A collision occurred between a ship and a steam tug while the
navigation rules established by the Act of March 3, 1885, c. 354,
23 Stat. 438, were in force. The tug was required to keep out of
the way of the ship and the ship to keep her course. The tug ported
her helm to avoid the ship, and that would have been effectual if
the ship had not afterwards changed her course by starboarding her
helm. If the ship had kept her course or ported her helm, the
collision would have been avoided. The change, of course, by the
ship was not necessary or excusable. The tug did everything to
avoid the collision and lessen the damage. The tug had a competent
mate who faithfully performed his duties although he had no
license. Although the tug had no such lookout as was required by
law, that fact did not contribute to the collision. The tug did not
slacken her speed before the collision. There was no risk of
collision until the ship starboarded, and then the peril was so
great and the vessels were such a short distance apart that the tug
may well be considered as having been
in extremis before
the time when it became her duty to stop and reverse, so that any
error of judgment in not sooner stopping and reversing was not a
fault.
Page 144 U. S. 372
The case of
The Manitoba, 122 U. S.
97, distinguished.
The tug was not in fault and the ship was wholly in fault.
The appeal being from the Supreme Court of the Territory of
Washington, and that territory having become a state, the case was
remanded to the Circuit Court of the United States for the District
of Washington, Act of February 22, 1889, c. 180, 25 Stat. 676, 682,
683, §§ 22, 23, for further proceedings according to law.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
On the 11th of June, 1885, about 2 o'clock in the morning, the
steam tug
Tacoma was towing the bark
Colusa, of
about 1,200 tons burden, laden with lumber and bound on a voyage to
San Francisco, Cal., from Port Townsend, in the Territory of
Washington, to Cape Flattery, the bark being towed by a hawser
about 150 fathoms long, and the stern of the tug being about 750
feet ahead of the stem of the bark. When the tug and the bark were
about four miles to the north of Ediz-Hook Light, in the Straits of
Fuca, in the Territory of Washington, they were steering
west-southwest half west, and moving along a path west half south
at the rate of about two miles an hour by the land. The ship
Blue Jacket, of San Francisco, was on her way from that
city to Seattle, in the Territory of Washington, and when she was
about two miles from the tug, and showed her red light about
three-tenths of a point on the port bow of the tug, she was sighted
by the lookout on the tug. The weather was cloudy, but the air was
clear, with a fresh breeze blowing from the west-southwest, and the
tide was flood, running up the Straits of Fuca at the rate of three
miles an hour, from west-southwest or west-southwest half west. The
ship's mean course was east-northeast, but her course was really
along a swinging path, deviating alternately to starboard and port
about one-half of a point each way from her mean course
Page 144 U. S. 373
and crossing the same about every one-half mile at intervals of
about every four minutes. She was running with a fair wind and
tide, and going ahead at the rate of about eight miles an hour by
the land.
The lookout on the ship first sighted the tug about half an hour
before the collision hereinafter mentioned, about half a point on
the starboard bow of the ship, and five miles away, showing two
white masthead lights to the ship at that time and at all times up
to the collision, and the red lights of the tug and the bark being
seen by those on board of the ship from 10 to 12 minutes before the
collision. When the tug was so sighted, she was reported at once to
the master and mate of the ship. Two and one-half minutes before
the collision, the tug being about one-third of a mile from the
ship and half a point off her port bow, the ship bearing about one
and three-eighths points off the port bow of the tug and showing
both her lights to the bark and her red light to the tug, and the
bark bearing dead ahead from the ship, the tug, for the purpose of
avoiding the ship, put her helm hard a-port and swung to starboard,
but the ship immediately thereafter, instead of keeping her course
or putting her helm to port, put her helm hard a-starboard, and
kept it in that position until the collision occurred. Neither the
tug nor the bark at any time up to the collision showed to the ship
any side or colored lights except their red lights. By putting her
helm hard a-starboard, the ship slewed rapidly around to her port
until her course was changed to about north-northeast, and while
the tug was still swinging to her starboard under a port helm, the
two vessels came into collision, the ship striking the tug bow on,
on the port side of the tug just abaft of midships and damaging the
tug seriously.
On the 3d of September, 1885, the Tacoma Mill Company, owner of
the tug, filed a libel
in rem against the ship in the
District Court of the third Judicial District of Washington
Territory, claiming to recover from the ship $12,000 as damages.
Process was issued, and the ship was duly seized and due notice
given. On the 4th of September, 1885, the master of the ship put in
a claim to her, for D. O. Mills, as her owner.
Page 144 U. S. 374
On the 29th of October, 1885, D. O. Mills, as such owner, filed
a cross-libel
in rem in the same court against the tug to
recover $900 damages. On the 29th of October, 1885, the master of
the ship, on behalf of her owner, put in an answer to the libel of
the Tacoma Mill Company.
On the second of April, 1886, the Tacoma Mill Company filed an
amended libel against the ship, and on the same day the same
company filed an answer to the cross-libel of D. O. Mills. The
amended libel sets forth the particulars of the occurrences which
preceded and attended the collision and alleges that there was no
negligence on the part of the tug, but that shortly after her helm
was put hard a-port, the ship, instead of keeping her course as it
was her duty to do, and which would have avoided the collision,
negligently put her helm hard a-starboard; that by that time, the
tug and the ship were so close together, and the course of the
ship, then running free, was thereby so changed, that the tug could
not keep out of her way; that the ship had not a proper lookout or
watch; that no special circumstances existed which rendered
necessary a departure from the steering and sailing rules
prescribed by act of Congress; that the ship did not have her side
lights properly set, but they were so placed that they did not
throw a uniform or unbroken light from right ahead to two points
abaft the beam, or at all, and she did not, on the approach of the
tug, show a lighted torch, as she should have done, on the point or
quarter of the ship which the tug was approaching, and that if
those in charge of her, when they put her helm hard a-starboard,
had hauled her spanker boom midships and braced her after-yards in
on the port side, all of which they negligently failed to do
although they had abundant time so to do, the collision would have
been avoided. The answer to the cross libel makes the same
allegations.
