In a collision, in a dense fog which flung low down over the
water, in the Atlantic Ocean off Cape May, between a steamer and a
fishing schooner, the steamer was going at half-speed, between six
and seven knots an hour, and the schooner about four knots an hour.
When so running, the steamer would forge ahead 600 to 800 feet
after reversing her engines, before beginning to go backwards. The
steamer first sighted the schooner when the latter was about 500
feet distant. The schooner first sighted the steamer when 400 to
500 feet distant. The steamer reversed her engines full speed
astern in about 12 seconds, but did not attain backward motion
before the collision. The bow of the steamer struck the port
quarter of the schooner about 10 feet from the taffrail, and sank
her. The steamer, on a north half east course, had overhauled and
sighted the schooner, on a north-northeast course, with the wind
south-southeast, about an hour before, and had passed to the
eastward of her, and heard her fog horn. Thinking she heard cries
of distress to the starboard, the steamer ported and changed her
course 13 1/2 points, to south-southeast. The schooner had on deck
one man at the wheel, and one man forward as a lookout and blowing
the fog horn, and 14 men below. The schooner kept her course. Her
fog horn was heard by the steamer before the steamer sighted
her.
Held:
(1) Under Rule 21, of ยง 4233 of the Revised Statutes, the
steamer was in fault for not going at a moderate speed in the
fog.
(2) She was, under the circumstances, bound to observe unusual
caution, and to maintain only such a rate of speed as would enable
her to come to a standstill, by reversing her engines at full
speed, before she should collide with a vessel which she should see
through the fog.
(3) The schooner was not sailing too fast, and she blew her fog
horn properly, and she was not in fault for keeping her course, her
failure to port being not a fault but, at most, an error of
judgment
in extremis due to the fault of the steamer.
(4) As the Circuit Court did not find that the absence of
another lookout on the schooner contributed to the collision, and,
so far as the
Page 137 U. S. 331
findings were concerned, the man forward on her properly
discharged his double duties, there was no lack of vigilance on the
part of the schooner in the matter of a lookout.
(5) The testimony not being before this Court, it cannot
consider exceptions to the refusals of the Circuit Court to find
certain facts.
(6) As the district and circuit courts found both vessels in
fault and gave to the schooner only one-half of her damages, this
Court reversed the decree of the circuit court and ordered a decree
for the schooner for the full amount of her damages, with interest,
and her costs in both of the courts below and in this Court.
This is a libel in admiralty filed in the District Court of the
United States for the Southern District of New York by Edward S.
Moseley and others, as owners of the fishing schooner
Lizzie
Thompson against the steamer
Nacoochee to recover
damages for the loss of the schooner and her outfit, and the
property on board of her, in consequence of her being sunk by a
collision with the steamer in March, 1883, in the Atlantic Ocean
off Cape May, in the State of New Jersey.
The libel alleges negligence on the part of the steamer and
absence of fault on the part of the schooner. The collision took
place in the daytime in a fog. The answer of the steamer alleges
that she was not in fault, and that the collision was due to
negligence on the part of those on board of the schooner in not
having the fog horn properly sounded and in not putting the helm of
the schooner hard a-port when the steamer was seen to be within
forty or fifty feet from her. After issue joined, the libel was
amended by joining as libelants the master and crew of the schooner
for the loss of their personal effects. The case was heard by Judge
Brown, and he made an interlocutory decree that the libelants
recover one-half of their damages, his opinion being reported in 22
F. 855. On the report of a commissioner, a decree was entered in
the district court May 19, 1885, in favor of the libelants for
$5,379.14, being one-half of their damages, namely $5,110.57, and
their costs, $256.65, and $11.92 interest.
Both parties appealed to the circuit court, where the case was
heard before Judge Wallace. His opinion is reported in 24
Blatchford 99 and 28 F. 462. He filed the following findings of
fact and conclusions of law, which are contained
Page 137 U. S. 332
in the report in 24 Blatchford, but not in the report in 28
F.:
"
Findings of facts:"
"1. The steamship
Nacoochee, belonging to the claimants
is a propeller of about 3,000 tons burden and about 310 feet long.
