Wolff v. The Vaderland, 18 Fed. Rep. 736; Clifton v. United States, 4 How. 246, 11 L ed. 959; Gulf, C. & S. F. R. Co. v. Ellis, 10 U. S. App. 640, 54 Fed. Rep. 481, 4 C. C. A. 454. The Great Lakes are not "lakes and inland waters of the United States" within the meaning of the act of 1885 (23 Stat. at L 438, chap. 354). 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 Moore v. American Transp. Co. 24 How. 1, and referred to in the arguments upon the 16 L. ed. 674; American Transp. Co. v. rehearing before the district judge; that Moore, 5 Mich. 368; The Garden City, 26 such statute was then treated and used as Fed. Rep. 766; The Robert Holland & Parpart of the record; but there was no ste-ana, 59 Fed. Rep. 200; The Genesee Chief v. nographer present at the time and no minute Fitzhugh, 12 How. 443, 13 L. ed. 1058; Craig of such introduction and use of the Canadian v. Continental Ins. Co. 141 U. S. 638, 35 L. statute was preserved in the record. The ed. 886, 12 Sup. Ct. Rep. 97; Illinois C. R. motion for an order permitting testimony Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, to prove the Canadian statute appears to 13 Sup. Ct. Rep. 110; United States v. Rodhave been withdrawn, a suggestion of dim-gers, 150 U. S. 261, 37 L. ed. 1075, 14 Sup. inution of record substituted, and a writ of Ct. Rep. 109. certiorari asked for and granted to supply form in keeping out of the way of the New The Conemaugh had an active duty to persuch evidence as did not appear in the rec-York, and the New York had an equally imord. The district court made return to this perative duty to keep her course; each had a writ by an order that the clerk transmit to right to rely upon the other's performance the court of appeals a certified copy of the of its duty. 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 Cana[193]dian Waters, A.D. 1886;' that I have careful ly 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. Mr. Harvey D. Goulder argued the cause and, with Mr. John C. Shaw, filed a brief for petitioners: 16 Sup. Ct. Rep. 516; Meyers Excursion & The New York's duty, as to course, was to continue as she was then going, unless it became necessary to depart from that course to avoid impending peril or any immediate danger, and in that event her departure must only be to the extent that the immedi ate danger reasonably demands. The John L. Hasbrouck, 93 U. S. 408, sub nom. Lyman v. The John L. Hasbrouck, 23 L. ed. 963. When an obstruction is presented, it is the duty of the steamer ascending, breasting the tide or current, to stop until the vessel proceeding with the tide or current shall get out of the way, because of the greater facility with which the ascending steamer can control her movements. The Galatea, 92 U. S. 439, sub nom. Robert v. The Galatea, 23 L. ed. 727. Statutory rule 19 leaves it optional with the steamer required to keep out of the way to do it in such a manner as she may choose, fixing upon her the imperative obligation to get out of the legal course of the privileged vessel. Any rule taking away this option and requiring this to be done in a certain manner would be in derogation of the statutory rule and, so far as inconsistent with it, invalid. The B. B. Saunders, 23 Blatchf. 378. 25 Fed. Rep. 727; The Atlas, 4 Ben. 27, Fed. Cas. No. 633; The Transfer No. 4, 44 Fed. Rep. 303; The Ottoman, 33 U. S. App. 443, 74 Fed. Rep. 316, 20 C. C. A. 214. Where a party has withheld the best evidence of a material fact claimed by him, or has not produced witnesses whom he might have called, the presumption is that such evidence, if produced, would have been detri-court in an ordinary action. mental to, or would have disproved, his contentions. A court of admiralty will take judicial notice of foreign regulations for the prevention of collisions, without such technical proof as might be required by a common-law Talbot v. Seeman, 1 Cranch, 1, 2 L. ed. 15; The Scotia, 14 Wall. 170, sub nom. Sears v. The Scotia, 20 L. ed. 822; Marsden, Colli- | Ehrman v. Curtis, 24 L. ed. 890; The Atlas, sions, 310-340; Wharton, Confl. L. § 771; Wharton, Ev. §§ 285, 331. Mr. F. H. Canfield argued the cause and, with Mr. G. L. Canfield, filed a brief for the underwriters on the cargo of the propeller Conemaugh: In cases of collision, the solution of which is doubtful because of conflicting testimony, if it appear that an important witness is not called, the doubt will be resolved against the vessel on which he was engaged. The Fred M. Laurence, 15 Fed. Rep. 635. The rule with respect to lookout having been violated by the New York, she must be held to have been in fault unless it be established by clear proof, not only that the violation of the rule probably did not contribute, but that it could not have contributed, to the collision. Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. 