The Sunnyside

23 F. Cas. 413, 14 Int. Rev. Rec. 103

• Court: U.S. Circuit Court for the District of Eastern Michigan
• Decided: April 15, 1873
• Status: Published

Opinion

EMMONS, Circuit Judge.

The tug Good-now was lying for a tow in Lake Huron, iu the vicinity of the head of St. Clair river, in conformity with a well known usage. It was about 3 a. m., and although still dark, her hull could be seen in time to avoid her, had it been known she wa. without a lookout, and would not herself discover approaching ships, so as to perforin he: duty and move out of the way. All her lights were brightly burning, with steam up, ready at any moment to move. A great number of vessels were in the vicinity. She was drifting before the Wind, about two miles an hour, with her head to the eastward, so as to display to the Sun-nyside, which was approaching from the southward, her white and green lights. These were seen by the latter nearly ahead, but, we infer, somewhat over the larboard bow, long before the collision, and, by the experienced lookout, announced to the master in charge. He came forward, observed them,' and remarked they were on a steamer, and that she “was all right.” He soon went further aft. to his more common station midships, where he could walk from side to side, in the observance of other lights, and where he could from time to time approach the compass, and issue orders at the wheel. The Sunnyside’s speed was about nine miles an hour. The lookout observed the continuous bearing of the tug, which indicated she was not under way and lay nearly in his path. It was not until they approached the immediate vicinity of the tug that the lookout, having had his attention turned in other directions by different lights discovered that they were in danger^ us proximity. He then hastily announced the fact to the master. The latter at once gave orders to starboard, but too late to avoid the disaster which sank the tug. Upon these facts it is claimed the bark was to blame for not starboarding earlier. With some doubt, and after much hesitation, we hold the Sunnyside to be without fault, believing that, in the circumstances, she was warranted in keeping her course. In arriving at this conclusion, .we are in some degree influenced by the wholly inexcusable and exceptionally gross character of the Goodnow’s fault The nature of the original libel and the untruthful and now abandoned proof to support it, we hold as legitimate subjects of consideration in denying a remedy.

In order to appreciate the character of the misrepresentation in the original libel and proofs, it must be borne in mind that it is now conceded the Sunnyside was at no time' over the tug’s quarter, or in any direction Where by any possibility she could be supposed to be there. Without attempting literal uccuracy, substantially the original libel alleged that, while the tug was lying as already indicated, the Sunnyside vas made ovei their starboard quarter, and so far astern that there would have been a broad berth between them, as she passed, of nearly half a mile. That, instead of keeping her course under the rule, she suddenly ported and ran down the Goodnow. No confession of fault was made; but a case stated, having in no one of its features the most distant resemblance to the facts as they are now conceded . at the bar, and contained in the amended libel. The owner of the tug was on board, and the libel necessarily framed from his and his officers’ statements This false case was sought to be supported by testimony so inherently absurd and so undeniably untrue, that it is unworthy ot criticism. In all this there is much which, unexplained, is so highly uneonscientious as to merit censure, and essentially affect the right to relief. The Made: and Gocper, 14 Wall. [81 U. S.J 205. No question as to the circumstances in which the amendment was made has been raised here. That no person on board the tug saw the lights of the Sunnyside until just as the collision occurred, is conceded. If- they did see them, their fault is only the more extraordinary. The amended libel charges four faults upon the bark: that she had not a propel lookout; that she did not see the tug; that she did not perceive that the tug was not in motion. These imputations are conclusively negatived by the testimony. The fourth is a vague generality, giving no enlightenment to respondent, and is such as we would, upon exception, hold not to be the subject of proof. The officer in charge having once observed the light, had full, authority to act upon the assumption that the steamer would avoid him. We hold, if a light is announced to the officer in charge of a vessel, obliged under the rules to keep, her course, and from full observation, the unambiguous apparent conditions in reference to wind, atmosphere, course, distance and character of the vessel, all indicate absolute safety if the law of the road is complied with, he may leave the future watching of such a light to an experienced lookout. It will not be a fault that he does not himself remain with' the latter and participate in his observation. He may return to his post further aft, to his general duties in the ship, and especially, if other lights are off abeam and over the quarters, give his attention to them, and in all cases frequently to his compass and his own course.