Her propeller is a right-handed propeller, and her engines are
compound and reversed by steam, and can be so reversed in 12
seconds. At full speed, her propeller makes 62 revolutions a
minute, and the speed attained is between 13 and 14 knots an hour.
When running at half speed, she would forge ahead 600 to 800 feet,
after reversing her engines, before beginning to go backwards."
"2. On the 16th of April, 1883, she was bound on her regular
voyage from Savannah, Georgia, to the City of New York. She was in
all respects in good order, well and sufficiently equipped and
manned with competent officers and men, and was blowing her fog
whistle at least once a minute. The wind was moderate and the sea
calm, but a dense fog hung low down over the water. At about half
past one or two o'clock in the afternoon of that day, as she was on
her usual course, north half east, off Cape May, about 10 miles to
the southeast of the Five Fathom lightship proper, and going at
half speed, between six and seven knots an hour, and making 30
revolutions of the propeller to the minute, she overhauled and
sighted the schooner
Lizzie Thompson and passed to the
eastward of her at a distance of about two or three hundred yards
The
Lizzie Thompson, owned by the libelants, was a fishing
schooner, returning from the fishing grounds, with a full fare of
fish and bound for New York, having on board sixteen men at the
time the
Nacoochee passed her. She was going about four
knots an hour, with all sails set, upon a course of
north-northeast, with the wind south-southeast, blowing at the rate
of 8 to 10 miles an hour. But two men were on the schooner's deck,
A. J. Small, one of them, acting as a lookout and blowing the fog
horn, and Samuel Kimball, aged twenty, at the wheel. The other
fourteen men were all below deck."
"3. At this time, when the
Nacoochee was passing the
Lizzie Thompson, the fog horn of the schooner was heard
upon the steamer and the steamer's whistle was heard by those
Page 137 U. S. 333
on the schooner. Most of the schooner's crew came on deck and
saw the steamer till she disappeared ahead in the fog, and then
went below. The steamer continued her course north half east until
those on board heard what they supposed to be cries of distress on
their starboard beam. This was about half-past two o'clock. These
cries were heard by the captain and others on board the steamer.
After some conference with respect to these cries, and several
persons agreeing as to their apparent character, the steamer's helm
was put hard to port, and she swung around until she headed a
south-southeast course, when her helm was steadied. Very soon
afterwards, the schooner
Lizzie Thompson was suddenly
sighted, looming up in the fog on the steamer's starboard bow,
about 500 feet away."
"4. The captain of the steamer immediately ordered the engines
reversed full speed astern, which orders were immediately obeyed,
and put into execution within about 12 seconds, but a collision
occurred between her and the
Lizzie Thompson, the
schooner's port quarter aft of the main chains and about ten feet
from the taffrail colliding with the bow of the
Nacoochee,
which penetrated two or three feet into the schooner, causing the
schooner to sink in a very few moments. All her crew were saved and
taken on board the steamer, which then resumed her former course N.
1/2 E., and pursued her way to New York, arriving there the next
morning."
"5. The
Lizzie Thompson had continued on her course of
north-northeast, after the steamer passed her for the first time,
without change up to the moment of collision. The fog continued and
was dense, and the same men were on deck, Samuel Kimball at the
wheel and A. J. Small on the watch and blowing the horn, and all
the others were below deck, including her captain, sitting around.
All the sails were set, and she was sailing at the rate of about
four miles an hour."
"6. Just before the collision, Lookout Small, on the schooner's
deck, saw the steamer appearing through the fog and bearing down on
them on their port side, about 400 to 500 feet off. He then
shouted, 'A steamer is coming into us,' and the men below then came
upon deck. Florence McKown, her
Page 137 U. S. 334
captain, who sat in the cabin, when he heard the watch sing out,
'A steamer is coming into us,' told the man at the wheel to keep
his course, and jumped on deck, and saw the steamer approaching on
the port quarter. No change was made in the schooner's helm, and
she continued her north-northeast course up to the very moment of
collision."
