Where a towboat was descending the Mississippi River with a
vessel fastened to each side and another at the stern, and a
collision ensued between one of the vessels thus lashed and an
ocean steamer ascending the river, the evidence shows that the
latter was in fault, and must pay for all the damage.
On the night of the 5th November, 1852, a collision occurred at
about midnight in the Mississippi River, at a point about twenty
miles below the City of New Orleans, between the steamship
Crescent City and the ship
Ocean Queen, then in
tow of the steam towboat
Star. The
Crescent City
was at the time ascending the river, bound for New Orleans. The
towboat
Star was descending the river, having in tow, on
her starboard side, the ship
Charles and Jane, on her
larboard side the ship
Ocean Queen, and astern the brig
Telegraph. The ships on either side of the towboat were
firmly lashed to the latter, their bows projecting some distance
beyond those of the towboat -- the brig was about forty fathoms
astern. The effect of the collision was to cause damage to both the
colliding vessels -- and to the ship
Ocean Queen to such
an extent as to compel her to return to New Orleans, take out her
cargo, and there undergo extensive repairs.
The owners of the
Ocean Queen libeled both the towboat
Star and the steamship
Crescent City. The owners
of the
Crescent City libeled the
Ocean Queen and
the towboat
Star to recover the damages they had
sustained. The owners of the towboat
Star libeled the
steamship
Crescent City for the damages she sustained in
the collision.
The cases were by consent consolidated and tried together.
The cause having been brought to a hearing before the Hon. T. H.
McCaleb, judge of the district court, on the 4th March, 1854, he
pronounced a decree declaring that the collision was attributable
to the improper position in the river and the bad management of the
towboat
Star, and he ordered a reference to a commissioner
to ascertain and report the amount of damage sustained by the
Ocean Queen.
Page 61 U. S. 544
On the 18th May, 1854, the report of the commissioner was
confirmed and a decree was made in favor of the owners of the
Ocean Queen against the stipulators of the towboat
Star for $19,465.79, with interest from the 10th January,
1953, and costs.
The libel against the
Crescent City was dismissed, with
costs.
On the 25th May, 1852, the Ocean Towboat Company appealed to the
circuit court from the decree in favor of the owners of the
Ocean Queen.
On the 8th June, 1854, the owners of the
Ocean Queen
appealed to the circuit court, from that part of the decree of the
18th May which dismissed the libel against the
Crescent
City with costs.
In November, 1854, these appeals were argued before the circuit
court, and on the 18th June, 1855, a decree was made, affirming
that of the court below in favor of the owners of the
Ocean
Queen against the towboat
Star for the aforesaid sum
of $19,465.79, with interest from the 10th January, 1853, and
costs.
It further ordered the United States Mail Steamship Company to
pay the costs of the action of the owners of the
Ocean
Queen against the
Crescent City.
It was referred to a commissioner to ascertain the entire damage
arising from the collision and to apportion it between the United
States Mail Steamship Company, claimant of the
Crescent
City, and the Ocean Towboat Company, claimant of steamboat
Star, according to the admiralty rule where there has been
mutual fault, each company to bear its own costs.
On the 29th of June, 1855, the Ocean Towboat Company appealed to
this Court from this decree.
The owners of the
Ocean Queen appealed to this Court
from so much of the decree of the circuit court as discharged the
owners of the
Crescent City from liability to them.
In November, 1857, the commissioner made his report of the
entire damages occasioned by the collision to the several vessels,
and the parties to the several actions, by their respective
proctors, having filed their written consent to the entry of a
decree confirming the report, on the 21st November, 1857, a final
decree was entered in the said actions in favor of Charles Hill and
others, owners of the
Ocean Queen, against Thomas A. Snow
and Oliver Palmer, managers of the Ocean Towboat Company, and
Oliver Palmer, their surety, the sum of $19,465.79, with interest
at the rate of five percent per annum, and costs of suit.
