1. Although one vessel may be sailing at night with lights other
than those whose use is made obligatory on her by acts of Congress,
and may by actually misleading another vessel tend to cause a
collision, yet this will not discharge the other vessel if she, on
her part, have suffered herself to be misled by the wrong lights
when, if she had been intelligently vigilant, other indications
would have pointed out or led her to suspect that the vessel was
not what her lights indicated.
2. Accordingly, where one vessel was using wrong lights, and the
other was not thus intelligently vigilant, the two vessels were
made to divide equally a loss by collision between them.
An act of Congress -- that of July 25, 1866 [
Footnote 1] -- prescribes that all coasting
steamers and those navigating
bays, lakes, or other inland
waters shall carry a green light on the starboard side, a red
light on the port side, and in addition thereto
a central range
of two white lights, the after light being carried at an elevation
of at least fifteen feet above the light at the head of the
vessel, the headlight to be so constructed as to show a good
light through twenty points of the compass -- namely from right
ahead to two points abaft the beam on either side of the vessel --
and the after light to show all around. It also enacts
that
oceangoing steamers shall carry "at the foremast-head
a bright white light," on the starboard side a green light, and on
the port side a red light, these two last so fixed as to throw the
light from right ahead to two points abaft the beam, and fitted
with inboard screens projecting three feet, so as to prevent these
lights being seen across the bow.
A previous act, the well known one of April 29, 1864, "for
preventing collision on the waters," [
Footnote 2] thus prescribes:
Page 81 U. S. 346
"ARTICLE 5. Sailing ships under way . . . shall carry the same
lights as steamships under way,
with the exception of the white
masthead lights, which they shall never carry."
"ARTICLE 13. If two ships under steam are meeting end on, so as
to involve risk of collision, the helm of both shall be put to port
so that each may pass on the port side of each other."
"ARTICLE 15. 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."
"ARTICLE 16. Every steamship, when approaching another ship so
as to involve risk of collision, shall slacken her speed or, if
necessary, stop and reverse."
These two statutes being in force, the steam propeller
North
Hampton and the side-wheel steamboat
Continental, two
vessels of rival lines, were in the habit of making regular daily
trips between New York and New Haven on the Long Island Sound, the
North Hampton leaving New York about 6 P.M. on one day,
and the
Continental leaving New Haven about midnight on
the same day.
On the night of the 23d of October, 1868, the rival vessels were
making their customary trips. That night, though cloudy and with
occasional spits of rain, was not very dark nor windy. The sea was
open and comparatively smooth. About midnight, the wind being
north-northeast, the
North Hampton approached New Haven,
and by the captain's order steered straight east-northeast for the
New Haven lighthouse; a right course apparently for her to steer
when about to enter the harbor. She soon saw the lights of a
steamer, which she inferred, and rightly, was the
Continental coming down and out of the harbor. After the
Continental came down the harbor, she changed her course
to go down the Sound towards New York. "When she first changed her
course," said the captain of the
North Hampton, who was
examined as a witness, "she headed directly for the
North
Hampton, which," said he, "I could tell by her range of
lights, they being exactly in range after she got her course." He
continued:
Page 81 U. S. 347
"After a little, her course varied a little southerly. She was
then, when she hauled up, on her course westerly, distant about
three miles. I continued going our course east-northeast until I
was distant from the
Continental, I should judge, about
three-quarters of a mile. She was then bearing a very little on our
port bow, nearly ahead. I then gave one blast of the whistle and
changed my course one point easterly to east by north. I received
no response to that whistle for, I should say, nearly or quite a
minute. I then heard two blasts of the
Continental's
whistle, which I immediately answered by one whistle, rung two
bells to stop the boat, and in the meantime told the pilot to heave
the wheel hard a-port."
Notwithstanding this the two steamers came violently together,
the
Continental striking the
North Hampton on her
port side a little abaft midships, nearly square on, and running
through her in such a way that she went down in half an hour; her
passengers just escaping with their lives.
