Sturgis v. Clough, 62 U.S. 451 (1859)

62 U.S.
451
21 How. 451
21 How. 541
16 L.Ed. 188
RUSSELL STURGIS, LIBELLANT AND APPELLANT,

v.
JOHN CLOUGH, ROBERT L. MABEY, AND HENRY M.
WEED,
CLAIMANTS OF THE STEAMBOAT R. L. MABEY, HER
TACKLE, &C.
December Term, 1858
THIS was an appeal from the Circuit Court of the United States, sitting in
admiralty, for the southern district of New York.
The facts in the case are set forth in the opinion of the court.
The District Court dismissed the libel, each party paying his own costs.
The Circuit Court affirmed this decree, and that the appellees recover of
the libellant their taxed costs of appeal.
The libellant appealed to this court, where it was argued by Mr. Benedict
for the appellant, and Mr. McMahon for the appellee.
Mr. Benedict contended, amongst other points, that the evidence
established the custom, that when tugs met a vessel, they rounded to or
went around her, so that the bows of the two vessels would be in the same
direction.
Mr. McMahon contended that the Hector was in the wrong, because the
rule is, that when vessels are approaching each other under such
circumstances, each should keep to the right; and if the Hector had done
so, no collision would have ensued.
These were only the main points in the arguments, which branched out
into many other points.
Mr. Justice GRIER delivered the opinion of the court.
The libellant in this case is owner of a steam-tug called the Zachary Taylor, or
Hector.
The claimants are owners of the steam-tug Mabey.
At the time of this collision, on the 11th of August, 1854, they were both
engaged in the business of towing vessels into the port of New York from the
neighborhood of Sandy Hook.
The Hector was an old, heavy boat, some one hundred and eighty or one
hundred and ninety feet long; the Mabey a new, eight boat, of about one
hundred feet in length, and much the swifter of the two, in the ratio of about
fourteen to eight.
They were each looking out for employment about noon of that day, when the
brig Wanderer was passing in, by Sandy Hook, sailing slowly in a northwest
course. The two steamtugs must have been some two or three miles apart, when
they each started for the brig in different directions, in order to tender their
services. Each boat put on all its steam, as the first who could hail the brig
would be entitled to the job.
The Hector, being in the rear, came up in the wake of the brig, and nearly on
her course. The Mabey came in S. S. E. course, meeting the brig in an acute
angle to its course. As they came together near the starboard quarter of the brig,
their respective distances from her at the time of starting must have been in the
ratio of their velocities. The Mabey, being much the fastest boat, no doubt
expected to make up for this difference of distance by her superior fleetness.
According to the established rules for navigating boats under such

circumstances, the Hector, which was following in the wake of the brig, should
come up on her starboard quarter, and slack her engine, so as not to pass the
brig. The Mabey, which was coming down in the opposite direction, ought to
round to, either to windward or leeward, so as to head the same way as the brig.
Had these well-known rules been observed, no collision would have occurred
in consequence of the race for precedence.
Cases may occur in which two steamboats engaged in unlawful racing may
recklessly or wilfully dash against each other; and the courts, treating them both
as criminals, may refuse to sustain an action or decide which was most to

blame, leaving each to suffer the consequences of his own folly and
recklessness.
9
We do not think that the testimony shows this to be such a case. Each of these
boats had a right to move as fast as it could in order to obtain precedence, and
each had a right to expect that the other would pursue the customary and proper
course in navigating their vessels, in such circumstances, by the observance of
which there would be no danger of collision.
10
Have both these boats, in their anxiety for precedence, disregarded the proper
precautions to avoid a collision, or is the fault wholly to be attributed to the
mismanagement of the Mabey?
11
The defence set up in the answer, that the Mabey 'got to the brig first, slacked
her speed, slowed and stopped, and that the Hector attempted to pass under the
bows of the Mabey, and in executing that manoeuvre, with the covetous desire
of getting the right to tow the brig, she ran against the Mabey, obliquely,' &c.,
is clearly and satisfactorily proven to be not true. The fact that the stem of the
Mabey, the lighter and swifter boat, was driven into the starboard bow of the
Hector, stripping her guards down to the wheel, shows conclusively that the
Mabey was not stopped, but was under nearly full headway.
12
If the collision had occurred as stated in the answer, the great momentum of the
larger boat would most probably have sunk the smaller.
13
The witnesses on the Hector all concur that, though the engineer was directed
to proceed with his utmost dispatch, the Hector followed in the wake of the
brig, and when near to her had slacked her speed and stopped her wheel, so as
to lap on the stern of the brig as she came alongside of her starboard quarter,
and within twenty feet of her; and that she was nearly at rest when the Mabey
ran, with all her force, into the starboard bow of the Hector. As these witnesses
are all confirmed by the pilot of the brig, who was an impartial observer of the
whole transaction, his statement may be fairly taken as a correct representation
of it.
14
He states that he first saw the Hector about a mile distant, heading towards the
brig, about northwest; that she came up to the brig in about ten minutes,
stopped her engine when she came within one hundred to two hundred yards of
the brig, and then came alongside with the way she had on; and the captain
spoke to the witness. That the brig was going at the rate of about a mile an
hour, and the Hector was dropping astern, if anything, when the Mabey ran into
her.
15
That, when he first observed the Mabey, she was about half a mile off, coming
southwest or west-southwest; that she was about an eighth of a mile from the
brig when the Hector let her steam off; that she continued her course till she
struck the starboard bow of the Hector, and ran into her forward of the wheelhouse; that, when the pilot of the Mabey discovered that he had run his boat so
as to render a collision inevitable, he ran out of the pilot-house and went aft;
that the wheels of the Mabey were in motion till the time of the collision; that
the Hector could do nothing to avoid the collision, because she had stopped her
engine and was falling behind the brig.
16
The master of the Hector acted on the supposition that the Mabey, according to
custom, would round to, and could not anticipate that, contrary to all rule, she
would run into the Hector, as she lay nearly at rest, lapping on the stern of the
brig, when a single turn of her wheel, with her great headway, would have run
her entirely clear of any danger of collision. Hence, when his pilot told him the
Mabey was coming in a direction to run into him, he said, 'No, she will go
under our stern.' He presumed, and had a right to presume, that the pilot of the
Mabey knew his duty, and intended to round to behind the stern of the brig and
tug, and not make the reckless attempt to run between them.
17
The testimony of the pilot of the Mabey, in fact, confirms this view of the case,
and shows the collision to have been occasioned entirely by his own fault, or
that of the master, who directed him. He says, 'My instruction was to run close
to the brig's stern.' The master says, 'He expected the Hector would get out of
his way;' and the pilot says, 'I supposed she would go on the other quarter, or
else steer outside of me.' In other words, he proceeded in a direction which he
knew must produce a collision unless the Hector would get out of his way. It is
clear that his intention was to drive the Hector away from the brig, or compel
her to take the consequences. The pilot admits, also, that he knew the proper
way to approach the brig was by rounding to; which would not have brought
him within three hundred feet of the point of collision. He admits, also, that he
could have gone on either side of the brig, and 'knew it was nautical and
customary to come up on the weather quarter, and to round to for a tow, but he
had instructions from the captain to go for the brig, and to get there before the
Hector if he could.'
18
We are of opinion, therefore, that the evidence clearly shows that this collision
was occasioned wholly through the fault of the master and pilot of the Mabey.
19
The decree of the Circuit Court is therefore reversed, with costs, and the record
remitted with instructions to enter a decree in favor of libellant, and have such
further proceedings as to justice and right may appertain.

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62 U.S.

RUSSELL STURGIS, LIBELLANT AND APPELLANT,

Mr. Justice GRIER delivered the opinion of the court.

The claimants are owners of the steam-tug Mabey.

According to the established rules for navigating boats under such

as criminals, may refuse to sustain an action or decide which was most to

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