136 U. S. 408, 34 L. ed. 398, 10 Sup. Ct. Rep. 934; The Pennsylvania, 19 Wall. 125, sub nom. The Pennsylvania v. Troop, 22 L. ed. 148. The rule that a ship is to keep her course does not mean that she is to do so obstinately when she sees that, under the peculiar circumstances of the case, she can, by departing from it, avoid a collision. Marsden, Collisions, 475; The Sunnyside, 91 U. S. 208, sub nom. Miner v. Sunnyside, 23 L. ed. 302. The right of a vessel to keep her course does not relieve her from the obligation to maintain a careful lookout. The Chicago, 61 Fed. Rep. 521. The Conemaugh's thrice repeated signals and the exhibition of her green light were clear and certain indications of her intent | not to keep out of the way of the New York, which the latter should have regarded by checking her speed, or, if necessary, by stopping and reversing. The C. H. Seuff, 32 Fed. Rep. 237; The America, 32 Fed. Rep. 845; The Baltimore, 34 Fed. Rep. 660; The Aurania & The Republic, 29 Fed. Rep. 98; The Friesland, 76 Fed. Rep. 591; The City of Chester, 42 U. S. App. 366, 78 Fed. Rep. 186, 24 C. C. A. 51; The Louise, 8 U. S. App. 138, 52 Fed. Rep. 885, 3 C. C. A. 330; The Grand Republic, 16 Fed. | Rep. 424; The Memnon, 6 Asp. Mar. L. Cas. 317. 93 U. S. 312, sub nom. Phoenix Ins. Co. v. The Atias, 23 L. ed. 865; The Beaconsfield, 158 U. S. 303, 39 L. ed. 993, 15 Sup. Ct. Rep. 860; The Juniata, 93 U. S. 337, sub nom. United States v. The Juniata, 23 L. ed. 930. Messrs. H. C. Wisner and C. E. Kremer argued the cause and, with Mr. W. O. Johnson, filed a brief for respondent: The laws of the United States and rules of navigation prescribed by the supervising inspectors, having attached to the steamers by reason of the commencement of their manoeuvering to pass, when both were in American waters, continued to be obligatory up to the time the Conemaugh blew the alarm signal and starboarded across the bow of the New York, when both were thereby put in extremis. New York, L. & U. 8. Mail 8. S. Co. v. Rumbali, 21 How. 372, 16 L. ed. 144; The Johnson, 9 Wall. 146, sub nom. The Johnson v. McCord, 19 L. ed. 610; The Wenona, 19 Wall. 41, sub nom. Fraser v. The Wenona, 22 L. ed. 52; The Breakwater, 155 U. 8. 252, 39 L. ed. 139, 15 Sup. Ct. Rep. 99. Navigation on the Great Lakes is excluded from the operation of the act of March 3, 1885, by the clause excepting its application to vessels navigating within the harbors, lakes, and inland waters of the United States. The North Star, 22 U. S. App. 242, 62 Fed. Rep. 72, 10 C. C. A. 262. Under inspector's rule No. 2, it was the duty of the Conemaugh to port and go under the stern of the New York. The Johnson, 9 Wall. 146, sub nom. The Johnson v. McCord, 19 L. ed. 610; The Grand Republic, 16 Fed. Rep. 427; The B. B. Saunders, 23 Blatchf. 378, 25 Fed. Rep. 727; United States v. Miller, 26 Fed. Rep. 97; The John King, 1 U. S. App. 64, 49 Fed. Rep. 469, 1 C. Č. A. 319; The E. A. Packer, 14 Ú. S. App. 684, 58 Fed. Rep. 251, 7 C. C. A. 216; The George S. Shultz, 55 U. S. App. 274, 84 Fed. Rep. 508, 28 C. C. A. 476. This is the rule of navigation whether declared by inspector's rules or not. The Rhondda, L. R. 8 App. Cas. 549; The Columbia, 10 Wall. 246, sub nom. The Columbia v. Bunting, 19 L. ed. 890; The Britannia, 153 U. S. 138, sub nom. The Britannia v. Cleugh, 38 L. ed. 663, 14 Sup. Ct. Rep. 795; The Delaware, 161 U. S. 459, 40 L. ed. A vessel whose duty it is to hold her course is not justified in departing there-771, 16 Sup. Ct. Rep. 516. from simply because it is convenient for her to do so. She must hold her course, unless prevented from doing so by some necessity or vis major. The Illinois, 103 U. S. 298, sub nom. Golding v. The Illinois, 26 L. ed. 562; Marsden, Collisions, 493; The Clara Davidson, 24 Fed. Rep. 763; Spencer, Collisions, p. 202. The owner or underwriter on the cargo, in cases of collision brought about by the mutual faults of the colliding vessels, has the right to pursue either, or both, of the wrong doers. The Alabama & The Game-Cock, 92 U. S. 695, sub nom. The Alabama v. Nicholas de las Casas, 23 L. ed. 763; The Virginia Ehrmon, 97 U. 8. 309, sub nom. The Virginia 175 U. S. U. S.. BOOK 44. The New York was not bound to check or stop her speed. The George S. Shultz, 55 U. S. App. 274, 84 Fed. Rep. 508, 28 C. C. A. 476. The New York was under no obligation to in refusing to accept the proposition was in answer the Conemaugh's signal, and her act law equivalent to a refusal, and the only legal way of declaring that refusal. The Delaware, 161 U. S. 467, 40 L. ed. 774, 16 Sup. Ct. Rep. 516; The George S. Shultz, 55 U. S. App. 274, 84 Fed. Rep. 508, 28 C. C. A. 476; The John King, 1 U. S. App. 64, 49 Fed. Rep. 469, 1 C. C. A. 319; The Florence, 68 Fed. Rep. 940; The B. B. Saunders, 23 Blatchf. 378, 25 Fed. Rep. 731. 