THESE were appeals from the circuit court of the United States for the southern district of Alabama. In the first case, a libel was filed in the district court of the United States for the southern district of Alabama claiming damages resulting from a collision between the schooner William Ozman and the steamer Oregon, in the bay of Mobile, on the 8th of September, 1849, whereby one hundred and forty bales of cotton on board said schooner were injured and in part destroyed. In the second, a like libel was filed by Turner and Twiford as the owners of the schooner, claiming damages for injuries done to the vessel. In January, 1851, the district judge decreed in favor of the libellants, in the first-named case for $6,599.64, and in the second for $1,989.47. From these decrees the owners of the steamer appealed to the circuit court. On the 21st of April, 1855, the circuit court passed an order in each case reciting that 'the said cause being submitted to the court, a decree is rendered pro forma, the presiding judge having been of counsel for the defendants, affirming the judgment that was rendered in this case,' namely, & c. &c. An appeal from these decrees brought the cases up to this court. The attention of the court having been called to this state of affairs, after consultation, the following order was passed in each case.
The opinion of the court was delivered by: Mr. Justice McLEAN delivered the opinion of the court.
It is now hear considered by the court that although it appears from the record that the decree of the circuit court in this cause was entered pro forma, yet that this court has jurisdiction to try and determine the case. Whereupon it is now here ordered by the court that this cause be and the same is hereby set down for argument next after the case fixed for to-day.
Dissenting-Justices, DANIEL and CATRON.
The cases were argued by Mr. Johnson, a brief being also filed by Mr. Nelson, for the appellants, and by Mr. Phillips, for the appellee.
These are appeals in admiralty, from the circuit court for the southern district of Alabama.
The first case is an appeal from the decree of the circuit court for damages resulting from a collision between the schooner William Ozman and the steamer Oregon, in the bay of Mobile, on the 8th of September, 1849, whereby one hundred and forty bales of cotton on board said schooner, alleged to belong to the appellees, were injured, and in part destroyed.
A similar libel was filed by the appellees as the owners of the schooner, claiming damages for the injuries done to the vessel. The libels are substantially the same, and they both rest on the same evidence.
The collision took place in the bay of Mobile, where it is eleven miles wide, and sufficient depth of water for the navigation of vessels. The schooner was sailing down the bay before the wind at the rate of six miles an hour. The Oregon was on her passage from New Orleans to Mobile, and was running at the rate of eight miles per hour. It was a starlight night, and the moon also shone. The collision occurred before daylight; but the vessels in approaching each other were seen from a mile and a half to two miles. Under such circumstances, it is extraordinary that they should come in contact.
The witnesses on board The Oregon say, that as the vessels approached each other, the schooner suddenly changed her course, which caused the collision; whilst the witnesses on board the schooner state, it was occasioned by a change of her course by the steamer. In such a conflict of testimony, where the vessels were both steamers or sailing vessels, and there were no leading facts for discrimination, fault would be chargeable to both vessels. But in the case before us the vessels, in regard to a collision, occupy a very different relation to each other. The steamer, having the propelling power, is under the control of her pilot. Her course may be changed, and her progress checked or arrested. Having this power to avoid a collision with a vessel propelled by the wind, she is generally chargeable with fault, when such an occurrence happens. The exception to this rule must be clearly established, by strong circumstances, to excuse the steamer.
The vessels in question saw each other at the distance of more than a mile, probably a mile and a half to two miles. The Oregon was steering near a due north course; the course of the schooner was south. Both vessels continued their course until they came within one hundred and fifty yards of each other. As evidence that the steamer changed her course the fact is relied on that the schooner ran into the steamer, a little forward of midships, with her bow. This result might, possibly, have followed a change of course by the schooner. But, as the movement of the steamer was more rapid than the schooner, such an occurrence would not be so likely to happen, as an attempt by the steamboat to pass the bow of the schooner.
Several experts were examined on both sides to show that the theory of each is wrong, judging from the injury received by The Oregon. The witnesses give their opinions without reserve on this subject. We derive but little light from this part of the examination.
In St. John v. Paine, 10 How. 557, this court say: 'As a general rule, therefore, when meeting a sailing vessel, whether closehauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her.' Practically, when a rule for this purpose is laid down, it is rendered ineffectual by admitting exceptions to it. The mind begins to waver as soon as the danger arises, and the exception, rather than the rule, becomes a subject of solicitude with the masters of both boats; and this, practically, annuls the rule, and causes the movements of both vessels to be uncertain. If the rule were absolute, and an insuperable difficulty should prevent one of the boats from observing it, it would be safer and better to slow the vessel or stop it, until the danger shall be past. This would occur so seldom as to be inappreciable, when compared to the safety it would secure. The rule adopted by the Trinity masters, and sanctioned by this court, is the safe one, that when two vessels on opposite tacks are approaching each other, each should turn to the right, passing each other on the larboard side. This rule is too simple to be misunderstood, and if observed, collisions would not occur between moving boats, whether propelled by sails or steam. The rule once established, every deviation from it should be chargeable as a fault.
The rule of this court is, when a steamer approaches a sailing vessel, the steamer is required to exercise the necessary precaution to avoid a collision; and if this be not done, prim a facie the steamer is chargeable with fault. Whether this rule be regarded or the weight of the testimony, we think, in the present case, The ...