A schooner was sailing E. by N., with the wind S., and a bark
was close-hauled, on the port tack. The schooner sighted the green
light of the bark about half a point on the starboard bow, about
three miles off, and starboarded a point. At two miles off, she
starboarded another point. As
a result, the light of the bark opened about two points. The
bark let her sails shake and then filled them twice. The schooner
continued to see the green light of the bark till the vessels were
within a length of each other, when the bark opened her red light.
At the moment the vessels were approaching collision, the schooner
put her helm hard a-starboard and headed northeast. At that
juncture, the bark ported, and her stem struck the starboard side
of the schooner amidships at about a right angle.
Held
that the bark was in fault and the schooner free from fault.
If the case was one of crossing courses, under article 12 of the
Rules prescribed by the Act of April 29, 1884, c. 69, 13 Stat. 58,
the schooner being free and the bark close-hauled on the port tack,
the bark did not keep her course, as required by article 18, and no
cause for a departure existed under article 19, and she neglected
precautions required by the special circumstances of the case,
within article 20.
The final porting by the bark was not excusable as being done
in extremis, because it was not produced by any fault in
the schooner.
The decree of the Circuit Court was affirmed, without
interest.
On the 12th of August, 1873, James R. Slauson and William R.
Pugh filed a libel in admiralty in the District Court of the United
States for the Northern District of Illinois against the bark
Elizabeth Jones to recover damages for the total loss of
the schooner
Willis, owned by them, and of the freight
money on her cargo, through a collision which occurred between the
two vessels shortly before two o'clock A.M. on the 11th of
November, 1872, on Lake Erie. The
Willis was on a voyage
from Chicago to Buffalo with a cargo of barley, and the
Jones was bound from Buffalo to Chicago with a cargo of
coal.
Page 112 U. S. 515
The libel alleged that the course of the
Willis was E.
by N., the wind being from the southward, and about S., and about a
six-knot breeze; that about 2 o'clock A.M. the lookout reported a
green light half a point on the starboard bow of the
Willis, and apparently two or three miles distant; that
the
Willis had the wind free, and the vessel showing the
green light, and which afterwards proved to be the
Jones,
was, to those on board of the
Willis, evidently by the
wind and close-hauled; that the helm of the
Willis was put
to starboard, and she went off a point and was steadied; that the
Jones came on, still showing her green light, when, in
order to give her a wide berth, the helm of the
Willis was
again put to starboard, and she went off another point and was
steadied; that the
Jones continued to approach, but
apparently not holding her course, keeping away, though still
showing her green light only; that the helm of the
Willis
was put to starboard, and she swung off so as to head N.E.; that
about the same time, the
Jones showed both her red and
green lights; that the
Jones immediately came into
collision with the
Willis, head on, striking her amidships
at right angles, crushing in her side, and causing her to sink in a
very short time; that had the
Jones kept her course, she
would have passed the
Willis on her starboard hand safely,
and that the
Jones not only kept away while she was
approaching the
Willis, but when she had neared the
Willis, so that there was imminent danger of colliding,
she improperly ported, instead of starboarding her helm.
On the first of October, 1873, the owners of the
Jones
filed their answer to the libel. It averred that the
Willis had the wind free, about a six-knot breeze, from
about S.; that the
Jones was sailing by the wind,
close-hauled; that the
Willis discovered the
Jones two or three miles distant; that immediately
preceding the collision the
Willis put her helm to
starboard, and the
Jones put her helm to port, but in
approaching the
Willis, the
Jones did not change
her course until a collision became imminent, and the
Willis made no change of course to avoid the
Jones except, as before stated, immediately preceding the
collision; that the lookout of the
Jones discovered what
proved to be the light of the
Willis from two to four
Page 112 U. S. 516
miles distant; that she
"was approaching the
Jones in an opposite direction
from the course of the
Jones; that, when the light of the
Willis was first seen, it was almost dead ahead, and
continued on that line as the vessels approached each other;"
"that the
Jones was kept steadily on her course until,
seeing that there was danger of a collision, her helm was ported,
but those in command of the
Willis caused her helm to be
put to starboard, which threw her across the bows of the
Jones and caused the collision, and that it resulted
entirely from the fault of the
Willis."
On the 4th of October, 1873, the owners of the
Jones
filed a cross-libel against the
Willis to recover for
damage caused to the
Jones by the collision. It contained
substantially the same averments as the answer to the libel of the
Willis, adding the fact that the
Jones struck the
Willis between her fore and main rigging.
