1. The obligation of a "lookout" on vessels sailing, in crowded
waters such as the Bay of New York is of the highest kind. His care
must be indefatigable; his vigilance sleepless; and the rigor of
the requirement rises according to the power and speed of the
vessel on which be is.
2. When strong evidence, in a case of collision, tends to show
that the catastrophe was owing to the failure of the lookout of the
vessel libeled to attend to his duty, every doubt as to the
performance of the duty and the effect of nonperformance should be
resolved against the vessel sought to be inculpated until she
vindicates herself by testimony conclusive to the contrary.
3.. Although where the circuit and district court both agree on
a question of alleged fault in a vessel libeled for collision, this
Court will not readily reverse, yet it will do so where, after
examination, its conviction is that both the courts below were
This was an appeal in admiralty from the decree of the Circuit
Court for the Southern District of New York; the case being one
arising from a collision between the steamer Ariadne and the brig
William Edwards, and the questions being purely questions of
MR. JUSTICE SWAYNE stated the case and delivered the opinion of
The collision which is the subject of this appeal occurred in
the night of the 13th of December, 1865, off the Jersey coast about
twelve miles from Barnegat and eight miles from land. The brig was
on a voyage from Havre to New York. The wind was north-northeast.
The brig was on her port tack, with her starboard side to the
steamer, and going at the rate of four or five miles an hour. She
was sailing closehauled, as near as she could lie to the wind, and
heading west-northwest or northwest. The steamer
Page 80 U. S. 476
was bound from New York to New Orleans, and was upon one of her
regular trips. She was laden with freight and carried passengers.
She was on her proper course, south by west one-quarter south, and
running at the rate of seven or eight knots an hour. The brig did
not change her course down to the time of the collision. The
steamer was first made from the brig about five points from her
starboard bow. She was not discovered from the steamer until it was
too late to avoid the collision. The steamer struck her on her
starboard side, abaft the main chains. The blow was of such force
that it cut through into her cabin and down to the water's edge.
She sunk in a short time. This libel was filed by her owners to
recover damages for her loss. It was dismissed by the district
court. The decree was affirmed by the circuit court. The decree of
the latter has been brought here by this appeal for review. In this
Court, the controversy between the parties has been narrowed down
to two points.
It is insisted by the claimant of the steamer that the brig had
no green light, or an insufficient one, on her starboard side, that
the collision is due to this cause, and that the steamer is
The libellants deny this impeachment as to the light, and
contend that the lookout on the steamer wholly failed to do his
duty; that he could and should have seen the brig whether she had
or had not a sufficient green light in season to enable the steamer
to avoid the collision, and that in this particular there is fault
on her part. We shall consider the case only in these aspects.
In regard to the light on the brig, the testimony, as usual in
such cases, is conflicting. We think that which sustains the
negative largely preponderates. We find no sufficient reason to
doubt that Morgan (the brig's lookout) told the truth. He
"The binnacle light used to bother me -- it would frequently go
out. There was something about the oil that was not right. . . .
When I was on the lookout, I noticed our starboard light, but not
until the Ariadne
was very near to us. I stepped to the
Page 80 U. S. 477
the brig, thinking that our light might not be burning and that
might therefore run into us, and then I looked
at our starboard light. The light was very dim. I was, I should
judge, fifty feet from the light when I looked at it, and could see
it plainly. As light was then burning, I should not think it could
be seen over two hundred feet."
This testimony is fully sustained by all the witnesses, six in
number, who were on the steamer. They were in positions to see the
light, and must have seen it if it were distinctly visible. The
probative force of these proofs is not overcome by the testimony of
the libellants. Both the courts below held the charge to be
established, and we see no reason to dissent from the conclusion at
which they arrived.