The defense set up by the
Continental for this
collision was, the fact that the
North Hampton had had no
"central range of two white lights," for want of which, as the
Continental alleged, she took the steamer for a sailing
vessel, and starboarded her helm instead of porting it. On the
subject of the
North Hampton's lights generally, one of
the boat's hands of that vessel who had been at the wheel prior to
the collision, and left it when he saw the steamer coming down the
Sound, testified thus:
"I found the bow light burning brightly. The side lights were
also burning brightly. The stern light I found burning dim. There
were two lanterns in one box. They showed as one light. I went aft
and lowered it down. After I got the box down, I went into the door
where the space is, out of the draft, so they would not blow out,
and when there picked up the wicks of both lights, one after
another. After that was done, I took them to the staff and put them
in the box and hoisted them up. I heard the
North Hampton
blow one whistle. I was aft then, at the time of this first
whistle, was just stepping inside the passageway with the lights,
as near as I can recollect. After an interval, there was a reply
with two whistles from the
Continental. I was then coming
out of the passageway,
Page 81 U. S. 348
as near as I can remember. The
North Hampton blew one
whistle again, directly after. I was then in the act of hoisting
the lights at that time. After hoisting up the lights I saw the
Continental coming for us, and I ran forward on starboard
side. I got part of the way forward, when the vessels came together
and the concussion knocked me down."
It appeared from the testimony of those on board the
Continental that they had in point of fact mistaken the
North Hampton for a sailing vessel.
The lookout of the
Continental -- her forward deck
lookout, who had no other duty than that of lookout -- "not seeing
the vessel itself, but seeing a green and white light" -- which he
judged to be then a mile or a mile and a half distant -- reported,
five or six minutes before the collision, "Sail off starboard bow,"
and was answered at the pilot house, "Aye, aye!"
The wheelsman, who heard the lookout's report, saw also a green
and white light,
"but no red light then four or five minutes before the
collision, as he judged, and a mile or a mile and a half off, the
North Hampton's lights bearing pretty much the whole time,
until it was too late to avoid the collision, about three points on
the
Continental's bow."
He thereupon starboarded his helm so as to keep her
off.
The captain, who had been on the line for thirty years and who
was in the pilot house with the wheelsman, said:
"I saw the
North Hampton's green and white light; she
had no stern light; sometimes in a sailing vessel they come forward
and stick out a white light when they get frightened; sometimes
they have a light forward to overhaul the anchor chain."
The captain added:
"A lookout reports a steamer as a steamer, and a vessel as a
vessel; all he knows by is the lights; at night, he reports four
lights as a steamer, and two lights as a vessel. If the vessel seen
has one colored and only one bright light, he reports her as a sail
vessel. That's his orders."
On board the
Continental there happened to be,
going
Page 81 U. S. 349
down the Sound that night, one Horton, for seven years a
Hellgate pilot. He had been in the pilot house, and saw a green and
white light -- the white light forward, but he saw no aft light.
The vessel on which they were seemed to him, he testified, to be a
sailing vessel. He said:
"I guessed she was a sailing vessel because she did not have any
stern light; I could not see her hull when I first saw her. It is
generally the case for a vessel coming into port to take a light
forward, to get her chain and anchor ready to drop anchor. I went
away from the pilot house to the lower cabin after I saw the
lights. From the time I left the pilot house till the collision was
five or six minutes. After the collision, I saw a stern light
halfway up the flag mast."
As already mentioned, the
Continental was starboarded
under the impression that the
North Hampton was a sailing
vessel, and with a view of keeping out of her way. The
North
Hampton being in fact a steamer, and knowing that the
approaching vessel was one, ported. A collision came of course.
The owners of the
North Hampton having libeled the
Continental in the District Court of Connecticut, that
court dismissed the libel, considering that the
North
Hampton was in fault. having had no stern light, and running
in direct violation of law, which required her to have a central
range of two white lights. The circuit court affirmed this decree,
and the owners of the
North Hampton brought the case
here.
