Page 104 U. S. 188
opinion of the court to ascertain the facts. The evidence is not
properly in the record, and, by an amendment to Rule 8 promulgated
May 2, 1881, it is excluded from the transcript.
The
Adriatic, 103 U. S. 730.
Where the circuit court has passed on all the issues, we cannot
listen to complaints that it has refused to find certain facts
which it was asked to find or has found certain other facts which
the weight of the testimony did not warrant.
This disposes also of the second ground of error, as the
conclusions of law which the court was asked to declare were based
on the findings of fact proposed by the claimant, which the circuit
court refused to adopt.
The question and the only question which we can consider is
whether the facts found support the conclusions of law and the
decree, and it is raised by the fourth and fifth assignments.
The circuit court finds in its conclusions of fact and of law
that putting the brig's helm to starboard was the cause of the
collision. It also finds as a conclusion of law that the brig was
in fault for putting her wheel to starboard.
We are required, therefore, to consider whether the brig, under
the facts found, was so in fault.
From the findings, it appears that the wind was east of south;
that the schooner, just before the collision, was heading west by
south, bound from the Connecticut River to New York, and had her
port tacks on board. The brig was bound east from New York to New
Brunswick. She was steering by the wind; her general direction was
east-northeast. Both vessels were sailing under full canvas, and
both had their regulation lights set.
Immediately before the collision, the brig was sailing
close-hauled to the wind, the schooner had the wind a little free.
When the brig was discovered from the schooner, the two vessels
were approaching each other end on, or nearly end on, so as to
involve the risk of collision. A short time before the collision,
the lookout on the schooner discovered the brig dead ahead. Her
wheel was at once put to port, and she bore off. The schooner was
not discovered by the brig until the brig had been discovered by
the schooner. The lookout was the first to see the schooner from
the brig, and called out "light right
Page 104 U. S. 189
ahead." The brig's wheel was then put to starboard, and she
swung off one point. On being hailed from the schooner and told to
luff, the wheel was put to port, but before it could materially
affect the course of the brig, the two vessels came together.
The duty of the vessels in the emergency preceding the collision
is plainly prescribed by the sixteenth rule for the prevention of
collisions on water, which is as follows:
"If two sail vessels 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."
Rev.Stat., sec. 4233.
We have seen that the vessels were approaching each other end
on, or nearly end on, so as to involve risk of collision. The rule
under such circumstances required them to port their wheels, and
pass each other on the port side. The brig, in violation of the
rule, instead of porting her helm, put it to starboard. The court
found as a matter of fact that this was the direct cause of the
collision, and as a conclusion of law that she was in fault for so
doing. We think that from the finding the conclusion inevitably
follows.
The counsel for the appellant, however, insists that the
conclusion amounts to laying down this rule: that a vessel
close-hauled on the starboard tack seeing a light right ahead is in
fault if she starboards, and he argues that the rule thus stated is
too broad, and that whether a vessel is in fault for starboarding
on seeing a light right ahead depends upon what the light is --
that is to say, whether it is green or red. He insists that if the
light seen by the brig upon the schooner just before the collision
was green, that this fact made it the duty of the brig to starboard
and not to port her helm. In support of this view, he cites
Jenkins's Rule of the Road at Sea, pp. 44, 124, 125, 127, 129, 135,
208, and other authorities.
He then goes on to argue from the testimony that the light seen
by the brig was green. As we have already shown, we have nothing to
do with the testimony. We are limited strictly to the findings of
fact, so that the point presented by his contention is whether,
upon the facts found, the rule of navigation was too broadly stated
by the court. The answer
Page 104 U. S. 190
is therefore plain. The court did not find that the light seen
by the brig was a green light, and did find that the vessels were
approaching each other end on, or nearly end on, so as to involve
the risk of a collision. The situation as found by the court was
therefore precisely the one provided for in the sixteenth rule,
which it was the duty of the brig to obey by putting her helm to
port. The rule to be deduced from the conclusion of law drawn by
the court from the facts found is not a whit broader than the
sixteenth rule itself, and is really only a repetition of that
rule.
The effort of the appellant seems to be to bring the case within
the provision of the twenty-fourth sailing rule, which declares
that
"In construing and obeying these rules, due regard must be had
to all dangers of navigation and to any special circumstances which
may exist in any particular case rendering a departure from them
necessary in order to avoid immediate danger."
Rev.Stat. sec. 4233.
The findings, however, having brought the case clearly within
the sixteenth rule, if there were any additional facts which took
it out of that rule and brought it within the operation of the
twenty-fourth rule, it was incumbent on the appellant to establish
them and have them incorporated with the findings. The burden of
proof was on him to show some special circumstances which made his
case an exception to the sixteenth rule.
But there is no finding that the light seen on the schooner by
the brig just before the collision was a green light.
On the contrary, the record shows that the court, although
explicitly asked by the appellant to find that the light seen was a
green light, refused to make such finding. Nor is there any finding
from which it can be fairly inferred that both of the schooner's
lights were not seen by the brig just before the collision. The
appellant has therefore failed to show any fact which takes his
case out of the operation of the sixteenth rule, and makes the
twenty-fourth rule applicable.
The appellant next contends that the findings of the circuit
court do not show that the schooner kept a good and proper lookout.
The court found that she had a competent lookout at his post, on
deck, forward of the windlass, but the appellant
Page 104 U. S. 191
says that the fact that the lookout did not discover the lights
of the brig until just before the collision shows that he was not
vigilant in the performance of his duty.
It would seem that the finding of the court in reference to the
lookout did not leave any ground for the appellant to stand on. If
the lookout was competent and at his proper post, the presumption
of law that he did his duty is not, we think, overcome by the fact
that he did not see the lights of the brig until just before the
collision. The brig also, according to the findings, had a man
forward, properly stationed as a lookout, and he did not see the
lights of the schooner until the collision was imminent. The fact
that the lookout on each vessel failed to see the lights of the
other shows that the state of the weather or some other obstacle
prevented them from being seen at the usual distance. But the court
distinctly found that the cause of the collision was the fault of
the brig in putting her helm to starboard. That fully accounts for
the disaster. Neglect of the lookout does not appear from the
findings to have had any part in bringing it about. It would be
against all reason to hold that the owners of a vessel whose
lookout was shown to be negligent should be made liable for the
consequences of a collision, when his neglect had nothing to do in
causing it.
The Farragut,
10 Wall. 334,
The Fannie, 11
Wall. 238.
So far as the findings in regard to the lookout are concerned,
there is nothing in them to show that the decree of the circuit
court is not just.
The appellant has raised other points resting wholly or in part
upon a denial of the truth of the facts found or upon alleged facts
not found, but which he claims the evidence establishes. It is
therefore not necessary to consider them. Our duty is to decide
whether the findings actually made by the court support its
conclusions of law and the decree, and there our duty ends.
Decree affirmed.