21 F. Cas. 783 | U.S. Circuit Court for the District of Southern New York | 1870
Although there is great discrepancy in the testimony of the respective witnesses, on both sides, in regard to many details, and, in some particulars, the testimony in behalf of the libellants is wholly inconsistent with that produced by the claimants, there are some facts in respect to which there is such concurrence of the witnesses that they may safely be tak
In the present case, I regard it as established, that the course of the Berkshire, the ship of the libellants, was southeast by east half east, she having the wind about two points free, the wind being about south south west, and her speed seven miles an hour; that the course of the steamship Scotia was west by north half north, and her speed thirteen miles an hour; and that the Scotia, when first seen from the Berkshire, bore from one to two points off her port bow. Six witnesses on the Berkshire — every one who was examined to the point — agree in the fact that she bore off the port bow. differing slightly in the degree only; and no one makes the angle less than one point. From these facts it necessarily results, by laws that admit of no question, that the course of the Scotia must intersect that of the Berkshire at some point either ahead of or astern of the latter, or •precisely where she then was; and that the two vessels were coming into neighborhood at the combined rate of twenty miles an hour,- or one mile in three minutes.
The testimony of the witnesses on board the Berkshire shows, that the white light of the Scotia was seen from fifteen to twenty minutes before the collision; and, although there is not entire uniformity, the balance of their testimony is, that her helm was put to starboard, and she fell off beforé the wind, not less than ten minutes before the collision; and that, when first seen, the Sco-tia was from five to six and two-third miles distant, and. when the Berkshire fell off, not less than three and one-third miles distant. As the courses of the respective vessels must cross each other at an angle of one point only, (that being the precise difference between southeast by east half east, and west by north half north), no point on the Scotia’s course could bear on any point on the Berkshire's course westwardly of, or beyond, the point of intersection, at an angle so great as one point. It would follow, as a mathematical necessity, that, if the Berkshire saw the Scotia precisely one point off her port bow, the Berkshire was at that precise moment at the point of intersection of the two courses; and, if the larger estimate of the witnesses, one and a half to two points, be taken as true, then it follows, that she had crossed the point of intersection and was to the eastward thereof, entirely out of danger of collision, before she saw the Scotia. Taking the testimony of her own witnesses, then, captain, mate and seamen, and making just allowance for possible inaccuracy of observation, by a concession from the larger esti- ¡ mate towards the less, the Berkshire had, i when the Scotia was seen, passed the point , at which the vessels, keeping their courses, . could collide; and if, notwithstanding their ¡ testimony, it be assumed that the angle of I observation was something less than one j point, it would only follow that, when she first saw the Scotia, she was very near, though not precisely at, the intersecting point, because, when she was seen off the port bow of the Scotia, she had passed that point and was to the southward of the Scotia’s course.
Bearing on the position of the Berkshire when seen from the Scotia, the following appears: She was first seen off the port bow i of the Scotia. And here there is the same variation in the testimony as was exhibited in the observations made on the Berkshire. The smallest estimate is one point, the lar- ; gest two points. But there are seven wit-j nesses, and each testifies unqualifiedly, that ■ he first saw the Berkshire over the port . bow, and some of them give circumstances ! which make the proof to my mind conelu-i sive; and that fact, if proved, establishes | what no human testimony can confute, that | the Berkshire had then passed, and then was j some distance past, the point of the intersec- ■ tion of the two courses, else she could not ] have been so seen. Not only so; if the low-1 est estimate, namely, one point on the Sco-tia’s port bow, be taken, then it is perfectly certain that she was at that moment as far | ip the eastward of the point of intersection ! as the distance the Scotia then was from I her. If the Scotia was then three miles dis- '• tant, the Berkshire was three miles east-i wardly of the point of intersection. If the ! Scotia was two niiles distant, then, when she ; was first seen, the Berkshire wras two miles | eastwardly from the point of intersection.