The steamer was about two hundred feet long. She obeyed her helm
with unusual quickness. When running at her then speed, she could
be easily stopped in a space of about twice her length. She
approached the brig in the direction most favorable for her lookout
to see the hull and sails of the latter. According to the steamer's
testimony, a vessel without a light could be seen the eighth of a
mile. Her testimony also shows the following facts: She had but one
lookout. The second mate saw the brig first. He asked the lookout
if he saw her. The lookout thereupon turned and saw her. He had not
seen her before. He saw no light, and could not tell which way she
was heading. Malony, who was at the wheel of the steamer, says:
"I saw the brig just a moment before the first bell struck. The
second mate struck first one bell, and then a second bell, and then
rung again. There was not a second between. It was done as quick as
lightning. . . . The Ariadne
swung about a point and a
half, or two points before we struck."
The lookout says the steamer ran about a length between the time
when he first saw the brig and the time when the steamer struck
There is no controversy as to the facts thus stated. They are
undisputed and indisputable. Certain inferences from them are
Page 80 U. S. 478
The brig was not seen by the lookout or anyone else on the
steamer when she was distant as far as she could have been seen.
She was not seen by the lookout at all until his attention was
called to her by the mate. She was not seen by either of them until
almost at the moment of the collision. It is by no means certain
that the lookout would have seen her before he felt the shock but
for the inquiry of the mate. He was on the port side, and had been
looking, according to his own account, three minutes in the
opposite direction. The discovery came too late to do any good. The
catastrophe was then unavoidable. For all the purposes of this
case, there might as well have been no lookout on the steamer. He
could have rendered, and it was his duty to render, a service of
vital importance, but he rendered none. If the brig had been seen
when she became visible from the steamer or very some thereafter,
the collision could have been avoided. It would have been the duty
of the steamer to stop or slow her engine until everything as to
the brig necessary to be known was ascertained. This would
doubtless have been done, and if so the result which followed would
have been averted. Indeed, it would have been impossible to occur.
We think the conduct of the lookout was marked by gross
carelessness, and that it was clearly one of the concurring causes
of the disaster.
The waters near the City of New York are at all times crowded
with shipping. Navigation there is not unlike the traveler
threading his way through the mazes of a forest, with the
difference that most of the objects to be avoided are also in
motion. The greatest care and caution are necessary. The duty of
the lookout is of the highest importance. Upon nothing else does
the safety of those concerned so much depend. A moment's negligence
on his part may involve the loss of his vessel with all the
property and the lives of all on board. The same consequence may
ensue to the vessel with which his shall collide. In the
performance of this duty the law requires indefatigable care and
sleepless vigilance. The rigor of the requirement rises
Page 80 U. S. 479
according to the power and speed of the vessel in question. It
is applied with full force to the steamships belonging to our
commercial marine. If this were not so, there would be no safety
for other vessels. But it is equally important to vessels of that
powerful class for their protection from one another. It is the
duty of all courts charged with the administration of this branch
of our jurisprudence to give it the fullest effect whenever the
circumstances are such so to call for its application. Every doubt
as to the performance of the duty and the effect of nonperformance
should be resolved against the vessel sought to be inculpated until
she vindicates herself by testimony conclusive to the contrary.
The fault of the brig does not excuse the fault of the steamer
if the latter were, in any degree, a contributory cause of the
collision. [Footnote 2
Both vessels being in fault, the damages must be divided.
We are not unmindful that both the circuit and district court
came to a conclusion different from ours as to the alleged fault of
Their judgments are entitled to, and have received, our most
respectful consideration. Their concurrence raises a presumption,
that they are correct. Mere doubts should not
be permitted to disturb them. But the presumption referred to may
be rebutted. The right of appeal to this Court is a substantial
right, and not a shadow. It involves examination, thought, and
judgment. Where our convictions are clear and differ from those of
the learned judges below, we may not abdicate the performance of
the duty which the law imposes upon us by declining to give our own
judicial effect. [Footnote
Decree reversed and the cause remanded to the circuit court
with directions to enter a decree in conformity to this
The Louisiana v.
21 How. 1; Chamberlain v.
21 How. 549; Genesee
12 How. 443.
21 How. 549; Gray
9 Wall. 505.
9 Wall. 669.