In a collision which took place at sea between a steamship and a
schooner by means of which the schooner was sunk and all on board
perished except the man at the helm, the evidence shows that it was
not the fault of the steamer.
Although the night was starlight, yet there was a haze upon the
ocean which prevented the schooner from being seen until she came
within a distance of two or three hundred yards. She was
approaching as close-hauled to the wind as she could be. Under
these circumstances, the order to stop the engine and back, was
judicious.
The circumstances of the case are particularly set forth in the
opinion of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case arises out of a collision between the schooner
Mission, of Edenton, in North Carolina, and the steamship
Columbus, of Philadelphia. The schooner sunk
immediately,
Page 58 U. S. 179
and all on board perished with the exception of Wilson G.
Burgess, a seaman, who succeeded in getting on board of
The
Columbus. The libel is filed by the owner of the schooner, and
charges that the collision was occasioned by the fault of the
steamship. The circuit court sustained the libel and directed the
respondents to pay the full value of
The Mission and her
cargo. And from that decree this appeal has been taken.
The only witness examined by the libellant is the seaman above
mentioned. It appears from his testimony that the schooner was
bound from Rum Key to Edenton, with a cargo of salt and some
specie. The crew consisted of the captain, one mate, two able and
one ordinary seamen, a cook, and a son of the captain, about twelve
years old. About 12 o'clock, on the night of the collision,
Burgess, and a seaman named Brown, and the master, came from below,
it being their watch on deck. The master soon went below again, and
remained there till after the collision, leaving no one on deck but
the two seamen. Brown took the wheel and Burgess went forward; and
at two o'clock in the morning, Burgess took the wheel and Brown
went forward. Burgess states that it was a pretty clear night, with
a moderate wind from northwest, the schooner heading north by east.
The sails were trimmed flat aft, and the schooner was as
close-hauled to the wind as she could be. He could see nothing on
the larboard side, because the sails intercepted his view. She
carried no lights.
He had been at the wheel about half an hour when the collision
took place. He heard a heavy crash; the wheel turned, flew out of
his hands, and knocked him down. He ran forward and saw a large
vessel into them. Her bowsprit was between the schooner's jib and
foremast, and extended over their forecastle deck. He got hold of
her bowsprit shroud and got upon her deck. The schooner went down,
and the rest of the crew perished.
Burgess states that he neither saw nor heard the steamer until
the vessels came together. The
Columbus was on the
larboard side, and the sails of the schooner prevented him from
seeing her. He never saw or heard Brown after he went forward, and
he gave the witness no notice of the approach of the steamship.
On the part of
The Columbus, several witnesses were
examined, and among them the mate, a seaman stationed on the
lookout, and the engineer. There is no material discrepancy in
their testimony, and the result of it is this:
The steamship was a propeller, and a regular packet between
Philadelphia and Charleston. She was on her voyage from the former
place to the latter, with freight and passengers on board.
On the night of the collision, it was the mate's watch, from
Page 58 U. S. 180
twelve o'clock to four o'clock in the morning. He came from
below at twelve o'clock, and saw that his men were keeping a
lookout forward, and was also on the lookout himself. The wind was
west-northwest, varying one or two points, and the steamer was
heading southwest, and going at the rate of about eight and a half
knots an hour. There was a heavy head sea, and the night was
starlight, but not very clear, somewhat hazy. The ship carried a
signal light, a globe lamp, such as they usually carried, which was
burning, and all the staterooms were lighted. These lights could be
seen from a distance, variously estimated by the witnesses from one
to five miles. Her usual watch were on deck; two of them stationed
on the forecastle deck on the lookout, and the mate was standing on
the top of the skylight looking out for Cape Lookout light, the
ship being then about ten miles from Cape Lookout breakers, and on
soundings.
The
Mission was first seen by one of the lookout, who
immediately ran aft two or three steps, and sang out, "vessel right
ahead." She was then at a distance of two or three hundred yards.
And on such a night, a vessel like
The Mission, with her
sails hauled flat aft, and coming towards
The Columbus
edge on, and without lights, could not be seen at a greater
distance.
The mate, as soon as the lookout cried "sail right ahead,"
jumped from the skylight, ordered the engineer to stop the engine,
and ran forward. He saw
The Mission a point or a point and
a half on the larboard bow, apparently standing west by north,
distant, as he conjectured, about two hundred yards. He could not
see her very plain, her sails being presented to them edgewise. She
was rather to windward of the steamship, and close-hauled. He
judged that he could not clear her by shifting the helm, and he
ordered the engineer to back. The orders were instantly obeyed, and
The Columbus was backing when the collision took place. It
took place in less than a minute from the time the schooner was
first seen.
The witnesses testify, that when at night the lookout cries out,
"sail ahead," it is the duty and practice of steam vessels, when
they are uncertain of the way the sail is standing, to stop the
engine and back, and it is not usual or proper to change her course
before the course which the other vessel is steering is first
ascertained. And among the witnesses who thus testify is a seaman
who had been a pilot in the Bay of Delaware many years and who
happened to be on board
The Columbus as passenger when
this disaster happened.
