A steamer held to be exclusively responsible for a collision
with a sailing vessel, the collision having occurred on a night
when the stars were plainly visible and when, though a little haze
was on the water, the night was to be called clear, there having
apparently been some want of vigilance in the lookout of the
steamer, who did not discern the sailing vessel until the steamer
was close upon her, at which time orders, which, as the result
proved, tended to bring on a collision, were given on board the
steamer.
Cross-appeal from the decree of the Circuit Court for the
District of Maryland dividing equally the damages arising from a
collision at sea between the schooner
Sarah and the
steamer
Sea Gull on the theory that each was equally in
fault.
The case was thus:
A statute of the United States -- the Act of 29th April, 1864 --
thus enacts:
"ARTICLE 16. Every steamship, in approaching another ship so as
to involve risk of collision, shall slacken her speed, or, if
necessary, stop and reverse. [
Footnote 1]"
"ARTICLE 15. If two ships, one of which is a sailing ship and
the other a steamship, are proceeding in such directions as to
involve risk of collision, the steamship shall keep out of the way
of the sailing ship."
These provisions did but embody in a statutory form what was
previously the well settled law of the sea. [
Footnote 2]
On the evening of January 21st, 1871, the steamer
Sea
Gull was sailing in the open sea from the north, between
Baltimore and Charleston, for the south, in a course south by west
half-west, and the schooner
Sarah between the same
Page 90 U. S. 166
ports, from the south for the north in a course northeast by
east. The vessels were thus approaching on converging lines. The
steamer's speed was about eight miles an hour, the schooner's
seven, and the nearest land was thirty miles distant. There was a
fresh breeze, west-southwest. Stars were visible overhead, and
though it was somewhat hazy on the water, the night was fairly to
be called a clear one.
Both vessels had proper lights brightly burning in their proper
places. The schooner had one lookout properly placed, and the
steamer had one lookout also, the steamer's lookout being on the
forecastle and, as was testified, within a few feet of the steam.
At about nine o'clock in the evening the lookout on the schooner
described and reported a light ahead. The light proved to be the
foremast headlight of a steamer, about four miles distant, and one
point on the port bow of the schooner. The red or port light of the
steamer, which was still on the schooner's port bow, soon now
became visible. The schooner, according to the positive testimony
of three witnesses on her, including the pilot and the captain, who
was at his side giving orders -- the captain giving repeated orders
to this effect, and calling the helmsman's attention to a star by
which he could steer if he could not by the compass -- continued
her course when, according to the testimony of these same
witnesses, the steamer not having previously changed her course at
all, and the vessels being close by one another, the green or
starboard light of the steamer came suddenly into view, showing, of
course, that the helm of the steamer had been starboarded. The
captain and master testified that not knowing on which side of her
the steamer would attempt to pass, and deeming it prudent and their
duty under the circumstances still to keep their course so as not
to baffle those in charge of the steamer in any effort which they
might make, even at the last moment, to pass on either side, still
kept the schooner steadily on her course, but that the steamer
continued with undiminished speed to approach. The result was a
collision in which the steamer ran so violently into the schooner
as
Page 90 U. S. 167
to cut three or four feet into her and sink her almost
immediately, those on board barely escaping with their lives.
The only oral or written evidence from witnesses on the schooner
tending to show any other proceedings than these was that of the
captain himself, who testified that when the steamer was about to
strike the schooner, and only forty or fifty yards off, he shouted
out, "Let go her gaff-topsail, and lower her peak," but that the
order was not executed, the collision having occurred immediately
after it was given and before time had elapsed to execute it.
However, three witnesses from the steamer -- the captain, the
second mate, and the helmsman -- all swore the when the collision
took place, the course of the schooner was southeast, a course
which would have been produced by the execution of the captain's
order to change the schooner's sails, and that as they saw her
sails after the schooner was struck her sails were on the port
side.
