#### SOUTHERN RAILWAY ET AL. v. THE UNITED STATES.

[No. 27815.

Decided May 2, 1910.]

*On the Proofs.*

The United States transport Sumner, sailing from the Norfolk Navy-Yard, bound for the port of New York, officered and manned by the defendants, but exclusively under the control and direction of a government pilot of great experience, collides with a lighter belonging to the Southern Railway, lying at and moored to the wharf of the company. The question in the case is whether such collision was the result of negligence on the part of the United States or theii agents. Jurisdiction is conferred by statute.

I. The jurisdictional act, *Act 24th February, 1905*(33 Stat., L., , p. 747, 809), provides *“That no judgment shall be rendered against the Government unless it shall affirmatively appear ■ from the evidence adduced that such collision was the result of negligence on the part of the United States or its agents..”*Negligence is the gravamen of the complaint and the basis upon which the suit rests.

II. Negligence has the same signification in marine law as in the common law — that the master of a vessel must take all such precautions as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger in similar circumstances.

III. Where a vessel at the time of collision is in actual violation of a statutory rule intended to prevent collisions, it is a reasonable presumption that that fault is at least a contributory cause of the disaster; and the burden rests upon the vessel of ■ showing that it could not have been a cause.

IV, Whenever a steamer is in a situation where the frequent passing of vessels may be expected or where known difficulties render' a high rate of speed dangerous, prudence requires her to go at a rate commensurate with the attending dangers.

V.Precautions must be seasonable to be effectual; and if not seasonable, it is no defense that nothing could be done at the moment to prevent the disaster.

VI.To enable a vessel to avail itself of the plea of mistake *in ex-tremis*it must appear that the situation was induced by the fault of the other party.

*323VII.The Revised Statutes (§ 4235) provide that *“Until further provision is made by Gongress, all pilots in bays, inlets, etc., shall continue to be regulated in conformity with the existing Irnos of the States;*” and the *Act 19th August, 1890*( 26 Stat. L., p. 320), provides that *“'Nothing in these rules shall interfere loith the operation of a special rule duly made by local authority relative to the navigation of any harbor, river, or inland waters.”*A State law making it unlawful for a vessel on the Elizabeth River of her class to move at a greater speed than 4 miles per hour governs her movements.

VIII.A lighter securely moored to her own dock is not responsible for a collision.

IX.Inevitable accident can not be maintained as a defense unless it be shown that the master acted seasonably, that he did everything which an experienced mariner could do, and that the collision ensued in spite of ordinary caution and his exertions.

X.When the vessel causing the collision was proceeding at the rate of 8 miles an hour and in disregard of port regulations and local usage, which limited the rate of speed to 4 miles an hour, there was such a degree of affirmative negligence as to fix upon her the sole cause of the collision.

*The Reporters1*statement of the case:

The following are the facts of the case as found by the court:

I. The claimant the Southern Railway Company is a corporation, incorporated under the laws of the State of Virginia.

The claimant the British and Foreign Marine Insurance Company is a corporation, incorporated under the laws of the Kingdom of Great Britain and Ireland.

The claimant the St. Paul Fire and Marine Insurance Company is a corporation, incorporated under the laws of the State of Minnesota.

The claimant the JFtna Insurance Company is a corporation, incorporated under the lairs of the State of Connecticut.

The claimant the British American Assurance Company is a corporation, incorporated under the laws of the Dominion of Canada.