Upon this statement of facts, gathered from the testimony on
both sides, we see no just ground for imputing this unfortunate
collision to negligence or want of skill in the management of
The
Page 58 U. S. 181
Columbus. She was well lighted, and could be seen at a
great distance. She had a sufficient lookout, properly
stationed.
But it is said it was a starlight night, and if the lookout had
been watchful,
The Mission ought to have been seen at a
greater distance. Undoubtedly there are nights in which such a
vessel might be seen much further off; and in the night of which we
are speaking, she might have been seen at a greater distance, if
the whole breadth of her sails had been presented to the
approaching vessel. But there are nights which may properly be
called starlight, when there is a haze on the surface of the ocean
which obstructs the vision. And the court cannot undertake to say,
that in any night, whenever the stars are shining, a vessel like
The Mission may be seen at a greater distance than two or
three hundred yards, although she is approaching head on with her
sails drawn flat, and without a light. The distance must depend on
the state of the atmosphere, and vary with it. And no one can know
or form a safe opinion as to the distance at which the schooner
might have been seen, on the night of which we are speaking, unless
he was at the place of collision at the time it happened, or
derives his knowledge from persons who were there. And when the
witnesses on board
The Columbus testify that she could not
be seen further off, there is no reasonable ground for doubting the
truth of their testimony. It is a fact, proved by eyewitnesses,
whose testimony is not impeached.
Neither can the order to stop the engine and back, instead of
changing the course of the steamship, be regarded as a fault. It
would evidently have been unwise to change her course, until the
course of the approaching vessel was ascertained. She might be
approaching at an angle that would clear the steamship, and a
change in the course of the latter might produce a collision
instead of preventing it. And stopping the engine lessened the
rapidity with which the vessels were nearing each other, and gained
time, while he was ascertaining the distance of the sail, and the
direction in which it was steering. When he had done this, if there
was sufficient distance between them to enable him to avoid her, it
was unquestionably his duty to change the course of
The
Columbus, and allow the schooner to pass on, in the course in
which she was steering. But, in his judgment, this could not be
done.
The testimony shows that he was an experienced and trustworthy
seaman. And there is no evidence to impeach the correctness of his
opinion in this particular. And if it was impossible to avoid the
schooner, by changing the course of his vessel, the order to back
was evidently judicious, as it gave more space for the schooner to
change her course, and thereby escape the impending danger. Her
course could be changed in a much
Page 58 U. S. 182
shorter space than that required for a steamship of the size of
The Columbus.
It is, without doubt, the general rule, that a sailing vessel
should keep her course when approaching a steamboat, and it is the
duty of the latter to keep out of her way. But this rule
presupposes that the steamer discovered, or ought to have
discovered, the sailing vessel when at a sufficient distance to
avoid her, by changing her own course. But where, as in the present
case, they are brought suddenly and unexpectedly close to each
other, and the ordinary rules of navigation will not prevent a
collision, it is the duty of each to act according to the
emergency, and to take any measure that will be most likely to
attain the object. Experienced seamen testify that the mode adopted
on the part of
The Columbus was the usual and best one,
and we see no reason to doubt it. And if
The Columbus had
been seen from
The Mission when the engine was stopped,
she might, it appears, have passed her in safety. Not a moment
appears to have been lost on board of the steamer, in giving or in
executing the orders which the occasion called for, and we think
she is not, in any degree, responsible for the disaster.
In this view of the case, it is unnecessary to inquire whether
any blame can be attached to
The Mission. For whether she
was or was not managed unskillfully, or negligently,
The
Columbus not being in fault, is not liable for any damage
sustained by the schooner.
But yet it is evident that there was great negligence on her
part. For it is impossible that a vessel, lighted up like the
steamer, would not have been seen from the schooner before she
actually came in collision, if there had been ordinary care and
watchfulness on board. It may indeed have happened that Brown, who
went forward as the lookout, fell overboard by some accident,
without the knowledge of Burgess, before
The Columbus was
in sight, and so the want of a lookout might have been occasioned
by misfortune, and not by carelessness. But the conduct of the
captain, in going below during his watch, and not remaining on deck
to see that the seamen were at their posts and attending to their
duty, was hardly consistent with good seamanship. And it is
difficult to believe that the approach of the steamer could be
unknown to Burgess, who was at the helm, until the actual
collision, unless he was asleep at his post. The sails of his
vessel might have hid the lights, but it is hardly credible that a
wakeful and watchful seaman at the wheel would not have heard the
noise of her machinery before he felt the collision. We do not,
however, pursue this inquiry, because it is not material to the
decision. And as, in the opinion of the court, no fault is
imputable to
The Columbus, the
Page 58 U. S. 183
decree of the circuit court must be reversed, and the libel
dismissed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania, and was argued by counsel, On
consideration whereof it is now here ordered, adjudged, and decreed
by this Court that the decree of the said circuit court in this
cause be and the same is hereby reversed with costs, and that this
cause be and the same is hereby remanded to the said circuit court,
with directions to dismiss the libel, with costs in that court.