In construing the act of 1875, the following propositions may be
regarded as settled:
1. That the facts found by the court below are conclusive; that
the bill of exceptions cannot be used to bring up the evidence for
a review of these findings; that the only rulings upon which we are
authorized to pass are such as might be presented by a bill of
exceptions prepared as in actions at law, and that the findings
have practically the same effect as the special verdict of a jury.
The Abbotsford, 98 U. S. 440;
The Clara, 102 U. S. 200;
The Benefactor, 102 U. S. 214;
The Annie Lindsley, 104 U. S. 185;
Collins v. Riley, 104 U. S. 322;
Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.
S. 485;
Watts v. Camors, 115 U.
S. 353;
The Maggie J. Smith, 123 U.
S. 349;
The Gazelle, 128 U.
S. 474.
2. That it is only the ultimate facts which the court is bound
to find, and that this Court will not take notice of a refusal
Page 147 U. S. 77
to find the mere incidental facts, which only amount to evidence
from which the ultimate fact is to be obtained.
The Francis
Wright, 105 U. S. 381;
Merchants' Ins. Co. v. Allen, 121 U. S.
67,
121 U. S. 71;
The John H. Pearson, 121 U. S. 469.
3. If the court below neglects or refuses to make a finding one
way or the other as to the existence of a material fact, which has
been established by uncontradicted evidence, or if it finds such a
fact when not supported by any evidence whatever, and an exception
be taken, the question may be brought up for review in that
particular. In the one case, the refusal to find would be
equivalent to finding that the fact was immaterial, and in the
other, that there was some evidence to prove what is found, when in
truth there was none. Both of these are questions of law and proper
subjects for review in an appellate court.
The Francis
Wright, 105 U. S. 381,
105 U. S. 387;
The E. A. Packer, 140 U. S. 360.
In the case of
The Francis Wright, the Court held that
the bill of exceptions ought to show the grounds relied on to
sustain the objections, so that it might appear that the court
below was properly informed as to the point to be decided, and that
the facts sought to be incorporated were conclusively proven by
uncontradicted evidence, and, if the exception were as to facts
found, it should be stated that it was because there was no
evidence to support them, and then so much of the testimony as was
necessary to establish this ground of complaint, which might under
some circumstances include the whole, should be incorporated in the
bill of exceptions. In
The E. A. Packer, 140 U.
S. 360, the circuit court refused to find a specific
fact which this Court thought to be material, and to have been
proven by uncontradicted testimony, and the case was remanded for a
further finding in regard to this point.
This case, then, must turn upon the question whether the circuit
court found any facts which were wholly unsupported by testimony,
or refused to find any fact material to the issue, when such fact
was proven by uncontradicted evidence.
The undisputed facts are that the night was foggy, and that the
barque was bound from Havana to New York upon
Page 147 U. S. 78
a northerly and easterly course, and was sailing free under a
strong southerly wind. The steamship was bound from New York to
Havana upon a course S. by W. 1/2 W., and was proceeding at her
usual full speed, which was from ten to eleven knots an hour. Each
was making the fog signals required by law, which were heard upon
each vessel before the other vessel came in sight. About two
minutes prior to the collision, the officers in charge of the
steamer first heard the fog horn of the barque, and, from the
apparent direction of the sound, thought she was one point off the
steamer's starboard bow. Immediately upon hearing the fog horn, the
mate ordered the wheel of the steamer to starboard and hard
astarboard. The order was promptly executed, and after the steamer
had run at full speed under her hard astarboard helm about a
minute, the sails of the barque were discovered crossing the
steamer's bows to the eastward. The steamer immediately blew
several alarm whistles, and the officer of the deck saw the barque
luffing to starboard. The steamer's engines were thereupon
immediately reversed, and her wheel ported, but, being then close
to the barque, her headway could not be stopped in time to avoid a
collision, and she struck the barque upon her port side between the
main and mizzen rigging with such force that she penetrated the
barque a distance of five feet, and sank her almost immediately.