The witnesses from the Scotia, in their estimates of the minutes that elapsed before the collision, and of the distance of the Berkshire when sighted, vary, also, as do the witnesses as to time and distance on the Berkshire. The estimates vary from nine to fifteen minutes; but, in my judgment, the just inference from all of them would not warrant the conclusion that the interval between their discovery of the Berkshire and the collision was so much as ten minutes; and yet. if any reliance is to be placed on the estimates, it must have been very little less. If so, she must have then been three miles distant, and the like distance eastwardly from the point of intersection of the two courses. 1 am aware that strict mathematical precision cannot, in general, be assumed as the ground of inference from observations which are obviously in some degree imperfect. But we have necessarily to gather the facts from
First, as to the Berkshire. It is conceded that she carried a white light at her bow, fastened to her anchor stock; and it was fully shown that she carried no other lights. After she had observed the Scotia about ten minutes, and about ten minutes before the collision. her helm was put a-starboard and she fell off before the wind. She was at that time in such a position that, if she had kept her proper course, on which she had been steering, she would have been in no danger, having already passed to the eastward of the. point where the Scotia would cross her track. Her mate and the man at the wheel, on seeing the Scotia, had brought the vessel more closely to the wind, which had carried her still further from danger of collision. The master countermanded the order, and made the manoeuvre which moved her towards and across the track of the Scotia. Before this was done, and while the Berkshire was, by order of the mate, brought nearer the wind, her wheelsman (according to his testimony) saw the Scotia’s fed light and her white light. This, of course, indicated to him, if he knew where it was common for vessels to carry the red light, that the Scotia was a steamer, and that she was heading in a direction which must clear the Berkshire, if the latter kept her course. Riley, the lookout on the Berkshire, who reported the Scotia, first saw her bright light, and heard the order of the master of the Berkshire to keep her luff, and, about ten or fifteen minutes after seeing the bright light, (which was about the time she changed her course, or very soon after,) saw the Scotia's red light; and he imputes the collision to the imprudent change of course when, as he testifies, the Scotia had opened on the port bow of the ship so as to indicate ! that she would pass clear. "Wilson, a hand on the same watch, testified that, when he saw the Scotia, he also saw both a red and a white light. The master himself, after the Berkshire had fallen off so as to bring the bearing of the Scotia abeam, saw the Sco-tia’s red light; and there can be no just pre-tence that a collision could have occurred, if he had then countermanded his order, for he could not have at that time reached the course of the Scotia, if her red light was in full view. The master testifies, that he had before that seen two lights on the Scotia, namely, one bright light and another the color of which he says he could not distinguish, but which he concluded was green, and, though he cannot swear it was green, he says it was not red. The course and position of the two vessels render this statement very improbable; and I am more disposed to credit the lookout and wheelsman on that point than the person who gave the unfortunate order, and on whom, if in fault, rests a very heavy responsibility.
Second, as to the Scotia. Her lights were all set and burning bright, a white light at mast-head, a green light on the starboard and a red light on the port side. She saw the Berkshire’s white light near the horizon, off her port bow. She had no reason to anticipate danger of collision, and- did apprehend none, until she saw that light closing in upon her bow, and the officer in command then immediately gave an order to port, then hard-a-port. and, observing that the light still closed in, gave the order to slow and then to stop. The engines were at once slowed, stopped and reversed, but the vessels, notwithstanding, came together.
Irrespective of the legal questions arising upon the undisputed fact that the Berkshire was not carrying the lights prescribed by the navigation laws of the United States, to be hereafter adverted to, it is upon this conduct of the Scotia that the question of fault on her part arises. For, conceding the general rule of the maritime law, prior to recent statutes, to be, that, when a steamer and a sailing vessel are approaching each other, so as to involve danger of collision, it is the duty of the steamer to keep out of the way of the sailing vessel and conceding, also, that, un
The fault in her conduct supposed, involves two enquiries: (1) Ought she to have slackened her speed sooner than she did? (2) Was it improper for her to port her helm when she did? And these enquiries also involve the more general one, was there any other step or manoeuvre which ought to have been taken?