The cross-libel against the tug alleges that the latter, when
about 1,000 or 1,500 feet away from the ship and about two points
off her starboard bow, hard a-ported her helm and unskillfully
threw herself across the bows of the ship and rendered a collision
imminent; that the tug had no colored lights set, and it was not
discovered by those in charge of the navigation
Page 144 U. S. 375
of the ship that the tug had changed her course until she was
within about 275 or 300 feet of the ship and steering directly
across her bows; that it was then apparent to those in charge of
the navigation of the ship that if she kept her course or ported
her helm, she would collide with either the tug or the bark, and
perhaps both, and they thinking and believing that those in charge
of the navigation of the tug would stop and reverse her engine,
which they should have done, and which would have avoided the
collision, the helm of the ship was immediately put hard
a-starboard for the purpose of rendering the blow and the damages
as light as possible in case the vessels collided, and because it
was believed that by so doing the ship would clear the tug; that
that was all it was possible for the ship to do toward avoiding the
collision, which occurred within two or three minutes after it
appeared to the ship that the tug had changed her course; that the
tug should have kept her course and passed to the starboard of the
ship, which would have avoided the collision; that the tug should
have exercised precautionary measures to prevent the collision from
the time she sighted the ship, which she did not do; that the tug
placed the ship in such a position that it was impossible for the
ship to do anything that would avoid a collision; that the tug,
when she saw that the collision was probable, should have stopped
and reversed her engine, which she did not do, and which would have
avoided the collision; that the tug should have had her green and
red lights set, which she did not have, and which would have
enabled the ship to observe her change of course; that the tug
should have indicated her course by signals on her steam whistle,
which she did not do; that at the time of the collision and for
some time prior thereto, the person acting in the capacity of first
officer of the tug had charge of her navigation, and was acting
also as wheelsman and lookout, and had no officer's license, and
was so acting in violation of law, and was wholly incompetent, and
not a suitable person to occupy such a position, and that the tug
did not have, before or at the time of the collision, a wheelsman
or proper lookout to guard against the danger of a collision.
Page 144 U. S. 376
It also alleges that the collision was due to the negligence of
the tug, and that there was no fault on the part of the ship. The
answer to the libel contains substantially the same allegations as
the cross-libel.
The record properly omits the proofs, but shows that on the 7th
of March, 1887, the cause having been heard on the pleadings and
proofs, the district court filed its findings of fact and
conclusions of law. The findings of fact were 29 in number, and
were verbatim the same as the first 29 findings hereinafter set
forth, made by the supreme court of the territory on appeal. The
first, second, and fourth conclusions of law made by the district
court were in terms identical with the first, second, and fourth
conclusions of law of the supreme court of the territory,
hereinafter set forth. The third conclusion of law made by the
district court was that the Tacoma Mill Company was entitled to
recover from the claimants of the ship $11,043.75 and costs, and
was entitled to a decree that the stipulators for the claimant of
the ship pay that sum into court within ten days, with the costs,
and that in case they failed so to do, the company was entitled to
a summary judgment against them and each of them for said amount
and costs, and an order for execution.
Prior to the filing of the findings of fact and conclusions of
law by the district court, proposed findings appear to have been
presented to that court by the Tacoma Mill Company on behalf of the
tug, and brought to the attention of the counsel for the ship,
because on the 28th of February, 1887, a petition for a rehearing
was filed in the district court on behalf of the ship, and on the
4th of March, 1887, exceptions were filed by the ship to the whole
or parts of findings of fact Nos. 3, 5, 6, 9, 10, 11, 12, 14, 16,
17, 20, 21, 22, 23, 24, 25, 26, and 27, and to all of the
conclusions of law.
On the 8th of March, 1887, a decree was entered by the district
court, with the title of the libel and the cross-libel, dismissing
the cross-libel at the cost of the cross-libellant, and decreeing
that the Tacoma Mill Company recover from the claimant of the ship
$11,043.75 and costs, and that the stipulators for the claimant of
the ship pay that sum and the costs
Page 144 U. S. 377
into court within twenty days, and that in case they failed to
do so a summary judgment should be entered against them, and each
of them, on their stipulation, for the amount thereof, and
execution should issue therefor to satisfy the decree. On the same
day, the claimant of the ship and cross-libellant appealed in open
court from the decree to the supreme court of the territory.
The case was heard in the supreme court of the territory, and on
the 25th of July, 1888, it announced that the decision of the
district court was affirmed in full. A petition for a rehearing was
then filed on behalf of the ship, and was heard and denied. The
opinion of the supreme court in the case is reported in 3
Washington Terr. 581, and was delivered by Justice Langford, and
concurred in by his two associates. It says:
"In this case, the appeal is from both the findings of fact and
the conclusions of law thereon. There is no contention but that the
conclusions of law of the district court were correct if the
findings of fact were correct, but the sole contention is that the
district court erred as to its findings of fact, and hence that
conclusions of law predicated on such erroneous findings of fact
were wrong, but only because the findings of fact were wrong. As
this court refinds the facts as the district court found them (with
the additional findings requested by the proctor for the appellants
hereunto attached and adopted by this Court), all contention ceases
except as to the error of fact. The only opinion, therefore, that
could be written in this case that would be germane to the question
raised would be an opinion which would give reasons as to why the
findings of fact are correct deductions from the evidence. Such
could not be useful or necessary, and hence no attempt will be made
to give reasons for the findings of fact. But these findings of
fact and conclusions of law thereon are all the decision which the
case requires, and they are as follows."
