1. In a case of collision between two sea-going vessels, where
the only question proposed by the pleadings is one of fact, where
there is much discrepancy between the witnesses as to every
averment and where both the courts below have concurred in their
decision, it is not to be expected that this Court will reverse the
decree upon a mere doubt founded on the number or credibility of
the witnesses.
2. In such a case, the appellant has all presumptions against
him and the burden of proof is thrown on him to show affirmatively
that an error has been committed, and if there be sufficient
evidence on the record to support the decree which was made, the
appellant cannot get it reversed by establishing a theory,
supported by some of the witnesses, on which a different decree
might have been rendered.
Hugh N. Camp, Edward W. Brunsen, and Charles Sherry, partners,
doing business in New York City under the firm of Camp, Brunsen
& Sherry, filed their libel in the District Court for
Massachusetts against the ship
Marcellus, of Boston, her
tackle, apparel and furniture, alleging that they were the owners
of one hundred and seventy boxes and forty hogsheads of sugar,
worth ten thousand dollars, laden on board the schooner
Empire, bound from Boston to Bristol, Rhode Island; that
while the schooner, with the sugar on board, was sailing out of
Boston harbor in the narrows between Gallup and Lovell's Islands,
the ship
Marcellus carelessly and negligently ran afoul of
her, striking her on her larboard side nearly amidships so that she
sunk and the sugars were totally destroyed and lost. The
circumstances of the collision are minutely set forth in
Page 66 U. S. 415
the libel -- the condition of the schooner, the vigilance of her
officers and crew, the relative position and course of the two
vessels, the state of the wind, the hail from the ship to the
schooner, and the reply of the schooner &c., from all which the
conclusion is stated that the schooner did everything that she
could or ought have done to avoid the collision and save the cargo,
and that the loss was caused solely by the culpable misconduct of
the ship.
The proper process being issued and the ship arrested, John A.
Baxter, one of the owners, for himself and the other owners,
namely, William Dillamay and Charles H. Dillamay, of Boston, Josiah
Gorham, Alexander Baxter, Sylvester Baker, jr., James B. Crocker,
and John Gorham, of Yarmouth, Sylvester Baxter, Asa Lathrop, Owen
Bearse, Robert B. Hallet, and Thacher Hinchley, of Barnstable, came
and claimed the ship, and she was delivered on the usual
stipulations' being given.
The answer of the claimants admitted that a collision did take
place between the two vessels at the time and place set forth in
the libel, but denied, circumstantially and specifically, all the
material allegations of the libel which tended to show that it was
caused by the fault of the ship. The answer averred that the injury
to the schooner was caused entirely by her own fault and
negligence; that she was badly and unskillfully navigated; that she
might easily have avoided the ship with proper care and effort, and
ought to have done so; and that the ship was well and carefully
navigated, but on account of the schooner's mismanagement it was
impossible for the ship to go clear of her.
The witnesses were very numerous on both sides. The lists were
composed of the officers, seamen, and others on board of the ship
and the schooner, and of persons who saw the collision from other
vessels which were in sight at the time, and in their testimony
there was much conflict and contradiction.
The district court decreed that the libellants recover against
the ship
Marcellus, her tackle, apparel, and furniture,
$9,654 57, with costs. From this decree the libellants took an
appeal to the circuit court, where the cause was elaborately
reviewed
Page 66 U. S. 416
and the evidence thoroughly analyzed by MR. JUSTICE CLIFFORD,
who affirmed the decree of the district court, adding to it the
interest which had accrued in the meantime. The libellants then
took their appeal to this Court. The arguments here were very full,
but consisted mainly of discussions on the matters of fact, each
party contending that his own view of the case was supported by the
preponderating weight of the evidence.
MR. JUSTICE GRIER.
The collision which is the subject of inquiry in this suit took
place in the narrows in Boston harbor between Lovell's Island and
Gallup Island.
The libellants are owners of the schooner
Empire and
the appellants of the ship
Marcellus. The schooner was
going out, the ship coming into Boston harbor. They were sailing in
opposite courses, through a channel of about three hundred and
sixty feet.