The case was heard on pleadings and proofs by the district court
in February, 1875, and after the hearing and before a decision,
leave being granted to the owners of the
Jones to amend
their answer and their cross-libel, they filed an amended answer on
the eighth of March, 1875. It varied the allegations of the
original answer by stating that the
Willis discovered the
Jones about three miles distant, but did not see the green
light of the
Jones; that immediately preceding the
collision, the
Jones began to put her helm to port, but,
seeing that the
Willis was starboarding her helm,
immediately changed it to starboard; that the lookout of the
Jones discovered, about half a point on his port bow, and
three miles off, the red light of a vessel that proved to be the
Willis; that after the light of the
Willis was
first seen, it continued to show more on the port bow of the
Jones; that the
Jones was kept on her course
until immediately before the collision, when she began to port her
helm, but, seeing that the
Willis was starboarding her
helm, immediately changed it to starboard, but the
Willis
continued to starboard her helm, which threw her across the bows of
the
Jones, and that the starboard bow of the
Jones came in contact with the starboard side of the
Willis about amidships. On the same day, the owners of the
Jones filed an amended
Page 112 U. S. 517
cross-libel, containing substantially the same averments as the
amended answer, in variation of those in the original cross-libel.
The original libel was, by stipulation, made the answer to the
cross-libel.
In July, 1875, the district court entered a decree finding that
the
Willis was in fault, dismissing her libel, pronouncing
for the libellants in the cross-libel and awarding to them $1,500
damages. The owners of the
Willis appealed to the circuit
court. In August, 1881, that court entered a decree finding that
the
Jones was in fault, reversing the decree of the
district court, dismissing the cross-libel, pronouncing for the
libellants in the original libel, and awarding to them $32,826.75
for damages, and interest. From that decree the owners of the
Jones have appealed to this Court.
The circuit court filed the following findings of fact:
"First. That on the 11th day of November, 1872, a collision
occurred between the schooner
Willis and the bark
Elizabeth Jones on Lake Erie at about 16 miles east of
Point an Pelee. The libellant, the schooner
Willis, was
bound for Buffalo; the respondent, the bark
Jones, was
bound for Chicago. The vessels collided at a quarter before 2 in
the morning. The
Willis was sailing E. by N. The bark was
sailing a general course S.W. by W. 1/2 W., steering by the wind.
The wind was S., about a six-knot breeze at the time of the
collision. Previous to the collision, it had been S.E. picking up
to the westward. At 12 o'clock, the wind was E. At 20 minutes after
1 it was S.E. At the time of the collision it was S. The
Willis had the wind free, and the bark was close-hauled on
the port tack. Both vessels had their proper lights and watch on
deck. The vessels were between two and four miles apart when they
sighted each other's lights. The night, though it occasionally
clouded up, was favorable, and light enough to make objects easily
discernible for two or three miles. The schooner was laden with a
cargo of barley and the bark with a cargo of coal. When the vessels
collided, the starboard side of the stem of the bark struck the
schooner on the starboard side between the fore and main rigging --
struck her amidships at about
Page 112 U. S. 518
right angles on the starboard side. The schooner and her cargo
sank in less than half an hour and was a total loss. The injury
sustained by the
Jones was fixed in the decree of the
district court at $1,500."
"Second. The officers and men of the schooner
Willis
first sighted the green light of the bark
Jones about half
a point off the schooner's starboard bow at a distance of about
three miles off, and continued to see the green light of the
Jones until the vessels were within a length of each
other, when the
Jones opened her red light."
"Third. The helm of the
Willis, as soon as the light of
the
Jones appeared, was at once put to starboard, and she
went off a point and then steadied, the light of the
Jones
thereupon opening about a point and a half. When about two miles
distant, the helm of the
Willis was again put to starboard
a point, and then steadied, the light of the
Jones
thereupon opening about two points."
"Fourth. That the mate in command of the
Jones gave the
following order immediately after first sighting the light of the
Willis:"
" I went aft to the man at the wheel to see how she was headed,
and her sails were then kind of shaking. I told him to 'look out
and keep the sails full.' Then I went forward again. By the time I
got forward, the sails was lifting. Again I told him to keep the
sails full -- 'draw up and keep the sails full.' "
"Fifth. At the moment the vessels were approaching collision,
the helm of the
Willis was put hard a-starboard, and she
must have swung so as to head N.E. and thus have exposed her
starboard side. At this juncture, the
Jones ported her
helm, and the vessels collided, the stem of the
Jones
striking the
Willis amidships on the starboard side."
The circuit court also filed the following conclusions of
law:
"First. The court finds as a conclusion of law that this case
falls under the 12th article of the regulations for preventing
collisions at sea, applicable to the navigation of vessels."
