1. Although the duty of vessels propelled by steam is to keep
clear of those moved by wind, yet these latter must not, by
changing their course, instead of keeping on it, put themselves
carelessly in the way of the former, and so render ineffective
their movements to give the sailing vessels sufficient berth.
2. The confessions of a master, in a case of collision, are
evidence against the owner.
Appeal from a decree of the Circuit Court of New York in a case
of collision between the schooner
Bedell and the steamer
Potomac in the Chesapeake Bay, resulting in the total loss
of the schooner. The collision occurred on a starlight night in
July. The schooner was heading about north, going up the bay,
sailing by the wind, close-hauled, with a fresh breeze,
west-northwest. Whether or not she had a light on board was a
matter about which the evidence was contradictory, the weight of it
being to the effect that she had not. The steamer, with a good
lookout and a full number of seamen, was descending the bay and
sailing due south at about nine miles an hour, with all her lights
set and brightly burning. When about three-quarters of a mile off,
the schooner was discovered on the starboard bow of the steamer by
the lookout of the steamer, who reported the fact to the officer in
charge. The order was immediately given to starboard the helm two
points, and after this was
Page 75 U. S. 591
done, and the mate who had the command saw the vessel about half
a point on the starboard bow, the further order was given and
executed to steady the helm.
In addition to this, the mate, in watching the movements of the
schooner, discovered, notwithstanding his efforts to give her a
wide berth to the west, that she was still approaching nearer the
steamer, and again starboarded his helm, and slowed and backed. The
captain of the schooner, however, about two minutes before the
collision, ordered her helmsman to put her helm hard up, and the
movements of the steamer thus proved ineffectual to prevent the
boats' coming together. He had not seen the steamer until when
within half a mile of her. When the vessels struck, the schooner
had fallen off from about a north course to nearly an east one.
The helmsman of the steamer testified, that the mate of the
steamer was asleep when the schooner was reported to him, but this
the mate denied. It was certain that he was on deck immediately
afterwards, unconfused and energetic.
When the vessels struck, the captain of the schooner, who was
hauled over the railing upon the steamer, and so saved, was asked
by the mate why he had kept his vessel right across the steamer's
bows, to which he replied that he did not understand the steamer's
lights till too late, and while talking afterwards with the captain
said that he had "no one to blame but himself." Subsequently, in a
conversation at the notary's office, where he happened to be,
making his protest, he stated that he "mistook the steamer's
lights, and supposed them to be on the stern instead of on the
bow."
The district court decreed against the steamer, a decree which
the circuit court reversed. The question in this Court was whether
the reversal was right.
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is a rare occurrence in the history of cases of this kind
Page 75 U. S. 592
where a sailing vessel and steamship approaching each other in
opposite directions, or on intersecting lines have come in contact
that the sailing vessel has been adjudged to be in fault. The law
casting the greater responsibility on the steamer on account of her
motive power, and the sailing vessel having an easy duty to
perform, it has been generally found on investigation that the
collision was the result of a relaxation of vigilance on the part
of the officers of the steamer. It has sometimes happened, however,
that the steamer was not to blame, and the present case, in our
opinion, is one of that character. It is unnecessary to restate the
rules of navigation obligatory upon vessels in the predicament
these were on the night in question. They were elaborately
presented by this Court in the case of
The Steamship Co. v.
Rumball, [
Footnote 1] and
were recently affirmed in the case of
The Carroll.
[
Footnote 2] One of these rules
requires the steamer to keep out of the way of the sailing vessel,
but to enable her to do this effectively, the law imposes the
corresponding obligation on the sailing vessel to keep her course.
If, therefore, the steamer adopts proper measures of precaution to
avoid the collision which would have been effective if the schooner
had not changed her course, she is not chargeable for the
consequences of the collision. Any other rule would condemn the
steamer no matter how gross the misconduct of the sailing
vessel.
