*1 1850. 557 St John et al. v. Paine be there is no should surveyed; identity nor a place, possi- to locate the No claim bility grant by survey. has ever been this court is more before that vague; In cases of a this court has vague description, uniformly held no that land was severed do particular public main and that no be could ordered grant, survey courts of States, U. justice. Peters, 15 U. Buyck 224; v. States v. U. States v. 15 Peters, Delespine, 333; Miranda, Peters, 156, 157. all the On are of we grounds presented, opinion court below decided in claim; this and it correctly rejecting is therefore ordered, decree of the District Court be affirmed.
Order. This cause came on to heard on the of the rec- transcript ord from Court for the District of Superior Florida, East and was counsel. On consideration whereof, it is argued by ordered, now here and decreed this adjudged, court, said decree of the in Court this cause be, Superior same is affirmed. hereby, Appellant, John, Edward B. Claimant the Steamboat . Paine, Norwood, Zebulon A. Sarah John Buck v Augustus nam, Bradford, Norton, Andrew Libellants. following are ought approaching the rules which to-govern each vessels when other:— — Sailing free,'"or Vessels. A sailing vessel that or with has the wind before Of wind, get way close-hauled, sailing by the or and must out of the the vessel that is it; course, and the keep vessel on the right starboard tacE has a one on give way, the larboard tack conse- must for the or be answerable quences. So, free, other, two when vessels are having each both the wind approaching of consequently larboard tack must vessels power readily movements, on the controlling their the vessel give way, governs pass right. each The same rule other, approaching on the which it is doubtful each to windward.' that, persist if’the vessel on the But larboard if both tack is so far to windward course, the side, their ‘otherwill near strike the beam her on abaft the lee stern, case, give way, in that the vessel can on the as she starboard tack should greater facility do with other. less loss of time and distance than the crossing directions, is the opposite When vessels are each least other there clear, persevere doubt of in her their the vessel on the should staiboard tack up keep away while that larboard before tack should bear wind. exceptions special cir- cases, upon These rules their depending extreme case, respect general cumstances of the laid rule-can be down no 47*
St- find herself in a the to the Either vessel time When it would may or applied. to conform to without certain herself or a them, collision be impossible peril such approaching vessel. Under master must circumstances, neces- judgment extricating of his resources own and skill in be thrown upon sarily approaching, impending as the vessel from the own well hie peril. *2 and be cannot be therefore cannot for cases anticipated, These provided by any regulation. management can and the of fixed the vessel They only examined, as the case arise. condemned, may approved — meeting Sailing regarded Steam- Vessels Tassels. are 2. Steam-vessels in the Of navigating light obligations of vessels with a fair and are under to wind, always sailing, a free a do whatever vessel or with fair wind would be to required obligation similar circumstances. still do under extends because farther, Their belonging a to avoid the to sailing collision not power vessels, even they possess with having a free the master the under his steamer both command, al- tering stopping engines. general' the helm and As a the rule, therefore, meeting a with wind whether close-hauled or vessel, latter'has free, right to and it is the of the such steamer keep duty adopt precau- tions as will her. avoid — each, meeting 3. Steamers other. is of It each vessel to the helm duty put Of a-port. — The of a keeping steamer is not the 4. Watch. at pilot-house proper place Of night. vigilant a watch at A and look-out which at the forward station stationed competent in a best of- vessel, part adapted vessels descry approaching moment, the earliest is the- indispensable exempt night-time, case in the navigating in of accident while from blame, waters on craft. to meet other is accustomed resulting damage for want The owner of care and only atten- responsible from charge in of of the but also tion from persons want of part knowledge manage according them skill to enable to estab- proper nautical rules. lished an Circuit Court of the United appeal This of for the Southern District New States York. of the case will be The circumstances best in- explained by answer, which the libel and were as follows. serting “ Samuel B. of the Betts, To Honorable District Judge Court States of United Southern District of New York. “ A, The libel and of Zebuion Paine of complaint Eastport, in the State of Maine, owner of one of half the schooner part lole, and owner of of the on board .part cargo shipped lately Eastport, Sarah in State thereof; Maine, Norwood of of aforesaid, owner of of said schooner; the other half part Bueknam, (cid:127)John of the owner part on cargo' lately shipped thereof; board Bradford, Andrew owner of cargo also lately shipped board thereof; Sumner, master «Joseph said schooner; McCollar, James mate thereof; Ambrose Tucker, James Woorster, seamen, and Cuff, cook, all Henry of said schooner; Norton of Augustus Eastport, pas- on board of the senger schooner, said the steamboat all parties for their interest same, intervening cause of civil and maritime jurisdiction. v. “ and propound respec- the libellants allege thereupon And best respective knowledge, according tively upon their —: information, belief, as follows owned lole, said schooner 1st. That belonging said whereof the Sumner aforesaid, Joseph Eastport, and de- the 7th of sail set master, on or July, Maine, State from the parted port Eastport, master, aforesaid, having the said Sumner Joseph laths, of said schooner a pickets, board consisting cargo (cid:127)of barrels barréis, barrels, fish in two plaster, thirty empty and two bound for the beer, packages port money, stanch, York; and that said schooner was then tight, manned, tackled, and well ap- and strong, apparelled, she so was, in for the fit pointed, every respect, voyage undertook. afore- 2d. in the That 14th evening July, day said with three and with the in and said, said passengers, board, proceeded upon cargo said successfully and about one mile to the south past light- voyage *3 Ground, off the Middle boat stationed shoal opposite nearly Point, the and that said schooner light- Stratford the passed boat, one mile thereof. being southward then about a west the said schooner was steering That the north; from the that course, was night the wind being nearly at a and the said discerned clear, vessel could be easily distance; considerable about that whilst upon west, knots with fresh six to at from eight and a short time the hour, after said had passed per schooner ten and between the hours of and the said nine light-boat, seas, and within the admiralty o’clock at night, high court, of this she and maritime jurisdiction negligently n into, and said steamboat run the against steamboat was and the Sound then there down proceeding York; of New and the said steamboat then and from city schooner, run and struck the hull of said there side, with and main her larboard the fore between rigging, the hull and tear force and violence as to break schooner, open such great two, filled said and cut her so that of the and sunk nearly almost said and the vessel and cargo, immediately; clothes, crew and and and effects of the money, personal were two viz. lost; and of the passengers, totally passengers, drowned. female named and her were Murphy, child, “3d. That the schooner one óf the crewof said and passen- viz. the Norton, libellant their lives saved gers, Augustus said from the said on to the of schooner deck jumping steamboat; made for the inquiries they captain
