A collision on the high seas between vessels of different
nationalities is
prima facie a proper subject of inquiry
in any court of admiralty which first obtains jurisdiction.
The Courts of the United States in admiralty may, in their
discretion, take jurisdiction over a collision on the high seas
between two foreign vessels.
Page 114 U. S. 356
Among the circumstances which may determine a court below in
exercising its discretion to take or refuse jurisdiction over
foreign vessels, their officers and crew in ports of the United
States are:
(1) That both vessels are subject to the laws of the same
country, and that resort may be had to its courts without
difficulty.
(2) That the disputes are between seamen and the master, and
that, in the absence of a treaty, the consul of the country does
not assent to the jurisdiction (but this assent, in the absence of
a treaty, is not necessary when the complaint is for arbitrary
dismissal or acts of cruelty).
(3) When the jurisdiction is invoked for matters which affect
only parties on the vessel, and which have to be determined by the
laws of the country to which the vessel belongs.
When a controversy in admiralty between foreign vessels in the
courts of the United States arises under the common law of nations,
the court below should take jurisdiction unless special grounds are
shown why it should not do so.
When the court below has taken jurisdiction in case of a
collision between two foreign vessels on the high seas, it is
incumbent on the party appealing to this Court, and questioning the
jurisdiction, to show that the court below exercised its discretion
to take jurisdiction on wrong principles, or acted so differently
from the view held here, that it may justly be held to have
exercised it wrongfully.
In a proceeding in admiralty against one foreign vessel for
collision with another foreign vessel on the high seas, the general
maritime law, as understood and administered in the courts of the
country in which the litigation is prosecuted, is the law governing
the case, except: (1) that persons on either ship will not be open
to blame for following the sailing regulations and rules of
navigation prescribed by their own government for their dereliction
on the high seas, and (2) that if the maritime law, as administered
by both nations to which the respective ships belong, be the same
in both, in respect to any matter of liability or obligation, such
law, if shown to the court, should be followed, although different
from the maritime law of the country of the forum.
When facts found by the court below furnish conclusive proof of
negligence, negligence may be regarded as among the conclusions of
law to be legally inferred from those facts.
This case grew out of a collision which took place on the high
seas between the Norwegian barque
Luna and the Belgian
steamship
Belgenland, by which the former was run down and
sunk. Part of the crew of the
Luna, including the master,
were rescued by the
Belgenland and brought to
Philadelphia. The master immediately libeled the steamship on
behalf of the owners of the
Luna and her cargo, and her
surviving crew, in a cause civil and maritime.
Page 114 U. S. 357
The libel stated in substance that the bark
Luna, of
359 tons, was on a voyage from Porto Rico to Queenstown or Falmouth
with a cargo of sugar, and when in latitude 44�33', and longitude
21�43', was met by the steamship
Belgenland, end on,
between 1 and 2 in the morning, and was run down and sunk by her,
only five of her crew escaping; that the light of the steamship was
observed right ahead when a mile or more off; that the bark kept
her course, as was her duty to do, and that the steamship took no
measures to avoid her, but came on at full speed until she struck
the
Luna, and that the collision was altogether the fault
of those in charge of the steamship.
The master of the
Belgenland appeared for her owners
and filed an answer denying that the
Luna, at the time of
the collision, was sailing on the course alleged, and averred that
she was crossing the bows of the steamship, and must have changed
her course, and that this was the cause of the collision, that the
Luna was not discovered until the instant of the
collision, when it was too late to alter the course of the
steamship, and that the reason why the bark was not seen before,
was that she was enveloped in a shower of rain and mist, and that
the steamship was plunging into a heavy head sea, throwing water
over her turtle deck forward.
The proctor for the
Belgenland, at the time of filing
his answer, excepted to the jurisdiction of the court and stated
for cause that the alleged collision took place between foreign
vessels on the high seas, and not within the jurisdiction of the
United States; that the
Belgenland was a Belgian vessel,
belonging to the port of Antwerp, in the Kingdom of Belgium,
running a regular line between Antwerp and the ports of New York
and Philadelphia, and that the bark
Luna was a Norwegian
vessel, and that no American citizen was interested in the bark or
her cargo.
