Where a decree in admiralty was rendered in the circuit court
upon an appeal from the district court, said decree being given
pro forma because the presiding judge had been of counsel
for one of the parties, this Court has jurisdiction to try and
determine the case.
Where a collision took place in the Bay of Mobile between a
schooner and a steamer, the latter was in fault.
The rule of this Court is when a steamer approaches a sailing
vessel, the steamer is required to exercise the necessary
precaution to avoid a collision, and if this be not done,
prima
facie the steamer is chargeable with fault.
Whether this rule be regarded or the weight of the testimony,
the steamer must, in the present case, be considered in the
wrong.
In the first case, a libel was filed in the District Court of
the United States for the Southern District of Alabama claiming
damages resulting from a collision between the schooner
William
Ozman and the steamer
Oregon in the Bay of Mobile on
the 8th of September, 1849, whereby one hundred and forty bales of
cotton on board said schooner were injured and in part
destroyed.
In the second, a like libel was filed by Turner and Twiford as
the owners of the schooner, claiming damages for injuries done to
the vessel.
In January, 1851, the district judge decreed in favor of the
libellants in the first-named case for $6,599.64 and in the second
for $1,989.47.
From these decrees the owners of the steamer appealed to the
circuit court.
On the 21st of April, 1855, the circuit court passed an order in
each case reciting that
"the said cause being submitted to the court, a decree is
rendered
pro forma, the presiding judge having been of
counsel for the defendants, affirming the judgment that was
rendered in this case,"
namely &c.
An appeal from these decrees brought the cases up to this
Court.
The attention of the Court having been called to this state of
affairs, after consultation, the following order was passed in each
case.
"
Order"
"It is now here considered by the Court that although it appears
from the record that the decree of the circuit court in this
cause
Page 59 U. S. 571
was entered
pro forma, yet that this Court has
jurisdiction to try and determine the case. Whereupon it is now
here ordered by the Court that this cause be and the same is hereby
set down for argument next after the case fixed for today."
Dissenting Justices, DANIEL and CATRON.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The first case is an appeal from the decree of the circuit court
for damages resulting from a collision between the schooner
William Ozman and the steamer
Oregon in the Bay
of Mobile on the 8th of September, 1849, whereby one hundred and
forty bales of cotton on board said schooner, alleged to belong to
the appellees, were injured and in part destroyed.
A similar libel was filed by the appellees as the owners of the
schooner, claiming damages for the injuries done to the vessel. The
libels are substantially the same, and they both rest on the same
evidence.
The collision took place in the Bay of Mobile, where it is
eleven miles wide and sufficient depth of water for the navigation
of vessels. The schooner was sailing down the bay before the wind
at the rate of six miles an hour. The
Oregon was on her
passage from New Orleans to Mobile, and was running at the rate of
eight miles per hour. It was a starlight night, and the moon also
shone. The collision occurred before daylight, but the vessels in
approaching each other were seen from a mile and a half to two
miles. Under such circumstances, it is extraordinary that they
should come in contact.
The witnesses on board
The Oregon say that as the
vessels approached each other, the schooner suddenly changed her
course, which caused the collision, whilst the witnesses on board
the schooner state it was occasioned by a change of her course by
the steamer. In such a conflict of testimony, where the vessels
were both steamers or sailing vessels and there were no leading
facts for discrimination, fault would be chargeable to both
vessels. But in the case before us, the vessels, in regard to a
collision, occupy a very different relation to each other. The
steamer, having the propelling power, is under the control of her
pilot. Her course may be changed, and her progress checked or
arrested. Having this power to avoid a collision
Page 59 U. S. 572
with a vessel propelled by the wind, she is generally chargeable
with fault when such an occurrence happens. The exception to this
rule must be clearly established, by strong circumstances to excuse
the steamer.
The vessels in question saw each other at the distance of more
than a mile, probably a mile and a half to two miles. The
Oregon was steering near a due north course; the course of
the schooner was south. Both vessels continued their course until
they came within one hundred and fifty yards of each other. As
evidence that the steamer changed her course, the fact is relied on
that the schooner ran into the steamer a little forward of midships
with her bow. This result might possibly have followed a change of
course by the schooner. But as the movement of the steamer was more
rapid than the schooner, such an occurrence would not be so likely
to happen as an attempt by the steamboat to pass the bow of the
schooner.
Several experts were examined on both sides to show that the
theory of each is wrong judging from the injury received by
The
Oregon. The witnesses give their opinions without reserve on
this subject. We derive but little light from this part of the
examination.
In
St. John v.
Paine, 10 How. 557, this Court said:
"As a general rule, therefore, when meeting a sailing vessel,
whether close-hauled or with the wind free, the latter has a right
to keep her course, and it is the duty of the steamer to adopt such
precautions as will avoid her."