1. Whether the light she saw near the horizon was on a steamer or on a sailing vessel, no duty to slacken speed or change the course of the Scotia arose until there was some reason to apprehend a collision. The duty first called into exercise, on discovering the light, was to observe it closely, to see whether or not there was reason to apprehend such danger. The suggestion that it was her immediate duty to slacken speed when she saw the light, assumes what is not in the first instance to be assumed. The suggestion that, not knowing the course of the vessel bearing the light, she should have slackened her speed till she could ascertain such course, assumes that the apprehension of danger was the immediate consequence of seeing the light. Not so. If she saw the light and observed it diligently, without having reasonable ground for apprehending collision, no duty to either slacken speed or change her course was created. This makes the allegation and proof of the claimants, that the location of the light on the Berkshire, (so near the surface of the water as it confessedly was,) actually misled the officers of the Scotia in regard to the distance of such light from the steamer, important ones. Carrying a light in such a location was well calculated to mislead and did in fact mis- | lead. But the still more important fact, that, when seen, the light was off the port bow of the Scotia, as to which there is an entire and conclusive concurrence of testimony, if followed by the opening of such light still further on her port bow, before the steamer ported her helm, is conclusive that, during the interval, and until that light began to close in, the officers of the Scotia had no reason to apprehend danger.
It is because of this that great importance is attached to the question, did the light of the Berkshire open on the port bow after it was seen by the Scotia, and before she ported her helm? The libellants insist that it did not; that the course of the Berkshire, when discovered by the Scotia, had already been changed by falling off; that such opening on the port bow of the Scotia was, therefore, impossible; and that, if such opening in fact occurred, it would have been impossible for the Berkshire to thereafter reach the track of the Scotia (when sailing at only about one-half the speed of the latter), until after the Scotia had passed. I am satisfied that the reasoning upon both these propositions is fallacious, and that the premises assumed therein do not necessarily establish the conclusion. But, in the first place, the officers and men on the Scotia are unqualified and clear in their testimony, not only that they were alert and vigilant in their observations, but that, after being discovered, the light on tlie Berkshire did open on the steamer’s port bow. On this point they cannot, I think, be mistaken, and, to suppose them to misstate on such a point, is to impute to them intentional falsehood. Such a circumstance is not like a matter of judgment or opinion or estimate, as to which the liability to error is, by most collision cases, proved to be very great. The witnesses differ, it is true, in their estimate of the degree of. such opening, and they differ very largely. This may be accounted for by their different posts of observation, or other grounds of questioning the correctness of their estimates, but the fact of such opening is nevertheless well established by their distinct concurrence therein. It is, nevertheless, claimed that, conceding the fact, still there is an error as to time, and that such opening took place after and not before the porting of the steamer’s helm. This is urged in the face of the positive testimony of the witnesses to the contrary, and it is claimed that such positive testimony is overborne by the fact that the Berkshire, before her light was first seen, had fallen off, and was then and continuously thereafter sailing on a starboard helm, and so her opening on the port bow of the Scotia was impossible until the latter ported. This is the proposition first above stated and which I deem fallacious. The fact that the Berkshire had, when seen, already starboarded, does not forbid the opening of her light on the Scotia’s port bow.
It has, I think, already been shown, that, when her light was seen, the Berkshire had passed a considerable distance eastwardly beyond the point of intersection of the two courses; and that she starboarded her helm not to exceed one minute before her light was so seen, if, as insisted by the claimants, it was not later. The order was first to starboard and afterwards to hard a-starboard. The speed of the Scotia was about double that of the Berkshire, while the latter was on her course. Her movements, first to starboard and then falling off, certainly did not diminish the disparity, but probably increased it, in the first stage of the movement of the Berkshire. Her light was first seen from the Scotia, from one to two points off her port bow. Now, with these facts in view, the allegation that the light of the Berkshire could not open further on the port bow of the Scotia is- wholly unwarranted, and the uniform testimony of the witnesses from the Scotia is not to be overborne by such an assertion.
