The Ship Marcellus
66 U.S. 414 (1861)

Annotate this Case

U.S. Supreme Court

The Ship Marcellus, 66 U.S. 1 Black 414 414 (1861)

The Ship Marcellus

66 U.S. (1 Black) 414

Syllabus

1. In a case of collision between two sea-going vessels, where the only question proposed by the pleadings is one of fact, where there is much discrepancy between the witnesses as to every averment and where both the courts below have concurred in their decision, it is not to be expected that this Court will reverse the decree upon a mere doubt founded on the number or credibility of the witnesses.

2. In such a case, the appellant has all presumptions against him and the burden of proof is thrown on him to show affirmatively that an error has been committed, and if there be sufficient evidence on the record to support the decree which was made, the appellant cannot get it reversed by establishing a theory, supported by some of the witnesses, on which a different decree might have been rendered.

Hugh N. Camp, Edward W. Brunsen, and Charles Sherry, partners, doing business in New York City under the firm of Camp, Brunsen & Sherry, filed their libel in the District Court for Massachusetts against the ship Marcellus, of Boston, her tackle, apparel and furniture, alleging that they were the owners of one hundred and seventy boxes and forty hogsheads of sugar, worth ten thousand dollars, laden on board the schooner Empire, bound from Boston to Bristol, Rhode Island; that while the schooner, with the sugar on board, was sailing out of Boston harbor in the narrows between Gallup and Lovell's Islands, the ship Marcellus carelessly and negligently ran afoul of her, striking her on her larboard side nearly amidships so that she sunk and the sugars were totally destroyed and lost. The circumstances of the collision are minutely set forth in

Page 66 U. S. 415

the libel -- the condition of the schooner, the vigilance of her officers and crew, the relative position and course of the two vessels, the state of the wind, the hail from the ship to the schooner, and the reply of the schooner &c., from all which the conclusion is stated that the schooner did everything that she could or ought have done to avoid the collision and save the cargo, and that the loss was caused solely by the culpable misconduct of the ship.

The proper process being issued and the ship arrested, John A. Baxter, one of the owners, for himself and the other owners, namely, William Dillamay and Charles H. Dillamay, of Boston, Josiah Gorham, Alexander Baxter, Sylvester Baker, jr., James B. Crocker, and John Gorham, of Yarmouth, Sylvester Baxter, Asa Lathrop, Owen Bearse, Robert B. Hallet, and Thacher Hinchley, of Barnstable, came and claimed the ship, and she was delivered on the usual stipulations' being given.

The answer of the claimants admitted that a collision did take place between the two vessels at the time and place set forth in the libel, but denied, circumstantially and specifically, all the material allegations of the libel which tended to show that it was caused by the fault of the ship. The answer averred that the injury to the schooner was caused entirely by her own fault and negligence; that she was badly and unskillfully navigated; that she might easily have avoided the ship with proper care and effort, and ought to have done so; and that the ship was well and carefully navigated, but on account of the schooner's mismanagement it was impossible for the ship to go clear of her.

The witnesses were very numerous on both sides. The lists were composed of the officers, seamen, and others on board of the ship and the schooner, and of persons who saw the collision from other vessels which were in sight at the time, and in their testimony there was much conflict and contradiction.

The district court decreed that the libellants recover against the ship Marcellus, her tackle, apparel, and furniture, $9,654 57, with costs. From this decree the libellants took an appeal to the circuit court, where the cause was elaborately reviewed

Page 66 U. S. 416

and the evidence thoroughly analyzed by MR. JUSTICE CLIFFORD, who affirmed the decree of the district court, adding to it the interest which had accrued in the meantime. The libellants then took their appeal to this Court. The arguments here were very full, but consisted mainly of discussions on the matters of fact, each party contending that his own view of the case was supported by the preponderating weight of the evidence.

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