On Petition for Rehearing
Respondent has filed a petition for a rehearing, contending for the first time that the Mareco violated the Pilot Rules for ■ Inland Waters promulgated by the Coast Guard, formerly known as Inspectors’ Rules and Pilot Rules, by failing to give a signal as she approached the Gremlin. Respondent did not refer to these Rules at the trial nor offer them in evidence, but they are published in the Code of Federal Regulations (1949 Ed.), and this court takes judicial notice of them under 44 U.S.C.A. §§ 307, 311 and note, Exec.Order No. 9930. See 33 C.F.R. 80.01, 13 F.R. 7303, 13 F.R. 519, 19 F.R. 8038.
Respondent refers to section 80.3 of said Rules, formerly Pilot Rule III, and cites State of Maryland v. Standard Oil Co., D.C.Md., 8 F.2d 514, Soper, D.J. as authority for its applicability in this case. See. 80.3 provides:
“Vessels passing each other.— The signals for passing, by the blowing of the whistle, shall be given and answered by pilots, in compliance with the rules in this part, not only when meeting ‘head and head,’ or nearly so, but at all times when the steam vessels are in sight of each other, when passing or meeting at a distance within half a mile of each other, and whether passing to the starboard or port * * *."
In the Standard Oil case, the two ships were approaching in a passing situation showing their green lights to each other, and a crossing situation did not develop until one ship cut in front of the bow of the other. The ships in that case met generally head and head, but not exactly end-on, having approached considerably to the starboard of each other. The question was whether Rule III was inconsistent with Title 33 U.S.C.A. § 203, Art. 18 of the Inland Rules, which deals with vessels “approaching each other head and head, that is, end on, or nearly so”. Judge Soper noted that Rule III provides “that vessels shall give passing signals not only when meeting end on, but also when passing or meeting in other situations” [8 F.2d 518], and held that the Rule was not inconsistent with the statute, but an additional rule promulgated in the interests of safety. He was not dealing with a true crossing situation and his statement quoted above should not be construed as holding that Rule III applies to a crossing situation, especially in view of decisions in the Second and Fourth Circuits.
In The Boston Socony, 2 Cir., 63 F.2d 246, at page 248, the court said:
“ * * * Rule 3 of the Supervising Inspectors Rules is relied upon as imposing a duty to signal; but in our opinion that rule cannot *875be construed as applying to vessels on crossing courses. * * * ”
See also The City of Tokio, 2 Cir., 77 F.2d 315, 317.
In Compania De Navegacion Cebaco, S. A. v. The Steel Flyer, 200 F.2d 643, the Fourth Circuit was faced with a crossing situation, and Judge Soper, who wrote the opinion, gave no indication that he thought Rule III applied. On the contrary, his opinion shows clearly why the Rules provide that vessels should signal when meeting head and head, but need not signal when on crossing courses. He said, referring first to vessels meeting head and head:
“ * * * in such case it is the duty of each vessel to pass on the port side of the other, and either vessel shall give as a signal of her intention one short blast of the whistle which the other vessel shall answer promptly by a similar blast of the whistle and thereupon the vessels shall pass on the port side of each other; but if the situation of the vessels indicates a starboard passing, either vessel shall give two short blasts which the other vessel shall answer and they shall pass on the starboard side of each other.
“In such case, there is provision for mutuality of understanding; but in this case the vessels were not meeting head on or nearly so, but were on crossing courses and therefore Articles 19 and 21, to which reference has been made above, were applicable. These rules make no provision for the giving and acceptance of signals since they clearly provide that the vessel which has the other on her starboard side shall keep out of the way of the other while the other shall keep her course and speed. The obligation of the Domina under the circumstances was definite and precise. * * * ” 200 F.2d at page 645. (Italics mine.)
Respondent also referred to Sections 80.1, 80.2 and 80.7, former Pilot Rules I, II, and VII, which provide:
“80.1 Danger signal. — If, when steam vessels are approaching each other, either vessel fails to understand the course or intention of the other, from any cause, the vessel so in doubt shall immediately signify the same by giving several short and rapid blasts, not less than four, of the steam whistle, the danger signal.”
“80.2 Cross signals. — Steam vessels are forbidden to use what has become technically known among pilots as ‘cross signals,’ that is, answering one whistle with two, and answering two whistles with one.”
“80.7 Vessels approaching each other at right angles or obliquely.— When two steam vessels are approaching each other at right angles or obliquely so as to involve risk of collision, other than when one steam vessel is overtaking another, the steam vessel which has the other on her own port side shall hold her course and speed; and the steam vessel which has the other on her own starboard side shall keep out of the way of the other by directing her course to starboard so as to cross the stern of the other steam vessel, or, if necessary to do so, slacken her speed or stop or reverse.
