1. The ordinary and settled rule of navigation that when two
vessels are approaching each other on opposite tacks, both having
the wind free, the one on the larboard side shall give way and pass
to the right, does not apply when one is to the windward of the
other and ahead of or above her in a narrow channel, so that an
observance of it would probably produce a collision.
2. Stipulators in admiralty, who have entered into stipulations
to procure the discharge of a vessel attached under a libel for
collision, cannot be made liable for more than the amount assumed
in their stipulation as the amount which the offending vessel is
worth, with costs as stipulated for.
3. The true damage incurred by a party whose vessel has been
sunk by collision being the value of his vessel, that sum (without
interest) was given in a proceeding
in rem where the value
of the offending vessel
was fixed in stipulations that had been entered into to procure
her discharge at that identical sum.
The owner of the schooner
J. C. Wells filed a libel in
admiralty in the Southern District of New York against the schooner
Ann Caroline to recover damages for a collision occurring
on the eastern shore of the Delaware Bay. The two vessels were
beating up the bay of a fine morning in February, 1854, in company
with several other vessels, and
Page 69 U. S. 539
were just now between "Crow Shoal" and the Jersey shore, a
passage in the bay where the channel is about a mile wide. The wind
was N.N.W., a five or six knot breeze, "a full-sail breeze," the
tide, flood, setting up the bay. The day being clear, nothing
obstructed observation up and down the bay except the transit of
the various vessels across it. The
Wells was close-hauled
on her larboard tack, which was a long tack from Crow Shoal to the
Jersey shore. The
Ann Caroline close-hauled on her
starboard tack on the opposite course from the Jersey shore to Crow
Shoal. The
Wells was heavily laden; the Ann Caroline in
ballast. The two vessels had tacked at the Crow Shoal, upon the
long tack, nearly at the same time; the Caroline at the time being
to the leeward of the
Wells and somewhat astern of her.
The
Ann Caroline ran out but one-half or two-thirds of her
course when she suddenly came round on her starboard tack in
consequence of a vessel ahead suddenly tacking and obstructing her
course. While on this course, she came in collision with the
Wells, striking her on her starboard side, about ten or
fifteen feet from her taffrail, opening her side so that she sank
to the bottom of the channel in a few minutes and was totally
lost.
The main ground upon which the defense of the
Ann
Caroline rested was that she was on the starboard or
privileged tack, and that it was the duty of the
Wells to
give way and pass to her right. This rule of navigation was
admitted on the other side, but it was insisted that it had no
application to a case where the relative position of the two
vessels was such as was here made out. It was contended for the
owner of the
Wells that she was to the windward of the
Caroline, and ahead or above her in the channel, and that
if this rule had been observed and the
Wells had ported
her helm, a collision would have been inevitable; that the change
of course would have brought her head against the starboard side of
the
Caroline, and that a proper maneuver in the emergency
was to starboard her helm, which she did, and which would have
avoided the other vessel if she had not ported her helm at or about
the same time,
Page 69 U. S. 540
and so done that which caused her to strike the
Wells
on her starboard side but a few feet from her stern.
One controlling question in the case, therefore, was whether or
not the
Wells was to the windward and so far above the
course of the
Ann Caroline before the two vessels came
together as to forbid the application of the settled rule of
navigation that when two vessels are approaching each other on
opposite tacks, both having the wind free, the one on the larboard
tack shall give way and pass to the right.
The proof were voluminous, and the testimony of the master and
hands on board the respective vessels as usual in this class of
cases was contradictory -- those of the
Wells contending
that the course of the
Caroline was to the leeward and
southerly of that of their vessel, while those on the
Caroline insisted that her course was to the windward of
the
Wells. But in addition to the witnesses on the two
vessels themselves, it so happened that four other witnesses
(masters and hands upon two other vessels engaged at the same time
in beating up this channel, and who were on the same tack with the
Wells, but to the leeward and a little to her stern)
witnessed the collision and the course of the vessels previous to
the accident. These confirmed the testimony of the master and hands
of the
Wells as to the course and relative position of the
two vessels. The circuit court accordingly made an interlocutory
decree that the libellant recover "the loss and damages by him
sustained by reason of this collision," and it was referred to a
commissioner "to ascertain the amount of such loss or damage."
The commissioner reported that the damages sustained by the
libellant were:
1. The loss of his vessel, the
Wells, whose
value he fixed at . . . . . . . . . . . . . $5,000.00
2.
