1. The Court, admitting that within reasonable limits
cross-examination is a right, and on many accounts of great value,
reflects upon an exercise of it as excessive in a case where there
were between four and five hundred cross-interrogatories.
2. Lookouts must be persons of suitable experience, properly
stationed on the vessel and actually and vigilantly employed in the
performance of their duty.
3. When acting as officer of the deck and having charge of the
navigation of the vessel, the master of a steamer is not a proper
lookout, nor is the helmsman.
4. Lookouts should be stationed on the forward part of the
vessel where the view is not in any way obstructed. The wheel-house
is not a proper place, especially if it is very dark and the view
is obstructed.
5. Elevated positions, such as the hurricane deck, are said by
the Court to be not in general as favorable in a dark night as
those usually selected on the forward part of the vessel, where the
lookout stands nearer the waterline, and is less likely to overlook
small vessels deeply laden.
6. These principles applied, and a steamer condemned in a
collision case, for want of a proper lookout, the case being one
also where the lights of the steamer were badly attended to and
gave imperfect warning.
Appeal from the Circuit Court of the United States for
Page 70 U. S. 269
the Northern District of Illinois in a question of collision at
night on Lake Huron between the steam propeller
Ottawa and
the schooner
Caledonia, and by which the schooner was
sunk, the decree in the circuit as in the district court having
been against the steamer as in fault.
The controversy was one chiefly of fact -- whether, for example,
there was
anyone at all on the steamer's deck about the
time of the collision besides the wheelsman then steering the
vessel; whether the steamer showed lights as required; what the
courses of the two vessels had been, and how far they properly or
improperly held them on their approach to each other, and some
others not necessary, in view of the decision, to be mentioned. The
testimony was conflicting and prolix, the cross-examination of one
witness alone having extended to
four hundred and thirty-two
inquiries. The chief
point of law disputed in the
controversy and the matter therefore to which the reporter more
particularly directs attention was apparently this: whether,
assuming that the master was on the steamer's deck after the
vessels came into such proximity as required precautions, until the
moment before the collision occurred -- a matter about which there
were doubts -- he was a competent lookout within the decisions of
this Court,
he having been, at the time, the officer of the
deck, in charge of navigating her, and having been standing with
the wheelsman in the wheel-house, a place which, on this
steamer, the mate swore was the best place for a lookout to be,
well forward, and giving an unobstructed view, and which the
counsel for the owners of the steamer, exhibiting to the court a
photograph, stated was less than twenty feet from the bow.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Amended libel alleged that the appellee was the owner of the
schooner
Caledonia; that on the sixteenth day of
September, 1860, she was engaged in prosecuting a voyage
Page 70 U. S. 270
from Chicago to Buffalo, having on board a cargo of six thousand
bushels of wheat belonging to her owner; that, at eight o'clock in
the evening of that day, when she was navigating in Lake Huron,
eight miles northwesterly from Thunder Bay Light, she encountered
the propeller
Ottawa, bound up the lake, and that the
propeller was so negligently and carelessly managed and navigated
that a collision occurred between the two vessels, whereby the
schooner, with her cargo on board, was sunk in the lake and
lost.
Appellant, in his amended answer, admitted the collision and
loss but denied that the propeller was in fault and averred as a
distinct ground of defense that the collision occurred entirely
through the incompetency of those of charge of the schooner, and in
consequence of their carelessness and mismanagement.
Decree in the district court was in favor of the libellant, and
the same was affirmed on appeal in the circuit court, whereupon the
owner and claimant of the propeller appealed to this Court.
I. Most of the material inquiries of fact presented for decision
are, as usual in this class of cases, involved in perplexing
uncertainty on account of the conflicting nature of the testimony.
Superadded to that difficulty, which experience shows is one
generally to be expected in controversies of this character, the
present investigation is greatly complicated and embarrassed by the
unreasonable length of the examinations and cross-examinations of
the witnesses, as exhibited in the record. Undoubtedly a party
calling a witness may, if he sees fit, examine the witness by
specific interrogatories, instead of relying upon the general
statements of witness, as made responsive to the oath under which
he testifies, and it is equally clear that the opposite party may
in all cases cross-examine the witness in respect to all the
material matters disclosed in the examination in chief, but it is
past belief that everything valuable involved in the right of
cross-examination may not be secured without propounding, in a
collision case, four or five hundred question to a single
witness.