II. On February 24, 1905, there was approved an act of Congress entitled *“An act for the allowance of certain claims*
      *324
      *reported by the Court of*Claims, *and for other*purposes,” whereby it was, among other things, provided—

“ That the claims of the legal or equitable owners or claimants of the float or lighter known as Southern Railway lighter No. 10 and cargoes, freight, and personal effects thereon, alleged to have been sunk, lost, or greatly damaged by collision with the United States army transport *Sumner*in the harbor of Norfolk, Virginia, on or about the seventeenth day of March, nineteen hundred, be referred to the Court of Claims with jurisdiction and authority to hear and determine the same to judgment, with the right of appeal as in other cases: Provided, That no suit shall be brought under the provisions of this act after six months from the date of the passage thereof: *And provided*further, That no judgment shall be rendered against the Government unless it shall affirmatively appear from the evidence adduced that such collision was the result of negligence on the part of the United States or its agents.” (33 Stat. L., 743, 809.)

The claimants filed their petition on April 24,1905.

III. On March 17, 1900, and for many years prior .thereto, the claimant, the Southern Railway Company, as a common carrier for hire, was engaged in the business of transporting goods and merchandise on lighters upon the Elizabeth River, Hampton Roads, and contiguous inland waters of the United States, and for the purpose of that business owned and operated, among other things, lighter No. 10 and a certain wharf situated in the city of Norfolk, Va., at or about the foot of Fayette street. The dimensions of the said lighter were as follows: Length, 165 feet; beam, 32 feet 9 inches; depth of hold, 8 feet 2 inches.

The claimants, the British and Foreign Marine Insurance Company, St. Paul Fire and Marine Insurance Company, .ZEtna Insurance Company, and British American Assurance Company, on March 17,1900, were, and for many years prior thereto had been, engaged in business as underwriters of marine risks on vessels, their cargoes and freight, and the personal effects thereon.

IV. On March 17, 1900, at or about 12.37 p. m. and prior thereto, the said Southern Railway lighter No. 10, then being-staunch, sound, and seaworthy, was and had been lying at the front of said wharf of the Southern Railway Company, being *325properly and securely moored thereto, and was then and there laden with a cargo consisting of three freight cars containing packages of flour, meat, meal, and other goods and merchandise of the value of more than $4,301.59, the same being in transit, having been duly consigned and committed to the custody of the claimant, the Southern Railway Company, for-•shipment.

The said lighter was then and there insured for the benefit of the claimant, the Southern Railway Company, at and from the port of Norfolk, by the claimants, the British and Foreign Marine Insurance Company, St. Paul Fire and Marine Insurance Company, and iEtna Insurance Company, against loss or damage arising from perils of the sea, including collision and any other loss or misfortune that might occur to the detriment or damage of the same, as follows:

British and Foreign Marine Insurance Company_$3, 000

St. Paul Fire and Marine Insurance Company_ 3, 000-

¿Etna Insurance Company_ 3, 000-

The cargo of said lighter was then and there insured for the benefit of the claimant, the Southern Railway Company, by open-cargo policies of claimants, as follows:

British and Foreign Marine Insurance Company_$10, 000

St. Paul Fire and Marine Insurance Company_ 3, 333

¿Etna Insurance Company_ 3, 334

British American Assurance Company_ 3,333

V. On and prior to March 17, 1900, there was a board of harbor commissioners of Norfolk and Portsmouth organized and existing pursuant to a law of the State of Virginia, enacted February 26,1890, and on March 17,1900, certain rules and regulations adopted by said board were in full force and effect, which, among other things, provided:

“ It shall be unlawful for any vessel propelled in whole or in part by steam to move in the harbor above Craney Island at a greater speed than that stated in its class, as follows : * * * Class 3, over 1,500 tons, 4 miles per hour.”

It was and is customary for large seagoing steamships, when descending the harbor from Portsmouth, to proceed at a speed of 4 miles an hour or less, except at the bend of the river just below the warehouses of the Seaboard Air Line,. *326where the speed is increased for a short distance to about 6 miles an hour, so that they will respond promptly to their helms and make the turn to the westward, which has to be made at that point in order to follow the channel.

