In a collision between a sailing vessel and a steamer which took
place at sea near the shore of Long Island, where the course of the
sailing vessel was converging to the track of the steamer, the
sailing vessel being then close-hauled upon the wind, the evidence
shows that the steamer was in fault.
The sailing vessel did not change her course, and her whole
company, including the master and mate, were on deck.
The rules of navigation are obligatory upon vessels approaching
each other from the time the necessity for precaution begins, and
continue to be applicable as the vessels advance, so long as the
means and opportunity to avoid the danger remain.
These rules require sailing vessels, when approaching a steamer,
to keep their course, and steamers under such circumstances, as a
general rule, are required to keep out of the way.
Under this rule, the steamer must of necessity determine for
herself, and upon her own responsibility, independently of the
sailing vessel, whether it is safer to go to the right or left or
to stop, and in order that she may not be deprived of the means of
determining the matter wisely, it is required that the sailing
vessel shall keep her course and allow the steamer to pass either
on the right or left, or to adopt such measures of precaution as
she may deem best suited to enable her to perform her duty and
fulfill the requirement of the law to keep out of the way.
Exceptional cases may be imagined, and where the rule could not
be followed without defeating the end for which it was established
or without producing the mischief which it was the design of the
rule to avert, of course it would not be applicable, and in such a
case a departure from it would be both justifiable and
commendable.
But this not being such a case, the steamer must be responsible
for the loss occasioned by the collision.
The cases decided by this Court referred to.
The case is fully stated in the opinion of the court.
Page 62 U. S. 374
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This is an appeal in admiralty, from a decree of the Circuit
Court of the United States for the Southern District of New York in
a cause of collision, civil and maritime. It was commenced in the
district court on the twenty-fourth day of September, 1851, by the
appellee in behalf of himself and the other owners of the brig
Alfaretta. According to the case made in the libel, the
Alfaretta sailed from Millbridge, in the State of Maine,
on the tenth day of August, 1851, fully laden with lumber on
freight and bound on a voyage to the port of New York. She was a
tight, stanch, strong vessel of one hundred and sixty-three tons
burden, and in every respect well manned, tackled, appareled, and
appointed, with a competent master and sufficient crew, and was
totally wrecked by the collision which occurred on the sixteenth
day of the same month, without any fault of her officers or crew
and while she was lawfully pursuing her voyage from the place of
departure to her place of destination. At the time of the disaster
she was fifteen or twenty miles off the southern shore of Long
Island, sailing close-hauled on the wind, with her larboard tacks
aboard and all her sails set, and was heading about northwest by
west. While sailing on that course, with a light wind from
southwest by west, her master and crew discerned a light bearing
from them about west half south, which they judged to be the light
of a steamer, and the libellant, who was the master of the
Alfaretta, immediately caused a light to be hoisted in
Page 62 U. S. 375
the fore-rigging of the brig. That vessel proved to be the
steamship
Pacific, and it is alleged that she had such a
large number of lights that the libellant was not able to determine
what direction she was steering, and kept his vessel on her course,
without any deviation until the collision took place. It occurred
between eight and ten o'clock in the evening, as alleged in the
libel, and about fifteen minutes after the light was placed in the
fore-rigging of the brig, when the steamer, with great force and
violence, ran into and struck the brig on her larboard bow, cutting
her down to the water's edge and carrying away her foremast, so
that she filled in a few minutes and became a complete wreck.
On the fourteenth day of October following, the claimants of the
steamer filed their answer to the allegations of the libel. Among
other things not necessary to be noticed, they deny that the
steamer had such a large number of lights at the time referred to
that the libellant was not able to determine what direction she was
steering, and they also deny that the brig kept her course without
any deviation until the collision occurred, or that the steamer ran
into and struck the brig in the manner above stated. Their theory
is, and they accordingly allege, that the steamer started from New
York on the day of the collision on her intended voyage to
Liverpool, well manned and equipped for the voyage and in every
respect seaworthy, and that the lookout of the steamer, who was
stationed at the forecastle, while she was proceeding on the
voyage, between seven and eight o'clock in the evening, the weather
being cloudy and the night dark, the wind southwest by south, and
the steamer steering east half south, with her usual lights
displayed, discovered the light of a vessel about two and a half
points on the starboard bow of the steamer. Whereupon the helm of
the steamer was immediately put to the starboard and she at once
swung off to east-northeast, and at or about the same time her
engines were stopped. That vessel so discovered was the brig
Alfaretta. She was close-hauled on the wind at the time,
and was steering to the westward, as the respondents allege, in a
course nearly parallel to that of the steamer, but instead of
keeping her course, as she should have done,
Page 62 U. S. 376
she suddenly and unexpectedly put her helm to port and kept off,
and came with her bows on to the steamer, striking her a little
forward of her starboard wheel, which passed over the bows of the
brig, cutting her down and damaging the steamer to the amount of
two thousand dollars. And they explicitly allege that if the brig
had kept her course and had not put per helm to port, the collision
would have been avoided. This statement, derived from the
pleadings, exhibits very fully the real nature of the controversy
between the parties, and the grounds assumed on the one side and
the other in the prosecution and defense of the suit. Testimony was
taken on both sides in the district court, and after hearing, a
decree was entered that the libel be dismissed, each party paying
their own costs, and the libellant appealed to the circuit court.