As respected what was done on board the steamer, it seemed from
the testimony of witnesses from her that the schooner was not seen
until about a quarter of an hour after the schooner had seen the
steamer; that her sails were then seen by the lookout, though they
could not be well distinguished from each other; that the captain,
whose watch it was, was in his room, asleep; that the second mate
belonged to the captain's watch, and was accustomed to be on deck
only during the captain's command, when his own position was
subordinate; and that on this occasion he had taken charge of the
captain's watch; that the second mate saw the vessel on the
starboard bow, about the same time the lookout did, and at once
gave the order "hard a-starboard," to the man at the wheel, helping
him to heave it hard a-starboard himself; that when the order to
heave hard a-starboard was given, no lights, either red or green,
were seen, and that the schooner was then supposed to be half a
mile off, if not more; that the steamer answering the wheel, her
head fell off to port, three or four points, and the second mate
then saw the schooner's red light plainly, and saw that she had
ported her helm and changed her course, about half a
Page 90 U. S. 168
point to the east, which brought her across the steamer's bow;
that the moment this was seen, the wheel was put hard a-port; that
on the same moment the bell was rung, the engine was stopped, and
the captain was in the act of ringing the bell to back the ship
when the collision took place, a collision so seriously injuring
the steamer that water came into her by the barrelful, and that it
was only by incessant working of the steam pumps that the vessel
was able to make port (which she sought at once to do) at all. How
exactly the schooner was struck, and where was a matter about which
the testimony was not harmonious.
One witness (the second mate of the steamer) testified that the
steamer struck the schooner on her port side, just forward of the
main chain, nearly at right angles, with a slight slant towards the
bow of the schooner.
Other witnesses testified that the steamer struck with a slight
slant towards the stern of the schooner.
It was more plainly proved that the steamer received her injury
on the port side of her stem.
The district court held both vessels liable.
In regard to the steamer, the court said that before the officer
in command changed its course, he should have waited to see the
lights of the schooner, and as the vessels were approaching at the
rate of fifteen miles an hour, have stopped the steamer's engine;
that starboarding was a false movement; one not corrected but made
worse by the subsequent porting.
In regard to the schooner, while the court confessed to a good
deal of difficulty, in view of the conflict of evidence, and in a
certain want of particularity in it, as to exact times when things
were stated to have been seen, in saying that the schooner too was
to blame, yet relying upon the evidence of the three persons on the
steamer that when the collision took place the course of the
schooner was southeast and her sails on the port side, and on the
further testimony of the second mate of the steamer that she struck
the schooner on her port side just forward of the main chain nearly
at right angles, with a slight slant towards the bow
Page 90 U. S. 169
of the vessel, the court thought that the course of the schooner
must have been changed before the collision. The court therefore
held both vessels equally in fault and made each equally
responsible for the damages, expressing a hope, however, that the
case might be reviewed by another tribunal.
The circuit court, on appeal, affirmed the decree of the
district court, and from the decree of affirmance the case was now
here on appeals by both vessels.
Page 90 U. S. 173
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Until within a recent period, the sailing regulations founded in
ancient usage, sometimes called sea laws, sanctioned by the
decisions of the admiralty courts, furnished the principal rules of
navigation in such emergencies, aided by the adjudications of the
prize courts, whose practice conforms in some respects to the law
of nations. Recently Congress has enacted regulations upon the
subject, and those regulations are obligatory upon our commercial
marine in all cases where they apply, but inasmuch as the Act
of
Page 90 U. S. 174
Congress does not profess to regulate the whole subject of
sailing rules it cannot be understood as superseding the prior
established usages of navigation which are not embraced in the
sailing rules contained in the Congressional enactment.
Signal lights of a prescribed character are required to be
carried by steam vessels when under way, and sailing ships under
way are required to carry similar lights, with the exception of the
white masthead lights, which they shall never carry. Such a
requirement, however, is of very little or no value unless the
lights are properly displayed and kept burning brightly, nor is it
then of any value as a precaution unless those in charge of the
other vessel use the means to see the approaching lights before it
is too late to adopt the proper measures to prevent a
collision.
Lookouts are also required by the usages of navigation, but the
object of the requirement will never be accomplished in case the
lookout fails to perform the duty which the requirement
contemplates. Nautical lookouts must be properly stationed, and
should be vigilant in the performance of their duty, and if they
are incompetent or inattentive, and the collision occurs in
consequence of their neglect, the vessel to which the lookout is
attached must be held responsible for the injury resulting to the
other vessel.
