1. Even flagrant fault committed by one of two vessels
approaching each other from opposite directions does not excuse the
other from adopting every proper precaution required by the special
circumstances of the case to prevent a collision.
2. Damages equally divided in a case of collision on an
application of this rule.
On the night of the 22d of June, 1866, the steam propeller
Cleveland, in rounding Bar Point, [
Footnote 1] at the head of Lake Erie, on her way up the
lake to Detroit, made the lights of a tug and tow, descending the
Detroit River near its mouth into the lake, at the supposed
distance of two miles. They proved to be the lights of the tug
McClellan, having in tow the bark
Maria Martin,
bound down the lake.
At the time when the lights were made by the lookout of the
propeller, this last named vessel had just obtained her offing from
Bar Point and was put upon her course for Bois Blanc light,
[
Footnote 2] north by east. Her
course had been west by north around Bar Point until she brought
Bois Blanc light to bear northeast by east, when she at once
steered for it. The tug, with the bark in tow, was at this time
steering south-southwest. The respective courses were therefore one
point divergent. The propeller made the red signal light of the tug
and the red signal light of the bark from a quarter to half a point
over her starboard bow. The
McClellan made the green light
of the propeller one-fourth of a point over her port bow. The night
was a bright star light night, with a light wind from southwest.
The propeller was running past the land from six to six and a half
miles an hour. The tug and tow were at about the same speed. All
three of the vessels had their red and green signal lights properly
displayed, and they were easily distinguishable. At this time,
another tug, the
Muir, with five vessels in tow, was
Page 79 U. S. 32
slowly ascending the Detroit River a little in advance of the
propeller, and at about the same distance from the eastern or
Canada shore. The bark was towed by means of a rope paid out from
her starboard bow, four feet from the bowsprit, 360 feet, and made
fast to a samson post in the deck of the tug, about midships, and
some twenty-five feet from the taffrail, over which it of course
played, from starboard to larboard, as the tow might sheer on the
one hand or the other. As the vessels approached each other, their
respective lights closed in until they were running nearly "stem
on." At this juncture, and when separated by about half a mile, the
tug and bark being pretty well on to the American shore, and the
steamer leaving a fair berth on the Canada side, the tug sounded
one sharp whistle, and in thirty seconds repeated the whistle as a
signal to the propeller that she wished her to pass on her port
side. The propeller responded with one blast of the whistle, and
ported her helm and displayed to the tug her red signal light. The
tug ported her own helm when she turned half a point and became
steady on her course. The propeller ran past the tug, port side to
port side, with, however, only a narrow berth between ships, when
at the instant in which her stern had passed the stern of the tug,
the bark collided with the propeller on her port side, the port bow
of the bark striking the port bow of the steamer and the steamer
sinking in ten minutes after the blow. The point of collision was
about a mile and a half below Bois Blanc light, a point at which
tugs usually prepare to cast off their tows, and the tows get ready
to enter the lake, and in this case apparently when abreast the
light, the bark had commenced making sail preparatory to hauling in
her line and steering her course down the lake.
In consequence of the catastrophe, the owners of the propeller
libeled the bark in the District Court for Wisconsin. It was not
asserted that the tug had been guilty of any fault; the main matter
relied on in support of the libel being that the bark had not
followed the tug, but had made a sudden sheer. Whether she had made
such a sheer or not was a
Page 79 U. S. 33
principal point of fact in the case, and one about which much
conflicting evidence was given. Numerous persons who had been on
her swore that she followed straight, after the tug, but not less
numerous ones who had been on the propeller swore that at the
instant when
her stern had passed the stern of the tug,
the bark shut in her red light and showed her green light to the
propeller -- a fact which, if true, would show that she had left
her line of direction and shot off at nearly right angles with the
course of the tug. [
Footnote 3]
It seemed to be in proof that the bark, though a well steering
vessel, had not steered well after the tug through the night; and
the allegation of the steamer was that the bark having begun to
make sail preparatory to steering down the lake, had misunderstood
the whistle sounded by the tug, a theory which the evidence of the
mate supported. But whether she had made any
such sheer as
would have made this accident unavoidable, if the steamer had not
been first guilty of the greatest faults, was another question; and
whether, if she had made such a sheer, the steamer had not been the
cause of her doing so, was yet a third one.
The reader thus sees that the case involved two points:
"
First. One of more fact, dependent on conflicting
testimony, which it would not be at all worth while to report,
whether there was a sheer but for which the catastrophe would not
have occurred."
