The Scotia, 81 U.S. 170 (1871)
U.S. Supreme CourtThe Scotia, 81 U.S. 14 Wall. 170 170 (1871)
81 U.S. 170
1. Although it is the clear duty of an ocean steamer sailing at night to keep out of the way of a sailing vessel, yet if the course of the sailing vessel, when first seen, is such that, compared with her own, no collision is probable, the steamer is not bound to change, her course. She need but watch and see that the courses of the two vessels are preserved. It is only when the sailing vessel does change her course, so its to render a collision possible, that the steamer must change hers also, and if she then makes the proper maneuvers to take herself from the sailing vessel, and when collision becomes more probable slows, stops, and backs, all as the best judgment that can be formed in the emergency suggests, she is not liable for the collision.
2. The statutes of the United States and the orders in council of Great Britain having each prescribed the sort of lights which, on the one hand, their steamers are to carry at night, and the different sort which, on the other, their sailing vessels are to carry, and both nations adopting in this form the same distinction in the sorts of lights for the two sorts of vessels respectively, the Court declares that where a British steamer and an American sailing vessel are navigating at night in the known path of vessels navigating between the United States and Great Britain, so that there is a reasonable probability that vessels in that path would be either American or British, a steamer may, in the absence of knowledge, act upon the probability that a vessel whose light she sees while she cannot distinguish at all the vessel herself, is such a vessel as her light indicates, and apply the rule of navigation common to the two countries accordingly.
3. Under the existing statutory regulations of the United States and Great Britain (stated more fully infra, pp. 81 U. S. 171-172), both of which on the one hand require sailing vessels to carry colored lights and not to carry a white one, and both of which, on another, require steamers to carry a white light at their mastheads -- when an American sailing vessel carries in mid-ocean at night a white light hung at her bow, fastened low
down, and carries no colored lights anywhere, a British steamer, not able to discover what she really is, may be excused for mistaking her for a steamer, and a steamer at a distance instead of near at hand.
4. Semble that the navigation laws of the United States requiring different sorts of vessels to carry different sorts of lights, bind American vessels on the high seas as well as in American waters, and that the people of other nations navigating the high seas may properly sue our citizens in our courts for injuries occurring through the disregard of them.
5. The rules of navigation established in the British orders in council, of January 9, 1863 (prescribing the sorts of lights to be used on British vessels), and in our act of Congress of 1861, having, before the close of the year 1864, been accepted as obligatory by more than thirty of the principal commercial states of the world, including almost till which have any shipping on the Atlantic Ocean, were in April, 1867, to be regarded, so far as relates to the vessels of these states, as laws of the sea. And of the historical fact that by common consent of mankind, they have been acquiesced in as of general obligation, courts may take judicial notice.
6. Those rules having prescribed that sailing vessels should not carry a white light, and that steamers should carry one at their masthead, a sailing vessel which carried a white light low down, so that she, looked like a steamer yet at a distance, was held to be without remedy where she had collided with a steamer which mistook her for another steamer and maneuvered accordingly.
Appeal from the circuit court for the Southern District of New York in a case of collision between the American ship Berkshire and the British steamer Scotia, by which the ship was sunk and totally lost.
On the 9th of January, 1863, a British order in council, authorized by virtue of the Merchant Shipping Amendment Act of July 29, 1862, 25 and 26 Victoria, made a body of "Regulations for preventing collisions at sea." Among these were "Rules concerning lights," and "Steering and sailing rules."
In the first class were these:
"LIGHTS FOR STEAMSHIPS"
"ART. 3. Sea-going steamships when under way shall carry --"
"(a) At the foremast head, a bright white light . . . of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles."
"(b) On the starboard side, a green light &c., visible on a dark
night, with a clear atmosphere, at a distance of at least two miles."
"(c) On the port side, a red light &c., visible on a dark night, with a clear atmosphere, at a distance of at least two miles."
"(d) The said green and red side lights shall be fitted with inboard screens, projecting at least three feet forward from the light so as to prevent these lights being seen across the bow."
"LIGHTS FOR SAILING SHIPS"
"ART. 6. Sailing vessels under way . . . shall carry the same lights as steamships under way, with the exception of the white masthead lights, which they shall never carry."
In the steering and sailing rules was this one:
"SAILING SHIP AND SHIP UNDER STEAM"
"If two ships, one of which is a sailing ship and the other a steamship are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship."
All these regulations, as originally promulgated by Great Britain, were made applicable to all ships, whatever their nationality, within the limits of British jurisdiction, and to British and French ships whether within British jurisdiction or not. The Merchant Shipping Amendment Act, in virtue of which these regulations were passed, provided also that whenever it should be made to appear to the British government that the government of any foreign country was willing that these regulations should apply to the ships of such country, when beyond the limits of British jurisdiction, Her Britannic Majesty might, by order in council, direct that such regulations should apply to the ships of such foreign country whether within British jurisdiction or not.