In the navigation of Norfolk Harbor it is usual and customary for large merchant vessels to employ tugs to aid them in keeping in the channel and enable them to avoid collisions with vessels at anchor in the harbor or moored at wharves along the shores thereof. It was not customary for battle ships, colliers, and other government vessels to use tugs in going to or from the Norfolk Navy-Yard, and there was no regulation in force in March, 1900, or at any other time, requiring steamers to employ tugs to aid them in the navigation of Norfolk Harbor.

There is no regulation fixing the point off the Seaboard Air Line docks at which the first turn to the westward should be made, and there does not appear to be airy exact course, established by custom or otherwise, uniformly followed by the local pilots in making said turn. Some pilots turn their vessels when about 300 feet distant from the Seaboard docks, while others prefer to swing well over toward the Berkeley shore, two-thirds across the channel, or from 100 to 800 feet distant from the Seaboard docks, the course and distance varying according to the draft of the ship and the position of other vessels encountered on the way down. The formation of Norfolk Harbor and the location of its channel are such that if a descending seagoing vessel fails to turn to the westward on reaching a point opposite the Seaboard Air Line warehouse No. 9, and thereafter fails to continue to turn to the westward following the bend of the river, she will be carried across the stream and collide with or come into dangerous proximity to the wharves situated along the northeasterly or Norfolk shore or vessels moored thereto. The tendency of a descending vessel to sag over toward the Norfolk shore of the river is increased if the prevailing wind be southerly or southwesterly and the tide a strong ebb and the vessel so light as to be easily affected by the wind.

VI. Some time prior to the month of March, 1900, the U. S. S. *Cassius,*a single-screw steel vessel, length 351.1 feet, breadth 43 feet, depth 26 feet, gross tonnage 3,458 and net *327tonnage 2,182 tons, was by competent authority ordered to be converted at the Norfolk Navy-Yard, under the supervision of the naval authorities, into a transport for the United States Army, to be known as the Sumner. The work of conversion was completed and the Sumner was transferred on the morning of March 16, 1900, to the officers and crew ,of the Quartermaster’s Department, United States Army, who had been sent from New York to take possession of and to bring her to the latter port.

*328

*327VII. Said transport Sumner sailed from the Norfolk Navy-Yard at or about 12.20 p. m. on March 17, 1900, bound for the port of New York, officered and manned by agents of the United States, and proceeded down Norfolk Harbor on her way to the sea. Her sailing master had never commanded a steam vessel prior to this time. The navigation and management of the Sumner while so descending the harbor from the navy-yard to the sea was exclusively under the control and direction of a government pilot holding a first-class license from the United States for more than eight years for all waters from Portland, Me., to Norfolk, Va., and who previously for more than ten years had piloted battle ships, navy colliers, and merchant vessels to and from Norfolk Navy-Yard and the port of Norfolk. Said pilot was qualified and fully competent by training and experience as a pilot foi Norfolk Harbor and the waters adjacent thereto, but he does not appear to have been acquainted with the local regulations with respect to the speed of steam vessels.

The weather was clear when the Sumner left the navy-yard, the wind blowing from the south-southwest at a velocity of about 17 miles an hour and a strong ebb tide running/ and the vessel was light, having no cargo.

VIII: Government chart of Norfolk and Portsmouth Harbors so far as it relates to this case. (For chart see facing page.)

IX. The Sumner was towed out into the channel from her-bert.h at the navy-yard wharf by a tug. The tug was then dismissed, and she proceeded at half speed in midchannel down the southern branch of the Elizabeth River.

When at a point off the Seaboard Air Line docks a tug with a barge lashed to either side was sighted. The pilot of: the Sumner blew one whistle, signaling the tug to starboard her helm and give him passageway and a chance to swing to the ivestward into the channel. The tug did not respond, *328whereupon the Sumner blew a danger whistle, to which the tug replied and starboarded her helm, and the Sumner after passing the tug made an effort to turn to the westward, but the wind on the port bow and the resistance of the ebb tide under her starboard quarter tended to throw the ship’s head toward the Southern Railway docks and prevented her from answering her helm promptly, and she began to sag toward said docks.