Page 70 U. S. 271
Cross-examination is the right of the party against whom the
witness is called, and the right is a valuable one as a means of
separating hearsay from knowledge, error from truth, opinion from
fact, and inference from recollection, and as a means of
ascertaining the order of the events as narrated by the witness in
his examination in chief, and the time and place when and where
they occurred, and the attending circumstances, and of testing the
intelligence, memory, impartiality, truthfulness, and integrity of
the witness; but a few questions, well directed to those several
objects, are in general amply sufficient to effect all that can
well be accomplished by the fullest enjoyment of that admitted
right.
II. Embarrassed, however, as the investigation is by the
complications and difficulties suggested, still there are some
facts and circumstances having an important bearing upon the
principal questions involved in the pleadings which may be regarded
as conceded or as so fully proved that they are not properly the
subjects of controversy in the case.
Seaworthiness of the schooner is not denied, and it is fully
proved that she was well manned and equipped and that the master,
at the time of the collision, was in charge of her deck. Proofs are
also entirely satisfactory that she had an able seaman at the
wheel, and a competent lookout, properly stationed, forward of the
windlass, having no other duty to perform, and at a place where
there was nothing to obstruct his view.
Just before the collision, the master was standing near the
helmsman, but, when notified by the lookout that he discovered a
light, he went immediately forward in order to determine what if
anything was necessary to be done.
Prior to six o'clock, the schooner had been sailing on a course
southeast by south, but, being well out in the lake, the master, as
he states, changed her course at that hour half a point to the
southward, and he adds that she had been sailing upon that course
about two hours.
Evidence is full to the point that the schooner showed a proper
light, and the master testifies in substance and effect that she
held her course until the collision was inevitable.
Page 70 U. S. 272
Careful examination has been given to the evidence on this last
point, and it is not perceived that there is any good reason to
doubt the truth of the statement.
Allegation of the libel as to the time and place of the
collision is correct.
Doubt cannot be entertained but that the propeller was a
seaworthy vessel, and it is satisfactorily shown that she was well
manned and equipped.
Appellee insists that she was responsible for the consequences
of the collision because she was in fault in three particulars:
1. He insists that she had no proper lookout, as required by the
decisions of this Court.
2. That she did not show the signal lights, as required by
law.
3. That she did not comply with rule of navigation which
requires that where a steamer and a sail vessel are approaching
each other from opposite directions or on intersecting lines, the
sail vessel shall hold her course and the steamer shall keep out of
the way.
1. Argument for the appellee assumes that there was no one on
the deck of the propeller except the man at the wheel, but the
appellant insists that the master also was on deck, and contends
that the master, under the circumstances of this case, was a
competent lookout within the meaning of the decisions of this
Court. Strong doubts are entertained whether he was on deck at all
after the vessels came into such proximity as required precautions,
until the moment before the collision occurred, but in the view
taken of the case it is unnecessary to decide the point, as it is
clear that if he was on deck, as is supposed by the appellant,
still he was not a proper lookout within the requirement of the
rules of navigation as expounded by the decisions of this
Court.
Two objections are made to the master, as lookout, even
admitting that he was on deck, and they are both well taken.
Admission of the appellant is that the master was the officer of
the deck, and that he had charge of navigating
Page 70 U. S. 273
the vessel, and the proofs are satisfactory that if he was on
deck at all at that time, he was in the wheel-house with the man at
the wheel. Steamers are required to have constant and vigilant
lookouts stationed in proper places on the vessel and charged with
the duty for which lookouts are required, and they must be actually
employed in the performance of the duty to which they are assigned.