It further decreed that the Ocean Towboat Company, upon the
payment of the said last-mentioned sum, should recover
Page 61 U. S. 545
from the United States Mail Steamship Company, and Arnold Harris
and Frederick Fisher, their sureties, the sum of $9,732.89, the
one-half of the amount of the damages sustained by the
Ocean
Queen, with interest, at the rate of five percent, and
one-half of the costs of the suit.
There were other points in the decree, which need not be
mentioned.
There were then three appeals pending before this Court,
viz.,
"CHARLES HILL ET AL., IMPLEADED WITH THE STEAMSHIP CRESCENT
CITY"
"ads."
"OCEAN TOW-BOAT COMPANY"
"CHARLES HILL ET AL."
"v."
"THE UNITED STATES MAIL STEAMSHIP COMPANY."
"CHARLES HILL ET AL."
"ads."
"THE UNITED STATES STEAMSHIP COMPANY"
The cases were finally narrowed down to the one which is at the
caption of this report.
The arguments upon both sides were chiefly drawn from the
evidence in the case, which was somewhat contradictory. A summary
of that portion of it upon which the judgment was based, will be
found in the opinion of the Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
Hill and others, as claimants, in their libel, state that the
Ocean Queen, being duly enrolled, registered, and
equipped, left the port of New Orleans on a voyage to Liverpool,
England, having a cargo of about 2,780 bales of cotton; that on the
5th of November, 1852, about half past nine o'clock, P.M., under
the tow of the towboat
Star on the larboard side, the ship
Charles and Jane on the starboard, and a brig in tow
astern, were proceeding down the River Mississippi for the Balize,
that at about midnight on the same evening, twenty miles below New
Orleans, the steamship
Crescent City, then ascending the
river, came in collision with the
Ocean Queen on her
larboard bow, cutting her to the bends, breaking her planking,
timbers, and knees, and so injured the ship as to
Page 61 U. S. 546
disable her from the prosecution of her voyage, and compelled
her to return to New Orleans to refit, and that the costs of
repairs and expenses amounted to the sum of twenty-five thousand
dollars, and a lien on the
Crescent City and the
Star, for the above sum, is jointly and severally
claimed.
The answer of the United States Mail Steamship Company, a body
corporate, owner, says, the
Crescent City was ascending
the Mississippi River to the port of New Orleans, and was at a
point in the river just below the English Turn, when, at about
midnight, the pilot and crew discovered a towboat, which proved to
be the
Star, with the
Ocean Queen and two other
vessels, a short distance in front and close to the eastern bank of
the river; that there was not sufficient room to pass between the
tow and the bank; that the towboat and her tow were out of the
usual course of vessels descending the river, and that the
Crescent City was in her proper position; that the
Ocean Queen had not a light set in her rigging or
elsewhere visible to those on board the
Crescent City;
that the towboat failed to ring her bell or stop her engines and
float, in the manner pointed out by law; that the
Crescent
City had slowed her engines on approaching the towboat, and
receiving no signal that she was descending the river, put the helm
of the
Crescent City to the starboard, so as to pass
outside of and clear of the
Star and her tow; that she was
heading to the western bank of the river, and as they approached
her the
Crescent City stopped her engines, and then
backed, and was backing when the
Ocean Queen and the
towboat
Star ran into the starboard bow of the
Crescent City, striking her about twelve feet from her
stern and causing great damage.
That the pilot, officers, and crew of the
Crescent City
managed their boat with great case and skill; that the collision
was caused by negligence and want of care of the towboat
Star and the
Ocean Queen in not keeping their
proper position on the river, in not ringing their bell &c.
The answer of the Towboat Company to the libel was filed,
denying the allegations it contained and charging the fault on the
Crescent City.
As the decision of the Court must be governed by the evidence,
it is not important to refer to the other pleadings in the
case.
