1. A vessel astern of another cannot be held in fault for not
complying with the rule which obliges the rear vessel to keep out
of the way of one ahead, when it is so darn that the latter vessel
cannot be seen by the former.
2. As a general rule, there is no obligation on a sailing vessel
proceeding on her voyage to shorten sail or lie to because the
night is so dark that an approaching vessel cannot be seen.
3. A collision resulting from the darkness of the night, and
without the fault of either party, is an "inevitable accident."
About the 6th of August, 1855, the brigs
Jerry Fowler
and
Page 69 U. S. 551
Morning Light, in a dark and rainy night, were pursuing
a voyage off the coast of Rhode Island through Buzzard's Bay and
Martha's Vineyard, eastward, with the wind from the northeast, the
Jerry Fowler being the head vessel and the
Morning
Light in her rear, both vessels running on their starboard
tacks on about a common course. At 4 o'clock in the morning of that
day a collision occurred between them, the stem or bows of the
Morning Light breaking through the starboard side of the
Jerry Fowler near her main rigging, so that the latter
vessel, with her cargo, was, by the collision, sunk, and became a
total loss.
The Alliance and other insurance companies, who had connectedly
underwritten upon the
Jerry Fowler in stated proportions,
paid the amount of their policies, and unitedly filed their libel
in the District Court for the Southern District of New York (Betts,
J), to recover from the
Morning Light the sums so paid.
The answer set up inevitable accident as a defense.
The
Jerry Fowler, at the time of the collision, was
either in the act of completing her tack or had just come round
from the larboard to the starboard tack, and come underway on the
last tack; the evidence as to her particular position when the two
vessels came in contact not being exactly concurrent upon that fact
on either side. She was tacked, not because of any actual necessity
from the nearness of shoals or dangerous impediments, but because
her master thought she had approached so near the Cutterhunk Shoals
as to render it proper, in the darkness of the night, to change her
course. It proved she was not, in reality, within five or six miles
of the supposed reefs.
The wind was about a five or six knot breeze during the greater
portion of the night, but it was not steady. There were fogs, and
the rain came on in fog showers. Neither vessel had unusual sail
up, and both appeared to have been well manned and navigated with
care. There was no attempt to prove that the
Morning Light
had, at any time, shortened sail or lain to.
The witnesses on each vessel asserted that a light was
suspended
Page 69 U. S. 552
in a place for being easily seen from the other, and on each
side it is asserted that neither discovered any light exhibited
upon the other vessel. The witnesses on the
Morning Light
testified to a darkness so extreme as to disable them discerning
objects distant less than her length off. Some on the
Jerry
Fowler state that they saw the other vessel coming upon them
half a mile distant. But in their sworn protest, made directly
after the accident, they represented the darkness to have been so
extreme at the time of the collision as to prevent their seeing
objects beyond a slight distance off. The protest, signed and
attested by the crew of the
Jerry Fowler, was made at
Portland, Maine, on the arrival at that port of the
Morning
Light with those men within three or four days after the
collision, and the representation made by those men at that time of
the thickness and darkness of the weather corresponds essentially
with the evidence of the crew of the
Morning Light on the
final hearing.
The district court held that the evidence showed a case of
inevitable accident between the two vessels, or if there was, at
the time of the collision between the two vessels, any culpable
inattention or misconduct which conduced to produce the collision,
the fault therein was a common one to both, arising from the
obscure state of the weather, the want of extreme vigilance and
precaution in making further signals on board both vessels or even
coming to anchor, and the uncertainty from that cause, to each
vessel, what was the proper and prudent course for either to pursue
in respect to the other vessel or its own individual navigation.
That if it was imprudent and hazardous with the
Morning
Light, having knowledge that the
Jerry Fowler was
probably ahead in the direction she was steering, to continue a
course which might have been concurrent in both vessels during the
night, because the darkness had then become so dense and continuous
as to prevent her position being seen by the vessel astern of her,
it was no less faulty in the
Jerry Fowler to put about in
that state of darkness, when not impelled to depart from her
previous course by any necessity of navigation,
Page 69 U. S. 553
when such evolution might place and leave her in a helpless
condition, in the probable path of the approaching vessel, until
the latter should be so near her before she could be seen, to
disable either one from escaping a collision. That upon the proofs
no necessity was shown for the
Jerry Fowler to make a tack
for her own safety, or as an act of prudence or good seamanship, a
distance of five or six miles off the reefs she intended to avoid,
and that no higher necessity was shown for the
Morning
Light to come to in that state of the weather than for the
Jerry Fowler to have done so also. That comparing the
testimony given by the crew of the
Morning Light with the
statement in the protest made directly after the occurrence by the
crew of the
Jerry Fowler, the fair weight of evidence was
that all hands aboard each vessel were bewildered and confused by
finding themselves in sudden and dangerous proximity to each other
in a thick fog, and that the collision consequent thereto was the
result of accident common and unavoidable to both. That each party,
under the circumstances, was accordingly bound to bear his own
loss. The district court accordingly dismissed the libel.