St. John Paine but could no find steamboat, said captain board; board of said those on steamboat a boat asked despatch ' to endeavor to save assistance, the lives of with the woman aforesaid; but no that, and assistance offered or child being of the crew of the schooner, two said with two the. given, steamboat, of the took the small boat the said passengers steamboat, and went in search of child, the 'said female and but that their efforts were said schooner unavailing, having sunk, and the said female and child having disappeared. “4th. That said at the time aforesaid and and that the carelessly, improperly, navigated, unskilfully of the said thereof, loss the,clothes, on board cargó effects of the crew and money, passengers, the lives of said child, and solely by female .and was occasioned fault, carelessness, and unskilful management said steamboat. That créw, and those .having control said as management steamboat, libel- your and believe, were lants mand in the com- inexperienced are.informed steamboat, of the said unskilful, were incompetent, or insufficient, else were careless and negligent, skill, their want the her carelessness and occasioned negligenpe, disaster, said without the fault of said schooner and crew. That Island Sound, where disaster oc- Long curred, steamboat wide, is and there was room said very ample to have passed and avoided said schooner with- whatever. out any difficulty “ 5th. That the said Iole, called the tackle, furniture, at the time the said apparel, thereabouts, of the value three thousand dollars follows; was owned lant libel- possessed say, Zebulon the owner one half A. equal part thereof, and the libellant Sarah Norwood was the owner half thereof. other “ 6th. That the libellant Zebulon A. Paine was at the time said of the' collision owner two laths, thousand hundred and 1725 S tons of pickets, “plaster, pickets, thirty-five *4 fish, barrels of and said of five him on board of the' thirty-nine shipped by which, the said value were of the upon voyage, dollars, hundred and which thereabouts, and fifty him lost the said collision. shipped by cargo totally by was “ 7th. That Bucknam libellant John was at the tim.e said fish, collision owner of barrels of thirty-six pickled he had which at board aforesaid, shipped Eastport on schooner, collision, said and which the said was lost totally which and last-mentioned was of the of one cargo value and hundred seventeén dollars thereabouts. TERM, 1850. “ Bradford was at the Andrew time of That libellant 8th. beer-barrels, and two collision owner empty said thirty the barrels had on board of he beer, which shipped containing ‘be aforesaid, to carried to said schoonef Eastport lost last-mentioned York, cargo totally and which collision. said “ Paine and Nor- the libellants Zebulon A. Sarah 9th. That collision, the of the said lost, have also in consequence wood the said schooner would which and passage money freight York, of said in New earned cargo have upon delivery the use and have been employment and said deprived in, their and have been business schooner, and interrupted and to their loss great damage. mercantile pursuits, saith, Sumner that he That the libellant 10th. Joseph on board of the said schooner at the of, and had the owner time lost, articles, aforesaid, and of the collision totally prop- in the schedule and hereto and effects enumerated specified erty, annexed, taken as a A, he be marked which may part prays are articles, effects valued (cid:127)thereof; truly property, in the said schedule. saith, That the libellant McCollar that he James collision, board, and at the time of the said of, owner effects lost, articles, and schedule as a totally specified property, be B, hereto he taken annexed, and which prays may of this articles libel, the value of said several and that part set Tucker forth the libellant Ambrose truly That therein.. saith, that said of, he and had on board of the owner aforesaid, lost, schooner at time totally property stated, of the value in schedule and effects specified, being as a he taken C, annexed, hereto part and which be prays may that he saith, Woorster of this libel. That the libellant James at the and had on of, was board the said time of said collision owner schooner, lost the said totally of the value stated the in the effects being property specified marked he annexed, D, schedule hereto and which prays libel. That the taken as a of this libellant Henry bemay part and had on board of saith, of, Cuff that he was owner aforesaid, collision and totally schooner at the said time annexed, hereto lost, the in the schedule articles mentioned stated, and which sched- E, marked ule he libellants the value therein being of this libel. That the taken may prays McCollar, Ambrose Tucker, Sumner,' James Joseph in and board Cuff, were Woorster, James Henry and that the said wages, monthly to much out and put expense been thrown of- employ loss.
St. John v. Paine saith, That the libellant Norton that he was Augustus “ on board of said and that he was the passenger of, owner and had on board at of the said the time prop- F, annexed, and effects in schedule hereto and erty specified that, which he and. libel'; the be taken as a this prays may the said ule, he is now and effects are valued in said sched- property they truly him, and that in were lost to and consequence wholly destitute, shirt, one saved but having nothing that he has suffered inconvenience, great anxiety, delay by reason of the said loss. “ 11th. That loss said after information schooner and her received in New aforesaid, York, cargo, the libellants’ to be made in said caused agents application city Law, believe, who, as áre informed and was at George the time of the of the said steamboat, said collision the owner the steamboat had care- which pay damages improperly, aforesaid, that he re- occasioned as but lessly, fused negligently, with such comply request. to. are true, 12th. That aforesaid all and the matters singular “ this hon- within and maritime jurisdiction admiralty court, tackle, &c., that the said apparel, orable thereof, denied, district, within the in verification if and other libellants crave leave to refer to the proofs depositions to be' them exhibited in this cause. “ due form the libellants that process pray, Wherefore of courts admi- law, to the course and according practice and of court in causes admiralty this ralty, honorable said steamboat maritime issue jurisdiction, may furniture, and that.all tackle, persons apparel, interest therein- title, or to have having may right, pretending all and oath singular be cited and answer upon to appear court honorable will pleased And premises. that this such decree other aforesaid, for the and to pronounce damages relief to the libellants as shall to and justice appertain. law “ tackle, steamboat, apparel, Also the said condemn their interest for furniture, and all intervening persons therein, in costs and expenses. “ Joseph Sumner,
E. H. Owen.” into, costs for After a entered had been stipulation under issued, .monition were libellants, and attachment entered vessel; being attached stipulation marshal dollars, thousand into five behalf of the the sum' of vessel discharged;. —filed: answer was- In September, following Betts, R. Samuel Judge Honorable District To Southern of the United States Court District of York. John, *6 St. of B. York, now Edward city And for his aforesaid, district interest in the intervening the in before the honorable court, and Neptune, appears steamboat of Zebulon complaint to the libel A. Paine of for answer and Maine, of Sarah Norwood of Bradford, in the State same Eastport, Bucknam, Andrew Sumner, and Joseph place, James Tucker, McCollar, Woorster, James Ambrose Henry the Norton, steamboat Cuff, and Augustus Neptune, in their interest the same, for parties intervening propounds all — as follows: “ at the time in the That the said libel 1st. set respondent, of aforesaid, onwit, the 14th and before forth, day July owner of the said afterwards, was the lawful steamboat Nep- tons, or in tune, thereabouts, of 720 now the vessel service of States, and sailed for Texas or Mexico. having United the “ as to the the of 2d. And the said seventh, allegations respondent, them, in first, fifth, sixth, of the libellants, and each of articles the said libel ninth, contained, and tenth says eighth, not of and informed the same ishe ignorant concerning cannot libel, and therefore admit or the said the deny save by leaves, the same to be but true, according same proved the this court. And said custom respondent the practice that the in second, matters the alleges propounds, further said libel are in articles and fourth third, great part of.the is, the truth as this and that is in- respondent alleged, falsely is hereinafter believes, as particularly propounded. formed the steamboat in or- Neptune, being 3d. That said good manned, equipped sufficiently well and sailed der York, the State of New York, at five of New the port from 14th in the afternoon day July, bound o’clock Providence, State' Rhode Island; Newport for and, on her her at voyage, proceeded passage, prosecution one Stratford about mile rate, until from light-boat, regular her o’clock in or ten vessel vessel when, or about evening, eight ahead, of a mile which about half a quarter seen was Iole, understood to have been the schooner the respondent in said libel. is alleged said Iole, schooner That, immediately séeing 4th. course, Steamboat of the said changed schooner, said for purpose said giving windward then she was That when schooner course running.