Then follow the findings of fact, 30 in number, and the 3
additional findings of fact requested on the part of the ship and
found by the supreme court, and also its conclusions of law, all of
which are set forth in the margin, the part in brackets at the
close of the first additional finding of fact not
Page 144 U. S. 378
being contained in that additional finding, as requested by the
proctor for the ship, but being added by the court.
*
Page 144 U. S. 379
On the 14th of August, 1888, the supreme court entered a decree
dismissing the cross-libel at the cost of the cross-libellant,
Page 144 U. S. 380
and decreeing that the Tacoma Mill Company recover from the
claimant of the ship and from its stipulators
Page 144 U. S. 381
$12,121.02, and costs to be taxed, and that execution issue
therefor. On the same day, in open court, the claimant of the
Page 144 U. S. 382
ship and her owner, D. O. Mills, the cross-libellant, and the
stipulators, took an appeal to this Court, which was allowed.
Page 144 U. S. 383
It was contended in the lower court, as set forth in the answer
and the cross-libel on the part of the ship, that the collision
Page 144 U. S. 384
resulted through the fault of the tug, entitling the ship to
damages. It is urged here that, although by finding 23 it is found
that the collision and all resulting damages were "occasioned
solely by the negligence, want of skill, and improper conduct of
the officers and persons navigating said ship
Blue Jacket,
and not from any fault, negligence, or improper conduct on the part
of any person on board the said steam tug
Tacoma," yet
there are express and specific findings which not only fail to
sustain the general deduction in finding 23, but demonstrate that
the faults or misconduct resulting in the collision were mutual, if
not entirely those of the tug, and that such findings, like special
verdicts, overcome the general findings and are controlling; that
it is found by finding 24 that the side lights of the ship were at
all times brightly burning, but were not placed or constructed so
as to show a uniform and unbroken light over an arc of the horizon
of ten points of the compass, or so fixed as to throw a light from
right ahead to two points abaft the beam on the side of the ship on
which said lights were respectively placed, but that those facts in
no wise contributed to the collision; that it is found by finding
26 that the ship was well officered and manned, and had the usual
number of officers and seamen on board; that it is found by finding
12 that the tug was first sighted by the lookout of the ship about
half an hour before the collision at five miles distance; that that
demonstrates the vigilance of the lookout of the ship, that it is
found by finding 10 that the mean course of the ship up to the time
her helm was put hard a-starboard was east-northeast, but her
course was really along a swinging path, deviating alternately to
starboard and port about one-half a point each way from said mean
course, and crossing the same about every half mile at intervals of
about
Page 144 U. S. 385
every four minutes, up to the time her helm was put hard
a-starboard, which was done when the ship was on the port side of
said mean course, and that, by finding 2 of the conclusions of law,
if was found that the ship was in fault in that (1) she did not
keep a sufficiently steady helm, but allowed herself to swing
alternately to port and starboard before she put her helm hard
a-starboard, and (2) that she put her helm hard a-starboard when
she should have put it hard a-port or kept her course.
It is urged for the ship that the equality of deviations of
about one-half a point to the right and left of her mean course,
and the uniformity of their occurrence, suggest that they were
unavoidable any were constantly being corrected; that this was due
to the fact that she was moving with the wind, and was doubtless
receiving it somewhat irregularly, as she was fifty miles from the
ocean and was borne with a three-mile tide, forced through a
contracted channel; that the supreme court of the territory
attached little if any significance to its three additional
findings of fact, and did not consider their effect upon any of the
findings which preceded them, and that the specific findings
overcome the conclusion in finding 23, that the collision was not
occasioned by any fault, negligence, or improper conduct on the
part of any person on board of the tug, and the conclusion in
finding 20, that when the collision was impending, everything was
done on the tug to avoid it and lessen the damage.
Attention is also called to the fact that it is found in finding
22 that, although the mate of the tug was a competent person for
the position, and faithfully performed his duties at all times
mentioned in the findings, yet he had no license, and that it is
found in finding 25 that the tug had no such lookout as is required
by law, although that fact in no wise contributed to the collision.
Attention is also called to the findings in additional finding 1,
and to the fact found in additional finding 3, that until the
captain of the tug ordered her mate to stop and reverse her engine,
as set forth in additional finding 2, the tug was going ahead at
full speed, and making two miles an hour by the shore against a
three-mile tide, and that nothing was done in slowing, stopping or
reversing
Page 144 U. S. 386
her engine until that was done which is set forth in additional
finding 2.
It is also urged that if the ship was moving in a swinging path,
and was in fault in so doing, the tug had been afforded ample
opportunity of observing the ship's course, and had many miles of
sea room in which to give her a wide berth, instead of which the
tug held to her course with her engine at full speed until the
vessels were brought near to each other, and that such conduct on
her part, with the fact found in finding 25, that she had no such
lookout as is required by law, while an unlicensed mate had the
sole control of her, and her captain was asleep, showed the
grossest recklessness. Attention is also called to the facts that
the course of the ship, subject to the swinging irregularity before
mentioned, was, until about two and one-half minutes before the
collision, east-northeast, while the tug was steering
west-southwest one-half west, and was moving along a path west
one-half south; that the combined speed of the two vessels in
approaching each other was ten miles an hour by the land; that the
finding is that the vessels were about one-third of a mile apart,
and the tug one-half a point off the ship's port bow, and the ship
bearing one and three-eighths points off the port bow of the tug,
when the tug put her helm hard a-port and swung to starboard, and
that immediately thereafter the ship put her helm hard a-starboard,
the effect of which was to change the ship's course to about
north-northeast, and that of the tug to about north-northwest, and
while the vessels were on these converging courses the ship struck
the tug bow on, on the port side of the tug, just abaft of
midships; that these findings demonstrate that if the tug had
slowed on nearing the ship, or had stopped and reversed her engine
after the ship changed her course, the latter would have crossed
the tug's course in advance of the tug without injury to either
vessel, and that if there had been a competent lookout on the tug,
or if her captain had come on deck two minutes instead of one-half
a minute before the collision, and had then given the order to stop
and reverse, and that order had been promptly obeyed, or if the
mate at any time in several minutes had done what the captain at
the
Page 144 U. S. 387
last instant recognized as the tug's duty, namely, to stop and
reverse, the accident would have been avoided.
