Chamberlain v. Ward

THIS was an appeal from the Circuit Court of the United States for the southern district of Ohio.

It was a case of collision between the propeller Ogdensburgh and the steamer Atlantic, under the circumstances which are particularly set forth in the opinion of the court.

The reader will bear in mind the difference between the white lights, which are carried by all vessels, and the signal lights required by the act of Congress of 1849 to be carried by steamboats and propellers navigating the lakes. These are directed to be a triangular light, shaded green on the starboard side and red on the larboard side, with reflectors, and to be of a size to insure a good and sufficient light.

It was argued by Mr. Stanbery and Mr. Spalding for the appellants, and by Mr. Newberry and Mr. Swayne for the appellees.

All that the reporter can do in the present case is merely to state the general propositions upon each side, without stating the numerous arguments, illustrations, and authorities, by which they were supported.

The following points are taken from the brief of Mr. Spalding for the appellants:

1. The propeller Ogdensburgh was on her true course, northeast by east, when she first made the steamer's light.

2. She did not change her course.

3. It was the duty of the propeller, under existing circumstances, to keep her course. To have thrown her helm 'a-port,' with the steamer from two to three points of the compass on her starboard bow, would have been a gross violation of the rules of navigation. (London Packet, 2 Robinson, jun., 213; Steamer Ocean, Nautical Magazine, vol. 1, No. 5, p. 355; Steam Tug Sampson, 3 Wallace, jun., _____; American Law Register, vol. 3, p. 337; The Santa Claus, Olcott's Rep., 428.)

4. The light of the Atlantic, as first made from the propeller, was by no means a red signal light; it was an ordinary white light. The Atlantic was only three or four times her length off, and was consequently swinging under a port helm,' when she showed her red light' to the propeller.

5. At the instant of collision, and when it was inevitable, the helm of the propeller was ordered 'a-starboard.' But the testimony shows that the object was solely to lessen the amount of damage by receiving a glancing stroke upon the bows, rather than a direct blow upon the broadside of the propeller.

The headway of this vessel was then so much deadened, that the effect of starboarding the helm was scarcely perceptible.

Be this as it may, however, the steamboat had no right to place the propeller in such jeopardy that the error of a moment might cause her destruction. If an error was committed in giving the order to starboard,' it could not, under the circumstances, be deemed a fault.' (The Prop. Genesee Chief v. Fitzhugh et al., 12 Howard U.S. Rep., 461; Shute v. Goslee, Am. Law Reg., vol. 3, p. 476.)

6. The propeller displayed proper lights.

7. The propeller kept a vigilant 'look-out,' was managed in a prudent and seamanlike manner, and adopted all proper precautions to avoid the collision.

The steamer Atlantic was wholly in fault:

1. She had no sufficient 'look-out' on the night in question. The inside of the pilot-house was not the proper place from whence to keep watch for approaching vessels. 'A competent and vigilant 'look-out' should have been stationed at the forward part of the steamer, in the position best adapted to descry vessels at the earliest moment.' (St. John v. Paine et al., 10 Howard, 585; The Genesee Chief v. Fitzhugh, 12 Howard, 462; The Schooner Catharine v. Dickenson et al., 17 Howard, 177; The Europa, 2 Eng. L. and Eq. Rep., 563 and 564; The Diana, 1 Rob., jun., 131; Pritchard's Admiralty Digest, p. 163, sec. 50, and note; Steamboat New York v. Rea, 18 Howard, 225; The William K. Perrin v. The Louisiana, Am. Law Reg., vol. 6, p. 427.)

2. The master and chief mate were in bed while the steamboat was running at a rapid rate in a locality much frequented by vessels, through an atmosphere so smoky that the character and course of the propeller could not be determined at the distance of half a mile.

3. The steamboat was greatly in fault in not diminishing her speed when she found herself in close proximity with another vessel, of whose character and course she was ignorant. (The Rose, 2 Rob., jun., pp. 2, 3; The Virgil, ib., 205; The Birkenhead, 3 Rob., jun., 75; The Perth, 3 Haggard, 414, 417; The Rainbow, 11 Am. Law Jour., 332; Peck v. Sanderson, 17 How., 181; The Genesee Chief, 12 How., 463; The Northern Indiana, Judge Hall, Manuscript; The Steam-tug Sampson, Justice Grier, vol. 3, Am. Law Register, 340; Shute v. Goslee, Justice Campbell, ib., 475; The Europa, 2 Eng. Law and Eq., 559.) In the case of the New York and Virginia Steamship Company v. Calderwood et. al., (19 How. Rep., 241,) Mr. Justice Campbell says, (page 246,) 'In the present instance, the steamer had notice that a vessel was before her, and was near her track, and, under the circumstances, she was bound to take efficient measures to avoid the schooner.'