The district court decided in favor of the libellant, and
rendered a decree for the various parties interested, to the
aggregate amount of $50,278.23. An appeal was taken to the circuit
court, which found the following facts, to-wit:
"1. Between one and two o'clock on the morning of September
3,
Page 114 U. S. 358
1879, in mid-ocean, a collision occurred between the Norwegian
bark
Luna, on her voyage from Humacao, in Porto Rico, to
Queenstown or Falmouth, and the steamship
Belgenland, on a
voyage from Antwerp to Philadelphia, which resulted in the sinking
of the bark, in the total loss of the vessel and her cargo and in
the drowning of five of her crew."
"2. The wind was between S.W. and W.S.W. and there was not much
sea, but a heavy swell. The bark was running free, heading S.E. by
E. half E., having the wind on her starboard quarter. All her
square sails were set except her main royal, and she carried also
her fore, main, and mizzen stay sails and inner jib. Her yards were
braced a little, her main sheet was down, but the weather clew was
up. She was making about seven and one half knots. Her watch on
deck consisted of the first mate and three men; an able seaman was
on the lookout on the top gallant forecastle, and a capable
helmsman was at the wheel."
"She carried a red light on her port side and a green light on
her starboard side, properly set and burning brightly, which could
be seen, on a dark night, and with a clear atmosphere at least two
miles. The character and location of these lights conformed to the
regulations of the bark's nationality, which are the same as those
of the British Board of Trade. About 1:45 o'clock the lookout
sighted the white mast head light of a steamer right ahead,
distant, as he thought, about a mile, and reported it at once to
the mate, who cautioned the man at the wheel to 'keep her steady
and be very careful,' and the bark held her course."
"No side lights on the steamer were seen from the bark, but, as
the vessels approached each other, the white light of the steamer
gradually drew a little on the port bow of the bark for three or
four minutes. The mate of the bark seeing the steamer's sails, and
that she was heading directly for the bark, was close aboard of
her, and reasonably apprehending that a collision was inevitable,
ordered the bark's helm hard a port. In a few seconds the steamer's
starboard light came into view, and in another instant she struck
the bark on her
Page 114 U. S. 359
port side, cutting her in two obliquely from the after part of
her fore rigging to the fore part of the main rigging."
"3. The
Belgenland was steering N.W. by W. half W. by
compass, and making about eleven knots. Her second officer had
charge of the deck, and his watch was composed of ten able seamen,
two quartermasters, the second boatswain, and the fourth officer.
One able seaman was stationed on the lee or starboard side of the
bridge as a lookout. The second officer was on the bridge. The
fourth officer was stationed at the after or standard compass,
which was near the mizzen mast, but at the time was on the bridge,
having come there to report a cast of the log. A quartermaster was
at the wheel. The rest of the watch were underneath the turtle back
or top gallant forecastle."
"The steamer was four hundred and sixteen feet long and about
thirty eight feet beam. The bridge was one hundred and fifty or one
hundred and eighty feet from her bow, and was six or seven feet
higher than the top of the turtle back, which was about twenty five
feet above the water."
"The steamer had her fore, main, and mizzen try sails, fore stay
sails, and jib set and drawing, and probably her jigger also. She
heeled to starboard from ten to fifteen degrees."
"4. The only lookout on the steamer was on the bridge. None was
on the turtle back, although it would have been entirely safe to
station one there, for the alleged reason that the vessel was
plunging into a head sea, and taking so much water over her bows
that he would have been of no use there."
"5. The bark was not seen by those in charge of the steamer
until just at the instant of the collision, when the second officer
saw her head sails just across the steamer's bow, and the lookout
in the lee side of the bridge saw her after sails and stern."
"6. The moon was up, but was obscured by clouds. There was no
fog, but occasional rain, with mist, and the wind was blowing from
the S.W. to W.S.W."