"
Second. A point of law whether, if so, it was in view
of the propeller's previous conduct, a fault."
The District Court, taking one view of the evidence, considered,
apparently, that the alleged sheer was nothing more than the bark's
keeping on her course before she had time to swing round and follow
the tug, a matter which that court considered would, to those on
the steamer, look just like a sheer.
That court held, therefore, that the propeller was alone to
blame, and it dismissed the libel. [
Footnote 4]
Page 79 U. S. 34
image:a
Page 79 U. S. 35
image:b
Page 79 U. S. 36
On appeal to the circuit court, while that court was fully of
the opinion with the district court, that the propeller was in
great fault in driving at a reckless rate in narrow water, where
vessels in torn usually cut off from their tugs, and where a small
channel is liable to be crowded by numerous tows -- as this channel
at this time actually was crowded -- yet making a somewhat
different case on the evidence from that which the district court
had assumed, it inculpated the bark also. On the first point -- the
liability of the steamer -- it said thus:
"It is clear that the libellants knew that the Detroit River, on
account of the magnitude of its commerce, and the number of tugs
with loaded vessels passing through it, had to be navigated with
great watchfulness and care, and that the tug and bark whose lights
they had made, as they were descending the river, could not be
handled, in case of peril, as well as the propeller could.
Notwithstanding these things, we find these officers managing their
boat without regard to the dangers of navigating this river, and
exercising no more watchfulness than if they had been navigating
the open lake. Although they saw the lights of the tug and bark and
pronounced them to be very bright, at the distance of two miles,
yet they did not change the course of their boat until the tug had
signaled them to do it, and at this time the vessels had approached
within half a mile of each other. But even then, by the practice of
reasonable seamanship, all trouble could have been avoided. If the
propeller, instead of porting half a point, or three-fourths even,
had gone a point further to the eastward, the collision could not
have taken place. There was nothing in the way of her doing this,
for the river was wide enough and there were no lights closing on
them from the east. To put only one hundred feet between her and
the tug when she could, with safety to herself, put a greater
distance between them, considering the circumstances of this
navigation, was bad seamanship. Watchful and careful officers,
having due regard to the rights of persons and property, would not
have taken the risk that the officers of the propeller did. They
surely risked enough by not changing the course of their boat until
she was close on to the tug. Common vigilance required that when
they changed the course of the propeller,
Page 79 U. S. 37
they should have made a more decided change. But these officers,
besides not going farther to the eastward, were in fault in not
checking the speed of their boat. They should not have entered a
narrow river where in the night there is always more or less danger
of collision, without materially slackening the speed at which they
had been running. And this was only the more incumbent on them
because, at so short a distance from the tug and bark, they should,
as careful seamen, have apprehended the possibility of danger."
On the second point -- the liability of the bark after examining
the evidence -- the circuit court said thus:
"It is plain, notwithstanding the faults of the propeller, that
this disaster would not have occurred had the bark followed, as she
was required to do, the course of the tug. That she did not follow
after the tug, but when the propeller was abreast of the tug,
sheered to the port of the tug, shutting out from the propeller her
red light and showing only her green light, and continued on in
this course until she struck the propeller on her port side as she
was swinging to starboard, is a fact clearly established by the
weight of the evidence. . . . I agree that it is not easy to
reconcile the sheering of the bark with the testimony of those on
board of her, but we are more concerned to know that the sheering
did occur than to show
how it occurred. . . . The
conduct of the bark was the result of either mistaken orders or
careless management. We have the testimony of the mate that an
important signal was mistaken, and it is not at all unlikely that
the error in management commenced with this mistake. It is in proof
that the bark through the night did not steer after the tug, and as
she was a good steering vessel, the inference is plain that there
was a want of proper observation on the part of those who had her
in charge. The approach of the propeller was not regarded by her,
because the officers of the deck understood the signal of the tug
for casting off line, instead of an approaching vessel. If a vessel
is in tow, she is not therefore excused from keeping close watch
and observing and obeying all signals. The duty of watchfulness was
the greater because the river was full of boats and, light as the
night was, there was more necessity for it than if it had been
daylight, but this duty does not seem to have been appreciated by
the officers of the bark. When the bark made the sudden
Page 79 U. S. 38
sheer to port, the propeller not being required to anticipate
it, did all she could under the circumstances -- put her wheel hard
a port."
"
It follows front what has been said that a decree
should be entered, dividing the loss."
