

a

‘ a, es

_ (Great (Lakes) © 9 * + - (Inland) |

be promptly ‘answered by. ~<,

| the other steamer, by one~

short blast of her“whistle as © . i”

_ a signal of her intention to oat eu lape cea

direct her course to star- -. Sie

‘board go as’ to cross. the . . !

stern of the other steamer

or otherwise keep clear.

-“‘If from any cause what- bs

ever, the conditions: covered We

by this situation are such as | RS I

,to prevent immediate’ com- Tarde :

‘pliance. with each -other’s hee ete 2

signals, the misunderstand- wthe oi peas

ing or ébjection shall be at. ‘ Tie

-, once made apparent by blow- Hi , |

ing the danger signal, and ae hie te

both steamers shall be: -: ae

stopped, and backed if nec- .* 7 |

essary, until signals” for . ."

passing with safety are °

‘made .and understood.’’

2 ¢

$286. Rule@1. . —-§ 208. Art, 23:

‘Every ‘steam vessel which is directed by fhese rules S.

to keep out of. the way of: another vessel ‘shall, on ap-

proaching her, if necessary, slacken her. speed or stop

and reverse.’ nent

§.291. “Rule 26. Te the Supervising Inspectors’:

pilot’ of a “steam vessel to. ‘Rule II. Steam vessels ,

which a passing signal is ed oe ” asleaity

sounded deem® it unsafe to known among pilots as

actept and, assent to said Peco d gone AE capac

signal, he shalhot sound a two, an answering two

“cross signal ; but: in that gprs egies a

ease, and in every case FOR - ‘PASSING, ‘by . the

_ Where the pilot of one | co anes aan eek

‘steamer fails to understand pilots, in compliance ‘wi

the ‘course or intention of *hese vag Har —_. a

“an approaching steamer, or nearly so, but at all times

‘*

16

"(Great Lakes)

_ whether from signals being

- given or. answered errone-

ously, or from other causes,

the pilot of such- steamer -

so receiving the first pass-. .

- ing signal, or the pilot so

in doubt, shall‘ sound sev-

eral short. and rapid blasts

of the whistle; and if the .

vessels shall have , ap-

proached within half a mile

of each other both shall re-

duce. their speed to: bare

steorageway, and, if neces-

sary, stop and reverse.”’

or by ht b

gna lights In fo, fog, mist

the other by ‘

”

(Inland)

when the steam vessels are

in sight of each ror toned —

passing or m ata

tance: within half a mile of

each other, and whether

passing to the starboard or

port.

“The. whistle : pro- .

vided in the rules for steam

vessels meeting, - passing, or

overtaking are never to be

used . except when steam

“vessels are in sight of each

other, and the course and

position of each can be. de-

termined in the daytime by

a sight of the vessel Borage

snow, or hea rain.

storms, when vessels can.

not so see each other, bey

signals only must be given.

“Rule VII. When two

steam vessels are approach-

ing each other at right

angles or obliquely so as to |

involve risk of - cellision,

other than when one steam

vessel is overtaking another,

the steam vessel which has

the other on her own port —

_ side shall hold her course

- and speed; and the steam

- vessel which has the other

on her own starboard side -

shall keep out of the =e

er

course to starboard so as to

cross the stern of the other

steam vessel, or, if neces- .

sary to do so, slacken her

speed or stop or reverse. -

oo

17.

~ (Great Lakes). : * * (Inland) eae

wed “If from any ca the

ae conditions covered by\,this

Boe tere situation are such as to pre- %

vent immediate compliance

with each other’s signals,

the misunderstanding or ob-

fade shall * < once —

e ap t by blo

eae att

-—a os Vv -shall be

stopped pe oh goat —

essary, un or

with safety are.

+ | made and und ta See

§ 292. Rule 27. | - §212, Art. 27:

“In obeying and ccaabeahon these rules due “regard

shall be had to all dangers of navigation and‘ collision,

and to any special circumstances which may render’ a de-

parture _rom the above rules necessary in onder to avoid

immediate danger. ie .

§293. Rule 28. § 221. Art. 29:

‘‘Nothing in these rules shall exonerate any vessel, or |

the owner or master or crew thereof, from the conse-

_ quences of any neglect to carry lights or signals, or of .

any neglect to keep a proper lookout, or of the neglect of -

any precaution which may be required by the ordinary

practice of scomntty, or by the ‘Special circumstances of the |

cagse.’’

¢

18

Ceiclioe: chart, reproduction of McDonald El iad Ex.

hibit A, (R. 201).

“SF.

Positions as testified. to by El Isleo” ~ ese

McDonald:

Positions of. the vessels. -when El-Isleo first. sav

Eastern Glade: E, indicates El Isleo. *F, indi.

cates Eastern Glade (R: 209-10).

When’ Eastern Glade blew i blasts (R. 201).

“When El Isleo euniel alarm and ‘one ‘blast

(R. 201). “ 4

Position of Easterm Glade when, El Isleo was

abreast Buoy 8M (R. 219).

’Way in which vessels came together (R. 202-3)

. Eastern Glade’ ~ a was that El Isleo delayed

‘early two minutes before answering Eastern Glade’s twe

blast signal (master, R. 148; third officer, R. 123). El Islec

witnesses testified that they answered — —

'* RB; + pilot, R. 1995.

. 9190 -

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