St. John v. Paine , 13 L. Ed. 537 ( 1851 )

51 U.S. 557 (____) 10 How. 557

EDWARD B. ST. JOHN, CLAIMANT OF THE STEAMBOAT NEPTUNE, APPELLANT,
v.
ZEBULON A. PAINE, SARAH NORWOOD, JOHN BUCKNAM, ANDREW BRADFORD, AND AUGUSTUS NORTON, LIBELLANTS.

Supreme Court of United States.

It was argued by Mr. Wood, for the appellant, and Mr. Gillet, for the appellees.

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the Southern District of New York.

The suit was commenced in the District Court in admiralty against the steamboat Neptune by the appellees, who were the owners of the schooner Iole, for damages done by a collision on Long Island Sound, off Stratford Point, on the evening of the 14th of July, 1846.

The Iole was laden with a cargo of lumber, plaster, and fish in barrels, and was of about eighty tons burden

The Neptune had on board from 200 to 250 passengers. The schooner was struck near midships, on the larboard side, and immediately sunk, carrying with her a woman and child, who were lost.

The libel charges that the schooner was on her voyage up the Sound to New York; and that about a mile south of the light-boat stationed off the Middle Ground, a shoal at that place, and nearly opposite Stratford Point, some sixty miles from New York, she was steering about a west course, the wind being from the north, and the night clear, so that a vessel could be descried at a considerable distance; and that while sailing upon this course with a fresh wind, going at from six to eight knots an hour, and a short time after the schooner had passed the light-boat, between the hours of nine and ten o'clock at night, she was negligently run down by the Neptune, which vessel was proceeding down the Sound from New York, and struck against her hull, head on, between the fore and main rigging on the larboard side, with such force and violence as to break open her hull, and cut her nearly in two, so that she filled and sunk immediately.

The allegations of the answer are, that the Neptune had sailed from New York at five o'clock of the afternoon of that day, bound for Newport and Providence (R.I.), and had proceeded on her voyage until within about a mile from Stratford light-boat, when, at or about eight or ten o'clock in the evening, a vessel was descried about a quarter of a mile ahead, which turned out to be the Iole in question. That immediately on seeing the vessel, the course of the Neptune was changed to windward for the purpose of giving her the course she was running. That when the Neptune was about ten or twelve lengths from the schooner, it was seen that she had changed her course, and was luffing up into the wind so as to cross the bows of the steamboat. That when first seen, the Iole was running west by south, from which she changed suddenly to about northwest; that, on seeing she had changed her course, the bell of the Neptune was immediately rung to stop her, and all efforts made to avoid the collision; but that the schooner came directly across the bows of the steamboat, and, the latter having still some headway, a collision could not be avoided.

It will be seen from these allegations of the respective parties, that the issue between them, and upon which the case must turn in favor of the one or the other, is a very simple one, whether we have regard to the law or to the facts.

The statement of the Iole is, that she was proceeding on a west course up the Sound, nearly close-hauled to the wind, with her starboard tacks on board, at the rate of about seven knots an hour; and that, while keeping on this course, the Neptune, in an improper manœuvre to cross her trail, and pass to the windward, struck her near midships on the larboard side, and sunk her.

The allegation of the Neptune does not vary substantially from this statement, except that it charges the collision to the fault of the Iole in not keeping on her course, but suddenly changing it by throwing her head into the wind, and thereby placing her athwart the track of the steamboat as she was in the act of passing to the windward.

The general question involved in the case is, which of these vessels has been in fault; and this will depend upon the evidence produced by each in the court below, together with the application of the rules of navigation to be observed by them at the time of the collision, and with a view to avoid it, having regard to their relative position and course; and, more especially, the application of these rules under the facts and circumstances, in a case where the colliding vessel is propelled by steam, and the other by sails.

Among the nautical rules applicable to the navigation of sailing vessels are the following, viz.: — A vessel that has the wind free, or sailing before or with the wind, must get out of the way of the vessel that is close-hauled, or sailing by or against it; and the vessel on the starboard tack has a right to keep her course, and the one on the larboard tack must give way, or be answerable for the consequences. So, when two vessels are approaching each other, both having the wind free, and consequently the power of readily controlling their movements, the vessel on the larboard tack must give way, and each pass to the right. The same rule governs vessels sailing on the wind and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward that, if both persist in their course, the other will strike her on the lee side abaft the beam or near the stern, in that case the vessel on the starboard tack should give way, as she can do so with greater facility and less loss of time and distance than the other. Again, when vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack should persevere in her course, while that on the larboard tack should bear up, or keep away before the wind. The Friends, 1 Wm. Rob. 483; The Traveller, 2 Wm. Rob. 197; The Ann and Mary, Ib. 189; The Chester, 3 Hagg. 316; The Jupiter, Ib. 320; The Celt, Ib. 327; The Woodrop Sims, 2 Dodson, 86; The Thames, 5 Rob. 345; 3 Carr. &. Payne, 528; 9 Ib. 601; 12 Moore, 148; 3 Kent, Com. 230.