- the said about ten twelve lengths said the latter had observed changed Joh,n v. cross course, and was so as to up the.bows luffing said That, seenj first said steamboat. schooner was running south, from changed west northwest. about suddenly That, on that said schooner seeing changed bell of the steamboat was immediately rung made her, and all efforts to avoid the but the stop collision; came said schooner across bows of the said steam- directly having and, boat, be the latter some a collision could not headway, avoided. That said schooner was struck about mid- and her crew at once from the on board ships, jumped rigging was, the said steamboat. That first that no one was report schooner; was, left were board next that a female and child board, left which small boat imme- upon hearing lowered from manned, diately sufficiently wap other effort made the. every possible purpose, on board schooner; that, of the said but persons saving could be lowered, before time boat the said but whether were disappeared; person persons sunk, at the time she this informed, respondent libel, save the said and cannot state. That the *7 .captain steamboat, said the and the men with him who manned the boat, small continued to said row the of dis- place the the of said schooner more than half hour; bn appearance but, turned aid, no or person théir re- finding persons needing That, at Neptune. request of the said urgent the. steamboat, On board said the who feared she passengers might have become the the said boat returned to' leaky by examined, and, on was York; found be in safe being condition, a little at the injured bows, and only able to fully continued in voyage safety. " was, 5th. at the That Thomas Davis time of the J. occur aforesaid, master and of said captain steamboat, rence and of on board her for a more been or year preceding;, Child, boat, former of said a captain pilot accustomed Nathan conduct and steamboats the of harbor New manage York John boat, on the' said was then proceeding, route Driver, wheelsman familiar and in the experienced manage boat, said and who had been ment'of on of employed board the seven in the at were preceding years, pilot-house, time, at Occurrence; of the said wheql, and that all and' of said skilful and sufficient in the every were persons manage boat, of ment said were in were no nor crew way, said employed boat, unskilful, inexperienced, incompetent, insufficient, careless, or in the said of management negligent steamboat, as is in the fourth article libel of the falsely alleged aforesaid; nor was- the said steamboat said time care at the - 1850. or nor unskilfully was navigated; and other the loss improperly, lessly, schooner effects in the cargo said said child, said lives woman and named, libel nor the if any fault, occasioned carelessness, took or such loss place, steamboat, of- as is also al unskilful management falsely of the said article libel said fourth aforesaid. leged “ the said reason schooner was 6th. not seen why That of one of a quarter was, distance mile earlier than out view, shut her from had no black cloud heavy could enable the visible board which captain, pilot, lights wheelsman, of the said steam- the other crew any schooner sooner. boat, to the said discover as soon the said That, seen, “7th. schooner was .the course the said steamboat ac- changed, immediately in such 'cases, to the rule as to the the cording schooner the course customary give she was That this threw pursuing. to view so that Neptune broadside of the man at the schooner saw the head and wheel board steamboat more and her course stern of the seen distinctly, lights him. plainly fresh, and the 8th. the wind That blowing luffing steamboat, so as to cross the bows up of the latter were so evident to when the course schooner, could not have been expected on board the those steamboat, to all on board the contrary person any proper and lawful rules navigation. and crew of wheelsman, 9th. That the said pilot, captain, the said used the skill and care steamboat greatest- aforesaid-, in the took night same management the occurrence prevent precaution possible every did not in any manner accident; and the said schooner, as is run falsely said alleged negligently libel. the second the said article of ' “ said'accident, That,, 10th. occurrence cap- number crew, his steamboat, -with of the said tain sufficient *8 her, afford so as to boat, and in went every small. manned the possible on board or the said to the persons property assistance (cid:127) article of the said in third schooner; the allegations steam- on board of said be found could libel, that no captain to save the or was offered given no assistance boat,-and that false. of the said are board lives of pn those “ occasioned aforesaid was- by 11th. the accident That of crew care of officers want great negligence deck, lights Iole, riot powerful providing distance, discerned at schooner could .that said bows of said schooner right the course of across changing VOL. v. Paine of the said in full view the latter said steamboat when fault, occasioned it was not by and that crew, officers and or malice or any management, by unskilful carelessness, said captain, pilot, any evil crew on the part design as is falsely the said steamboat Neptune, on board libel, and that the owner of said fourth article in the alleged liable to not therefore is pay of the said steamboat Neptune the damages by sustained. the libellant “ tenth article in the said 12th. That as to the allegations some that person contained, said libel or of dent, said Law this respondent'says, or one libellants, or in the name on behalf persons acci- the occurrence them, informed the said Law of therein; counsel employed and stated who was the libellants, and said counsel called on immediately offered to leave the of said steamboat on behalf of the owner disinterested two persons, matter to the decision whole said counsel of libel- choose a third as umpire; who might said Law with clients, acquaint his to see lants promised answer only reply to said their answer made was proposition; of this court to take an officer pos- the sending cause; the said libel in this virtue of of said boat session “ true; are verifi- That all and premises singular 13th. craves leave to refer to denied, if cation respondent whereof, in this cause. him exhibited find other proofs by deposition “ court that this honorable Wherefore, the prays respondent and to aforesaid, the libel pronounce would please otherwise libellants costs, justice right condemn in the to administer premises. Respondent. E. B. St. John, Proctors.” Goodman, Woodruff & replication. filed the libellants general To this answer amended, leave of term, 1846, the libel was At December Sumner, master, the James out the names of Joseph striking court,.by Woorster, Tucker and James mate, Andrew McCollar, same occur as Cuff, cook, wherever seamen, and Henry - suit. parties sides, of which it both is taken on Much testimony of the master but the evidence abstract; an to make impossible will show of the Neptune of the Iole and of the pilot of parties. representations respective of the Iole. the master the evidence following claimant in- Sumner, sworn. “Joseph Objected Olive, between master of competent; Eastport brig trading or six master five mariner; sixteen York; years years been times Sound. vessel; fifteen to through twenty *9 John St. - Iole, last; 14th Master his watch below at July eight, clear, below half M.; P. went was past eight; night starlight; Sound both did sides; see across the clouds in could heavy observe any of horizon; first noticé of was, danger and called mate came to that a steamboat companion-way out he below, into when went them; was-north; wind coming at rate of seven ordered them to west, knots; west; steered keep to Island, that course would that, taken them Captain’s ornear off half a allowance -varia Sawpits, making point for tion of if when looked in order to be windward, at compass; kept up high westward, hauled wind which appearance doing; (cid:127) called, as as could do first quick so; got gangway ahead and saw schooner was the Sound by heading up side; astern, land on northern looked and saw Stratford Point latter about two on starboard light-boat, points quarter, west; that where main make course of schooner about then would asked no was; answer; steamboat received then looked under boom, and his saw steamboat head on to broad coming him, side she was about south of as he ; from judged bearing on Old Field Point about two star light, points steamboat; board fifteen to quarter appeared him, feet from but cannot distances judge accurately
thirty Could at then time see the her wheels were going. night; side; Island struck almost on immedi Long land ately, plain very schooner then had about three about midships; points off, deck; sheet sails were full when he came on have been course of steamer schooner; must about west leeward; was dead to leeward of schooner .when he struck bow, cut in twelve feet with and within four feet of her; saw bow schooner; through pressed galley through fastened in to schooner a it to she remained stove pieces; to bows of steamer as as soon two; made witness minute could, her, none, received hold for a called rope got on bows of part way of bolt-rope got up board, steamboat, of woman and then passenger thought he woman; found save the down on lumber try got the schooner hav afloat, no as lumber could footing, get of sail to bows rope sunk under then climbed it; again by ing n bows, asked for as he steamer; captain soon got there no captain or three voices steamer; two repeated mate., n board; same as small searched four boat; aft Witness then went to find lowered, and found it she was five minutes for and when he it, it was her; others in shoving two schooner’s men two Mur- Mrs. as he off went search there; passengers, got and child. phy SUPREME COURT.