Page 81 U. S. 354
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Ships and vessels are held liable for damage occasioned by
collision, either on account of the culpable neglect or complicity,
direct or indirect, of their owners, or on account of the
negligence, unskillfulness, or carelessness of those employed in
their control and navigation. When employed in
Page 81 U. S. 355
navigation ships and vessels should be kept seaworthy and be
well manned and equipped for the voyage, and in cases where they
are not seaworthy or not well manned or equipped, and a collision
ensues between such a vessel and one without fault in that respect,
the owners of the vessel not seaworthy or not well manned and
equipped cannot escape responsibility, if it appears that the
unseaworthiness of the vessel or the want of a competent master or
of a sufficient crew or of suitable tackle, sails, or other motive
power, as the case may be, caused or contributed to the disaster;
and as the owners of the vessel appoint the master and employ the
crew, they are also held responsible for their conduct in the
control and navigation of the vessel.
Controversies growing out of collisions are cognizable in the
admiralty, and when prosecuted in that jurisdiction, the rules of
decision are different in several respects from those which prevail
even in similar controversies when prosecuted in the courts of
common law. Where the collision occurs exclusively from natural
causes and without any fault on the part of the owners of either
vessel or those entrusted with their control and management, the
maritime rule, as defined by the federal courts is, that the loss
shall rest where it falls, on the principle that no one is
responsible for such a disaster when produced by causes over which
human skill and prudence could exercise no control. [
Footnote 3] Admiralty courts everywhere have
now adopted that rule, but it cannot be applied where both or
either of the vessels are in fault -- as where the vessel of the
respondent is alone in fault the libellant is entitled to a decree
for his damages, and the converse of the proposition is equally
true, that if the vessel of the libellant is alone in fault, proof
of that fact is a sufficient defense to the libel, but if both
vessels are in fault, then the damages must be equally apportioned
between the offending vessels. Much uncertainty often attends the
inquiry by which of those rules a given controversy should be
determined, and where the evidence is conflicting the issue
presented is frequently one of doubt and difficulty.
Page 81 U. S. 356
Full damages are claimed by the libellants in this case, upon
the ground that the steamboat of the respondents was alone in
fault, or if that theory cannot be sustained, then they contend
that both steamers were in fault and that the damages should be
divided. On the other hand, the respondents contend that the vessel
of the libellants, the propeller, was wholly in fault, and that the
decree of the circuit court dismissing the libel should be
affirmed.
Daily trips were run by the propeller between the ports of New
Haven and New York, carrying passengers and freight, and she was on
her return trip from the latter port and near the entrance to the
harbor of her home port when she was struck by the
Continental, the steamboat of the respondents, on her port
side, abaft her midships, and damaged to such an extent that she
sunk in half an hour. Corresponding trips were run by the steamboat
of the respondents between the same ports, the
Continental, however, usually leaving the port of New
Haven on the same day that the propeller, the
North
Hampton, left New York on her return trip to the port where
both steamers belonged. Accustomed as they were to start on their
respective trips at stated hours, each knew pretty nearly when they
would meet and where they would pass each other on the route,
except when one or the other was detained by stress of weather or
other special circumstances, and the proofs exhibited furnish no
reason to suppose that either of the steamers met with any
detention during this trip. Testimony was taken on both sides and
both parties having been heard, the district court entered a decree
for the respondents. Prompt appeal was taken by the libellants to
the circuit court, but the circuit court affirmed the decree of the
district court, and the libellants appealed to this Court.