"Second. That the bark
Jones being close-hauled and the
schooner
Willis being free, it became the duty of the
Willis to
Page 112 U. S. 519
keep out of the way, and she, having come into collision, must
show why she did not discharge that duty and avoid the
collision."
"Third. The court finds as a matter of law that each of the
changes heretofore recited in the findings of fact as having been
made by the
Jones was improper."
"Fourth. The court also finds as a matter of law that the
changes recited in the findings of fact as having been made by the
Willis were proper."
MR. JUSTICE BLATCHFORD delivered the opinion of the Court. He
recited the facts as above stated, and continued:
There is a bill of exceptions containing exceptions by the
claimants of the
Jones to the first, third, and fourth
conclusions of law. Our review of the decree below is limited by
statute to a determination of the questions of law which arise on
the record under the facts stated by the circuit court. The opinion
of that court, although, as required by a rule of this Court,
annexed to and transmitted with the record, is no part of it.
When this collision occurred, the regulations in force for
preventing collisions on the water were those prescribed by the Act
of April 29, 1864, 13 Stat. 58. Articles 11, 12, 18, 19, and 20 of
the "Steering and Sailing Rules" in that act have a bearing on this
case, and are as follows:
"
TWO SAILING SHIPS MEETING"
"ARTICLE 11. If two sailing ships are meeting end on, or nearly
end on, so as to involve risk of collision, the helms of both shall
be put to port, so that each may pass on the port side of the
other."
"
TWO SAILING SHIPS CROSSING"
"ARTICLE 12. When two sailing ships are crossing so as to
involve risk of collision, then, if they have the wind on different
sides, the ship with the wind on the port side shall keep out
of
Page 112 U. S. 520
the way of the ship with the wind on the starboard side, except
in the case in which the ship with the wind on the port side is
close-hauled and the other ship free, in which case the latter ship
shall keep out of the way. But if they have the wind on the same
side, or if one of them has the wind aft, the ship which is to
windward shall keep out of the way of the ship which is to
leeward."
"
CONSTRUCTION OF ARTICLES 12, 14, 15, AND 17"
"ARTICLE 18. Where, by the above rules, one of two ships is to
keep out of the way, the other shall keep her course subject to the
qualifications contained in the following article:"
"
PROVISO TO SAVE SPECIAL CASES"
"ARTICLE 19. In obeying and construing these rules, due regard
must be had to all dangers of navigation and due regard must also
be had to any special circumstances which may exist in any
particular case rendering a departure from the above rules
necessary in order to avoid immediate danger."
"
NO SHIP UNDER ANY CIRCUMSTANCES TO NEGLECT PROPER
PRECAUTIONS"
"ARTICLE 20. Nothing in these rules shall exonerate any ship, or
the owner, or master, or crew thereof from the consequences of any
neglect to carry lights, or signals, or of any neglect to keep a
proper lookout, or of the neglect of any precaution which may be
required by the ordinary practice of seamen, or by the special
circumstances of the case."
A reference to the statements of the original answer of the
Jones and of her original cross-libel shows that the case
she first attempted to make was one under article 11, of two
sailing vessels meeting end on, or nearly end on, so as to involve
risk of collision, where both are required to port. This is shown
by the averments that the
Willis
"was approaching the
Jones in an opposite direction
from the course of the
Jones; that when the light of the
Willis was first seen, it was almost dead ahead, and
continued on that line as the vessels approached
Page 112 U. S. 521
each other,"
and that the
Jones, seeing danger of a collision,
ported, but the
Willis starboarded. After the trial before
the district court, the amended answer and the amended cross-libel
set up a case where the
Jones saw, on her port bow, the
red light of the
Willis; that light continued to show more
on the port bow of the
Jones; the
Willis did not
see the green light of the
Jones; and, immediately before
the collision, the
Jones began to port her helm, but,
seeing that the
Willis was starboarding, changed her helm
to starboard. This new theory on the part of the
Jones as
to her defense indicates plainly that she was conscious that her
porting was a wrong maneuver, and that she undertook to account for
the collision by alleging that she saw the red light of the
Willis on her port bow, and that it opened more on that
bow, and that the
Willis, by starboarding after that, came
across her path. This theory is negatived by the findings of the
circuit court.
The salient facts exhibited in those findings are as
follows:
The
Willis was sailing E. by N. The
Jones was
sailing a general course S.W. by W. 1/2 W., steering by the wind.
