The Great Republic , 23 L. Ed. 55 ( 1874 )

90 U.S. 20 (____) 23 Wall. 20

THE GREAT REPUBLIC.

Supreme Court of United States.

Messrs. William Tod Otto and J.A. Grow, for the appellants.

Messrs. Durant and Hornor, contra.

Mr. Justice DAVIS delivered the opinion of the court.

There is some excuse, even for a party in fault, when two boats collide in tempestuous or foggy weather, or on a dark night, but there are no exculpatory circumstances attending this disaster. It happened before dark, in the middle of the Mississippi, and when the light was good enough to distinguish small objects on both banks of the river. The weather was clear and calm, and the river unobstructed, affording ample room for passage on either side of the point where the vessels collided.

It is very plain that the collision ought to have been avoided, and the inquiry is, who is to blame for it. It almost uniformly happens in cases of this description that different accounts are given of the occurrence by those in the employment of the respective vessels, and that the court has difficulty in this conflict of evidence of deciding to which side a preferable credence should be given. There are generally, however, in every case, some undeniable facts which enable the court to determine where the blame lies, and this case is one of that character.

There is no dispute that the Cleona was a small stern-wheel boat of the burden of 118 tons, that the steamboat Great Republic was of the burden of 2200 tons; a large and very fast vessel with side wheels; that both boats crossed the river, from the right to the left bank, just above Nine-mile Point, and straightened up on the left bank and ran parallel with the shore for some time, the Cleona being some distance ahead, and the Republic following almost in her wake; that just previous to reaching Twelve-mile Point the Cleona started to cross the river in an oblique direction, intending to make a landing at Waggaman's plantation to put out freight; that the Republic kept bearing to the left, following the Cleona, instead of keeping her course, and finally overtook her about the middle of the river, and that the collision occurred. There is a great deal of discrepancy in the testimony relative to the distance between the two boats at the time the Cleona started to cross for the Waggaman plantation. Under the most favorable circumstances it is impossible to measure distances on the water with accuracy, but in times of excitement there is very little reliance to be placed on the opinion of any one on this subject, and especially is this so when the condemnation of a boat may depend upon it. If the Cleona was only some two or even three hundred yards ahead of the Republic, it was certainly imprudent in her officers to undertake to cross the river, but if she was more than double this distance in advance there is no reason why she should not have attempted to cross if she had business on the opposite side.

Without discussing the testimony to show on which side the probabilities are, there are certain things in connection with this part of the case which are inconsistent with the theory advanced by the respondents. According to the testimony of nearly all the witnesses the Republic was going twice as fast as the Cleona, or, in other words, making two hundred yards to the Cleona's one hundred. It is quite clear that the Cleona was not more than forty or fifty yards from the left shore when she turned to cross over, and must have sailed to reach the middle of the river (a half mile wide at that point and confessedly the place of collision) nearly, if not quite, four hundred yards, and occupied, at her rate of speed, at least two minutes of time in doing it. As the Republic was swinging to the larboard, which would increase her distance outside of the Cleona, she must have gone considerably over eight hundred yards to reach the point of collision. Besides, if the distance between the two boats when the Cleona undertook to cross was as short as the respondents say, the collision would have occurred much sooner, as the speed of the Republic, by the weight of the testimony, was twelve miles an hour, enabling her to make three hundred and fifty yards in one minute. It would, therefore, seem quite clear that the Cleona was far enough ahead to cross with safety, on the supposition that the following boat would pursue the prescribed rules of navigation. Apart from this view of the subject the Republic cannot escape condemnation if the case be tested by the account which the pilot at the wheel gives of the affair. He says that he thought when the Cleona turned to the larboard she was sheering — running off from the shore; that at this time the Republic was below her in the current about two hundred and fifty or three hundred yards, and to the larboard of her about the same distance; that as soon as the Cleona sheered to the larboard he pulled to the larboard, and rang first the stopping-bells and then the backing-bells, and that the Cleona gave no signal until she had been running out about half a minute, when she blew two blasts of her whistle, and that the collision occurred in about half a minute from the time the backing-bells were rang. This pilot acted on the belief that the Cleona had sheered when she made the sudden turn, and, therefore, followed her until he overtook her in the middle of the river, instead of keeping his course, which the whole evidence shows would have prevented the collision.

