*189*188 Argued October 19, 1899. Decided Novem- third signal of two blasts, when the New ber 20, 1899. O`States Circuit Court of Appeals for the N WRIT OF CERTIORARI to the United Sixth Circuit to review a decision reversing a decree of the District Court on a libel in admiralty and cross-libel for damages caused by collision of vessels. Reversed. See same case below, 54 U. S. App. 248, 82 Fed. Rep. 819, 27 C. C. A. 154; 56 U. S. App. 146, 86 Fed. Rep. 814, 30 C. C. A. 628. * Statement by Mr. Justice Brown: 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 Côte, 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 York, which had all the time been coming 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 Burlingtonwith 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 rived at a point abreast of the last barge in last barge. When the New York had artow, 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 ed for some other vessel, the New York being was not answered, as it seemed to be intend The 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 then close to the Canadian bank, and there steamer Burlington, which, with four barges in tow, had gone down the Canadian side of not being room enough for any vessel to safethe river, and was then rounding to at the pass between her and that bank. coal dock on the American side, exhibiting continued on her course so as to go around New York therefore, still running slowly, her masthead and green lights to the Cone- close to the last barge, and when abreast of maugh. Her engine was at once checked, her quarter starboarded so as to go close unand remained checked until the time of the der her stern. While passing under the collision, her helm starboarded, the whistle stern of this barge, and not more than 10 or answered by two blasts, and the propeller 20 feet from her, several short blasts of a hauled out sharply, keeping some distance above the tow, and so directing her course as propeller, which proved to be the Coneto pass astern and to the Canadian side of maugh, were heard close at hand, and not the tow, which was then stretched out in the pursued her course directly across the bows more than 100 feet away. The Conemaugh river toward that side; that the Conemaugh of the New York, which was then swinging then made the lights of the New York down under a hard-a-starboard helm. A collision the river below the tow, and coming up towas then inevitable, and there was neither ward the Conemaugh upon such a that the Conemaugh would cross the course time nor room enough to stop the engine of of the New York before the latter could the New York, and the only way left open to reach the point of intersection; that the avoid a collision was to continue under head. Conemaugh at once blew her a signal of two way and to swing clear under a hard-a-starblasts, notifying the New York that she was board helm. This was done. Notwithso directing her course as to keep well in on standing this the Conemaugh, with considerthe Canadian shore, and to leave the New able headway, continued on her course across York to starboard as she should come abreast the bows of the New York, so that the latof the tow. Receiving no reply thereto, the ter struck her, stem on, on the starboard Conemaugh repeated the signal of two blasts. side, abreast of her forward gangway, and The New York did not reply to this second glancing along this side was swung by the signal, whereupon the Conemaugh blew a Conemaugh nearly alongside." The New course པ 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." 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. York immediately backed, and offered her as-ord. The district court made return to this sistance to the Conemaugh, but as she was writ by an order that the clerk transmit t then on the bank she refused the assistance. the court of appeals a certified copy of the That no other passing signal was heard from Canadian statutes governing the navigation any steamer after the exchange of the signal of vessels in the waters of Canada during the of one blast with the Burlington, except the year 1891. The navigation act of Canada signal of two short blasts from the Cone- of 1886 was thereupon sent up with a cermaugh, and that when this was received the tificate of the clerk of the district court that New York was close alongside of the last "the papers hereto attached, marked Exhibit barge heading for the Canadian bank of the A, are a true copy of the Revised Statutes of river, where no steamer could pass with safe- Canada 1886, volume 1, chapter 79, entitled ty, starboard to starboard. 'An Act Respecting the Navigation of CanaA large amount of testimony was intro-dian Waters, A. D. 1886;' that I have carefulduced on behalf of the libellant, but none ly compared the same with the original act whatever by the claimant. A hearing upon as published, and find the same to be a true pleading and proofs before the district court copy of such original and of the whole thereresulted in a decree holding both vessels in of." 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 The hearing of the appeal resulted in a redecree entered vacating the former decree, versal of the decree of the district court, and and adjudging the New York to have been a remand to that court with directions to 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 rec 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: was This collision took place in October, 1891. The navigation of the two steamers therefore governed by the Congressional Rules and Regulations of April 29, 1864 (13 Stat. at L. 58, chap. 69), reproduced in Revised Statutes, § 4233, and, so far at least as the maneuvers of the respective vessels took place in American waters, by the supervising inspectors' rules in force in 1891. The Revised International Regulations of 1885 (23 Stat. at L. 438, chap. 354) apply only to navigation "upon the high seas and in all coast waters of the United States;" and in § 2, repealing prior inconsistent laws, there is an exception of vessels navigating "the harbors, lakes, and inland waters of