It is also for the ship that for the purposes of this appeal, it
may be considered that she was in fault in not keeping her course,
although the conduct of those in charge of the tug, as established
by the findings of fact, goes far to show that the ship's situation
was one of embarrassment, and was reasonably believed to be one of
extremity, requiring her to change her course to avoid collision;
yet those in charge of the tug cannot escape the responsibility of
their negligence and misconduct in failing to have a proper lookout
and recklessly keeping on at full speed until the vessels were so
near together that the mate of the tug abandoned the wheel and the
pilot house, only before doing so ringing the bells sufficiently to
stop the engine, but not to reverse it. It is also urged that the
determination of eighteen relative positions of the colliding
vessels, given in findings 13 and 14, beginning twenty-three and
three-quarters minutes and ending two and one-half minutes before
the collision, must all fail if there was any mistake in the
premises or calculation of the court, and that the conclusion must
be that the facts thus found are theoretical and speculative. It is
also contended that the only misconduct to be charged against the
ship, in the light of the special findings, was in changing her
course, but that that was to be excused by the misconduct of those
in charge of the tug, leading the ship into embarrassment and
causing those in charge of her to believe that she was in extremity
and was compelled to change her course, and that therefore she
ought to be relieved from liability, while the tug cannot escape an
apportionment of the damages to which her fault contributed,
including those suffered by the ship and set forth in her answer
and her cross-libel.
But we are of opinion that the foregoing contentions are of no
avail in favor of the ship against the findings of fact of the
supreme court of the territory. We think that the additional
findings made by that court do not modify the findings made by the
district court, and that therefore the findings of fact and
conclusions of law made by the two courts are substantially
Page 144 U. S. 388
identical. There is no bill of exceptions, and therefore the
only question is whether the findings of fact made by the supreme
court support the conclusions of law which it made.
The navigation rules in force June 11, 1885, when this collision
occurred, were those established by the Act of March 3, 1885, c.
354, 23 Stat. 438. That statute provides as follows:
"Art. 17. If two ships, one of which is a sailing ship and the
other a steamship, are proceeding in such directions as to involve
risk of collision, the steamship shall keep out of the way of the
sailing ship."
"Art. 18. Every steamship, when approaching another ship so as
to involve risk of collision, shall slacken her speed, or stop and
reverse, if necessary."
"Art. 22. Where, by the above rules, one of two ships is to keep
out of the way, the other shall keep her course."
"Art. 23. In obeying and construing these rules, due regard
shall be had to all dangers of navigation, and to any special
circumstances which may render a departure from the above rules
necessary in order to avoid immediate danger."
"Art. 24. Nothing in these rules shall exonerate any ship or the
owner or master or crew thereof from the consequences of any
neglect to carry lights or signals, or of any neglect to keep a
proper lookout, or of the neglect of any precaution which may be
required by the ordinary practice of seamen or by the special
circumstances of the case."
In the present case, therefore the steam tug was required to
keep out of the way of the ship, and the ship was required to keep
her course. The tug adopted proper measures, by porting her helm,
to avoid the ship, and those measures would have been effectual if
the ship had not changed her course by starboarding her helm.
Finding 14 finds that two and one-half minutes before the
collision, when the tug and the ship were about one-third of a mile
apart, and the tug bore about one-half a point off the port bow of
the ship, and the ship bore about one and three-eighths points off
the port bow of the tug, and showed both of her lights to the bark
and her red light to the tug, and the bark bore dead ahead from the
ship, the tug, for the purpose of avoiding the ship, put her helm
hard a-port and swung to starboard, and that
Page 144 U. S. 389
the ship immediately thereafter, instead of keeping her course
or putting her helm to port, either of which she could have done,
and one of which she should have done, and either of which would
have avoided the collision, negligently put her helm hard
a-starboard, and kept it in that position until the collision
occurred. It is also found, by finding 18, that if the ship had
kept her course, or her helm had been put to port at the time it
was put to starboard, the collision would have been avoided; by
finding 19, that no special circumstance existed at any time
mentioned, which rendered a change, of course, on the part of the
ship necessary or excusable; by finding 20, that, as soon as it was
possible for those on board of the tug to discover that the ship
had put her helm to starboard, everything was done on the tug to
avoid the collision and lessen the damage; by finding 21 that up to
the time the helm of the ship was put to starboard, no one on board
of the tug had any reason to expect or anticipate any change of
course on the part of the ship, and that after the ship's helm was
put to starboard, nothing that the tug could have done would have
averted the collision; by finding 22 that the mate of the tug was a
competent person for that position and faithfully performed his
duties at all times mentioned in the findings, although he had no
license; by finding 23 that the collision was caused, and all the
damage resulting therefrom was occasioned, solely by the
negligence, want of skill, and improper conduct of the officers and
persons navigating the ship, and not from any fault, negligence, or
improper conduct on the part of any person on board of the tug; by
finding 24 that no misplacement or fault of construction in the
side lights of the ship contributed to the collision, and that they
were at all times brightly burning, and by finding 25 that although
the tug had no such lookout as was required by law, that fact in no
wise contributed to the collision.
It is well settled that the absence of a lookout is not material
where the presence of one would not have availed to prevent a
collision. In the case of
The Nacoochee, 137 U.