After passing said tug the Sumner’s pilot noticed that a large schooner was anchored on the Portsmouth or west side of the main channel, a little below the Southern Railway docks. The navigable channel at that point was about 1,800 feet wide and the distance between the stern of said schooner . and lighter No. 10, moored at said docks, was about 900 feet.

The Sumner at this time was making about 8 knots an hour.

X. After the ship began to sag toward the Southern Railway wharf no attempt appears to have been made to stop her or materially reduce her speed until she arrived within 350 feet of said wharf. Then the engines were reversed, and the sailing master of the Sumner ordered the starboard anchor lowered. When the anchor had been lowered to the water’s edge, the order was countermanded by the pilot. The effect of the wind and tide was such that the bow of the *Sumner*swung inward and she collided with said lighter No. 10 at about 12.37 p. m., crushing in her side and inflicting other damage, in consequence of which she sanie with all her cargo on board. The collision and damage were the result of negligence on the part of the officers and agents of the United States.

XI. The following is an extract from the engine-room record of the Sumner for March 17,1900, showing the orders communicated to the engineer in charge by signal from the bridge; also the speed maintained by the vessel from the time she left the navy-yard up to the time of the collision:

“ 12.21J p. m., ahead half speed; 12.22J, ahead full speed; 12.24, ahead half speed; 12.25J, slow; 12.29^, ahead half speed; 12.30, slow; 12.30J, stop; 12.31; ahead half speed; 12.35, ahead slow, stop, astern full, stop, ahead full, stop, astern full; 12.36, astern full; 12.37, stop.”

*329There was no delay in the execution of the orders. The ship’s telegraph was tested before leaving the dock in the navy-yard and found to be in perfect condition.

XII. After being damaged and sunk, in and as a result of the said collision, the said lighter and her cargo were salved and the said lighter was repaired. The damage and loss sustained in consequence of the collision were as follows:

Labor furnished transferring cargo from cars on the wrecked float to- barge and transferring from barge to warehouse— $24.10

W. H. French, for raising barge and cars_ 800. 00

Telephone calls_ 5. 85

Services of tugs *Memphis*and *Piedmont*getting the barge with the cars on board onto the floats to avoid sinking in the channel_ 40.00

J. K. Thomas, for repairs to car float, as per contract_ 5, 250.00

William Freeman, securing pictures and prints to substantiate claim against the Government_ 16.50

Loss on cargo_ 437. 20

Damage to N. & W. box car 23125_ 7. 00

Total_6, 5S0. 65

The claimants, the British and Foreign Marine Insurance Company, St. Paul Fire and Marine Insurance Company, .¿Etna Insurance Company, and British American Assurance Company, in compliance with their respective obligations set forth in their policies of insurance, referred to in Finding-Ill, paid to the claimant, the Southern Railway Company, their respective shares of its loss, insured by them, the same having been duly determined by adjustment. To the extent of the payment so made by each of them it has been subro-gated to the right of the claimant, the Southern Railway Company, to recover damages for the loss sustained by it in and on account of the said collision. The said payments were as follows':

British and Foreign Marine Insurance Company for loss on vessel_: $1, 897. 50

Same for loss on cargo_ 444.07

-- $2,341.57

St. Paul Fire and Marine Insurance Company for loss on vessel_ 1, 897. 50

Same for loss on cargo_,._ 148. 02

2, 045. 52

*330/Etna Insurance Company for loss on vessel-$1, 897. 50

Same for loss on cargo_ ' 148. 03

- $2, 045. 53

British American Assurance Company for loss on cargo _ 148. 03

- 148.03

6, 580.65

The items of $900 for loss of the use of said lighter while being repaired and $306' for damage to wharf claimed by the Southern Railway Company are not proven by competent testimony.

