1. Where a vessel has the wind free, or is sailing before or
with the wind, she must keep out of the way of the vessel which is
close-hauled by the wind or sailing by or against it. Those
close-hauled on the wind or sailing on the starboard tack must keep
their course.
2. But these established rules of navigation do not apply after
a vessel advancing in violation of them is so near another vessel
that by such other vessel's adhering to them, a collision would be
inevitable. A departure from them under such circumstances by a
vessel otherwise not in fault will not impair her right to recover
for injuries occasioned by the collision.
These were appeals from the Circuit Court of the United States
for the Eastern District of Michigan in a libel and cross-libel for
collisions of vessels on Lake Michigan, the questions involved
being of fact chiefly, and the cases being submitted.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Page 71 U. S. 510
Subject matter of the controversy in this case was a collision
between the schooner
White Cloud and the bark
Newsboy, which occurred on the twelfth day of November,
1862, off Twin River Point or a little below, on the west shore of
Lake Michigan. Owner of the
White Cloud filed his libel
against the bark
Newsboy on the twenty-fifth day of May,
1863, and the owners of the bark filed their cross-libel against
the schooner on the twenty-ninth day of September in the same year.
Both cases were heard together in the district court, and the
decision was that the bark was in fault. Damages were accordingly
awarded to the libellant in the case of the schooner in the sum of
five thousand six hundred and seventy-three dollars and sixty-six
cents, and the cross-libel was dismissed with costs. Circuit court
on appeal affirmed the respective decrees and the owners of the
bark, as respondents in one case and as libellants in the other,
appealed to this Court.
1. Voyage of the schooner was from Buffalo to Chicago, and that
of the bark was from Milwaukee to Buffalo. Capacity of the former
was three hundred and eighteen tons, and that of the latter was
five hundred and fifty-seven tons, and both were good vessels and
had a full complement of officers and seamen. Testimony shows that
both vessels were under full headway when the collision occurred,
and that it resulted in great damage to the schooner. Among other
injuries it broke the rail, stanchions, and bulwarks of the
schooner from the fore-rigging to the main-rigging, and cut her
outside planks down below the waterline as far as the bilge, and
broke the clamps and ceiling down to the bilge kelson. Damage was
also done to the plank sheer and deck frame, and the capstan and
some of the deck plank were broken, the forestay sail split and the
butts of the deck plank were started the whole length of the
vessel.
Principal damage was on the starboard side of the schooner,
showing conclusively that the blow was between the main and fore
rigging on that side. She was in ballast, but the bark had a full
cargo of wheat. Collision occurred about seven o'clock in the
evening, but the proofs
Page 71 U. S. 511
show that it was not very dark, and the witnesses concur that
there was no haze on the water and that the lights of vessels could
be seen for several miles. Although it was cloudy, still the
weather was pleasant and there was a good breeze. Speed of schooner
was six or seven miles an hour and that of the bark was nine miles.
Weight of the evidence shows that the wind, though slightly
baffling, varying occasionally perhaps a degree to the west, was
southwest by west, and both vessels were under a full or nearly
full press of canvas. Course of the schooner was south-half-east,
and that of the bark was north-northeast, but she was not kept
steady.
Considerable conflict exists in the testimony as to the course
of the wind and of the schooner, but the better opinion in view of
the whole case is that the testimony of the master is correct. He
came on deck twenty minutes before the collision, and he testified
that the wind was about southwest by west, a little baffling,
varying sometimes a point to the westward, and that the vessel was
heading by the compass south-half-east, and we adopt those
statements as satisfactorily sustained by the weight of the
evidence.
Both vessels showed lights, and the proofs are full to the point
that each saw the light of the other two or three miles before they
came together. Obviously, therefore, it is a case of fault and not
of inevitable accident -- as the water was smooth and the vessels
were sailing in a broad unobstructed thoroughfare. Undisputed fact
also is that the schooner was sailing on the starboard tack,
close-hauled on the wind, and that the bark was on the larboard
tack and had the wind free. Rule of navigation is that where a
vessel has the wind free, or is sailing before or with the wind,
she must keep out of the way of the vessel which is close hauled by
the wind or sailing by or against it, and the vessel on the
starboard tack has a right to keep her course and the one on the
larboard tack must give way or be answerable for the consequences.
[
Footnote 1]
Page 71 U. S. 512
Strong effort is made by the respondents to take the case out of
the operation of that rule by attempting to show that the schooner
changed her course. Persons engaged in navigating vessels upon
navigable waters are bound to observe the nautical rules recognized
by law in he management of their vessels on approaching a point
where there is danger of collision. Undoubtedly the same law which
requires vessels having the wind free, or sailing on the larboard
tack, to keep out of the way or give way, as the case may be, also
imposes the correlative duty upon those close hauled on the wind,
or sailing on the starboard tack, to keep their course, in order
that the former may know the position of the object to be avoided,
and not be baffled or led into error in their endeavors to comply
with the requirement. [
Footnote
2]
Appellants show beyond doubt that the schooner changed her
course, but they do not show that she changed it at a time or in
any sense when or in which the law regards it as a fault. The rules
of navigation mentioned do not apply to a vessel required to keep
her course after the approach of the advancing vessel is so near
that the collision is inevitable. An error committed by those in
charge of a vessel under such circumstances, if the vessel is
otherwise without fault, will not impair her right to recover for
the injuries occasioned by the collision, for the reason that those
who put the vessel in that peril are chargeable with the error, and
must answer for the consequences which it occasions.
Evidence shows satisfactorily that the schooner kept her course
until
the peril was impending and the collision
inevitable, and that the order "hard a-starboard" was given by
the master at the moment it occurred, "to ease off the blow and
make it glancing." Such a change of course, at that moment, the
district court held was demanded as a means of self preservation,
and was not a fault, and we entirely concur in that conclusion.
Objection is also taken to the decision of the court in
confirming the report of the commissioner as to the amount of
Page 71 U. S. 513
the damages, but the objection is without merit and is hereby
overruled. Decision of the district court in the case of the cross
libel was also correct.
Decree of the circuit court affirmed with costs in both
cases.
[
Footnote 1]
St. John v.
Paine, 10 How. 581;
The Gazelle, 2
W.Robinson 517;
Woodrop Sims, 2 Dodson 85;
Ann
Caroline, 2 Wall. 544.
[
Footnote 2]
Steamship Co. v.
Rumball, 21 How. 384.