That the Cleona's movement was not a mere sheer is manifest enough, but what right had the pilot to proceed on that supposition? Impressions of this sort are not admissible, and ought never to be entertained by a pilot, and if disaster occurs the consequences must rest on the boat he is guiding. The cause of this collision is clearly traceable to this mistake, and, to use no harsher term, the pilot showed great incapacity on the occasion. It was his duty to have kept his course, and if he had done this instead of swinging to the larboard the accident would not have happened. Even had he ported his helm but for a few seconds after the danger was imminent, it would at least have checked the swinging of his boat to the larboard, and this would have prevented the disaster, as the evidence shows ten feet would have cleared the Cleona, and five feet saved everything except a few of her wheel-arms.

As boats are not apt to sheer in deep water there was no excuse for the mistake made by the pilot. If, however, sheering were possible, as it is out of the common course of things, ordinary prudence would have told this pilot to have exchanged signals, so as to have understood what the movement was. Instead of this he did not answer the signals of the Cleona, which the law says he must do, in order to avoid mistakes. Two whistles were blown on the Cleona, which this pilot and others on board the Republic interpreted as meaning but one signal. Whether these whistles constituted one signal or two, answer should have been made, and, it may be, if this had been done the result would have been different.

The signals were given by the Cleona for each boat to keep to the right, and, if seasonably given, were the proper ones.

It is said, however, that the Cleona should have given three whistles, indicating a purpose to land, but the boat was not close enough to land, and all the signal that was required was one which should tell which side she desired to take.

But the pilot says no signal was given by the Cleona until half a minute after she turned to cross. If so, and the Cleona omitted such a plain matter of duty, why did he not supply this omission by signalling as soon as he discovered the danger? That he thought danger was imminent as soon as the Cleona made the turn is manifest, because he says he rang the bells at once to stop and back. It was, however, his duty, as his boat was astern and gaining rapidly on the other, to have given the first signal; but even if this were not so, any self-possessed pilot, having a due regard for life and property, as soon as danger was threatening, would have signalled in order to call the attention of the other boat to the condition of things. If this had been done, is there any reason to suppose the signal would not have been obeyed? and if obeyed the courts would never have been troubled with this case. The precautions against danger of necessity, in any case, rest to a greater extent upon the boat in the rear than upon the boat in advance, and this is eminently true of a large and fast steamer following a small and slow boat.^[*]

But the pilot says that as soon as the Cleona turned to cross, he took instant means to stop and back his boat. If so, it is singular that his boat, having two hundred and fifty yards to go, almost in the same direction with the Cleona, run her down with great violence; but the testimony of the engineer of the Republic shows, unmistakably, that the pilot, to say the least, is mistaken in this particular. Indeed, it is very doubtful from the evidence whether the engines of the Republic were stopped at all until the collision occurred, but if they were, it was at a point of time much later than that named by the pilot. It is true the pilot gave the signal to stop and back, and this signal was obeyed, but the engineer does not know how far off the Cleona was when he was signalled to stop and back, nor can he tell what period of time elapsed between the first ringing of the bell and the collision. He does tell, however, the important fact that the Republic, going up stream at the rate of twelve or fourteen miles an hour, can be stopped "dead" in seventy-five yards, and gives the reason why she can be stopped quicker than ordinary boats of her class navigating the Mississippi River.

In the light of this testimony, which must be accepted as true in the absence of any evidence to the contrary, plainly the pilot did not take the steps to check the speed of his boat when he says he did, nor, in fact, until the collision was inevitable.