"7. After the steamer had turned to go to the supposed cries of
distress, the captain took his position in front of the pilot
house. A seaman, Andrew Johnson, was on the lookout, standing right
up forward as far as he could get; the second officer was on watch
in the pilot house, and the quartermaster was at the wheel. All of
them heard the fog horn of the schooner and immediately after saw
the schooner appearing through the fog off on the starboard bow,
about 500 feet away. The captain gave his orders to back full speed
astern, and took his position at the stem of the steamer and called
out to those board the schooner, 'Port the helm.'"
"8. That when a screw vessel like the
Nacoochee is
going through the water at the rate of six miles an hour and the
engines are reversed 'full speed astern,' porting the helm or
starboarding the helm has no effect at all on the vessel while she
is still going ahead. The
Nacoochee had not attained
backward motion when she struck the schooner."
"9. That immediately before the collision, the two vessels did
not sight each other through the fog at the same moment, but that
the
Nacoochee first sighted the
Lizzie Thompson
when the latter was about 500 feet distant, and the
Lizzie
Thompson first sighted the
Nacoochee when 400 to 500
feet distant."
"
Conclusions of law"
"1. That the steamship
Nacoochee was in fault,
contributing to this collision, for not going at moderate speed in
a fog."
"2. That the schooner was in fault, and in this respect, namely,
that she was sailing too shorthanded in the fog, and was guilty of
negligent navigation in having but one man forward charged with the
double duties of a lookout and blowing the horn, and one man
astern, who was a youth of 20 only at the wheel, all the other
fourteen men, including the captain, being below deck.
Page 137 U. S. 335
"
"3. The decree of the district court is affirmed, without costs
of this Court to either party."
The claimant of the steamer filed six exceptions to the refusal
of the court to find certain facts as prayed by the claimant, such
exceptions being based on the ground that the facts so requested to
be found were proved by the evidence, and not contradicted by any
material evidence in the case, and that therefore the refusal of
the court to find the same was an error of law, as a finding
against the evidence. The claimant also excepted to the first
conclusion of law and to certain findings of fact as being
unsupported by any evidence; also to the refusal of the court to
make four several conclusions of law, as prayed for -- (1) That the
steamer was not in fault as contributing to the collision; (2) that
the schooner was in fault, because she was sailing at the rate of
five miles an hour before the wind, with every sail set, in a dense
fog; (3) that the schooner was guilty of negligent navigation,
because, immediately before the collision, she did not port her
helm in order to avoid immediate danger when by so doing she could
have escaped the collision, and that Rule 24 required her to depart
from Rule 23 on the occasion, and that she was not justified in
keeping her course up to the moment of collision; (4) that the
libel should be dismissed with costs of the district and circuit
courts. There is a bill of exceptions, setting forth the foregoing
exceptions, but none of the testimony is embodied in the transcript
of the record.
A final decree was made by the circuit court that the libelants
recover one-half of the damages sustained by them, amounting to
$5,110.57, with interest from May 19, 1885, being $421.60, and
their costs in the district court, taxed at $256.65, amounting in
all to $5,788.82. As both parties had appealed, no costs of the
circuit court were given to either of them. From the decree of the
circuit court both parties have appealed to this Court.
Page 137 U. S. 337
BLATCHFORD, J.
It is contended for the steamer that she was not guilty of any
neglect in going at the rate of speed found. Her full rate of speed
was between thirteen and fourteen knots an hour. When she first
overhauled the schooner, her speed was between six and seven knots
an hour, and she kept up the latter speed until she reversed her
engines on suddenly sighting the schooner in the fog, about five
hundred feet away. At the time this collision took place, the rules
of navigation found in section 4233 of the Revised Statute were in
force. By Rule 15, whenever there was a fog or thick weather,
whether by day or night, a sail-vessel under way was required to
sound a fog horn at intervals of not more than five minutes. By
Rule 20,
"If two vessels, one of which is a sail-vessel and the other
a
Page 137 U. S. 338
steam-vessel, are proceeding in such directions as to involve
risk of collision, the steam-vessel shall keep out of the way of
the sail-vessel."
