The District Court found that the Eastern Glade was solely at fault ( 20 F. Supp. 373) and decrees dismissing petitioner's suit and awarding damages to respondent were affirmed by the Circuit Court of Appeals. 101 F.2d 4. In the view that there was involved an important question of maritime law which had not been, and should be, settled by this Court, certiorari was granted. The question is said to arise from rulings of the Circuit Court of Appeals with respect to the validity of Rules II and VII of the Board of Supervising Inspectors in the light of the applicable provisions of the Act of Congress. See The Fulton, 54 F.2d 467, 468. "Pilot Rules for Certain Inland Waters," etc., effective, as amended, May 1, 1912.

Even if the Barnes was wrong in blowing one blast, and even if the Keating had the right to insist on a starboard-to-starboard passage, the Keating did not have a right of way into collision. We have previously held vessels at fault for crossing signals, instead of blowing the danger signal and reversing, in "head-on situations," as here, The Quogue, 2 Cir., 47 F.2d 873; The Fulton, 2 Cir., 54 F.2d 467, and now the Supreme Court has held that "crossing situations," too, come under the same rule. Postal S.S. Corp. v. The El Isleo, 308 U.S. 378, 60 S. Ct. 332, 84 L.Ed. ___; Rule 2, Pilot Rules for Inland Waters. The Keating had no excuse for her failure to reverse and blow the danger signal. It is true that in Construction Aggregates Co. v. Long Island R. Co., supra, a majority of the court held that the Chicago was permitted to cross signals, but that case was complicated by the presence of a third vessel.

In the present state of the record there has been no medical testimony except that of Dr. Weinberg. It is possible that the testimony of libellant's new doctors may provide elements which will have a bearing on the question of laches. Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533-534 (1956); Claussen v. Mene Grande Oil Co., 275 F.2d 108, 111 (3d Cir. 1960); The Fulton, 54 F.2d 467 (2d Cir. 1931). See Hughes v. Roosevelt, 107 F.2d 901, 903 (2d Cir. 1939); McDaniel v. Gulf S. Amer. Steamship Co., 228 F.2d 189 (5th Cir. 1955); compare Conard v. Stitzel, 225 F. Supp. 244 (E.D.Pa. 1963).

There had been a controversy over the validity of that part of Pilot Rule 80.7 which provides that if conditions prevent compliance with the signals of another vessel in a crossing situation, the misunderstanding or objection shall be made apparent by the danger signal and both vessels shall be stopped and backed if necessary until understanding for a safe passage can be reached. In The Fulton, 2 Cir., 54 F.2d 467, Judge Learned Hand expressed the opinion that there was no inconsistency between the Pilot Rule and the requirement of Inland Rule 21, and he criticized the doctrine which seemed to require the holding-on vessel to continue on its course at undiminished speed in the face of certainty that collision was a likely consequence of its action. He felt bound by precedent to hold otherwise, but when the same question came before the Supreme Court in Postal S.S. Corp. v. El Isleo, the Supreme Court agreed with Judge Hand's expression of his personal opinion.

While the majority here obviates the jury trial requirement by, in effect, awarding summary judgment, the usual practice in this circuit as well as in others is to have a full hearing on the issue of laches even where the analogous statute of limitations has run. The Fulton, 2 Cir., 1931, 54 F.2d 467; see Czaplicki v. The S.S. Hoegh Silvercloud, 351 U.S. 525, 533-534, 76 S.Ct. 946, 951, 100 L.Ed. 1387, reversing a finding by this court on the issue of laches since "there was never an opportunity for Czaplicki to introduce evidence to justify the delay." McDaniel v. Gulf South American Steamship Co., 5 Cir., 1955, 228 F.2d 189; Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690.

We do not agree. As a practical proposition we know that a serious accident of the sort described in the libel would be fully investigated by the average person and no circumstance is suggested which would lead to the assumption that the usual procedure was not followed here. Judge Learned Hand in The Fulton, 2 Cir., 1931, 54 F.2d 467, 469, had this to say in a situation not unlike that before us: "There has been an extraordinary delay.