"7. Objects could be seen at the distance of from five hundred
yards to a mile. The mast head light of the steamer was sighted,
and at once reported by the lookout on the bark at the distance of
about a mile; the port light of the bark was
Page 114 U. S. 360
seen by a steerage passenger on the steamer, looking out of his
room just under the bridge, and reported to his roommates long
enough before the collision to enable the second steerage steward,
who heard the report, to go up the companion ladder, cross the
deck, and reach the steamer's rail; after the collision, the mizzen
mast of the bark was all of her above water, and this was
distinctly seen from the steamer when she was at the distance of
five hundred yards from it."
"8. The damages caused by the collision were assessed at
$50,248.23."
Upon these facts, the court below deduced the following
conclusions:
"1. That the vessels were approaching each other from opposite
directions, upon lines so close to each other as to involve the
necessity of a deflection by one or the other of them to avoid a
collision."
"2. That the lookout on the bark saw the steamer when she was
nearly a mile distant, and she was held steadily on her course, and
that she thereby fulfilled her legal obligation. Even if her helm
was ported, it was at a time and under circumstances which did not
involve any culpability on her part."
"3. That it was the duty of the steamer to keep out of the way
of the bark, and, to that end, so to change her course as to
preclude all danger of collision."
"4. That the bark could and ought to have been seen by the
steamer when they were sufficiently distant from each other to
enable the steamer to give the bark enough sea room to avert any
risk of collision. In this failure to observe the bark the steamer
was negligent."
"5. No satisfactory or sufficient reason is furnished by the
respondents' evidence for this failure of observation. If it
resulted from the inattention of the steamer's lookout or because
their vision was intercepted by her fore try sail, she was clearly
culpable. If it is explicable by the condition of the atmosphere,
no matter by what cause it was produced, it was the steamer's duty
to reduce her speed and to place a lookout on her turtle back. An
omission to observe these precautions was negligence. "
Page 114 U. S. 361
But considering the proof that the bark held her course, and
that the steamer might have seen her by proper vigilance, when
suitable precaution against collision might have been taken, a mere
speculative explanation of the steamer's presumptive culpability
cannot be accepted as sufficient.
A decree was thereupon entered affirming the decree of the
district court in favor of the libellants for the sum of
$50,748.23, with interest from March 25, 1881, amounting to
$51,954.14 and costs. A reargument was had on the question of
jurisdiction, and the court held and decided that the admiralty
courts of the United States have jurisdiction of collisions
occurring on the high seas between vessels owned by foreigners of
different nationalities and overruled the plea to the jurisdiction.
The case is now before us on appeal from the decree of the circuit
court.
MR. JUSTICE BRADLEY delivered the opinion of the Court. He
stated the facts in the foregoing language and continued:
The first question to be considered is that of the jurisdiction
of the district court to hear and determine the cause. It is
unnecessary here and would be out of place to examine the question
which has so often engaged the attention of the common law courts
whether and in what cases the courts of one country should take
cognizance of controversies arising in a foreign country or in
places outside of the jurisdiction of any country. It is very fully
discussed in
Mostyn v. Fabrigas, Cowp. 161, and the notes
thereto in 1 Smith's Leading Cases 765, and an instructive analysis
of the law will be found in the elaborate arguments of counsel in
the case of the San Francisco Vigilant Committee,
Molony v.
Dows, 8 Abbott Pr. 316, argued before Judge Daly in New York,
1859. We shall content ourselves with inquiring what rule is
followed by courts of
Page 114 U. S. 362
admiralty in dealing with maritime causes arising between
foreigners and others on the high seas.
This question is not a new one in these courts. Sir William
Scott had occasion to pass upon it in 1799. An American ship was
taken by the French on a voyage from Philadelphia to London, and
afterwards rescued by her crew, carried to England, and libeled for
salvage, and the court entertained jurisdiction. The crew, however,
though engaged in the American ship, were British born subjects,
and weight was given to this circumstance in the disposition of the
case. The judge, however, made the following remarks:
"But, it is asked, if they were American seamen, would this
Court hold plea of their demands? It may be time enough to answer
this question whenever the fact occurs. In the meantime, I will say
without scruple that I can see no inconvenience that would arise if
a British court of justice was to hold plea in such a case, or,
conversely, if American courts were to hold pleas of this nature
respecting the merits of British seamen on such occasions. For
salvage is a question of
jus gentium, and materially
different from the question of a mariner's contract, which is a
creature of the particular institutions of the country, to be
applied and construed and explained by its own particular rules.