By Rule 21,
"Every steam-vessel, when approaching another vessel, so as to
involve risk of collision, shall slacken her speed, or, if
necessary, stop and reverse, and every steam-vessel shall, when in
a fog, go at a moderate speed."
By Rule 23,
"Where by Rules seventeen, nineteen, twenty, and twenty-two, one
of two vessels shall keep out of the way, the other shall keep her
course, subject to the qualifications of Rule twenty-four."
By Rule 24,
"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."
It is urged on the part of the steamer that in determining the
question whether her speed was a moderate one in the fog, it is to
be considered that she supposed she was on a life-saving errand,
and was hastening toward what she thought were cries of distress,
which required her to move as promptly as possible. It is found as
a fact that when running at half speed, as she was, she would forge
ahead 600 to 800 feet, after reversing her engines, before
beginning to go backwards, and that she had not attained backward
motion when she struck the schooner. This, it is contended, was a
moderate speed. It is urged that if the master of the steamer
thought that the fog was of such a character that he could see a
vessel at a distance of about 800 feet, and it turned out that the
fog was more dense than he thought it to be, he committed merely an
excusable error of judgment, and was not guilty of negligence. But
we cannot regard these views as controlling. The steamer was bound
to keep out of the way of the schooner, and the burden rests upon
her to show a sufficient reason for not doing so. She must be held
wholly responsible, unless she shows a fault on the part of the
schooner which contributed to the collision, or that it was due to
unavoidable accident. The latter is not shown, and it is shown that
the steamer was not going at a moderate speed in the fog. It is
found that the steamer first sighted the schooner when the latter
was about
Page 137 U. S. 339
500 feet distant, and that the fog was dense, and hung low down
over the water. The steamer, from her own course and that of the
schooner, when the former overhauled and passed the latter, must
have known, by the lapse of time before she heard the supposed
sounds of distress, that when she changed her course by porting 13
1/2 points to south-southeast, it was quite likely she would
encounter the schooner. She was bound, therefore, to observe
unusual caution, and to maintain only such a rate of speed as would
enable her to come to a standstill, by reversing her engines at
full speed, before she should collide with a vessel which she
should see through the fog. This is the rule laid down by this
Court in the case of
The Colorado, 91 U. S.
692,
91 U. S. 702,
citing
The Europa, 2 Eng.Law & Eq. 557, 564, and 14
Jurist, pt. 1, p. 627, and
The Batavier, 40 Eng.Law &
Eq. 19, 25, and 9 Moore P.C. 286. The rule laid down in the
last-named case is that at whatever rate a steamer was going, if
she was going at such a rate as made it dangerous to any craft
which she ought to have seen, and might have seen, she had no right
to go at that rate.
See also The
Pennsylvania, 19 Wall. 125,
86 U. S.
134.
The Rule is still maintained, and is expressed as follows, in
article 16 of section 1 of the Act of August 19, 1890, c. 802,
entitled "An act to adopt regulations for preventing collisions at
sea:"
"Art. 16. Every vessel shall, in a fog, mist, falling snow, or
heavy rain-storms, go at a moderate speed, having careful regard to
the existing circumstances and conditions."
In the present case, the steamer discovered the schooner on her
starboard bow, about 500 feet away, looming up in the fog. The
speed of the schooner was about 4 knots an hour, and that of the
steamer between 6 and 7 knots, the combined rate being over 10
knots an hour, or over 1,000 feet a minute, so that at a distance
apart of 500 feet, the vessels, at the combined speed, were not
over half a minute apart. The steamer's engines could be reversed
in 12 seconds, but although they were reversed at full speed
astern, she had not attained backward motion when she struck the
schooner. This was not the moderate speed required by the statute.
During the twelve seconds necessary to reverse the engines, the
steamer
Page 137 U. S. 340
would progress ahead 200 feet, leaving the distance between the
vessels at the time the steamer commenced to back only 300
feet.
