1. A neglect by one vessel, on approaching another in the night,
to show proper signal lights, or her showing a wrong one, does not
absolve such other vessel, under the act of Congress of April 29,
1864, prescribing the lights which sailing vessels shall carry,
from obligation to observe the usual laws of navigation or such
reasonable and practicable precautions generally as the
circumstances allow.
2. A loss equally divided between two vessels, on facts, set
forth in the case, showing fault in both.
The owners of the schooner
Perseverance filed a libel
in the District Court of Wisconsin against the schooner
Gray
Eagle, for a collision in which their vessel had been sunk.
The collision occurred in the Straits of Mackinaw soon after
midnight of the 23d of November, 1864, the night not having been a
dark one -- not so dark at least as that the sails of vessels could
not be seen for near a quarter of a mile. The
Perseverance
had lost her lights in a storm, and was sailing
Page 76 U. S. 506
with a white light, contrary to the rules prescribed by the act
of Congress, "fixing certain rules and regulations for preventing
collisions on the water," approved April 29, 1864, and which made
it her duty to carry a green light on her starboard side, and a red
one on her larboard, "and no others" anywhere. She was sailing down
the strait on a course E. by S., with the wind south, and
discovered the lights of the
Gray Eagle about a mile
ahead, coming up the strait, on a course of about W.N.W. [
Footnote 1] The witnesses differed a
little as to these points, but this was according to the weight of
the testimony. The libel alleged, and the evidence of all the
libellant's witnesses corresponded with its statements, that when
the
Gray Eagle was first seen, or soon afterwards, she
showed a red light; but that this soon disappeared; after which she
showed a green light until near the moment of the collision, when
she again showed her red light. The libellants asserted that they
had a right to suppose that the
Gray Eagle would pass on
the starboard of the
Perseverance; but that shortly before
the disaster she kept away, and, although the master of the latter
called on her to luff several times, in a loud voice, and at the
same time ordered his own man at the wheel to put the wheel hard
a-starboard, the
Gray Eagle made no reply, but kept on her
course, and in less than two minutes struck the
Perseverance stem on, abreast the starboard quarter, with
such force as to sink her in about two minutes, the master and crew
with difficulty saving their lives.
The defense set up by the answer for the
Gray Eagle
was, chiefly,
1st. That the other vessel was sailing without the regulation
lights and in violation of the act of Congress.
2d. That at a certain place in the bay mentioned
"a white light was seen about a mile distant, bearing about a
point on the
Gray Eagle's port bow, which was supposed to
be a light on shore, or upon a vessel at anchor; that the
Gray
Eagle was then kept away about a point and steadied on her
Page 76 U. S. 507
course to give berth to the light; that
the light was not
discovered to be a vessel's light in motion by the commanding
officer until the Perseverance got within about three lengths of
the Gray Eagle, the said light being then nearly ahead and to
windward; that the light was then supposed to be the binnacle light
of a vessel that had hauled up all she could to pass the
Gray
Eagle to windward; that the mate, not seeing any other light,
ordered the helm hard a-port, so as to pass on the port side and
keep off and clear the stern of the vessel, and stepped to windward
of his vessel, and then heard for the first time a cry from the
other vessel to port the helm hard down, but that it was too late,
and that the vessels were right together."
It seemed from the evidence that the light on the
Perseverance was not reported to the mate in charge of the
Gray Eagle till near the moment of collision. The mate
testified that as soon as he saw it, he ordered the "wheel up;" a
wrong order. The men who had been watching the light cried out,
"hard down" -- a right order, but not the one obeyed.
The district court dismissed the libel, principally on the
ground that the
Perseverance, having lost her lights,
ought to have lain by at anchor in the night time, and was
expressly prohibited from sailing with a white light. The circuit
court reversed this decision, and decreed that both vessels were in
fault, and that the damages should be divided between them. From
this decree the owners of the
Gray Eagle appealed.
Page 76 U. S. 509
[image included in argument of counsel]
image:a
Page 76 U. S. 510
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The appellants in this Court, as in the courts below, strongly
relied on the point, that the
Perseverance was sailing
with a white light at night, contrary to the express prohibition of
the statutory regulations in that behalf, and, therefore, that the
common law rule, which prohibits a recovery by a party who was
himself in fault, and who contributed to the damage sustained,
ought to be applied to her. But this Court has frequently held that
the omission to exhibit the proper light, though a fault which
undoubtedly puts a vessel
prima facie in the wrong, does
not exempt other vessels from the consequences of negligence on
their part. It was so decided in the case of
Chamberlain v.