The collision occurred at a quarter before 2 A.M. At 12 midnight,
the wind was E. At 20 minutes past 1, 25 minutes before the
collision, the wind was S.E. At that time, if the
Jones
was sailing S.W. by W. 1/2 W., her course was nine points and a
half from the wind, and she was not close-hauled. She could
certainly, though a bark, hold the wind at seven points off. At the
same time, the
Willis, if sailing E. by N., was five
points from the wind. The wind being a six-knot breeze, it is
plain, in view of the combined speed of the vessels, that they had
not yet seen each other twenty-five minutes before the collision.
The wind was hauling to the southward, and changed the four points,
to S., in those twenty-five minutes. If, because of that change of
the wind, the
Jones, to hold the wind, fell off to seven
points from the wind, she would be heading W. by S., or directly
opposite to the E. by N. course of the
Willis.
The
Willis made the green light of the
Jones
about half a point on her starboard bow, about three miles off, and
continued
Page 112 U. S. 522
to see that green light till the
Jones was within a
length off, when the
Jones opened her red light. As soon
as the
Willis saw the green light of the
Jones,
she put her own green light against it by starboarding, and went
off a point, and then steadied -- that is, she headed E.N.E. It
follows that she showed her green light to the
Jones. This
starboarding by the
Willis was when the vessels were about
three miles apart, and from fifteen to eighteen minutes before the
collision, as their combined speed was from ten to twelve miles an
hour. The
Jones must have seen that the
Willis
was falling off and trying to get out of her way. Green light to
green light was safety. When the
Willis thus headed
E.N.E., the green light of the
Jones was one point and a
half on her starboard bow. When the vessels were about two miles
apart, that is, from ten to twelve minutes, the
Willis
fell off one point more, to N.E. by E., and the green light of the
Jones got to be two points on her starboard bow. All this
time the
Willis was trying to get out of the way of the
Jones. She did so in a proper manner, by carrying her own
green light away from the green light of the
Jones, and by
taking a course which did not and could not cross the course of the
Jones. When the
Willis thus at two miles distance
from the
Jones, headed N.E. by E., the
Jones with
the wind S., would, if close-hauled at seven points from the wind,
head no further off than W. by S. At the collision, the
Willis was heading N.E. or one point more off, and the
starboard side of the stem of the
Jones struck the
starboard side of the
Willis amidships at about right
angles. To do this, the
Jones must have headed about N.W.
which was a change, by porting, of five points from her course of
W. by S., which latter course, with the wind S., would have allowed
her at seven points off, to be close-hauled, and have her sails
full.
The
Jones ran into danger by porting. She did not port
to avoid collision or immediate danger. She ported when she must
have seen all the time that the
Willis was going away from
her. This porting by the
Jones was no part of keeping her
course, and it caused the collision. It was a departure, by
Page 112 U. S. 523
the
Jones, from the course which the
Willis,
constantly seeing the green light of the
Jones, had a
right to think the
Jones would keep, especially in view of
the persistent falling off of the
Willis. It was therefore
a change of course by the
Jones. It was a change, by her,
across the course of the
Willis to the extent of five
points beyond her close-hauled course of W. by S.
Conceding it to have been the duty of the
Willis, under
article 12, to keep out of the way of the
Jones, it was
equally the duty of the latter not to baffle or prevent the efforts
of the
Willis to that end. Her departure from the
requirement of article 18 that she should keep her course cannot be
justified under article 19, because there were no special
circumstances which rendered such departure necessary in order to
avoid immediate danger. In
The Elizabeth Jenkins, L.R. 1
P.C.App. 501, it is laid down that if a ship bound to keep her
course under article 18 justifies her departure from that course
under the words of article 19, she takes upon herself the
obligation of showing both that her departure was at the time it
took place, necessary in order to avoid immediate danger, and that
the course adopted by her was reasonably calculated to avoid that
danger. Under article 20, the special circumstances of the case
required that the
Jones should be careful not to port as
and when she did. Article 20 was in force at the time of this
collision, although it is not reenacted in the Revised Statutes.
Why it was omitted is not apparent, as it had not been repealed. It
was one of the articles in the British Act of 1862, 25 & 26
Vict. c. 63, from which our act of 1864 was taken, and it still
remains an article in the regulations promulgated by the British
Order in Council of August 14, 1879, 4 P.D. 241, which states that
it has been made to appear that the government of the United States
is willing that those regulations shall apply to ships of the
United States, whether within British jurisdiction or not, after
September 1, 1880. We do not intend to intimate, however, that the
precautions it enacts are not to be enforced as parts of the
general law of navigation, though not now embodied in any
statute.