On appeal to the circuit court, the same view was taken of the
evidence, and the decree was affirmed. It was from this second
decree that the case came here by appeal.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Appellants were the insurers of the brig
Jeremiah
Fowler, which was lost on the 24th day of August, 1855, while
on a voyage from the port of Philadelphia to the port of Boston.
Allegations of the libel are that she was loaded with coal, and
that after she had arrived in Block Island channel, and while she
was beating in towards Vineyard Sound, she was negligently and
wrongfully run into by the brig
Morning
Page 69 U. S. 554
Light and sunk, and that the vessel, together with the
cargo, became a total loss. Libellants insured the vessel in the
sum of thirteen thousand dollars, and having paid the whole amount,
they instituted this suit against the
Morning Light to
recover the value of the vessel upon the ground that the vessel of
the respondents was in fault and that the collision was occasioned
by the negligence and want of proper care and precaution of those
who had the charge and management of her deck at the time the
collision occurred. Respondents allege that the
Morning
Light was bound on a voyage from Philadelphia to Portland and
that she was well manned, tackled, and provided. Collision
occurred, as the respondents allege, about four o'clock in the
morning, and they also allege, that at the time it occurred it was
raining heavily, and that in consequence of a dense fog it was
intensely dark.
Parties agree that the collision occurred at the time specified
in the answer, and the respondents also allege that the wind at the
time was from the eastward, say east by north, and that their
vessel was heading about north by east. Undoubtedly she was on her
starboard tack, close-hauled on the wind, and like the vessel of
the libellants was beating into Block Island channel. Such was the
state of things when, as the respondents allege, the lookout on
their vessel first discovered the vessel of the libellants, and the
concurrent testimony of those on board their vessel is that the
vessel so discovered appeared to be crossing the bows of the
Morning Light. When the lookout made that discovery, he
immediately gave the order to the man at the wheel to put her helm
hard up, but the allegation is that the two vessels were so near
together that it was not possible to prevent the collision.
Appellants also allege that their vessel had a competent lookout
properly stationed on her deck and that the vessel was discovered
as soon as it was possible to discern her in the dense fog with
which she was surrounded.
Suit was commenced in the district court, and after a full
hearing the district judge entered a decree dismissing the libel
upon the ground that the collision was the result of
Page 69 U. S. 555
inevitable accident. Appeal was taken by the libellants to the
circuit court, and the respective parties were again heard in that
court, and after full consideration, the decree of the district
court was in all things affirmed, and upon the same ground as that
assumed in the district court. Whereupon the libellants appealed to
this Court, and now seek to reverse the decree upon the ground that
both the courts below were in error.
1. Appellants contend in the first place that their vessel was
ahead, and that the other vessel, inasmuch as she was coming up,
was bound to keep out of the way. Secondly, they contend that the
vessel of the respondents was also in fault because she did not
have a competent lookout properly stationed on the vessel. Thirdly,
that she was also in fault because she did not shorten sail and
diminish her headway. On the other hand, the defense is placed
chiefly upon the ground set up in the answer that the collision was
the result of inevitable accident, but the respondents also contend
that the vessel of the libellants was in fault because she
unnecessarily attempted to go about and change her course while she
was under the bows of the
Morning Light.
Beyond question, the vessel of the libellants was ahead at
nightfall before the collision occurred, as the evidence shows that
she was seen at that time by the master of the
Morning
Light, and he testifies that she was to the windward, and five
or six miles ahead. The evidence also shows that she was at that
time heading north-northeast, and the witnesses say that she was
apparently sailing faster than the vessel of the respondents, and
that both vessels were sailing on the same tack. Suggestion of the
respondents is that she had changed her course during the night,
and some time before the collision, and that she was sailing, at
the time it occurred, on the larboard or port tack; and it must be
admitted that the position of the respective vessels at that time,
and the attending circumstances, give some countenance to that
theory. But the testimony of the witnesses for the libellants is
directly the other way, and as there is nothing in the case of a
positive character to contradict their statements,
Page 69 U. S. 556
it must be assumed that they are correct, although it is very
difficult to see how it happened that the two vessels came together
as alleged unless one of them had changed her course during the
night. Theory of the libellants is that their vessel had
just
come about onto the larboard tack, and that her sails had not
filled sufficiently to give her headway, and the theory is
essential to the libellants' case, because if their vessel was
fully under way on that tack, and in a situation to do so, it would
have been her duty to port her helm and give way. Suffice it to
say, however, the proof is clear that she
was not under
headway, and perhaps the better opinion from the evidence is
that she had just come about, as is assumed by the libellants, and
not that her sails were merely aback through the fault of the
helmsman, as is assumed by the respondents.