These rules have their exceptions in extreme cases, depending upon the special circumstances of the case, and in respect to which no general rule can be laid down or applied. Either vessel may find herself in a position at the time when it would be impossible to conform to them without certain peril to herself, or a collision with the approaching vessel. Under such circumstances, the master must necessarily be thrown upon the resources of his own judgment and skill in extricating his own vessel, as well as the vessel approaching, from the impending peril. These cases cannot be anticipated, and therefore cannot be provided for by any fixed regulation. They can only be examined, and the management of the vessel approved or condemned, as the case may arise.

But no one can look through the reports in admiralty in England without being struck with the steadiness and rigor with which these general nautical rules have been enforced in cases of collision, under the advice of the Trinity masters of that court, or fail to be impressed with the justice and propriety of such application, and the salutary results flowing from it.

In the case of the Traveller, an exception was set up by the colliding vessel, on the ground that the other, when first described, was about two points on her lee bow. This was denied. But the court declined to enter into a minute examination as to which of the statements was correct, observing that it had been distinctly laid down, over and over again, that when two vessels on opposite tacks are approaching each other, and there is a probability of collision, it is the duty of the vessel on the larboard to give way at once, without considering whether the other vessel be one or more points to leeward. And, in the case of the Friends, the court, where an exception was attempted to be ungrafted on the Trinity rules, in submitting the case to the Trinity masters, recommended that, for the sake of the safe navigation of the Thames and the great interests which are daily and hourly there at stake, the exception, if any were to be made, should be clear, definite, and intelligible, in order that it might, at the first glance, be known to the mercantile and maritime world; that unless it were so, it was obvious that persons in all cases would endeavor to form exceptions for themselves, and instead of certainty they would have uncertainty; instead of security, danger. And in the case of the Ann and Mary, decided in 1843, the Trinity masters observed to the court, speaking of the rule that the vessel on the larboard tack must give way, and where they had applied it with great rigor, that the golden rule so long established must be strictly adhered to, which was, that the vessel on the larboard tack is to give way and the vessel on the starboard tack to hold on; and that the new rule which had been lately made for steam-vessels, namely, each to put the helm a-port, under all doubtful circumstances, assimilated with it. The vessel on the starboard tack puts her helm a-port to keep the wind, and the vessel on the larboard tack does the same to bear away. That the same rule applied to sailing, as well as steam vessels, and if it should be strictly adhered to, there would not be one thousandth part of the accidents which had occurred.

These rules, which are the results of the practical experience and wisdom of navigators, cannot be too strongly impressed upon the observance of those engaged in the management of vessels on our rivers, or other waters where the course of business and trade naturally confines the navigation to a particular tract or route; and it is the obvious duty of the courts to apply them strictly in all cases of collision, unless where a clear exception is established by the party seeking to excuse himself for a departure.

Our examination thus far has been confined to the nautical rules governing the navigation of sailing vessels. We have thus confined it, because it will be found that they are generally applicable as rules regulating the navigation in cases where one of the vessels is propelled by steam.

The striking difference is, that steam-vessels are regarded in the light of vessels navigating with a fair wind, and are always under obligations to do whatever a sailing vessel going free or with a fair wind would be required to do under similar circumstances. Their obligation extends still further, because they possess a power to avoid the collision not belonging to sailing vessels even with a free wind, the master having the steamer under his command, both by altering the helm and by stopping the engines. They are also of vast power and speed compared with craft on our rivers and internal seas propelled by sails, exposing the latter to inevitable destruction in case of collision, and rendering it at all times difficult, and not unfrequently impossible, to get out of their way. Greater caution and vigilance are therefore naturally to be exacted of those in charge of them, to avoid the dangers of the navigation. This justly results from the superior power to direct and control the course and speed of the vessel, and the serious damage consequent upon a failure to avoid the dangers. As a general rule, therefore, when meeting a sailing vessel, whether close-hauled 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. The Shannon, 2 Hagg. Adm. 173; The Perth, 3 Ib. 414; The Rose, 2 Wm. Rob. 1; Hawkins v. The Duchess and Orange Steamboat Co., 2 Wend. 452; 3 Kent, Com. 230; Abbott on Shipping, p. 228 (Boston ed. 1836).