The application of the principle to ships whose duty it is -tc a oid others, requires only a more close criticism of the circumstances, and more frequently demands longer and continuous observation by the master. If, from such observation, any circumstances known, or which with ordinary diligence might be known, indicate a departure from the rules by the approaching ship, or would suggest danger of collision, from any cause, to an intelligent seamar, the duty of careful and continuous watchfulness is imposed upon the master He would have no right in such a ease to le-ve to the lookout the difficult duty of deciding when, on account of increasing hazard, he should again announce the light. When, in these latter circumstances, the officer has exercised his best judgment, and kept his course, or, waiting until the peril was great, has departed from the general rule, the court should not reverse his judgment, unless the error has been gross and unpardonable. It is not the duty of a lookout to reannounce a light, unless some new conditions occur, which an intelligent officer of the deck would not anticipate, from the first observation made, and in reference to which it is in some degree probable a new order would be given.

These general principles, we think, will receive a ready common assent. We apply them here as follows: That the master performed his duty by remaining aft, where he could not see the danger, we have already sufficiently said. We think it equally clear that the lookout did his. An unnecessary argument was made to show that he might, from her continuous bearing, perceive that the tug was at rest. This seaman frankly swears he did so perceive it, and the fact is too apparent for discussion. But it indicated nothing in the least unusual, and imposed no duty upon the lookout of rean-nouncement. Certainly when not at a distance, because the custom is as common as the trips of the sail craft "for which they lay in wait. Nor was a near approach with the same condition any more alarming. .It is a common practice for these vessels to wait before they move for the close proximity of those which approach them. As a class, they are small vessels, with powerful engines, and are both started and backed with the utmost rapidity. Prom the nature of their avocations they acquire an extraordinary dexterity in avoiding vessels close aboard, and consequently, beyond all others, risk nearness of approach. If this one had not the characteristics of her class, it but adds another reason why assuming their attitude and proclaiming that she had, relief should be denied. Out of many thousands of instances where similar vessels have lain in the same way, not one in the whole history of navigation is known to have failed in the performance of her duty. The lookout had a right to repose, therefore, not only upon the statutes of the country, but upon the peculiar power and long practice of this class of ships to perform in just their circumstances the duty which they impose. It was in the night, when no eye can measure the distance to a light, or the hull of a ship of unknown size, so as to discover the difference between two. four and six hundred feet. The tug was already moving two miles an hour before the wind. The bark was going nine, with her bows alternately elevated and depressed, and swayed to the right and left as she rose and fell with the waves. These conditions rendered an immediate discovery of the precise moment when the tug, by a few turns of her wheel, should move slightly ahead or astern, as she should elect, utterly impossible. If life depended upon it, it could not be done. She would have to pass several times the distance necessary to avoid the bark before her movement could be perceived by the lookout.

He. too. was engaged in watching for other lights, in entire confidence that this one would move out of his way, and would not, upon the most familiar principles, give it any particular attention. That he would from time to time see it, is certain, because it lay in plain sight before him, and he concedes he did observe its continuous bearing. But it is equally certain, if he was actuated by the motives of ordinary men, he would not, as he states, particularly notice it until some new and extraordinary predicaments suggested that it was not likely to obey the laws which so many hundreds before had obeyed in like situations. Add to these conditions the rule of law, that if the bark changed her course at all in advance of real danger, she would be condemned for the fault, and we have presented predicaments in which it seems to us little less than a cruel misapplication of rules to hold the vessel liable because the lookout did not decide the precise moment at which he crossed the line of safety. We asked in vain from the learned and experienced counsel in this case a diagram designating in time and distance the point at which the lookout should have reannounced the light. None such has been furnished. We apprehend it would be difficult to draw one which would stand the criticism of an expert.

In a case where the fault of the libellant is excessively gross, where the bark has kept her course in accordance with the law. where her officers and lookout are proved to be of the very highest character, and where, to say the least, their conduct has been all which in ninety-nine cases in the hundred can be secured, we should deem it most impolitic for the safety of navigation, a discouragement to the performance of duty by good seamen, to set up in court, for the benefit of those who have outrageously violated the law, a rule of criticism which would condemn the respondents’ ship. In exceptional circumstances, and under the stimulus of apprehended danger, “sleepless vigilance,” rightfully in such circumstances demanded, is possible. With our present faculties it cannot be long sustained, nor do the ordinary exigencies of commerce demand it. When the facts presented not only fail to excite suspicion of peril, but, where viewed in connection with legal rules, authorize entire confidence that all is safe, ordinary care is all which can be continuously exercised, and all which the law requires.

We would like to have grouped the decisions which sustain more pointedly the various propositions involved in the preceding disposition of this case. Again compelled to work in an unusual mode from failing sight, and with many undecided cases demanding attention, we can do no better than to refer to judgments in the order in which they have been examined. In our selections we can go but little beyond the exceptionally full and thorough briefs of counsel.