S. 330, the collision was between a steamer and a
schooner, and the claim was made that the schooner was in fault in
sailing too
Page 144 U. S. 390
short-handed in a fog, and having only two men on deck, one of
them forward, charged with the double duties of a lookout and of
blowing the horn, and one astern at the wheel. It was not found by
the circuit court as a fact that the absence of another lookout
contributed to the collision, nor were there any facts found which
could justify that conclusion either as fact or law. So far as the
findings were concerned, the man forward properly discharged his
double duties. He blew the foghorn, and it was heard on board of
the steamer, and it was not found that he did not blow it properly
or 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 by an additional lookout, could or would have made
any difference in the result, or that the steamer could or would
have been seen by the schooner any sooner than she was seen. This
Court held that under all the circumstances, and in view of the
actual findings, it could not be said that there was any lack of
vigilance on the part of the schooner in the matter of a lookout,
and the cases of
The Farragut,
10 Wall. 334;
The Fannie, 11
Wall. 238,
78 U. S. 243,
and
The Annie Lindsley, 104 U. S. 185,
104 U. S. 191,
were cited in support of that view.
In the present case, it is found that the lookout of the tug
first sighted the ship at about two miles distant, and that the red
light of the ship was then seen about three-tenths of a point on
the port bow of the tug, and it is also found that although the tug
had no such lookout as was required by law, that fact in no wise
contributed to the collision.
The provision of article 24 of the Act of March 3, 1885, is that
a vessel is not to be exonerated from the consequences of any
neglect to keep a proper lookout. It does not say that a vessel
shall, because of not keeping a proper lookout, be visited with the
consequences of a collision. If the collision does not result as a
consequence of neglecting to keep a proper lookout, the vessel is
not thereby made responsible for the consequences of the collision,
and the exemption of the tug necessarily results from the finding
as a fact that the absence of the proper lookout in no wise
contributed to the collision.
As it is found as a fact that no special circumstance at any
Page 144 U. S. 391
time existed which rendered a change of course on the part of
the ship necessary or excusable, under article 23 of the statute,
she cannot have any benefit from that article.
The Maggie J.
Smith, 123 U. S. 349,
123 U. S.
354.
We think that the keeping on of the tug at the full speed of two
miles an hour by the shore, and her not stopping or reversing her
engine until the captain, coming on deck, ordered the mate to do
so, was not a fault on the part of the tug. Knowing that the ship
was a sailing vessel from her showing to the tug only her red light
and no white light, and further knowing that it was the duty of the
tug to avoid the ship and of the ship to keep her course, and
supposing that the ship would keep her course, and the tug having
ported her helm in discharge of her duty of avoiding the ship, she
naturally kept on without stopping or reversing, because, under
article 18, it was her duty to slacken her speed, or to stop and
reverse, if necessary, only if her approach to the ship involved
risk of collision. There was no risk of collision involved until
the ship starboarded, which she did only after the tug had hard
a-ported her helm and had swung to starboard, and then the peril
was so great, and the vessels were such a short distance apart,
that the tug may well be considered as having been in extremis.
By finding 14, it is found that the tug put her helm hard a-port
and swung to starboard only two and one-half minutes before the
collision, and when the vessels were about one-third of a mile
apart. They were approaching each other at the rate of about ten
miles an hour, the tug going about two miles an hour by the land,
and the ship about eight miles an hour by the land. The approach
was at the rate of a mile in about six minutes. As the tug began to
port only two and one-half minutes before the collision, and had to
get her helm hard a-port and swing to starboard before the ship
starboarded, then got her helm hard a-starboard, and then changed
her course so materially as to attract the attention of the tug,
the fair deduction from the findings is that the tug was in the
situation of
in extremis before the time when it became
her duty to stop and reverse. It was the fault of the ship in
changing her course that put the tug in that situation, and any
error of judgment at that
Page 144 U. S. 392
time in the particular mentioned cannot be imputed as a fault to
the tug.
The Benefactor, 102 U. S. 216;
The Elizabeth Jones, 112 U. S. 514,
112 U. S. 526, and
cases there cited;
The Maggie J. Smith, 123 U.
S. 349.
As was held in
The Bywell Castle, 4 P.D. 219,
"where one ship has, by wrong maneuvers, placed another ship in
a position of extreme danger, that other ship will not be held to
blame if she has done something wrong and has not been maneuvered
with perfect skill and presence of mind."
It is not found as a fact that the collision would have been
avoided or mitigated if the tug had stopped and reversed when she
discovered that the ship had put her helm hard a-starboard and
changed her course. On the contrary, finding 21 says that after the
ship's helm was put to starboard, nothing that the tug could have
done would have averted the collision, and finding 20 says that as
soon as it was possible for those on board of the tug to discover
that the ship had put her helm to starboard, everything was done on
board of the tug to avoid the collision and lessen the damage.
We do not think that the decision in the case of
The
Manitoba, 122 U. S. 97,
applies to the present case. That was a collision between two steam
vessels on Lake Superior. The two vessels saw the white and the
green lights of each other, and only those lights, and continued to
approach each other on nearly parallel courses. When they were
about from one and one-half to two miles apart, the
Manitoba had the
Comet's green light about
three-quarters of a point on her starboard bow, and then
starboarded her wheel half a point, and continued her course
without change until just before the collision. In the meantime,
the
Comet ported her wheel for the second time half a
point, and the two vessels thus continued to approach each other,
showing their green and white lights only, until they had come
within from 400 to 500 feet of each other, the
Comet being
then from 200 to 300 feet on the starboard side of the
Manitoba. If each had kept her course they would have
passed without colliding, but at that juncture the
Comet
ported her wheel, displayed her red light, and suddenly sheered
across the course of the
Manitoba. The latter thereupon
starboarded
Page 144 U. S. 393
her wheel, and the collision ensued. The combined speed of the
two vessels was about twenty miles an hour. Neither of the vessels
sounded any signal of the whistle, indicating the side she intended
or desired to take, nor did either of them reverse her engine or
slacken her speed until the collision was inevitable; but the
Manitoba reversed her engine just before or about the time
of the collision. The fact that the two vessels were moving on
nearly parallel, opposite, but slightly converging lines was
manifest to the officers of both for some considerable time before
the
Comet ported. The circuit court found as follows:
"The relative courses of these vessels, and the bearing of their
lights, and the manifest uncertainty as to the
Comet's
intentions, in connection with all the surrounding facts, called
for the closest watch and the highest degree of diligence on the
part of both with reference to the movements of the other, and it
behooved those in charge of them to be prompt in availing
themselves of any resource to avoid not only a collision but the
risk of such a catastrophe. If the requisite precautions had been
observed by both or by either of said vessels, the collision, in
the opinion of the court, would not have happened."