The captain and three of the crew were drowned.
1. Appellants' first exception is to the third finding of fact,
that "the wind was blowing from the southwest or the south
southwest," because it does not find the direction in which the
wind was blowing, and because the direction of the wind was neither
S.W. nor S.S.W. but S. There was some conflict of testimony upon
this point between the crews of the respective vessels and the
observers at the signal stations and lighthouses between Sandy Hook
and Cape May, but, as the district judge was also of the opinion
that the wind was somewhere from S.W. to S.S.W., it is impossible
for us to say that there was no testimony to support this finding.
If it were impossible to ascertain definitely from the testimony
whether it was from the S.W. or S.S.W., there was clearly no
Page 147 U. S. 79
obligation to find the exact point from which it was blowing. As
observed by the district judge, this finding
"confirms the previous conclusion that the barque, up to the
time of the collision, had been sailing on a northeast course,
since that would bring such a wind about a point on her starboard
quarter, as all her witnesses testify."
2. The finding that the vessels could not discover one another
at a distance of one-eighth of a mile is substantially confirmed by
all the testimony and by the opinion of the district judge, who
makes a similar statement three or four times in his opinion.
3. Appellants also except to the finding that the course of the
barque was "about N.E." instead of about N.E. by N. 1/2 N., but as
the vessel had a free wind, and the usual course at this point
between Absecon and Barnegat on the New Jersey coast, where the
collision occurred, was N.E. or N.E. by N. for vessels bound to New
York from Cape Henlopen, a departure from that course will not be
presumed in the absence of some controlling reason. Indeed, the
probability that a steamer or a vessel sailing with a free wind
will pursue the course customarily pursued in that vicinity, by
vessels bound from and to the same port, is so strong that a
deviation from that course without apparent cause will not be
considered as established without a clear preponderance of
testimony. The district judge also found that the general course of
the vessel was N.E. until her wheel was put to port, just before
the collision. Exception was also taken to the finding that "the
steamship was going about eleven knots an hour." As the appellants
claim in their brief she was making eleven knots an hour, and both
courts agree in this opinion, it is difficult to see why an
exception was taken to this finding.
4. The fourth, fifth, and seventh exceptions are dependent upon
the construction to be given to the several findings made by the
court, and are not to the findings themselves, and hence are
impertinent. The sixth exception is unimportant.
5. The remaining ten exceptions to the findings of fact are
taken to the several clauses of the last paragraph of the fifth
finding. There were also 21 specifications of
Page 147 U. S. 80
objections to the opinion of the circuit court, embodied in a
single exception -- the seventeenth -- and thirty-five exceptions
to the refusal of the court to find the facts and conclusions of
law as requested by the claimants. But the substance of all these
objections to the findings and opinion of the circuit court turn
upon those contained in the paragraph above cited, which indicate
that the change of course made by the barque just prior to the
collision was an error
in extremis for which the barque
was not responsible. This was the point upon which the circuit and
district courts chiefly differed and upon which the stress of the
case was laid. The finding in question was as follows:
"The whistle of the steamer first heard by those in charge of
the barque indicated to them that the vessels were quite near to
each other. They thought the steamer was approaching bearing abeam
on the barque's port side. Immediately after, they saw her masthead
light and then her green light, whereupon the mate told the
wheelsman to port the wheel, and called to those below to save
themselves. The man at the wheel had hardly got the wheel over when
the steamer struck the barque. During the time the steamer was
running under her hard astarboard wheel, she changed her course to
the eastward three or four points, and the barque, after she
luffed, changed her course one or two points by the time the
vessels came together."
In this connection, the allegation of the original libel was
that
"the wind at the time was W. S.W. and the said barque was
heading E. by N. 1/2 N., running free, and going at the rate of
about three knots an hour. . . . That when the said steamer was
close upon the said barque, and the impending collision inevitable,
and in the effort to escape the same, order was given to port the
barque's helm, which order was obeyed, but did not alter the course
of said barque more than a point, and in a direction away from the
said approaching steamer."
