CROSS-APPEAL from the decree of the Circuit Court for the District of Maryland, dividing equally the damages arising from a collision at sea, between the schooner Sarah and the steamer Sea Gull, on the theory that each was equally in fault.
A statute of the United States–the act of 29th April, 1864 thus enacts:
'ARTICLE 16. Every steamship, in approaching another ship, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.*fn1
'ARTICLE 15. If two ships, one of which is a sailing-ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.'
These provisions did but embody in a statutory form, what was previously the well-settled law of the sea.*fn2
On the evening of January 21st, 1871, the steamer Sea Gull was sailing in the open sea from the north, between Baltimore and Charleston, for the south, in a course south by west half-west, and the schooner Sarah between the same ports, from the south for the north in a course northeast by east. The vessels were thus approaching on converging lines. The steamer's speed was about eight miles an hour, the schooner's seven, and the nearest land was thirty miles distant. There was a fresh breeze, west-southwest. Stars were visible overhead, and though it was somewhat hazy on the water the night was fairly to be called a clear one.
Both vessels had proper lights brightly burning in their proper places. The schooner had one lookout properly placed, and the steamer had one lookout also; the steamer's lookout being on the forecastle, and, as was testified, within a few feet of the steam. At about nine o'clock in the evening the lookout on the schooner described and reported a light ahead. The light proved to be the foremast-headlight of a steamer, about four miles distant, and one point on the port bow of the schooner. The red or portlight of the steamer, which was still on the schooner's port bow, soon now became visible. The schooner, according to the positive testimony of three witnesses on her, including the pilot and the captain, who was at his side giving orders–the captain giving repeated orders to this effect, and calling the helmsman's attention to a star by which he could steer if he could not by the compass–continued her course, when, according to the testimony of these same witnesses, the steamer not having previously changed her course at all, and the vessels being close by one another, the green or starboard light of the steamer came suddenly into view; showing, of course, that the helm of the steamer had been starboarded. The captain and master testified that not knowing on which side of her the steamer would attempt to pass, and deeming it prudent and their duty under the circumstances still to keep their course, so as not to baffle those in charge of the steamer in any effort which they might make, even at the last moment, to pass on either side, still kept the schooner steadily on her course, but that the steamer continued, with undiminished speed, to approach. The result was a collision in which the steamer ran so violently into the schooner as to cut three or four feet into her, and sink her almost immediately; those on board barely escaping with their lives.
The only oral or written evidence from witnesses on the schooner tending to show any other proceedings than these, was that of the captain himself, who testified that when the steamer was about to strike the schooner, and only forty or fifty yards off, he shouted out, 'Let go her gaff-topsail, and lower her peak;' but that the order was not executed, the collision having occurred immediately after it was given, and before time had elapsed to execute it.
However, three witnesses from the steamer–the captain, the second mate, and the helmsman–all swore the when the collision took place, the course of the schooner was southeast; a course which would have been produced by the execution of the captain's order to change the schooner's sails, and that as they saw her sails after the schooner was struck her sails were on the port side.
As respected what was done on board the steamer, it seemed from the testimony of witnesses from her that the schooner was not seen until about a quarter of an hour after the schooner had seen the steamer; that her sails were then seen by the lookout, though they could not be well distinguished from each other; that the captain, whose watch it was, was in his room, asleep; that the second mate belonged to the captain's watch, and was accustomed to be on deck only during the captain's command, when his own position was subordinate; and that on this occasion he had taken charge of the captain's watch; that the second mate saw the vessel on the starboard bow, about the same time the lookout did, and at once gave the order 'hard a starboard,' to the man at the wheel, helping him to heave it hard a starboard himself; that when the order to heave hard a starboard was given, no lights, either red or green, were seen, and that the schooner was then supposed to be half a mile off, if not more; that the steamer answering the wheel, her head fell off to port, three or four points, and the second mate then saw the schooner's red light plainly, and saw that she had ported her helm and changed her course, about half a point to the east, which brought her across the steamer's bow; that the moment this was seen, the wheel was put hard a port; that on the same moment the bell was rung, the engine was stopped, and the captain was in the act of ringing the bell to back the ship when the collision took place; a collision so seriously injuring the steamer that water came into her by the barrelful, and that it was only by incessant working of the steam pumps that the vessel was able to make port (which she sought at once to do), at all. How exactly the schooner was struck, and where, was a matter about which the testimony was not harmonious.
One witness (the second mate of the steamer) testified that the steamer struck the schooner on her port side, just forward of the main-chain, nearly at right angles, with a slight slant towards the bow of the schooner.
Other witnesses testified that the steamer struck with a slight slant towards the stern of the schooner.
It was more plainly proved that the steamer received her injury on the port side of her stem.
The District Court held both vessels liable.
In regard to the steamer, the court said that before the officer in command changed its course, he should have waited to see the lights of the schooner, and as the vessels were approaching at the rate of fifteen miles an hour, have stopped the steamer's engine; that starboarding was a false movement; one not corrected but made worse by the subsequent porting.
In regard to the schooner, while the court confessed to a good deal of difficulty, in view of the conflict of evidence, and in a certain want of particularity in it, as to exact times when things were stated to have been seen, in saying that the schooner too was to blame, yet relying upon the evidence of the three persons on the steamer, that when the collision took place the course of the schooner was southeast and her sails on the port side, and on the further testimony of the second mate of the steamer, that she struck the schooner on her port side just forward of the main chain nearly at right angles, with a slight slant towards the bow of the vessel, the court thought that the course of the schooner must have been changed before the collision. The court, therefore, held both vessels equally in fault, and made each equally responsible for the damages; expressing a hope, however, that the case might be reviewed by another tribunal.
The Circuit Court, on appeal, affirmed the decree of the District Court, and from the decree of affirmance the case was now here on appeals by both vessels.
Messrs. S. T. Wallis and J. H. Thomas, for the owners of the schooner:
1. The steamer was exclusively in fault. She had but one lookout. She was an ocean steamer and, as such, should have had two; and they ought to have been on the very bow of the boat, on the lower deck, looking ahead.*fn3
It was the captain's watch. He should have been on deck.*fn4
He was asleep in his cabin. The second mate was on his watch, and took charge of it. The result shows that the mate was incompetent for the duty which, owing to the captain's neglect, was put upon him.
With inattentive and incompetent officers thus proved to have been in charge of the steamer, every presumption, in matters where the testimony conflicts or is obscure, is against her; and with this as a thing not to be denied the whole case is to be considered.
The steamer took no measures to discover the course of the schooner when she was seen, but immediately starboarded and a moment after ported her wheel. She did not stop her engines till the moment of collision.
2. The schooner was not in fault. Both of her lights were burning brightly. She saw the steamer's headlight five miles off. Gave immediate orders to the helmsman, and several times repeated them, to keep her steadily on her course. She did not change her course from the moment she saw the steamer up to the moment of collision. If the testimony leaves any room for doubt on this point, it shows, at all events, that she did not change until they were within thirty or forty feet of each other. A change at such a moment could not have contributed to the collision. If it did, she ...