The following cases show our judgment would be sanctioned by the English admiralty courts: The Test, 5 Notes of Cas. 27G. Dr. Rushington says: “I cannot conceive that anything would be more likely to lead to mischievous consequences than to suppose that a vessel, whose duty it is to keep her course, should anticipate that another vessel will not give way, and so give way herself. The consequences would be that there would be no certainty. The certainty which results from adhesion to general rules is, in my opinion, absolutely essential to the safety of navigation.” The George, Id. 371. This is emphatically repeated by the same judge. The Superior, G Notes of Oas. 607. He says the proof must be entirely clear, showing the necessity for the deviation, before it can be even justified. It is a different thing to hold that a neglect to do so is a fault. And see, equally pointed, a case quite beyond the requirements of the Sunnyside, The Yivid, 7 Notes of Gas. 127; The Immaganda Sara Clasina, Id. 5S2. A vessel, whose .duty it was to keep her course, did not deviate until she had twice hailed the other, and at last, in alarm, did so, and was condemned in the entire damage. It is an extreme case, and goes far beyond what it is needful now to argue. We would hold the master blameless if the approaching ship neglects his duty so long as to produce alarm in an experienced sailor. And see a more recent enforcement of the same rule. The Gitana and The Esk, L. R. 2 Adm. & Eec. 350. The Esk’s light indicated her at anchor. Minute observations might have discovered she was in motion, but the Gitana was held faultless for full reliance on the- lights.

The decisions of our own courts are equally pointed in the same direction. The Clement [supra]. A ship, conceding her own fault, asked a decree for division against another which was entitled to keep her course. It had been plausibly argued, as in this case, that as she approached close to it, it was entirely manifest a movement on her part would have prevented the disaster. Judge Curtis says: ‘‘Upon the rule of navigation applicable to such cases, he was not only in the right in acting upon the assumption that the brig would be so steered as to keep out of his way, but he was bound to act on that assumption, and keep his course, unless he saw that there would be no probable chance of a collision if he disregarded the rule.” The Ariadne [supra]. A brig, having an imperfect starboard light, was sunk in the night by a steamer. It was sought to sustain the libel on the ground that by extraordinary vigilance the brig might have been sooner seen. Judge Woodruff, affirming the decree dismissing the libel, says: “But vessels have a right to assume that other vessels, if in their neighborhood, are acting in obedience to the statute regulations, and where the negligence of the sailing vessel, and her failure to comply with the statute requiring her to bear a light which can be seen at a distance of two miles, have led the steamer into danger of collision, it is not for the sailing vessel to insist that by more than usual vigilance she might nevertheless have been discovered at a few yards’ greater distance, and to claim contribution on that ground.” This case is reversed in 13 Wall. [80 U. S.] 475. but upon grounds which do not in the least affect the principle for which we quote it. That court, taking an entirely different view of the facts, declared the steamer guilty of gross fault, that “for all the purpose of the case, there might as well have been no lookout on the steamer.” The expressions in reference to “sleepless vigilance,” are carefully confined to the crowded thoroughfare in which the collision occurred, and were applied to a ship upon whom was cast the duty of avoidance. They notice, too, that although the light of the bark was dim, she could have been seen a quarter of a mile, if the lookout had done his duty. The judgment in no way qualifies the rule nf law laid down by the circuit and district judges, that the gross fault of a libellant cannot impose exceptional vigilance upon another. This is well-settled law in the supreme court. In The Comet [Case No. 3,051], Judge "Woodruff says that where a party seeks a recovery after confessing a fault on his part, he must be held to the clearest proof of wrong on the part of his adversary. It is not enough to leave it in doubt. In Saltonstal v. Stockton [Id. 12,-271], Chief Justice Taney lays down the following principle at common law, which is equally applicable in a court of admiralty: “If a man unlawfully places another in a situation which compels him to undergo one of two hazards, and forces him to choose upon the instant between them, he necessarily gives him the right of selection, and must be responsible for the consequences, although it may turn out that the most fortunate alternative was not adopted.” The Scotia [Id. 12.513], The Berkshire, with illegal lights, led the Scotia to suppose that it was a steamer. at so great a distance that her colored lights were hid by the convexity of the ocean. She was, in fact, but a few rods off. In a judgment which, on account of the magnitude of the values involved, was the result of more than ordinary examination, Judge Woodruff, affirming on appeal what Judge Blatchford had ruled in the district court, said: “It was night, the distance of the Berkshire could not at that instant be known. If the Scotia attempted to go to port, it was not at all improbable that she would meet the ship while in the act of turning, while by turning to starboard there was a like uncertainty. Her officers must choose. They did exercise their judgment in good faith, and yet the collision ensued.” Attention is called to the fact that lights, in reality within a few rods, were supposed four miles off upon the mast of a steamer whose colored lights were below the line of vision over the water. Here the Sunnyside is asked to decide, within two or three hundred feet, the precise distance of the Goodnow. This case has been affirmed by tbe supreme court, although not yet in the reports. The William Young [Case No. 17,-760], A sailing vessel, in fear of a collision, having changed her course to avoid it, was injured by a steamer. Judge Betts says: “Sailing vessels cannot justify a departing from their course on a probability of encountering an approaching steamer, unless she is crowding so much upon the track as to create imminent danger of collision.” The R. B. Forbes [Id. 11,598]. The libellant’s vessel saw a steamer more than a mite off; she might easily have avoided her by a slight movement, but as it was her duty to keep her course, Judge Sprague decreed for the whole damage, upon the ground that she had a right up to the last moment to suppose the steamer would avoid her. He adds, it would have been a fault for her to have changed her course. The Corsica, 9 Wall. [76 U. S.] 630; s. c. [Case No. 3,256]. It was the duty of the America to avoid the Corsica. In attempting to cross her bows at a late period, discovering it was too late to do so, she stopped and backed. The Corsica, in the supposition that she was going to carry out the attempt, starboarded. This would have been entirely safe, but for the unexpected backward movement of the America. Although the Corsica was misled into this movement, the district, circuit, and supreme courts all condemned her in the entire damage of thirty-three thousand dollars. She did not adhere to the rule and keep her course. Bentley v. Coyne, 4 Wall. [71 U. S.] 512. When a' vessel, at the last moment, in great peril, altered her course, the court, in holding it justifiable in the circumstances prescribes rules clearly showing the Sunnyside was right in holding it. even if it would not have been a fault to do otherwise..