II. Assuming the fact to be so, then it follows that the vessel
of the libellants was not in fault, and the question of liability
must chiefly depend upon the defense set up in the answer that the
collision was the result of inevitable accident. Examples are to be
found in the reported cases where collisions have occurred
exclusively from natural causes, and without any negligence or
fault, either on the part of the owners of the respective vessels,
or of those entrusted with their care and management, and where the
facts are so, the rule of law is that the loss must rest where it
fell, on the principle that no one is responsible for such an
accident. Such was the ruling of the court in the case of the
steamer
Pennsylvania, [
Footnote 1] and we have no doubt that the ruling was
correct. Ruling of the Court in the case of the
John
Frazer [
Footnote 2] was to
the same effect. Remarks of the Court in that case were that the
mere fact that one vessel strikes and damages another does not of
itself make her liable for the injury, but the collision must in
some degree be occasioned by her fault. A ship properly secured
may, by the violence of a
Page 69 U. S. 557
storm, be driven from her moorings and forced against another
vessel in spite of her efforts to avoid it; yet, says the Court,
she certainly would not be liable for damages which it was not in
her power to prevent. So also ships at sea may, from storm or
darkness of the weather, come in collision with one another without
fault on either side, and in that case, said the Court, each must
bear its own loss although one is much more injured than the other.
Where negligence or fault, however, is shown to have been committed
by either party, the rule under consideration can have no
application, for if the fault was one committed by the respondent
alone, then the libellant is entitled to recover; or if by the
libellant alone, then the libel must be dismissed; or if both
vessels were in fault, then the damages, under the rule applied in
this Court, must be apportioned between the offending vessels.
III. Before considering the defense, therefore, it becomes
necessary to inquire and determine whether it be true, as is
supposed by the libellants, that the vessel of the respondents was
in fault. Their theory is that their vessel was ahead, and that the
vessel of the respondents was bound to keep out of the way.
Granting the fact to be as assumed, still if it was so dark that
the vessel ahead could not be seen, the vessel astern cannot be
held to be in fault for not complying with that rule unless she was
improperly in that position, or was guilty of some negligence or
want of care and precaution. [
Footnote 3]
Charge of the libellants is that she had no lookout, and the
charge, under the circumstances, is one that deserves to be very
carefully considered. Proofs are full to the point that two of her
company, the mate and a seaman, were assigned to that duty, but the
question is whether they were properly stationed on the vessel.
Burden of the vessel was two hundred and sixty-nine tons, and the
ship's company consisted of the master, two mates, the cook, and
four men before the mast. According to the evidence, the vessel
was
Page 69 U. S. 558
laden with lumber, and her deck load consisted of three tiers of
spars about as high as the bulwarks. She had a good light in her
forestays eight feet above the main deck, and she had an
experienced seaman at the wheel. One lookout was stationed on the
larboard side eight or ten feet forward of the mainmast, and the
mate, who was also on the lookout, was on the starboard side, just
forward of the foremast, and it should be remembered that the
vessel was upon the starboard tack. None of these facts is
successfully controverted, but the argument is that the lookouts
were not properly stationed, and it is not to be denied that, in
general, some position farther forward would be a better one to
secure the object for which lookouts are required.
IV. Reference, however, must in all cases be had to the
circumstances, and especially to the course of the respective
vessels and to their bearing in respect to each other. Considering
the situation of the vessel of the libellants, assuming it to be
such as the libellants suppose, it is by no means certain that the
position of the lookout on the larboard side was not as favorable
to discover the vessel of the libellants, when
she went into
stays and came about as could have been chosen, and it is
quite clear that the position of the mate while his vessel had her
starboard tacks aboard was one without objection. They both testify
that they were attending to their duty, and there is no ground for
doubt that they would have seen the other vessel in season to have
avoided the collision but for the intense darkness of the
night.
V. Fault is also imputed to the
Morning Light by the
libellants because she did not during the alleged intense darkness
"lie to," or shorten sail and check her headway. Steamers
navigating in thoroughfares are always required, whenever the
darkness is such that it is impossible or difficult to see
approaching vessels, "to slow" their engines or even to stop or
back, according to the circumstances, and no reason is perceived
why the principle of the rule in that behalf may not be applied in
a qualified sense to sail vessels where they are navigating in
crowded thoroughfares and when the darkness is so intense that
vessels ahead cannot be
Page 69 U. S. 559
seen. [
Footnote 4] Decisions
to that effect may be found, and no doubt they are correct, as for
example, it was held in the case of the
Virgil, [
Footnote 5] that the defense of
inevitable accident could not be maintained where it appeared that
the vessel setting at up was sailing with a strong breeze and under
a full press of canvas and with her studding-sails set, although it
appeared that it was very dark and hazy at the time of the
accident. [
Footnote 6] But such
a restriction can hardly be applied to sail vessels proceeding on
their voyage in an open sea. On the contrary, the general rule is
that they may proceed on their voyage although it is dark,
observing all the ordinary rules of navigation and with such
additional care and precaution as experienced and prudent
navigators usually employ under similar circumstances. They should
never under such circumstances hazard an extraordinary press of
sail, and in case of unusual darkness, it may be reasonable to
require them when navigating in a narrow pathway, where they are
liable to meet other vessels, to shorten sail if the wind and
weather will permit.