There might be good reason, therefore, for this Court to decline to
interfere in such cases and to remit them to their own domestic
forum, but this is a general claim, upon the general ground of
quantum meruit, to be governed by a sound discretion,
acting on general principles, and I can see no reason why one
country should be afraid to trust to the equity of the courts of
another on such a question of such a nature so to be
determined."
The Two Friends, 1 Ch.Rob. 271, 278.
The law has became settled very much in accord with these views.
That was a case of salvage, but the same principles would seem to
apply to the case of destroying or injuring a ship as to that of
saving it. Both, when acted on the high seas between persons of
different nationalities come within the domain of the general law
of nations, or
communis juris, and are
prima
facie proper subjects of inquiry in any court of admiralty
which first obtains jurisdiction of the rescued or
Page 114 U. S. 363
offending ship at the solicitation in justice of the meritorious
or injured parties.
The same question of jurisdiction arose in another salvage case
which came before this Court in 1804.
Mason v.
The Blaireau, 2 Cranch 240. There, a French ship
was saved by a British ship and brought into a port of the United
States, and the question of jurisdiction was raised by Mr. Martin,
of Maryland, who, however, did not press the point, and referred to
the observations of Sir William Scott in
The Two Friends.
Chief Justice Marshall, speaking for the Court, disposed of the
question as follows: "A doubt has been suggested," said he,
"respecting the jurisdiction of the Court, and upon a reference
to the authorities the point does not appear to have been ever
settled. These doubts seem rather founded on the idea that, upon
principles of general policy, this Court ought not to take
cognizance of a case entirely between foreigners than from any
positive incapacity to do so. On weighing the considerations drawn
from public convenience, those in favor of the jurisdiction appear
much to overbalance those against it, and it is the opinion of this
Court that whatever doubts may exist in a case where the
jurisdiction may be objected to, there ought to be none where the
parties assent to it."
In that case, the objection had not been taken in the first
instance, as it was in the present. But we do not see how that
circumstance can affect the jurisdiction of the Court, however much
it may influence its discretion in taking jurisdiction.
For circumstances often exist which render it inexpedient for
the Court to take jurisdiction of controversies between foreigners
in cases not arising in the country of the forum, as where they are
governed by the laws of the country to which the parties belong,
and there is no difficulty in a resort to its courts, or where they
have agreed to resort to no other tribunals. The cases of foreign
seamen suing for wages or because of ill treatment are often in
this category, and the consent of their consul or minister is
frequently required before the court will proceed to entertain
jurisdiction, not on the ground that it has not jurisdiction, but
that, from motives of convenience or international comity, it will
use its discretion whether to exercise
Page 114 U. S. 364
jurisdiction or not, and where the voyage is ended, or the
seamen have been dismissed or treated with great cruelty, it will
entertain jurisdiction even against the protest of the consul. This
branch of the subject will be found discussed in the following
cases:
The Catharina, 1 Pet.Adm. 104;
The
Forsoket, 1 Pet.Adm. 197;
The St. Oloff, 2 Pet.Adm.
428;
The Golubchick, 1 Wm.Rob. 143;
The Nina,
L.R. 2 Ad. & Ec. 44;
S.C. on appeal, L.R. 2 Priv.Co.
38;
The Leon XIII, 8 Prob.Div. 121;
The Havana, 1
Sprague 402;
The Becherdass Ambaidass, 1 Lowell 569;
The Pawashick, 2 Lowell 142.
Of course if any treaty stipulations exist between the United
States and the country to which a foreign ship belongs, with regard
to the right of the consul of that country to adjudge controversies
arising between the master and crew, or other matters occurring on
the ship exclusively subject to the foreign law, such stipulations
should be fairly and faithfully observed.
The Elwine
Kreplin, 9 Blatchford 438,
reversing, S.C., 4 Ben.
413;
see S.C. on application for mandamus,
Ex Parte
Newman, 14 Wall. 152. Many public engagements of
this kind have been entered into between our government and foreign
states.
See Treaties and Conventions, Rev.Ed. 1873, Index
1238.