Both parties appeared by counsel in the circuit court, and after a
full hearing it was ordered and adjudged that the decree of the
district court dismissing the libel be in all things reversed and
that the libellant do recover the damages sustained by reason of
the collision, together with costs in both courts, and that the
cause be referred to a commissioner to ascertain and report the
damages. Additional testimony was taken before the commissioner,
who reported that the sum of seven thousand one hundred and seven
dollars and nineteen cents was due to the libellants, to which
report the respondents excepted, and after the hearing upon the
exceptions, the report was confirmed by the court and a decree
entered that the libellant recover the sum reported with costs.
Whereupon a final decree was entered in pursuance of the report,
and the respondents appealed to this Court. Many of the facts and
circumstances attending the disaster, as well as those which
preceded it, are so fully proved that they cannot properly be
regarded as the subject of dispute. As alleged in the libel, the
collision took place in the open sea, on the sixteenth day of
August, 1851, some fifteen or twenty miles off the southern shore
of Long Island. It occurred a little past eight o'clock in the
evening, after the officers in charge of the respective vessels had
been fully apprised of the approaching danger and under
circumstances which make it manifest that it ought to have
Page 62 U. S. 377
been prevented. Both vessels had proper lights at the time and
competent and sufficient lookouts, and it is clearly proved that
the duties of the lookouts were vigilantly and promptly performed.
Lights had not been set on the brig when her lookout first
discerned the light of the steamer from the forward part of the
vessel. One had been prepared, however, and lighted by the steward,
and was in the galley forward of the house on the deck, ready for
that purpose. On seeing the light of the steamer, the lookout of
the brig at once reported the fact to the master, who was then
walking the deck, and he immediately caused the light, which was
burning brightly, to be hoisted in the fore-rigging of the brig,
and it was kept there, in full view of the approaching steamer,
until the vessels came together. Coffin, who hoisted the light and
was the lookout on the brig, testifies that he tied the light just
under the foreyard, and remained standing in the rigging, watching
the light of the steamer as she approached, until she was so near
that he had just time to descend to the deck and take a few steps
aft when the vessels struck. He says it was about fifteen minutes
after he reported the light of the steamer to the master of the
brig that the collision occurred, and in this particular he is
strongly confirmed by the mate of the steamer, who admits that the
brig was about three miles distant when her light was reported to
him as the officer of the deck by the lookout on the starboard bow
of the steamer. At the time the light of the steamer was first seen
by the lookout, the brig was sailing on a course of northwest by
west, close-hauled on the wind, with her larboard tacks aboard and
all her sails set. She was converging towards the track of the
steamer and was going through the water only three or four miles an
hour, the wind being light and blowing from the southwest by
west.
Several witnesses describe the character of the night as
overcast, and some speak of it as cloudy with intervening stars,
but all agree that it was not unusually dark. They all concur in
saying that the surface of the sea was smooth and there was no haze
or mist on the water, and the mate of the steamer testifies that
objects could be seen without lights at the distance of three
miles.
Page 62 U. S. 378
When the steamer discovered the brig, she had all her signal
lights displayed, and was on a course of east half south, and was
moving through the water at the rate of twelve or thirteen miles an
hour, using all her sails as well as her engines. Her mate and
lookout first saw the light of the brig, and they testify that the
bearing of the light was some two and a half points off the
starboard bow of the steamer. Their statements, however, do not
entirely agree with the testimony of the master. He was in his room
at the time, calculating the position of the steamer, and did not
hear the light of the brig reported. While there, he heard the mate
call out, "hard a-starboard," and instantly went up on to the
paddle-box of the steamer.