129 The refusal of the New York to accept, the States v. The Montello, 20 L. ed. 191; Veazie The Mury Powell, 63 U. S. App. 781, 92 7 C. C. A. 216. [193] *Mr. Justice Brown delivered the opinion of the court: *The power of the supervising inspectors[195) to adopt rules for the government of steam vessels in passing each other (Rev. Stat. 4412) is limited by § 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: Rule 2. "When steamers are approaching each other in an oblique direction (as shown in diagram of the fourth situation) they shall pass to the right of each other as if meeting head and head' or nearly so, and the signals by whistle shall be given and answered promptly, as in that case specified." This collision took place in October, 1891. The navigation of the two steamers was 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, [194]*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, not- Rule 3. "If, when steamers are approachwithstanding this exception, to apply to ves- ing each other, the pilot of either vessel fails sels navigating the Great Lakes; but the to understand the course of the other, whether cases are readily distinguishable. In that from signals being given or answered errothe exception was "any canal boat, barge, or neously or from other cause, the pilot so in lighter, or to any vessel of any description doubt shall immediately signify the same by used in rivers or inland navigation." It giving several short and rapid blasts of the was held that the character of the craft enu- steam whistle; and after the vessels have merated might "well serve to indicate to approached within half a mile of each other some extent, and with some reason, the class both shall be immediately slowed to a speed of vessels in the mind of the law-makers, barely sufficient for steerage way until the which are designated by the place where em- proper signals are given, answered, and unployed." But the case was really decided up-derstood, or until the vessels shall have on the ground of the magnitude of the Lakes, passed each other." their commerce, their vessels, and the wellknown 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 The question how far this court may take "lakes" was not intended to include the judicial notice of the laws of a foreign coun Great Lakes it is difficult to see the object try has been the subject of some discussion. of Congress in making use of that word, since and was first considered by this court in the nearly all the other navigable lakes, except case of Talbot v. Seeman, 1 Cranch, 1, 38, 2[196] Lake Champlain, are located within the lim- L. ed. 15, 27. That was a case of salvage its of a single state, and no act was neces- upon recapture from the French. It became sary to exempt them, as the power of Con- necessary to inquire whether the laws of gress does not extend to the purely internal France were such as to have rendered the or infraterritorial commerce of the country. condemnation so probable as to create a case The Montello, 11 Wall. 411, sub nom. United' of such real danger that her recapture could 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. 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 promulgated in the United States as a law of France, was entitled to be read, Mr. Chief Justice Marshall observed "that the laws of a foreign nation, designed only for the di-ly persuasive here. The reference to the rection of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with re spect to facts, is limited to the statement made in the court below, cannot be questioned. The real and only question is whether the public laws of a foreign nation, on a subject of common concern to all na-act is properly before us. tions, promulgated by the governing powers of 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 without being proved as facts. It has been said that this is done by consent; that it is a matter of general convenience not to put parties to the trouble and expense of proving permanent and well-known laws which it is in their power to prove; and this opinion is countenanced by the case cited from Douglas. If it be correct, yet this decree, having been promulgated in the United States as the law of France, by the joint act of that the Canadian statute, which was introduced department which is intrusted with foreign and used as evidence in the district court, intercourse, and of that which is invested did not appear in the record, and a writ of with the powers of war, seems to assume the certiorari was granted "because the trancharacter of notoriety which renders it ad-script of the record in this case does not conmissible in our courts." tain a copy of the Canada statutes governThe same question as applied to the orig-ing the navigation of vessels in the waters [197]inal 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 orig. inally 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 U. 