The Southern Railway Company obtained bids for the repair of said lighter No. 10, the lowest of which was for $6,250. The agent of said railway company asked said bidder if he would be willing to make the repairs at a less figure pending the result of an effort to collect from the Government. Said bidder agreed to go ahead and make the repairs provided he was paid $5,250 when same were completed and the remaining $1,000 when it was collected from the Government. The bill presented to the insurance companies for damage to said lighter was for $5,250, and that amount was paid by them in full for all damage.

XIII. The court finds as an ultimate fact, so far as it is a question of fact, that the Sumner was not navigated with ordinary care at the time of the occurrence of the accident aforesaid, and that said collision was caused by such want of the exercise of ordinary care.

*Mr. James H. Hayden*for. the claimant. *Mr. Robert G-Hayden*was on the brief.

*Mr. Frederick De O. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants:

In its application to marine conduct negligence has the same signification as at common law, namely, a failure to perform some duty which the law requires to be performed. In Spencer on Marine Collisions it is said:

“ Sec. 187. *Negligence.*— Negligence is defined as *1*failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.’ (Cooley on Torts, 630.) The Supreme Court have *331defined the term as ‘ the failure to do what a reasonably prudent person would ordinarily have done under the circumstances, or the doing what such a person, under the existing circumstances, would not have done. ’ ” *(The Railroad Go.*v. Jones, 95 U. S., 441.)

To the same effect is the language of the United States District Court of Washington in *The City of Aberdeen*(107 Fed., p. 996) :

“ To render a vessel liable in damages for a collision there must have been a failure on the part of her officers or crew to exercise ordinary prudence and vigilance or to act with ordinary promptness to avoid accidents, and, in the absence of any proof of a violation of some rule of navigation or harbor regulation, she can not be held liable merely because her captain or some person in her service failed to prevent the collision by possible means, which would have required the highest degree of skill and the utmost quickness of movement.”

The English rule is well expressed in *The William, Lmdsay*(L. R., 5 P. C., p. 343), where, speaking of the duties incumbent upon the master of the ship, it is' said:

“ The true rule is that he must take all such precautions as a man of ordinary prudence and skill exercising reasonable foresight would use to avert danger in the circumstances in which he may happen to be placed.”

See also *McOabe*v. *Old Dominion 8. 8. Oo.*(31 Fed., 234).

In its final analysis the allegation of negligence in this case rests upon the proposition that it was the duty of the United States and its agents to anticipate that the navigable channel of the harbor would be narrowed by the presence of a schooner so anchored as to unlawfully obstruct the same, and to know under the circumstances actually encountered that the *Sumner*would not respond promptly to her helm. This is equivalent to saying that government agents should have exercised not only the highest degree of human skill, but something more, even, than human foresight. The law, however, requires only such precautions as one “of ordinary prudence and skill exercising reasonable foresight would use to avert danger in circumstances in which he may happen to be placed.” *(The William*Lindsay, L. R., 5 P. C., p; 343.)

*332Haying properly manned and equipped the *Sumner*and placed her in charge of a competent pilot, who navigated her with prudence and skill, according to the harbor regulations, the United States did all that “ a reasonably prudent person would ordinarily have done under the circumstances ” *(B. B. Go.*v. Jones, 95 U. S., 441), and can not be held liable under the terms of the jurisdictional act for damage resulting from the collision in this case.

Atkinson, J.,

delivered the opinion of the court:

The claims in this suit grow out of a collision between the United States army transport Sumner, outward bound, and a barge or lighter owned and operated by the Southern Railway Company and moored at its dock, which occurred in the Norfolk (Ya.) Harbor March 17, 1900. The claims were referred to this court for adjudication by the omnibus claims act of February 24, 1905 (33 Stats., 747-809). The act is printed in the findings, but the material part thereof is as follows: *“*That no judgment shall be rendered against the Government unless it shall affirmatively appear from the evidence adduced that such collision was the result of negligence on the part of the United States or its agents.”