the United States." It is true that in Moore v. American Transp. Co. 24 How. 1, 16 L. ed. 674, the limited liability act of 1851, which contained an exception of vessels used "in rivers or inland navigation," was held, notwithstanding this exception, to apply to vessels navigating the Great Lakes; but the cases are readily distinguishable. In that the exception was "any canal boat, barge, or lighter, or to any vessel of any description 193 *194 195 giving several short and rapid blasts of the steam whistle; and after the vessels have approached within half a mile of each other both shall be immediately slowed to a speed barely sufficient for steerage way until the proper signals are given, answered, and understood, or until the vessels shall have Rule 6. "The signals by the blowing of the steam whistle shall be given and answered by pilots in compliance with these rules, not only when meeting 'head and head,' or nearly so, but at all times when passing or meeting at a distance of within half a mile, and whether passing to the starboard or port." 1. We are of opinion that the Canadian statute of 1886 may properly be considered by us. used in rivers or inland navigation." It | doubt shall immediately signify the same by was held that the character of the craft enumerated might "well serve to indicate to some extent, and with some reason, the class of vessels in the mind of the law-makers, which are designated by the place where employed." But the case was really decided upon the ground of the magnitude of the Lakes, their commerce, their vessels, and the well-passed each other." known perils incident to lake navigation. It was thought that such commerce deserved to be placed on the footing of commerce on the ocean, and that "Congress could not have classed it with the business upon rivers, or inland navigation," in the sense in which we understand these terms. In the present case the exception is specifically of "vessels navigating the harbors, lakes, and inland waters of the United States." If the word "lakes" was not intended to include the Great Lakes it is difficult to see the object of Congress in making use of that word, since nearly all the other navigable lakes, except Lake Champlain, are located within the limits of a single state, and no act was necessary to exempt them, as the power of Congress does not extend to the purely internal or infraterritorial commerce of the country. The Montello, 11 Wall. 411, sub nom. United States v. The Montello, 20 L. ed. 191; Veazie v. Moor, 14 How. 568, 14 L. ed. 545. The question, however, is one of little practical importance in this case, inasmuch as rule 19 of Rev. Stat. § 4233, is word for word the same as article 16 of the Revised International Rules and Regulations of 1885. Both are as follows: "If two vessels under steam 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. The power of the supervising inspectors to adopt rules for the government of steam vessels in passing each other (Rev. Stat. 4412) is limited by 8 4400 to steam vessels "navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation." These rules are pertinent to this case only so far as they make it the duty of vessels to indicate by signals of one or two whistles the course they are about to take, and of the other vessel to answer them, and also, in case of vessels crossing each other, within the meaning of article 16, in requiring the obligated vessel to avoid the other by porting and going under her stern. These rules are as follows: The question how far this court may take judicial notice of the laws of a foreign country has been the subject of some discussion, and was first considered by this court in the case of Talbot v. Seeman, 1 Cranch, 1, 38, 2 L. ed. 15, 27. That was a case of salvage upon recapture from the French. It became necessary to inquire whether the laws of France were such as to have rendered the condemnation so probable as to create a case of such real danger that her recapture could be considered a meritorious service. To prove this, counsel offered several decrees of the French government, to the reading of which objection was made upon the ground that they were the laws of a foreign nation, and therefore to be proved as facts. In holding that the decree, having been promula law of gated in the United States as France, was entitled to be read, Mr. Chief Justice Marshall observed "that the laws of a foreign nation, designed only for the diticed by the courts of other countries, unless rection of its own affairs, are not to be noProved as facts, and that this court, with respect to facts, is limited to the statement tioned. The real and only question is made in the court below, cannot be queswhether the public laws of a foreign nation, tions, promulgated by the governing powers on a subject of common concern to all naof a country, can be noticed as law by a court of admiralty of that country, or must be still further proved as a fact. The negative of this proposition has not been maintained in any of the authorities which have been adduced. On the contrary, several have been quoted (and such seems to have been the general practice) in which the marine ordinances of a foreign nation are read as law Rule 2. "When steamers are approaching without being proved as facts. It has been each other in an oblique direction (as shown said that this is done by consent; that it is in diagram of the fourth situation) they a matter of general convenience not to put shall pass to the right of each other as if parties to the trouble and expense of proving meeting 'head and head' or nearly so, and permanent and well-known laws which it is the signals by whistle shall be given and an- in their power to prove; and this opinion is swered promptly, as in that case specified." countenanced by the case cited from DougRule 3. "If, when steamers are approach-las. If it be correct, yet this decree, having ing each other, the pilot of either vessel fails to understand the course of the other, whether from signals being given or answered erroneously or from other cause, the pilot so in been promulgated in the