In the absence of such treaty stipulations, however, the case of
foreign seamen is undoubtedly a special one, when they sue for
wages under a contract which is generally strict in its character
and framed according to the laws of the country to which the ship
belongs -- framed also with a view to secure, in accordance with
those laws, the rights and interests of the shipowners as well as
those of master and crew, as well when the ship is abroad as when
she is at home. Nor is this special character of the case entirely
absent when foreign seamen sue the master of their ship for ill
treatment. On general principles of comity, admiralty courts of
other countries will not interfere between the parties in such
cases unless there is special reason for doing so, and will require
the foreign consul to be notified, and, though not absolutely bound
by, will always pay due respect to, his wishes as to taking
jurisdiction.
Not alone, however, in cases of complaints made by foreign
Page 114 U. S. 365
seamen, but in other cases also, where the subjects of a
particular nation invoke the aid of our tribunals to adjudicate
between them and their fellow subjects as to matters of contract or
tort solely affecting themselves, and determinable by their own
laws, such tribunals will exercise their discretion whether to take
cognizance of such matters or not. A salvage case of this kind came
before the United States District Court of New York in 1848. The
master and crew of a British ship found another British ship near
the English coast, apparently abandoned (though another vessel was
in sight), and took off a portion of her cargo, brought it to New
York, and libeled it for salvage. The British consul and some
owners of the cargo intervened and protested against the
jurisdiction, and Judge Betts discharged the case, delivered the
property to the owners upon security given, and left the salvors to
pursue their remedy in the English courts.
One Hundred and
Ninety-four Shawls, 1 Abbott, Adm. 317.
So in a question of ownership of a foreign vessel, agitated
between the subjects of the nation to which the vessel belonged,
the English admiralty, upon objection being made to its
jurisdiction, refused to interfere, the consul of such foreign
nation having declined to give his consent to the proceedings.
The Agincourt, 2 Prob.Div. 239. But in another case, where
there had been an adjudication of the ownership under a mortgage in
the foreign country, and the consul of that country requested the
English court to take jurisdiction of the case upon a libel filed
by the mortgagee, whom the owners had dispossessed, the court took
jurisdiction accordingly.
The Evangelistria, 2 Prob.Div.
241, note.
But, although the courts will use a discretion about assuming
jurisdiction of controversies between foreigners in cases arising
beyond the territorial jurisdiction of the country to which the
courts belong, yet where such controversies are
communis
juris -- that is, where they arise under the common law of
nations -- special grounds should appear to induce the court to
deny its aid to a foreign suitor when it has jurisdiction of the
ship or party charged. The existence of jurisdiction in all such
cases is beyond dispute; the only question will be whether it is
expedient
Page 114 U. S. 366
to exercise it.
See 2 Parsons Shipp. & Adm. 226,
and cases cited in notes. In the case of
The Jerusalem, 2
Gall. 191, decided by Mr. Justice Story, jurisdiction was exercised
in the case of a bottomry bond, although the contract was made
between subjects of the Sublime Porte, and it did not appear that
it was intended that the vessel should come to the United States.
In this case, Justice Story examined the subject very fully and
came to the conclusion that, wherever there is a maritime lien on
the ship, an admiralty court can take jurisdiction on the principle
of the civil law, that in proceedings
in rem the proper
forum is the
locus rei sitae. He added:
"With reference, therefore, to what may be deemed the public law
of Europe, a proceeding
in rem may well be maintained in
our courts where the property of a foreigner is within our
jurisdiction. Nor am I able to perceive how the exercise of such
judicial authority clashes with any principles of public
policy."
That, as we have seen, was a case of bottomry, and Justice
Story, in answer to the objection that the contract might have been
entered into in reference to the foreign law, after showing that
such law might be proven here, said:
"In respect to maritime contracts, there is still less reason to
decline the jurisdiction, for in almost all civilized countries
these are in general substantially governed by the same rules."
Justice Story's decision in this case was referred to by Dr.
Lushington with strong approbation in the case of
The
Golubchick, 1 Wm.Rob. 143, decided in 1840, and was adopted as
authority for his taking jurisdiction in that case.