The barge and its cargo were insured, and the insurance companies holding policies thereon paid the Southern Railway Company in full for the cost of repairing the barge and the loss of the cargo, amounting to the sum of $6,580.65, taking subrogation receipts therefor, by virtue of which they appear as parties plaintiff in this suit. The railway company, however, seeks to receiver from the United States the additional sum of $2,198.15 for other alleged damages to its property resulting from the collision.

Under the jurisdictional act negligence is the gravamen of the complaint and the basis upon which this suit depends. Negligence has the same signification in marine law as in the common law. The text-books and court decisions agree, in applying the rule of negligence to navigation, that the master of a vessel must take all such precautions as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger in the circumstances in which he may happen to be placed.

*333In tbe case of *The Pennsylvania*(19 Wall., 125, 136), Mr. Justice Strong, in delivering the opinion of the court as to the liability of vessels in collisions, said, *inter alia:*

> “ The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory causé of the disaster. In such a case the burden rests upon the ship or ships of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.”

The findings in the case at bar show that the transport Sumner was a large vessel of 3,458 gross tons burthen; that she left her wharf at the Portsmouth (Va.) Navy-Yard, and proceeded down the Elizabeth Elver on her way to the Atlantic Ocean the day the collision occurred; that she was manned by a new crew of officials unacquainted with the character of the vessel, although her pilot was one of experience and was familiar with Norfolk I-Iarbor; that the vessel was aided by a tug in leaving the navy-yard, but it was released a short distance above the point where the collision occurred.

The Government chart or map of Norfolk Harbor, which is made a part of the findings, shows a slight bend in Elizabeth Eiver at or near the place of the collision. The depth of the water at the Southern Eailway dock, where the barge or lighter was being unloaded, was 43 feet, the middle of the channel was 26 feet, and the width of the channel was about 1,800 feet. Although a tug with two barges in tow was observed by the pilot of the Sumner descending the river when his vessel was at a point off the Seaboard Air Line docks, and a short distance below the Southern Eailway docks a large schooner was anchored in the river on the Portsmouth side, but as' the channel was about 1,800 feet wide and the distance was about 900 feet between the stern of said schooner and the Southern Eailway barge which was moored at its dock (Finding IX), there was apparently am-*334pie room for the Sumner to have passed in safety, notwithstanding the velocity of the wind, had she been running at a speed of 4 miles an hour, as required by the law of the State of Virginia (Finding V), instead of at a speed of about 8 knots an hour, which she was then making.

The rule governing the conduct and speed of vessels entering or leaving harbors is carefully stated in *Spencer on Marine*Collisions, section 81, in the following language:

> “ Whenever a steamer is in a situation where the frequent passing of vessels may reasonably be expected, or where the linown difficulties of navigation render a high rate of speed dangerous, common prudence requires her to go at a rate commensurate with the attending dangers. The rule does not make a steamer at fault for not reducing her speed so long as she is situated so that the ordinary precautions and rules of navigation, if observed, would prevent collision. Nor does the rule contemplate a case where collision is the result of sheer negligence or disobedience of well-known rules, but applies to cases where the emergency is such that, notwithstanding the presumption that the parties intend to perform their duties and are also to do so, there is still danger that collision may ensue. In the navigation of harbors, and crowded channels a steamer is permitted to proceed only at such a rate of speed as to enable her easily to stop and change her course from a forward to a backward one, within the distance she is liable to sight approaching vessels, making due allowance for the other’s speed. It is especially dangerous for a steamer to proceed at a high rate of speed in a harbor near piers and docks where vessels are constantly entering and emerging from their slips. A steamer entering a harbor should use the utmost caution as to its speed, and its officers are required to be in positions where the vessel’s movements may be directed with the utmost promptitude. Navigating a steamer at a' high rate of speed imposes the duty of increased vigilance, proportionately greater as there is liability of meeting other ships and difficulties in navigation. No absolute rate of speed can be established for all vessels on all occasions; it must depend upon the locality and the peculiar circumstances of the case; but it must not be such that it can not be maintained without probable risk to the lives and property of others. Excessive speed is a question of fact, to be determined largely by the locality, the hour, the state of the weather, and the ability of the vessel to be promptly cbntrolled. What might be moderate speed for one vessel might be excessive for another in the same sitúa*335tion. What might not be excessive speed in a steamer of great power, with engines of great strength, and appliances by which it is easily and quickly handled, stopped, and backed, might be excessive in another going at the same rate, having less powerful machinery and less ability for prompt action; so that reference must be had to all the circumstances affecting the ability of a steamer to keep out of the way in determining her liability under the rules.” *(The H. F. Dimock, 77*Fed. R., 226; *The*Nacoochee, 137 U. S., 330; *The*Martello, 153 U. S., 64; *The*Pennsylvania, 19, Wall., 125; *The*Corsica, 9, Wall., 630; *City of Paris,*ibid., 634.)