Before the
Continental came out of the lower harbor her
lights were seen by those on board the propeller when the two
steamers were four or five miles apart. Distant from each other as
they then were, the better opinion is that they were not at that
time on courses which involved any risk of collision, but the
Continental, shortly after she came out of
Page 81 U. S. 357
the lower harbor, hauled up as usual on her Sound course,
heading more directly towards her ultimate destination, and from
that moment the course of the two steamers was such that the rules
of navigation as well as the dictates of common prudence made it
the duty of each to adopt proper precautions to prevent a
collision. Beyond doubt, they were approaching each other nearly
end on, within the maritime meaning of that phrase, and under such
circumstances all must admit that the rules of navigation require
that "the helms of both shall be put to port, so that each may pass
on the port side of the other." [
Footnote 4]
Extended argument to establish that theory of fact does not
appear to be necessary, as it agrees with the first finding of the
district judge and is supported by all the attending circumstances
as well as by the weight of the direct testimony. Evidently the two
steamers were far enough apart at that time to have adopted
whatever precautions were necessary to have prevented a collision,
and it is clear that if each had obeyed the rules of navigation,
they would have passed each other in safety. Fault is imputed to
the steamboat
Continental, because she did not port her
helm as required by the rules of navigation established by the act
of Congress, but the respondents contend that they were deceived
and misled as to the character of the approaching vessel and
consequent nature of their duty by the failure of those on board of
the propeller to display proper lights, as they also were required
to do by the same Congressional regulations, as amended by a
subsequent act. [
Footnote
5]
Evidence to that effect was given by one of the witnesses called
by the libellants. He testified that he was at the wheel prior to
the collision; that he saw the
Continental coming down the
harbor and spoke to another seaman to take his place; that the
seaman spoken to did as requested; that he went and called the
master and the mates; that he looked at the lights; that the bow
light and both the side lights were burning brightly, but that the
stern light, which
Page 81 U. S. 358
consisted of two lanterns and showed as one light, he found was
"burning dim;" that he went aft and took down both lanterns and
went forward in the passageway on the starboard side and having
picked up the wicks carried the lanterns back and put them in the
box where they belonged; that he stepped forward into the
passageway to get out of the draft, so that the wind might not blow
the lights, out, and he further states that he heard the propeller
give one whistle just as he was stepping into the passageway with
the lanterns; that he also heard two whistles from the
Continental in reply just as he was returning to replace
the lights in the box; that the propeller, just as he was hoisting
the lanterns, again blew one whistle; that after he replaced the
lights he saw the
Continental approaching the propeller,
when he ran forward part way and was knocked down by the
concussion.
Such a disaster could not have occurred without fault on the
part of one or both vessels, as they had an open sea and good
weather, and the night, though cloudy, was not very dark, as fully
appears from the fact that those on board the propeller saw the
lights of the
Continental when she was at least four miles
distant.
Coasting steamers are required to carry a central range of two
white lights as well as the red and green lights prescribed for
oceangoing steamers, the after light to be carried at least fifteen
feet above the light at the head of the vessel, and the requirement
of the act of Congress in respect to it is that it shall "show all
around the horizon." [
Footnote
6] Signal lights are required by the acts of Congress in order
that they may be seen by an approaching vessel in season to enable
those in charge of the vessel to adopt the necessary precautions to
prevent a collision with the vessel whose lights are so displayed,
and when it appears that they were burning so dimly as not to
fulfill the purpose and object for which they are required, they
cannot be regarded as constituting a compliance with the prescribed
requirement. [
Footnote 7] Apply
that rule to the present case and it is quite clear that the
propeller
Page 81 U. S. 359
was in fault, and it appears that the district and circuit
courts both came to the conclusion that she was solely in fault and
denied to the libellants all claim for damages, either as owners of
the propeller or as bailees of the cargo. Whether that decision is
correct or not must depend upon the evidence, as it is clear that
the absence of one or more of the lights required by the act of
Congress will not necessarily cast upon the delinquent party the
entire consequences of such a disaster. Absence of lights in a case
falling within the acts of Congress renders the owners of the
vessel liable for the consequences resulting from the omission, but
it does not confer any right upon the other vessel to disregard or
violate any rule of navigation or to neglect any reasonable or
practicable precaution to avoid a collision which the circumstances
afford the means and opportunity to adopt.