The circuit court found that the
Comet was in fault for
putting her wheel hard a-port and endeavoring to cross on the port
side of the
Manitoba; that the
Manitoba was in
fault in ignoring the fact that the Comet was approaching under a
port wheel, and that the courses of the vessels were convergent and
involved risk of collision, and in failing to take proper
precaution in time to prevent the collision, and that the
Manitoba was further in fault in not indicating her course
by her whistle, and in not slowing up, and in failing to reverse
her engine until it was too late to accomplish anything thereby. It
apportioned the damages. The
Manitoba appealed to this
Court because she had been found to be in fault. As the answer and
the cross-libel of the
Manitoba charged as a fault in the
Comet that she did not stop and reverse in approaching the
Manitoba, when there was risk of collision, this Court
said that if there was risk of collision in the approach of the
Comet to wards the
Manitoba, prior to the sudden
sheer of the
Comet, it was a risk affecting
Page 144 U. S. 394
the
Manitoba equally with the
Comet, and
imposing upon her the same duties as it imposed on the
Comet, of slackening speed or, if necessary, stopping and
reversing. This Court affirmed the finding, as a conclusion of law,
that the
Manitoba was in fault in not indicating her
course by her whistle and in not slowing up and in failing to
reverse her engine until it was too late to accomplish anything
thereby.
The difference between the case of
The Manitoba and the
present case involves the vital point that in the former the
question was between two steam vessels, while in the latter it is
between a steam vessel and a sailing vessel. In the case of The
Manitoba, the courses of the two steam vessels were not
such as to make it the duty of the one more than of the other to
avoid the other, or to make it the duty of the one, rather than of
the other to keep her course, and there was, in regard to the
courses of both the steam vessels, such risk of collision that the
obligation was upon both to slacken speed or, if necessary, stop
and reverse. But in the present case, the duty was wholly on the
ship to keep her course and wholly on the tug to keep out of the
way of the ship, and there was no duty imposed on the tug to stop
and reverse until, as above shown, she was in the very jaws of the
collision.
The decree of the Supreme Court of the Territory of Washington
is
Affirmed, and the case is remanded to the Circuit Court of
the United States for the District of Washington (Act Feb. 22,
1889, c. 180; 25 Stat. 676, 682, 683, §§ 22, 23) for further
proceedings according to law.
*
"1. That the libellant, the Tacoma Mill Company, is and at all
times mentioned in the pleadings in this cause was, a corporation
organized and existing under the laws of the State of California,
and duly authorized to do business in the Territory of
Washington."
"2. That said libellant, before and at the time of the collision
mentioned in these findings, was and still is the owner and
proprietor of the steam tug
Tacoma, with her steam
engines, boilers, machinery, tackle, apparel, and furniture, which
said steam tug said libellant used in towing vessels from, to, and
between the various ports of Puget Sound and the Pacific Ocean, on
the waters of Puget Sound and the Straits of Fuca, and through the
waters tributary and adjacent thereto, and where she was regularly
run, daily and every day except Sunday, for the purposes
aforesaid."
"3. That on the 11th day of June, 1885 at the hour of about two
o'clock in the morning of said day, said steam tug
Tacoma,
with her steam engines, boilers, apparel, tackle, and furniture on
board, was towing the bark
Colusa, of the port of Boston,
of about twelve hundred tons burden, then and there lumber-laden,
and bound upon a voyage to San Francisco, California, from the port
of Port Townsend, in said Territory of Washington, to Cape
Flattery, and the said steam tug, with said tow, was then about
four miles to the north of Ediz-Hook Light, in the Straits of Fuca,
steering west-southwest one-half west, and moving along a path west
one-half south at the rate of about two miles per hour by the
land."
"4. That at that time and up to the time when said ship put her
helm hard a-starboard, as hereinafter mentioned, said bark was
being towed by said tug by means of a hawser about one hundred and
fifty fathoms in length, and from the stern of the said tug to the
stem of said bark the distance was about seven hundred and fifty
feet, and, during all the times mentioned herein, said bark was
steering the same course as said tug."
"5. That at that time, and during all times up to the collision
hereinafter mentioned, the weather was cloudy, the air was clear,
and a fresh breeze was blowing from the west-southwest, and the
tide was flooding, running up the Straits of Fuca at the rate of
three miles per hour from west-southwest or west-southwest one-half
west."
"6. That said steam tug at that time, and up to the time of the
collision hereinafter mentioned, was tight, staunch, strong, and in
every respect well tackled, appareled, and appointed, and had the
usual complement of officers and men, and was also, except as
hereinafter found, well manned."
"7. That said tug at that time, and at all times herein
mentioned, carried all the lights prescribed by law, and carried
the same in the manner prescribed by law, and the same were at all
of said times properly set and brightly burning."
"8. That said bark
Colusa at all times carried all the
lights prescribed by the law, and carried the same in the manner
prescribed by law, and the same were at all times properly set and
brightly burning."
"9. That at about ten minutes before two o'clock in the morning
of said day, while said steam tug was towing said bark
Colusa at the place and in the manner hereinbefore stated,
and steering on the said course, the ship
Blue Jacket, of
San Francisco, whereof F. F. Percival was then and there master,
and being then on her way from San Francisco to the port of
Seattle, in the Territory of Washington, was first sighted by the
lookout of said tug, said ship then being about two miles distant
from said steam tug and showing her red light about three-tenths of
a point on the port bow of said steam tug."