But, the maintenance, of her starboard helm, tended continually to bring the Berkshire around full before the wind; and then, putting her helm hard a-starboard brought her with even increased speed nearer the track of the Scotia, closed in her light just before the collision, and put the Scotia to instant efforts to avoid it. This involves the accomplishment by the Berkshire of the second alleged impossibility above argued by the libellants, which I have called deceptive or fallacious. It is said that, at her less rate of speed, she could not, if her light had so opened on the port bow of the Scotia, have thereafter reached the track of the Scotia until the latter had passed, and that, if the Scotia ported her helm as soon as the light of the Berkshire began to close in, the latter could not have overtaken the former. Obviously, this depends upon the precise location of the Berkshire when such closing in began, and the distance then between the vessels, i with the speed attained by the Berkshire then sailing before the wind; and, unless it be assumed that her light had opened very considerably on the port bow of the Scotia before the change was discovered, her distance from the place of collision was greatly less than that of the Scotia. And the fallacy of the reasoning is greater, in view of the fact that the Scotia slowed and reversed immediately on porting her helm; and this was done instantly on such closing in becoming apparent. i
To my mind the conclusion is inevitable, that there was nothing in the position or movement of the Berkshire that suggested, or even warranted, a suspicion of danger of collision, until the closing in of the light of the Berkshire upon her port bow became apparent; and, therefore, the Scotia properly kept her course down to that moment.
2. Was the Scotia in fault for then porting her helm, and slowing, stopping and reversing her engine? That slowing,-stopping and . reversing were proper, requires no discussion. And it is important to note here particularly, that, at this moment, the Berkshire was very near and off the Scotia’s port bow. It was a question of judgment, whether, in that moment of sudden extreme peril, it was wisest to go to port or to starboard. It was night. The distance of the Berkshire at that instant could not be known. If the Scotia attempted to go to port, it was not at all improbable that she would meet the ship while in the act of turning, while, by turning to starboard, there was a like uncertainty. Her officers must choose. They did exercise their judgment in good faith, and yet the collision ensued. In my judgment, upon all the proofs, there was time but for a slight turn in her course; and they did what seemed to them best at what was, in view of the headway of the two, a moment of sudden peril, and very shortly before the contact of the vessels. I should hesitate very much in concluding that the porting of the helm showed either want of skill or due care in such circumstances, even if, by the light of the after result, it seemed probable that, had she starboarded, she would have gone clear.
This, however, is not all. The whole conduct of the Berkshire was unskilful and misjudged. The movement by which she was placed in peril was wholly her own; and, although it may have been made before the Scotia saw her light, it was, in truth, improvident and erroneous. I agree fully with one or more of her crew, that it was uncalled for and produced the collision. In short, she thrust herself in the track of a steamer in full view, when there was time for more deliberation, when she was not in the least danger, and when a minute more of deliberation, before changing her comae, would have shown, by unmistakable signals, that there was no danger, and that she could and ought to keep her course. It is not unjust to her, and it is only fair to the Scotia, to say, that, by this, she involved the Scotia in that precise condition of doubt, in which, by stopping and reversing, the latter did all she could to arrest her own speed, and in which her officers were put to the exercise of judgment, as to the measure most likely to avoid collision.
Again, in this immediate connection, if it be conceded that the statute regulations were not binding upon the Berkshire, and that the presence of the white light did not, by reason of those regulations, require the officers of-the Scotia to infer that she was a steamer, it is equally true that there was nothing to show that she was a sailing vessel. She might be the one or the other; and if, on the Instant of apparent danger, the Scotia stopped her engines and reversed, it ought not to be imputed to her as a fault, that, in her further effort, made in the exercise of an honest judgment upon the subject, she con
The rule so strenuously relied upon by the libellants, by which it is made the duty of a vessel propelled by steam to keep out of the way of a sailing vessel, is not so arbitrary and inflexible as to make the former, under all circumstances, an insurer of safety to the latter. It assumes that, by reasonable skill and care, the former may know that the vessel in view is a sailing vessel, and that there will be time and opportunity, after the discovery of danger, to take measures effective to avoid her, and that the exercise of an honest judgment, by men of competent skill, and in the exercise of active vigilance, will enable the steam vessel to do so.