It is in no disregard of the familiar rule that the admiralty, if it suffers recovery at all, where there is mutual fault, equally divides the damages, that we say that when there is a gross and criminal departure from well-settled rules and an absence of all" common care on the .part of the libellant, he should not be entitled to recover, even although he succeeds in proving a slight fault against his adversary. The Comet [supra]. Judge Woodruff examined the question of fault on the one side, in the light of that shown upon the other. Numerous judgments pursue the same course. It may. perhaps, resolve itself into the simple truism that the more gross and improbable is the fault, upon the one side, the less is the duty of observation and of its anticipation on the other.

An extraordinary criticism is made in this case. Complaint is made that a lookout on a vessel entitled to keep her course, with a light before him which a seaman of common prudence would take for granted would get out of the way, temporarily took his eyes from it to watch other points of the horizon along which were numerous lights. Wholly unreasonable as is such an objection, when coming from the mouths of those who put them forth to .protect themselves from the consequences of their own wrongs, they are nevertheless not novel, and have been frequently answered by judges of the highest character. The Europa, Brown. & L. 89; 2 Eng. Law & Eq. 557. The privy council, affirming the decision of the high court of admiralty, dispose of such a criticism in favor of this bark. The Charles Bartlett, being close-hauled, and bound to keep her course, and the steamer which sunk her having been found in fault, it was urged the sail vessel should contribute to the damage, because, among other imputed faults, it was conceded the lookout, just before the collision, had his attention attracted from the steamer by turning to observe some workmen engaged in coppering the rail. Their lordships say: “We can pay no attention to that argument; his business as lookout was to walk with his eyes to the horizon, but that does not mean that he is not to turn his eyes off to watch what a man is doing. All these expressions, ‘lookout,’ are to be taken in the common sense. He might do that, and look after the man coppering the rail.” They say, as the bark was entitled to keep her course, the absence of a lookout was less important. Answering the objection that the bark might have heard the steamer sooner, they add: “Now we think, with reference to that, the circumstance that she was keeping her course was very important, because a ship keeping her course is only bound to go on and keep her course; not anticipating and watching that other persons are coming. If she had heard something was coming, she would have been entitled to consider that it would come so as not to do her damage.” A different rule, of course, would apply when perceived irregularities indicated danger, and especially to a vessel bound to avoid another.