There is evidence in the record tending to show that the pilot was addicted to drinking when ashore, and he confesses to drinking on that day, but not for six hours before he left port. It may be that he was not under the influence of liquor on this occasion, but if not, his conduct is inexplicable on any other theory than ignorance of the ordinary rules of navigation, or reckless inattention to duty. There were ample means and opportunity to avoid this collision, and yet it occurred. In the midst of danger seconds of time are important, not to speak of minutes, and the clear-headed pilot who recognizes this fact, and makes no ventures, is not apt to bring his boat into trouble. Practical steamboat men, passengers on board the Republic, understood the movement of the Cleona to be for the purpose of crossing the river, and yet the pilot in charge mistook it for sheering. They could see plainly enough if he kept his course the collision would have been avoided, and there was plenty of room to pass on the starboard, and he took exactly the opposite direction. With ability to stop his boat in seventy-five yards, he does not do it in two hundred and fifty yards. In charge of the wheel of one of the fastest and largest steamers on the river, and in plain sight, all the way from New Orleans, of a small coasting vessel engaged in landing freight and passengers at the plantations on both sides of the river, he runs her down with such violence as to cause her to careen over, without using any signals at all, or answering those she gave, or taking any precaution until too late to escape danger. If all this does not constitute mismanagement, to use no harsher word, it is difficult to understand what does. The slightest exercise of ordinary skill and prudence would have avoided the accident. Even after the peril was imminent, the simple act of bearing to the starboard, instead of the larboard, would have brought the Republic's stem clear of the Cleona's stern.

There are other witnesses for the respondents who, in the matters of distance and time particularly, differ with the pilot at the wheel, but we do not feel called upon to review their testimony, as it does not, in our judgment, change the result, and would unnecessarily lengthen this opinion.

It may be that this collision would have been avoided if there had been any proper officer in good season on the roof of the Republic superintending her navigation. The pilots seem to have had, on this occasion, the whole charge of her navigation, for the captain, whose watch it was, was sitting on the lower or boiler deck, talking to a passenger, until his attention was called to the danger of a collision.

Under the circumstances of this case, the burden is on the Republic to excuse herself, she being the following vessel, and having actually overtaken the Cleona and run her down. And in any case of collision, whenever it appears that one of the vessels has neglected the usual and proper measures of precaution, the burden is on her to show that the collision was not owing to her neglect.^[*]

If we are correct in our own interpretation of the evidence, enough has been said to condemn the Republic, and there is nothing in the record to excuse her.

As we have seen, she could have avoided this collision, even after danger was imminent. If she had stopped, or ported her wheel a second or two before the collision occurred, she would have gone clear of the Cleona. On the contrary the Cleona's course after she saw the Republic following her, was to try and get out of her way. This course she pursued diligently, for she packed on all the steam possible, and succeeded so far as to save her hull, and came near escaping altogether. On a full and fair consideration of the whole evidence, we are satisfied the officers of the Cleona, when the boat was turned to the right shore, had no ground to fear a collision, and that the boat itself was far enough ahead to cross with safety, if the Republic, instead of following after her, had pursued her course on the left side of the river. It is pretty clear that the Cleona did not blow her whistle for each boat to keep to the right, as soon as she started for the opposite shore. This omission was a fault, but this fault bears so little proportion to the many faults of the Republic, that we do not think, under the circumstances, the Cleona should share the consequences of this collision with the Republic.

DECREE of the Circuit Court REVERSED, and the cause remanded, with directions to enter a decree for the libellant and for further proceedings in conformity with this opinion.

REVERSAL AND REMAND ACCORDINGLY.

NOTES

[*] Whitridge et al. v. Dill et al., 23 Howard, 454.

[*] Meyer v. Steamboat Newport, opinion by Judge Blatchford, 14 Internal Revenue Record, 37; The Schooner Lion, 1 Sprague, 40.