1. Sailing ships are "meeting end on" within the meaning of the
eleventh article of the Act of Congress of April 29, 1864, fixing
"Rules and Regulations for Preventing Collisions on the Water,"
when they are approaching each other from opposite directions or on
such parallel lines as involve risk of collision on account of
their proximity, and when the vessels have advanced so near to each
other that the necessity for precaution to prevent such a disaster
begins -- a condition which always depends to a certain extent upon
the state of the navigation and the circumstances of the
occasion.
2. The expression, "meeting nearly end on," in the same article,
includes cases where two sailing ships are approaching from nearly
opposite directions,
Page 74 U. S. 657
or on lines of approach substantially parallel, and so near to
each other as to involve risk of collision; but the application of
the rule must be considered as subject to the same limitations and
qualifications as is the phrase "meeting end on" in the same
article.
3. Accordingly, two sailing vessels pursuing, in the night time,
lines which, if followed, it was probable would bring them into
collision were considered, when but two or three miles apart, as
"meeting end on or nearly, end on so as to involve risk of
collision" within the meaning of the eleventh article above
referred to, their rate of speed having been, at the time, six
miles an hour each, and their rate of approximation, therefore, a
mile in each five minutes.
Held, consequently, that the
helms of
both vessels ought to have been put to port, as
provided for in such contingencies by the said article, so that
each might have passed on the port side of the other. And a vessel
which, in such circumstances, put her helm a starboard and was run
down and sunk by the other vessel was held to have no claim on her
for damages.
4. Mistakes committed in moments of impending peril by a vessel
in order to avoid a catastrophe made imminent by the mismanagement
of those in charge of another vessel do not give the latter, if
sunk and lost, a claim on the former for any damages.
Brown, owning a schooner of that name, filed a libel in the
District Court for Northern New York against the barque
Nichols, the ground of his complaint being that the two
vessels being on Lake Erie, one going in one direction and the
other coming towards it in another nearly opposite, and the two so
approaching each other, the barque had, in violation of the "Rules
and Regulations for Preventing Collisions on the Water," fixed by
the Act of Congress of April 29, 1864, [
Footnote 1] run into his schooner and sunk her and her
cargo. The Phoenix Insurance Company, which had insured the cargo
and paid for the loss, filed a similar libel.
The case was thus:
Congress, by the act above referred to, laid down certain rules
or articles to prevent collisions on the water, and among them
these:
"Article 11. If two sailing ships are
meeting end on or
nearly end on,
so as to involve risk of collision, the
helms of both shall be put to port so that each may pass on the
port side of the other. "
Page 74 U. S. 658
"Article 12. When two sailing ships are
crossing so as to
involve risk of collision, then if they have the wind on
different sides, the ship with the wind on the port side shall keep
out of the way of the ship with the wind on the starboard side,
except in the case in which the ship which the wind on the port
side is close-hauled and the other ship free, in which case the
latter ship shall keep out of the way. But if they have the
wind on the same side,
or if one of them has the wind aft, the
ship which is to windward shall keep out of the way of the ship
which is to leeward."
"Article 18. Where, by the above rules, one of two ships is to
keep out of the way,
the other shall keep her course."
With these articles in force, the schooner was bound up Lake
Erie, of a clear, starlight night, her course west by north. The
barque was bound down it, her course east by south, half south --
the two vessels being nearly dead ahead of each other. The wind was
from the northeast and the speed of each vessel full six miles an
hour, the two so approaching one another at the rate of a mile
every five minutes. The schooner had the wind free and on her
starboard side. The barque was close-hauled, with the wind on her
port side. Each vessel was seen from the other about the same time,
and
when they were some two or three miles apart, the
evidence being conflicting as to the exact distance.
When the two vessels made each other, the mate of the barque
ordered her helmsman to "keep her off a little" so as to give the
schooner "a good full," but as the vessels approached closely, he
ordered him to "put the helm hard up, and keep her right off" -- in
other words, to port the helm. The effect of this was, of course,
to turn the vessel's head southward. Such were the maneuvers of the
barque.
