Opinion of the Court. 150 U. S. 349, 359; Union Pacific Railway v. Daniels, 152 U. S. 684; Chicago & Northwestern Railroad v. Swett, 45 Illinois, 197; Toledo & Peoria Railway v. Conroy, 68 Illinois, 560; Stoher v. Iron Mountain Railway Co., 91 Missouri, 509; Paulmier v. Erie Railroad, 34 N. J. Law, 151; Snow v. Housatonic Railroad Co., 8 Allen, 441; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Smith v. Harlem Railroad Co., 19 N. Y. 127; Patterson v. Connellsville Railroad Co., 76 Penn. St. 389. It is the duty of the company in employing persons to run over its road to exercise reasonable care and diligence to make and maintain it fit and safe for use, and where a defect is the result of faulty construction which the employer knew or must be charged with knowing, it is liable to the employé if the latter use due care on his part, for injuries resulting therefrom. There are cases in which, if the employé knows of the risk and the danger attendant upon it, he may be held to have taken the hazard by accepting or continuing in the employment; but this case, as left to the jury under the particular facts, is not one of them. This engineer was entitled to rely upon the company as having properly constructed the road, and to presume that it had made proper inquiry in respect of latent defects, if there were any, in the construction, for such was its duty, and he cannot be held to knowledge of the danger lurking in this narrow seam in the mountain side by whose inequalities its sinuosities were hidden. We agree with the Circuit Court of Appeals that the Circuit Court properly instructed the jury in this regard, and that no error was committed in allowing the jury to consider the evidence in the light of their own judgment and knowledge, taking into consideration all the facts bearing on the defective construction in question. Judgment affirmed. MR. JUSTICE BREWER and MR. JUSTICE PECKHAM took no part in the consideration and decision of this case. Syllabus. THE DELAWARE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Nos. 555, 570. Argued January 10, 1896. Decided March 2, 1896. Gedney Channel, being the main entrance to the harbor of New York, is as much a part of the inland waters of the United States within the meaning of the act of March 3, 1885, c. 354, 23 Stat. 438, as the harbor within the entrance. The real point aimed at by Congress in that act was to allow the original code (Rev. Stat. § 4233) to remain in force so far as it applies to pilotage waters, or waters within which it is necessary, for safe navigation, to have a local pilot. The Delaware, returning to New York in ballast only, entered Gedney Channel upon a true course of W. by S. About the same time, the Talisman, a tug towing a pilot boat, entered it from the northwest, upon a course about S.SE., and not far from a right angle to the course of the Delaware. Under these circumstances, as they were approaching each other on crossing courses, the Delaware was bound to keep out of the way, and the Talisman to keep her course. The Delaware made no effort to avoid the Talisman, but kept on its course until about a minute before collision, when its engines were stopped too late. The Talisman was struck and sunk, and became a total loss. Held, that the Delaware was grossly in fault. The Supervising Inspector's rules, so far as they require whistles to be used, ought to be construed in harmony with the International Code, and, as applied to vessels upon crossing courses, they mean that when a single blast is given by the preferred steamer she intends to comply with her legal obligation to keep her course, and throw upon the other steamer the duty of avoiding her. It is the primary duty of a steamer, having the right of way when approaching another steamer, to keep her course; all authorities agree that this rule applies so long as there is nothing to indicate that the approaching steamer will not discharge her own obligation to keep out of the way; and it is settled law in the United States that the preferred steamer will not 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. The facts stated and referred to in the opinion leave too much doubt about the fault of the Talisman to justify the court in apportioning the damages. The Delaware is not exempted from liability by the provisions of the act Statement of the Case. of February 13, 1893, c. 105, 27 Stat. 445, entitled "An act relating to navigation of vessels, bills of lading, and to certain obligations, duties and rights in connection with the carriage of property." THIS was a suit in admiralty instituted by Charles H. Winnett, the owner and master, and the crew of the tug Talisman against the steamship Delaware, to recover damages for a collision between these vessels, which occurred on September 16, 1893, about ten o'clock in the morning, in Gedney Channel, off Sandy Hook, at the outer entrance of New York harbor, and within three miles from land. In the District Court the Delaware was held solely in fault, 61 Fed. Rep. 525, and a decree was entered against her for $21,318.70. Her owner thereupon appealed to the Circuit Court of Appeals, which affirmed the decree of the District Court as to the fault of the steamship, and certified to this court certain questions as to whether she was absolved from liability by the provisions of the act of February 13, 1893, c. 105, 27 Stat. 445, entitled "An act relating to navigation of vessels, bills of lading and to certain obligations, duties and rights in connection with the carriage of property." This certificate was docketed as a separate cause. The owner of the Delaware thereupon applied for and was granted a writ of certiorari to bring up the whole record, upon the ground that the Circuit Court of Appeals erred in failing to find contributory negligence on the part of the Talisman. The first three sections, containing the material provisions of the act in question, commonly known as the Harter Act, are printed in the margin.1 1 An act relating to navigation of vessels, bills of lading, and to certain obligations, duties, and rights in connection with the carriage of property. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall not be lawful for the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of Opinion of the Court. Mr. J. Parker Kirlin for appellant. Mr. Harrington Putnam for appellees. MR. JUSTICE BROWN delivered the opinion of the court. There are two questions involved in this case: first, whether the tug Talisman was guilty of a fault contributing to the collision; and, second, whether the Delaware is exonerated from liability under the act of February 13, 1893, known as the Harter Act, by the fact that her owners had used due diligence to make her seaworthy, and provide her with competent officers and crew. 1. Gedney Channel, in which the collision took place, is a dredged passage about 1100 feet in width, running from the open ocean in a direction about W. NW. W., and constituting the main entrance to New York harbor. It is defined by such import inserted in bills of lading or shipping receipts shall be null and void and of no effect. SEC. 2. That it shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America and foreign ports, her owner, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of said vessel to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided. SEC. 3. That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent or master, be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service. 462 Opinion of the Court. red buoys, bearing even numbers, along its northerly side, at intervals of 2000 feet, and corresponding black buoys, bearing odd numbers, on the southerly side, at the same distance apart. Two iron can buoys, sometimes called fairway buoys, the northerly one red and the southerly one black, mark the outer entrance to the channel. About a mile out to sea beyond the channel entrance an automatic whistling buoy marks the prolongation of the central axis of the channel. Directly outside the entrance is located the station pilot boat, which anchors near black buoy No. 1, and sends out small boats to take off pilots who have been taking vessels to sea through the channel. Within the bar at the other end of the channel the water widens and the Swash Channel diverges from the main ship channel, as shown in the following diagram: |