The Continental, 81 U.S. 345 (1871)
U.S. Supreme CourtThe Continental, 81 U.S. 14 Wall. 345 345 (1871)
81 U.S. (14 Wall.) 345
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:
"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:
"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,
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
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.