The case was now here on appeal by the
owners of the
bark. The owners of the steamer did not appeal, being content
to pay half the loss, and they seeking simply an affirmance of the
decree of the circuit court.
Page 79 U. S. 40
MR. JUSTICE CLIFFORD delivered the opinion of the court.
Appeals under the additional act "to amend the judicial system"
are subject to the same rules, regulations, and restrictions as are
prescribed in case of writs of error. [
Footnote 5] Both parties in a civil action may sue out a
writ of error, to a final judgment, but where one party only
exercises the right the other cannot assign error in the appellate
court; and the same right to remove the cause from the subordinate
to the appellate court for reexamination is secured to both parties
by the act of Congress allowing appeals, instead of writs of error,
in cases of equity or of admiralty and maritime jurisdiction, or of
prize or no prize, as provided in the second section of the act
allowing such appeals. [
Footnote
6] Subject to the same rules and regulations as in case of
writs of error, both parties may appeal, in an equity, admiralty,
or prize suit, from the final decree of the subordinate court, but
the appeal, when entered in the appellate court, is also subject to
the same restrictions as are prescribed in case of writs of error.
Where each party appeals, each may assign error, but where only one
party appeals, the other is bound by the decree in the court below,
and he cannot assign error in the
Page 79 U. S. 41
appellate court, nor can he be heard if the proceedings in the
appeal are correct except in support of the decree from which the
appeal of the other party is taken. [
Footnote 7] Apply that rule to the present case and it is
clear that the appellants cannot be heard in opposition to the
decree of the circuit court, as they did not appeal from that
decree.
They were owners and freighters of the steam propeller
Cleveland, and they filed the libel in the district court
in a cause of collision, civil and maritime, against the bark
Maria Martin to recover damages for the loss of the
steamer and her cargo on the twenty-second of June, 1867,
occasioned by a collision between the bark and the steamer near the
mouth of the Detroit River whereby the steamer, with all her cargo
on board, consisting of sugar and other merchandise of great value,
was sunk in five fathoms of water and became a total loss.
Four days before the disaster, the steamer started from
Ogdensburg, in the State of New York, and she was bound on a voyage
from that port to the port of Chicago, in the State of Illinois,
laden as aforesaid and having fifty persons on board as passengers.
None of these facts is denied by the claimants, but the libellants
also allege that the collision was occasioned without any fault on
the part of the steamer and by the negligence, inattention, and
want of proper care and skill on the part of those in charge of the
bark, which is expressly denied in the answer.
Heavily laden with a cargo of grain, the bark was proceeding
down the river and was bound on a voyage from Chicago to Buffalo,
in the State of New York, both the colliding vessels being duly
enrolled and licensed for the coasting trade on those waters.
Propelled by her own motive power, the steamer had complete and
effective command of her own movements. On the other hand, the
principal motive power of the bark was the engine of the tug, with
which she was connected by means of a hawser paid out
Page 79 U. S. 42
from the forward part of the vessel, three hundred feet or more
in length, and made fast to the samson post of the tug, being what
is called in such navigation a stern line, as the design was that
the vessel without motive power should follow the tug which had her
in tow, but the bark on this occasion had unfurled, or "pretty well
made," her mainsail, and her mainstaysail, as she had nearly
reached the place in the river where vessels in tow usually cast
off from the tug, and her master and other officers were in charge
of her deck.
Prior to rounding Bar Point on the Canada shore, the course of
the steamer had been west by north, but shortly after passing that
point, she changed her course to north by east, and headed for Bois
Blanc light, as alleged by the libellants. In coming round, or
immediately after she was put upon her new course, she made the
lights of the tug and tow descending the river towards the lake,
heading south-southwest, at the distance, as supposed, of two
miles, and not far from two o'clock in the morning.
Attempt is made in argument to show that the lookout of the
steamer was incompetent, but the objection is without any legal
importance, as the lights of the tug and tow were seasonably seen
by all those in charge of the deck of the steamer. They first made
the red signal light of the tug and of the tow half a point over
their starboard bow, and the evidence shows that the tug having the
bark in tow made the green signal light of the steamer one-fourth
of a point over her port how.
Mutual fault is charged -- that is, each charges the other with
fault -- and it is quite evident that one or both must be guilty of
the charge, as neither imputes any fault to the tug, and the
evidence fully satisfies the Court that it was good weather, a
bright starlight night, a moderate wind, and smooth water.