Practically, when a rule for this purpose is laid down, it is
rendered ineffectual by admitting exceptions to it. The mind begins
to waver as soon as the danger arises, and the exception, rather
than the rule, becomes a subject of solicitude with the masters of
both boats, and this practically annuls the rule, and causes the
movements of both vessels to be uncertain. If the rule were
absolute, and an insuperable difficulty should prevent one of the
boats from observing it, it would be safer and better to slow the
vessel or stop it until the danger shall be past. This would occur
so seldom as to be inappreciable when compared to the safety it
would secure. The rule adopted by the Trinity masters and
sanctioned by this Court is the safe one, that when two vessels on
opposite tacks are approaching each other, each should turn to the
right, passing each other on the larboard side. This rule is too
simple to be misunderstood, and if observed, collisions would not
occur between moving boats, whether propelled by sails or steam.
The rule once established, every deviation from it should be
chargeable as a fault.
The rule of this Court is when a steamer approaches a sailing
vessel, the steamer is required to exercise the necessary
precaution
Page 59 U. S. 573
to avoid a collision, and if this be not done,
prima
facie the steamer is chargeable with fault. Whether this rule
be regarded or the weight of the testimony, we think in the present
case
The Oregon was in the wrong. The decrees of the
circuit court are therefore
Affirmed.
MR. JUSTICE CATRON and MR. JUSTICE DANIEL dissented.
MR. JUSTICE DANIEL.
I am constrained by a sense of duty to differ with the Court in
its determination to take cognizance of these causes.
It is my deliberate opinion that these causes, in the form in
which they are presented to our consideration, fall within no one
of the categories, either in the Constitution or the laws of the
United States, by which the jurisdiction of this Court or that of
the circuit courts, have been conferred or prescribed.
The first thing to be observed with reference to these cases is
the fact that they are cases in which confessedly no decision has
been made, no opinion formed or expressed, nor any judicial action
had by the circuit court, in which the judges by their certificate
declare that they have forborne to mature or declare any judgment
upon their character, and which they have sent to this Court in
effect to be moulded and settled
ab origine by this
Court.
The true inquiry as to such a proceeding is can this be done in
conformity with the letter, the spirit, or the beneficial ends and
design of the Constitution and laws?
In Article III, sec. 2, of the Constitution, the jurisdiction of
this Court, both original and appellate, is defined. The former is
limited to cases affecting ambassadors, other public ministers, and
consuls. In all the other cases enumerated in this article, the
jurisdiction of this Court is appellate.
To my mind it would involve a solecism too gross for a moment's
consideration to suppose that by any distortion, the language or
objects of this article of the Constitution could be so interpreted
as to invest this Court with an appellate power over its own
decisions, and yet it is not less an extravagance and a solecism to
contend that this Court can by any direct or indirect agency, shape
the original decision of any and every case which may be pending in
a circuit court, and then recall such decision into this forum for
a mere reiteration of what they had already determined and done
under the mere show of an appellate or revising jurisdiction. The
framers of the Constitution too well understood the nature of human
frailty, the influence of prepossession or vanity to believe that
by such a proceeding either wisdom or impartiality or the safety of
private right would be promoted.
Page 59 U. S. 574
They have authorized no such proceeding, and the expositions of
the Constitution given in the organization of the courts by the
acts of Congress, conclusively show the conviction of the
legislature as to the importance of restricting the several courts
to that sphere within which their functions could be exercised
wisely, impartially, and without the danger of bias or disturbance
from foregone conclusions.
Thus, in the "act to establish the judicial courts of the United
States," it is provided by the 22d section of that act that final
judgments and decrees in civil actions and suits in equity in a
circuit court, may be reexamined and reversed or affirmed in the
Supreme Court.
In the construction of this section, the inquiry first suggests
itself what is it which the act of Congress permits to be affirmed
or reversed? The answer is a judgment or decree. What is a judgment
or decree? It is an act or conclusion of the mind, founded upon a
view of all the facts and circumstances surrounding the subject as
to which that conclusion is formed, and it is to be a final
judgment, showing still more clearly that all the facts and
circumstances have been weighed and appreciated. Such a judgment,
it is provided by the statute, may be reexamined by this Court. Can
it be rationally contended that such a judgment as the statute
describes can be affirmed of a proceeding which on its face
declares that no conclusion upon any fact or circumstance, nor on
any question of law connected with it, has been formed? That all
that has occurred is a mere formality, and nothing more, and has
been adopted expressly to avoid a judgment. How can that be said to
be reexamined as to which it is admitted there has been no previous
examination?
Turning in the next place to the law by which divisions of
opinion are authorized to be certified to this Court, we find the
language of the law to be thus. Act of April 29, 1802, ยง 6, 2 Stat.
