The Robert M. Thompson

COXE, Circuit Judge. [1,2] The District Judge has stated the facts fully and accurately in his opinion and they need not be repeated here except as they bear upon the speed of the Snow. The conclusion of the District Judge is stated at the close of his opinion as follows: “As the Thompson was clearly at fault, and as the Snow, though going at an excessive rate of speed, was otherwise properly navigated, and as the rate at which the Snow was going did not contribute to the collision, the Snow may have a decree with costs, and in the cross-action a decree dismissing the libel with costs.” We are entirely satisfied with the opinion of the District Judge regarding the navigation and liability of the Thompson and, therefore, need spend no time in considering that branch of the controversy. The important question for us to determine is — Was the Snow guilty of negligence? The court after reviewing the testimony reaches the conclusion that the Snow was making about 5 knots an hour, that she could have kept her course at 3 knots an hour and that when she proceeded at the rate of about 5 knots an hour,, with all sails set, she was going faster than was necessary to maintain steerageway, “and certainly in excess of her duty in a fog as dense as all witnesses agree this fog was. The mere fact that she was going with all sails set strongly suggests a rate beyond the requirements of steerageway.” The District Judge after carefully reviewing the testimony reaches the following conclusion, which is clearly substantiated by the proof: “I am of the opinion that both tlie Thompson and the Snow were proceeding at an excessive rate of speed in view of the pending conditions. It is quite clear from the testimony that very little deviation would have avoided the collision.” The judge concludes his résumé of the testimony by the following statement: “The real question in the case is whether because of her excessive speed the Snow is to be condemned for contributing to the collision.” That she was going at excessive speed is thus conceded, as it necessarily must be, in view of the proof that she was making at least 5 knots an hour and that all sails were set and drawing. Some of tho witnesses testified that she was making seven or eight knots an hour but all agree that she was going as fast as it was possible for her to go with the weather conditions then prevailing. We do not attempt an extended analysis of the testimony for the reason that the crucial question is one of law arising upon undisputed facts. Briefly stated, the facts are these — A schooner collides with a steamer in a dense fog. [672] The schooner is going as fast as it is possible for her to go. The International Rules of Navigation provide, article 16, as follows: “Every vessel shall, in a fog, mist, falling snow, or heavy rain-storms, go at moderate speed, having careful regard for the existing circumstances and conditions.” It is, of course, difficult to define moderate speed in all circumstances but it is safe, we think, to define it as something less than top speed or full speed. A vessel that is proceeding as fast as her machinery or her sails will carry her is not going at moderate speed. In The Pennsylvania, 86 U. S. (19 Wall.) 125, at page 136, 22 L. Ed. 148, Mr. Justice Strong says: “But when as in this case, a ship at the time of a collision is in actual violation of a statutory rule, intendeq to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a ease the burden rests upon the ship 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.” In The Bolivia, 49 Fed. 169, at page 171, 1 C. C. A. 221, at page 223, this court said: “We cannot agree with the opinion of the learned district judge that the fault of the steamship was not contributory to the collision. . The burden is upon her to show that it was not and from the nature of the ease this cannot be done. If she had been going slower, she would not have reached the place of the collision when the schooner was there.” See, also, The Rhode Island (D. C.) 17 Fed. 554. We are of the opinion that after having found that the Snow was proceeding in violation of the statute requiring her to proceed at moderate speed the District Court could not find that this negligence did not contribute to the disaster. On the contrary, we are of the opinion that had the rule been followed it is more than probable that the collision would not have happened. The decree is modified and both vessels are held at fault with the costs of this appeal to the appellant.