1. A party who does not appeal from the final decree of a
circuit court cannot be heard in opposition thereto when the case
is properly brought here by the appeal of the adverse party.
2. This Court, concurring in opinion with the court below that
both vessels were at fault, affirms the decree dividing the damages
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Parties who do not appeal from a final decree of a circuit court
which is regular in form cannot be heard in opposition to the
decree when the cause is removed here by the opposite party unless
it appears that the proceedings in removing the cause were
unauthorized or irregular. They may be heard in support of the
decree and in opposition to every assignment of error filed by the
appellants. The William
5 Wall. 377; Harrison
9 Pet. 483; Canter
v. Insurance Company,
3 Pet. 318.
Where the decree was in favor of the libellant in the District
Court for a salvage service in saving goods at sea, this Court
held, on appeal here by the owners of the goods, that the decree
was conclusive upon the libellant as to the amount of salvage
awarded; that he could not, in the appellate court, claim anything
beyond that amount, since he had not, by any appeal on his part,
controverted its sufficiency. Stratton v. Jarvis &
8 Pet. 10.
Compensation is claimed by the owner of the steamship
from the schooner Stephen Morgan,
apparel, tackle, and furniture, for injuries caused to the
Page 94 U. S. 600
the schooner in a collision which occurred between the two
vessels during the early morning of the 3d of October, 1872, in the
lower part of Chesapeake Bay, whereby, as the appellant alleges,
the steamer was damaged to the amount of from $12,000 to
Detailed description of the circumstances is given in the libel,
from which it appears that the steamer, a vessel of eleven hundred
tons burden, with a cargo of corn, was bound down the bay on a
voyage from the port of Baltimore to Queenstown, Ireland, for
orders, and that the schooner, a vessel of two hundred and
fifty-nine tons, in ballast, was bound up the bay on a voyage from
the port of New York to the port of Georgetown in this District.
Both the steamer and the schooner were in a seaworthy condition,
well manned and equipped, and the evidence shows that they had
competent lookouts and that their signal lights were properly
Certain errors of statement are exhibited in the description of
the circumstances attending the collision as given in the libel,
but inasmuch as it is apparent that they were not made with intent
to deceive and that they did not have the effect to embarrass the
opposite party or the courts below, they cannot have the effect to
prevent the libellant from recovering just compensation for the
injuries which the steamer received if the evidence is sufficient
to show that the decree below is correct upon the merits.
Process was issued. and the owners of the schooner appeared as
claimants, and filed an answer.
Matters of fact are the chief reliance of the respondents, and
inasmuch as the allegations of the answer show, in the judgment of
the Court, that the schooner was in fault, they will be given in
Prior to the collision, the mate had charge of the deck of the
schooner; and the respondents allege that the weather was fair and
that it was clear overhead, with a slight mist or haze on the
water; that the wind, from about southwest-by-south, was blowing a
fresh and steady breeze; that the schooner was on her port tack,
with all her sails set except her main topsail and jib topsail;
that her speed was about seven or eight knots an hour; that the
mate, about ten minutes after he took charge
Page 94 U. S. 601
of the deck, directed the man at the wheel to change the course
of the schooner from north-by-west-half-west to north-by-west,
which, as the respondents allege, was her proper course up the bay.
Ten minutes later, as the respondents allege, the lookout saw a
bright light ahead, about a point or a point and a half on the
starboard bow of the schooner, and that the mate, who was standing
aft to the leeward of the spanker boom, saw the light about the
same time, and looked at it through the glass. Though the morning
was clear, the mate came to the conclusion that the vessel showing
the light was at anchor, because he could only see the white light,
and he thought the vessel was distant about a mile and a half or
Estimates of the kind are necessarily more or less uncertain,
but the answer states that the schooner was then a little above the
lighthouse, and nearer to the western than the eastern shore of the
bay, and the respondents admit that the schooner had plenty of room
to sail and maneuver on each side of the place where the vessel
showing the light appeared to be at anchor. When the mate first
looked at the light, he told the man at the wheel that it was a
ship at anchor, and he directed the helmsman to let the schooner
luff about a point; and that being done, the statement is that the
light was brought to bear about two points on the schooner's
starboard bow. Both of those orders were promptly obeyed, and the
answer states that the helmsman, after the order to luff was
executed, steadied the schooner, and "let her run" for a short
time, when the mate, thinking that the schooner might not fairly
clear the ship, told the man at the wheel to luff a little more so
as to allow plenty of room.