In 1839, a case of collision on the high seas between two
foreign ships of different countries (the very case now under
consideration) came before the English Admiralty. The
Johann
Friederich, 1 Wm.Rob. 35. A Danish ship was sunk by a Bremen
ship, and on the latter being libeled, the respondents entered a
protest against the jurisdiction of the court. But jurisdiction was
retained by Dr. Lushington, who, among other things, remarked:
"An alien friend is entitled to sue [in our courts] on the same
footing as a British born subject, and if the foreigner in this
case had been resident here, and the cause of action had originated
infra corpus commitatus, no objection
Page 114 U. S. 367
could have been taken."
Reference being made to the observations of Lord Stowell in
cases of seamen's wages, the judge said:
"All questions of collision are questions
communis
juris, but in cases of mariners wages, whoever engages
voluntarily to serve on board a foreign ship necessarily undertakes
to be bound by the law of the country to which such ship belongs,
and the legality of his claim must be tried by such law. One of the
most important distinctions, therefore, respecting cases where both
parties are foreigners is whether the case be
communis
juris or not. . . . If these parties must wait until the
vessel that has done the injury returned to its own country, their
remedy might be altogether lost; for she might never return, and,
if she did, there is no part of the world to which they might not
be sent for their redress."
In the subsequent case of
The Griefswald, 1 Swabey 430,
decided by the same judge in 1859, which arose out of a collision
between a British bark and a Persian ship in the Dardanelles, Dr.
Lushington said:
"In cases of collision, it has been the practice of this
country, and, so far as I know, of the European states and of the
United States of America, to allow a party alleging grievance by a
collision to proceed
in rem against the ship wherever
found, and this practice, it is manifest, is most conducive to
justice, because in very many cases a remedy
in personam
would be impracticable."
The subject has frequently been before our own admiralty courts
of original jurisdiction, and there has been but one opinion
expressed, namely, that they have jurisdiction in such cases, and
that they will exercise it unless special circumstances exist to
show that justice would be better subserved by declining it. It was
exercised in two cases of collision coming before MR. JUSTICE
BLATCHFORD, while district judge of the Southern District of New
York:
The Jupiter, 1 Ben. 536, and
The Russia, 3
Ben. 471. In the former case, the law was taken very much for
granted; in the latter, it was tersely and accurately expounded,
with a reference to the principal authorities. Other cases might be
referred to, but it is unnecessary to cite them. The general
doctrine on the subject is recognized in the case of
The Maggie
Hammond, 9 Wall.
Page 114 U. S. 368
435,
76 U. S. 457,
and is accurately stated by Chief Justice Taney in his dissenting
opinion in
Taylor v.
Carryl, 20 How. 583,
61 U. S.
611.
As the assumption of jurisdiction in such cases depends so
largely on the discretion of the court of first instance, it is
necessary to inquire how far an appellate court should undertake to
review its action. We are not without authority of a very high
character on this point. In a quite recent case in England, that of
The Leon XIII, 8 P.D. 121, the subject was discussed in
the court of appeal. That was the case of a Spanish vessel libeled
for the wages of certain British seamen who had shipped on board of
her, and the Spanish consul at Liverpool protested against the
jurisdiction of the Admiralty Court on the ground that the shipping
articles were a Spanish contract, to be governed by Spanish law,
and any controversy arising thereon could only be settled before a
Spanish court or consul. Sir Robert Phillimore held that the seamen
were to be regarded for that case as Spanish subjects, and, under
the circumstances, he considered the protest a proper one, and
dismissed the suit. The Court of Appeal held that the judge below
was right in regarding the libellants as Spanish subjects, and on
the question of reviewing his exercise of discretion in refusing to
take jurisdiction of the case, Brett, M.R., said:
"It is then said that the learned judge has exercised his
discretion wrongly. What, then, is the rule as regards this point
in the Court of Appeal? The plaintiffs must show that the judge has
exercised his discretion on wrong principles, or that he has acted
so absolutely differently from the view which the court of appeal
holds, that they are justified in saying he has exercised it
wrongly. I cannot see that any wrong principle has been acted on by
the learned judge, or anything done in the exercise of his
discretion so unjust or unfair as to entitle us to overrule his
discretion."
