The Delaware v. The Osprey

7 F. Cas. 396, 2 Wall. Jr. 268

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: September 15, 1852
• Status: Published

Opinion

GRIER, Circuit Justice.

Taking all the other circumstances of this case together, and omitting the fact of almost total darkness, and that the barque could see the steamboat while me steamboat could not see the barque, the steamboat would have clearly been held liable for the damages of the collision. It is true there is no law requiring vessels navigating the high seas after night to carry signal lights, and it is much to be regretted that it is not so. But the barque had the wind free, and the tide against her, and she had power, therefore, to give the steamer a wide berth, and to obviate collision. The steamer had three lights; the barque had none. Now, if the steamer had the same opportunity of observing the course of the barque, the latter knowing this fact would have a right to expect a consequent caution on the part of the steamer. But I think it is plain from the testimony, that the light shown by the barque was too late to be of any benefit, or to warn the steamer of its approach, till the very moment of the collision. The warning giren of the approach of the barque by her sails intercepting the light from the lighthouse, like that of the lamp from the barque, was also too late, as well as too uncertain to justify the steamboat in taking any other mode of escaping collision than those she did take. The order to starboard the helm before stopping the boat, and reversing her engine, may have been wrong, and it may be true that these latter orders were not fully executed at the time of the collision. It may be true, also, the order of the barque to starboard her helm, and disregard that of the steamboat captain to port it, was correct, and the only way of avoiding a collision which would have destroyed the barque. But'these considerations cannot affect the case. It was the fault of the barque, and not of the steamboat, that the vessels were brought into such proximity that such mistakes might be made in the dark, when the pilot of the steamboat could neither judge of the distance between the approximating vessels, the rates of their approach, nor the relative angle of their respective courses. It was the duty of tne barque, which could see, to give a wide berth to the boat, which could not see, and not to leave it in the power of her pilot, by a mistake in a moment of surprise, to cause a collision. The rule of passing to the right, or porting the helm, in cases of vessels meeting on the same line, is founded on the supposition, that each party can see the other. But where one is blind, and the other knows it, he should not put himself within reach of injury by any mistake of the blind, or run over him or knock him down for not observing the rule. The court cannot establish any rule to bind vessels navigating the high seas after night to carry signal lights; but where one party does this, and the other does not, we can and will treat (in a case caeteris pari-bus) the dark boat as the wrong doer, and liable to make reparation. In rivers and narrow channels, and in harbours, there are generally local regulations requiring it. But if there be not, it would still be advisable for vessels sailing either in close or open channels, to keep proper lights if they wish to seek the courts, in ease of collision.

KANE, District Judge.

The rules of navigation which we derive from the trinity masters, apply to all cases of apprehended collision, and they are so convenient in practice as to make us most unwilling to relax their application. But to make them applicable at all, there must be reason for apprehending collision, as well as a possibility of escaping it without encountering some greater peril; they cannot be invoked therefore where obedience to the rules has been made impracticable or dangerous by the fault or carelessness of the other party. There is no law which requires vessels navigating the high sea after dark to cany signal lights, and very much it is to be regretted. I can imagine no locality so remote or unfrequented as to dispense with the policy of such a practice. There is hardly a month that we do not read speculations about missing ships, especially ships navigating along our coast, and almost every old seaman can tell of encounters in the night with vessels that were run down and disappeared, leaving no memorial behind them. I should be very glad to follow in the wake of the first admiralty judge, who would bold the absence of a properly placed and well trimmed lantern to be prima facie evidence of a culpable want of caution. Din our narrow waters, however, a sense of danger has enforced upon our navigation the adoption of something like a general usage, and the legislatures of some of the states have, in reference to steamers at least, made it the subject of enaetpents. Thus it seems to be universally understood, that a vessel approaching another in a dark night, should show a light, or, in more ac- • curate words, should show such a light, and in such a place as to indicate at least her position, if not her course. The act of congress of 7th July, 1838 [5 Staff 306], § 10, which requires steamers to carry one or more lights after sunset, is practically almost inoperative for want of specifying their number and position. Our Pennsylvania act of assembly of 30th April, 1844, is little better; it directs a steamer to carry one signal lantern at least 10 feet above the deck,—an imperfect provision, since it omits a description of the sort of lantern and obviously does not affect to indicate the steamer’s course. The New Jersey statute is better than these. It requires steamers to carry two signal lanterns, one at the bow near the deck, the other aloft amidships; a much better provision than either would be that which some of our seagoing steamers have adopted in practice from the British rule, according to which, three lights of different colors are carried at the bow and on the wheel-houses.]⁴ Indeed, so important is some such regulation as this esteemed among the navigators of our river and bay, that 1 have been solicited more thau once to assume its existence and enforce its observance. I would cheerfully do so, if I could find it among the ordinances of any legally constituted tribunal,—the directions of the port wardens for instance, who have in some respects the supervision of our river navigation,—or if the practice recently introduced by our seagoing steamers, were to a considerable extent recognised by others. For the present I confine my action in the matter to the two classes of cases for which statutory provision exists, or generally known usage.

The evidence in this case of collision is not reconcilable as to the circumstances that immediately preceded it. The steamer was on her way to sea with her signal lanterns in place, heading for Henlopen lights. The barque, without any lights, came into the capes from the eastward, with the wind free to pass up the bay. The sails of the barque shut out the Henlopen lights from the pilot of the steamer. The barque was at this time ■of course heading to the starboard of the steamer’s wake. The proper manoeuvre on the steamer's part at this time, was by an inclination of her helm to starboard, so as tw keep out of the barque’s track. This ma-noeuvre she executed, but the barque having •executed the same manoeuvre at about the same time, the two vessels approached each •other. The difference between them was however in this, that the steamer exhibiting ■signal lights, her position and course could be well understood by the barque; but the barque exhibiting no lights, and having been last seen when.heading to starboard of the steamer’s -wake, the steamer had no means ■of ascertaining the barque’s approach and no cause for apprehending a collision. A light was shown on board the barque very shortly before the collision took place. But whether it was or was not exhibited early enough to make it strictly possible for the steamer to ■avert the accident, is not with me an important inquiry. The steamer had her full complement of lights, and it was impossible that the barque could have incurred any hazard at all, if she had been content to hold her course, instead of luffing up as she did across the steamer's bows, obviously for the purpose of keeping well up to windward. Had she had lights, she might have done so with safety. Having none, she voluntarily took the risk of the collision, and must reap its -fruits.

Decree accordingly.

4 [Prom 4 Am. Law J. (N. S.) 533.]