Steamers displaying proper signal lights are in that respect
without fault, but they have other duties to perform to prevent
collision besides complying with that requirement, and if they
neglect to perform such other duties they will not be held
blameless because they displayed proper lights as required by the
act of Congress upon that subject. [
Footnote 8]
Some conflict undoubtedly exists in the testimony as to the
precise manner in which the two steamers were approaching each
other after the
Continental came out of the harbor and
hauled up upon her Sound course, but the better opinion we all
think is that they were approaching each other nearly end on, or
substantially in that manner, as found by the district court.
Inquiry as to what their respective courses were before that time
would be useless, as the respondents do not claim that either the
lookout or master of the steamboat saw the propeller or her lights
before the steamboat was put upon her Sound course. Unquestionably
the lights of the propeller might have been seen earlier, but it is
clear that they were not, if the witnesses are to be believed.
Lookouts are required to be vigilant, and it is not doubted
Page 81 U. S. 360
if proper vigilance had been exercised in this case those on
board the steamboat might have ascertained the character of the
approaching vessel in season to have adopted every necessary
precaution to have avoided a collision. They must have expected to
meet the propeller about that time, and under the circumstances
they had no right to assume without a closer scrutiny that the
approaching vessel was a sail vessel because she did not show a
stern light. She did show a bow light, which might well have
satisfied them that the vessel was not a sail vessel, as it is more
reasonable to suppose that the stern light of a steamer has become
dim or extinguished than that a sail vessel will show a light not
required nor authorized by the prescribed regulations. Proper
scrutiny as to the character of the approaching vessel would or
should have induced greater caution on the part of the master of
the
Continental, and if any doubt remained after such
scrutiny was made the steamboat should have slackened her speed or
have stopped until every reasonable degree of uncertainty was
overcome. Navigators have no right arbitrarily to assume under all
circumstances that every vessel approaching which does not show
both the signal lights and the central range of two white lights is
a sail vessel which is bound to keep her course, and that if she
does not she may be run down and sunk.
Prior to the enactment of the sailing rules neither steamers nor
sail vessels, except on the lakes, were required to carry lights of
any kind, and yet the rules of navigation were substantially the
same as those prescribed in the existing acts of Congress. Lights
are now required, but the omission of one vessel to comply with the
requirement will not excuse the other from the exercise of all due
and reasonable care to prevent a collision. [
Footnote 9]
Viewed in the light of these suggestions, as the case must be,
the Court is fully satisfied that those in charge of the steamboat
did not exercise due care and vigilance to ascertain the character
of the approaching vessel, and that if
Page 81 U. S. 361
they had done so they would have been enabled to have adopted
reasonable precautions to have prevented the collision.
Consequently the Court is of the opinion that both vessels were in
fault, and that the damages should be equally apportioned between
the offending vessels. [
Footnote
10]
Where two steamers are approaching each other in an open sea on
a night when the lights of a vessel may be seen five miles, the
defense that one of the steamers mistook the other for a sail
vessel cannot be admitted as valid unless it is established by full
proof, and where, as in this case, it appears that the approaching
steamer showed a bow light in addition to the red and green lights,
the Court will be still less inclined to give credence to the
theory as a valid defense.
Decree reversed and the cause remanded for further
proceedings in conformity to the opinion of this Court.
[
Footnote 1]
14 Stat. at Large 228.
[
Footnote 2]
13
id. 58.
[
Footnote 3]
Union Steamship Co. v.
N.Y. & Va. Steamship Co., 24 How. 313.
[
Footnote 4]
13 Stat. at Large 60.
[
Footnote 5]
14
id. 228.
[
Footnote 6]
14 Stat. at Large 228-229.
[
Footnote 7]
Chamberlain v.
Ward, 21 How. 566.
[
Footnote 8]
The Gray
Egale, 9 Wall. 510.
[
Footnote 9]
13 Stat. at Large 58; 9
id. 382; 14
id. 228;
Steamship Company v.
Rumball, 21 How. 384.
[
Footnote 10]
Catharine v.
Dickinson, 17 How. 170; 1 Parsons on Shipping 527;
The Morning
Light, 2 Wall. 557.