The answer denied
"that such order was given when the collision was inevitable, or
that it did not alter the course of the barque more than a point,
or that such alteration was in a direction away from the
approaching steamer,"
and averred
"that at about ten o'clock and fifty minutes, the
Page 147 U. S. 81
second mate in the pilot house heard the blast of a fog horn
about a point or so on the starboard bow of the steamer, whereupon
he ordered the wheel of said steamer to be put hard astarboard,
which order was obeyed, and was the proper order, and would have
been efficient for the avoiding of the collision but for the change
of course on the part of the barque hereafter spoken of. . . . That
when or almost immediately after the helm of the said steamer was
starboarded, the helm of said barque was ported, and her head began
to come up toward the course of the said steamship; that said
change of course of said barque was at once seen and reported by
the lookout on the steamer and seen by her second mate in the pilot
house, and that as soon as such change was seen, and when the head
of the steamer had been changed about a point under her starboard
helm, her helm was put hard aport, and her engine was stopped and
reversed. . . . And these respondents allege that the said barque
changed her course under her port wheel four or five points before
the collision, and that at the time of the collision she was
heading about east and said steamer was heading about S. or S. by
W., and that such change of course on the part of the barque
carried her across the bow of the said steamship, which had taken
the proper measures to avoid her, and but for the said change of
course on the part of said barque, would have succeeded in doing
so."
The case was tried upon these allegations, and the district
judge found that all the witnesses agreed that, at the time of the
collision, the barque "was heading about E. or E. by N., or about
four points to the eastward of the usual course for vessels bound
for New York;" that the testimony of the mate and wheelsman of the
barque, who were the officers of the deck, that her course prior to
the collision was E. by N. 1/2 N. was untrue and wholly
irreconcilable with the admitted facts and with the other
accredited testimony; and, inferentially at least, that their
testimony was fabricated for the purpose of demonstrating that the
change of course from E. by N. 1/2 N. to E. or E. by N. (from half
a point to a point and a half) was so slight that it must have been
made
in extremis,
Page 147 U. S. 82
while, if the course of the barque had been N.E., the change
would have been from three to four points. The district court found
the course to have been N.E., that this course was continued until
the helm was ported, and that the
"change of three to four points was to great, and was commenced
too early and too far off from the steamer to be regarded as a
change
in extremis, and, as this change of course
evidently contributed to the collision, the barque must also be
held chargeable with fault."
A decree was thereupon rendered apportioning the damages, and
both parties appealed to the circuit court.
Pending that appeal, the libel was amended by averring that
"the wind at the time appeared to be by said barque's compasses
W. S.W. and the said barque was heading, as it appeared by said
compasses, E. by N. 1/2 N., running free, and going at the rate of
about three knots an hour. . . . That the said barque was an iron
vessel, and had a list to starboard, and her compasses were
affected by those facts, and she had a deviation card on board, by
means of which corrections in the readings of said compasses were
made, which said deviation card was lost with said vessel, and, the
master being drowned, libellants were unable to more accurately
state the said deviation than that it was between one and three
points on different courses."
Exceptions were filed to this libel for indefiniteness and
insufficiency, and a second amended libel was filed, averring
"that the wind at the time appeared to be, by said barque's
compasses, W. S.W. Libellants believe that the true direction of
the wind was S.W.; that the compasses of the barque indicated it to
be W. S.W. for the reasons hereinafter stated. The said barque was
heading, as it appeared by said compasses, E. by N. 1/2 N., and
libellants believe her true heading was N.E. 1/2 E., and that the
said heading appeared to be E. by N. 1/2 N., by said barque's
compasses, for the reasons hereinafter stated."
The previous allegation with regard to deviation was repeated
with the addition that "libellants believe that such deviation on a
true N.E. 1/2 E. course was two points, so that the course appeared
by said barque's compasses to be E.