"10. That the mean course of said ship at all the times
mentioned in these findings, up to the time her helm was put hard
a-starboard, was east-northeast; but her course was really along a
swinging path, deviating alternately to starboard and port about
one-half a point each way from said mean course, and crossing the
same about every half mile at intervals of about every four
minutes, up to the time her helm was put hard a-starboard, as
hereinafter stated, which was done when said ship was on the port
side of said mean course."
"11. That said ship was running with a fair wind and tide, and
at all times up to the time of the collision was going ahead at the
rate of about eight miles per hour by the land."
"12. That said steam tug was first sighted by the lookout of
said ship about half an hour before said collision, and was then
about one-half a point off the starboard bow of said ship, and five
miles away from her, showing two white masthead lights to said ship
at that time, and at all times up to the time of said collision;
the said tug steering at that time, and at all times until her helm
was put hard a-port, as hereinafter stated, a course of
west-southwest one-half west, but, owing to the deflecting
influence of wind and tide, moving along a path in the direction of
west one-half south. That said tug, when so sighted by said
lookout, was at once reported to the master and mate of said
ship."
"13. That owing to the improper manner in which said ship was
steered, and to the irregular course which she pursued in
consequence of such improper management, said tug bore from said
ship from time to time about as follows:"
"At twenty three and three-quarters minutes before said
collision (being three and five-sixths miles away), dead
ahead."
"At twenty-two and one-half minutes before said collision (being
three and five-eighths miles away), dead ahead."
"At twenty-one and one-quarter minutes before said collision
(being three and three-sevenths miles away), one-half a point off
the starboard bow."
"At twenty minutes before said collision (being three and two
ninths miles away), one-half a point off the starboard bow."
"At eighteen and three-quarters minutes before said collision
(being three miles away), one-half a point off the starboard
bow."
"At seventeen and one-half minutes before said collision (being
two and three-quarters miles away), one-third of a point off the
starboard bow."
"At sixteen and one-quarter minutes before said collision (being
two and five-eights miles away), one-eighth of a point off the
starboard bow."
"At fifteen minutes before said collision (being two and
two-fifths miles away), one-twelfth of a point off the starboard
bow."
"At thirteen and three-quarters minutes before said collision
(being two and one-seventh miles away), dead ahead."
"At twelve and one-half minutes before said collision (being two
miles away), one-third of a point off the port bow, the ship
bearing three-tenths of a point off the port bow of the tug, and
showing her red light to both the tug and bark, the bark bearing
three-tenths of a point off the port bow of the ship."
"At eleven and one-quarter minutes before said collision (being
one and three-fourths miles away), one-half a point off the port
bow, the ship bearing one-third of a point off the port bow of the
tug, and showing her red light to both the tug and the bark, and
the bark bearing four-tenths of a point off the port, bow of the
ship."
"At ten minutes before said collision (being one and
four-sevenths miles away), five-eighths of a point off the port
bow, the ship bearing four-tenths of a point off the port bow of
the tug, and showing her red light to both the tug and the bark,
and the bark bearing from the ship five-ninths of a point off her
port bow."
"At eight and three-quarters minutes before said collision
(being one and one-third miles away), one-half of a point off the
port bow, the ship bearing one-half of a point off the port bow of
the tug, showing her red light to both the tug and the bark, and
the bark bearing one-half of a point off the port bow of the
ship."
"At seven and one-half minutes before said collision (being one
and one-seventh miles away), one-sixth of a point off the port bow,
the ship bearing two-thirds of a point off the port bow of the tug,
and showing her red light to both the tug and the bark; the bark
bearing one-eighth of a point off the port bow of the ship."
"At six and one-quarter minutes before said collision (being
nine-tenths of a mile away), dead ahead, the ship bearing
two-thirds of a point off the port bow of the tug, and showing both
of her lights to both the tug and the bark, the bark bearing
one-tenth of a point off the starboard bow of the ship."
"At five minutes before the said collision (being five-sevenths
of a mile away), dead ahead, the ship bearing three-fourths of a
point off the port bow of the tug and showing both her lights to
the tug and her green light to the bark; the bark bearing one-sixth
of a point off the starboard bow of the ship."
"At three and three-quarters minutes before said collision
(being one-half of a mile away), dead ahead, the ship bearing
five-sixths of a point off the port bow of the tug and showing both
of her lights to the tugs and her green light to the bark, the bark
bearing one-sixth of a point off the starboard bow of the
ship."
"14. That two and one-half minutes before said collision, said
tug being about one-third of a mile distant from said ship and
one-half a point off her port bow, the ship bearing about one and
three-eighths points off the port bow of the tug and showing both
her lights to the bark and her red light to the tug and the bark
bearing dead ahead from the ship, said tug, for the purpose of
avoiding the ship, put her helm hard a-port and swung to starboard,
but the said ship immediately thereafter, instead of keeping her
course or putting her helm to port, either of which she could and
one of which she should have done, and either of which would have
avoided said collision, carelessly, unskillfully, and negligently
put her helm hard a-starboard, and kept the same in that position
until the said collision occurred."
"15. That the red lights of both said tug and said bark were
visible to and were seen by those on board of said ship from ten to
twelve minutes before said collision."
"16. That although said lights of both said tug and said bark
were properly set and brightly burning, such were the relative
positions of said ship, said tug, and said bark that neither said
tug nor said bark at any time up to the time of the collision
showed the said ship any side or colored lights except said red
lights."
"17. That owing to the putting of said helm of said ship to
starboard as aforesaid, said ship slewed rapidly around to port
until her course was changed to about north-northeast, and she then
at about 2 o'clock in the morning of said 11th day of June, while
the tug was still swinging to starboard under a ported helm,
collided with said tug, striking her 'bow on' on the port side,
just abaft of midships, thereby causing great damage to the hall of
said tug, her machinery, tackle, apparel, and furniture."