Page 62 U. S. 379
His account of the bearing of the brig is not entirely clear, as
given in the record, or very satisfactory. At first, he says he saw
the brig two and a half to three points off the starboard bow of
the steamer, but finally fixes it at two points, and adds, to the
effect that she was not over one-third of a mile distant. He
admits, however, that the steamer was then swinging off rapidly
towards Long Island shore, and of course, if the bearing was only
two points when the master reached the paddle-box, it must have
been much less than two and a half points at the time the light was
first discovered, as the vessels were then three miles apart, and
the order of the mate, to starboard the helm, had not then been
given, and of course the steamer did not commence to swing off to
port till after that order was given and executed.
According to the testimony of the mate, his first order after
seeing the light of the brig was to starboard the helm, and then,
he says, the vessel began to swing off, and it was not until after
he left the position he then occupied, and went on to the
paddle-box, that he gave the order, hard a-starboard. After that
order was given, and the usual response received from the
wheelsman, then, he says, the master came by his side, and repeated
the order, adding that "the vessel will be into us -- stop her,"
and the mate says that the steamer had then swung off about three
points, and yet the master says that the bearing of the light of
the brig was still two points off the starboard bow of the
steamer.
Page 62 U. S. 379
Statements so conflicting and uncertain do not furnish any
definite elements which can safely be made the basis of a reliable
mathematical calculation as to the precise bearing of the brig when
her light was first seen, and are not entitled to much
consideration in determining the question how the collision was
produced.
Some uncertainty also exists as to the precise bearing of the
steamer when her light was first discovered from the brig. It is
stated in the libel as about west half south, and the testimony of
the witnesses is equally indefinite. One witness estimates it at
about three points off the larboard bow of the brig, another says
it was about two points in the same direction, and a third witness
says it was about west. Such indefinite statements cannot afford
much aid in determining the principal question involved in this
controversy.
Whatever may have been the precise position of the vessels with
respect to each other at the time the light of the steamer was
first discovered by the lookout of the brig, it is certain that the
course of the brig was converging towards the track of the steamer
and that they came together in the course of fifteen minutes after
the light was reported to the master and the brig was run down and
lost. It was the starboard bow of the steamer which came in contact
with the larboard bow of the brig, forward of the fore-swifter, and
slewed her round, carrying away her bowsprit, foremast, and
main-topmast and cutting her down to the water's edge, and such was
the headway of the steamer at the time that she swept on for a
considerable distance without any apparent abatement of her speed,
notwithstanding her engines were stopped and reversed just before
the collision took place.
All the circumstances tend to show that the disaster might have
been prevented and that there was fault somewhere for which the
offending party ought to be held responsible. Both parties appear
to have so understood the matter when they made up their pleadings
as well as in the subsequent conduct of the cause.
It is alleged in the libel that the brig kept her course after
the light of the steamer was seen, without any deviation, until
Page 62 U. S. 380
the collision occurred. On the part of the respondents, that
allegation in the libel is denied, and they allege that the brig,
when her light was first seen, was steering to the westward,
close-hauled on the wind and in a course nearly parallel to the
steamer, but instead of keeping her course, as she should have
done, that she suddenly and unexpectedly put her helm up, kept off,
and came with her bows on to the steamer.
Such is the issue, as made up by the parties in the pleadings,
and it presents the principal question of fact to be determined by
the court.
Our views upon the point cannot be stated in a manner which
would be satisfactory to those interested, without some brief
reference to the evidence on which they are based.
When the disaster occurred to the brig, her whole company,
consisting of seven men, including the master and mate, were on the
deck of the vessel, and witnessed the events. Four were examined as
witnesses, and the mate testifies that it was the watch of the
master, who, being the libellant and one of the owners of the
vessel, was not examined. His watch commenced at eight o'clock in
the evening, when the preceding watch closed. From six to eight
o'clock, the mate had charge of the deck, and he says that the
course of the brig at sunset was northwest by west; that she was
sailing close-hauled on the wind, and continued on the same course
until eight o'clock, when he went below. He remained below until he
heard a light reported, when he immediately went on deck, and at
first saw only one light, but, as the vessel approached nearer, he
saw more, and supposed it was a steamer; and he testifies
positively that the brig did not change her course, after he went
on deck, until the steamer struck her. On his return to the deck,
he did not look at the compass, but says the brig was on the wind,
with her larboard tacks aboard, and, in his judgment, was going the
same course as when he went below.