The master of the schooner, on his part, so soon as he saw the
barque's lights -- judging them to be two or three miles off,
"nearly dead ahead,
a very little on our starboard bow" --
ordered his helm put starboard, "to keep her off to the west." The
vessels were advancing rapidly, and with the maneuvers ordered,
respectively, were fast approaching each other as well. Two or
three minutes before the collision -- and the vessels being then
not more than a quarter of a mile apart -- the
Page 74 U. S. 659
master of the schooner "seeing the barque bearing down on him,
and that she was off the wind," ordered the wheel of his schooner
put "hard up," and to "let the main sheet run out." The schooner
accordingly swung to the south, somewhat of the southwest. But this
was too late, or perhaps the very cause of the catastrophe. The
barque advancing, went, bow first and at right angles, into the
starboard quarter of the schooner, and the schooner went down at
once.
The collision being, of course, the exact result which was
liable to follow from the combined maneuvers of the vessels, the
question was which vessel had made the false navigation under the
act of Congress? And this question involved largely a consideration
of the element and effects of distance -- that is to say, in this
particular case, the proximity of the vessels at the time when the
master of the schooner gave the first order to starboard.
The district court, not without hesitation, came to the
conclusion that the distance between the vessels at this time --
two or three miles -- was such that the master was not in fault in
making the order; that the case fell within the twelfth rule, and
that the barque ought not to have changed her course. Conceding
that the vessels were clearly
approaching each other
"nearly end on," and that if they had both continued their courses,
they would soon have been "
meeting nearly end on, so as to
involve risk of collision" within the meaning of the eleventh rule,
that court was yet in doubt whether, at the distance at which these
vessels were when they first made each other, they were
"
meeting end on, . . . so as to
involve risk of
collision," which the plain import of the eleventh rule
required them to be before both were obliged to port their helms.
It accordingly dismissed the libels.
On appeal, the circuit court was of a different opinion. The
vessels being nearly dead ahead, their combined speed being twelve
miles an hour, and they being thus within ten to fifteen minutes of
meeting, that court considered that they were "dangerously close
together," and their proximity such that the execution of the first
order to starboard the helm of
Page 74 U. S. 660
the schooner involved not only the risk of the collision, but
was the controlling cause of it, and thinking that the master of
the schooner had mistaken the position of the barque and had
supposed that her lights were to the windward when in fact they
were to the leeward, reversed the district court's decrees.
The correctness of this reversal was the question now here, on
appeals by the owner of the schooner and by the insurers of her
cargo, the Phoenix Company.
Page 74 U. S. 661
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Controversies growing out of collisions between ships on
navigable waters are in general of easy solution in cases where the
facts are agreed or where there is no material conflict in the
testimony of the witnesses. Few cases, however, find their way into
the tribunals of justice where the witnesses examined in the case
concur either as to which vessel was in fault or as to the
circumstances attending the collision. On the contrary, such
investigations are almost always complicated and embarrassed with
conflicting testimony, and sometimes to such an extent that it is
exceedingly difficult to form any satisfactory conclusion upon the
merits.
Some of the causes which promote such contrariety of
recollection are that the moment when the collision occurs is
necessarily one of alarm and frequently of consternation, and also
because the disaster is seldom witnessed with much care by any
persons other than those on board the respective vessels, and all
experience shows that they are quite too apt to see fault in the
navigation of the other vessel more readily than in that of the
vessel to which they belong. Where such conflict exists, the
inquiry is very perplexing,
Page 74 U. S. 662
and the difficulty can only be overcome in a satisfactory manner
by a critical analysis of the testimony and a careful comparison of
the respective conflicting statements of the witnesses with the
undisputed or well established facts and circumstances developed in
the testimony.