Moreover, I do not agree, that, even considering that our statute regulations had not the force of law to bind the Berkshire, it was a fault in the Scotia to mistake her for a steamer, and to act upon the assumption that she was one. If she was justified in that respect then she was justified in what she did; for, then, by the general maritime law, apart from the statute, she was bound to turn to starboard, unless the circumstances clearly indicated that this would render a collision more probable. The general rule required her to go to starboard, and, where the circumstances are doubtful, the rule is the same. Mr. Justice Clifford, in New York & B. Transp. Co. v. Philadelphia & S. Steam Nav. Co., 22 How. [63 U. S.] 461, 472, says: “Beyond question, the law is well settled, that steamers approaching each other from opposite directions are respectively bound to port their helms and pass each other on the larboard side.” He cites numerous cases from the English court of admiralty, and from the supreme court of the United States, in which the principle is applied where it was doubtful which course would be most effectual. The officers of the Scotia were acting under the actual pressure of the English navigation laws, which, it is conceded, were operative upon them, since, by the proclamation thereof, they were applied to the vessels of both countries, so far as she was concerned. They knew that they were in the track of vessels navigating between the two countries. They may properly -be assumed to have known that there was a strong probability, at least, that vessels in that track would carry lights indicating their course and character. So far from being in fault in the inference drawn from seeing the white light near the horizon, namely, that it was the masthead light of a steamer just coming into view, such an inference was natural; and, in carrying such a light, the Berkshire invited that inference, or, at the least, placed herself in such a situation as was liable to mislead, and did in fact mislead the other, and she ought not to be permitted to allege fault in the latter in acting according to an honest judgment thereupon, and in conformity with the rule of navigation which applied to the conclusion thus formed, namely, that she was a steamer.
These views, independently of the critical examination of the positions, courses, distances and bearings of the vessels respectively, in which I have indulged, seem to me to show that the Scotia was without fault, and, although they are not in harmony with some of the views expressed by the learned judge who tried the case in the district court, they lead to an affirmance of his decree.
I am aware of the very great difficulty of reasoning with strict accuracy, and of applying close mathematical tests, where witnesses disagree, and various hypotheses may be suggested to account for their discrepancies and for the occurrences of which they speak. As already remarked, the court must deal with the case upon the testimony, notwithstanding its conflict, and in the face of all the doubt and uncertainty which it gives rise to. Out of these materials I have arrived at the best judgment I can form, after a long and careful examination and comparison; and I derive some corroboration of my conclusions as to most of the details of time, place, distance, course and bearings, from the full analysis of the whole case in the very able argument of the counsel for the libellants, wherein his conclusions are very nearly identical with my own on these points.
If however, I were in so great doubt that I deemed it unsafe to rest upon the conclusions already stated, there would still remain in support of the decree dismissing the libel, the ground upon which the decision was placed by the district judge, namely, that the Berkshire did not carry the lights prescribed by the navigation laws of the United States. The absence of the red and green lights, and the presence of a white light in contravention of those laws, actually misled the officers of the Scotia into the belief that she was a steamer, which alone is authorized to carry a white light. Being thus misled, the officers of the Scotia did just what, upon the assumption that she was a steamer, it was her duty to do; and, as a necessary result, the collision was solely due to the fault of the Berkshire herself, and, therefore, she cannot recover.