That the steamer on this occasion seasonably employed the proper
measures to have prevented this disaster and that it would not have
occurred if the schooner had been equally mindful of her duty is,
we think, unmistakably shown by the evidence. The proceedings taken
on board the steamer were enough, if the schooner had kept her
course, to have placed the respective boats out of reach of danger.
The accident could have happened in no other way than by a change
of the schooner's course, and that this was made is evident, for
when the vessels collided, the schooner had fallen off from about a
north course to nearly
Page 75 U. S. 593
an east course. Besides, the only man on board the schooner who
was examined as a witness says that he put his helm hard up, by the
captain's order, about two minutes before the collision. If the
schooner had kept her course, instead of porting her helm and
changing it to the eastward, the collision would not have
occurred.
The effect of the change of course was to bring the schooner
directly across the steamer's track and to render what followed
inevitable. There is nothing in the record to show a justification
for this change of course, and it will not do to say it was taken
on account of the dangerous proximity of the vessels, for at the
united rate at which they were running, they were, according to the
testimony of the wheelsman of the schooner as to the point of time
when he ported her helm, at least half a mile apart. We think it is
clear that this change of course was adopted earlier than the
wheelsman says, but be this as it may, whenever adopted, there was
no necessity for it, either real or apparent, and the persons in
charge of the schooner do not furnish even an excuse for their
conduct.
It is not seen in what respect the steamer was remiss. She had
the full complement of competent seamen, the necessary lookout and
lights, and began her measures to keep clear of the schooner as
soon as she was observed. That she was not sooner observed was not
the fault of those in charge of the steamer, for the schooner was
sailing without a light, and there is nothing to show that the
lookout of the steamer, by vigilant watching, could have reported
her any sooner. It is true the evidence is somewhat conflicting on
the point of whether the schooner had a light or not, but the
better opinion on the whole case is that she had no light.
If the persons on board the steamer were watchful, it was not
the case with those in control of the schooner, for if they had
been equally attentive to their business, they would not have
allowed the steamer -- sailing as she was in a starlight night, and
with her lights brightly burning -- to have approached within a
half mile without being seen by them.
Page 75 U. S. 594
We have considered this case thus far without reference to the
admissions of the master of the schooner on this subject, but if we
give them their proper weight, they corroborate very strongly the
view we take of the cause of this collision. The master admitted,
as soon as he was taken on board the steamer after the disaster,
that the collision occurred through his fault, and this admission
was repeated when he noted his protest. His statements on the point
were full and explicit, and could not have been easily
misunderstood; but if they were not true or were misunderstood, why
was he not called to contradict or explain them? The legality of
this evidence cannot be questioned, for courts of admiralty have
uniformly allowed the declarations of the master, in a case of
collision, to be brought against the owner on the ground that when
the transaction occurred, the master represented the owner, and was
his agent in navigating the vessel. This sort of evidence is
confined to the confessions of the master, and cannot be extended
to any other person in the employment of the boat, for in no proper
sense has the owner entrusted his authority to anyone but the
master. The authorities on this subject are collected in the case
of
The Enterprise. [
Footnote 3]
It has been argued that the lookout and helmsman of the steamer,
whose testimony was taken by the owner of the schooner, prove want
of vigilance on the part of the steamer. We have carefully examined
this testimony, and cannot see that it materially contradicts the
testimony given by the officers of the steamer save in one
particular. The helmsman says the mate was asleep when the schooner
was reported to him, but this the mate expressly denies. It is not
necessary, however, to determine this point, because the evidence
clearly shows that as soon as the schooner was discovered and
reported, and there was a necessity for action, the mate was wide
awake and promptly gave the necessary order to starboard the helm,
which order was as promptly executed. This was timely done, and
would have been effectual but for
Page 75 U. S. 595
the subsequent fault of the schooner, for which she is adjudged
to bear the loss caused by this collision.
Judgment affirmed.
[
Footnote 1]
62 U. S. 21 How.
372.
[
Footnote 2]
Supra, <|75 U.S. 302|>302.
[
Footnote 3]
2 Curtis 320.