Decrees of an entirely opposite character were rendered in this
case in the district and circuit courts, obviously on account of
differences of opinion produced by the conflicting character of the
testimony, and the appellants now set up a theory different from
either of those adopted in the courts below, and it must be
admitted that it finds some support in the evidence exhibited in
the transcript.
In the investigation of such a case, the first steps is to
ascertain the facts material to the issue involved in the
pleadings, but in accomplishing that purpose in this case it is not
deemed necessary to enter much into the details of the testimony,
as any such a discussion would not benefit the parties nor anyone
else not possessed of the entire record. Views of the district
court were that the
Nichols was in fault, but the circuit
court was of a different opinion, and reversed the decree and
dismissed the libel. Appeal was taken by the libellant from that
decree of the circuit court to this Court. Succinctly stated, the
material facts of the case, as they appear to the Court, are as
follows:
Heavily laden with coal and iron, the schooner
William O.
Brown was bound up Lake Erie on a voyage from Buffalo to
Chicago. Her course was west by north, and when the collision
occurred, she was about half way between Little's Point and Bar
Point, and about one and a half miles from the Canada shore.
statement as to the voyage of the barque
A. P. Nichols is
that she came out from Detroit River early in the evening before
the collision, and that she was bound down the lake to Buffalo
laden with a full cargo of corn. Undisputed fact is that she was
heading east by south, half south, and that she as well as the
schooner had competent lookouts properly stationed on the vessel.
Both vessels also showed good lights, as required by law, and they
were well manned and equipped. Prior to their arrival at the
place
Page 74 U. S. 663
where the collision occurred they had met with no difficulty,
and they had fair weather and a good breeze from the northeast, not
exceeding six or seven knots, and the speed of the respective
vessels was about six miles an hour. Parties agree that the time
and place of the collision is truly alleged in the libel, and there
is neither fact nor circumstance in the case to warrant the
conclusion that it was the result of any other cause than faulty
navigation. Inexcusable as the disaster was, the principal question
is, which vessel was in fault? When the vessels came together, they
had sufficient sea room, and they were both under full sail. The
schooner had the wind free, and on her starboard side, but the
barque was close-hauled, with the wind on her port side. They were
on lines which diverged not more than half a point, and which, in
any event, if they continued their respective courses, would bring
them into collision. Obliged to change their course or collide, the
true inquiry is what should have been done? Clear weight of the
evidence is that each vessel was seen from the deck of the other
about the same time, when they were some two or three miles apart
and as they were approaching each other from nearly opposite
directions, it is quite clear, under the regulations enacted by
Congress, that the helms of both should have been put to port so
that each might have passed on the port side of the other, unless
the distance between them at that precise time was so great as not
to involve risk of collision. Rules of navigation are obligatory
upon vessels approaching each other 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. [
Footnote 2]
When the two vessels made each other, it was the mate's watch on
board the
Nichols, and he had command of her deck. His
first order to the man at the wheel was to keep her off a little,
so as to give the vessel ahead a good full, but as the vessels
advanced, seeing that there was danger of collision, he gave the
order to put the helm "hard up and keep
Page 74 U. S. 664
her right off," which, under the circumstances, was equivalent
to the order to port the helm, as the helmsman stands on the
weather side of the wheel, and consequently the effect of the order
"hard up," when executed, was to bring the helm to port, and turn
the prow of the vessel to the leeward.
Before remarking further as to the movements of the barque, it
becomes necessary to ascertain what was done on board the schooner,
as she was approaching from nearly the opposite direction, at about
the same speed. Her master admits that he saw both side lights of
the other vessel at the same time, and he testifies that he
immediately ordered the helm of his vessel to be put to starboard.
Plain effect of that order, when executed, was to turn the prow of
the vessel to the leeward, instead of hugging the wind closer, as
the should have done to avoid a collision.
Article eleven of the regulations enacted by Congress provides
that if two sailing ships are meeting end on or nearly end on so as
to involve risk of collision, the helms of both shall be put to
port so that each may pass on the port side of the other.