United States as the law of France, by the joint act of that department which is intrusted with foreign intercourse, and of that which is invested *197 with the powers of war, seems to assume the character of notoriety which renders it admissible in our courts." The same question as applied to the original rules and regulations was presented to us in the case of The Scotia, 14 Wall. 170, sub nom. Sears v. The Scotia, 20 L. ed. 822, in which we held that, in view of the fact that these rules and regulations were originally adopted by the British orders in council of January 9, 1863, and by Congress in 1864, and had been accepted as obligatory by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic ocean, we would take judicial notice of them and treat them as laws of the sea and of general obligation. The duty to take judicial notice of these rules was also recognized by this court in The Belgenland, 114 Ŭ. S. 355, 370, sub nom. The Belgenland v. Jensen, 29 L. ed. 152, 157, 5 Sup. Ct. Rep. 860, in Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. 136 U. S. 408, 422, 34 L. ed. 398, 403, 10 Sup. Ct. Rep. 934, and in numerous cases in the lower courts. There is nothing in the case of Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469, in conflict with this. That did not involve a question of general maritime law, but of a statutory exemption from the consequences of negligence in navigation given by a British act of Parliament. We know of no reason why the rule adopted in The Scotia should not be applied to the Revised International Rules and Regulations. They have also been adopted by most, if not all, the nations which gave their assent to the original rules and regulations of 1863, and the reasons which induced this court to take judicial notice of these rules are equally persuasive here. The reference to the Čanadian statute of 1886, used in the district court and printed as a part of the record here, shows it to be, except as to the waters covered by it and as to certain immaterial local regulations, a literal copy of the congressional act of 1885. certiorari was granted "because the transcript of the record in this case does not contain a copy of the Canada statutes governing the navigation of vessels in the waters of Canada during the year 1891, which was introduced in evidence, as alleged." In obedience to this writ, the clerk of the district court was ordered to transmit to the circuit court of appeals a certified copy of the Canadian statute. This was done, but the clerk, instead of certifying that it was a part of the record, certified only that he had "carefully compared the same with the original act as published" (by which we understand as published in the statutes of Canada), "and find the same to be a true copy of such original and of the whole thereof.' It thus appears that the Canadian statute had been used in the district court by consent of counsel, had been treated as part of the record, and that the copy sent up was a true copy of the statute as published. It is true that the clerk did not formally certify it to be a part of the record, but the fact that it had been so treated was established by the affidavit; and the writ of certiorari upon its face recited the fact that a copy of the statute had been introduced in evidence, as alleged, and required the court below to "send the record and proceedings, with all things concerning the same, as fully and entirely as they remain of record in said district court." In view of these proceedings, we think the circuit court of appeals should have accepted the certified copy of the stat ute as properly in evidence before it. The only novel feature of this statute, pertinent to this case, is as follows: "Art. 19. In taking any course authorized or required by these regulations, a steamship under way may indicate that course to any other ship which she has in sight by the following signals on her steam whistle, that is to say: One short blast to mean 'I am directing my course to starboard;' two short blasts to mean 'I am directing my course to port;' three short blasts to mean 'I am going at full speed astern.' The use of these signals is optional; but if they are used, the course of the ship must be in accordance with the signal made." But we think that for another reason the act is properly before us. After the case had been appealed to the circuit court of appeals, the libellant moved that court for an order In this view, the question whether two requiring the testimony of a witness to be American vessels running from one American taken to prove the Canadian statute, and port to another are bound, whenever they filed in support of this motion affidavits that cross the boundary line between the United in the printed record there was no copy of States and Canada, which at this point is this statute, but that it was introduced in the filum aquæ of Detroit river, to conform the district court and used and referred to to the navigation laws of Canada, does not in the arguments upon the rehearing before arise in this case. Were all the commerce the district judge; that at that time the of the lakes carried on in American vessels libellant offered to prove the statute by oral the question would be less difficult of solutestimony, but that it was then agreed in tion. But as much of this commerce is Caopen court between the proctors that the tes-nadian, and it is impossible to tell whether timony of such witness might be dispensed with, and that the statute then in court might be used without technical proof thereof. No order was made upon this motion, but there was a further suggestion to the court of a diminution of the record in that the Canadian statute, which was introduced and used as evidence in the district court, did not appear in the record, and a writ of an approaching vessel be American or Canadian, an attempt to apply the laws of the United States in all cases might result in confusion and in great injustice to Canadian vessels, in case the rules and regulations of the two countries differed in any material respect. We are saved, however, consideration of these questions by the fact that the signals and the steering rules of the 198 66T. •201 •200 United States and Canada are practically identical. This fact being once established, the duty of vessels of both nations in meet ing each other, either upon American or Canadian waters, is easily understood. channel clear below her; but inasmuch as there was a clear space of 500 feet of navi. gable water between the last barge and the Canadian bank of the channel, we should hesitate to condemn her for this fault, were there no others contributing more immediately to the collision. 