David Kelly, a witness, after describing the towboat and the
other vessels fastened to her as stated in the libel, said when
they started from New Orleans, the
Ocean Queen had one of
her own men at the helm; afterwards the
Star sent a man
who took charge of it. They proceeded down the river, as near the
middle as possible. In about an hour, one of the
Page 61 U. S. 547
men from the towboat
Star came on board and set the
wheel again. They continued about the middle of the river until
twelve o'clock at night. At this time the witness was on the
lookout, when he saw the
Crescent City ascending the river
at a great distance. The tow was about the middle of the river, a
little nearer the western than the eastern shore. The night was
clear, so that one could see all over the river. Witness stood on
the forecastle, forward, waiting for the
Crescent City,
supposing that she would keep clear of them, as there was plenty of
room on the larboard side; but she approached so near that witness
hailed her, and the towboat stopped her engines and rang her bell,
but to no purpose; the
Crescent City did not alter her
course; she came so close that witness could see all over her
forecastle forward, where her lookout should have been, but he saw
no one on the lookout. He staid in his position until the
Crescent City struck the ship
Ocean Queen on her
larboard bow. Witness then jumped off the forecastle and ran aft,
but returned in a few minutes and saw for the first time one or two
men on the forecastle of the
Crescent City. She struck the
Ocean Queen on her larboard bow, and stove everything in
forward; carried away the larboard cathead entirely, so that the
anchor went down the full length of the chain, and parted all the
fastenings of the
Ocean Queen to the towboat, carried away
the guards of the
Star, and bent her smoke pipe. The
towboat brought the
Ocean Queen back to the city. The
witness was the only person on watch on the
Ocean Queen.
There were no lights hung out on the vessel, but he supposes her
lights in the cabin must have been visible through the windows.
Witness knew the river well; took particular notice, and is
confident, when the
Crescent City approached the tow, it
was about the middle of the river. The
Star did not alter
her course. When he first saw the
Crescent City, she was
about half a mile distant; when he first hailed her, she was about
four or five times her length from the tow. Witness thinks when the
Crescent City struck she was going ahead fast. The towboat
Star stopped her engine and rang her bell; her light hung
between the smoke pipe and her forward fires.
John Marston was standing on the deck of the
Ocean
Queen when he first saw the
Crescent City; she was
about five times her length off. The night was clear, and her could
distinctly see both stores. The towboat was heading down the river,
as near the middle of it as possible. She was running about seven
knots an hour; he thinks the
Crescent City was running
some eight or ten knots an hour when she struck the
Ocean
Queen. There were two signal lights on the
Star.
Page 61 U. S. 548
Henry Crowell, a witness, was on the deck of the
Ocean
Queen; saw the
Crescent City half a mile off; as she
approached, he hailed her. The tow was in the middle of the river,
rather nearer to the western than the eastern shore; of this he is
confident. Richard Matthews was master of the
Ocean Queen.
The night was clear and starlight; could see both shores. The
Ocean Queen was nearer the western than the eastern shore.
Soon after the collision, she drifted to the western shore.
Henry J. Whitney was master of the towboat; he has been engaged
in that business eight or ten years; heard the bell ring; came
immediately on deck; ran aft, and directed the hawser of the brig
to be let go in order that he might back. The tug was near the
middle of the river, nearest to the western shore. He is positive
as to this fact.
Witness has heard Captains Disney, Chapman, Brown, Laplace,
Phillips, and others, say that Captain Foote, the pilot of the
Crescent City, is not considered as a pilot, and
especially among masters of towboats. Peter Curran was pilot of the
Star, and on duty when the collision occurred. The
Star had her full complement of men; was nearer to the
western than the eastern shore. On seeing the
Crescent
City coming, he rang the bell to stop the engines; then rang
the big bell hard, three or four times. The crescent city seemed to
come towards them, on the larboard side, till she got nearly
abreast the ship's bow; then she hauled, as witness thought, nearly
square across, until she hit the ship between the cathead and the
stern and hove her over on the guards of the towboat, which were
broken. The bow of the
Ocean Queen was a little ahead of
the towboat. Witness watched the lights of the
Crescent
City when she turned her bow westward. At that time, she was
about a mile and a half from the tow. She appeared to be heading
all the time westward, till she came abreast of the
Ocean
Queen, when she seemed to turn suddenly, as if she had her
helm hard a-starboard to turn towards the western shore.