Throughout those maneuvers, both the mate and the lookout of the
schooner supposed that the light ahead was shown by a vessel at
anchor, and they never discovered their mistake until the steamer
approached so near that they could see her smokestack without the
aid of the glass. Alarm and confusion immediately ensued on the
deck of the schooner, as sufficiently appears from the allegations
of the answer. Obviously the peril was imminent, and the answer
states that the mate, fearing that a collision would occur, ordered
the helmsman to put the wheel hard a-port. and that the master came
on deck at
Page 94 U. S. 602
that moment and asked the mate what was the matter, and being
told that there was a light on the lee bow, the master looked under
the boom and, having seen the light, ordered the wheel to be put
hard down, which was immediately done. Under the order given just
before by the mate, the wheel had been turned only a few spokes to
port, when the master gave the order to put the wheel hard down,
which being promptly obeyed, the schooner began to luff; and at the
moment of collision, which presently ensued, she was still coming
into the wind and her sails were shaking. Almost immediately after
the helm of the schooner was put hard a-starboard, the collision
occurred, the schooner striking the steamer abaft the fore-rigging
and a little forward of midships.
Testimony was taken on both sides, and the parties having been
fully heard, the district court decided that both vessels were in
fault and that the joint loss and damage should be equally divided
between the owners of the two vessels. Pursuant to that decretal
order, the loss and damage sustained by each were ascertained and a
final decree rendered in favor of the libellant for the sum of
$5,295, with costs and interest. Immediate appeal was taken by both
parties to the circuit court, where additional testimony was taken,
and the parties having been again fully heard, the circuit court
reduced the damages to be awarded, and in all other respects
affirmed the decree of the district court. Due appeal to this Court
was taken by the respondents, but the libellant acquiesced in the
decree of the circuit court.
Two errors, it is alleged by the appellants, were committed by
the circuit court, as follows:
1st, that the court erred in awarding damages to the libellant
inasmuch as the allegations of the libel, if true, showed that the
alleged collision could not have occurred.
2d, that the court erred in adjudging that the schooner was in
Substantial accuracy in pleading should be observed by the
libellant, and it is proper to remark that a departure from that
requirement, with intention to deceive, may constitute a bar to
recovery unless the faulty party is relieved from its consequences
by leave of the court. Defects of the kind, when discovered, should
be cured by amendment in all cases where the imperfection is
calculated to deceive or mislead.
Page 94 U. S. 603
Incorrect allegations as to the position and course of the
steamer are doubtless contained in the libel, but it does not
appear that the inaccuracies were intended to deceive or that they
had the effect to mislead the opposite party or the court. Specific
objection to the libel on that account was not taken in the answer,
nor does it appear that the errors in the allegations occasioned
any embarrassment to the respondents in preparing the case for
Material errors undoubtedly occurred in the libel, but the
respondents corrected the same in their answer, and inasmuch as the
hearing upon the merits was full in each of the courts below, the
Court here is not inclined to sustain that defense.
12 Wall. 173.
Much discussion of the second defense is unnecessary, as both
the proofs and the allegations of the answer show that the schooner
violated the sailing rules enacted by Congress. Steamships, under
the circumstances described, are required to keep out of the way of
sailing ships, but the correlative rule is that the sailing ship
shall keep her course, subject to certain qualifications which have
no application in the cause before the Court. 13 Stat. 61.
Sailing vessels approaching a steamer are required to keep their
course on account of the correlative duty of the steamer to keep
out of the way in order that the steamer may know the position of
the object to be avoided and that she may not be baffled or led
into error in her endeavor to comply with the requirement.
Steamship Company v.
21 How. 384.
Three changes of course were made by the schooner in violation
of that rule, which is all that need be remarked on the subject
except to say that the failure of the steamer to perform her duty
to keep out of the way is no defense for the schooner in violating
the express command of the sailing rule. Beyond all doubt, the
steamer might have kept out of the way, and it is clear that the
decree below adjudging both vessels in fault was correct. All that
the steamer did in the outset was to change her course one point,
and the evidence satisfies the Court that if she ever did anything
more to prevent a collision, it was not done in season to be of any
avail. Porting the helm a point when the light of a sailing vessel
is first observed and then
Page 94 U. S. 604
waiting until a collision is imminent before doing anything
further does not satisfy the requirements of the law.
Other support to that conclusion might be invoked, but it is
quite unnecessary, as the owner of the steamer did not appeal and
cannot be heard except in defense of the decree. Airey v.
2 Curt.C.C. 8; Allen v. Hatch,
147; Chittenden v.
2 Wall. 196; The
9 Wall. 672.
Both vessels having been in fault, the settled rule in this
Court is that the damages must be divided. The Atlas,
93 U. S.
Viewed in any light, it is clear that the decree below was
correct and that there is no error in the record.