90S v. Paine to bow steamer, returned saw small then Witness sunk; saw no more of her till boat row to where up *10 her return. “ steamboat Did not hear bell of her. Schooner ring stop order; tons; was about had on board. eighty good cargo bill of this fact to lading part; deposition put (Proves saw several vessels both clear; .continued sides The in.) sky schooner, leeward; collision, and one to before one ahead southeast; one to could see about should leeward was bearing judge vessels, before after two miles all directions; never vessels such a saw Sound carry lights night. “ course If steamer had been true when he came running deck, cleared for she was would have dead to lee- steamér; some one on board the don’t ;ward know spoke ; one called was told there was who; heard no none captain Driver on board. Witness talked with John ob- (defendant with Harris ruled had conversation after ar- jects,-and out); York; át he said he had turned in at time of col- rival cause of accident. ; lision did not explain “ or admitted Childs or Witness never said Harris that he carried or that to have accident was ought lights, owing to his so. woman and child from not doing child about Brought Eastport; old; knew her in a three was Eastport; short time years very deck; from his berth to did not call for woman getting child, because his whole mind was on his vessel,-and saving them; deck, did not after had not think time +o got child; of his think woman own life thought and to schooner; save thinks tide about slack and was low water.” evidence of the was fol- pilot —ows: — Nathan Childs, sworn. Resides Captain at Defence. Providence; old; mariner forty-seven years thirty-five years, — in all on the Sound, on all capacities, principally kinds of craft; been about pilot or master of years steamboats. twenty “Was on board 14th July, as.pilot. Left, five, about P. Mi New York Captain Harris also Henry was on board. Davis Thomas was of the boat, captain pilot of men, she had full as he ; believes complement was not on board the before. Witness had watch fore trip clear, Weather was black night. cloud east. Be except about, nine and tween ten the was hours cloud two or at high, of sun at horizon, two hours above closed down height horizon, northeast and southeast. spread Neptune east north. Witness stood in running front part wheel house, look-out. midships, Driver had the wheel. Wit ness was at of wheel-house, middle window about the middle of the boat. Wheelsman under his directions. Could then see ahead from one fourth to three mile, of a eighths as to d an rn should not think could see object; any thing, farther except off. Hgnt, at about ten miles the hour. About minutes twenty-five ten, before firs tsaw schooner north; was then about one mile and a (Iole), half from light-boat, Stratford shore east light north bearing one half north. Schooner was then ahead; could directly just discern her quite side of Wind flag-pole. north; breeze. Could not strong tell what course of schooner was; could not see her She was trimmed close plain enough. aft, or so; her sheets little nearly might off, eased that tell whether she her sails brought him, towards and could not edgewise awas or schooner. sloop “ Witness hove ordered wheel hard a-starboard immedi- *11 and in less than half a minute ately.; ordered bell to rung stop the to we near; were and engine, then seeing coming very rang back time and were close engine, to and soon struck. “ The effect of wheel to a-starboard boat heaving was bring to northward, and altered course of boat to north- up east. about “ Thinks schooner was about northwest. She was heading e square across bow cam when they Neptune together. Schooner had no lights; vessels on customary Sound to show are when steamboats Thinks lights near. schooner the by falling have could fallen the course a if she saw off with easily trifle, steamboat. If she had altered her Very any off at time mile, she could have within a easily cleared the on board struck, As soon as Neptune. crew schooner got Boat of low Neptune. Neptune immediately ered, and sent to see out It returned if could find body. any himself, it without and took person; finding any captain was with out it twen lantern, and went out with about again, finding minutes. Came back without ty-five person. any northward, first started, She was then hoisted up, Neptune collision three Sound; quarters across from directly on; one to found Neptune hour before going Neptuneiay by and, consultation, it more some; after leaking thought to return to Got back to New York prurient York. half four, three to past A. M. “ Schooner to altered her course. set have ought light much all steam- vessels in dark Pretty set a light, nights, 48* v.
St. John dis- see sail-vessels boats are It near. impossible tance without. nights such “ could had two easily large, bright lights, or five miles off. have been seen four “ within fif- course half point had altered her If schooner have avoid- easily would minutes teen or twenty ed it. “ leeward, not so could have very easily, gone Schooner windward, of easily Neptune.- “ to wind- northeast his Witness course to changed take; course to safe ward, and considered that the prudent it schooner. escape changed only “ vessels in that sail to his experience meeting According is the course for windward go steamer proper way, schooner. “ n to two hundred there were two hundred Thinks on board the great many fifty ladies. Neptune; passengers and not a light, not setting Collision was caused her course when she saw the Neptune. altering " been done Nep that could Not aware any thing to his collision, according omitted to avoid the tune that was afterwards thing every judgment experience; schooner. to save done in their life property power after collision. in about minutes Schooner eight sunk “- were and Davis passenger) (a Houghton (clerk boat) at wheel. man time, wheel-house at the witness turned Davis first discovered schooner. Witness Captain minutes wheel-house, in, twenty-five at back part twenty well into boat retire gets before collision. Masters usually after the Sound. but came master, the boat before that as Witness had sailed Mr. Law. board that day pilot; appointed by No time, em- at that time was Witness was specified nor'wages. *12 both that Massachusetts, on board and it was understood ployed boats -the to same concern. transferred Witness was belonged to same Both boats had been places. running Neptune. not Does not know that been in Does know they'had opposition. before. Harris, that second boat had been on this pilot, that was He also transferred from Thinks Massachusetts. had Rollins Davis’s first at that trip Captain period. Captain before; his pilots been master understood that he and it was-about been transferred thinks Oregon day; recollect when he left York; first flood but does not about not it. Did notice about Light-boat particularly. miles from a mile New York. collision was Thinks fifty-five and half or a mile light-boat. v. Paine “ A drunken dock man fell into fifteen or minutes be- twenty fore York, and was drowned. leaving New “ Did not know or hear on board that' the leaked Neptune when she left New York. “ Sound or nine miles wide at collision. eight Thinks place was a little nearest south side of very Sound, and course he usual has been in the habit of on board taking steamboats. from what had Judges observed days his. the Sound. see Did not at time through shores. Thinks discerned Connecticut but shore, not No rec- plainly. ollection of Island side. looking Connecticut shore Long about five off; could miles see above. plainest “ Could see three or four light-boat, off, miles probably Stratford five miles. When he light first saw she bore east north from the ahead. Could Neptune, directly riot tell how she was or whether or steering, down going up Sound. Did not look at her ; with his had no time; night-glass (cid:127) his whole attention was directed to her; clear attempting and took he what measure, thought proper wheel by throwing starboard. she Sound, or down the Judged going up that was the taken to clear them precaution ; always probably (cid:127)one hundred to one hundred and off when discovered fifty yards how she was but could not tell distance with cer- heading, Put his wheel hard a-starboard, and thinks that tainty. altered his course four to four and a his wheel so points, got half before how saw schooner was was, As wind heading. judged she must or down going up Sound; besides, if run- So'und, across sails would have shown ning Steam- differently. er on, struck stem, stem starboard side of her as that supposes was more indented than the other. schooner would be six Thinks or seven miles running hour. Hit side, her on larboard between her per masts. two nearly “ Should schooner was about northwest when 'judge heading struck. Her boom was not thrown off much. She would they lie to about northwest on and struck her wind; up nearly about at midships, right angles. “ Can’t the effect if what would have been he had not say course, altered near to his vessels were each other. “ If not schooner had altered steamer would have .cleared her. minute Saw schooner alter her course a or minute and a half before Presumes was pre- striking. west, of that. viously heading within half point (cid:127) “ Discovered she was two three min- the Sound going up utes after he four he should heir; minutes, saw over three from time think, he saw till struck. If he had thrown
