1. The rule of navigation prescribed by the Act of Congress of
April 29th, 184, "for preventing collisions on the water," which
requires "when sailing ships are meeting end on, or nearly so, the
helms of both shall be put to port," is obligatory from the time
that necessity for precaution begins, and continues to be
applicable so long as the means and opportunity to avoid the danger
remain.
Page 90 U. S. 70
2. In a collision at sea, happening on a bright moonlight night
and when the approaching vessel was seen by the officer in charge
of the deck long before the collision occurred, the absence of a
lookout
held unimportant, it being assumed that his
presence would have done nothing to avert the catastrophe.
Appeal from the Circuit Court for the District of Maryland,
affirming a decree of the district court dismissing a libel filed
by the owners of the schooner
Julia against another
schooner, the
Dexter, in a cause of collision in
Chesapeake Bay by which the
Julia was totally lost, the
only difficulty in the controversy being -- that usual one in
causes of collision at se -- to ascertain what were the facts of
the case; in other words, to settle the case, a matter rendered
difficult in this cause, as in so many others of collision, by the
circumstance that witnesses of one side swore in direct opposition
to witnesses of the other. The adjudication therefore ministers
nothing to juridical science.
The case, as it was assumed in both the courts below and in this
upon the contradictory testimony adverted to was thus:
On the night of November 17th, 1870 -- the night being clear and
the moon shining brightly -- the schooner
Julia was
sailing up Chesapeake Bay. The schooner
Dexter was sailing
down it. The wind, which was fresh, was between northwest and
west-by-north, and the vessels were each sailing at the rate of
eight miles an hour, approaching, therefore, rapidly. The
Julia was close to the wind, though not as close as she
would lie without impeding her course.
The helmsmen of the two vessels saw them respectively when three
miles from each other. What their exact course then was and whether
likely to come together did not so plainly appear. Some evidence
tended to show that, at that time, the vessels were not approaching
end on, but that the
Dexter was sailing with the wind
free. But by the time that they got to within a half mile of each
other, the
Julia was heading north-northeast, and the
Dexter south-southwest -- that is to say the vessels were
approaching from exactly opposite directions, and the vessels were
approaching also
Page 90 U. S. 71
end on, or nearly so. As they thus approached, the
Dexter ported her helm. The
Julia kept on her
course till the vessels got very near, when a collision was plainly
threatened. The
Julia then starboarded her helm. A
collision ensued, and the
Julia, which was heavily laden
with oysters, went to the bottom.
The only lookout on the
Dexter when the
Julia
came in sight was the captain, who, at the time of the collision,
was standing aft of the foremast.
The act of Congress "fixing certain rules and regulations for
preventing collisions on the water," among its "Steering and
Sailing Rules" thus provides: [
Footnote 1]
"
TWO SAILING SHIPS MEETING"
"ARTICLE 11. If two sailing ships are meeting end on, or nearly
end on, so as to involve risk of collision, the helms of both shall
be put to port, so that each may pass to the port side of the
other."
"
TWO SAILING SHIPS CROSSING"
"ARTICLE 12. When two sailing ships are crossing, so as to
involve risk of collision, then if they have the wind on different
sides, the ship with the wind on the port side shall keep out of
the way of the ship with the wind on the starboard side, except in
the case in which the ship with the wind on the port side is
close-hauled, and the other ship free, in which case the latter
ship shall keep out of the way. But if they have the wind on the
same side, or if one of them has the wind aft, the ship which is to
windward shall keep out of the way of the ship which is to
leeward."
"
NO SHIP UNDER ANY CIRCUMSTANCES TO NEGLECT PROPER
PRECAUTIONS"
"ARTICLE 20. Nothing in these rules shall exonerate any ship or
the owner or master or crew thereof from the consequences of any
neglect to carry lights or signals, or
of any neglect to keep a
proper lookout,"
&c.
The district court, as already said, decreed a dismissal
Page 90 U. S. 72
of the libel; the circuit court affirmed the decree, and the
owner of the
Julia took this appeal.