Interest from the day of the collision and
loss to that of filing the report,
November 12, 1860 . . . . . . . . . . . . .
2,362.50
---------
$7,362.50
This being excepted to, the circuit court recommitted the
report. The commissioner now made a second report,
Page 69 U. S. 541
in which, finding, as before, the value of the
Wells to
be $5,000, he took another basis of damages and gave the
libellant:
1. The value of the
Ann Caroline, which was
estimated by the commissioner at . . . . . . $3,500.00
2. The freight pending on her cargo . . . . . . . 513.00
3. Interest on the freight and value of the
Caroline to the date of the second
report, October 7, 1862. . . . . . . . . . . 2,431.43
---------
$6,444.43
It is necessary here to state that after the marshal of the
United States attached the
Ann Caroline, her claimants and
the owner of the
Wells, by agreement filed of record,
fixed her value at $5,000, and that stipulators entered into
stipulations reciting the attachment, value fixed, "as appears from
said consent, now on file in said court," and
"agreeing that in case of default or contumacy on the part of
the claimants or their sureties, execution for the above amount may
issue against their goods, chattels, and lands,"
on which the vessel was discharged. A stipulation was also filed
for costs, to the extent, however, of but $250.
The circuit court entered a decree on the basis of the second
report. The decree
ORDERED that the libellants recover against
the schooner
Ann Caroline and claimants
(the sum awarded by the commissioner) $6,444.43
With interest from the date of the
commissioner's report . . . . . . . . 26 31 -- $6,470.74
Together with their taxed costs . . . . 731.77
---------
In all . . . . . . . . . . . . . . . $7,102.51
And that "a summary judgment be, and the same is hereby
entered
for the
amount aforesaid against the
stipulators &c.," and,
unless an appeal was entered, that
execution issue
against
the claimants and
them.
From this decree both parties appealed, the libellant objecting
because, as he said, the damages allowed were less than he was
entitled to recover, the
Ann Caroline having been valued
by the commissioner but at $3,500, instead of at $5,000, as it
ought to have been, that having been the
Page 69 U. S. 542
value agreed on by the claimants themselves, and the claimants
objecting because, as they said, the
Wells was in fault
and nothing was due, or if she was not and anything was due, it
could not possibly exceed $5,000, the amount fixed by consent as
the value of the
Ann Caroline, and for which sum, and no
greater, the stipulators had agreed to be contingently bound. The
libellants asserted, moreover, that the
first report of
the commissioner, which gave them the value of
their own
vessel, the
Wells -- which, by the fault of the
claimants' vessel, had been sunk -- and interest from the date of
that loss, was the true rule.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This is an appeal in admiralty from the decree of the Circuit
Court of the United States for the Southern District of New York,
in a cause of collision, civil and maritime.
Damages are claimed in this case by the libellant on account of
a collision which occurred on the 11th day of February, 1854, in
Delaware Bay, between the schooner
John C. Wells, bound on
a voyage from New York to Philadelphia, and the schooner
Ann
Caroline, bound on a voyage from New York to Smyrna, in the
State of Delaware, whereby the former was run down and sunk in the
bay and became a total loss. Libel was filed by the owner of the
John C. Wells on the twenty-fourth day of February, 1854,
and the owners of the
Ann Caroline on the sixth day of
December following appeared and filed their answer. Both parties
took testimony in the district court, and after the hearing a
decree was entered dismissing the libel, and the libellant appealed
to the circuit court. Additional testimony was taken in the circuit
court and the parties were again heard, and, after the hearing, a
decree was entered reversing the decree of the district court, and
a decree was entered in favor of the libellant. Whereupon both
parties appealed to this Court.
Page 69 U. S. 543
I. Libellant objects to the decree because, as he says, the
damages allowed are less than he is entitled to recover, and the
claimants object to it because, as they say, the libellant is not
entitled to recover anything. Claimants' vessel was sailing in
ballast, but the vessel of the libellant was deeply laden with a
cargo of assorted merchandise. They both sailed from the port of
New York on the day previous to the collision, and the evidence
shows that they both came to anchor during the night, in company
with some fifteen or twenty other schooners, at a well known
anchorage outside of Cape May. Evidence also shows that they both
got under way on the following day about one or two o'clock in the
afternoon, and at the time of collision were beating up the channel
between what is called Crow Shoals and the Jersey shore. Most or
all of the other vessels got under way about the same time, and
were also beating up the bay in the same general direction. Proofs
show that the wind was north-northwest, blowing "a full-sail
breeze," and that the tide was an hour flood setting up the bay.
