The New York (175 U.S. 187)
This was a libel in admiralty filed by the Erie & Western Transportation Company, owner of the propeller Conemaugh, and a cross-libel by the Union Steamboat Company, owner of the propeller New York, against the propeller Conemaugh, to recover damages for a collision between these vessels which occurred between 7 and 8 o'clock in the evening of October 21, 1891, on the Canadian side of the Detroit river, a short distance below the village of Sandwich in the province of Ontario, and between what is known as Petite Cote, on the Canadian side, and Smith's Coal Shutes, on the American side, of the river. The river at this point is nearly straight, and flows in a direction about south-southwest. The underwriters of the cargo of the Conemaugh were permitted to intervene to protect their interests.
The libel of the Conemaugh averred that she was bound from Milwaukee to Erie, Pa., with a cargo of about 1,800 tons of package freight; that she was proceeding down the river on the American side of mid-channel, 'having hauled some to starboard to avoid some piles driven in the channel,' and known as the Kasota piles, and when half or three-quarters of a mile above Smith's Coal Dock, she received a signal of two blasts from the steamer Burlington, which, with four barges in tow, had gone down the Canadian side of the river, and was then rounding to at the coal dock on the American side, exhibiting her masthead and green lights to the Conemaugh. Her engine was at once checked, and remained checked until the time of the collision, her helm starboarded, the whistle answered by two blasts, and the propeller hauled out sharply, keeping some distance above the tow, and so directing her course as to pass astern and to the Canadian side of the tow, which was then stretched out in the river toward that side; that the Conemaugh then made the lights of the New York down the river below the tow, and coming up toward the Conemaugh upon such a course that the Conemaugh would cross the course of the New York before the latter could reach the point of intersection; that the Conemaugh at once blew her a signal of two blasts, notifying the New York that she was so directing her course as to keep well in on the Canadian shore, and to leave the New York to starboard as she should come abreast of the tow. Receiving no reply thereto, the Conemaugh repeated the signal of two blasts. The New York did not reply to this second signal, whereupon the Conemaugh blew a third signal of two blasts, when the New York, which had all the time been coming rapidly up the river, without replying to any of the Conemaugh's signals, turned suddenly and rapidly to starboard, swinging over to the Canadian side; seeing which, the Conemaugh blew alarm whistles and hardstarboarded her helm. But the New York, first swinging rapidly and violently to starboard, and apparently turning some to port before she struck, came on at full speed, struck the Conemaugh on the starboard side abreast the texas, cut deeply into her, and crushed her side. The Conemaugh almost immediately struck the Canadian bank of the river and filled and sank.
The answer and cross-libel of the New York averred that she was bound on a voyage from Buffalo to Milwaukee, laden with a cargo of general merchandise; that at the time of the collision she was bound up the Detroit river, and when near the point in said river below where the river Rouge empties into it, a steamer the Burlington-with a tow of four barges began to round to from the Canadian side to Smith's Coal Dock on the American side, exhibiting to the New York her masthead and red side light, as well as the red side lights of the barges in tow. To this the New York blew her a passing signal of one blast, 'at the same time checking her engine and reducing her speed to about 4 miles an hour, and then porting her helm so as to pass under the stern of the last barge. When the New York had arrived at a point abreast of the last barge in tow, a signal of two whistles was heard, but being unable to see any vessel, and noticing only a white light close on the Canadian bank of the river, this signal of two blasts was not answered, as it seemed to be intended for some other vessel, the New York being then close to the Canadian bank, and there not being room enough for any vessel to safely pass between her and that bank. The New York therefore, still running slowly, continued on her course so as to go around close to the last barge, and when abreast of her quarter starboarded so as to go close under her stern. While passing under the stern of this barge, and not more than 10 or 20 feet from her, several short blasts of a propeller, which proved to be the Conemaugh, were heard close at hand, and not more than 100 feet away. The Conemaugh pursued her course directly across the bows of the New York, which was then swinging under a hard-a-starboard helm. A collision was then inevitable, and there was neither time nor room enough to stop the engine of the New York, and the only way left open to avoid a collision was to continue under headway and to swing clear under a hard-a-starboard helm. This was done. Notwithstanding this the Conemaugh, with considerable headway, continued on her course across the bows of the New York, so that the latter struck her, stem on, on the starboard side, abreast of her forward gangway, and glancing along this side was swung by the Conemaugh nearly alongside.' The New York immediately backed, and offered her assistance to the Conemaugh, but as she was then on the bank she refused the assistance. That no other passing signal was heard from any steamer after the exchange of the signal of one blast with the Burlington, except the signal of two short blasts from the Conemaugh, and that when this was received the New York was close alongside of the last barge heading for the Canadian bank of the river, where no steamer could pass with safety, starboard to starboard.