“If from any cause the conditions covered by this situation are such as to prevent immediate compliance with each other’s signals, the misunderstanding or objection shall be at once made apparent by blowing the danger signal, and both steam vessels shall be stopped and backed if necessary, until signals for passing with safety are made and understood.”
Rules II and VII were discussed in Postal S. S. Corp. v. El Isleo, 308 U.S. 378, 60 S.Ct. 332, 84 L.Ed. 335, where it was held that these Rules should be read in connection with Inland Rules, Articles 19, 20, 21, 22, 23 and 27, 33 U.S.C.A. §§ 204, 205, 206, 207, 208, 212. On remand to the Second Circuit, Postal S. S. Corp. *876v. Southern Pac. Co., 112 F.2d 297, 298, the court said:
“There can be no doubt that the Supreme Court meant to hold that án a crossing case, when the holding-on vessel gets two blasts from the giving-way vessel, which are unacceptable to her, she must neither cross the signal, nor keep her speed, but must at least stop her engines, and if necessary back, ‘until signals for passing with safety are made and understood’.”
The El Isleo was a very different case from the case at bar, and is no authority for the proposition that the Mareco should have done anything that she did not do; no signal was given by the Gremlin that she did not intend to yield the right of way, but on the contrary the Gremlin was slowing up preparing to stop.
So far as Rule I is concerned, the Mareco should have given a danger signal if it saw, or should have seen, that the Gremlin was obviously not going to respect the right-of-way of the Mareco. However, as we have seen, the Gremlin had slowed down to two miles per hour, and if Sadowski had kept his eye on her all of the time, he would have had a right to assume that she would either stop and let him pass or that she would make the slight turn necessary to pass behind the Mareco.
Counsel for respondent argues that the Mareco should have slowed down or turned to starboard or to port. This ignores the duty of the Mareco to hold her course and speed, 33 U.S.C.A. § 206, Article 21. In Wilson v. Pacific Mail S. S. Co., 276 U.S. 454, at 462, 48 S.Ct. 369, 370, 72 L.Ed. 651, the court quoted from The Delaware, 161 U.S. 459, 469, 16 S.Ct. 516, 40 L.Ed. 771, as follows:
“ ‘The cases of The Britannia, 153 U.S. 130, 14 S.Ct. 795, 38 L.Ed. 660, and The Northfield, 154 U.S. 629, 14 S.Ct. 1184, 24 L.Ed. 680, must be xegarded, however, as settling the law that the preferred steamer will xiot be held in fault for maintaining her course and speed, so long as it is possible for the other to avoid her by porting, at least, in the absence of some distinct indication that she is about to fail in her duty. If the master of the .preferred steamer were at liberty to speculate upon the possibility, or even of the probability, of the approaching steamer failing to do her duty and keep out of his way, the certainty that the former will hold his course, upon which the latter has a right to rely, and which it is the very object of the rule to insure, would give place to doubts on the part of the master of the obligated steamer as to whether he would do so or not, and produce a timidity and feebleness of action on the part of both, which would bring about more collisions than it would prevent. Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218; The Highgate, 62 L.T.R. 841; S.C. 6 Asp.Mar.Law Cases, 512.’ ”
In the case at bar, if the Mareco had turned to port when the failure of the Gremlin to yield the right-of-way was distinctly indicated, there would have been grave danger that she would run head-on into the Gremlin; if she had turned to starboard, there would have been danger of running into the Falk; if the Mareco had slowed up and the Gremlin had continued as she did, the Mareco might well have run head-on against the Gremlin’s pilot house and caused far greater damage to both ships.
Respondent also cited Petition of Val Marine Corp., D.C.S.D.N.Y., 145 F.Supp. 551, and The Salutation, 2 Cir., 79 F.2d 609. Those cases have some similarity to the instant case, but in neither of those cases was there a third vessel involved. Here there was a third vessel on the starboard side of the Mareco, to which she was required to give primary attention. Moreover, in The Salutation there was considerable question whether the tug, which had the tanker on her port side, had established a course; and *877the Court of Appeals evidently felt that if a sharp watch had been kept, it would probably have been obvious in season that the tanker was coming too close aboard to extricate herself unaided. In the present case that was not obvious until immediately before the collision, when it was too late for the Mareco to do anything effectively.
Admittedly, this is a close case, but I adhere to my previous conclusion that the failure of the Mareco to keep sn better look-out was a non-contributory fault under the authorities cited in the principal opinion. I will sign an appropriate decree, but will not charge respondent with interest before the date of this opinion.