Course of the vessels when they first got under way at the
anchorage was on the long tack towards the Jersey shore, and it
appears that both the vessels were put upon the course. Beating out
that tack, they then came about and stood towards the buoy, near
the lower end of the shore on the western side of the channel.
Master of the
Wells testifies that his vessel went so near
the shoal before tacking that she stirred the mud with her
center-board or keel. Vessel of the claimants was more to the
leeward, and it appears that her course was changed before she
approached so near to the shoal. Pathway of the libellant's vessel
was near the shoal, but the vessel of the claimants was some
distance to the leeward and somewhat astern. Having beat out that
tack without any difficulty and without anything's having occurred
to indicate that they were in danger of colliding, they both went
about and were again put on the long tack towards the Jersey shore,
and the proofs are full to the point that they were both sailing on
about the same course. Claimants' vessel being to the leeward, and
both vessels being close-hauled on
Page 69 U. S. 544
the wind, there could not be any danger that they would come
together. They were both upon the larboard tack, and were heading
about north-northeast. Remark should be made that most or all of
the other vessels and tacked at the buoy and were beating up the
channel on the same course. Weight of the evidence also shows that
all of them except one was to the leeward, and most of them were
astern of the vessel of the libellant. Such was the state of things
when the
Ann Caroline suddenly and unexpectedly, as
alleged in the libel, went about and was put upon the starboard
tack, on a course directly towards the injured vessel. Excuse for
the sudden change in her course, as alleged in the answer, is that
a schooner ahead of her having tacked, it became necessary for the
vessel of the claimants to go about before she had beat out her
larboard tack. Reasons of the alleged necessity are not stated and
the proofs offered in support of the allegation are unsatisfactory,
but it is not proposed to place the decision upon that ground, as
it is not made certain that the allegation is untrue. Allegation of
the libellant is that the change was sudden and unexpected, and the
evidence leads to the same conclusion. When the vessel of the
claimants went about, she was put upon a course heading west by
north, and as the course of the libellant's vessel and not been
changed, it must have been evident to every attentive observer that
a collision was inevitable unless one or the other gave way.
Sailing as they were in a clear day, with nothing to obstruct their
view, although in a narrow channel less than a mile wide, it is
clear that there can be no just excuse for the disaster, and
consequently there is fault on one side or the other.
II. Theory of the claimants is that inasmuch as their vessel had
come round on to the starboard tack, it was the duty of the vessel
of the libellant to give way and pass to her right. General rule of
navigation undoubtedly is that a vessel on the starboard tack, if
close-hauled, has a right to keep her course, and that one on the
larboard tack, although she is also close-hauled, must give way or
be answerable for the
Page 69 U. S. 545
consequences. [
Footnote 1]
But it is insisted by the libellant that the rule has no
application to the relative position of the two vessels as shown by
the evidence in this case. His proposition in that behalf is that
his vessel was to the windward of the vessel of the claimants and
so far ahead of her in the channel that if those on board his
vessel had observed the general rule and ported her helm, a
collision would necessarily have followed. Granting that the
position of the two vessels was such as is assumed by the
libellant, then it is clear that the rule of navigation under
consideration cannot apply and that the views of the libellant are
correct. Proximity of the libellant's vessel to the shoal was such
that it rendered it unsafe for those in charge of her to attempt to
go about, because the danger was, if they should do so, she would
be wrecked on the reef. She could not, therefore, starboard her
helm and go about, and if, as assumed by the libellant, she was
ahead of the claimants' vessel and to the windward, then it is
clear that she could not be required to port her helm and attempt
to go to the right, as in doing so she would have to cross the bows
of the vessel astern, and must incur the imminent danger of
colliding with the vessel of the claimants.
III. Principal question of fact therefore, is whether the theory
assumed by the libellant is correct, because it is obvious that if
the facts are so, the conclusion deduced from them must follow. Two
controverted facts are assumed in the proposition of the libellant.