Ward. [
Footnote 2] That
case arose under the act of March 2, 1849, it is true; but that act
seems quite as stringent in its provisions as the act of 1864, and
the court, in reference to this question, says:
"Failure to comply with the regulation, in case a collision
ensues, is declared to be a fault, and the offending party is made
responsible for all losses or damage resulting from the neglect;
but it is not declared by that section, or by any other rule
Page 76 U. S. 511
of admiralty law in the jurisprudence of the United States, that
the neglect to show signal lights, on the part of one vessel,
discharges the other, as they approach, from the obligation to
adopt all reasonable and practicable precautions to prevent a
collision. Absence of signal lights in cases falling within the
acts of Congress renders the vessel liable to the extent already
mentioned, but it does not confer any right upon the other vessel
to disregard or violate the laws of navigation, or to neglect any
reasonable and practicable precaution to avoid a collision which
the circumstances afford the means and opportunity to adopt."
We are of opinion that the same construction must be given to
the act of 1864, and that the exhibition of a prohibited light, as
well as the omission to exhibit the proper lights, is insufficient
to relieve another vessel from the duty of observing the laws of
navigation and of using all practicable precautions to avoid a
collision. It is a fundamental rule of admiralty law that where
both parties are in fault, both must contribute to make good the
damage, and this rule will not be deemed to be abrogated without an
express declaration of Congress to that effect.
Supposing, then, the
Perseverance to have been in fault
for not supplying herself with red and green lights, and for
exhibiting a white light, or for not casting anchor and lying by
till morning, or for any other reason (which, as her owner or
master has not appealed, it is to be presumed she was), [
Footnote 3] the only remaining question
for us to consider is whether the
Gray Eagle was also in
fault, so as to be chargeable with contributing to the collision.
This question, we think, has been properly answered by the circuit
court. It is admitted by the answer of the appellants that the
light of the
Perseverance was seen when about a mile
distant, bearing about one point on the
Gray Eagle's port
bow, and was supposed to be a light on shore, or upon a vessel at
anchor; and that the
Gray Eagle was kept away about a
point and steadied in her course to give berth to the light; and
that it was not discovered
Page 76 U. S. 512
to be a vessel's light in motion, by the commanding officer,
until the
Perseverance was within about three lengths of
her. This is a very remarkable admission. The courses of the two
vessels, after this light was seen, must have been at an angle of
about two points of the compass with each other, and it is
demonstrable from all the evidence taken together that the
Perseverance must have passed from the
Gray
Eagle's port bow to her starboard bow before the collision
took place, and yet it is said that the commanding officer did not
discover that the light was in motion until within three lengths of
her. The appellees, witnesses all testify that the red light of the
Gray Eagle was first seen, and then disappeared, after
which her green light only was seen until just before the
collision. This shows that the
Perseverance had crossed
the
Gray Eagle's course, and that her motion must have
been seen had a proper lookout been kept on the latter. It also
shows that the
Perseverance properly kept on her course,
and had the
Gray Eagle kept on hers, the collision would
not have occurred. The night was not dark; the sails of the vessels
could be seen nearly or quite a quarter of a mile. It seems to us
evident that there must have been great negligence on the part of
those having charge of the
Gray Eagle. From the evidence
of the appellants' witnesses, it appears that there was much
confusion on board of her just as the collision was about to take
place. One of the men on the lookout forward says: "When I sung out
to put the wheel down, the mate sung out to put the wheel up." The
man at the wheel testified to the same thing, and says that he
obeyed the mate's orders, and that undoubtedly caused the
collision. Had the mate been on the lookout as an officer in
command with a light ahead ought to have been, the difficulty would
not have occurred. We are therefore of opinion that the men in
charge of the
Gray Eagle were delinquent in their duty
under the circumstances of the case, and that this delinquency
contributed to cause the collision in question, and as a
consequence that the loss should be divided between the
parties.
Decree affirmed.
[
Footnote 1]
A diagram on page <|76 U.S. 509|>509 may perhaps assist
the non-nautical reader in understanding the statement -- REP.
[
Footnote 2]
62 U. S. 21 How.
548,
62 U. S.
567.
[
Footnote 3]
See Chittenden v.
Brewster, 2 Wall. 196;
McDonough v.
Dannevy, 3 Dall. 198.