Page 112 U. S. 524
The circuit court held that each of the changes recited in the
findings of fact as having been made by the
Jones was
improper, and that the changes recited therein as having been made
by the
Willis were proper. In regard to the
Jones, it is contended for her that she was at liberty to
make such variations from her course as the wind rendered necessary
to enable her to keep her sails filled and keep on her port tack.
It must be concluded from the fourth finding of fact and the third
conclusion of law that the
Jones was maneuvered on two
occasions in such a manner as first to allow her sails to shake,
and second to allow her to fall off and fill her sails; that this
falling off was effected by putting her helm up or to port, and
that the circuit court regarded these maneuvers as changes, and as
improper ones. In view of what it is found the
Willis was
doing, it is plain that these changes were calculated to baffle the
efforts of the
Willis by starboarding, to get away from
the
Jones, and that they amounted to a following up of the
Willis by the
Jones. Although the wind had got as
far as S., the
Jones had no right to persist in falling
off toward the
Willis to an extent sufficient to produce a
collision, when the
Willis was all the while going away in
the same direction. The duty of the
Jones to keep her
course did not permit her to do so in such a way as to bring about
a collision with a vessel whose green light was constantly
receding. There is no idea appertaining to keeping a course which
justifies holding to it in such way as to bring on a peril. The
only principle inherent in it is to so act as to enable the other
vessel, on whom the duty rests, to adopt with success means of
getting out of the way.
It is apparent that notwithstanding the alleged endeavor of the
Jones to keep close-hauled, with the wind S., the
Willis, by her starboarding two points, from a course E.
by N. to a course N.E. by E., would have gone clear of the
Jones but for the porting of the
Jones, as found
in the fifth finding of fact, which carried her head around at
least five points toward the
Willis. The following diagram
illustrates the courses and bearings of the two vessels, prior to
any starboarding by the
Willis and to any porting by the
Jones:
Page 112 U. S. 525
image:a
It shows the
Willis on a course E. by N., and the
Jones on a course S.W. by W. 1/2 W., five points and a
half from S. At that time the vessels were three miles apart, or 15
to 18 minutes. When they were two miles apart, or ten to twelve
minutes, after the
Willis had twice starboarded, and to
N.E. by E., the green light of the
Jones bore two points
on the starboard bow of the
Willis. Then, with any proper
falling off of the
Jones to hold a S. wind, even to the
extent of seven points, or to W. by S., when the
Willis
was on a course N.E. by E., or two points away from the course of
the
Jones, there would have been no collision, if the
Jones had not ported five points more.
It is contended for the
Jones that the
Willis
should have ported instead of starboarding. But, as she saw the
green light of the
Jones on her starboard bow, to have
ported would have thrown her across the course of the
Jones, as shown by the following diagram:
image:b
By starboarding and going away from the green light of the
Jones, the
Willis took a course of safety, and,
in the language of the cases, "determined the risk." Article 12
applies only to cases where the vessels "are crossing so as to
involve risk of collision." Even assuming on the facts found that
these vessels were crossing so as to involve risk of collision when
they first sighted each other, the
Willis "determined the
risk" when
Page 112 U. S. 526
she had gone off two points by starboarding, and brought green
light to green light. This is the point in judgment in
The Earl
of Elgin, L.R. 4 P.C.App. 1. But it is urged for the
Jones that the porting mentioned in the fifth finding was
a porting
in extremis, and therefore excusable. The
finding is not to that effect. The changes made by the
Willis are found to have been proper and were proper. This
being so, no fault of the
Willis induced the final act of
porting by the
Jones. To be an excusable mistake
in
extremis, a pardonable maneuver, though contributing to or
inducing a collision, when the maneuver would have been faulty if
not excusable, it must be one produced by fault or mismanagement in
the other vessel.
New York & Liverpool
Steamship Co. v. Rumball, 21 How. 372,
88 U. S. 383;
The Nichols, 7
Wall. 656,
74 U. S. 666;
The Carroll, 8
Wall. 302,
75 U. S. 305;
The Dexter, 23
Wall. 69,
90 U. S. 76;
The Bywell Castle, L.R. 4 P.D. 219. The last case is a
well considered judgment by Lords Justices James, Brett, and Cotton
in the Court of Appeal, and the rule there formulated is that
"Where one ship has, by wrong maneuvers, placed another ship in
a position of extreme danger, that other ship will not be held to
blame if she has done something wrong, and has not been maneuvered
with perfect skill and presence of mind."
On the whole case we are of opinion that
The decree of the circuit court must be affirmed, but
without interest on the amount of that decree.