"18. That had said ship kept her course, or had her helm been
put to port at the time it was put to starboard, said collision
would have been avoided, and no injury would have been occasioned
to either said ship, said tug, or said bark."
"19. That no special circumstance at any time mentioned herein
existed which rendered a change, of course, on the part of said
ship necessary or excusable."
"20. That as soon as it was possible for those on board of said
tug to discover that said ship had put her helm to starboard,
everything was done on said tug to avoid said collision and lessen
the damage occasioned thereby, and at the time of said collision,
said tug, owing to said port helm, was heading about
north-northwest."
"21. That up to the time that said ship's helm was put to
starboard, as aforesaid, no one on board of said tug had any reason
to expect or anticipate any change of course on the part of said
ship, and after the helm of said ship was so put to starboard,
nothing that said tug could have done would have averted said
collision."
"22. That the mate of said tug was a competent person for that
position, and faithfully performed his duties at all times
mentioned in these findings, but he had no license."
"23. That said collision was caused, and all the damage
resulting therefrom was occasioned, solely by the negligence, want
of skill, and improper conduct of the officers and persons
navigating said ship
Blue Jacket, and not from any fault,
negligence, or improper conduct on the part of any person on board
the said steam tug
Tacoma."
"24. That the side lights of said ship
Blue Jacket were
at all times herein mentioned brightly burning, but were not placed
or constructed so as to show a uniform and unbroken light over an
arc of the horizon of ten points of the compass, or so fixed as to
throw a light from right ahead to two points abaft the beam on the
side of the ship on which said lights were respectively placed; but
these facts in no wise contributed to said collision."
"25. That said steam tug
Tacoma had no such lookout as
is required by law, but this fact in no wise contributed to said
collision."
"26. That said ship was well officered and manned, and had the
usual number of officers and seamen on board."
"27. That said steam tug was damaged by said collision in the
sum of seventy-five hundred dollars, and the said libellant has, in
consequence of said damage, been obliged to expend and has
expended, in repairing the same, the sum of seventy-five hundred
dollars, the last of which said sum was so paid on or prior to the
15th day of August, 1885, and that said libellant is entitled to
interest at the rate of ten percent per annum upon said sum from
said 15th day of August, 1885, to this day."
"28. That said libellant, the Tacoma Mill Company, by reason of
said collision, has sustained damages by being deprived of the
services and use of said tug for the period of fifty days
immediately following said collision, and the said services and use
were during said period of fifty days reasonably worth the sum of
forty-seven and fifty-hundredths dollars per day over and above all
expenses of running and operating the said tug."
"29. That on the 4th day of September, 1885, J. Furth and Bailey
Gatzert entered into a stipulation, in accordance with the rules
and practice of the said district court, in the sum of twenty-four
thousand dollars, for the release of said ship
Blue Jacket
from arrest in this cause, which said stipulation was conditioned
that said claimant should abide and pay the money awarded in the
final decree rendered in this cause by the district court, or, in
case of appeal, by the appellate court."
"30. That on the 22d day of March, 1887, J. Furth and Bailey
Gatzert entered into a stipulation, in accordance with the rules
and practice of the said district court, in the sum of twenty
thousand dollars, upon an appeal from the said district court to
this court, which said stipulation was conditioned that the said
stipulators should pay all damages and costs that should be
adjudged against the said ship on said appeal, and also that said
ship should satisfy and perform the decree appealed from, in case
it should be affirmed, and any judgment or order which this court
might render or order to be rendered by the district court, not
exceeding in amount or value the said sum of twenty thousand
dollars."
"
ADDITIONAL FINDINGS REQUESTED BY THE PROCTOR
FOR"
"
THE APPELLANTS AND ADOPTED BY THE SUPREME
COURT"
"1. The master of the tug went to bed a little after midnight
preceding the collision, and the acting mate was alone in the pilot
house of the tug, and was the only officer in charge of the
navigation of the tug, and the only person in charge of the tug's
wheel, from midnight until one minute or less before the collision,
when the captain arrived on deck, [but this fact did not contribute
to the collision.]"
"2. The captain was awakened and arrived on deck about one-half
a minute before the vessels came together, and, after inquiring
what the trouble was, and being told a ship was coming into them,
ordered the mate to stop and reverse, which order was only partly
obeyed by the mate, who rang the bells in obedience to the order
sufficient to stop the engines, but not to reverse them, and then
let go of the bell-pull and of the wheel and ran out of the pilot
house to avoid danger to himself, which he supposed to be imminent,
as the ship was then coming in contact with the tug."
"3. For some time prior to and until the captain ordered the
mate of the tug to stop and reverse, the engines of the tug were
going ahead at full speed, and the tug was making the speed herein
before found, of two miles an hour by the shore."
"And from these findings of fact the court makes the following
--"
"
Conclusions of Law"
"1. That said tug was not in fault or in any wise blamable for
any damage resulting either to herself or said ship."
"2. The said ship was in fault in this:"
"First. She did not keep a sufficiently steady helm, but allowed
hereself to swing alternately to port and starboard before she put
her helm hard a-starboard."
"Second. She put her helm hard a-starboard when she should have
put it hard a-port or kept her course."
"3. That said libellant, the Tacoma Mill Company, is entitled to
recover of and from F. F. Percival, the claimant, in this cause,
and from J. Furth and Bailey Gatzert, his stipulators, the sum of
twelve thousand one hundred and twenty-one dollars & 2-100
($12, 121.02), and its costs and disbursements to be taxed, and is
entitled to an order that execution issue upon said judgment
against the goods, chattels, and lands of said claimant and
stipulators."
"4. That said libellant is entitled to a decree dismissing the
cross-libel at the costs of the cross-libellant."