In the case before us the rule of speed for Norfolk Harbor, as we have already stated, was fixed by state statute for vessels above 1,500 tons burthen at not exceeding 4 miles per hour. If, therefore, the Sumner was unable to navigate the harbor under the prevailing conditions at that prescribed speed, she should have remained in port; or if she was compelled to sail, as appears to have been the case, she should have retained her tug, because she was required by harbor regulations to maintain only such a rate of speed as by reversing her engines she could come to a standstill in time to avoid collision; and bjr the law of the port, under no circumstance was she allowed to exceed 4 miles an hour. *(The Favorita,*18 Wall., 598; *The Nacoochee, supra.*Also *Spencer on Marine Collisions,*secs. 79 and 80.)

As shown by the engine-room record of the *Sumner*(Finding NI), the reversing of her engines does not seem to have been either prompt or effective, sufficient at least to avoid collision and attendant liability. Nor can it be maintained that her sagging toward the Norfolk shore was due to error of judgment in extremis, as contended by defendants’ counsel. It was said in the case of *The Teutonia*(23 Wall., 77) that:

> “ Precautions must be seasonable in order to be effectual, and if they are not so, and a collision ensues in consequence of the delay, it is no defense to allege and prove that nothing could be done at the moment to prevent the disaster, or to allege and prove that the necessity for precautionary measures was not perceived until it was too late to render them availing. Inability to avoid a collision usually exists at the moment it occurs, but it is generally an easy matter, as in this case, to trace the cause to some antecedent omission of duty *336on the part of one or both of the colliding vessels.” (See also *City of New York,*147 U. S., 72; *Elizabeth Jones,*112 U. S., 514; *The Sea Gull,*23 Wall., 165.)

*Spencer on Marine Collisions,*section 196, reads:

> “ * * * To enable a vessel to avail itself of the plea of mistake, made *in*extremis, it must appear that the situation was induced by the fault of the other. Where the evidence shows that the antecedent misconduct of a vessel has brought it into a situation where there is no time for judicious action, the fact that an injudicious order is given, under the excitement of the moment, will not relieve it from the antecedent fault, and it may not avail itself of the plea of imminent peril as an excuse.”

Section 4235, Revised Statutes, provides that “ until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be, or with such laws as the States may respectively enact for the purpose.”

The act of August 19, 1890 (26 Stats., 320), provides a code of rules and regulations to be followed by all jmblic and private vessels of the United States upon the high seas and all of its rivers and harbors navigable by seagoing vessels. Article 30 of these regulations is in the following language: “ Nothing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland waters.”