Asa Payson corroborates the above witnesses as to the tow being
in the middle of the river and the direction taken by the
Crescent City across the river.
Foote, the pilot of the
Crescent City, says he was
ascending the river as near the eastern bank as it was prudent and
usual to run. He described the towboat, being on the lookout, from
the top of the pilot house; there was a man on the watch forward,
Mr. Ranshaw, and also one on the deck. When he first saw the light,
it was about a point on his port bow. He told the man at the helm
there was a tow ahead, and to keep close
Page 61 U. S. 549
in to the eastern bank, for that was his position. As he
approached the tow, an order to slow the engines was given, and at
the same time witness said there was a tow ahead, either bound up
or at anchor. The engines were slowed. The wheelsman said he could
see no opening between the tow and the shore. Witness then directed
him to put his helm to the starboard, and go outside of the tow. As
soon as witness perceived the tow was descending the river, the
engines were ordered to be stopped and backed. This order was
obeyed, but it did not prevent the collision. The
Crescent
City was not going with force when the collision occurred.
Captain Davenport appeared just after the collision, when the bows
of the boats were still together. This was, he thinks, about twice
the length of the boat from the eastern bank. He is confident, when
he first saw the tow, it was not in the middle of the river. If he
could have been between the tow and the eastern shore, he should
have kept near the store; but not seeing an opening, he took a
western direction, which was his proper course.
Several witnesses were examined who were on board the
Crescent City, all of whom, more or less, corroborated the
impression of the pilot, that they were very near the eastern shore
and that between the tow and that shore there was not room for the
Crescent City to pass.
From what has been stated in the pleadings and testimony, it
will be seen that in this, as in other cases of collision, the
theories of the respective parties are in conflict. Both cannot be
true, and if either be so to the extent claimed, the right and the
wrong are established.
The claimants allege that the
Ocean Queen in charge of
the steam towboat
Star, with two other vessels, was
descending the River Mississippi, about twenty miles below New
Orleans, being near the middle of the river, rather nearer to the
western than the eastern bank, was run into by the
Crescent
City, and injured as described.
Some eight or ten witnesses called in behalf of the claimants --
some of them experienced pilots and well acquainted with the river
-- being on board the
Star towboat or one of the boats
fastened to it, and several of them witnessed the collision, a part
of whose testimony is above stated, and they all conduce to
establish the allegations in the libel. They show that the towboat
was in her proper course in the middle of the river, or rather
nearer to the western than the eastern shore, and this all the
witnesses admit was the usual and proper course. They also show
that the
Star had lights, and that there was no want of
care in her management. Her course down the middle of the river was
continued, and on the approach of the
Page 61 U. S. 550
Crescent City so as to threaten a collision, the hawser
which fastened the brig to the stern was thrown off so that the
towboat might back; the engines were stopped, and the approaching
boat was hailed, the bells rang, and the
Star was inclined
still further to the western shore. More than this could not be
done nor required of the towboat with her towage. Being in her
right position, the
Star had no reason to apprehend a
collision until the danger became imminent. And when this was
apparent, nothing more could be done by the towboat than was done.
It would be a strange rule of navigation to require a boat
descending in the middle of a river more than twenty-four hundred
feet in width to keep out of the way of a vessel ascending the
river close to the shore, a thousand feet from the descending boat,
which should change its course to a direction across the river, out
of its proper course, and with the view of crossing the bow of the
descending boat. No stronger case could be put or imagined to show
fault in the ascending boat.