1. That his vessel was to the windward. 2. That she was ahead in
the channel. Argument is not necessary to show that the libellant
is right on the first point, as the whole current of the evidence
when properly understood is that way, but there is much conflict in
the testimony on the second point. Where the conflict of testimony
in respect to a disputed fact is between the witnesses on board the
respective vessels, and no others are examined in the case, it is
sometimes difficult to form any satisfactory conclusion. No such
embarrassment, however,
Page 69 U. S. 546
arises in this case, as there were four witnesses examined who
were on board the other vessels in the same company. Those
witnesses concur in the statement not only that the vessel of the
libellant was to the windward of the claimants' vessel, but that
she was above her in the channel, and in view of the whole case, we
adopt that conclusion as the correct one from the evidence. The
vessel of the claimants was also in fault because she had no
lookout, and the evidence tends strongly to the conclusion that the
disaster is mainly attributable to that cause. Testimony shows
beyond controversy that she had no lookout at the time of the
collision and that the master, after the vessel was put about and
filled away on the starboard tack, went below, and when he came on
deck just before the disaster occurred, he inquired, with evident
displeasure, if no one had seen the vessel of the libellant, and it
is clear that he had abundant reason for dissatisfaction. Usual
precautions were then too late, and in a very short time the vessel
of the claimants struck that of libellant and the latter sunk in
the channel. Plainly the vessel of the libellant could not avoid
the collision, because if she had attempted to go about, she would
have gone on the reef, and if she had ported her helm and attempted
to go to the right, she would have collided with the vessel of the
claimants. On the other hand, it is clear beyond doubt that the
vessel of the claimants might have avoided the disaster without any
peril. She might have gone about, as she had ample room to do, or
she might have starboarded her helm and gone under the stern of the
other vessel. For these reasons, we think the conclusion of the
circuit court was right upon the merits.
IV. The rule of damages adopted by the court is the subject of
complaint on both sides, and as both parties have appealed, the
whole matter is open to revision. Sum allowed was seven thousand
two hundred and two dollars and fifty-one cents, and the court
ordered a summary judgment against the stipulators for that amount.
Interlocutory decree was that the libellant recover the amount of
the loss and damages by him sustained by reason of the collision,
and
Page 69 U. S. 547
the cause was referred to a commissioner to ascertain the
amount. Commissioner reported that the value of the vessel was five
thousand dollars, and that the interest on the same to the date of
the report, was two thousand three hundred and sixty-two dollars
and fifty cents, and he accordingly reported the amount of those
two sums as the damages in the cause. Exceptions were filed by the
claimant to that report as follows:
1. That the sum reported as the value of the vessel was too
much.
2. That the commissioner erred in allowing interest.
3. That the rule of damages adopted was erroneous; that the
amount should not exceed the value of the claimants' vessel and
freight pending.
4. That the commissioner erred in examining testimony as to the
value of claimants' vessel.
Circuit judge sustained the third and fourth exceptions, and
recommitted the report. Subsequently the commissioner made a second
report. In his second report he found:
1. That the value of the vessel of the libellant was five
thousand dollars, and that by reason of the collision she was a
total loss.
2. That the vessel of the claimants was worth the sum of
thirty-five hundred dollars.
3. That the freight pending on the cargo of the claimants'
vessel was five hundred and thirteen dollars.
4. That the interest on the freight and value of claimants'
vessel was two thousand four hundred and thirty-one dollars and
forty-three cents.
Accordingly he reported as due to the libellant the aggregate of
those several sums. Both parties excepted to the report, but the
court overruled their exceptions and confirmed the report, which
was the foundation of the final decree, which is for the same
amount.
Libellant insists that the first report of the commissioner was
correct, that is that he is entitled to recover the value
Page 69 U. S. 548
of his vessel together with the interest on that amount from the
time of the collision to the date of the decree. On the other side,
the claimants insist that the stipulation for value, under the
general rules of the admiralty, stands in the place of the vessel,
and that the decree as against the stipulators cannot exceed the
amount of the stipulation. Separate stipulations are usually filed
for costs, and the same rule, it is admitted, applies to such a
stipulation as to the one given for the value of the vessel.
Stipulation for costs in the sum of two hundred and fifty dollars
was regularly filed by the claimants in this case at the time they
entered their appearance. Such a stipulation is properly required
as a condition of the right to appear unless the claimant, under
the Act of the third of March, 1847, had given the bond to the
marshal therein mentioned for the discharge of the property
arrested at the time of the service of the monition. [
Footnote 2] Suit in this case was
in
rem, and consequently the vessel, when arrested, was in
contemplation of law in the possession of the court. But the
practice is, where the claimant desires to regain the possession to
allow the value of the same to be ascertained, and when that is
done according to law, the claimant may file a stipulation for that
amount in the place of the vessel. When the claimant desires to
secure the possession of the vessel, he may apply to the court for
an appraisement, or if the parties agree upon a sum as the value,
the court may adopt that sum and accept a stipulation for that
amount. Parties in this case agreed that the value of the vessel
was five thousand dollars, and thereupon the court accepted a
stipulation for that amount, and the vessel was delivered to the
claimants. [
Footnote 3]
Obligation of a stipulator is the same as that of a surety, and
consequently his liability is limited by the terms of his contract.