Steamers approaching a sail ship in such a direction as to
involve risk of collision are required to keep out of the way of
the sail ship, but the sail ship is required to keep her course
unless the circumstances are such as to render a departure from the
rule necessary in order to avoid immediate danger.
Vessels with sails being required to keep their course the duty
of adopting the necessary measures of precaution to keep out of the
way is devolved upon the steamer, subject only to the condition
that the sail ship shall keep her course and do no act to embarrass
the steamer in her efforts to perform her duty. Doubtless the
steamer may go to the right or left if she can keep out of the way,
but if not, and the approach is such as to involve risk of
collision, she is required
Page 90 U. S. 175
to slacken her speed or if necessary stop and reverse, and if
she fails to perform her duty as required by the rules of
navigation, she is responsible for the consequences if the sail
ship is without fault unless the steamer can show that the
collision was the result of causes which could not be foreseen or
prevented, or of inevitable accident.
In the case before us, both vessels had proper signal lights and
both had lookouts, but the better opinion is that the lookout of
the steamer was not as vigilant as he should have been in the
performance of his duty. Strong support to that view is derived
from the fact that the lights of the steamer were seen by the
lookout of the schooner when the vessels were three or four miles
apart, but those in charge of the steamer saw nothing of the
schooner until the two vessels were within a half mile of each
other, and then saw at first only the sails of the schooner and
those indistinctly.
Where the emergency is great, the order to the helmsman should
undoubtedly be prompt, but under the circumstances of this case, it
was a rash act of the second mate to direct the man at the wheel to
starboard the helm, as he did, before he had employed any available
means to ascertain the course of the schooner. He admits that he
had not seen the lights of the approaching vessel and the lookout
admits the same thing. They both say that they saw the sails, but
they admit that they could not distinguish one sail from another,
and it may be that it was the shadow of the sails and not the sails
themselves which was present to their sight at that moment.
Evidently the order was an injudicious one, which is
sufficiently shown by the testimony of the officer who gave it, as
he admits that in a short time he found it to be advisable to
countermand the order and to direct the wheelsman to put the helm
hard to port. Well founded doubt cannot be entertained that if that
order had been given in the first place the collision would never
have taken place. Probably it was too late then, as the steamer had
fallen off three or four points before the second order could be
fully executed,
Page 90 U. S. 176
and it appears that the collision occurred before the steamer
could be brought back under the second order to the course she was
pursuing antecedent to the first change made in her course.
These repugnant orders manifestly put the steamer upon a zigzag
course -- that is, first to the left and then to the right -- and
afford plenary proof that the officer in charge of the deck was in
great doubt what to do, in which event it was his plain duty to
slacken his speed or, if necessary, as it plainly was, to stop and
reverse, but he did nothing of the kind in season to render any
such precaution effectual.
Undoubtedly it was the privilege of the steamer to go to the
right or left if in so doing she could with reasonable certainty
keep out of the way, but if not, it became her imperative duty to
slacken her speed and if necessary to stop and reverse.
Corresponding conclusions were reached by the district judge,
except that he did not find that the lookout of the steamer failed
to see the lights of the approaching schooner as soon as he might
have done if he had performed his duty. Much reason exists to
conclude that the first error of the officer in charge of the deck
was occasioned by that omission of the lookout, and that the
excitement induced when he discovered that his first order was an
improper one had more or less influence in promoting the subsequent
errors. Subject to that qualification, the views expressed by the
district judge in respect to the conduct of the officer in charge
of the deck of the steamer appear to be correct.
