The Pennsylvania, 86 U.S. 125 (1873)
U.S. Supreme CourtThe Pennsylvania, 86 U.S. 19 Wall. 125 125 (1873)
86 U.S. (19 Wall) 125
1. A collision occurred in a very dense fog between a sailing bark and a large steamer about two hundred miles from Sandy Hook, and therefore in the track of inward and outward bound vessels. The bark was under way moving slowly, and at about the rate of a mile an hour, and was ringing a bell as a fog signal. The steamer was going at the rate of seven knots an hour.
Held that the damages were to be equally divided between the two vessels, as, being both in fault, the steamer in moving in such a place at so rapid a rate in so dense a fog, the bark for her violation of the Act of Congress for preventing collisions at sea (identical in this respect with the British Merchants' Shipping Act), which requires, in its "Rules concerning Fog Signals," that "sailing vessels under way shall use a fog horn," and "when not under way shall use a bell."
2. Although if it clearly appears that a fault committed by a vessel has had nothing to do with a disaster which has occurred, the liability for damages is against the vessel alone which has produced the disaster, still where a vessel has committed a positive breach of statute, she must show not only that probably her fault did not contribute to the disaster, but that certainly it did not; that it could not have done so. In this case, therefore, Congress having made the use of a fog horn obligatory on sailing vessels under way in a fog, it was declared to be out of place to go into an inquiry whether in fact a bell gave notice to the steamer that the bark teas where she was as soon as a fog horn would have done.
"Rules governing Fog Signals"
Whenever there is a fog, whether by day or night, the fog signals described below shall be carried and used:
Steamships under way shall use a steam whistle.
Sailing ships under way shall use a fog horn.
Steamships and sailing ships when not under way shall use a bell.
This statute being in force, the Mary Troop, a British bark, was bound from Androssan, in Scotland, to New York, with a cargo of iron, and at ten o'clock on a morning of June, 1869, found herself still on the high seas, about two hundred miles from Sandy Hook. A dense fog was prevailing at the time, so thick that a large vessel could hardly be seen at the distance of fifty feet. The wind was variable, and rather strong from south to southwest. The bark was under
way, heading from southeast to south-southeast, and moving at least a mile an hour, her helm lashed three-quarters to port, but on her starboard tack, carrying two close-reefed topsails, foresail, foretopmast and mizzenstay sails; no sail aback. She had a bell, hung to the forestay by a reef-earing to the forestay, and this bell was rung by a lanyard tied to the tongue of the bell, from fifteen to twenty times a minute. She also had a good fog horn. This horn had been used the day before, but was not used on the morning of which we are speaking.
The whistle of a steamer was heard through the fog off the port side. The second mate, who had just at that moment reached the deck, called to the captain and mate, "Do you hear that fog horn?" The mate replied, "It is a whistle," and he and the captain at once ran aft. As they got on the quarter deck, the bows of a large steamer appeared through the fog heading rapidly for the bark, and but a short distance off. The steamer appeared to be then swinging on a starboard helm, but almost instantly changed her course on a port helm and struck the bark stem on, on the port side of the bark by the fore-rigging. The blow cut the bark in two and she sank instantly. The captain, the second mate, and four of the crew were drowned. The only persons saved were the mate, the cook, and two men who were in the watch below.
The steamer proved to be the British steam propeller Pennsylvania, a vessel of 300 horsepower, 2,388 tons, and 341 feet long. Her speed at the time when she thus appeared to the bark and coming down upon her, was seven knots an hour.
There was nothing in the evidence beyond the evidence of her speed -- if that was proof of want of precaution -- to show any want of efficiency, vigilance, or precaution in the navigation and management of the steamer up to the first intimation of the bark's proximity. She had two lookouts at their stations, "keeping their eyes and ears open for anything that might come in the way." They heard the bell of the bark and reported, "ship ahead, a little on the starboard
bow." Order was given to the engineer, "Full speed astern," and the order was executed as soon as practicable. The helm was ported; then a call to "starboard" was heard from some quarter, and she starboarded; then again ported, but in less than half a minute after the report of "ship ahead" was made, and before the steamer had run her own length, she went head on into the bark, with the deplorable result already stated.
When the steamer had got in the port of New York, the owners of the bark libeled her in the district court there.
There was comparatively little dispute about facts. It was admitted that the steamer's rate was seven knots an hour. Her master was examined, and said:
"The steamer was going seven knots. Her highest rate of speed under the most favorable circumstances, is thirteen and a half knots. The wind the day of the collision was south-southwest, strong. The wind had been this way all the morning, and I think all the night. There was a good heavy swell -- more than there should have been for the wind there was."
"Question. I with the wind and sea as it was, could you have run your vessel safely at a less rate of speed?"
"Answer. I don't consider we could have steered the vessel, going slower -- that is could not have steered her straight."
Two other masters were examined and confirmed this view, but they had never, either of them, sailed the Pennsylvania, and each of them had sailed other vessels at a less rate.
On the other hand, one Lovett, a shipmaster for sixteen years, who had happened in 1865 -- she being then heavily laden -- to be a passenger on the Pennsylvania, testified that on the whole day then, her speed, he thought, did not average over four knots an hour, and that he noticed no difficulty in her steerageway.
So too, while the technical violation of law in ringing a bell instead of blowing a fog horn was not denied, evidence was introduced by the owners of the bark to show that a good bell could be heard further than a fog horn; evidence, however, which was contradicted by witnesses in behalf of
the steamer, who swore that if the fog horn was a good one it could be heard further off than could a bell.
The district court condemned the steamer for the whole loss. On appeal by her to the circuit court, that court affirmed the decree, yielding assent, however, with great hesitation, to the view of the district court that notwithstanding the conceded violation on the part of the bark of a plain rule of navigation, the consequences of the disaster were to be visited entirely upon the steamer. From the decree of the circuit court thus affirming the decree of the district court the present appeal was taken.
Before the case came here and on the steamer's return to England, the owners of the cargo of the bark libeled her in the British admiralty. The case was heard there on evidence much less full than that upon which it was heard in New York, especially less full on the part of the steamer. The admiralty, admitting the violation of law by the bark in not sounding a fog horn, condemned, nevertheless, the steamer for the whole loss, considering that it was attributable to the improper rate of speed of the steamer in a fog so thick as here existed, and this decree was affirmed by the judicial committee of the Privy Council. [Footnote 3]