This seems to us to be a very sound view of the subject, and,
acting on this principle, we certainly see nothing in the course
taken by the district court, in assuming jurisdiction of the
present case, which calls for animadversion. Indeed, where the
parties are not only foreigners, but belong to different nations,
and the injury or salvage service takes place on
Page 114 U. S. 369
the high seas, there seems to be no good reason why the party
injured, or doing the service, should ever be denied justice in our
courts. Neither party has any peculiar claim to be judged by the
municipal law of his own country, since the case is preeminently
one
communis juris, and can generally be more impartially
and satisfactorily adjudicated by the court of a third nation
having jurisdiction of the
res or parties, than it could
be by the courts of either of the nations to which the litigants
belong. As Judge Deady very justly said, in a case before him in
the district of Oregon:
"The parties cannot be remitted to a home forum, for, being
subjects of different governments, there is no such tribunal. The
forum which is common to them both by the jus gentium is any court
of admiralty within the reach of whose process they may both be
found."
Bernhard v. Greene, 3 Sawyer 230, 235.
As to the law which should be applied in cases between parties
or ships of different nationalities, arising on the high seas, not
within the jurisdiction of any nation, there can be no doubt that
it must be the general maritime law, as understood and administered
in the courts of the country in which the litigation is prosecuted.
This rule is laid down in many cases -- among others, the
following:
The Johann Friederich, 1 W.Rob. 35;
The
Dumfries, Swabey 63;
The Zollverein, 1 Swabey 96;
The Griefswald, 1 Swabey 430;
The Wild Ranger,
Lush. 553;
The Belle, 1 Ben. 317, 320;
The
Scotia, 14 Wall 171;
The Scotland,
105 U. S. 24,
105 U. S. 29;
The Leon, 6 P.D. 148. In the case last cited, which was
that of a British ship run down by the
Leon, a Spanish
ship, the question was specifically raised by the respondents (the
owners of the
Leon), who set up in defense that if there
was any negligence in her navigation, her master and crew, and not
her owners, were liable by the Spanish law. This defense was
overruled, and the general maritime law, as understood and
administered in England, was held to govern the case, by which law
the owners were held responsible. The same rule was followed by
this Court in
The Scotland, and was applied to the
collision of a British with an American ship on the high seas,
although, it is true, we applied to that case the rule of limited
liability established
Page 114 U. S. 370
by the act of Congress, regarding that act as declarative of the
general maritime law to be administered by our courts.
The rule requiring the application of the general maritime law
to such cases has some qualifications, which, though not affecting
the present case, should always be borne in mind. One of these
qualifications is that the persons in charge of either ship will
not be open to blame for following the sailing regulations and
rules of navigation prescribed by their own government for their
direction on the high seas, because they are bound to obey such
regulations.
The Scotia, 14
Wall. 170,
81 U. S. 184.
Another qualification is that if the maritime law, as administered
by both nations to which the respective ships belong, be the same
in both in respect to any matter of liability or obligation, such
law, if shown to the court, should be followed in that matter in
respect to which they so agree, though it differ from the maritime
law as understood in the country of the forum, for, as respects the
parties concerned, it is the maritime law which they mutually
acknowledge.
The Scotland, 105 U. S.
24,
105 U. S.
31.
The first of these qualifications can rarely be called into
requisition at the present day, since, for more than twenty years
past, all the principal maritime nations of the world (at least,
those whose vessels navigate the Atlantic Ocean) have concurred in
adopting a uniform set of rules and regulations for the government
of vessels on the high seas. These rules and regulations have
become international, and virtually a part of the maritime law.
The
Scotia, 14 Wall. 171,
81 U. S. 187.
They will be presumed to be binding up foreign as well as domestic
ships unless the contrary is made to appear.
