A steamer running at the rate of from eight to ten knots an hour
on a bright moonlight night in an open bay, with nothing to mislead
her, condemned for the loss of a schooner sailing with a six-knot
breeze, whose only fault was alleged to be a false maneuver in the
moment of impending collision. The Court declares it to have been
the
"duty of the steamer to see the schooner as soon as she could be
seen, to watch her progress and direction, to take into account all
the circumstances of the situation, and so to govern herself as to
guard against peril to either vessel. "
Page 86 U. S. 76
2. Where the libel alleged that the loss by the collision was
substantially a total loss, and the answer substantially admitted
this -- the vessel having sunk in Chesapeake Bay in five fathoms
water, and it being clear from the proofs that she could not have
been repaired without a large expenditure of time and money --
held that the fact that she was finally raised, repaired,
and put in good condition was no defense to a claim for a total
loss, especially as it did not appear at whose instance or at what
cost this was done, nor by what right those in possession of her
held her, and it not being either alleged or proved that she had
been tendered back to her original owners. The case distinguished
from
The
Baltimore, 8 Wall. 378.
3. But this decree for a total loss declared to bar any claim to
the schooner by her former owners, and that their title should be
remitted to the owners of the steamer.
Appeal from the Circuit Court for the District of Maryland,
reversing a decree of the district court for the said district, in
which, on a libel filed by the owners of a small schooner, the
Mary Banks, of one hundred and eight-six tons, against the
steamer
Falcon, for a total loss by collision, the
district court had condemned the steamer for the total loss
asserted.
MR. JUSTICE SWAYNE stated the facts or evidence, and delivered
the opinion of the Court.
On the 21st of June, 1867, about half-past one o'clock, A.M.,
the schooner
Mary Banks was proceeding up the Chesapeake
Bay to Baltimore. The steamer
Falcon, on her way to
Charleston, came in view. The night was clear and bright, with
moonlight and starlight. The waters of the bay were calm. The
schooner was under way with a six-knot breeze. The steamer was
making from eight to ten knots an hour. The captain of the steamer
says:
"My steamer is one hundred and sixty-five feet long, or
thereabouts. I had about three miles navigable water on my
starboard bow. On my larboard bow I had all of five or six miles of
navigable water. There was no obstacle to the navigation of this
sea room except the schooner."
The
Page 86 U. S. 77
vessels approached each other and came in collision. The steamer
struck the schooner. The answer admits "that the said schooner was
cut half in twain, and not altogether in twain, as charged" -- a
difference of small moment, however, inasmuch as it is admitted
that she sank in consequence of the collision. The sinking was
immediate. The crew were rescued by the steamer and landed at
Fortress Monroe. The answer alleges that the collision was caused
by the fault of the schooner in porting her helm and coming
suddenly under the bow of the steamer when it was too late for the
latter to avoid her. The district court adjudged the steamer to
have been solely in fault, and decreed accordingly. The respondents
appealed to the circuit court. There the decree of the district
court was reversed and the libel dismissed. The libellants appealed
to this Court, and the decree of the circuit court is thus brought
before us for review.
This is a simple case. No searching analysis of the testimony is
necessary to enable us to find the proper conclusions. It was the
duty of the steamer to keep out of the way of the schooner. She had
at command all the means to do so. There was ample sea room, calm
weather and water, abundant light, and no other vessel in proximity
on her larboard or starboard side. None other is mentioned as in
sight. It was the duty of the steamer to see the schooner as soon
as she could be seen, to watch her progress and direction, to take
into account all the circumstances of the situation, and so to
govern herself as to guard against peril to either vessel.
The steamer was grossly in fault in approaching so near the
schooner and at so high a rate of speed. This was the source of the
disaster that followed. The only fault imputed to the schooner is
that almost at the moment of the collision she ported her helm.
This fact is not satisfactorily established by the testimony. The
proof is that the captain said so after reaching the steamer. He
denies it. The mate says, "I kept my course steadily north by
west." He
Page 86 U. S. 78
was cross-examined by the respondents' counsel, but no question
was asked as to this point. There is no other evidence upon the
subject. What was deemed due to porting the helm may have been the
effect of the wind after the helmsman fled from his post. If the
fact were as claimed, it would not mitigate the fault of the
steamer. Nor can the desertion of the helmsman at such a time have
that effect. The peril was immediately impending. The safety of the
vessel and the lives of the crew were at stake. A moment later, the
collision occurred. The helmsman in his flight was thrown down by
the shock and broke his leg. The vessel sank, and the crew would
have gone down with her but for the aid of the steamer. If in an
emergency so sudden and so alarming, an order were given which
should not have been given, or an act were done which should not
have been done, the law regards it an error, and not a fault, and
holds the offending vessel to be the cause and liable as if it had
not occurred.