As to the negligence of the Barry K, it cannot be ignored on the ground that the accident would have occurred even had she stopped and reversed at the first hint of danger. It has not been proved beyond a reasonable doubt that the collision could not have been avoided by the exercise of such precautions, the showing necessary to bring the case within the exception to the general rule decreeing fault. The Richard J. Barnes, 2 Cir., 111 F.2d 294, 296; The Fulton, 2 Cir., 54 F.2d 467, 469; The Komiles, D.C.N.Y., 35 F. Supp. 194, 197. On the contrary the district court in its memorandum decision expressed the belief that: "Had either or both pilots stopped engines when it became apparent that a dangerous situation had arisen, it is unlikely that the vessels would have come together."

The charterer is therefore in the same position as if it had no privilege of limitation, and is liable in full if it is held that the absence of a second deckhand was a cause of the accident. Since the absence has been found, and the lack is admitted to be a statutory fault (see 46 U.S.C.A. §§ 222, 362 and 405), it is presumed that the fault is a contributory cause, and the petitioner must bear the burden of showing that it was not. The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; The Albert Dumois, 177 U.S. 240, 254, 20 S.Ct. 595, 44 L.Ed. 751; Lie v. San Francisco Portland S.S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726; The Annie Faxon, 9 Cir., 75 F. 312, 319; McGill v. Michigan S.S. Co., 9 Cir., 144 F. 788, 795, certiorari denied, 203 U.S. 593, 27 S.Ct. 782, 51 L.Ed. 332; The Suffolk, 2 Cir., 258 F. 219; The Fulton, 2 Cir., 54 F.2d 467, 469; The Annie, D.C. [E.D. Va.], 261 F. 797, 799. This burden it has not met, for it is impossible to say that the other deckhand might not have been on duty instead of Costello on the morning of the collision, had there been two deck-hands on board. On the ground that the tug was undermanned, that the charterer was privy to the undermanning, and that this fault may have been a contributing cause of the collision, the denial of limitation to the operating charterer is sustained.

The charterer is therefore in the same position as if it had no privilege of limitation, and is liable in full if it is held that the absence of a second deckhand was a cause of the accident. Since the absence has been found, and the lack is admitted to be a statutory fault, (see 46 U.S.C.A. §§ 222, 362 and 405) it is presumed that the fault is a contributory cause, and the petitioner must bear the burden of showing that it was not. The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; The Albert Dumois, 177 U.S. 240, 254, 20 S.Ct. 595, 44 L.Ed. 751; Lie v. San Francisco Portland S.S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726; The Annie Faxon, 9 Cir., 75 F. 312, 319; McGill v. Michigan S.S. Co., 9 Cir., 144 F. 788, 795, certiorari denied, 203 U.S. 593, 27 S.Ct. 782, 51 L.Ed. 332; The Suffolk, 2 Cir., 258 F. 219; The Fulton, 2 Cir., 54 F.2d 467, 469; The Annie, D.C., 261 F. 797, 799. This burden it has not met, for it is impossible to say that the other deckhand might not have been on duty instead of Costello on the morning of the collision, had there been two deckhands on board. On the ground that the tug was undermanned, that the charterer was privy to the undermanning, and that this fault may have been a contributing cause of the collision, the denial of limitation to the operating charterer is sustained.

(See the text accompanying the "First" and "Second Situation" of the "Diagrams" of the Local Inspectors). A still farther fault of the Sandmaster was to "cross" the Chicago's signal of two blasts after the Chicago had already "crossed" hers, and to keep on until the Chicago blew a second two blast signal. This we condemned after a full discussion in The Fulton, 2 Cir., 54 F.2d 467, and it was very clearly a fault here, for, as we have said, nothing pressed the Sandmaster to go to starboard; she had the whole river to her left. Being so gravely at fault and in so many respects, we are not disposed to look upon the navigation of the other vessels as strictly as we otherwise should. The judge held the Chicago at fault for being out of position, and did not expressly condemn her for twice "crossing" the Sandmaster's signal.