St. John et al. Paine his larboard, wheel should have her; but escaped that would have been to vessels. contrary usage passing the schooner had If her course as she kept struck, just the steamer would her, have cleared if she probably not had altered her course; own thinks would have cleared her fif- teen feet. “ Thinks to bell in one after rang stop minute saw how schoon- er was, one hundred to one hundred and perhaps off; fifty yards bell to back as soon as he rang had supposed engineer time to Knew motion of stop. boat that by Can engine stopped. fell in wheel-house always whether is in motion. Had engine hot left wheel-house, to take down, had not except laid supper; or sat down. “ It is usual for vessels to alter their a sailing set a when see light, steamer coming. “ Was not requested to into Stratford go Point passengers after accident. Did not tell them he knew little of any the coast. Did tell one he not was not a regular pilot. Had not he could nothing say passengers. say Did not put into New Haven. “ Watch was set about o’clock. Did notice not black eight cloud after back for York. put “ Did not consider collision a severe one. Captain reported fast, steamboat, stern some. Weight very leaked would break in an old the blow without steamer feeling much. “ It is usual for vessels to set steam- lights passing boats, ; them set in shrouds or coming up commonly rig- duty Considers of vessels to show lights, according ging. practice in Sound. he course háve thrown If had known should the. did, because have hauled off his wheel he schooner might as . on wind. Stern of small on a little; very injured put her. piece repair “ “ can than luff. Vessels on wind quicker keep away hold about night, the wind With could west. south; fall natu- off little would course; wmild probably more or less fresh.” little, waver wind was rally the District 1847, the cause In was argued February, that tbs libellants Court, the court recover.their adjudged be refer- collision, and that it should sustained damages amount red to a commissioner ascertain report the libellants. sustained damages re- the following In made April, 1847, commissioner — the case: port-in St. John v.
Commissioners Report. “ In of á decretal order pursuance by made in the above-entitled which, cause, other among was referred to the things, un- one of the court, commissioners of this dersigned, and ascertain the amount of sustained report damages libellants by means of the collision in the by mentioned: pleadings “ I, W. Morton, the commissioner George to whom above matter referred, do report, I have been attended by for the libellants and proctors claimant, taken and and and have examined the offered' testimony by parties, respective do find sustained libellants, exclusive damages of interest, amount to the sum of sum is 3,547.67, which $ — made items : up following “ in the whole, Amounting interest, without 3,547.67. $ All which is respectfully submitted. “ George W. U. S. Commissioner. Morton, 30,1847.” April
St.'John v. In 1847, the District May, Court confirmed the of thé report commissioner, with interest the 7th of from February, and costs. The claimant to the Circuit appealed Court, which, in No- vember, 1847, affirmed the decree District Court. The claimant then to this court. appealed It was Wood, Mr. argued by for the Gil- Mr. appellant, let, for the appellees. ' Mr. Wood contended that, from the evidence he ex- (which facts were to exist in amined), shown towards New the case. following The schooner York, Iole was.sailing Long Sound, Island west; course but her actual steering reason of &c., south. west The wind fresh lee-way, the north. at rate of seven miles hour. an Sailing Under these circumstances, the wind was fairTor sehoon-. er, is, she had wind,” what a free called technically “ had .the wind free.” *15 The steamboat with from 200 to 300 Neptune* passengers,- was going York, “down Sound” from New on her proper course, east or east north. Her ten miles an speed hour. The collision was The were about ten o’clock. two vessels therefore of seven- each other at a combined rate approaching teen miles hour. per The west, south, but north, clear towards the night ” dark'towards east of a bank or cloud reason direction, which, at ob- collision, or about the time of rendered invisible.- jects Libellants’ witnesses do not contradict this. The of the of the direction wind añd course schooner were (cid:127) such as to her sails to- the officers of the present edgewise so steamboat, as to increase her. difficulty seeing The of her sails, however, indicated to the officers steamboat, of the sailing nearly when her, did see that the schooner was them, them, towards or from not nearly across the Sound. courses of the The two vessels were same nearly is, line on lines officers when the (in opposite, which, directions), schooner was first discovered steamboat, of the other; to each converged very that the nearly schooner was at first seen -the steamboat, ahead of directly or a little on her starboard bów. The steamboat was discovered by crew of the schooner when several distant. miles The officers and crew of the steamboat did not and could 1850.
St. John see'the schooner until within a distance not than greater one three of a quarter eighths mile. discovered, course of the At instant schooner was is, to windward changed northeast), (that avoid the schooner. circumstances, Under the this proper was the prudent course. to avoid The -steamboat did all that possible prudently the collision. save life and after property The steamboat was and manned. officered properly The schooner did collision; to avoid but either nothing her course she the steamboat kept proaching ap- saw (notwithstanding luffed, half an or for-nearly or hour), designedly luff, was suffered to so as to bows. cross steamboat’s The schooner when one, carried nor showed lights .neither she saw the steamboat approaching. She least to have her crew ought showed light, hour. witnessed of the boat an approach for half nearly facts, this- state of Upon Mr. his Wood argument arranged viz,: — under following points, this, I. To- case, enable owners the Iole recover in there must have been wilful misconduct on the part freedom with negligence part, accompanied from blame Iole. There is no of wilful pretence misconduct. charge No II. blame was can be negligence Neptune. imputed She manned skilful sufficiently experienced seamen. 2. She was well and in proper, sufficiently lighted, place. The court erred in thick, that the assuming atmosphere well as cloudy, ahead. 3. The had a look-out. good not being night look-out on her deck foggy hazy, below was unnecessary. *16 The look-out in tjié was pilot-house and sufficient The proper erred in a court closed on the supposing window intervened- of July. said 14fh 4. She was as to properly navigated speed. she went Though faster at of and in the early daylight, her at the voyage, the period in at was rate question she going ten of miles the hour; fast, which into taking Was not too view general the well-known the in this character usage country, other, which enabled the Iole or -vessel evening, her to see approaching her distance, and on their: great 3 showing Perth, would enable . light her them. to see The Adm. 417. Hagg.