2. In judging of the responsibility for this collision it should be borne in mind that the Burlington and her tow were temporarily occupying from two thirds to three quarters of the navigable channel of the river. The distance between the rear barge and the Canadian bank of the navigable channel is variously estimated, but according to the|lights. Again no reply was made by the court of appeals was about 500 feet. It may have been as much as 800 feet, but probably was not more than that. The night was clear and starlit, the weather fine, and the collision could scarcely have occurred except by the fault of one or both vessels. Receiving no answer to her first blast, the Conemaugh, when the two steamers were about three quarters of a mile apart, repeated her signal of two blasts,-the New York then showing her masthead and both colored New York. The Conemaugh, which had then ported and was heading toward the Canadian shore, and about four points from the direct course down the river, gave a third signal of two blasts, the New York continuing to show all three of her lights, and beThe Conemaugh, a steamer of 1,609 tons ing apparently close to and between the burden, was coming down the American side second and third barges of the tow. The of the river at her usual speed of about 10 New York made no answer to this third sig miles an hour, and, when her attention was nal. The duty of the Conemaugh at this first called to the obstruction of the Burling- juncture was plain. She should have ton's tow, was about passing what are known stopped her engines after the second signal, as the Kasota piles, which were in fact the and, if necessary to bring her to a complete remains of a coffer dam once used in raising standstill, have reversed them. Nothing is the steamer Kasota. They were near mid- better settled than that, if a steamer be apchannel, though somewhat upon the Ameri-proaching another vessel which has disre can side, and about three quarters of a mile garded her signals, or whose position or above Smith's Coal Dock. As she was pass- movements are uncertain, she is bound to ing these piles, leaving them on her port stop until her course be ascertained with hand, she received and answered a signal of certainty. The Louisiana v. Fisher, 21 How. two blasts from the Burlington, which had 1, 16 L. ed. 29; Chamberlain v. Ward, 21 come down the river on the Canadian side, How. 548, 16 L. ed. 211; Nelson v. Leland, 22 and was at that time rounding to at the coal How. 48, 16 L. ed. 269; The Martello, 153 U. dock on the American side, her tow of four S. 64, 71, sub nom. The Martello v. Willey, barges making a crescent or semicircle, the 38 L. ed. 637, 640, 14 Sup. Ct. Rep. 723; The outer arm of which was, as above stated, Teutonia, 23 Wall. 77, sub nom. Sieward v. from 500 to 800 feet from the Canadian The Teutonia, 23 L. ed. 44; The James Watt, bank. The length of the tow was about 2 W. Rob. 271; The Birkenhead, 3 W. Rob. 2,600 feet, the width of the channel about 75; The Hermann,1 4 Blatchf. 441; The 3,000 feet. The Burlington at this time was Huntsville, 2 8 Blatchf. 228; The Hammonia,8 exhibiting to the Conemaugh her white mast- 4 Ben. 515; The Mary Sandford, 3 Ben. head and her starboard green light. The 100; The Arabian, 2 Stuart, Vice Adm. 72. first barge in tow was also exhibiting her There was peculiar necessity for such action green light, but the others had not rounded in this case. These vessels were about to to sufficiently to exhibit their colored lights. meet upon crossing courses, and to pass each After exchanging this signal with the Bur- other in the narrowest part of the channel. lington, the wheel of the Conemaugh was The Conemaugh had three times signaled put hard-a-starboard, her speed checked, and her wish to take the Canadian side, and pass her course taken across the stream at almost starboard to starboard. The New York had a right angle with her former course. Upon three times neglected to give her assent to this course she was exhibiting her green light this arrangement. The Conemaugh had conto vessels ascending the river. After she strued her failure to reply as an acquiescence had "picked up" or discovered the rear barge in her own signals. The New York might her wheel was steadied, and then ported to have construed such failure as a refusal to follow the tow, which by the force of the cur- acquiesce. In such a case it was clearly inrent was gradually swinging down stream, cumbent upon the Conemaugh to stop until and would ultimately round to on the Ameri- the mystery of her silence was explained, can side, astern of the Burlington. As the and in failing so to do she was guilty of Conemaugh steadied her wheel to starboard fault. Instead of that, while running under her watch made out below the tow and about check and under a port helm, she steadied and a mile distant the white and red lights of almost immediately lost the green light of the New York, apparently somewhat on the the New York, whereupon she sounded an American side of mid-channel, and prompt- alarm whistle, put her helm hard-a-starly signaled her with two blasts of her board, and endeavored to shoot across the whistle, indicating that she would pass her bows of the New York. The two steamers to the left. No answer was received from were then upon converging courses and about the New York. Under such circumstances it would have been more prudent for the Conemaugh to stop and wait a few minutes, until the tow had drifted down and left the 1 Fed. Cas. No. 6,408, *202 |