On the 29th April, 1864, [Footnote 1] the Congress of the United States passed its "act fixing certain rules and regulations for preventing collisions on the water," and these rules as respects seagoing vessels being, to all intents, identical with those above quoted from the British act, the British government
regarded the act of Congress as an expression by our government, that it was willing that the British regulations should apply to our ships when beyond the limits of British jurisdiction. The British government accordingly, by order in council, directed that the regulations should apply to all seagoing vessels of the United States, whether within British jurisdiction or not.
The governments of various other countries soon also manifested their willingness that the British regulations should apply to their ships respectively when beyond the limits of British jurisdiction, and orders in council accordingly directed that such regulations should apply to the ships of such countries respectively, whether within British jurisdiction or not. The countries referred to were Austria, the Argentine Republic, Belgium, Brazil, Bremen, Chili, Denmark proper, the Republic of the Equator, France, Greece, Hamburg, Hanover, the Hawaiian Islands, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, the Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, the Roman States, Russia, Schleswig, Spain, Sweden, Turkey, Uruguay. These orders in council were published at various dates, from January 13, 1863, to February 6, 1866. All countries named except Denmark, Greece, the Hawaiian Islands, Schleswig, and the United States adopted the regulations in 1863.
With these various statutes and orders in existence, the Scotia, a British steamer of the Cunard line, steering west by north one-half north, was sailing about midnight on the 8th of April, 1867, near mid-ocean, from Liverpool towards New York. Her lookouts were properly set, and her lights rightly stationed -- that is to say, a white light was at her masthead, a green light on her starboard or right side, and a red light on her port or left side, all burning brightly.
Sailing at the same hour, equally about mid-ocean, the Berkshire, a sailing ship belonging to the American marine, was on her voyage from New Orleans to Havre, and with a wind free, blowing from about south-southwest, was pursuing a course southeast by east one-half east, as indicated by the
following diagram. The courses of the two vessels thus intersected at an angle of exactly one point.
The Berkshire had no colored lights anywhere, nor any light but a white light, and this was at her bow, fastened to her anchor stock and raised about four feet above her deck. Of course, if the Scotia should mistake this light for a light fastened on the masthead of the Berkshire, she would infer from its apparent proximity to the water that the Berkshire was far off.
The Scotia was first seen from the Berkshire bearing one point or so off the ship's port bow, at a distance apparently of five or six miles. Then the steamer's white masthead light only was seen.
Immediately on her sighting the steamer, which was at most from fifteen to twenty minutes before the collision, her mate gave an order to luff, and she did luff, so as to head more into the wind. The effect of this was to make her go further to the south and thus diverge farther from the course of the steamer. She continued in this new direction ten or fifteen minutes, when, moving at the rate at which it was proved that the vessels were moving, she could not have been more than one or two miles from the Scotia. Her helm was then suddenly put to starboard, then steadied for a brief period, then put hard a-starboard and kept there, thus pointing her directly across the bow of the approaching vessel. By keeping her helm hard a-starboard, she was made to
change her course constantly. The diagram on the preceding page may perhaps assist the reader's comprehension. The dotted lines represent the Berkshire's movements.
Before she bore away, the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master.
The Scotia saw the white light on the Berkshire in due time, and first saw it off her port bow, from one to two points. Seeing a white light, the deck officer of the Scotia took the vessel for a steamer, and from the proximity of the light to the water inferred that she was far off, coming in fact just above the horizon, and accounting for the nonappearance of the usual colored lights because he supposed that they had not come up to view. [Footnote 2] He thus not only supposed the Berkshire to be a steamer, but judged that the supposed steamer was at a much greater distance than it was in fact. As already signified, the location of the light warranted the supposition, and its color gave no indication that it was on a sailing vessel. After its discovery, the ship's light opened on the steamer's port bow; how much it opened was a matter somewhat agitated by the witnesses and the counsel, though this Court considered that matter immaterial, because if it receded at all it indicated that there was then no danger of collision without some change of course, and consequently no necessity to take measures to avoid one. The weight of the evidence was that the ship had not then turned her course northward, but if she had, it was still proved that her light opened on the Scotia's port side, after it was first seen, and before the steamer's course was changed. Soon after, and because of the ship's change of course, her light began to close in on the steamer's bow, and then for the first time was there any apparent danger of collision. Then the Scotia's helm was immediately ported, then hard ported, and observing that the ship's light still closed in, orders were given, in quick succession, to half-speed, slow, reverse, and
back, but notwithstanding these orders, which were all promptly obeyed, the vessels came together in the position indicated on the diagram, and the Berkshire with her cargo went right down in mid-ocean.
The owners of the Berkshire, one Sears and others, now for themselves and the owners of the cargo, filed their libel in the district court at New York to recover the loss sustained by the collision. The libel charged, of course, that the collision occurred through the fault of the Scotia. The district court decreed for the respondents. The view of that court was that courts of admiralty were now required to take judicial notice of the existence of the British orders in council, and of the fact that so numerous maritime states had accepted them; that so general and adoption by such states of one rule had made a rule and usage of the sea; that by this rule and usage -- in other words, by the law of the sea as it existed at the time of the collision -- the Berkshire was bound to exhibit colored lights, and colored lights alone; and that as she had not done so, she had no remedy.
The decree therefore was, that the libel be dismissed, and the circuit court affirming this decree, the case was now here for review.