They must be persons of suitable experience, properly stationed on
the vessel and actually and vigilantly employed in the performance
of that duty. [
Footnote 1]
Proper lookouts are competent persons other than the master and
helmsman, properly stationed for that purpose, on the forward part
of the vessel, and the pilot house in the night time, especially if
it is very dark, and the view is obstructed, is not the proper
place. [
Footnote 2] Lookouts
stationed in positions where the view forward or on the side to
which they are assigned is obstructed either by the lights, sails,
rigging, or spars of the vessel do not constitute a compliance with
the requirement of the law, and in general elevated positions such
as the hurricane deck are not so favorable situations as those more
usually selected on the forward part of the vessel, nearer the
stem. Persons stationed on the forward deck are nearer the
waterline, and consequently are less likely to overlook small
vessels, deeply laden, and more readily ascertain their exact
course and movement. [
Footnote
3] Applying these rules to the present case, it is clear that
the propeller did not have any proper lookout, and it will be
sufficient to say that we adhere to those decisions without
abatement or qualification.
2. Second objection urged by the appellee is that the propeller
did not show the signal lights required by law.
Proper signal lights as required on steamers are, a bright light
forward, a red light on the larboard side, and a green light on the
starboard side. Considering that the parties
Page 70 U. S. 274
will not be benefited by an extended analysis of the testimony,
it is not deemed necessary to do more on this branch of the case
than to state our conclusions. Better opinion is that the red light
was burning dimly at the time of the collision, but that the other
lights had ceased to burn so as to be visible to those on board the
schooner. Tendency of the proof also is that all the lights had
been lighted at the usual hour, but that the white and green
lights, either because the lamps were not well trimmed, or because
the oil was poor, or from both causes combined, had gone out or
burned so dimly as to answer no valuable purpose. None but the red
light was seen by those on the deck of the schooner, and even that
was not seen in season to afford any protection.
3. Third charge of the appellee against the propeller is that
she did not comply with the rule of navigation, which required her
to keep out of the way of the schooner. Corresponding charge of the
propeller against the schooner is that she did not hold her course,
but the latter charge cannot be sustained, because it is not
supported by the weight of the evidence except so far as it relates
to the change made at the moment of collision, which is not a fault
that will avail the other party.
Rules of navigation are obligatory 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, but 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.
III. Theory of the appellant is that the propeller was to the
leeward of the schooner, and that she was sailing northwest.
Assuming that theory, he contends that the collision could not have
occurred as alleged in the libel, and it may be that the theory, as
a mere abstraction, is correct; but the best answer to it is that
the collision did take place, and the schooner, with her cargo, was
sunk in the lake. Taken as
Page 70 U. S. 275
a whole, the proofs afford full satisfaction that the schooner
did not change her course until all hope of avoiding the collision
was gone.
Great conflict exists in the testimony as to the course of the
propeller, but the best conclusion that can be formed from it is
that she was to the windward of the schooner. Both the lookout and
the master of the schooner first saw the dim red light of the
propeller nearly ahead over the starboard bow. Conceded fact is
that the propeller ported her helm, and if so she must have headed
across the bows of the schooner. Confirmation of that view is
derived from the manner in which the two vessels came together.
Undisputed fact is that the schooner, at the moment of collision,
also ported her helm, doubtless with the hope of passing under the
stern of the propeller; but the bowsprit, in a glancing blow,
struck the larboard quarter of the propeller, which opened the
starboard bow of the schooner, stove in the bow, tore off her
headgear, split the bow open, opened the knight-heads, and broke
the rail and stanchions on the larboard side. Weight of the blow
was rather on the larboard side of the schooner, but the bowsprit,
operating as a lever, opened the starboard bow. Injury to the
propeller was on the larboard quarter, and it shows to a
demonstration that the two vessels came together in the manner
described by the witnesses of the libellants.
Decree of the circuit court is therefore
Affirmed with costs.
GRIER, J., assuming the facts differently, dissented.
[
Footnote 1]
Chamberlain v.
Ward, 21 How. 570.
[
Footnote 2]
St. John v.
Paine, 10 How. 585;
Genessee
Chief, 12 How. 483.
[
Footnote 3]
Haney v. Baltimore Steam
Packet Co., 23 How. 292.