When that high degree of watchfulness necessary only in circumstances of danger, is in argument required of those who are entitled to their way, upon the ground that unexpected irregularities may attend the movements of an approaching ship, the appropriate answer is that given by Judge Woodruff in The Scotia [supra], where substantially he says: sucn a position assumes what is not to be assumed; that irregularities will occur, or that officers, without evidence that they are probable, are bound to presume they will happen. Not in reference to a vessel having a right to keep her course, but to those who are bound to keep out of the way, and where a higher duty is imposed than that demanded of the Sunnyside, the supreme court in The Grace Girdler, 7 Wall. [74 U. S.] 203, lays down the following reasonable rule: “The highest degree of caution that can be used is not required. It is enough that it is reasonable UDder the circumstances, such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view, the safety of life and prop--erty.” The remarks in Williamson v. Barrett, 13 How. [54 U. S.] 101, are peculiarly applicable in cases like this. The supreme court says it is by no means enough to show that a particular act or movement would prevent a collision, it must further appear it is a legal duty to make it. In ninety-nine cases in a hundred, vessels bound to keep their course might save collision by deviation, but it is not their legal duty or right to do so. Equally stringent in the application and unambiguous in expressing the rule in manifold applications are The Continental [Case No. 3,141], by Judge Woodruff; Wheeler v. The Eastern State [Id. 17,494], by Judge Curtis; The Favorita [Id. 4,695]: Taylor v. Harwood [Id. 13,794]; The City of Paris, 9 Wall. [70 U. S.] 635. In Baker v. The City of New York [Case No. 765], Judge Clifford says: “The vessel whose duty it is to keep her course should do so as if there were no danger.” And in Wakefield v. The Governor [Id. 17,049] he adds that these suggestions, that a ship bound to keep her way might by deviation avoid the collision, are entitled to but little weight. See, also. The Catherine of Dover. 2 Hagg. Adm. 145; Ward v. The Fashion [Case No. 17,154]; The Lion [Id. 8,379]; 1 Pars. Shipp. & Adm. 529, and cases cited; The Carroll. 8 Wail. [75 U. S.] 305; The Johnson, 9 Wall. [76 U. S.] 146; Crockett v. Newton, 18 How. [59 U. S.] 583; The Steamship Co. v. Rumball, 21 How. [62 U. S.] 385. See, also, The Free State [Case No. 5.090]. decided by this court, in which the general principle authorizing full confidence that the rules of navigation will be adhered to is announced, and the leading judgments considered.

[An appeal was taken to the supreme court, where the above decree was reversed, and the cause remanded, with directions to enter a decree affirming the district court. 91 U. S. 208.]

A full consideration of the books cited by the libellants is impossible. None of them, save one, purporting to be a correct manuscript report of a decision by Judge Clifford, have any tendency at variance with our judgment. We doubt whether it is fully before us. The Gray Eagle, 9 Wall. [76 U. S.] 505, is cited by the libellants. The case bears no analogy to this. The court say the Gray Eagle was grossly in fault for not perceiving that a light which must have crossed from the larboard to the starboard bow, was in motion and not at anchor. The remark that the master should have watched the light, we should agree with in the circumstances of that case. The Havre [Case No. 6.232], a vessel whose duty it was to keep out of the way. was guilty of manifest irregularities in such ample time before the collision, that had they been known to the officer on the other ship, ordinary prudence would have demanded a deviation. The lookout signally failed to do his duty. The case is but a common illustration of principles we fully concede. With some of the arguments in the opinion, if, as we much doubt, it is intended to sustain the inferences which counsel sought to draw from it, we should not agree. The Cornelius C. Vanderbilt [Id. 3,235]; The Hope, 1 W. Bob. Adm. 157, are like cases. 1 Pars. Shipp. & Adm. 580, and notes, refers to the leading cases, holding that a rule of navigation should not be stubbornly adhered to. He remarks that The Oregon, 18 How. [59 U. S.] 570; Crockett v. Newton, Id. 581. take a somewhat different view. If it is supposed that tribunal has decided a rule of navigation may be stubbornly adhered to, we do not so understand them, and certainly proceed in no such notion now. If there be any. difference between the English and American rulings upon this subject, the former are .more rigid in insisting upon adhesion to rules of navigation.

We think the judgment referred to and the rules best for the safety of navigation, establish the right of the Sunnyside in the circumstances which weie presented to her lookout to keep her course up to the point when collision became inevitable. She then did all in her power to avoid it. We find that there was no fault in the master for returning to his post, or in the lookout, standing on the forecastle of his heaving ship, in the night, with no guide object between him and the light, that be did not discover the difference between a movement of two miles an hour and five, or in distance between six hundred feet and two. Carelessness on the part of the libellants, which, if life had been lost was undeniably criminal, can cast no such extraordinary duty upon the approaching ship. Decree for the cross-libellant.