*
We are then brought to the question of the merits of the case
between the parties as shown by the pleadings and finding
Page 114 U. S. 371
of facts. And this does not require any extended discussion. It
is shown that the bark had her proper lights burning brightly,
visible on a dark night, and with a clear atmosphere at least two
miles, and that, in character and location, they conformed to the
regulations of the bark's nationality, which are the same as those
of the British Board of Trade (or the international rules before
referred to); that the masthead light of the steamer was sighted
right ahead, distant about a mile; that the bark was kept steady on
her course until the steamer was almost upon her and apparently
about to run her down; that then the order was given to put the
helm hard a port; that in a few seconds the steamer's starboard
light came in view, and in another instant she struck the bark in
her port side, cutting her in two obliquely. In all this we see
nothing that the people in charge of the bark did which it was not
their duty to do by the international rules. It was their duty to
keep her steady on her course, and it was the duty of the steamer
to see the bark and to avoid a collision.
On the other side, it appears that the steamer, which was a
large and powerful one, 416 feet long and 38 feet beam, was coming
toward the bark, end on at about eleven knots an hour; that she had
a lookout on the lee side of her bridge (which was over 150 feet
from her bow), where the officer in charge of the deck also was,
but had no other lookout on duty. The rest of the watch, except the
man at the compass and one at the wheel, were underneath the turtle
back, or top gallant forecastle. No lookout was on the turtle back,
although it would have been entirely safe to station one there. The
omission to do so was for the alleged reason that the vessel was
plunging into a head sea, and taking so much water over her bows
that he would have been of no use there. The bark was not seen by
those in charge of the steamer until just at the instant of the
collision; yet objects could be seen at a distance of from 500
yards to a mile, and the port light of the bark was seen by a
steerage passenger on the steamer, looking out of his room just
under the bridge, and was reported to his room mates long enough
before the collision to enable the second steerage steward, who
heard the report, to go up the
Page 114 U. S. 372
companion ladder, cross the deck, and reach the steamer's
rail.
We think that these facts furnished a sufficient ground for the
conclusions at which the court arrived, as before rehearsed; the
substance of which was that the collision occurred by the
negligence of those having charge of the
Belgenland, in
not seeing the bark, and in not taking the proper precautions due
to such a night and such a sea, by reducing speed and keeping a
sufficient lookout.
It is argued that there is no express finding of negligence or
fault, as matter of fact, but only as an inference from the facts
found. But we think that the facts found furnish such conclusive
proof of negligence that it may be regarded as properly found among
the conclusions of law as a legal inference from those facts.
United States v. Pugh, 99 U. S. 265.
The counsel of the appellants suppose that the court below found
the
Belgenland in fault on the mere presumption arising
from the fact of collision, and the primary duty of the steamship
to avoid it. But this is not a just view of the decision. There was
much more in the facts of the case than the existence of such a
presumption, as the foregoing rehearsal of the facts clearly shows.
The ability to see objects at a distance; the fact that the men in
charge of the steamer failed to see the bark, while a passenger did
see her from his room; the fact that there was but one lookout for
such a large steamer; that other lookouts could have been stationed
on the turtle back; the fact that the speed was not slackened, and
no precautions taken to get a better view ahead -- these facts, in
addition to the presumption arising from the steamer's duty,
present a very different case from that supposed by the appellants.
The decision of the court must be taken as the collective result
from the whole case. It cannot be judged from mere isolated
expressions in the opinion.
The rule contended for by the appellants, that negligence and
fault must be proved, and not presumed, is undoubtedly a sound one,
and hardly needs cases to support it. But the circuit court
evidently did not rest the case on presumption, but upon proof,
from which it properly deduced negligence on
Page 114 U. S. 373
the part of the steamship. At all events, this Court, upon a
careful consideration of the facts found, is satisfied that there
was such negligence, and that it was the cause of the
catastrophe.
The decree of the circuit court is affirmed, with interest
to be added to the amount from the date of the same.
* The International Rules of 1863, Abbott on Shipping, 11th ed.,
App. CCCLXIX.; 13 Rev.Stat. 58, were revised by an order of
council, in England, in August, 1879, to take effect from the first
of September, 1880, and, as thus revised, have been adopted by most
commercial nations.
See 4 P.D. 241 249. They were adopted
for both public and private vessels of the United States by Act of
Congress approved March 3, 1885. Public Act No. 100. They had been
adopted for public vessels before.
See Luce's Seamanship
360, ed. 1884.