A large amount of testimony was introduced on behalf of the libellant, but none whatever by the claimant. A hearing upon pleading and proofs before the district court resulted in a decree holding both vessels in fault and dividing the damages, although the district judge expressed some doubt with regard to the fault of the Conemaugh. 53 Fed. Rep. 553. Libellant soon thereafter moved for a rehearing upon the ground that the rules of the supervising inspectors had no application; that the International Rules adopted in 1885 governed the case, and asked leave to submit further testimony, and for other reasons. This was granted, and a new decree entered vacating the former decree, and adjudging the New York to have been solely in fault upon the ground that, under the case of The City of New York, 147 U.S. 85, sub nom. Alexander v. Machan, 37 L. ed. 90, 13 Sup. Ct. Rep. 211, then recently decided, the fault of the Conemaugh had not been proved with sufficient clearness to justify a division of damages. Thereupon the claimant moved to vacate the decree and for leave to introduce evidence in its own behalf, which was denied. This motion was repeated upon affidavits, and the deposition of the master, second mate, and engineer of the New York taken de bene esse under the statute. The motion was, however, denied, the depositions stricken from the files, and a final decree entered against the New York for the damages and loss to the Conemaugh and her cargo.
Thereupon the claimant appealed the cause to the circuit court of appeals, and upon the record being filed in that court a motion was made by the libellant for an order that the testimony of a witness be taken to prove the Canadian statute in force for regulating the navigation of the waters of the province of Ontario at the time of the collision, and that a copy of such statute be introduced in the cause. This motion was supported by an affidavit that the Canadian statute was introduced in the district court, and used and referred to in the arguments upon the rehearing before the district judge; that such statute was then treated and used as part of the record; but there was no stenographer present at the time and no minute of such introduction and use of the Canadian statute was preserved in the record. The motion for an order permitting testimony to prove the Canadian statute appears to have been withdrawn, a suggestion of diminution of record substituted, and a writ of certiorari asked for and granted to supply such evidence as did not appear in the record. The district court made return to this writ by an order that the clerk transmit to the court of appeals a certified copy of the Canadian statutes governing the navigation of vessels in the waters of Canada during the year 1891. The navigation act of Canada of 1886 was thereupon sent up with a certificate of the clerk of the district court that 'the papers hereto attached, marked Exhibit A, are a true copy of the Revised Statutes of Canada 1886, volume 1, chapter 79, entitled 'An Act Respecting the Navigation of Canadian Waters, A. D. 1886; that I have carefully compared the same with the original act as published, and find the same to be a true copy of such original and of the whole thereof.'
That court, however, refused to consider this statute upon the ground that the return of the district court to the writ contained no certificate that the statute was made a part of the record by being offered and received in evidence, but only a statement by the clerk that 'that which is returned is a correct copy of the Canadian statute as published.'
The hearing of the appeal resulted in a reversal of the decree of the district court, and a remand to that court with directions to dismiss the libel of the Conemaugh upon the ground that she only was in fault. 54 U.S. App. 248, 82 Fed. Rep. 819, 27 C. C. A. 154. A rehearing was subsequently asked for and denied. 56 U.S. App. 146, 86 Fed. Rep. 814, 30 C. C. A. 628.
Whereupon libellant applied for and was granted a writ of certiorari from this court.
Messrs. F. H. Canfield, Harvey D. Goulder, and John C. Shaw for petitioners.
Messrs. H. C. Wisner, C. E. Kremer, and W. O. Johnson for respondent.
Mr. Justice Brown delivered the opinion of the court: