62 U.S.

372
21 How. 372
16 L.Ed. 144

THE NEW YORK AND LIVERPOOL UNITED STATES

MAIL STEAMSHIP
COMPANY, CLAIMANTS OF THE STEAMSHIP PACIFIC,
HER
TACKLE, &C., APPELLANTS,
v.
OTIS P. RUMBALL, LIBELLANT.
December Term, 1858

THIS was an appeal from the Circuit Court of the United States for the
southern district of New York, sitting in admiralty.
The case is fully stated in the opinion of the court.
It was argued by Mr. Potter for the appellants, and by Mr. De Forest for
the appellee.
In cases of collision, it is difficult to make an abstract of the arguments of
counsel, because the whole evidence is before the court, and resorted to
by both sides in support of the positions which they respectively take. The
reporter can only state the points which were made, without the arguments
to sustain them.
On the part of the appellants, it was contended:
1. The collision was caused by the brig. She changed her course, and ran
into the steamer.
2. But if it be considered that the brig did not change her course, still she
ran into the steamer while endeavoring to get out of her way, when she
could easily have avoided it.
3. In any event, the steamer was not in fault, every effort on her part being
used to avoid the collision.

4. There are two points on which the proofs differ. 1. The general course
of the brig. 2. The time the brig showed a light previous to the collision.
Both these are assumed, by the decree, to be as claimed by the libellant.
Now it is, we think, mathematically demonstrable that, if these matters are
as claimed, a collision could not have occurred.
5. The libellant has the burden of proof. To recover, he must make it
appear that the steamer was in fault, and not leave the question of fault in
doubt.
6. In any event, the damages were excessive. The libellant was only
entitled to the actual damage caused by the collision, viz: the cost of
bringing the brig into port and refitting her.
The counsel for the appellee made the following points:
1. The steamer's course was east half south at the time the brig's light was
reported. The wind was free for the steamer; all her sails and studdingsails were set; her speed was about 12 1/2 knots.
2. There is a slight disagreement among the witnesses as to the direction
of the wind, but the difference is not material.
3. The brig was sailing on the wind, northwest by west, close hauled, on
the larboard tack, her track converging toward that of the steamer, and her
speed about three to four knots.
4. The position of the brig, when her light was first discovered, was
somewhat to the southward of the original track of the steamer.
5. There is no substantial difference between the witnesses as to the state
of the atmosphere and weather, at the time of the collision. The night was
not unusually dark, and the atmosphere not thick.
6. It appears very clearly, from the testimony on both sides, that the
vessels were several miles apart when the light of the brig was first
displayed. This is proved directly, and is to be inferred from various
independent facts.
Mr. Justice CLIFFORD delivered the opinion of the court.

This is an appeal in admiralty, from a decree of the Circuit Court of the United
States for the southern district of New York, in a cause of collision, civil and

maritime. It was commenced in the District Court on the twenty-fourth day of

September, 1851, by the appellee, in behalf of himself and the other owners of
the brig 'Alfaretta.' According to the case made in the libel, the Alfaretta sailed
from Millbridge, in the State of Maine, on the tenth day of August, 1851, fully
laden with lumber on freight, and bound on a voyage to the port of New York.
She was a tight, stanch, strong vessel of one hundred and sixty-three tons
burden, and in every respect well manned, tackled, apparelled, and appointed,
with a competent master, and sufficient crew; and was totally wrecked by the
collision which occurred on the sixteenth day of the same month, without any
fault of her officers or crew, and while she was lawfully pursuing her voyage
from the place of departure to her place of destination. At the time of the
disaster she was fifteen or twenty miles off the southern shore of Long Island,
sailing close hauled on the wind, with her larboard tacks aboard, and all her
sails set, and was heading about northwest by west. While sailing on that
course, with a light wind from southwest by west, her master and crew
discerned a light bearing from them about west half south, which they judged to
be the light of a steamer; and the libellant, who was the master of the Alfaretta,
immediately caused a light to be hoisted in the fore rigging of the brig. That
vessel proved to be the steamship Pacific, and it is alleged that she had such a
large number of lights that the libellant was not able to determine what
direction she was steering, and kept his vessel on her course, without any
deviation, until the collision took place. It occurred between eight and ten
o'clock in the evening, as alleged in the libel, and about fifteen minutes after
the light was placed in the fore rigging of the brig, when the steamer, with great
force and violence, ran into and struck the brig on her larboard bow, cutting her
down to the water's edge, and carrying away her foremast, so that she filled in a
few minutes and became a complete wreck.
2

On the fourteenth day of October following, the claimants of the steamer filed
their answer to the allegations of the libel. Among other things not necessary to
be noticed, they deny that the steamer had such a large number of lights at the
time referred to, that the libellant was not able to determine what direction she
was steering; and they also deny that the brig kept her course, without any
deviation, until the collision occurred; or that the steamer ran into and struck
the brig in the manner above stated. Their theory is, and they accordingly allege
that the steamer started from New York on the day of the collision, on her
intended voyage to Liverpool, well manned and equipped for the voyage, and
in every respect seaworthy; and that the look-out of the steamer, who was
stationed at the forecastle, while she was proceeding on the voyage, between
seven and eight o'clock in the evening, the weather being cloudy and the night
dark, the wind southwest by south, and the steamer steering east half south,
with her usual lights displayed, discovered the light of a vessel about two and a

half points on the starboard bow of the steamer. Whereupon the helm of the
steamer was immediately put to the starboard, and she at once swung off to
east-northeast, and at or about the same time her engines were stopped. That
vessel so discovered was the brig Alfaretta. She was close hauled on the wind
at the time, and was steering to the westward, as the respondents allege, in a
course nearly parallel to that of the steamer; but, instead of keeping her course,
as she should have done, she suddenly and unexpectedly put her helm to port,
and kept off, and came with her bows on to the steamer, striking her a little
forward of her starboard wheel, which passed over the bows of the brig, cutting
her down and damaging the steamer to the amount of two thousand dollars.
And they explicitly allege, that if the brig had kept her course, and had not put
per helm to port, the collision would have been avoided. This statement,
derived from the pleadings, exhibits very fully the real nature of the
controversy between the parties, and the grounds assumed on the one side and
the other in the prosecution and defence of the suit. Testimony was taken on
both sides, in the District Court, and, after hearing, a decree was entered that
the libel be dismissed, each party paying their own costs, and the libellant
appealed to the Circuit Court. Both parties appeared by counsel in the Circuit
Court, and, after a full hearing, it was ordered and adjudged that the decree of
the District Court dismissing the libel be in all things reversed, and that the
libellant do recover the damages sustained by reason of the collision, together
with costs in both courts, and that the cause be referred to a commissioner to
ascertain and report the damages. Additional testimony was taken before the
commissioner, who reported that the sum of seven thousand one hundred and
seven dollars and nineteen cents was due to the libellants, to which report the
respondents excepted; and, after the hearing upon the exceptions, the report was
confirmed by the court, and a decree entered that the libellant recover the sum
reported with costs. Whereupon a final decree was entered, in pursuance of the
report, and the respondents appealed to this court. Many of the facts and
circumstances attending the disaster, as well as those which preceded it, are so
fully proved that they cannot properly be regarded as the subject of dispute. As
alleged in the libel, the collision took place in the open sea, on the sixteenth day
of August, 1851, some fifteen or twenty miles off the southern shore of Long
Island. It occurred a little past eight o'clock in the evening, after the officers in
charge of the respective vessels had been fully apprised of the approaching
danger, and under circumstances which make it manifest that it ought to have
been prevented. Both vessels had proper lights at the time, and competent and
sufficient look-outs; and it is clearly proved that the duties of the look-outs
were vigilantly and promptly performed. Lights had not been set on the brig
when her lookout first discerned the light of the steamer from the forward part
of the vessel. One had been prepared, however, and lighted by the steward, and
was in the galley forward of the house on the deck, ready for that purpose. On
seeing the light of the steamer, the look-out of the brig at once reported the fact

to the master, who was then walking the deck, and he immediately caused the
light, which was burning brightly, to be hoisted in the fore rigging of the brig,
and it was kept there, in full view of the approaching steamer, until the vessels
came together. Coffin, who hoisted the light, and was the look-out on the brig,
testifies that he tied the light just under the foreyard, and remained standing in
the rigging, watching the light of the steamer as she approached, until she was
so near that he had just time to descend to the deck and take a few steps aft
when the vessels struck. He says it was about fifteen minutes after he reported
the light of the steamer to the master of the brig that the collision occurred; and,
in this particular, he is strongly confirmed by the mate of the steamer, who
admits that the brig was about three miles distant when her light was reported
to him, as the officer of the deck, by the look-out on the starboard bow of the
steamer. At the time the light of the steamer was first seen by the look-out, the
brig was sailing on a course of northwest by west, close hauled on the wind,
with her larboard tacks aboard, and all her sails set. She was converging
towards the track of the steamer, and was going through the water only three or
four miles an hour, the wind being light, and blowing from the southwest by
west.
3

Several witnesses describe the character of the night as overcast, and some
speak of it as cloudy, with intervening stars; but all agree that it was not
unusually dark. They all concur in saying that the surface of the sea was
smooth, and there was no haze or mist on the water; and the mate of the
steamer testifies that objects could be seen without lights at the distance of
three miles.

When the steamer discovered the brig, she had all her signal lights displayed,
and was on a course of east half south, and was moving through the water at
the rate of twelve or thirteen miles an hour, using all her sails as well as her
engines. Her mate and look-out first saw the light of the brig, and they testify
that the bearing of the light was some two and a half points off the starboard
bow of the steamer. Their statements, however, do not entirely agree with the
testimony of the master. He was in his room at the time, calculating the
position of the steamer, and did not hear the light of the brig reported. While
there, he heard the mate call out, 'hard a-starboard,' and instantly went up on to
the paddle-box of the steamer.

His account of the bearing of the brig is not entirely clear, as given in the
record, or very satisfactory. At first, he says he saw the brig two and a half to
three points off the starboard bow of the steamer, but finally fixes it at two
points; and adds, to the effect that she was not over one-third of a mile distant.
He admits, however, that the steamer was then swinging off rapidly towards

Long Island shore; and of course, if the bearing was only two points when the
master reached the paddle-box, it must have been much less than two and a half
points at the time the light was first discovered, as the vessels were then three
miles apart, and the order of the mate, to starboard the helm, had not then been
given; and of course the steamer did not commence to swing off to port till after
that order was given and executed.
6

According to the testimony of the mate, his first order, after seeing the light of
the brig, was to starboard the helm, and then, he says, the vessel began to swing
off; and it was not until after he left the position he then occupied, and went on
to the paddle-box, that he gave the order, hard a-starboard. After that order was
given, and the usual response received from the wheelsman, then, he says, the
master came by his side, and repeated the order, adding that 'the vessel will be
into usstop her;' and the mate says that the steamer had then swung off about
three points; and yet the master says that the bearing of the light of the brig was
still two points off the starboard bow of the steamer.

Statements so conflicting and uncertain do not furnish any definite elements

which can safely be made the basis of a reliable mathematical calculation as to
the precise bearing of the brig when her light was first seen, and are not entitled
to much consideration in determining the question how the collision was
produced.

Some uncertainty also exists as to the precise bearing of the steamer when her
light was first discovered from the brig. It is stated in the libel as about west
half south, and the testimony of the witnesses is equally indefinite. One witness
estimates it at about three points off the larboard bow of the brig; another says
it was about two points in the same direction; and a third witness says it was
about west. Such indefinite statements cannot afford much aid in determining
the principal question involved in this controversy.

Whatever may have been the precise position of the vessels with respect to each
other at the time the light of the steamer was first discovered by the look-out of
the brig, it is certain that the course of the brig was converging towards the
track of the steamer, and that they came together in the course of fifteen
minutes after the light was reported to the master; and the brig was run down
and lost. It was the starboard bow of the steamer which came in contact with
the larboard bow of the brig, forward of the fore-swifter, and slewed her round,
carrying away her bowsprit, foremast, and main-topmast, and cutting her down
to the water's edge; and such was the headway of the steamer at the time, that
she swept on for a considerable distance, without any apparent abatement of her
speed, notwithstanding her engines were stopped and reversed just before the

collision took place.

10

All the circumstances tend to show that the disaster might have been prevented,
and that there was fault somewhere, for which the offending party ought to be
held responsible. Both parties appear to have so understood the matter when
they made up their pleadings, as well as in the subsequent conduct of the cause.

11

It is alleged in the libel that the brig kept her course after the light of the
steamer was seen, without any deviation, until the collision occurred. On the
part of the respondents, that allegation in the libel is denied; and they allege that
the brig, when her light was first seen, was steering to the westward, close
hauled on the wind, and in a course nearly parallel to the steamer; but instead of
keeping her course, as she should have done, that she suddenly and
unexpectedly put her helm up, kept off, and came with her bows on to the
steamer.

12

Such is the issue, as made up by the parties in the pleadings, and it presents the
principal question of fact to be determined by the court.

13

Our views upon the point cannot be stated in a manner which would be
satisfactory to those interested, without some brief reference to the evidence on
which they are based.

14

When the disaster occurred to the brig, her whole company, consisting of seven
men, including the master and mate, were on the deck of the vessel, and
witnessed the events. Four were examined as witnesses; and the mate testifies
that it was the watch of the master, who, being the libellant and one of the
owners of the vessel, was not examined. His watch commenced at eight o'clock
in the evening, when the preceding watch closed. From six to eight o'clock, the
mate had charge of the deck, and he says that the course of the brig at sunset
was northwest by west; that she was sailing close hauled on the wind, and
continued on the same course until eight o'clock, wnen he went below. He
remained below until he heard a light reported, when he immediately went on
deck, and at first saw only one light, but, as the vessel approached nearer, he
saw more, and supposed it was a steamer; and he testifies positively that the
brig did not change her course, after he went on deck, until the steamer struck
her. On his return to the deck, he did not look at the compass, but says the brig
was on the wind, with her larboard tacks aboard, and, in his judgment, was
going the same course as when he went below.

15

Three of the seamen were also examined, and their testimony is equally full and

explicit, and to the same effect. One of them was the look-out, who first
discovered the light of the steamer, and reported it to the master; and the other
two, on hearing his report, immediately went on deck, and remained
throughout, watching the light as it approached, and with every opportunity to
see and observe whatever transpired on the deck of the vessel. Some one or
more of them testifies that the master twice gave the order 'to keep her full and
by,' as the steamer advanced, and they all concur that the brig did not change
her course, and that no danger was apprehended until just before the collision
took place. All must admit that they had ample means of knowledge upon the
subject of their testimony; and if their statements are incorrect, they must have
wilfully perverted the truth, which is not to be presumed. Several witnesses,
however, examined on the part of the respondents, testify that the brig did
change her course before the vessels came together; and among the number is
the mate of the steamer, who beyond doubt describes the events truly, as they
appeared to him at the time of the occurrence.
16

His testimony, as it is exhibited in the record, furnishes conclusive evidence

that the two vessels were very close together, if not in actual contact, when the
supposed change of course was made, and presents some ground of inference
that the jib-boom of the steamer, or the rigging connected with the bowsprit, as
they swept over the stem of the brig, or pressed against her fore rigging, may
have produced the state of things which induced him to think that the brig had
ported her helm. At first he said the change was made just before the collision,
then immediately before it; but, upon further interrogation, he said it was
before the jib-boom of the brig had touched the steamer, and finally added that
the brig might have been twice the length of the ship off. All of his statements,
however, are based upon the theory that the brig ran into the steamer, when it is
satisfactorily shown that the real state of the case was the reverse. It was the
bow of the steamer, near the cat-heads, which struck the jib-boom of the brig,
and carried it away; and the evidence furnishes strong reasons to conclude that
the brig had been partly slewed round just before that occurred. Be that as it
may, it is certain from the evidence that the brig kept her course until just
before the collision took place. When the mate of the steamer first saw her
light, he says it was about three miles distant, and he admits that her direction
then was north of west, and that he did not notice any change of her course,
except the one already mentioned, when the vessels were close together. When
the master went up on to the paddle-box of the steamer, and repeated the order
previously given by the mate to put the helm hard a-starboard, he says the brig
was then sailing close hauled on the wind, and that the two vessels were not
more than a third of a mile apart. His account of the change of course is, that it
was made after that order was given, and he says the brig instantly turned
directly across the bows of the steamer, and came right into her, thus showing

conclusively that the alleged change, however produced, was made at the
moment of collision. These references to the testimony of the witnesses must
suffice, and they are believed to be amply sufficient to show what the state of
the evidence is, as it is exhibited in the record. One remark is applicable to all
of the witnesses introduced by the respondents; and that is, they had not the
same means of knowledge respecting the matter in dispute as the witnesses for
the libellant possessed, who had charge of the brig, and governed her course;
and in weighing the evidence, and determining its force and effect, that
important consideration cannot be overlooked. It must be admitted that the
witnesses on the part of the libellant speak from actual knowledge, and, unless
they have wilfully stated what they know to be false, their statements must be
correct. They were on the deck of the vessel, interested, so far as their personal
safety was concerned, to observe everything that transpired as the steamer
approached, and they cannot well be mistaken in respect to the matter under
consideration.
17

Those on board the steamer appear in the record under very different
circumstances. They only infer what they have affirmed as to what transpired
on the deck of the brig, and at best their statements respecting the matters in
question are of the nature of opinions, and it is difficult to see that they may be
in error. In the excitement and confusion of the moment, they may have
mistaken what was occasioned by the momentum of the steamer or the pressure
of her bowsprit of jib-boom upon the stem or fore rigging of the brig, for a
change of course produced by an alteration of her helm. All the testimony tends
to show that the two vessels came together at an obtuse angle, and there is
much reason to think that the brig had been pressed out of her course before the
bows of the vessels came together. At all events, such an inference from the
evidence is far more reasonable than would be the conclusion that all the
witnesses for the libellants have wilfully perverted the truth. Other grounds of
reconciling the testimony consistent with the integrity of all the witnesses might
be suggested, but we think it unnecessary, as the evidence clearly shows that
the brig kept her course, without any change whatever, until the peril was
impending and the collision inevitable.

18

An error committed by those in charge of a vessel under such circumstances, if

the vessel was otherwise without fault, would not impair her right to recover for
the injuries occasioned by the collision, for the plain reason that those who
produced the peril and put the vessel in that situation would be chargeable with
the error, and must answer for the consequences.

19

Our conclusion, however, on this branch of the case, is, that the respondents
have failed to support the allegation of the answer, that the brig changed her

course after the light of the steamer was discovered, and that the evidence
satisfactorily shows that she did not change her course in any sense which can
be regarded as a fault. Sailing vessels when approaching a steamer are required
to keep their course; and steamers, under such circumstances, as a general rule,
are required to keep out of the way. Many considerations concur to show that
all those engaged in navigating vessels upon the seas are bound to observe the
nautical rules recognised and approved by the courts, in the management of
their vessels on approaching a point where there is danger of collision. Those
rules were framed and are administered to prevent such disasters and to afford
security to life and property exposed to such dangers; and public policy, as well
as the best interest of all concerned, requires that they should be constantly and
rigidly enforced in all cases to which they apply. Few cases can be imagined
where it is more needful that they should be observed than when a steamer and
a sailing vessel are approaching each other from opposite directions, or on
interesting lines, for the obvious reason that the negligence of the one is liable
to baffle the vigilance of the other; and if one of the vessels under such
circumstances follows the rule, and the other omits to do so, or violates it, a
collision is almost certain to follow.
20

Rules of navigation, such as have been mentioned, are obligatory upon vessels
approaching each other, from the time the necessity for precaution begins, and
continue to be applicable as the vessels advance, so long as the means and
opportunity to avoid the danger remain. They do not apply to a vessel required
to keep her course after the approach is so near that the collision is inevitable,
and are equally inapplicable to vessels of every description, while they are yet
so distant from each other that measures of precaution have not become
necessary to avoid a collision. Sailing vessels approaching a steamer are
required to keep their course on account of the correlative duty which is
devolved upon the steamer to keep out of the way, in order that the steamer
may known the position of the object to be avoided, and may not be led into
error in her endeavor to comply with the requirement.

21

Under the rule that a steamer must keep out of the way, she must of necessity
determine for herself and upon her own responsibility, independently of the
sailing vessel, whether it is safer to go to the right or left, or to stop; and in
order that she may not be deprived of the means of determining the matter
wisely, and that she may not be defeated or baffled in the attempt to perform
her duty in the emergency, it is required in the admiralty jurisprudence of the
United States that the sailing vessel shall keep her course, and allow the
steamer to pass either on the right or left, or to adopt such measures of
precaution as she may deem best suited to enable her to perform her duty and
fulfil the requirement of the law to keep out of the way.

22

Repeated decisions of this court have affirmed the doctrine here laid down, and
carried it out to its logical conclusion, and in so many instances that the
question cannot any longer be regarded as open to dispute. Accordingly, it was
held in the case of the steamer Oregon v. Rocca et al., (18 How., 570,) that
when a steamer approaches a sailing vessel, the steamer is required to exercise
the necessary precautions to avoid a collision; and if this be not done, prima
facie the steamer is chargeable with fault. That decision was founded upon the
rule previously established in St. John v. Paine et al., (10 How., 583,) where the
whole subject is elaborately considered, and the reasons of the rule fully
explained. Similar views are also maintained in the case of the Genesee Chief,
(12 How., 461,) and in various other cases to the present time. Exceptional
cases may be imagined in a crowded thoroughfare, where the rule would not be
applicable, but those will be considered when they arise. Such precautions as
are inculcated in the rule referred to are enjoined, as before remarked, to
prevent collision and afford security to life and property; and in a case where
the rule could not be followed without defeating the end for which it was
established, or without producing the mischief which it was the design of the
rule to avert, of course it would not be applicable, and in such a case a departure
from it would be both justifiable and commendable. Extreme cases, such as are
supposed, will rarely if ever occur, and in referring to them it must not be
understood that the rule will be relaxed to any extent whatever in other cases to
which it properly applies.

23

Applying these principles to the case under consideration, it is obvious what the
result must be. It is not denied that the collision took place, and that the brig
was run down and lost; and such being the fact, and the evidence exhibited
failing to satisfy the court that the brig was in fault, or the disaster inevitable, it
necessarily follows that the collision was the result of fault on the part of the
steamer, and that the steamer is answerable to the libellant for the damage.

24

Our attention was also drawn, at the argument, to the amount of the damage as
reported by the commissioner, and it was insisted that it is excessive. On that
point it will be sufficient to say, that after a careful examination of the
testimony before him, we see no ground to doubt that his duty was rightly
performed.

25

The decree of the Circuit Court, therefore, is affirmed, with costs.