While I cannot say I am as certain as the district judgeseems to have been that the Pavonia was entirely free from fault, I have, on the whole, come to the conclusion that the preponderance of testimony is that way. My doubt has been as to whether she did not keep on at half speed too long, but it is clearly proven that she did stop her engine some time before the Gregory appeared in sight, and that she rang her bell to back as soon as the sound of approaching wheels indicated special danger. She did with the simple stoppage of her engine, come almost, if not quite, to a stand still, before the point was reached on which the courses crossed. This showed caution and special attention to moderate speed. Had the Gregory done as much, it is almost certain that a damaging collision could not have occurred. Instead of that, 3he seems to have assumed, that, because the Pavonia was on her port hand, she had the right of way, and might keep her course and speed with impunity. In this, I think, she was in fault.
It is true, the statutory sailing rules provide, that,.‘‘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” (Rev. St § 4233, rule 19), and that, in such case, “the other shall keep her course" (rule 23), having regard “to any special circumstances which may exist in any particular case, rendering a •departure * * * necessary, in order to avoid immediate danger” (rule 24). This evidently has reference specially to cases where the vessels can be seen from each other and their movements directed accordingly; and so the supervising inspectors must have understood, when, under the authority (sections 23, 29) of tee act of February 28, 1871 (16 Stat. 449, 450, now Rev. St §§ 4405, 4412), they adopted their rule 4, which is as follows; “When steamers are running in a fog •or thick weather, it shall be the duty of the pilot to cause a long blast of the steam whistle to be sounded, at intervals not exceeding one minute, and no steamer shall, in any case, be jus tided in coming in collision with another vessel if it be possible to avoid it” To this must be added statutory rule 21, which provides, that “every steam vessel, when approaching another vessel, so as to involve risk of collision, shall slacken her speed, or. if necessary, stop and reverse; and every steam vessel shall, when in a fog, go at a moderate speed;” and, taking all together, it seems to me clear, that the responsibility of keeping out of the way in a fog is thrown upon both of two approaching steam vessels. The reason is obvious. In the midst of a fog, sound takes the place of sight, as the means of ascertaining the position of approaching vessels; and as, for such purposes, sound is more uncertain than sight, tee greatest caution is required on all sides. Hence it has been established, that, under such circumstances, steamers shall take no risks. They are not to be justified in colliding with any other vessel in a fog. Having complete control over their own movements, they can, if they will, come to an understanding as to the manner in which they shall pass each other, before any serious collision can occur. It may cause some inconvenience to those who are in haste, but it will be more likely to ensure safety.
Here, each boat knew of the close proximity of the other, and their well-understood crossing courses made a collision possible. Each heard and recognized the signals of the other. It was easy to communicate by signals that experienced pilots would readily interpret. By moving slowly and cautiously, there was no great difficulty in feeling their way, until there was a perfect understanding as to what each should do. All it needed was to act in accordance with the spirit of rule 3 of the supervising inspectors, framed for another purpose, and “both slow to a speed barely sufficient for steerage way ufitil the proper signals had been given, answered and understood.” This the Pavonia attempted to do when she stopped and finally backed her engine. So as not to run any risk of being confused as to her bearings, she kept her course while she held on to let the Gregory by. If she could have seen, she might have steered out of the way. In the fog, however, it was clearly easier to retain the knowledge of where she was by holding on, rather than changing, her course. Had the Gregory been equally cautious and watchful, I cannot but think no damage would have been done.
The “rule of the road,” to “keep to the right,” always yields to a contrary agreement between the parties. Sometimes, safety requires that this agreement- should be made before dangerous proximity is reached. The rule contemplates certainty as to position and movements. If there is doubt, an attempt should always be made to arrive at a mutual understanding of what is to be done. Especially should this be the case when vessels are navigating a crowded harbor in a fog. *1132The Favonia was not “laying by” or “drifting,” within the meaning of those terms in rule 10 of the supervising inspectors, and, consequently, she was not required to use the special signals contemplated by that rule. She was simply holding on to let the Gregory go by, and, therefore, only bound to give the usual fog signals to indicate her locality.
The damages below, as agreed upon, included interest to the date of the decree. The libellant is entitled to recover, in this court, the amount allowed below, with interest from the date of that decree, on the actual amount of damages as stipulated, not including any interest as calculated below. An entry may be prepared accordingly.