159,
"That whenever any question shall occur before a circuit court
upon which the opinions of the judges shall be opposed, the point
upon which the disagreement shall happen shall, during the same
term, upon the request of either party or their counsel, be stated
under the direction of the judges, and certified under the seal of
the court to the Supreme Court."
Here, then, is the sole authority by which certificates of
division in opinion are permitted or directed, and what does that
authority explicitly require? That there shall be pending in the
circuit court a question or questions upon which the opinions of
the judges shall be opposed, that there must be a disagreement
between the judges, and that only the point upon which such
disagreement shall happen shall be certified. Can language be
possibly plainer than this? I will not so far offend against
common
Page 59 U. S. 575
sense as to attempt an argument to show that opposition in
opinion or disagreement has not existed between persons as to a
matter with reference to which they have formed or expressed no
opinion whatsoever and with regard to which they declare that such
is the truth of the case.
The cases before us comprise no one requisite prescribed by the
Constitution and act of Congress. Let us for an instant look to the
consequences likely to ensue -- which indeed must inevitably ensue
-- from the doctrine now promulgated from this Court. There are at
this time, it is believed, thirty-one states in this Union, besides
several territories; and of these territories it has been recently
stated on the floor of Congress there is space sufficient for the
formation of sixty additional states. In a majority of the existing
states there have been created more than one district court
invested with circuit court jurisdiction. If this privilege of
forcing upon the Supreme Court the original decision of causes
instituted in the circuit courts be legitimate, it appertains to
every court possessing circuit court jurisdiction existing in the
states already members of the confederacy, and must appertain
equally to any number however augmented. It cannot be extended to a
portion of the courts and denied to the residue.
To those who already feel the burden of the litigation of this
extended country, when restricted within the narrowest limits
prescribed by the Constitution and laws, it need not be shown what
are to be the effects of throwing upon them the entire mass of
circuit court duty and cognizance; but beyond those who more
immediately experience those effects, it becomes a subject of
gravest reflection to everyone interested in the regular and
effectual administration of the law in the federal courts.
But it has been said that the practice sanctioned by the
decision in this case is warranted by the authority of precedent in
this Court. It is undeniably true that instances like the present,
without having their nature or tendencies brought by argument to
the test of examination, have several times occurred. But can the
simple fact that such instances have occurred affect their
justification in violation of the Constitution and law, and to the
absolute destruction of everything like efficiency in the federal
courts?
I am fully impressed with the importance of precedent, and would
never attempt to impair its influence within the sphere of its
legitimate authority, but I can never yield to it my support, much
less implicit obedience, when invoked for the purpose either of
introducing or of hallowing abuses. If the mere existence or the
prevalence of these can impart to them either authority or
sanctity, the cause of justice or morals would indeed be desperate;
there could never be reformation. There has perhaps
Page 59 U. S. 576
never been a time in which many abuses in politics, law, morals,
and religion have not obtained currency; indeed, the human
imagination can hardly picture an error, a folly, a vice, or a
crime which has not had its prototype. But the decision cannot
invoke the weight or authority of established precedent in its
support. On the contrary, the more recent and well considered cases
determined by this tribunal are in direct opposition thereto.
Without entering upon them at large, the cases of
White v.
Turk, 12 Pet. 238; of
United
States v. Stone, 14 Pet. 524; of
Nesmith v.
Sheldon, 6 How. 41; and of
Webster v.
Cooper, 10 How. 54, are confidently appealed to in
support of this position. These cases, so well considered and so
recently ruled, are now in effect reversed for the purpose of
reviving a practice unauthorized by the Constitution or by the
legislation of Congress -- a practice necessarily fruitful of great
mischief.
I object, in fine, to the decision in this case because to me it
seems calculated to impair, if not to destroy, that satisfaction
and confidence which it is so desirable should everywhere prevail
with reference to the proceedings of this tribunal.
With private persons, or in governments, or in public bodies of
any description there is no experiment or course of action more
pregnant with danger than is the exercise or the effort to exercise
forbidden or even doubtful powers. Such an assumption rarely fails
to react or to operate reflectively upon those by whom it is
essayed -- never indeed except in instances in which it can be
sustained by a power absolute and irresponsible enough to repress
opposition or to silence the expression of public sentiment. In
such instances, but in those only, the act or the attempt can be
safe. But under our system of polity, no immunity was ever
designed, much less has one been provided for anything of this
kind. With whatever deference and to whatever extent, therefore,
the opinions of this tribunal may be recognized, and by no one will
they within their proper bounds be maintained with truer loyalty
than by myself, yet when challenged to obedience to those opinions,
I am bound to remember that the Constitution is above all and over
all, and that public opinion conveyed through its legitimate
channel, the legislation of the country, will cause itself to be
heard and respected.