The theory of the
Crescent City is unreasonable, and is
unsustained by the evidence. It was ascending, as alleged, the
eastern shore of the river, as near to it as could safely be
navigated, until the light of the towboat was discovered, which was
directly ahead, and so close to the shore as not to give room for
the ascending boat to pass between it and the shore. This is untrue
if the facts be true as to the position of the towboat.
The position of the towboat is proved by experienced pilots and
river men, well acquainted with the river for many years, and whose
character for truth has not been questioned. They say that they
could see both shores, and that from their knowledge of the river
they cannot be mistaken.
To counteract this proof there is nothing but the statements of
the pilot of the
Crescent City, who is proved to be
ignorant and incompetent, and two or three witnesses on board that
vessel, who were not shown to have a knowledge of the river. The
pilot directed the helm to the starboard, with the view of passing
the tow on the western side. And this course was continued until
the collision occurred by striking the larboard bow of the
Ocean Queen. This bow was a little in advance of the
Star.
Whilst one or two of the witnesses speak favorably of Foote, the
pilot, the greater number speak of him as ignorant of his duties
and not fit for a pilot. And in addition to this, it seems he was
not acquainted with the river. This is shown to some extent, as he
seems to have relied more on the opinion of the man at the helm,
than on his own knowledge and judgment.
Page 61 U. S. 551
The place of collision, as appears from a survey of the river,
is 2,420 feet wide, and if the tow was in the middle of the river,
there were twelve hundred and ten feet between the tow and the
eastern shore, which afforded room for three vessels to pass
abreast of the capacity of the
Crescent City.
The statement of Foote is conclusive against his theory. He
starboarded his helm to pass the western side of the tow. His
approach was seen by those on board the
Star and the other
vessels connected with her some time, and preparations were made to
avoid the collision. This shows that Foote was mistaken as to the
position of the tow, and this mistake was fatal. Whether it
resulted from his ignorance of the course of the river or of his
duties as a pilot, or from both, is immaterial. It shows that the
Crescent City was in fault as the colliding vessel.
It is alleged that the
Ocean Queen had no lights, and
that on the approach of the
Crescent City the
Star did not stop her engines and float, as the statute of
Louisiana requires of the descending boat. The
Ocean Queen
was passive, following in the two of the
Star; her lights
were not required to be hung out. The towboat
Star was
responsible for her safe navigation, so far as skill and knowledge
of the river were concerned, but it was not responsible for the
wrongs of other boats which could not reasonably be avoided.
The statute of Louisiana referred to, we think, is not in the
case from the facts proved, its requirements could have had no
application.
The
Ocean Queen was bound to a foreign country; the
Crescent City was carrying on an intercourse between New
Orleans and the Atlantic states. The agency of the towboat did not
change the character of the commerce in which the vessels were
engaged. The
Ocean Queen was propelled by steam, and
whether the power be located in the tug or in the ship can be of
little or no importance. It was subject to the admiralty
jurisdiction, and to the rules applied to vessels having the same
motive power.
The circuit court decreed against the Towboat Company
in
solido, the sum of $19,465.79 damages, with interest thereon
at the rate of five percent per annum from the 10th of January,
1853, till paid, and costs of suit, and that the Towboat Company,
upon the payment of the above sum, shall have and recover from the
Mail Steamship Company &c., $9,732.89, the one-half of the sum
decreed as above.
In this decree we think there is error. The towboat was not in
fault. Her equipments and crew were such as the law required and
the usage of the service. In nothing did the
Page 61 U. S. 552
towboat fail which in the least conduced to the disaster. The
Crescent City was wholly in fault, and the decree for the
damages suffered by the
Ocean Queen should have been
against the colliding boat. The decree of the circuit court is
therefore
Reversed, and the cause is remanded to that court with
directions to enter a decree for the above damage against the Mail
Steamship Company, their sureties &c., and also the sum of two
hundred and eight dollars and ninety-seven cents for the damage
done to the towboat, and also for costs.