The weight of the evidence in this case shows that the wind
during the greater portion of the night was perhaps a five or six
knot breeze, but it is highly probable that it was much lighter
during the fog showers and the period of the extreme darkness which
immediately preceded the collision. Neither vessel had any
studding-sails, nor any greater press of canvas than is usual in
such a voyage, nor is it by any means certain that either had any
more sail set than was reasonably necessary to keep the full
control and proper management of the vessel. They both had
competent officers on deck, good lights in the rigging, and as we
think sufficient lookouts, and it appears that neither was guilty
of any negligence or unskillfulness.
Some of the witnesses for the libellants deny that the night was
as dark as is represented by the witnesses examined by the
respondents, but those denials came chiefly
Page 69 U. S. 560
from those who signed the protest shortly after the disaster,
which in substance and effect confirms the respondents' witnesses,
and fully justifies the finding in that behalf in the court below.
Reasonable doubt cannot be entertained that it was intensely dark
at the time of the collision. Both the courts below were of that
opinion, and we fully concur in that view of the case, and think it
sufficient under the circumstances to express that concurrence
without reproducing the evidence.
VI. Reported cases where it has been held that collisions
occurring in consequence of the darkness of the night and without
fault on the part of either party are to be regarded as inevitable
accidents are numerous, and inasmuch as there is no conflict in the
adjudications, it is not thought necessary to do much more than to
refer to some of the leading cases upon the subject. [
Footnote 7] Where the loss is occasioned by a
storm or any other
vis major, the rule as established in
this Court is that each party must bear his own loss, and the same
rule prevails in most other jurisdictions. [
Footnote 8] Different definitions are given of what is
called an inevitable accident, on account of the different
circumstances attending the collision to which the rule is to be
applied.
Such disasters sometimes occur when the respective vessels are
each seen by the other. Under those circumstances, it is correct to
say that inevitable accident, as applied to such a case, must be
understood to mean a collision which occurs when both parties have
endeavored, by every means in their power, with due care and
caution, and a proper display of nautical skill, to prevent the
occurrence of the accident. [
Footnote 9] When applied to a collision, occasioned by the
darkness of the night, perhaps a more general definition is
allowable. Inevitable accident, says Dr. Lushington in the case of
The Europa, [
Footnote
10] must be considered as a relative term, and must
Page 69 U. S. 561
be construed not absolutely, but reasonably with regard to the
circumstances of each particular case. Viewed in that light,
inevitable accident may be regarded as an occurrence which the
party charged with the collision could not possibly prevent by the
exercise of ordinary care, caution, and maritime skill. [
Footnote 11] Regarding these cases
as sufficient to show that a collision resulting from the darkness
of the night and without the fault of either party is properly to
be regarded as an inevitable accident, we forbear to pursue the
investigation, and wish only to add that we have no doubt the case
was correctly decided in the circuit court.
The decree of the circuit court is therefore,
Afirmed with costs.
[
Footnote 1]
Union Steamship Co. v. New
York Steamship Co., 24 How. 313.
[
Footnote 2]
Owners of Brig James Gray
v. Owners of Ship John Frazer, 21 How. 194.
[
Footnote 3]
The Shannon, 1 W.Robinson 463.
[
Footnote 4]
The Rose, 7 Jurist 381.
[
Footnote 5]
Ibid., 1174.
[
Footnote 6]
The Virgil, 2 W.Robinson 202.
[
Footnote 7]
Stainbach v.
Rae, 14 How. 538.
[
Footnote 8]
1 Parsons' Merc.Law, 187; Woodrop Sims, 2 Dodson 85;
The
Itinerant, 2 W.Robinson 243.
[
Footnote 9]
The Locklibo, 3 W.Robinson 318; The Pennsylvania, 24
How. 313.
[
Footnote 10]
2 English Law & Equity 559.
[
Footnote 11]
The Virgil, 1 W.Robinson 205;
The Juliet
Erskine, 6 Notes of Cases 634;
The Shannon, 1
W.Robinson 463;
Same Case, 7 Jurist 380.