Both of the courts below found the schooner to be in fault. The
fault found by the circuit court was that the schooner was sailing
too short-handed in the fog, and was guilty of negligent navigation
in having but one man forward, charged with the double duties of a
lookout and blowing the fog horn, and one person astern, a youth of
only twenty at the wheel, while all the other fourteen men,
including the master, were below deck. In addition, it is contended
here for the steamer that the schooner was sailing too fast in the
fog, and that she kept her course instead of porting when she
sighted the steamer. It is alleged in the answer of the steamer
that the schooner was in fault in not putting her helm hard a-port
when the steamer was seen to be within forty or fifty feet from
her; but it is not averred in the answer that the schooner was
sailing too fast in the fog. It is, however, alleged in the answer
that the schooner was in fault in not having her fog horn properly
sounded, but this latter defense cannot be maintained, because it
is found by the circuit court that the officers of the steamer all
of them heard the fog horn of the schooner before they saw her.
It is contended that the schooner could have avoided the
collision by porting her helm when she saw the steamer. But it was
the primary duty of the schooner, under Rule 23, to keep her
course, and when her master was notified of the approach of the
steamer, he told the man at the wheel of the schooner to keep his
course, and no change was made in her helm up to the very moment of
collision. Even if it was an error of judgment in the schooner to
hold her course, it was not a fault, being an act resolved upon
in extremis, a compliance with the statute, and a maneuver
produced by the fault of the steamer.
New York
& Liverpool Steamship Co. v. Rumball, 21 How.
372,
62 U. S. 383;
The Nichols, 7
Wall. 656,
74 U. S. 666;
The Carroll, 8
Wall. 302,
75 U. S. 305;
The Elizabeth Jones, 112 U. S. 514,
112 U. S. 526;
The Bywell Castle, 4 Prob.Div. 219.
Page 137 U. S. 341
In regard to the alleged fault of the schooner in sailing too
short-handed in the fog and having only two men on deck, one of
them forward, charged with the double duties of a lookout and
blowing the horn and one astern at the wheel, it is not found by
the circuit court as a fact that the absence of another lookout
contributed to the collision, nor are any facts found which can
justify that conclusion either as fact or law. So far as the
findings are concerned, the man forward properly discharged his
double duties. He blew the fog horn, and it was heard on board the
steamer, and it is not found that he did not blow it properly or in
accordance with the statute. Nor is it found that he could have
performed the duties of a lookout better than he did, or that any
different manner of performing those duties, either by him or an
additional lookout, could or would have made any difference in the
result, or that the steamer would or could have been seen by the
schooner any sooner than she was seen. The finding is that the
steamer first sighted the schooner when the latter was about 500
feet distant, and the schooner first sighted the steamer when 400
to 500 feet distant. The schooner being low in the water and the
fog hanging low down over the water, it was, of course, denser on
the deck of the schooner than it was on the higher deck of the
steamer, and those on the steamer naturally would see the masts and
sails of the schooner up in the lighter fog before the vision of
the lookout on the schooner would penetrate the denser fog which
enveloped him. Under all these circumstances and in view of the
actual findings, it cannot be held that there was any lack of
vigilance on the part of the schooner in the matter of a lookout.
The Farragut,
10 Wall. 334;
The Fannie, 11
Wall. 238,
78 U. S. 243;
The Annie Lindsley, 104 U. S. 185,
104 U. S.
191.
Nor is there anything in the suggestion that the schooner was
sailing too fast. It is not so averred in the answer or found by
the circuit court.
The exceptions to the refusals of the circuit court to find
certain facts cannot be considered, because the testimony is not
before us.
The Francis Wright, 105 U.
S. 381. The exceptions
Page 137 U. S. 342
to the refusal to find certain conclusions of law are considered
sufficiently in what has been said already.
The decree of the circuit court is reversed, and the case is
remanded, with a direction to enter a decree for the libelants for
the full amount of their damages, with interest from the date of
the report of the commissioner in the district court, and for their
costs in the district court and in the circuit court and in this
Court on both appeals.