Pettitt v. The Kallisto

14 F. Cas. 95, 2 Hughes 128, 1877 U.S. Dist. LEXIS 164

• Court: District Court, E.D. Virginia
• Decided: September 28, 1877
• Status: Published

Opinion

HUGHES, District Judge.

This is the rare case of a collision between saii-vcssels far out in tlie ocean. The manner in which it liap: pened can be known to but one or two of the very few persons who were present. To all others it is difficult of any theoretical explanation and incapable of any certain explanation. The evidence in this ease, as in most other cases of maritime collision, reminds one of the incident which made Sir ■Walter Baleigh despair of the possibility of writing accurate history. Evidence, voluminous in the extreme, has been taken in this case, and a vast deal of expert testimony submitted from men of extraordinary skill and experience in maritime affairs, and the case has been argued at considerable length and with rare ability and ingenuitybythe learned counsel engaged. If the schooner had not been lost and there were cross libels in the case, it would be necessary for me to go into this evidence and the arguments upon it as fully as counsel have done. But here there is but one libel, and the burden of proving fault is, until proven, wholly upon those representing the Fuller.

I have considered with care all that has been testified to in evidence and all that has been urged in argument, but only to become more and more persuaded of the narrowness and simplicity of the question upon which the case, as presented by the pleadings and evidence. really turns. The libellants charge, and have upon them the burden of positively proving, that the collision happened through fault on the part of the Kallisto. This was a Norwegian bark, manned, I think from .the evidence, by such a crew as Norwegian vessels usually carry over the seas. It may be said, I think, with truth and without denial, that the crews of Norwegian vessels are in general remarkable for nautical skill, thorough discipline, individual proficiency and sobriety, and collective efficiency. The ships of this nationality are probably the best schools for merchant seamen now anywhere to be found. From the system of instruction and examinations pursued in Norway. I think the presumption as to the crews of Norwegian vessels is in favor of the general competency of master and crew. I think all mariners will agree that it is fair to presume, until the fact is disproved, that each man on board a regularly registered and manned Norwegian vessel is competent and attentive to the duties belonging to him. This general presumption I must say is thoroughly supported and justified by the evidence in this case as to the qualities and character of the Ivallisto's crew.

The libellants in this case, therefore, set out with strong reasonable presumptions against them. The burden of establishing fault is upon them, and it is incumbent upon them to prove particular fault against a vessel and crew belonging to a nationality the vessels and crews of which are seldom in fault in nautical matters. In the present case, there is no proof of fault attempted in the matter of the Kallisto’s side-lights, required by the laws of navigation to be kept in tne rigging of vessels under sail. The libellants’ own testimony establishes a compliance by the Kallisto in this respect with the legal requirements. As to lookouts it is not contended that there were not a sufficient number of men on the deck of the Kallisto on the occasion of this collision. There were three men on deck, besides the helmsman and the regular lookout. The only ground, therefore, on which libellants could found a charge of fault against the Kallisto, is in resxtect to the position on the bark in which her regular lookout was at the time of the collision. This is the only question on which it is possible for the libellants to found a right to recover in this action. Their proposition is, or must necessarily be, that owing to the position occupied by the bark’s lookout, before the collision, he was prevented from seeing the schooner as soon as he ought to have seen her, and from giving warning to the helmsman of the bark to port his helm in obedience to Rule XVI of the Navigation Laws, prescribed for sail vessels meeting end on, or nearly end on. Let me remark that I do not think this case is one of sail-vessels crossing each other, and I think, therefore, it does not fall within the purview of Rule XVII. This question of the position of the bark’s lookout being the vital and in fact only one in this ease, I have given especial attention and careful thought to it, and my conclusion, from a thorough examination, is that, at least on a vessel of the construction of a Norwegian bark, a lookout may justifiably stand on the top of the forward house, when the vessel is sailing full and by the wind, under a stiff breeze, the foresail standing out by force of the wind so as to make a curve upwards in the bottom edge; square sails being usually cut with a sweep or gore at the bottom. I think that it is satisfactorily shown that the top of the forward house was a place from which, during a stiff breeze, a lookout could readily see under the foresail what was ahead and over the bows of the ship, and that the lookout of the bark was not negligent of his duty on the occasion in question. The testimony of the whole crew of the Kallisto, and also of other witnesses, especially Captain Lennans, master of a German bark similar in construction to Norwegian barks, establishes this fact, and my own observation'of Norwegian barks under sail by the wind confirms the testimony given on this head. I am satisfied, from the evidence and from observation, that while the Kallisto was under sail, and especially when the lower edge of the foresail is lifted up in a curve by a breeze, there is ample room for vision from the top of the forward house in every direction forward, and that a lookout could perform his duty properly from that position, whether sitting or standing. The very authoritative evidence of Captain Crellin conflicts, I know, with this conclusion; but he avowedly took no measures, but spoke from guess; so did Captain ’.Stoddard. But Captain Brown actually measured, and gives dimensions as follows:

From which some allowance must be made for the sheer of the vessel. I know of no rule of navigation or of law fixing any particular place forward at which ft lookout shall at all times stand on a vessel in motion. If not stationed by the commander of his watch, he must judge of this for himself. He must of course be well forward. In time of apprehension he should be forward on the forecastle deck. That is in general the most proper place; it is often the only proper place. But, when sailing in the open sea, where there are few other vessels, in good sailing weather, on a night-watch on a square-rigged vessel, full and by the wind, with no special danger threatening, especially ona bark where the vision around is clear from the top of the forward house, I should say, from all the evidence in this case, that he might prudently sit or stand on the forward house of a square-rigged vessel, and could there perform his duty faithfully. I do not feel that I would be justified in this case in condemning the lookout’s choice of that position on that occasion so as thereby to subject the Kallisto to the damages arising from the loss of the schooner.

The burden of proof is upon the libellants, and I am clear that, as against this lookout, they have done no more, even if they have done that much, than raise some “doubt" whether the collision was not owing to the fault of the lookout on the Kallisto, in being on the top of the forward house just before and at the time of the collision. It is certainly open to inference, from the evidence, that his failure to see the schooner was in consequence of her not then having had sidelights up and burning with proper brightness. It would not be a very violent inference, from the evidence, that Wesley Davis, an inexperienced seaman, who was at the schooner’s helm at the time, starboarded instead oil porting his helm when the schooner’s lookout saw the red light of the bark and sang out, “Sail on the lee bow!” It is not only open to inference, but pretty clearly proved, from the evidence of libellants, that the two vessels were clear of danger of collision, under proper handling, four minutes before the event, that is to say, when nearly a mile apart, when the bark showed her red light. Certainly is there ground to infer, from the evidence, that the vessels came together by reason of false steering in some way, and. if there is doubt where that false steering was, the doubt is certainly as much to the prejudice of the inexperienced helmsman on the schooner as to that of the able seaman on the bark. No evidence is given by the libellants, nor do they contend that any false management of the bark’s helm took place. The rule applicable, therefore, to this ease, and which governs it, is the one laid down by the supreme court of the United States, in The Grace Girdler. 7 Wall. [74 U. S.] 196; that “when there is reasonable doubt as to which party is to blame, the loss must be sustained by the party on whom it has fallen.”

It is not necessary for me to make any commentary on the nautical skill and ability, or the competency, or the special or general conduct of the master or crew of the Fuller; except to say that, if there is doubt on these matters created by the general tenor of the evidence in the case, I think that doubt goes to the prejudice of the master and crew of the Fuller, and in favor of the master and crew of the Kallisto. I will not say that it is proved that the schooner and her master and crew were in fault, for it is not necessary for me so to do, but I will go so far as to say that the doubts produced by the evidence upon my mind are in .favor of the Kallisto and her crew, and that they are in prejudice of the Fuller and her crew. I have only to decide whether the libellants have proved, beyond “a reasonable doubt,” that the collision was XDroduced by the fault of the Kallisto. I do decide that they have failed to establish such fault beyond “a reasonable doubt.” I will go even farther, though it is unnecessary to do so in this case, and repeat that, to my mind, the evidence more strongly tends to establish that the Fuller was in fault than that the bark was in fault. But as this is not a libel by the owner of the bark against the Fuller, and as it is unnecessary to carry this investigation or decision to that extent, I will confine my decision to the declaration that the libellants’ charge of fault in the Kallisto is not proven; and I will sign a decree dismissing the libel with costs, giving thirty days for an appeal.

The following eases bear upon the questions arising in this case: Peck v. Sanderson, 17 How. [58 U. S.] 178; The Farragut, 10 Wall. [77 U. S.] 334; Cohen v. The Wilder [Case No. 2,965]; The Milwaukee [Id. 9,626]; The S. B. Wheeler, 20 Wall. [87 U. S.] 385; The Great Republic, 23 Wall. [90 U. S.] 34; The Pennsylvania, 19 Wall. [86 U. S.] 136; The Mabey and Cooper, 14 Wall. [81 U. S.] 205; The Grey Eagle, 9 Wall. [76 U. S.] 505; The Maria Martin, 12 Wall. [79 U. S.] 31; The Mary Eveline, 16 Wall. [83 U. S.] 348; The Sam Weller [Case No. 12.290]; The Breeze [Id 1,829]; The Empire State (lights in the centre) [Id. 4,474]; The Continental [Id. 3,149]; and 49 N. Y. 379.