The Dexter

APPEAL from the Circuit Court for the District of Maryland, affirming a decree of the District Court dismissing a libel filed by the owners of the schooner Julia against another schooner, the Dexter, in a cause of collision in Chesapeake Bay, by which the Julia was totally lost; the only difficulty in the controversy being-that usual one in causes of collision at sea-to ascertain what were the facts of the case; in other words, to settle the case; a matter rendered difficult in this cause, as in so many others of collision, by the circumstance that witnesses of one side swore in direct opposition to witnesses of the other. The adjudication, therefore, ministers nothing to jurisdical science.

The case, as it was assumed in both the courts below, and in this, upon the contradictory testimony adverted to, was thus:

On the night of November 17th, 1870-the night being clear and the moon shining brightly-the schooner Julia was sailing up Chesapeake Bay. The schooner Dexter was sailing down it. The wind, which was fresh, was between northwest and west-by-north, and the vessels were each sailing at the rate of eight miles an hour; approaching, therefore, rapidly. The Julia was close to the wind, though not as close as she would lie without impeding her course.

The helmsmen of the two vessels saw them respectively when three miles from each other. What their exact course then was, and whether likely to come together did not so plainly appear. Some evidence tended to show that, at that time, the vessels were not approaching end on, but that the Dexter was sailing with the wind free. But by the time that they got to within a half-mile of each other the Julia was heading north-northeast, and the Dexter south-southwest; that is to say, the vessels were approaching from exactly opposite directions; and the vessels were approaching also end on, or nearly so. As they thus approached the Dexter ported her helm. The Julia kept on her course, till the vessels got very near, when a collision was plainly threatened. The Julia then starboarded her helm. A collision ensued, and the Julia, which was heavily laden with oysters, went to the bottom.

The only lookout on the Dexter when the Julia came in sight was the captain, who, at the time of the collision, was standing aft of the foremast.

The act of Congress 'fixing certain rules and regulations for preventing collisions on the water,' among its 'Steering and Sailing Rules' thus provides:

TWO SAILING-SHIPS MEETING.

'ARTICLE 11. If two sailing-ships are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass to the port side of the other.'

TWO SAILING-SHIPS CROSSING.

'ARTICLE 12. When two sailing-ships are crossing, so as to involve risk of collision, then if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship with the wind on the port side is closehauled, and the other ship free; in which case the latter ship shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward.'

NO SHIP, UNDER ANY CIRCUMSTANCES, TO NEGLECT PROPER PRECAUTIONS.

'ARTICLE 20. Nothing in these rules shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout,' &c.

The District Court, as already said, decreed a dismissal of the libel; the Circuit Court affirmed the decree, and the owner of the Julia took this appeal.

Mr. R. F. Brent, for the appellant, owner of the Julia, contended—

1. That the captain was not a competent lookout, and that if he had been so in general, he was standing on this occasion aft of the foremast, and plainly could not see; that Article 20 of the act of Congress is obligatory on vessels to keep a proper lookout, and that none of the other rules which the act prescribed dispensed with the obligation to do so.

2. That this was not a case under Article 11th of the Rules to Avoid Collisions; a matter which the learned counsel attempted to establish by the evidence; arguing that the theory of the Dexter, that the vessels were approaching each other 'end on,' was based on evidence not trustworthy; that the Dexter, at the distance of two miles, must have been upon the course diverging to the westward and approaching the Julia, not only to the leeward as respected place, but also heading on a course bearing to the eastward of the Julia's course; and that so she was not meeting end on, but was a vessel sailing with the wind free, and subject to Article 12th; that the rules of navigation begin to apply when vessels are within ten or twelve minutes of each other; that hence the Dexter should not have put the Julia in jeopardy, or even in a reasonable fear of danger; that a vessel with the wind free should give a wide berth to one having the right of way; that porting the helm a point or so, and then waiting (as did the Dexter) until the collision was inevitable, was not enough to exonerate one whose duty it was to give way; that the Julia was closehauled and never changed her course until the collision was imminent; that a vessel with the right of way should keep her course; and that if there was error on the Julia's part in the moment of collision, such error would not prevent her from recovering if otherwise not in fault.

Messrs. S. T. Wallis and J. H. Thomas, contra:

The case is one really involving nothing but fact; and on the evidence the facts are plain. Two courts have found them in one way. In such a case the findings are prim a facie right. On the case then as found, the matter is too palpably plain for argument. The following points will occur at once, to every one, and they end all question:

1. When the vessels were half a mile apart, the Dexter saw the Julia. They were 'meeting end on, or nearly end on,' and under article eleven of the act of Congress the helms of both should have been put to port, so that each could pass on the port side of the other.

2. They were not 'crossing' within the meaning of the twelfth article. That section is applicable to two vessels on different and converging tacks.

3. The Dexter ported her helm when far enough off to pass safely on either side of the Julia. This was a full compliance with her obligations under either rule.

4. The Julia starboarded her helm. If the eleventh rule was applicable, she ought to have ported; if the twelfth, she ought to have kept her course. She violated her duty under either rule.

5. It is unimportant, in view of the facts of this case, under either of these rules, whether the Julia was closehauled or not. There was nothing to prevent her from porting, going farther to leeward, if that was her duty, or from keeping her course, if subject to the twelfth rule. If she had done either there would have been no collision.

6. The case as proved shows that the Julia was not closehauled.

7. The error on the part of the Julia was not excusable on the ground of well-founded alarm arising from too dangerous proximity, the result of previous fault on the part of the Dexter.

8. The absence of a special lookout other than the captain on the Dexter could not have contributed to the collision. Her captain saw the Julia two miles off; saw all that could be seen, and did everything that could have been done under any circumstances.

Mr. Justice CLIFFORD delivered the opinion of the court.