Page 90 U. S. 74
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Objection is made by the libellant that the lookout of the
Dexter was insufficient, but it is unnecessary to decide
the question, as it was a clear night, and as each vessel was seen
by the other long before there was any necessity for precaution and
in ample time before the collision to have done whatever the
circumstances required to have prevented the disaster. Sufficient
lookouts are required by the rules of navigation, but where it
appears that the officer in charge of the deck saw the approaching
vessel while she was yet so distant that no precautions to avoid a
collision had become necessary, and that the want of a lookout did
not and could not have contributed to the collision, the vessel
omitting such a proper precaution will not be held responsible for
the consequences of the disaster if in all other respects she is
without fault. [
Footnote 2]
It is insisted by the libellant that the wind was from the
northwest and that his schooner was close-hauled. On the other
hand, it is contended by the claimant that the wind was
west-by-north, and he denies that the course of the schooner was
such as is alleged by the libellant.
Strong doubts arise whether the wind was as far north as the
point assumed by the libellant, and the proofs fail to convince the
court that it was as far to the west as is supposed by the
claimant. Difficulties attend the inquiry, but the better opinion
is that the course of the schooner of the libellant was not as
close to the wind as she would lay, without impeding her headway.
Nor is it very material whether
Page 90 U. S. 75
she was or not when the vessels were first seen by each other,
as they were then two miles apart and were moving through the
water, by estimation, at the rate of fourteen or fifteen miles an
hour. Satisfactory proof is exhibited that the schooner of the
claimant was heading south-southwest, and whatever may have been
the course of the other schooner when they were two miles apart,
the proof is equally satisfactory that her course when they were a
half a mile apart was exactly opposite to that of the schooner of
the claimant. Evidence is certainly exhibited in the record tending
to show that the course of the schooner of the libellants was
east-northeast when the vessels were first seen by each other, but
it is convincing that when they were only a half-mile apart, they
were approaching from exactly opposite directions and that the case
falls within the true intent and meaning of the eleventh sailing
rule prescribed by Congress.
Sailing ships are meeting end on within the meaning of that
provision when they are approaching each other from the opposite
directions or on such parallel lines as involve risk of collision
on account of their proximity, and when the vessels have advanced
so near to each other that the necessity for precaution to prevent
such a disaster begins, which cannot be definitely defined, as it
must always depend to a certain extent upon the speed of the
respective vessels and the circumstances of the occasion. [
Footnote 3]
Rules of navigation such as the one mentioned are obligatory
upon vessels approaching each other from the time the necessity for
precaution begins and continue to be applicable as the vessels
advance so long as the means and opportunity to avoid the danger
remain. They do not apply to a vessel required to keep her course
after the approach is so near that the collision is inevitable, and
are equally inapplicable to vessels of every description while they
are yet so distant from each other that measures of precaution have
not become necessary to avoid a collision.
Apply the eleventh sailing rule to the case and it is clear
Page 90 U. S. 76
that the decree of the circuit court should be affirmed, as the
evidence shows that the two vessels when they were half a mile
apart were approaching each other in opposite directions and that
the schooner of the claimant ported her helm as required by that
rule, and it is equally clear that the collision would have been
prevented if the schooner of the libellant had performed her duty
in that regard. Instead of that, she held her course until the
danger became imminent, and then, by the mistake of the man at the
wheel, put her helm in the wrong direction, which rendered the
collision inevitable.
Attempt is made in argument to exculpate the error of the
helmsman upon the ground that the danger was imminent, but such an
excuse cannot be admitted as a valid one where it appears that the
imminence of the peril was occasioned by the negligence,
carelessness, or unskillfulness of those in charge of the vessel
setting up such an apology for a violation of a plain rule of
navigation.
Serious conflict exists in the testimony as to what was done by
the respective vessels when they were more distant from each other,
but it is not deemed necessary to give that part of the evidence
much examination, as it is clear that they had ample time and
opportunity to adopt every needful precaution to avoid a collision
after it must have been apparent to both that they were fast
approaching each other from opposite directions.
Resort is had by the libellant to that part of the evidence to
show that the case falls under the twelfth sailing rule, and not
under the eleventh, as contended by the claimant. Even suppose that
proposition could be maintained, which is denied, it is quite clear
that it would not benefit the libellant, as it is conceded that his
schooner changed her course by putting her helm to starboard and
that it was that error which produced the collision.
Viewed in any light it is clear that the libellant is not
entitled to recover.
Decree affirmed.
[
Footnote 1]
13 Stat. at Large 60.
[
Footnote 2]
The
Farragut, 10 Wall. 337.
[
Footnote 3]
The
Nichols, 7 Wall. 664.