Sailing ships are meeting end on within the meaning of that
provision when they are approaching each other from opposite
directions or on such parallel lines as involve risk of collision
on account of their proximity, and when the vessels have advanced
so near to each other that the necessity for precaution to prevent
such a disaster begins, which cannot be precisely defined, as it
must always depend to a certain extent upon the state of the
navigation and the circumstances surrounding the occasion.
Where vessels approaching are yet so distant from each other, or
where the lines of approach, though parallel, are so far apart as
not to involve risk of collision, that rule of navigation has no
application to the case.
Much greater difficulty will arise in any attempt to define with
technical accuracy the phrase "nearly end on," as the language
itself is in terms somewhat indefinite. Such attempts have been
made in the English Admiralty Court, but without much practical
success. "Nearly end on," as the
Page 74 U. S. 665
phrase is employed in that article, may doubtless be construed
to include cases where two sailing ships are approaching from
nearly opposite directions or on lines of approach substantially
parallel and so near to each other as to involve risk of collision;
but the application of the rule must also be considered as subject
to the same limitations and qualifications as the preceding phrase
in the same article. Decided cases may be found in the English
admiralty reports where the attempt is made to define with
precision how great the variation may be from opposite directions
or from parallel lines and the case still be within the eleventh
article, but the present case does not necessarily involve that
inquiry, as the variation, in any view of the evidence, did not
exceed half a point by the compass, which is clearly insufficient
to take the case out of the operation of that article. [
Footnote 3]
Argument for the appellant is that the distance between the two
vessels was so great when the helm of the schooner was put to
starboard that it cannot be considered as a fault, and such, it
seems, was the opinion of the district judge; but the proposition,
in view of the circumstances, cannot be sustained, as it was in the
night time, and the combined speed of the two vessels was at least
twelve miles an hour, and none of the witnesses pretend that more
than ten or fifteen minutes elapsed after the second order of the
master of the schooner was given to put the helm hard up before the
collision took place.
Strong doubts are entertained whether the effect of the first
mistake made by the schooner would have caused a collision if she
had then kept her course, but the second order to put the helm hard
up was fatal, as the schooner then fell off even faster than the
barque, and the collision became inevitable. Particular description
of the effect of that movement need not be given except to say that
it brought the schooner directly across the bows of the barque.
Confirmation of this view is derived from the conceded fact that
the schooner was struck by the stem of the barque on
Page 74 U. S. 666
her starboard quarter. The effect of the blow was that she sank,
and with her cargo became a total loss.
Remaining proposition of the appellant is that the barque is
also in fault because her helm, just before the collision occurred,
was put to starboard; but it is clear that the error, if it was one
in that emergency, was produced by the impending peril, which is
justly chargeable to those having the control and management of the
other vessel. Mistakes committed in such moments of peril and
excitement, when produced by the mismanagement of those in charge
of the other vessel, are not of a character to relieve the vessel
causing the collision from the payment of full damages to the
injured vessel.
Appeal was taken to this Court at the same time from the decree
of the court below in the case of
Phoenix Insurance Company v.
Slanson, and the two cases were argued here together, as the
parties conceded that they depend upon the same facts. All the
testimony was taken in the first case, and the stipulation of the
parties is that it should be regarded as also taken in the other
and that both cases should be heard at the same time. Libellants in
this case were insurers of the cargo, and having paid the loss to
the owner, they claimed that they were subrogated to his rights and
interests and that, by reason thereof, they had a lien upon the
barque for the amount which they paid to the owner of the cargo.
Evidently the appeal is disposed of by the opinion in the other
case.
Decrees affirmed.
[
Footnote 1]
13 Stat. at Large 60.
[
Footnote 2]
Mail Steamship Company v.
Rumball, 21 How. 384;
The Ericsson, Swabey
38; Lowndes on Collision 24.
[
Footnote 3]
Holt's Rule of the Road 64, 70, 154.