4. Having neglected to 'ease her engine,' which would have been, to say the least, a proper precautionary measure, under the circumstances, the burden rests upon the Atlantic to show that the collision was not owing to that neglect, but would have equally happened if she had performed her duty. (Schooner Lion, Judge Sprague, 6 Law Reporter, 117; The Anita v. The Steamboat Anglo-Norman et al., McCaleb, Judge Eastern Dist. of Louisiana, Newberry's Ad. Rep., 494.)

5. The steamboat committed an unpardonable fault when she threw her helm 'a-port,' and attempted to cross the bows of the propeller. In fact, the collision was brought about by this rash and unskilful manoeuvre. (The London Packet, 2 Rob., jun., 213; The Emily, Blatchford's Rep., 236; The Rainbow, 11 Am. Law Journal, 332; The Steam-tug Sampson, 3 Am. Law Register, 339; Steamer Ocean, 1 Naut. Mag., 355; Northern Indiana, Judge Hall, Manuscript; The James Watt, 2 Rob., jun., 270; The Friends, 4 Moore, 314; Pritchard's Ad. Digest, 171, note 98; The Steamer Oregon et al. v. Rocca et al., 18 How., 572.)

6. After the collision, the Atlantic was blamable in not having attempted to ascertain whether the Ogdensburgh required assistance. (The Celt, 3 Haggard, 327.)

The following were the points made by the counsel for the appellees, which were sustained by numerous authorities:1. Time and distance cannot be accurately estimated by witnesses.

2. The speed of the Atlantic was not illegal, and it was not her duty to slow at any moment before the collision.

The speed of the Atlantic was such as is universal in similar circumstances by steamers of her class and power, and there is nothing in the English or American decisions to establish a rule of law in hostility to her right so to run, &c.

We submit, then, it is clear there is no rule of law showing that on such a night, in the broad lake where it is thirty miles wide, we might not run as the experts all swear is the universal usage.

We submit that the great object to be accomplished by the law of Congress in relation to lights, by enabling speed to be kept up with safety at night, is not to be defeated. See the Supervising Engineers' Chart, saying, if these rules are followed, there is equal safety by night or by day.

But we have said two questions arise: first, whether our general speed, according to the usage of steamers of our class, was proper; and second, whether, after we came in close proximity, and saw the character and course of the Ogdensburgh, we should then have slowed our engine, and endeavored to stop.

As to this second proposition, we say:

It was not the duty of the Atlantic to abate her speed in the least, when the close proximity of the vessels enabled her to discover the true character of the Ogdensburgh.

Although we deem this a mere question of fact, dependent upon the proof of what is the practice and of what men of great experience deem prudent, still there are a few cases so peculiarly applicable to the circumstances of our own, where the reasons and illustrations of the judges are so illustrative of the policy of our own course, that we thought best to place them in our legal brief. The following case, decided a few months since in England, bears in its facts a more close resemblance to ours than is often found between adjudicated cases and that in judgment before the court. (3 Wm. Robinson, p. 191, The Rob Roy; 9 Eng. Ad., p. 191.)3. The look-out of the Atlantic was in his proper place. But one was required. The decisions sustain both these positions.

But if we are mistaken in our position that the look-out of the Atlantic was sufficient, then the same fault is undeniably attributable to the Ogdensburgh.

4. It was the duty of the Ogdensburgh to port, and pass to the right, and not attempt to cross the bows of the Atlantic.

5. The Ogdensburgh being without the lights required by the act of Congress, March 3d, 1849, her owners, by its express provisions, are liable for all damages occasioned by the omission. (See 9 Stat. at L., p. 382, sec. 51; 4 Sandford, 492; 22 Law and Equity, 460; 5 How., 465; Conkling's Ad., 303.)

6. It is not sufficient to bring the Atlantic within the rule of admiralty, which divides the damages equally in cases of mutual fault, to show that we have not exercised the utmost care and diligence possible in the circumstances.

A reasonable prudence is all which the law demands.

7. Even were we to grant that the Ogdensburgh was to the north, on a N. E. by E. course, and that we were on a course of S. W. by W., and to the south of theirs, still, as we saw no lights but those of a sail vessel, and had, as a steamer, the right to select the side on which we would go, and to presume that she would keep her course, being a sail vessel, we were not in fault for porting our wheel, and crossing her bows. Had she been in fact what her lights indicated, our course was lawful; and in this case no collision would have occurred.

Mr. Justice CLIFFORD delivered the opinion of the court