The City of New York
147 U.S. 72 (1893)

Annotate this Case

U.S. Supreme Court

The City of New York, 147 U.S. 72 (1893)

The City of New York

No. 81

Argued November 30, December 1, 1892

Decided January 3, 1893

147 U.S. 72


In construing the Act of February 16, 1575, 18 Stat. 315, c. 77, so far as it relates to admiralty suits, it is settled

(1) That the facts found by the court below are conclusive; that a bill of exceptions cannot be used to bring up the evidence for a review of the findings; that the only rulings upon which this Court is authorized to pass are such as might be presented by a bill of exceptions prepared as in an action at law, and that the findings have practically the same effect as the special verdict of a jury.

(2) That it is only the ultimate facts which the court is bound to find, and that this Court will not take notice of a refusal to find the mere incidental facts, which only amount to evidence from which the ultimate fact is to be obtained.

(3) That if the court below neglects or refuses to make a finding one way or the other as to the existence of a material fact which has been established by uncontradicted evidence, or if it finds such a fact when not supported by any evidence whatever and an exception be taken, the question may be brought up for review in that particular.

Applying these rules to the findings in the present case, held:

(1) That there was gross negligence on the part of the steamship in failing to run at moderate speed in a fog and in failing to take the proper precautions when the proximity of the sailing vessel became known.

(2) That so far as the barque was concerned, there was evidence to support the findings of the circuit court, and that these findings justify the conclusion that its change of course was made in extremis.

The probability that a steamer or a vessel sailing with a free wind will pursue the course customarily pursued in that vicinity by vessels bound from and to the same port is so strong that a deviation from that course without apparent cause will not be considered as established without a clear preponderance of testimony.

Page 147 U. S. 73

There is no such certainty of the exact position of a horn blown in a fog as will justify a steamer in speculating upon the probability of avoiding it by a change of helm without taking the additional precaution of stopping until its location is definitely ascertained.

Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is of itself sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel.

This was a libel by the owners of the British barque Helen against the American steamship City of New York for a collision, which occurred on the evening of June 28, 1879, off the New Jersey coast between Barnegat and Absecon, and resulted in the sinking of the Helen and the total loss of the vessel and cargo. The district court found both vessels to have been in fault, and decreed an apportionment of damages. 15 F. 624. Both parties appealed to the circuit court, by which the decree of the district court was reversed, the City of New York found to have been solely in fault, and a final decree entered for the libellants for $60,223.12, including costs. 35 F. 604. From this decree the owners of the steamship appealed to this Court. The following facts and conclusions of law were found by the circuit court:

"1. The British barque Helen, an iron vessel of 282 tons register, while on a voyage from Havana to New York city, loaded with sugar, was sunk by collision with the steamship City of New York, June 28, 1879, about 10:50 P.M. The captain and three of the seamen of the barque were drowned when the vessel sank."

"2. The collision took place at a point off the coast of New Jersey, six and one-quarter miles from shore, in ten fathoms of water, twelve and one-half miles from Barnegat lighthouse, and nine and one-half miles from Tucker's Beach Lighthouse."

"The City of New York was a wooden steamship, 242 feet long and 1,715 tons register, having a left-handed propeller, and was bound on a voyage from New York to Havana. Her full speed was about 12 knots an hour, and when going at full speed, her headway could not be stopped by reversing her engines within a distance of an eighth of a mile."

"3. On the night in question, the wind was blowing strong

Page 147 U. S. 74

from the southwest or the south southwest. About half an hour preceding the collision, the night became foggy -- so much so that vessels could not discover one another at a distance of one-eighth of a mile. During this time, and until within about three or four minutes before the collision, the vessels had been approaching each other, the course of the steamer being about S. by W. 1/2 W., and the course of the barque being about N.E. The steamship was going about eleven knots an hour, which was all the speed she could make against the wind. The barque was going about four knots an hour, and each vessel kept her respective course until she heard the fog signal of the other."

"4. During the half hour preceding the collision, three seamen were on the deck of the barque besides the mate, one seaman being at the wheel and two on the lookout forward, alternately blowing the fog horn, and the barque's lights were properly set and burning. During the same time, the navigation of the steamer was in charge of her second mate, her quartermaster was at the wheel, her engine was in charge of a competent engineer, she had a lookout on the forward deck, and her regulation lights were properly set and burning. The lookout on each vessel was vigilant. Each vessel observed the proper fog signals. The steamer maintained her full speed against the wind until her engines were reversed just before she struck the barque."

"5. Before either vessel discovered the other, those in charge of each heard the fog signals of the other. At about two minutes prior to the collision, those in charge of the steamer first heard the fog horn of the barque, and from the apparent direction of the sound thought she was one point off the steamer's starboard bow. Immediately upon hearing the fog horn, the mate ordered the wheel of the steamer put to starboard and hard astarboard. The order was promptly executed, and the steamer proceeded on under full speed until those in charge discovered the sails of the barque. The steamer had run under hard astarboard helm at least a minute before the barque was seen. Those in charge of the steamer then discovered that the barque's course was eastward, across the steamer's bow. The steamer then sounded successive

Page 147 U. S. 75

whistles of alarm, and those in charge saw the barque luffing to the starboard. Thereupon the mate immediately ordered the steamer's engines reversed and her wheel ported, and this order was promptly executed, but she was then close to the barque, probably not to exceed 150 feet, and her headway could not be stopped in time to avoid a collision, and the steamer struck the barque on the barque's port side, her stem striking just forward of the barque's mizzen rigging, with such force that she penetrated the barque a distance of five feet, and the barque sank almost instantly."

"The whistle of the steamer first heard by those in charge of the barque indicated to them that the vessels were quite near to each other. They thought the steamer was approaching bearing abeam on the barque's port side. Immediately after, they saw her masthead light and then her green light, whereupon the mate told the wheelsman to port the wheel, and called to those below to save themselves. The man at the wheel had hardly got the wheel over when the steamer struck the barque. During the time the steamer was running under her hard astarboard wheel, she changed her course to the eastward three or four points, and the barque, after she luffed, changed her course one or two points by the time the vessels came together."

The sixth finding relates only to the damages, and is immaterial.

"Conclusions of law:"

"(1) The steamer was guilty of fault in violating the twenty-first rule, because she did not slacken her speed when she heard the fog signals of the barque, and also because she did not go at a moderate speed when in a fog, and also because she changed her course and kept on at great speed after she heard the barque's fog horn before seeing her."

"(2) The barque's change of course was an error in extremis. "

Page 147 U. S. 76

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