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 giv But we think that for another reason the been appealed to the circuit court of appeals, 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 en tirely as they remain of record in said dis- [ing these piles, leaving them on her port trict court." In view of these proceedings, hand, she received and answered a signal of we think the circuit court of appeals should two blasts from the Burlington, which had have accepted the certified copy of the stat-come down the river on the Canadian side, ute as properly in evidence before it. The only novel feature of this statute, pertinent to this case, is as follows: The and was at that time rounding to at the coal dock on the American side, her tow of four barges making a crescent or semicircle, the "Art. 19. In taking any course authorized outer arm of which was, as above stated, or required by these regulations, a steam from 500 to 800 feet from the Canadian ship under way may indicate that course to bank. The length of the tow was about any other ship which she has in sight by the 2,600 feet, the width of the channel about [199]following signals on her steam whistle, that 3,000 feet. The Burlington at this time was is to say: One short blast to mean I am exhibiting to the Conemaugh her white mastdirecting my course to starboard;' two short head and her starboard green light. blasts to mean 'I am directing my course to first barge in tow was also exhibiting her port;' three short blasts to mean 'I am go-green light, but the others had not rounded ing at full speed astern.' The use of these to sufficiently to exhibit their colored lights. signals is optional; but if they are used, the After exchanging this signal with the Burcourse of the ship must be in accordance with lington, the wheel of the Conemaugh was the signal made." put hard-a-starboard, her speed checked, and her course taken across the stream at almost a right angle with her former course. Upon this course she was exhibiting her green light In this view, the question whether two American vessels running from one American port to another are bound, whenever they cross the boundary line between the United to vessels ascending the river. After she States and Canada, which at this point is had "picked up" or discovered the rear barge the filum aquæ of Detroit river, to conform her wheel was steadied, and then ported to to the navigation laws of Canada, does not follow the tow, which by the force of the curarise in this case. Were all the commerce rent was gradually swinging down stream, of the lakes carried on in American vessels and would ultimately round to on the Ameri the question would be less difficult of solu- can side, astern of the Burlington. As the tion. But as much of this commerce is Ca- Conemaugh steadied her wheel to starboard nadian, and it is impossible to tell whether her watch made out below the tow and about an approaching vessel be American or a mile distant the white and red lights of Canadian, an attempt to apply the laws of the New York, apparently somewhat on the the United States in all cases might result American side of mid-channel, and promptin confusion and in great injustice to Canations of the two countries differed in any to the left. No answer was received from dian vessels, in case the rules and regula-ly signaled her with two blasts of her whistle, indicating that she would pass her material respect. We are saved, however, consideration of these questions by the fact the New York. that the signals and the steering rules of the 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. 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 quar ters 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 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. The Conemaugh, a steamer of 1,609 tons 200]burden, was coming down the American side of the river at her usual speed of about 10 miles an hour, and, when her attention was first called to the obstruction of the Burlington's tow, was about passing what are known as the Kasota piles, which were in fact the remains of a coffer dam once used in raising the steamer Kasota. They were near midchannel, though somewhat upon the American side, and about three quarters of a mile above Smith's Coal Dock. As she was pass 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[201] 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. 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 lights. Again no reply was made by the 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 being apparently close to and between the second and third barges of the tow. New York made no answer to this third signal. The duty of the Conemaugh at this juncture was plain. She should have stopped her engines after the second signal, and, if necessary to bring her to a complete standstill, have reversed them. Nothing is better settled than that, if a steamer be approaching another vessel which has disre The |