These conclusions were placed below not on the ground that the navigation laws of the United States ex proprio vigore operated upon the Berkshire in her relation to a vessel of another nation, but that those laws have been adopted by all the principal maritime nations for the government of their own vessels, and that the court, taking judicial notice of that fact, are bound now to say that those regulations have received such general assent, as reasonable, proper and expedient, and, by such enactments, have been given so broad an application that they are now rules of the sea. If this reasoning be sound, it would seem to follow, that the vessels of all nations are now bound to observe them, whether their own par
Without placing my conclusion upon this idea, that the statutes of the several nations referred to have operated to make a rule of the sea or general maritime law, I prefer to state another view of the subject, not in harmony with the English decisions, but I think clearly just, and conformable to a more worthy estimate of what is due to ourselves as a nation interpreting its own laws, and no less just in its operation upon our own citizens, who, it may be conceded, are the immediate objects of legislative care and providence. While it is true that our navigation laws are, in a strict technical sense, municipal, because we have no power to legislate for other nations, or to enforce our laws beyond our own jurisdiction, they are, in their nature and scope, and, as I think, in their design, for the benefit of all mankind. The safety of human life and property on the highway of nations is of international concern. If the government of this people have adopted a rule to promote such safety, it is because it is wise and best to that end, and so our courts must declare. Por this people and for our courts it is the rule of right reason, whether we can enforce it upon the people of other nations or not. It being wise and best, we can and do send out our navy and our mercantile marine charged with the duty to observe it, because it tends to secure the worthy purposes for which it is enacted. True, we can subject no others to its pressure as a law to them; but if is a narrow and technical view to say it is like the ordinary subjects of legislation, which are plainly only intended to operate within our immediate jurisdiction. The business it regulates is as extensive as the limits of the seas; and there are numerous rights of person and property which we recognize as governed by law, and which will be enforced and protected by our courts in whatever part of the world they originate or are invaded. Sending out our navy and marine instructed by our statutes, it is selfish and unworthy to say — although these rules for the preservation of life and property are eminently fitted to benefit all mankind, are expedient and advantageous as guides to your probable intercourse with other vessels, they do not require you to regard them towards any but vessels of our own nation. It is a more honorable and worthy language to say — if you disregard them, and loss is thereby caused, you shall not have a standing in our courts — perform your duty to observe our laws, and here and in our courts you will be protected, whether other nations are or are not just enough and wise enough to impose the same duty upon their vessels which you are liable to encounter.
My conviction, that sound judgment and right reason demand the observance of these rules, finds support and strength in the fact, that nearly all maritime nations have adopted them; but 1 would not make that a condition of their enforcement.
Again, if the considerations of prudence which have led to the enactment of these laws are less comprehensive in their scope, the reason for insisting upon their observance by our own vessels is not lessened. If those enactments are not, (as I have above suggested,) for the benefit of all mankind, and have no regard to the general safety of human life or property, as of international concern, they have respect to the lives of crews, passengers and property on board of our own vessels, as objects of special and providential legislation. Wherever our vessels may be and whomsoever they may meet upon the high seas, they and all on board are subjects of national solicitude. The observance of these laws gives early notice of their proximity, and, with such notice, the acknowledged law maritime puts all other vessels, of whatever nation, to diligence to avoid collision, and so tends to the safety of what are confessedly the objects of our care— the lives of our own citizens and their property. If to our legislature it is a matter of indifference whether the lives and property of citizens of other nations are made safe or not, it is matter of deep concern that our own are protected; and let it be remembered, that, in case of collision, we may be the chief or only sufferers, as well illustrated in the case now before the court. When one of our passenger ships is run down at sea by a foreign vessel, and the collision is plainly owing to a failure by the former to observe our laws, it is poor satisfaction to say — true, this neglect has caused the sacrifice of valued lives, but our legislature only intended to guard against collision with a vessel of our own nationality. Nor is this the truth. Our legislature has had regard not merely to the interest of owners of ships, not merely to the preservation of the property on board, but, as guardian of the lives of our citizens, whether crew or passengers, has prescribed rules which will serve in a large degree to protect them wherever upon the seas they may be, and whether any or many other nations observe like rules or not. In this much more selfish and narrow view of the subject than I have above suggested, our vessels are always and every where acting under the pressure of these rules and of the reasons for their enactment, and should not be permitted to disregard them. Our own interests and the declared wisdom of their observance forbid it, the lives and property of our own citizens at hazard forbid it. and none should be permitted to come into our courts of admiralty — in a very high sense, courts of equity — 'with unclean hands, to claim indemnity for a loss which is proved to be solely caused by their own wilful disregard of these regulations.
The decree dismissing the libel must be affirmed.