Inevitable accident is usually confined to vessels when they are in action. In the case at bar the lighter or barge was properly and securely moored in her own dock. She therefore was in no respect responsible for the collision. Hence, to establish inevitable accident on the part of the defendants, it must be shown that the officers of the *Sumner*exercised due care, precaution, and nautical skill from the moment when the necessity of such precaution arose and not simply when collision was imminent. In other words, precaution must be *seasonable.*As was said by Mr. Justice Clifford in the case of *Union Steamship Co.*v. *N. Y. & Va. Steamship Co.*(24 How., 307):

> “ It is not inevitable accident, as was well remarked by the learned judge in the case of *The Juliet Erskine*(6 Notes of *337Cases, 634), where a master proceeds carelessly on his voyage, and afterwards circumstances arise when it is too late for him to do what is fit and proper to be done. ‘ He must show that he acted seasonably,’ ana that he ‘ did everything which an experienced mariner could do, adopting ordinary caution,’ and that the collision ensued in spite of such exertions. Unless the rule were so, it would follow that- the master might neglect the special precautions which are often necessary in a dark night, and when a collision had occurred in consequence of such neglect he might successfully defend himself upon the ground that the disaster had happened from the character of the night and not from any want of exertion on Ms part to prevent it.”

The case of *The Columbia,*(48 Fed. R., 325) is almost identical in every respect with the case at bar. A barge moored at her dock in New York Harbor was run into and sunk by The Columbia, which could not be controlled on account of a .gale of wind which was blowing at the rate of about 19 miles an hour. Mr. Justice Brown, delivering the opinion of the court, decided that it was not a case of inevitable accident, and said: “ * * * To admit of that defense it must appear that the danger was not to be apprehended, or, if it was liable to arise, that a proper watch was kept beforehand, and .seasonable precaution taken against such liability, and that reasonable skill was used when danger arose. The facts in this case fall short of these requirements.” Many other cases holding similar doctrine could be cited, but we deem it unnecessary so to do.

We do not regard the cases referred to by defendants’ counsel as decisive of the case before us. Here the right to sue having been granted by the Congress, the question is whether the Sumner violated the navigation laws, which are expressly made applicable to all public and private vessels of the United States, both in harbors and on the high seas, and whether it affirmatively appears from the findings and the decisions quoted that the collision was the result of negligence on the part of the United States or its agents?

On the 17th of March, 1900, when the Sumner left the Portsmouth Navy-Yard, no unusual difficulties confronted her in passing safely out of Norfolk Harbor, and if the rules and regulations of the harbor had been properly observed no *338accident should hav¿ occurred, and doubtless would not have occurred. We are of the opinion, therefore, that the manner in which this unballasted vessel was taken from her moorings out into the harbor, under the prevailing conditions and handling her in apparent ignorance and disregard of the port regulations and local usage, clearly establishes such a degree of affirmative negligence as to fix upon her the sole cause of the collision.

We decline to allow the extra $1,000 claimed by the Southern Railway Company for repairing the barge or lighter, for the reason that the payments made by the insurance companies to said railway company were in full satisfaction of all damages. Moreover, the insurance companies, were not requested to pay said $1,000 under the policies,, which fully covered all damages. The party who made the repairs is not before the court, and if the alleged balance due thereon were paid it should be paid to him and not to the Southern Railway Company.

Nor do we allow said company’s additional claim of $1,198.15 for damages to the wharf and use of the lighter not included in the bill which was paid to it by the insurance companies, for the reasons that the nature and extent of the repairs to the wharf are not shown, nor is there any evidence as to when the wharf was built or when, if ever, it was last repaired. It is shown that it had been used for many years, and had been often injured by tugs and barges which necessarily came in contact with it, but its condition at the time it is alleged to have been injured by the collision in controversy is not shown by competent testimony. No allowance can be. made for the use of the lighter while it was undergoing-repairs, because its daily earning capacity, or the cost at which similar ones could be hired, is not established. Neither is the length of time consumed in making the repairs shown,, nor that the company sustained any actual loss by being deprived of its use during the period in question.

Judgment is rendered accordingly against the United States as set forth in the conclusion of law.