576
St. John v.
5.
course,
to
Neptune
properly
which
navigated,
north,
was east
continued
until she
by
by
compass,
the Iole.
discovered
her on
course,
The Iole
a west
approaching
by
compass.
Allowance
made
vessels,
of both
which
being
lee-way
amounted to
course
half
were
the same
point, they
reversed,
awith variation of about half a point.
III. The
first
the Iole at a
Neptune
distance from
perceived
her of
mile,
one
to three
of a
quarter
and could not see
eighths
her
distance,
at a
of the eioud in the
greater
reason
east.
IV.
At this time
Iole
to be
appeared
ap-
line,
or
the same
her sails
proaching
receding
nearly
being
seen
to
and the
be in the act of
edgewise,
Neptune appeared
northward,
her
she
seen
line to
over the
crossing
starboard
being
is
bow of the
which
established'
fully
Neptune,
observations of
witnesses.
specific
V. The evidence that
at the distance of six
Neptune,
miles
the Iole,
Iole,
was on a line
south
and so as to
overcome
assuming
her,
the Iole to the
south
too weak to
pass
clear and
decisive evidence
last
even
point,
them to be
witnesses.
competent
These
were
witnesses
interested and incompetent.
To hit the
did,
Iole as she
Iole
"(the
keeping
course,)
her,
to
come
must
towards
up directly
Neptune'
north,
course to due
west,
north
is' not
changed
contradicted
only improbable, but
evidence.
decidedly by
true,
VI.
to be
it
Assuming
Neptune changed
northward,
her course
some five
six
minutes
prior
sowas
as to
she
her in the
changed
bripg
position
stated in the fourth
point;
when
position
the Iole was first discovered
as the evidence
by her,
decisively
shows.
VII. If the
her course five or six minutes
Neptune changed
before the
as to
collision,.so
stated in
her in
bring
the fourth
she was
point,
not in
fault making
change,
she did
because
see
could
then
(and
not)
Iole.
And it
VIII.
she first
duty
the Iole,
her,
perceived
endeavour
and not
pass
stop
slack her speed.
would have been
By
danger
stopping
run into while at rest-
being
body, thereby
aby moving
the lives
endangering
the duty
it being
her.passengers;
passenger
industry,
to use
vessels
precaution
diligence,
every
and skill
Com.
save the
lives
their
Kent’s"
passengers.
; Christie
P. N. R. 79.
2 Camp.
Griggs,
*17
TERM, 1850.
577
John'!;.
Paine
al.
et
course she
been less able
her
would have
2.
slackening
By
accelerating,
avoid collision than
or even
her
to
by continuing,
speed.
IX. The
when in the
the fourth
stated in
Neptune,
was correct in
her helm a-starboard.
putting
point,
vessels,
1. It was
account
that both
expedient
highly
col-
be
avoid
should
active in
to
proximity,
endeavoring
neither
lision,
should
her
keep
Neptune
Friends,
bound
act
1 Wm.
to
on that
The
supposition.
St. John
*18
2.
not
In
her
bearing away
Neptune
when
changed
course; which
she
change
perceived, might
perceived,
awith
lookrout.
proper
helm,
3. In
her
the her to
eleventh
neglecting
bringing
the track of the
See
Neptune.
crossing
point.
default,
The
XIII.
cannot recover, even
being
Iole
assum
there
is fault on
it
ing
part
not
Neptune;
appearing
there was
wilful
to
design
Neptune
injure.
399;
v.
19
Cole,
Rathbun
Wend.
Barnes
21 Wend.
v.
Payne,
188;
Hand,
311;
v.
Whart.
Simpson
Constitution,
6
Reeves v.
579;
7
Gilpin,
Broadwell v.
B. Monroe,
Celt,
The
Swigert,
39;
3
322, 323;
Adm.
The
7
Hagg.
222;
Law
Cynosure,
Rep.
Cook. v.
Transportation
99;
Champlain
Denio,
1
Company,
Brown v.
6
Maxwell, Hill, 592; Hartfield
Wend.
v.
21
Roper,
618 ;
Hill,
5
282;
Brownell v.
Utica
Flagler,
v.
Spencer
5 Barbour,
Railroad Co.
337.
Schenectady
there,
If
XIV.
accident,
is
result
can be
damage
no recovery;
presumed,
contrary
and accident is
to
till
is shown.
that,
Mr. Gillet contended
evidence, the
according
—
was the state of
following
facts:
The
Sound,
1.
collision took
Island
place
Long
,14th of
1846,'between'
M.,
P.
July,
o’clock,
ten
nine
the Iole
fore
in two between the
cutting
nearly
main
her
rigging,
her
sinking
immediately,
cargo
two
The
saved
passengers.
crew
themselves by climbing upon
(cid:127)
the Neptune. This
is not'
disputed.
Iole,
2. The
at
collision,
the time of the
had passed
one mile south of the Middle Ground
was west
light-boat,-and
of her. The Iole was
west.
steering directly
The
3.
wind was
fresh
blowing
north,
and the Iole
close on the
running
wind.
4. The Iole did not
her course or
the col-
change'
luff before
lision, but her sails were full when it took place.
5. The steamboat
her
changed
course to thé windward by
her wheel-
putting
hard a-starboard when within a
to
quarter
paile
three
of a
eighths
from the schooner.
6. The steamer would have cleared the
if
the for-
had-,
mer
her course.
changed
7. There is no custom
in the
requiring
schooner
Sound to
carry lights when sailing.
8. The night was not so dark as to
all
render
lights
necessary.
9.
isIt
of a steamboat, when a
duty
is
schooner
on the wind, if
to avoid
to
necessary
change
TERM, 1850.
579
v.
latter,
so as to avoid the
is not the
course
of a
duty
leeward.
schooner
change
state, that,
10. Claimant’s witnesses
first saw
dead,
three,
of a mile
Iole,-
off,
eighths
quarter
ahead..
true,
If this
to have
evidence
steamer ought
ported
helm and
the south.
gone
made the
facts,
this state
Mr. Gillet
Upon
following
—
points: n 1. The.
respect,
every
performed
duty
Bailments,
had a
her course to the west. Story
right
keep
3
611;
;
5
345 The
Adm.
Thames, Rob.
Hagg.
Jupiter,
§
528.
;
Wilson,
3 Carr. & Payne,
Handaysyde
2. It is
account
her situ
incumbent on the steamboat to
ation, and
no
court that there was
mismanage
satisfy.the
ot
ment, mistake,
can be
blame that
reasonably imputed
her. The
Perth,
Adm.
Hagg.
*19
The
but was in fault
3.
steamboat did not
her duty,
perform
her course to the
look-out,
a'better
keeping
changing
leeward,
is, to the
windward, and in not
(that
turning
and
and
in not earlier
her
backing
stopping
engine
south,)
9
Duke,
Jurist,
9
43
when she
the
Iron
saw
The
danger.
3
Bailments, 611; Kent,
on
on
234;
Abbott
Shipping,
Story
Cynosure,
§
230,
222;
5th
7
The
ed.;
Com.
The
Law Rep.
Friends,
3
1
452;
2
The
Wm.
320; Wend.
Jupiter, Hagg.
1
481,
313,
Shannon,
467;
1 Wm.
Law
483;
Rob.
Rep.
The
Rob.
318;
475;
Wm. Rob.
Lowrey
The
1
Gazelle,
318;
Steamboat
The
Gazelle, 1
Portland, 1 Law Rep.
305-311.
Wm.
St. John v. Paine had on board from 200 to 250 The Neptune passengers. on the side, The was struck near larboard midships, sunk, child, and with her a and woman immediately carrying were lost. who libel that the The schooner was on her charges voyage up York; Sound to New a.'mile about south stationed offthe Middle' a shoal at that Ground, place, light-boat Point, Stratford some miles from nearly opposite sixty York, course, about a be- New was west wind steering north, that a vessel could clear, from so night ing be descried at a distance; considerable and that while sailing at course with a fresh from six to this upon knots eight an hour, short time after schooner had passed between the hours of nine ten o’clock light-boat, she was run down which night, negligently York, vessel down the 'Sound from New proceeding hull, on, struck her head fore between and main such side, larboard force violence rigging hull, break her and cut two, that she filled open nearly sunk immediately. are, answer that the allegations Neptune York at five o’clock sailed of the' afternoon of that I.), bound for and Providence and had Newport pro- day, (R. until about mile ceeded within from Stratford voyage at or when, ten o’clock in the eight evening, light-boat, quarter a vessel was descried about a of a mile ahead, out to be the Iole in question. turned seeing That immediately course of Neptune changed her the course she was purpose giving windward That was about ten or twelve running. from the seen that she changed had. lengths into the wind so as to cross luffing up bows the steamboat. That when first run- seen, the Iole was *20 west south, from which she about ning northwest; of by suddenly changed that, on she the bell seeing course, changed her, and all efforts Neptune to immediately rung stop but that collision; made avoid the schooner came di- of the steamboat, and, across the bows latter rectly having some could still a collision not be avoided. headway, It will be seen from these allegations respective par- them, issue ties, that the which the case between upon one, must turn in favor other, one or is a very simple we have law or to facts. whether regard The is, statement Iole was proceeding wind, course Sound, west to the with up close-hauled nearly her starboard tacks on at the knots board, seven rate 1850. 581
St. John hour; that, while an on this course, the keeping in an manoeuvre cross trail, improper to the pass windward, struck her near on the side, larboard midships sunk her. The does allegation vary substantially from this statement, that it the collision to except charges fault of the Iole in not on her course, but keeping suddenly wind, her head into the changing by throwing thereby her athwart the track of the placing the act of steamboat as she was in to the windward. passing The is, involved in the general question case which these vessels has been in and this fault; will the evi depend upon d dence each in the court produce below, with together of the rules of to be application observed them navigation at the time of the collision, and it, with view to avoid having to their relative ; and, course more regard especial of these rules ly, application under the facts and circum stances, a case where the vessel is colliding propelled by steam, and the other sails. the nautical rules to the Among navigation applicable —yiz.: vessels .are the A vessel' has the sailing following, or free, wind before or with the must out of sailing get close-hauled, of the vessel that is way sailing by and the it; vessel on the starboard tack has a right and the one on the larboard tack must keep way, vessels are give or be answerable for the two So, when consequences. other, each free, both approaching the-wind having their move consequently power readily controlling ments, the vessel on the larboard tack must and each give way, The same rule pass Vessels right. governs wind and other, each it is doubtful when approaching to windward. But if the vessel on the larboard is so tack far that, to windward if both in their persist course, the other will her oh the lee strike side abaft the beam or near stern, that case the vessel on the starboard tack should give way, do so she can. loss less of time and greater facility distance other.. than the are vessels Again, crossing directions, each other in of their and there is the opposite least doubt clear, the vessel on tack starboard should her course, persevere in while that on the tack larboard should bear Friends, 1 up, keep before wind. The Wm. away Rob. Mary, The 483; Wm. Traveller, 197; Rob. The Ann 2 189; Ib. The Chester, 3 316; The Ib. Hagg. Jupiter, ; 320 The Celt, Ib. Sims, Dodson, 86; 327 2 ; The Woodrop Thames, Rob. 601; 345 3 Carr. ; 9 Ib. 528; &. Payne, 12 Moore, Kent, 148; Com. 49* *21 v. Paine in rules cases, have their extreme exceptions These depend- of circumstances case, and in ingmpon special the. respect can be no rule laid down or which Either general applied. find in a vessel be herself at the time it would may when to conform to them without impossible certain to her- peril or a self, collision with the vessel. Under approaching such circumstances, the must master be thrown necessarily upon resources of his own and skill' in his judgment extricating own pending peril. fore cannot can proved as well as vessel from .the im- approaching, These cases be cannot and there- anticipated, be for fixed provided by any regulation. They only be examined, and the of the vessel management ap- condemned, as the case arise. may no one But can look through reports admiralty without struck with steadiness and England being rigor these with nautical rules have which been enforced in general collision, under the cases advice masters Trinity court, or be that fail to with the impressed justice pro- such and the application, results priety salutary flowing from it. In Traveller, the case of the. an was set exception up by de- vessei, other, that colliding scried, nied. ground .first lee on her was de- was about two bow. This points into But the court declined to enter a minute examina- tion as it had been when two vessels on of the statements that correct, which observing laid over and down, over that distinctly again, are tacks each opposite approaching other, there is-a it is the probability duty at once, the vessel on the larboard con- give way without one or whether the other vessel more to lee- be sidering points Friends, And, in the case the court, ward. where an be rules, exception attempted engrafted Trinity case masters, submitting Trinity recommended that, for sake of safe and the Thames navigation are stake, interests which there at great daily hourly to be made, definite, if be clear, were should exception, intelligible, it in order that first known might, glance, were, to the mercantile was obvious that maritime world; so, unless it it in' all cases would endeavor form persons themselves, and instead of would they exceptions certainty instead in the uncertainty; And security, danger. case ters observed to the of dhe decided Ann mas- Trinity Mary, the. court, vessel rule speaking'of on the larboard tack must had ap- where give way, estab- that the plied rigor, rule. great golden long must-be vessel lished to, was, adhered strictly