Where negligence or fault is shown to have been committed by
either party, the rule that the loss must rest where it fell, as in
case of inevitable accident, can have no application, for if the
fault was one committed by the claimant's vessel
Page 79 U. S. 43
alone, then the libellant is entitled to recover; or if by the
libellant's vessel alone, then the libel must be dismissed; or if
both vessels were in fault, then the settled rule of law is that
the damages must be apportioned between the offending vessels.
[
Footnote 8]
Doubtless the district judge applied the second rule, as he
entered a decree dismissing the libel, but the circuit court came
to the conclusion from the evidence that both of the colliding
vessels were in fault, and reversed the decree of the district
court and entered a decree that each should pay a moiety of the
damages and their own costs, and from that decree the claimants of
the bark appealed to this Court, but the libellants did not appeal,
and of course they cannot assign error nor can they be heard in
opposition to the last-named decree. On the contrary, the decree is
conclusive as against the libellants that the steamer was in fault,
and the only question presented by the appeal of the claimants is
whether the circuit court erred in determining that the bark also
was in fault, for if she was, then the decree of the circuit court
must be affirmed, but if she was not, then the decree of the
circuit court must be reversed and the cause remanded with
directions to enter a decree affirming the decree of the district
court.
Vessels engaged in commerce are held liable for damage
occasioned by collision on account of the complicity, direct or
indirect, of their owners or the negligence, want of care, or skill
on the part of those employed in their navigation. Owners appoint
the master and employ the crew, and consequently are held
responsible for their conduct in the management of the vessel.
Allusion was frequently made in the course of the argument to
the fact that the bark was in charge of a tug, which renders it
necessary to make one or two remarks upon that subject before
proceeding to examine the real question presented for decision.
Page 79 U. S. 44
Whenever the tug is under the charge of her own master and crew
and in the usual and ordinary course of her employment undertakes
to transport another vessel, which for the time being has neither
her master nor crew on board, from one point to another over waters
where such accessory motive power is necessary or usually employed,
she is legally responsible for the navigation of both vessels.
Cases arise undoubtedly where both the tug and the tow are jointly
liable for the consequences of a collision, as when those in charge
of the respective vessels jointly participate in their control and
management and the master and crew of each vessel are either
deficient in skill, omit to take due care, or are guilty of
negligence in their navigation. Where the officers and crew of the
tow as well as the officers and crew of the tug participate in the
navigation of the vessels and a collision with another vessel
ensues, the tug alone, or the tow alone, or both jointly, may be
liable for the consequences according to the circumstances, as the
one or the other or both jointly were either deficient in skill or
were culpably inattentive or negligent in the performance of their
duties. [
Footnote 9] Much
examination of that subject, however, is unnecessary in this case,
as neither party imputes any fault to the tug, and it is clear from
the evidence that the imputation, if made, could not be sustained,
as it fully appears that she seasonably ported her helm and allowed
the steamer to pass her in safety.
All three of the vessels -- that is, the tug, the tow, and the
steamer, had their signal lights properly displayed, and the
respective lights were burning brightly and were easily
distinguishable. Suggestion is made that the lookout of the steamer
was incompetent, but the suggestion is entitled to no weight, even
if it be well founded in fact, as the proof is entirely
satisfactory that the two colliding vessels were seen by each other
in season to have taken every precaution to have avoided a
collision. They were approaching each other from nearly opposite
directions, which clearly rendered it
Page 79 U. S. 45
proper, as between the tug and the steamer, that each should
port their helms and pass to the right. Seasonable attention to
that rule would certainly have prevented a collision if the tow had
followed the movement of the tug, as she was bound to do, without
unnecessary delay.
Although the bark was larger than the steamer, yet her headway
was about the same as that of the steamer, as she was somewhat
aided by the current in addition to the motive power of the tag.
Larger in size and of greater length than the steamer, she probably
would not obey her helm quite as quick as the tug or the steamer,
but the evidence in the case fails to satisfy the Court that the
difference in that respect contributed in any degree to the
collision.
Probably those in charge of the steamer hesitated for a time as
to which side of the tug they would pass as they proceeded on their
course, heading nearly stem on until the tug and steamer approached
within half a mile or less of each other, when the tug sounded one
whistle and in half a minute repeated the same, as a signal that
she wished the steamer to pass on her port side. To that signal the
steamer responded, giving one whistle to signify her assent to that
request, and immediately ported her helm, and the tug at the same
time ported her own helm, turning the vessel half a point to the
starboard, and became steady on her course, the tug and steamer
passing each other port to port, leaving a berth between the
vessels of about one hundred feet, as appears by the weight of the
testimony.
Undisputed proof is exhibited that the steamer ported her helm
and that she turned to the right half a point and then steadied and
continued her course, and it is quite clear that there would have
been no collision if the bark had ported her helm and followed the
tug, and it is highly probable that the disaster would not have
happened if she had kept her course without changing her helm, but
she neither ported her helm nor kept her course, as is fully shown
by the evidence. Instead of turning to the right, as she should
have done, she starboarded her helm when the steamer was alongside
the tug and sheered to port, shutting out from the steamer
Page 79 U. S. 46
the view of her red light and showing only her green light, and
continued on that course till she struck the steamer. Orders were
given by those in charge of the steamer to put her helm
hard-a-port, but it was too late, and the collision took place.
Many theories have been advanced by the claimants as showing
that the bark did not sheer, but it is not possible to adopt any
one of them without rejecting conceded facts or facts fully proved
or without coming to the conclusion that the two vessels did not
collide, which would be in direct conflict both with the libel and
answer and the testimony of every witness in the case who was
present when the steamer sunk in the river.
Ingenious efforts are also made in argument to show that the
berth between the steamer and the tug when they passed each other
was not so great as that represented by the libellants. Suppose
that theory be admitted, still it cannot benefit the claimants so
long as it is conceded that the distance between them at the time
was sufficient to enable them to pass in safety and that the
steamer, while they were abreast, ported her helm and turned to the
right, which is as satisfactorily proved as it is that the steamer
and tug passed each other in safety.
Proved as these facts are beyond doubt, it is vain to suppose
that any theory can be adopted by the Court which will make it
necessary for the Court to shut its eyes to the evidence by which
those facts are established. Suffice it to say, the collision did
occur, and the Court is satisfied that the wheelsman of the bark
misunderstood the order to port and supposed it was an order to
starboard preparatory to casting off from the tug. He knew that the
bark, while she continued in tow, ought to follow the tug, but they
had reached the place where vessels in tow usually cast off from
the tug, and the master was engaged in adjusting the towage
account, and all on deck were looking for the order to cast off,
and under those circumstances it is less strange than it otherwise
might have been that the wheelsman should have made such a mistake.
Undoubtedly it was a great mistake,
Page 79 U. S. 47
but it has been fully proved, and it is clear that the collision
would not have occurred if it had not been made.
Whether the steamer was or was not also in fault is not a
question in this case, as that question was conclusively settled in
the circuit court, but it may not be improper to remark that if she
was so, it was because she did not put her helm hard-a-port before
she passed the tug and the moment those in charge of her navigation
noticed that the bark had shut in her red light and began to
display her green light, showing that she had starboarded her helm
and was turning to the left.
Errors committed by one of two vessels approaching each other
from opposite directions do not excuse the other from adopting
every proper precaution required by the special circumstances of
the case to prevent a collision, as the act of Congress provides
that, in obeying and construing the prescribed rules of navigation,
due regard must be had to the special circumstances rendering a
departure from them necessary in order to avoid immediate danger.
[
Footnote 10]
Viewed in the light of that exceptional rule, the better
opinion, perhaps, is that the entire decree of the circuit court
was correct.
Decree affirmed.
[
Footnote 1]
On the Canada shore;
see diagram at p. <|79 U.S.
34|>34.
[
Footnote 2]
On the American side;
see diagram, p. <|79 U.S.
34|>3434.
[
Footnote 3]
The theory of the libellants is illustrated in their diagram on
p. <|79 U.S. 34|>34.
[
Footnote 4]
The view of the district court, which was that pressed by the
respondents, is illustrated by their diagram on p. <|79 U.S.
35|>35.
[
Footnote 5]
2 Stat. at Large 244.
[
Footnote 6]
1
ib., 84; 2
ib., 244.
[
Footnote 7]
<|5 Wall. 412|>The William Bagaley, 5 Wall. 412;
<|9 Wall. 665|>The Quickstep, 9 Wall. 665;
The
Alonzo, 2 Clifford 550.
[
Footnote 8]
<|2 Wall. 557|>The Morning Light, 2 Wall. 557;
<|24 How. 313|>Union Steamship Co. v. New York & Va.
Steamship Co., 24 How. 313;
<|17 How. 170|>The
Catharine, 17 How. 170.
[
Footnote 9]
<|24 How. 121|>Sturgis v. Boyer, 24 How. 121;
Sproul v. Hemmingway, 14 Pick. 5.
[
Footnote 10]
13 Stat. at Large 61.
