Page:Federal Reporter, 1st Series, Volume 3.djvu/410

DOUOBEBTZ V. 8TEAMEB FBAITOOIIIA. e03 �thîs additional fault alone, or in connection with the failure to notice the signal at ail, contribute to the collision? The argument for the steamer is that it did not, because the steamer did exactiy what she would have been bound to do if she had heard and answered the signal with a single whistle. It is argued that the steamer had the right to assume that, unless the signal of the tug was answered by two whistles, the tug would not change her course ; that the steamer, un- less she concluded to do as the tug desired her to do, and answered with two whistiles, was bound to keep her course as she did do; that she was not bound to slow or stop, while the tug was thus bound to keep her course. It seems to me, however, that the principle here applies that where a vessel has violated a known rule of navigation, and that violation of duty may have contributed to the disaster, the burden is on her to prove that the fault did not contribute to the collision, and that this has not been proven in this case. If the steamer had noticed the signal and replied to it with one whistle, as she was bound to do, if disagreeing with the change of course proposed by the tug, then it cannot be shown that this replying signal would not have had the effect upon those in charge of the tug which, under the rules, it ought to have, even if they had already, in violation of the rules, changed her course without waiting for a reply to their signal. The duty of the tug would then have been either to reverse her wheel and pass port to port, or to slow and stop if that could not be safely done. How can it be presumed that this would not bave happened ? And in either case the collision would probably have been avoided. But, whether this is so or not, I think, upon the testimony, the change of course on the part of the tug could and should have been sooner observed from the steamer. It was observed sooner on the schooner. It was light enough for the huUs of the vessels to be made out, and, upon the whole testimony, I think it is a proper con- clusion that if a good lookout had been kept on the steamer not only would the signal of the tug, indicating that she was proposing to pass on the starboard side of the steamer, have ����