Page 147 U. S. 83
by N. 1/2 N." To this amended libel an answer was filed, and the
case went to trial in the circuit court. The circuit court was of
opinion that if the barque changed her course four or five points
to the starboard, as claimed by the steamship, such change could
not have been made when the vessels were within two or three
hundred feet of each other; that if it could be demonstrated that
at the time of the collision, the barque was headed about east, and
that her course previous to the change was N.E., the argument for
the steamer would be convincing; but that this could not be
demonstrated unless the testimony of the wheelsman of the steamer,
who gave the course on which the steamer was headed when the
barque's change of course took place, and also when the collision
took place, was accepted as correct. "It is highly improbable,"
said the court,
"that in the excitement and confusion of the moment, the
helmsman of the steamer looked at his compass so carefully as to
accurately note the steamer's course when he was ordered to put his
wheel hard aport, and again when the collision took place. Equally
improbable is his testimony that while the steamer was under a hard
astarboard helm, her course was only changed about three quarters
of a point, although she was running at full speed for a minute
under that helm, and that while she was under her helm hard aport
at the time she was reversing her engines, her course was changed a
point and three quarters to starboard."
The court conceded that the mate of the barque, who was the only
witness who attempted to give her course by the compass, was not
entitled to any credit, but that the testimony of the wheelsman,
the lookout, and the engineer of the steamer so strongly confirmed
by the testimony of the witnesses for the barque, to the effect
that her change of course was not made until the vessels were so
close together that a collision was unavoidable, that it was not
necessary to devote any time to the attempt to ascertain what the
course of the barque was previously to the time this change was
made.
"All the witnesses for the steamer agree that the barque's
change of course took place under their observation, and that the
steamer sounded an alarm of successive blasts of her steam whistle
and
Page 147 U. S. 84
reversed her engines."
The court evidently was not satisfied with the testimony that
the barque was headed east or nearly so at the moment of impact,
and gave weight to the testimony of a diver who visited the wreck a
few days after the collision, and testified that she was lying at
the bottom of the ocean headed about N. N.E. on a line parallel
with the shore. It thought this testimony more persuasive in fixing
her heading approximately than the conjectural opinions of
witnesses formed in the excitement and confusion of the moment, who
thought she was headed about east. In short, it came to the
conclusion that the change of course which brought the two vessels
together was made by the steamer, while running a minute under her
hard astarboard helm, rather than by the barque, and that, upon
this assumption, if the course of the barque were changed only one
or two points, the vessels would have come together at the angle
shown in the diagrams of the witnesses upon both sides. It was
evidently of the opinion that the testimony that the barque was
headed east or nearly so at the moment of collision, indicating, as
it did, a change of course of three or four points, was outweighed
by the testimony of the witnesses that whatever change of course
was made took place when the vessels were in plain sight of each
other and so close together that a collision was unavoidable.
Upon the findings of the circuit court, there can be no question
of the gross negligence of the steamship. She was not only not
running at the moderate speed required by Rule 21, but she failed
to take the proper precautions when the proximity of the sailing
vessel became known to her. Upon hearing the fog horn of the barque
only one point on her starboard bow, the officer in charge should
at once have checked her speed, and, if the sound indicated that
the approaching vessel was near, should have stopped or reversed
until the sound was definitely located or the vessels came in sight
of each other. Indeed, upon the testimony in this case, it is open
to doubt whether, if the engine had been at once stopped, the
steamer would have come to a standstill before she had crossed the
course of the barque. There is no such certainty of the exact
position of a horn blown in a fog as will justify a steamer in
Page 147 U. S. 85
speculating upon the probability of avoiding it by a change of
the helm, without taking the additional precaution of stopping
until its location is definitely ascertained.
The
Hypodame, 6 Wall. 216;
The Kirby Hall, 8
P.D. 71;
The Sea Gull,
23 Wall. 165,
90 U. S. 177;
The Ceto, 6 Asp.Mar.Law Cases 479, 14 App.Cas. 670.
