Where a steamer ran down and sunk a schooner which was at anchor
in a dark and rainy night, the schooner was to blame for having no
light, which, at the time of collision, had been temporarily
removed for the purpose of being cleansed.
But inasmuch as the schooner was in a place much frequented as a
harbor in stormy weather, and of which the steamer was chargeable
with knowledge, it was the duty of the steamer to slacken her speed
on such a night, if not to have avoided the place altogether, which
could easily have been done.
The fact that the steamer carried the U.S. mail is no excuse for
her proceeding at such a rapid rate.
The case must therefore be remanded to the circuit court to
apportion the loss.
Where the decree was for a less sum than two thousand dollars,
the appeal must be dismissed for want of jurisdiction.
This was a case of collision under the circumstances stated in
the opinion of the Court.
Page 60 U. S. 109
MR. JUSTICE NELSON delivered the opinion of the Court.
The libel was filed in the district court to recover the value
of a quantity of merchandise on board the schooner
Ella,
which was sunk in a collision with the steamer on Lake Borgne, some
six or eight miles east of the lightship in Pass Mary Ann, while at
anchor on the night of the 5th February, 1853. The district court
rendered a decree charging the steamer with the loss.
On an appeal, the circuit court reversed the decree and
dismissed the libel on the ground that the schooner was in fault in
not having a light in the fore-rigging or in any other conspicuous
place on the vessel to give notice of her position to the
approaching steamer.
The night was dark and rainy, and the wind blowing fresh from
north-northwest. A proper light had been hung in the fore-rigging
early in the evening, and kept there till near the
Page 60 U. S. 110
time of the collision, which happened about half-past eleven
o'clock. One of the hands had taken the lamp down to wipe off the
water that had collected upon the glass globe, so that it might
shine brighter. While he was standing midships, wiping the lamp, he
heard the approach of the steamer, and immediately placed it on the
top of the cook house. The collision soon after occurred. The fault
lies in removing the lamp for a moment from the fore-rigging to
midships. If it was not practicable to wipe it in the rigging,
another light should have been placed there on its removal. The
time of the removal may be, as happened in this case, the instant
when the presence of the light was most needed to give warning to
the vessel approaching. All the hands examined who were on board
the steamer deny that they saw any light at the time on the
schooner.
We agree, therefore, with the court below, that the schooner was
in fault.
But it is insisted on the part of the appellants that the
steamer was also in fault on account of her rate of speed at the
time, regard being had to the darkness of the night and the
character of the channel she was navigating. The schooner, on
coming out of the Pass Mary Ann towards evening met a strong
headwind and swell of the lake, and after pursuing her course some
four or five miles, anchored under Cat Island. There were several
other vessels at anchor at the time in that vicinity.
Some of the witnesses state that the place is used as a harbor
for schooners and other vessels navigating the lake in rough
weather, as it is somewhat sheltered from the winds, and the number
of vessels at anchor in the neighborhood at the time of the
collision would seem to confirm this statement, and there is no
evidence in the case to the contrary.
There is conflicting evidence on a point made by the appellant
that the steamer was out of the direct and usual course of steamers
from Pass Mary Ann to Mobile. The weight of it is that this course
was a mile and a half or two miles north of the place where the
schooner lay. But we do not attach much influence to this fact, as
in the open lake there was no very fixed track of these vessels
within the limit mentioned.
There is also some little discrepancy of the witnesses as to the
darkness of the night. But the clear weight of it is that at the
time of the collision, it was very dark and rainy, and the wind
blowing fresh.
The witnesses on the part of the steamer are very explicit on
this part of the case. The pilot says the night was very dark and
drizzling rain. The captain that the night was
Page 60 U. S. 111
dark and cloudy, and the wind blowing briskly. The engineer that
the night was so dark a vessel of the size of the schooner could
not be seen at all till upon her, without a light, and yet he says
there was nothing in the weather to prevent her running at her
usual speed.
The steamer was going, at the time of the collision, at the rate
of from nine to ten miles an hour. The pilot says at her usual rate
of speed, or at the rate of eight or nine knots. The engineer, not
exceeding the usual rate of speed, which, it appears, averages
about ten miles. The mate states that the speed at the time was
between ten and eleven miles.
Now considering the darkness of the night and state of the
weather, and that the steamer was navigating a channel where she
was accustomed to meet sailing vessels engaged in the coasting
trade between Mobile and New Orleans and the intermediate ports, we
cannot resist the conclusion that the rate of speed above stated
was too great for prudent and safe navigation, and this whether we
regard the security of the passengers on board of her or the
reasonable protection of other vessels navigating the same channel,
and especially under the circumstances of this case, in which she
was bound to know that the place where this schooner lay was a
place to which vessels in rough and unpropitious weather,
navigating this channel, were accustomed to resort for safety. The
case presented is much stronger against the steamer than that of
casually meeting the schooner in the open waters of the lake. She
was at anchor with other vessels in an accustomed place of security
and protection against adverse winds and weather, familiar to all
persons engaged in navigating these waters. The place and weather
therefore should have admonished the steamer to extreme care and
caution, and it is perhaps not too much to say, should have led to
the adoption of a course that would have avoided the locality
altogether. The weight of the evidence is, even if she had pursued
the most direct course from Pass Mary Ann to Mobile, it would have
had this effect -- she would have passed north of this cluster of
vessels anchored under the shelter of the island.
Neither is it at all improbable, if the speed of the steamer had
been slackened and she had been moving at a reduced rate with the
care and caution required by the state of the weather, that she
would have seen the light on the schooner in time to have avoided
her. The proof is full that there was a light on board from the
time she cast anchor till the happening of the disaster. But at the
critical moment it was in the hand of the seaman at midships
instead of at a conspicuous place in the rigging. The light must
have been in some degree
Page 60 U. S. 112
visible, as all the sails of the vessel were furled and was
placed on the top of the cook house as soon as the wet and moisture
were wiped from the glass.
The admiralty in England has repeatedly condemned vessels
holding a rate of speed in a dark night under circumstances like
the present, and so did this Court in the case of
The
Steamer New Jersey, 10 How. 568;
The Rose,
2 Wm.Rob. 1;
The Virgil, ib., 201.
It has been urged, on behalf of the steamer that she carried the
mail, and that a given rate of speed was necessary in order to
fulfill her contract with the government.
This defense has been urged in similar and analogous cases in
England, but has been disregarded, and indeed must be unless we
regard the interest and convenience of the arrival of an early mail
more important than the reasonable protection of the lives and
property of our citizens.
Having arrived at the conclusion that the steamer was in fault,
the case is one for the apportionment of the loss.
The decree must therefore be reversed, and the case remitted
to the court below, for the purpose of carrying this apportionment
into effect.