Cases arise unquestionably in which the want of a lookout, or
his failure to perform his duty, will not be imputed to a vessel as
a culpable fault, as where it appears that the other vessel was
seen by the officer in charge of the deck in season to adopt every
needful precaution, and that the want of a lookout or his failure
to perform his duty as such did not and could not have contributed
to the disaster, but it is very doubtful, in view of the
circumstances, whether the case before the court falls within the
first condition, and it is quite clear that the evidence will not
support the conclusion that
Page 90 U. S. 177
the negligence of the lookout did not materially contribute to
the subsequent mistakes and vacillating conduct of the officer in
charge of the deck of the steamer. [
Footnote 3]
Approaching, as the two vessels were, on converging lines, it
would clearly seem that the lookout of the steamer ought to have
seen the schooner much earlier, as the evidence is full to the
point that her signal lights were burning brightly, and if he had,
it is not doubted that the collision would have been avoided, as
the officer in charge of the deck of the steamer would in all
probability have acted with more deliberation, in which event it
may well be supposed he would not have given the direction that the
course of the steamer should be changed before he had ascertained
the course of the approaching vessel.
Considering the proximity of the vessels, it may be admitted
that prompt action was required, but it is plain that it was bad
seamanship to change the course of the steamer before it had been
ascertained whether the effect of the change directed would be to
diminish or increase the danger to be apprehended from the
impending peril. They, the two vessels, were still a half a mile
apart, and time enough remained to adopt the proper precautions to
prevent a collision, nor is it any valid excuse for the error
committed to say that the officer in command of the deck was
ignorant of the course of the schooner when he gave the order to
starboard the helm, as in that event he should have waited a moment
for that information, or, if the peril was impending and the danger
too immediate to justify any delay on the occasion, then he should
have slackened his speed, or, if necessary, stopped and reversed,
as required by the sixteenth sailing rule.
Beyond all doubt, the order to starboard, under the
circumstances, was an error, and the evidence warrants the
inference that the officer who gave it came to the same conclusion
as soon as he saw the red light of the schooner, which he admits he
did see in a very short time after he gave the
Page 90 U. S. 178
erroneous order. Sufficient appears to satisfy the court that
the order to starboard was given without due reflection, and that
the attempt to correct the error by directing the wheelsman to port
the helm was not given in season to prevent the disaster, as the
steamer in the meantime had fallen off more than three points.
By the sailing rules, the steamer was bound to keep out of the
way, and the whole evidence shows that she did not comply with that
requirement, and the rule of decision in such case is that,
prima facie, the steamer is in fault; nor does the case
rest merely upon that presumption, for several reasons:
1. Because the evidence shows affirmatively that the order to
starboard given by the officer in charge of the deck was an
improper order.
2. Because the lookout of the steamer was negligent in the
performance of his duty.
3. Because the steamer did not slacken her speed nor stop and
reverse in season to accomplish the object contemplated by the
enactment containing that requirement.
II. Attempt is made in argument to show that the schooner also
was in fault, and that the case falls within the rule which
requires that the damages shall be divided.
Support to that charge is attempted to be drawn from the assumed
fact that the schooner changed her course in violation of the rule
of navigation which requires the sail ship to keep her course, as a
correlative duty to that of the steamer whenever the latter is
required to keep out of the way. Such undoubtedly is the general
rule of navigation, but it is subject to the qualification that it
does not apply in such a case when a departure from it is necessary
to avoid immediate danger. [
Footnote 4]
Two answers are made by the libellants to that defense, either
of which if found to be true is sufficient to exonerate the
schooner from the consequences of the accusation, if proved to be
well founded:
1. That the evidence invoked for the purpose does not establish
the charge.
2. That the schooner made no change in her course until the
collision
Page 90 U. S. 179
was inevitable, nor until it became indispensably necessary in
order to avoid immediate danger caused by the fault of the
steamer.
1. All must admit that the burden to establish the charge is
upon the claimants. They examined witnesses belonging to the
steamer to support the theory of the defense, but the remark is
applicable to them all that their cross-examination showed that
they had no actual knowledge upon the subject, that they inferred
that the charge was true from the fact that the two vessels
collided, and from the manner in which they came together.
On the other hand, all the persons on the deck of the schooner
were examined by the libellants, and they testify with one accord
that the schooner did not change her course as alleged by the
claimants. Two of those, to-wit the wheelsman and the master who
stood by his side, must know what did take place in that regard,
and unless they have willfully stated what they know to be false,
their statements must be correct; nor can it be denied that they
state in the most positive terms that the charge is untrue. They
were on the deck of the schooner and had the opportunity to know
everything which occurred around them, nor can they well be
mistaken in respect to the matter in question, but the witnesses on
the steamer only infer what transpired on the deck of the schooner,
and of course their statements are in the nature of opinions, and
are certainly entitled to much less credit than such as are founded
in actual knowledge of what did take place.