So far as the case of the barque is concerned, there was
evidently testimony to support the findings of the circuit court,
and if these findings are consistent and justify its conclusion of
law that the barque's change of course was an error
in
extremis, we cannot do otherwise than affirm the decree. In
view of the recklessness with which the steamer was navigated that
evening, it is no more than just that the evidence of contributory
negligence on the part of the sailing vessel should be clear and
convincing. Where fault on the part of one vessel is established by
uncontradicted testimony, and such fault is, of itself, sufficient
to account for the disaster, it is not enough for such vessel to
raise a doubt with regard to the management of the other vessel.
There is some presumption at least adverse to its claim, and any
reasonable doubt with regard to the propriety of the conduct of
such other vessel should be resolved in its favor. Taking the
finding of the circuit court that the course of the barque was
about N.E. in connection with the fact that after she luffed, she
changed her course but one or two points by the time the vessels
came together, it is evident that that court did not agree with the
district court that she was headed E. or E. by N. at the time of
the collision. Nor is this finding inconsistent with his further
finding that when the barque was first seen, the officers of the
steamer discovered that her course was
eastward, since
that may be construed as any point east of north. The evident gist
of the steamer's complaint is the refusal of the circuit court to
find the heading of the barque at the moment of collision. Had it
found such course to be E. or E. by N., as the answer averred and
as much of the testimony indicated, it would necessarily follow
that she must have changed her course from three to four points
under her hard aport helm -- a change scarcely consistent with an
error
in extremis. But the testimony upon this
Page 147 U. S. 86
point was that of the mate and the wheelsman of the barque, and
is a mere inference from their thoroughly discredited testimony
that the course of the barque was E. by N. 1/2 N., and that she
swung only a point to starboard. Having once found that this was
not the course of the barque and that such course was N.E., this
testimony falls to the ground. The testimony of the mate and
wheelsman of the steamer, that the barque was heading E. by N. or
E. by N. 1/2 N. at the moment of collision, was evidently nothing
but a mere guess. Indeed, it is very improbable that, in the
excitement and consternation occasioned by the immediate presence
of such a peril, the wheelsman of either vessel would stop to look
at the compass or notice the bearing even of his own vessel, much
less that of the other. While the testimony of the diver, that her
heading after she sunk was N. N.E. may not have been entitled to
great weight, it was a circumstance tending to support the theory
that she was not heading E. by N. It is evident that if her general
course were N.E. and her helm were put hard aport, as all agree it
was, she could not have been heading N. N.E. at the time of the
collision. It is evident that the circuit court was dissatisfied
with all the testimony upon the subject of the barque's heading at
the time of the collision, and rested its conclusion upon the
finding that, during the time the steamer was running under her
hard astarboard wheel, she changed her course to the eastward two
or three points, and the barque, after she luffed, changed her
course but one or two points by the time the vessels came together.
Taken in connection with the further finding that the mate told the
wheelsman to port the wheel
after he saw the masthead
light and the green light of the steamer, it justified the
conclusion that this order was given
in extremis.
The court evidently thought that more satisfactory evidence of
the heading of the two vessels at the time of the collision was
derived from the fact that the steamer, while running at eleven
miles an hour, put her helm hard astarboard from one to two minutes
prior to the collision. At this rate of speed, it is by no means
improbable that she swung three or four points before the collision
took place, while the other testimony left
Page 147 U. S. 87
it at least doubtful whether the barque swung more than one.
This inference is strengthened by the fact that the steamer's screw
was left-handed, and that a reversal of the engine would have a
tendency to throw her head still more rapidly to port. Evidently
the order to port the steamer was given when the vessels were so
near together that it could have had but slight effect upon her
course.
Upon the whole, it is impossible for us to say that these
findings, while inconsistent with the theory of both parties, were
not supported by the testimony, or that they did not justify the
conclusion that the change of course of the barque was made in
extremis. The decree of the court below is therefore
Affirmed.