The Hypodame/Opinion of the Court

In cases of collision the testimony is often conflicting and irreconcilable. Each party can make out a plausible case supported by some evidence. In such cases we have frequently decided that where the district and circuits concur in opinion on the facts, and there is testimony supporting their decision, we will not reverse it on doubts raised by ingenuity of counsel.

The District Courts have better opportunities for examinating such cases and forming a correct conclusion than any other. They may examine witnesses ore tenus, and although they may not have Trinity masters to assist them, yet in difficult cases depending on nautical experience the judge may call to his aid experienced masters of vessels (as is done in one district at least), whose report will greatly assit the court in coming to a correct conclusion.

In the case before us we see no reason to doubt that the conclusions of both courts below on the facts in the case are correct.

We concur also with the court below, that the propeller had no competent lookout, as required by the frequent decisions of this court. The evidence shows that the schooner might have been seen a half-mile off if there had been a competent lookout.

When the propeller made the sudden sheer towards the western shore, the man at the wheel told the captain 'to stop the boat, there was something ahead; he did not stop her; her wheel was then put to port. I then pulled the bell,' &c.

The sheer was abrupt and totally unexpected. Previous to that there was no danger calling for any peculiar precautions. The schooner was in her proper place, and could not possibly anticipate such a sudden change of course. All they could do under the circumstances was to shout-they were heard-but no attention was paid to the warning. Producing a light at that time would have been equally unavailing.

The defence relied on here was, that the shooner was in fault in not exhibiting a light on the propeller's change of direction towards her. The collision took place before the passage of the act of the 20th of April, 1864. This act (article 5th) requires sailing ships, 'under way or being towed, to carry the same lights as steamships under way, with the exception of the white mast-head lights, which they shall never carry,' an exception justified by experience, which showed that it caused many collisions, arising from mistaking it for a light on shore; the case of 'Propeller Monticello v. Mollisson,' being an example. There the steamer was running on a course a mile wide of the schooner, but mistaking her mast-head light for a light-house, she steered with such accuracy of aim as to strike the schooner exactly and with such force as to sink her.

By the customs and rules of navigation every vessel at anchor in a harbor or roadstead is bound to keep a light suspended on board. But previous to the passage of this act sailing vessels on the rivers and on the ocean were not bound by any law or custom to carry lights. The case of The Osprey, cited by the appellant's counsel, applies to vessels meeting in the same line, where one party can plainly see the other and yet keeps dark. But where the danger of collision is the consequence of a sudden and unexpected change of course, which produces a sudden peril and leaves no time to the sailing vessel to display a light before a collision-or do more than shout-where the steamboat, if it had had a sufficient lookout, might easily have avoided the collision, it has no right to complain or demand that the damages should be divided as where both are in fault.

The exceptions to the master's report are without just foundation after the Circuit Court had reduced the damages to the amount of $513.

DECREE OF THE CIRCUIT COURT AFFIRMED.