We think the decree of the district court was in all things
correct, and should have been affirmed.
After the case was appealed to the circuit court and before the
hearing there, the respondents took testimony showing that the
schooner had been raised, repaired, and put in good condition. At
whose instance and at what cost this was done, and by what right
those in possession claimed to hold her, are not shown, nor is it
alleged or proved that she was ever tendered back to the
appellants. The appellees insist that the facts disclosed entitle
them to have the decree of the circuit court affirmed, and rely
upon the case of
The Baltimore [
Footnote 1] as an authority to that effect. This is a
mistaken view of the subject. In the case of
The
Baltimore, the libel alleged a total loss. The answer
expressly denied it. There, the sinking was in the River Potomac.
The water was shoal. The masts projected eighteen feet above its
surface, and the position of the hull was clearly discernible.
The
Page 86 U. S. 79
vessel could have been easily raised and repaired. Here, the
libel alleges substantially a total loss, and the answer
substantially admits it. No point to the contrary was raised or
suggested. The schooner was sunk in the Chesapeake Bay, where the
water was five fathoms deep. It is clear from the proofs that she
could not have been raised and repaired without a large expenditure
of time and money. The case of
The Baltimore has therefore
no application to the case before us.
This subject has been under consideration upon two occasions in
the English admiralty court. In
The Empress Eugenie,
[
Footnote 2] the owner had
raised and repaired the vessel. The cost of the repairs exceeded
the original value of the vessel, and this might have been
ascertained before the repairs were commenced. It was held that the
measure of damages was the value of the ship before the collision,
with interest from the date when the cargo would, in the ordinary
course, have been delivered, together with the cost of raising and
the cost of placing the ship in the dock for inspection, less the
value of the wreck as raised. It was said "that it was a mistake to
have repaired her at all, and that it would have been better to
have abandoned her from the first."
In the case of
The Columbus, [
Footnote 3] that vessel had sunk the fishing smack
Tryall. The owner of the
Columbus raised the
smack and carried her into Rye Harbor. Notice of this was given to
the owner of the smack, with an intimation that the owner of the
Columbus was ready to deliver her up and would not be
responsible for any further damage or expense that might be
incurred by her remaining unrepaired in the harbor of Rye. It does
not appear whether she was repaired or not. Dr. Lushington
said:
"The rule which I consider it incumbent upon this court to
follow is this, that if a vessel is not merely run into and
partially damaged, but is actually sunk at sea, it is not incumbent
upon the owner of that vessel to go to any expense whatever for the
purpose
Page 86 U. S. 80
of raising her."
He said further, that the owner of the smack "was not bound to
repair her, and might have left her lying in the port," and that
the proper course would have been to apply to the court for an
order that the smack be sold and the proceeds brought in to abide
the result of the suit. The Columbus was held liable for the full
value of the smack as if there had been a total loss; but it was
also held that the owner of the Columbus might still apply for an
order to sell the smack, and that "the proceeds of such sale will
be his own property." Whether, if the smack had been repaired and
then tendered back, her owner would have been bound to receive her,
is a point not touched upon, and which it is not necessary here to
consider. [
Footnote 4]
Upon the authority of
The Columbus, it is clear that
the steamer is liable for the full value of the schooner at the
time of her loss. We think that case lays down the proper rule.
There may be interests and complications touching the schooner
in relation to which we are not advised and which are not
represented in this litigation. We cannot, therefore, order her to
be sold and the proceeds to be paid to the owners of the steamer.
But, where there is an abandonment by the assured to the assurer,
the title of the property passes to the latter. So where, in an
action of trespass or trover there is a recovery of the full value
of the property to which the action relates, the title of the
plaintiff is transferred
ipso facto to the defendant. In
analogy to the principle of these cases, we adjudge that the decree
to be pronounced against the steamer shall bar any further claim to
the schooner on the part of the appellants, and that their title
shall be thereby remitted to the appellees.
Decree reversed and the case remanded to the circuit court
with directions to enter a decree in conformity to this
opinion.
[
Footnote 1]
75 U. S. 8
Wall. 378.
[
Footnote 2]
1 Lushington 139.
[
Footnote 3]
3 W.Robinson 161.
[
Footnote 4]
1 Parsons's Shipping and Admiralty 543.