By an adherence to this rule on the part of the sailing vessel, the steamer with a proper look-out will be enabled, when approaching in an opposite direction, to adopt the necessary measures to avoid the danger, as she will have a right to assume that the sailing vessel will keep her course. If the latter fails to do this, the fault will be attributable to her, and the master of the steamer will be responsible only for a fair exertion of the power of his vessel to avoid the collision under the unexpected change of the course of the other vessel, and the circumstances of the case.

Recurring now to the facts attending the collision, as disclosed in the court below, and applying the rules of navigation as above stated, and which should have been observed by the respective vessels, we shall be enabled to determine without much difficulty which of them has been in fault.

The Iole had on board her starboard tacks, and was nearly close-hauled to the wind, and, as we have seen, had a right, and indeed was bound, to keep on her course; and it was the duty of the Neptune to adopt the proper measures to avoid her. There is some discrepancy in the evidence, but the clear weight of it is, that she kept her course till the collision occurred. She was not described by the hands on board the Neptune till the two vessels were from one fourth to three eighths of a mile apart, with a combined speed of sixteen or seventeen miles the hour. She was then, as they supposed, directly ahead. The wheel of the Neptune was immediately put hard a-starboard, with a view to pass the schooner to the windward; and it is supposed by the hands on board that this manœuvre would have cleared her, had she not at the same time changed her course by heading more into the wind. As we have already said, this allegation is not borne out by the evidence. On the contrary, the strong probability is, according to the testimony, that the hands on board the Neptune at the time they first described the schooner mistook her position, and, instead of being on a line with her, that the Neptune was to the leeward, and that, in changing her course and coming up to pass to the windward, they naturally supposed the schooner had changed her course also.

Besides, she was in fault in attempting to pass the Iole to the windward. Even admitting that she was not mistaken in the position of this vessel, and that she was dead ahead, it was the duty of the Neptune to bear away; and to pass on the larboard side. As we have seen, the observance of no one of the rules of navigation is more strongly recommended, or more steadily enforced, in the admiralty, than this one, where two vessels are approaching in opposite directions, and there is danger of a collision.

It is observable in this connection, that the pilot in charge of the Neptune seems not to have been properly instructed in his duty in the emergency after the schooner had been discovered ahead, or if he had, that he neglected it; for we find him testifying that, if he had known her course, (which he did not when he gave the order,) he should have thrown his wheel as he did, because the schooner might have hauled off on the wind. And the other pilot on board expressed the opinion, that there was no difficulty whatever in her keeping away and avoiding the Neptune, after seeing her two or three miles off. They seem to have entertained the opinion, that, according to the rules of navigation, it was the duty of the sailing vessel to give way when meeting a vessel propelled by steam; and this even when she was on the starboard tack and nearly close-hauled to the wind. Now, the owner is responsible for damage resulting not only from want of care and attention on the part of those in charge of the vessel, but also from the want of proper knowledge and skill to enable them to manage her according to established nautical rules. Error of judgment will be no defence, especially if resulting from incompetency. And erroneous opinions of duty on the part of those in the immediate management and control of the vessel naturally turn a doubt, arising from conflicting evidence upon a question whether or not a proper direction was given in the emergency, against them.

We are also satisfied, that the steamboat was in fault in not keeping at the time a proper look-out on the forward part of the deck; and that the failure to descry the schooner at a greater distance than half a mile ahead is attributable to this neglect. The pilot-house, in the night, especially if dark, and the view obscured by clouds in the distance, was not the proper place, whether the windows were up or down. The view of a look-out stationed there must necessarily have been partially obstructed. A competent and vigilant look-out stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steamboat from blame in case of accident in the night-time, while navigating waters on which it is accustomed to meet other water craft.

There is nothing harsh or unreasonable in this rule; and its strict observance and enforcement will be found as beneficial to the interest of the owners as to the safety of navigation; a remark equally true in respect to every other nautical rule, which the results of experience have shown enter so materially into the proper management of the vessel.

It has been insisted, that the schooner was in fault in not carrying a light, so as to enable the vessels approaching to see her at a greater distance. But all agree that it was a clear, starlight night, and hence there could be no difficulty, with a proper look-out, in seeing to a sufficient distance to enable the steamer to make the proper movement to avoid her. It is not usual for sailing vessels to carry lights on such a night.

It is true, some of the witnesses on the part of the Neptune speak of a black cloud in the eastern horizon, which obscured the view from vessels going in that direction. But the allegation is not maintained by the evidence to an extent that would justify us in attributing to it any material importance.

Upon the whole, we are satisfied the decree below is right, and must be affirmed.

Mr. Justice DANIEL dissented from the opinion of the court in this case, and also in that of Newton v. Stebbins. For his opinion, see the conclusion of the last-mentioned case, which follows the present.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On consideration whereof, it is ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum.