The Gray Eagle
APPEAL from the Circuit Court for the District of Wisconsin.
The owners of the schooner Perseverance filed a libel in the District Court of Wisconsin against the schooner Gray Eagle, for a collision in which their vessel had been sunk. The collision occurred in the Straits of Mackinaw, soon after midnight of the 23d of November, 1864, the night not having been a dark one; not so dark at least as that the sails of vessels could not be seen for near a quarter of a mile. The Perseverance had lost her lights in a storm, and was sailing with a white light, contrary to the rules prescribed by the act of Congress, 'fixing certain rules and regulations for preventing collisions on the water,' approved April 29th, 1864, and which made it her duty to carry a green light on her starboard side, and a red one on her larboard, 'and no others' anywhere. She was sailing down the strait on a course E. by S., with the wind south, and discovered the lights of the Gray Eagle about a mile ahead, coming up the strait, on a course of about W. N. W.  The witnesses differed a little as to these points, but this was according to the weight of the testimony. The libel alleged, and the evidence of all the libellant's witnesses corresponded with its statements, that when the Gray Eagle was first seen, or soon afterwards, she showed a red light; but that this soon disappeared; after which she showed a green light until near the moment of the collision, when she again showed her red light. The libellants asserted that they had a right to suppose that the Gray Eagle would pass on the starboard of the Perseverance; but that shortly before the disaster she kept away, and, although the master of the latter called on her to luff several times, in a loud voice, and at the same time ordered his own man at the wheel to put the wheel hard a-starboard, the Gray Eagle made no reply, but kept on her course, and in less than two minutes struck the Perseverance stem on, abreast the starboard quarter, with such force as to sink her in about two minutes, the master and crew with difficulty saving their lives.
The defence set up by the answer for the Gray Eagle was, chiefly,
DISMISSED FOR WANT OF JURISDICTION.
1st. That the other vessel was sailing without the regulation lights and in violation of the act of Congress.
2d. That at a certain place in the bay mentioned 'a white light was seen about a mile distant, bearing about a point on the Gray Eagle's port bow, which was supposed to be a light on shore, or upon a vessel at anchor; that the Gray Eagle was then kept away about a point and steadied on her course to give berth to the light; that the light was not discovered to be a vessel's light in motion by the commanding officer until the Perseverance got within about three lengths of the Gray Eagle, the said light being then nearly ahead and to windward; that the light was then supposed to be the binnacle light of a vessel that had hauled up all she could to pass the Gray Eagle to windward; that the mate, not seeing any other light, ordered the helm hard a-port, so as to pass on the port side and keep off and clear the stern of the vessel, and stepped to windward of his vessel, and then heard for the first time a cry from the other vessel to port the helm hard down, but that it was too late, and that the vessels were right together.'
It seemed from the evidence that the light on the Perseverance was not reported to the mate in charge of the Gray Eagle till near the moment of collision. The mate testified that as soon as he saw it he ordered the 'wheel up;' a wrong order. The men who had been watching the light cried out, 'hard down;' a right order, but not the one obeyed.
The District Court dismissed the libel, principally on the ground that the Perseverance, having lost her lights, ought to have lain by at anchor in the night time, and was expressly prohibited from sailing with a white light. The Circuit Court reversed this decision, and decreed that both vessels were in fault, and that the damages should be divided between them. From this decree the owners of the Gray Eagle appealed.
Messrs. Emmons and Vandyke, for the appellants:
Conceding that the Perseverance lost her regulation lights by a vis major, there was no compulsory necessity for her to have been under way in the night, in a narrow strait. She ought to, and could have lain at anchor. If she must, or chose to run, she should have hooded her light, and kept out of the way of all other vessels.
She was guilty of premeditated wrongdoing, of violating positive law, in carrying a light which she had no right to carry, and in not carrying those which, if she insisted on sailing at night, she was bound to have. This was the primal and proximate cause of the disaster. She criminally kept her way and course, displaying a lying signal, and when a collision has happened-as collision could hardly else than happen-she, then contemptuously putting aside, as of no importance, what it was that her white light indicated and declared to the other vessel, demands damages from that other vessel; a vessel itself in the observance of every requirement and which she has recklessly misled. This cannot be done.  A party himself in fault cannot recover from any one.
No fault is shown on the part of the Gray Eagle. The vessels were running on nearly parallel courses. The light thus approaching in so nearly a direct line, there was nothing to indicate that it was in motion, and the Gray Eagle supposing it to be a light on shore, or a vessel at anchor, kept away about a point, and steadied on her course. It was not discovered to be the light of a vessel in motion, until they were close aboard one another. The fact that this discovery was not made is indisputable. The Gray Eagle cannot be held responsible for what may afterwards prove to have been an error or mistake in orders given in a moment of peril and danger, and when the collision had become inevitable or imminent, nor for mistakes originating in or proceeding from the fault of the other vessel.
Messrs. Willey and Carey, contra:
The fact that the Perseverance, owing to the misfortune of having lost her regulation lights, had a light prohibited to vessels while sailing, did not of itself absolve the Gray Eagle from the observance of that degree of caution, care, and nautical skill, which the exigencies of the case required. If a white light usually represented a vessel at anchor, the officers and seamen of the Gray Eagle had no right to conclude that it always did. It was their duty, from the moment the light was seen, to have watched it carefully, in order to ascertain from its bearings, whether the vessel was in motion or at anchor. And if, in the exercise of ordinary nautical skill and care, this could have been done, and was omitted, and this omission contributed to the accident, then the Gray Eagle must share the burdens of the loss, although the Perseverance was in fault in running with a prohibited light.
Now the courses of the vessels at first were obviously converging courses. The Perseverance held her course of E. by S., closehauled, until the very instant of collision, as was her duty.
The Gray Eagle on discovering our light, a mile distant, made it about a point over her larboard bow. She then ported about a point, to go to the right, or to the starboard of our light. Her course was thus made N. W. by W., one point higher up than her first course of W. N. W. Now if the light had been stationary, after the Gray Eagle had laid her course so as to avoid it, it would have continued to bear over the larboard bow of the Gray Eagle, increasing in its bearings as the light was approached; and this they must have known would be the fact. But as our vessel advanced, the Gray Eagle would have to be constantly changing her course to hold our light on her larboard. In point of fact, as the result showed and as must necessarily have been the fact, our light must have got over on theirs starboard bow, by the advance of our vessel, and constantly increased in its bearings off the starboard bow of the Gray Eagle, as our vessel advanced, which they must have known could not be if the light was stationary. All this, with the least watching of the light after the first observation had been made, would have admonished the Gray Eagle that our light was moving, and that as she (the Gray Eagle) had the wind free and on the larboard side, it was her duty to avoid our vessel, which had the wind on her starboard side. And she would have discovered this in ample time to have done so, if she had given any attention to the movements of our light.
Mr. Justice BRADLEY delivered the opinion of the court.
^1 A diagram on page 509 may, perhaps, assist the non-nautical reader in understanding the statement.-REP.
^2 Waring v. Clarke, 5 Howard, 465.
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