The libellants charge in their libel that the collision was
wholly attributable to the carelessness and negligence of those in
the ship. They allege that the wind, just before and at the time of
the collision, was south-southwest; that the schooner was sailing
on the western side of the channel, close-hauled on the wind, with
her starboard tacks aboard, and with all or nearly all her sails
set; that she was steering southeast by south, working up to the
wind, in order to give the ship as much room as possible; that the
ship was sailing up the channel at great speed and with the wind
free, so that she might have passed the schooner on the larboard
side without difficulty; that as the ship approached towards the
point of danger, the schooner hailed her to keep off; that the hail
was answered from the ship, requiring the schooner to luff, which
was impossible, as she was already close to the wind; that the
schooner did not change her course, but that the ship, immediately
after she hailed the schooner, luffed, and instantly ran into the
schooner, and presently both vessels drifted to the leeward
shore.
Page 66 U. S. 417
In their answer, the respondents admit that the collision
occurred at the time specified in the libel, and that the ship was
running free on her larboard tack, but allege that the collision
took place on the easterly side of the channel and that every
possible precaution was taken by the ship, by hailing and
otherwise, to prevent the vessels from coming in contact. Their
theory is that it was occasioned entirely through the fault and
mismanagement of those in charge of the schooner, and accordingly
allege that the wind at the time of the collision was southwest;
that the ship between six and seven o'clock was sailing along the
leeward edge of the channel, hugging the shore as close as it was
possible for to do with safety; that while so passing, the schooner
was discovered some distance ahead coming down the harbor with a
free wind, and appearing at first to be going to the windward of
the ship, as she should and might easily have done, but that she
afterwards changed her course as if going to the leeward, and when
she had approached within a short distance of the ship, luffed
across her bows, resulting in a violent collision, sinking the
schooner and damaging the hull, rigging, and spars of the ship, for
which they pray they may be allowed.
The only question proposed by these pleadings is one of fact. In
this as in all other cases of the kind, there is great discrepancy
and conflict in the testimony of the witnesses as to every averment
in the pleadings. We have had occasion to remark more than once
that when both courts below have concurred in the decision of
questions of fact under such circumstances, parties ought not to
expect this Court to reverse such a decree merely by raising a
doubt founded on the number or credibility of witnesses. The
appellant in such case has all presumptions against him, and the
burden of proof cast on him to prove affirmatively some mistake
made by the judge below in the law or in the evidence. It will not
do to show that on one theory, supported by some witnesses, a
different decree might have been rendered provided there be
sufficient evidence to be found on the record to establish the one
that was rendered.
When the wind is southwest, it is the general rule that
vessels
Page 66 U. S. 418
going out shall keep to the windward side of the channel and the
vessels coming in the leeward. The witnesses, who could know best,
testify that throughout the passage down the narrows, the schooner
was kept close to the wind and was not suffered to fall off, and
did not luff at all. Others may have formed erroneous judgments.
But if their testimony be untrue, they must have willfully
perverted the truth. It is a common mistake to attribute the motion
of one of two passing bodies to the other. Calculations of time and
distance resting on the loose recollections of witnesses can seldom
be relied upon with much confidence. The collision took place in
the evening, when it was not quite dark. The testimony of three of
the ship's crew concurs with that of witnesses on the schooner in
establishing the state of facts as alleged in the libel.
The pilot of the ship had observed the approach of the schooner,
and directed the mate to go forward and see how she was standing.
He did so, and observing that the schooner was heading to windward
of the ship, he responded to the order: "all right, she is going to
windward," but in a short time was heard to say: "luff, hard-down,
hard-down, luff," which were the first words heard by the man at
the wheel; the pilot repeated the words, "hard-down, luff." The
wheel was let down or nearly so, when the order was charged to
"hard-up," but before this last order could have any effect, the
collision took place.
Another of the ship's crew gives a similar account, with some
difference: that the mate of the ship called out to the schooner
"to luff," and repeating the command to them, "you must luff, heave
her hard down." During this colloquy, the ship luffed, as the
witness supposed, in consequence of the pilot's having made the
mistake of supposing the mate's order "to luff" was directed to
him.
The collision was attributed by some on the ship to the fact
that the mate
"bothered" the pilot. This testimony, on the
part of the crew of the ship, corroborates that of the officers and
crew of the schooner. Without any further attempt to vindicate the
correctness of the decree, by a minute comparison of the testimony,
it is sufficient to say that the weight of
Page 66 U. S. 419
the testimony is on the side of the charges in the libel and
supports the decree of the court below, which is therefore
Affirmed.