Whenever the obligation of the stipulator is for a definite sum
named in the stipulation, the surety stipulating to pay that sum
cannot be compelled to
Page 69 U. S. 549
pay more than that amount. [
Footnote 4] Same rule prevails whether the instrument is
in form a bond or stipulation. Where a claimant in a suit in rum
made application for a delivery of the property and obtained it by
an order of the court upon giving a bond to suspend the appraised
value, Judge Story held that the bond was good as a stipulation,
and, having affirmed the decree condemning the vessel, ordered that
judgment should be entered against the signers of the bond as
stipulators for the appraised value of the vessel with costs.
[
Footnote 5] Mr. Benedict says
that where a party is entitled to have the property delivered on
bail, he is bound to stipulate with sureties to pay the full value
of the property. Such value, says the same author, may usually be
fixed by consent and agreement of parties, but if not then it is
ascertained by an appraisement, and on final decree the stipulators
are bound to pay into court
the sum ascertained as the
value. [
Footnote 6]
Bail is taken, says Mr. Dunlap, for the value of the ship upon
the delivery of the property, and it will not be reduced upon the
ground that the property brought less upon a sale than the
appraised value. [
Footnote 7]
Settled rule is that where the value of the vessel condemned in a
cause of damage is insufficient to pay the loss, it is not
competent for the court to award damages against the owner beyond
the value or proceeds of the ship. [
Footnote 8] But it has been held that costs might be
awarded against the owner where there was an appearance and
hearing, although no stipulation to that effect had been given.
[
Footnote 9]
Rule in admiralty, however, is the same as at law, that sureties
are only bound to the extent of the obligation expressed in their
bond, but not beyond its plain and obvious meaning. [
Footnote 10]
Page 69 U. S. 550
True measure of damages in this case was the loss which the
libellant sustained by the sinking of his vessel, which, as the
commissioner reported, was five thousand dollars. He lost that
amount, and there is no proof in the case that he lost anything
more for which any claim is made in the libel. Stipulation for
value filed by the claimants was for that sum, and consequently the
libellant is entitled to a decree against the stipulators for that
sum, as the value of the vessel and no more, because they never
agreed to be bound for any greater sum.
Argument of the libellant is that he is entitled to interest on
that sum as against the stipulators for value, but it is a
sufficient answer to the proposition to say that this Court has
expressly decided otherwise, and we adhere to that decision.
[
Footnote 11]
Separate stipulation was filed for costs, and of course the
libellant is entitled to full costs in the district and circuit
courts unless the amount exceeds the sum specified in the
stipulation. He is also entitled to a decree of affirmance upon the
merits, but without costs in this Court, and the decree of the
circuit court must be modified as to the damages so as to conform
to views expressed in this opinion.
The decree affirmed as modified.
[
Footnote 1]
St. John v.
Paine, 10 How. 581.
[
Footnote 2]
9 Stat. at Large 181; 2 Conklin's Admiralty 94, 97; Admiralty
Rules 26 and 34.
[
Footnote 3]
Admiralty Rule 11; 2 Conklin's Admiralty 96;
Lane v.
Townsend, Ware 300.
[
Footnote 4]
Godfrey v. Gilmartin, 2 Blatchford 341; Admiralty Rule
11.
[
Footnote 5]
The Alligator, 1 Gallison 1491.
[
Footnote 6]
Benedict's Admiralty ยง 498, p. 272; Dunlap's Practice 181;
The Octavia, 1 Mason 150.
[
Footnote 7]
Dunlap's Practice 174;
The Peggy, 4 C. Robinson
387.
[
Footnote 8]
The Hope, 1 W.Robinson 155.
[
Footnote 9]
The John Dunn, 1
id. 160.
[
Footnote 10]
The Harriet, 1
id. 192.
[
Footnote 11]
Hemmenway v.
Fisher, 20 How. 258.