Mere inference from the circumstances of the collision is not
reliable, since it is fully proved that the steamer attempted in
the first place to go to the left and then ported her helm and
attempted to go to the right; nor is it correct to suppose that the
angle of the steamer when she struck the port side of the schooner
was towards the stem of the schooner, as the proof is quite
satisfactory that it was towards the stern.
Some of the witnesses state that the steamer struck the schooner
at right angles, but the better opinion is that it was
Page 90 U. S. 180
with a slight angle in the opposite direction from that found by
the district judge, if his opinion is correctly exhibited in the
record. Strong confirmation of that view is derived from the
conceded fact that it was the port side of the stem of the steamer
that was injured by the concussion. She cut three or four feet into
the schooner just forward of her main rigging, and being herself
injured on the port side of her stem, the inference is a reasonable
one that she was heading somewhat towards the stern of the
schooner.
2. Be that as it may, it still is insisted by the claimants that
the schooner changed her course and violated the sailing rule which
forbids it, but the evidence is not sufficient to establish the
charge nor to render it probable that anything of the kind
occurred, unless perhaps at the moment before the collision, when
the master, seeing that the peril was impending, took the wheel
from the helmsman and gave the order "let go her gaff-topsail sheet
and lower the peak," but the order was not obeyed, as there was no
time to execute it before the steamer struck the schooner.
Rules of navigation continue to be applicable as long as the
means and opportunity remain to avoid the danger, but they do not
apply to a vessel required to keep her course after the wrongful
approach of the opposite vessel is so near that the collision is
inevitable. Steamers under the rule that they shall keep out of the
way must of necessity determine for themselves and upon their own
responsibility, independent of the sailing vessel, whether it is
safer to go to the right or left or to slacken their speed or stop
and reverse, and in order that the steamer may not be deprived of
the means of determining the matter wisely, and that she may not be
defeated or baffled in the attempt to perform her duty in the
emergency, it is required that the sailing vessel shall keep her
course and allow the steamer to pass either on the right or left,
or to adopt such other measures of precaution as she may deem best
suited to enable her to perform her duty and fulfill the
requirement to keep out of the way.
These rules of navigation are of great importance, but
Page 90 U. S. 181
they do not apply to the vessel required to keep her course
after the wrongful approach of the steamer is so near that the
collision is inevitable, nor will an error committed by the sail
vessel under such circumstances of peril, if she is otherwise
without fault, impair the right of the sail vessel to recover for
the injuries occasioned by the collision, for the plain reason that
those who produced the peril and put the sail vessel in that
situation are chargeable with the error and must answer for the
consequences. [
Footnote 5]
Subject to that exception, the sail vessel must keep her course,
but the case before the Court, if any change was made in the course
of the schooner, falls within the exception, and it follows that
the decree of the circuit court must be reversed, with costs, and
the cause remanded with directions to enter a decree in favor of
the libellants for the whole value of the schooner, her freight,
and cargo.
Decree reversed.
[
Footnote 1]
13 Stat. at Large 61.
[
Footnote 2]
St. John v.
Paine, 10 How. 558;
The
Genesee Chief, 12 How. 460, cases decided by the
Supreme Court in 1850 and 1852;
New
York & Virginia Steamship Co. v. Calderwood, 19
How. 245, decided in 1856;
The Steamer Oregon v.
Rocca, 18 How. 570; and
Haney
v. Baltimore Steam Packet Co., 23 How. 291, decided
in 1859;
The Carroll, 8
Wall. 302.
[
Footnote 3]
The
Farragut, 10 Wall. 337;
The Dexter, supra,
90 U. S. 69.
[
Footnote 4]
13 Stat. at Large 61.
[
Footnote 5]
Steamship Co. v.
Rumball, 21 How. 383.