Three of the seamen were also examined, and their testimony is
equally full and explicit, and to the same effect. One of them was
the lookout, who first discovered the light of the steamer, and
reported it to the master; and the other two, on hearing his
report, immediately went on deck, and remained
Page 62 U. S. 381
throughout, watching the light as it approached, and with every
opportunity to see and observe whatever transpired on the deck of
the vessel. Some one or more of them testifies that the master
twice gave the order "to keep her full and by," as the steamer
advanced, and they all concur that the brig did not change her
course, and that no danger was apprehended until just before the
collision took place. All must admit that they had ample means of
knowledge upon the subject of their testimony; and if their
statements are incorrect, they must have willfully perverted the
truth, which is not to be presumed. Several witnesses, however,
examined on the part of the respondents, testify that the brig did
change her course before the vessels came together, and among the
number is the mate of the steamer, who beyond doubt describes the
events truly, as they appeared to him at the time of the
occurrence.
His testimony, as it is exhibited in the record, furnishes
conclusive evidence that the two vessels were very close together,
if not in actual contact, when the supposed change of course was
made, and presents some ground of inference that the jib-boom of
the steamer, or the rigging connected with the bowsprit, as they
swept over the stem of the brig, or pressed against her fore
rigging, may have produced the state of things which induced him to
think that the brig had ported her helm. At first he said the
change was made just before the collision, then immediately before
it; but, upon further interrogation, he said it was before the
jib-boom of the brig had touched the steamer, and finally added
that the brig might have been twice the length of the ship off. All
of his statements, however, are based upon the theory that the brig
ran into the steamer, when it is satisfactorily shown that the real
state of the case was the reverse. It was the bow of the steamer,
near the cat-heads, which struck the jib-boom of the brig, and
carried it away; and the evidence furnishes strong reasons to
conclude that the brig had been partly slewed round just before
that occurred. Be that as it may, it is certain from the evidence
that the brig kept her course until just before the collision took
place. When the mate of the steamer first saw her light, he says it
was about three miles distant, and he admits that her direction
then was
Page 62 U. S. 382
north of west, and that he did not notice any change of her
course, except the one already mentioned, when the vessels were
close together. When the master went up on to the paddle-box of the
steamer, and repeated the order previously given by the mate to put
the helm hard a-starboard, he says the brig was then sailing
close-hauled on the wind, and that the two vessels were not more
than a third of a mile apart. His account of the change of course
is that it was made after that order was given, and he says the
brig instantly turned directly across the bows of the steamer and
came right into her, thus showing conclusively that the alleged
change, however produced, was made at the moment of collision.
These references to the testimony of the witnesses must suffice,
and they are believed to be amply sufficient to show what the state
of the evidence is as it is exhibited in the record. One remark is
applicable to all of the witnesses introduced by the respondents,
and that is they had not the same means of knowledge respecting the
matter in dispute as the witnesses for the libellant possessed, who
had charge of the brig and governed her course, and in weighing the
evidence, and determining its force and effect, that important
consideration cannot be overlooked. It must be admitted that the
witnesses on the part of the libellant speak from actual knowledge,
and, unless they have willfully stated what they know to be false,
their statements must be correct. They were on the deck of the
vessel, interested, so far as their personal safety was concerned,
to observe everything that transpired as the steamer approached,
and they cannot well be mistaken in respect to the matter under
consideration.
Those on board the steamer appear in the record under very
different circumstances. They only infer what they have affirmed as
to what transpired on the deck of the brig, and at best their
statements respecting the matters in question are of the nature of
opinions, and it is difficult to see that they may be in error. In
the excitement and confusion of the moment, they may have mistaken
what was occasioned by the momentum of the steamer or the pressure
of her bowsprit of jib-boom upon the stem or fore rigging of the
brig, for a change of course produced
Page 62 U. S. 383
by an alteration of her helm. All the testimony tends to show
that the two vessels came together at an obtuse angle, and there is
much reason to think that the brig had been pressed out of her
course before the bows of the vessels came together. At all events,
such an inference from the evidence is far more reasonable than
would be the conclusion that all the witnesses for the libellants
have willfully perverted the truth. Other grounds of reconciling
the testimony consistent with the integrity of all the witnesses
might be suggested, but we think it unnecessary, as the evidence
clearly shows that the brig kept her course, without any change
whatever, until the peril was impending and the collision
inevitable.
An error committed by those in charge of a vessel under such
circumstances, if the vessel was otherwise without fault, would not
impair her right to recover for the injuries occasioned by the
collision, for the plain reason that those who produced the peril
and put the vessel in that situation would be chargeable with the
error, and must answer for the consequences.