St. John v. Paine *22 vessel the larboard tack to and the on thé way on is star- give to the new rule which had board tack hold on; been steam-vessels, each to the made for helm namely, put lately circumstances, under all doubtful assimilated with it. a-port, on starboard tack her helm to The vessel the puts a-port keep does and the vessel the larboard tack the same to wind, the bear steam the rule to as well as applied That same sailing, away. be vessels, to, .if it should adhered there strictly the be of accidents not one thousandth part would occurred. rules, which are the These results practical experience of cannot be too and wisdom navigators, suongly impressed observance-of those in the of the engaged upon vessels on management rivers, our other the of waters where course busi- confines the to a ness and trade naturally navigation particu- the and it is the obvious of route; courts duty lar tract to collision, all of unless in cases them where a strictly apply the is established to clear himself excuse seeking exception by party a-departure. thus far been confined to the nautical Our examination has o.f We the vessels. rules navigation sailing governing be it are in it, because found they thus confined will gen- as cases navigation ruFs regulating erally applicable xs steam. vessels propelled by one where (cid:127) n is, that steam-vessels are difference regarded striking The a wind, fair and are of vessels with navigating always the light under obligations a free to do whatever vessel sailing would be to do under similar circum- required a fair wind with further, still because extends Their obligation stances. to belonging to avoid collision a sailing power possess vessels the master steamer a free' having even command, both helm by altering his stop- under are. also of vast and speed the engines; They power ping compared seas on our rivers and internal craft propelled .with in case destruction the latter to inevitable sails, exposing difficult, and not times unfre- it all collision, and rendering Greater caution to out their way. get impossible, quentiy of those therefore to are exacted naturally arid vigilance them, to This dangers navigation. .avoid charge and control the direct from superior power results justly vessel, and the conse- damage serious course and speed rule, general to avoid As failure dangers. quent upon close-hauled vessel, whether therefore, sailing meeting when free, has a latter keep or with the wind right as precautions such the steamer adopt duty The Shannon, 173; Perth, 2 Adm. her. The Hagg. will avoid 584 John v. Paine et aL Ib. 1; 3 ess and 414 2 Wm. ; Rose, Rob. Hawkins v. The Duch Co., 452; 3 Steamboat Wend. Com. Kent, Orange 230; Abbott ed. Shipping, p. 1836). (Boston an rule ves- adherence this By sailing sel, the steamer with a look-out enabled, will be proper direction, an adopt necessary approaching opposite measures to avoid the to as- will have a danger, right sume that the vessel If the latter will course. keep the,fault this, fails to do her, will be attributable master of the steamer will be exer- for a fair only responsible- tion of the vessel to under the the his collision power avoid of the course of the other
unexpected change. circumstances of the case. now to facts as dis- Recurring attending below, closed as the court the rules applying navigation stated, above have been observed which should *23 vessels, we shall enabled to determine without respective much which of them has been in fault. difficulty tacks, Iole had on board her starboard and was nearly to seen, .close-hauled the and, as we have had a right, and indeed to course; was her and it the bound, on was keep ¿void of the to to the measures duty Neptune adopt proper evidence, her. There is some but clear in the the discrepancy is, of it that she hef course till the collision occur- weight kept red. She was not descried hands on board the the 'Nep- the tune till two vessels were from one fourth to three eighths aof mile of sixteen or seventeen with combined apart, speed the hour. was. as then, miles She they supposed, directly ahead. The wheel of the was Neptune put hard immediately a-starboard, with a view to the schooner to windward; pass and it is on board this the hands manoeuvre supposed by her, have cleared had she would not the same time changed course more her ready into wind. As we have al- by heading said, this is hot borne out evidence. allegation On is, the'contrary, strong probability tes- according the the on hands board the at the time Neptune timony, and, first descried schooner mistook her instead of position, on a line with that the to her, leeward, being, was Neptune the. that, in course and changing up pass coming windward, they naturally supposed changed her course also. Besides, she in fault in the Iole to was attempting pass the windward. Even not in that she mistaken admitting of this ahead, and that dead it shé was to bear and to duty Neptune pass away; side. larboard of no seen, As have the. observance .we rules of is more one of the navigation strongly recommended, in the enforced, or more than this steadily admiralty, one, are two vessels directions, approaching opposite where there of a collision. -is danger connection, observable in this It is that the pilot charge to have seems not been instructed in his properly after the schooner had been emergency duty ahead, discovered had, if he that he it; for we find neglected .him testi- that, if he had known he did not fying when (which he should have thrown he.gave his wheel order,) because the schooner did, he hauled off might the other And board wind. pilot expressed opinion, Yio whatever that there was in her difficulty keeping away after her two or three Neptune,' miles avoiding seeing off. to have entertained the seem opinion, that, They according the rules to navigation, duty vessel . a vessel when meeting way propelled steam; and give on the even when starboard this tack and close- nearly Now,‘the to the wind. owner is hauled responsible damage from want attention only on the resulting part care.and of the vessel, those but also from the charge want and skill enable them to knowledge proper manage established nautical rules. Error of according will judgment defence, if from be no especially resulting And incompetency. of those erroneous diate a in the opinions duty part imme- and control of the vessel management turn naturally evidence doubt, arising conflicting upon question direction was or not a in'the whether given emergency, proper them. satisfied, time a also steamboat was We are in fault in not look-out on the at the forward proper keeping the and that deck; failure to schooner at a descry *24 half a ínilé distance ahead is than attributable to this greater neglect. in the if pilot-house, night,- dark, and especially clouds obscured in the distance, view was not the the the whether windows were or down. The up proper place, stationed there must a look-out have of been necessarily view and vigilant obstructed. A look-out sta- competent partially of and in a forward the part the best tioned at adapted is vessels the earliest moment, to descry approaching the steamboat from in blame case exempt indispensable the while in accident waters night-time, of which navigating other meet water craft. it is accustomed in this harsh or unreasonable nothing rule; is and its There aftd enforcement be found observance will as beneficial strict the as to owners of interest safety navigation;
Newton Stebbins. other true in respect nautical rule, equally every a remark shown enter so results materi- experience which of the vessel. management into proper ally insisted, the schooner in fault in been not It has as to enable the vessels a to see light, approaching carrying her at that it was distance. But all a clear, agree greater could be no difficulty, and hence there with a night, starlight distance to in a sufficient look-out, enable seeing proper to avoid to make the movement to her. steamer proper the. for vessels such a lights is usual carry It sailing not. night.. on the true, part some witnesses It horizon, a black cloud in the'eastern obscured speak direction: But the in that view from vessels allega- to an extent that the evidence would tion is not maintained ,by material to it importance. us in attributing justify the decree below is whole, we are satisfied right, Upon be affirmed. and must opinion DANIEL dissented Mr. Justice ' Stebbins. Newton v. case, in this and also the conclusion court case, the last-mentioned see For his opinion, Which follows present. Order. came, on to be heard transcript cause This of the United the Circuit Court record from States and was' York, District of New counsel. argued by Southern On whereof, it is ordered decreed consideration this in this Circuit Court cause court, that the decree of the said affirmed, with costs and be, and the same is damages-at hereby, centum annuni. rate of six per per Jersey, Appellant, Newton, of Steamboat Claimant Isaac H. v. Stebbins. trifling descending'the River but sailing Hudson Where vessel current, with a into steamer chiefly by came collision and ascending the' force of the hap- river, was, accident question in the case whether or been taken pened, notwithstanding every proper precautionary measure consequence im- sloop of an pass safety, the steamboat to unskilfulness of the proper mismanagement and movement of that vessel duty of persons kept it was charge her. vessel If did not take showing that the steamer the steamboat avoid her. The evidence