Our conclusion, however, on this branch of the case is that the
respondents have failed to support the allegation of the answer,
that the brig changed her course after the light of the steamer was
discovered, and that the evidence satisfactorily shows that she did
not change her course in any sense which can be regarded as a
fault. Sailing vessels when approaching a steamer are required to
keep their course, and steamers, under such circumstances, as a
general rule, are required to keep out of the way. Many
considerations concur to show that all those engaged in navigating
vessels upon the seas are bound to observe the nautical rules
recognized and approved by the courts, in the management of their
vessels on approaching a point where there is danger of collision.
Those rules were framed and are administered to prevent such
disasters and to afford security to life and property exposed to
such dangers, and public policy, as well as the best interest of
all concerned, requires that they should be constantly and rigidly
enforced in all cases to which they apply. Few cases can be
imagined where it is more needful that they should be observed than
when a steamer and a sailing vessel are approaching each other from
opposite
Page 62 U. S. 384
directions, or on interesting lines, for the obvious reason that
the negligence of the one is liable to baffle the vigilance of the
other, and if one of the vessels under such circumstances follows
the rule, and the other omits to do so, or violates it, a collision
is almost certain to follow.
Rules of navigation, such as have been mentioned, are obligatory
upon vessels approaching each other, from the time the necessity
for precaution begins, and continue to be applicable as the vessels
advance, so long as the means and opportunity to avoid the danger
remain. They do not apply to a vessel required to keep her course
after the approach is so near that the collision is inevitable, and
are equally inapplicable to vessels of every description, while
they are yet so distant from each other that measures of precaution
have not become necessary to avoid a collision. Sailing vessels
approaching a steamer are required to keep their course on account
of the correlative duty which is devolved upon the steamer to keep
out of the way, in order that the steamer may known the position of
the object to be avoided, and may not be led into error in her
endeavor to comply with the requirement.
Under the rule that a steamer must keep out of the way, she must
of necessity determine for herself and upon her own responsibility,
independently of the sailing vessel, whether it is safer to go to
the right or left, or to stop, and in order that she may not be
deprived of the means of determining the matter wisely, and that
she may not be defeated or baffled in the attempt to perform her
duty in the emergency, it is required in the admiralty
jurisprudence of the United States that the sailing vessel shall
keep her course, and allow the steamer to pass either on the right
or left, or to adopt such measures of precaution as she may deem
best suited to enable her to perform her duty and fulfill the
requirement of the law to keep out of the way.
Repeated decisions of this Court have affirmed the doctrine here
laid down, and carried it out to its logical conclusion, and in so
many instances that the question cannot any longer be regarded as
open to dispute. Accordingly, it was held in the case of
The Steamer Oregon v.
Rocca, 18 How. 570, that
Page 62 U. S. 385
when a steamer approaches a sailing vessel, the steamer is
required to exercise the necessary precautions to avoid a
collision, and if this be not done,
prima facie the
steamer is chargeable with fault. That decision was founded upon
the rule previously established in
St.
John v. Paine, 10 How. 583, where the whole subject
is elaborately considered and the reasons of the rule fully
explained. Similar views are also maintained in the case of
The Genesee
Chief, 12 How. 461, and in various other cases to
the present time. Exceptional cases may be imagined in a crowded
thoroughfare where the rule would not be applicable, but those will
be considered when they arise. Such precautions as are inculcated
in the rule referred to are enjoined, as before remarked, to
prevent collision and afford security to life and property, and in
a case where the rule could not be followed without defeating the
end for which it was established or without producing the mischief
which it was the design of the rule to avert, of course it would
not be applicable, and in such a case a departure from it would be
both justifiable and commendable. Extreme cases such as are
supposed will rarely if ever occur, and in referring to them it
must not be understood that the rule will be relaxed to any extent
whatever in other cases to which it properly applies.
Applying these principles to the case under consideration, it is
obvious what the result must be. It is not denied that the
collision took place and that the brig was run down and lost, and
such being the fact, and the evidence exhibited failing to satisfy
the court that the brig was in fault or the disaster inevitable, it
necessarily follows that the collision was the result of fault on
the part of the steamer and that the steamer is answerable to the
libellant for the damage.
Our attention was also drawn at the argument to the amount of
the damage as reported by the commissioner, and it was insisted
that it is excessive. On that point it will be sufficient to say
that after a careful examination of the testimony before him, we
see no ground to doubt that his duty was rightly performed.
The decree of the circuit court therefore is
Affirmed with costs.