THIS was an appeal in admiralty from the decree of the Circuit Court for the Southern District of New York, in a case of collision at sea,-the case being thus:
The owner of the schooner J. C. Wells filed a libel in admiralty in the Southern District of New York against the schooner Ann Caroline, to recover damages for a collision occurring on the eastern shore of the Delaware Bay. The two vessels were beating up the bay of a fine morning in February, 1854, in company with several other vessels, and were just now between 'Crow Shoal' and the Jersey shore, a passage in the bay where the channel is about a mile wide. The wind was N. N. W., a five or six knot breeze, 'a fullsail breeze,' the tide, flood, setting up the bay. The day being clear, nothing obstructed observation up and down the bay, except the transit of the various vessels across it. The Wells was closehauled on her larboard tack, which was a long tack from Crow Shoal to the Jersey shore. The Ann Caroline closehauled on her starboard tack on the opposite course from the Jersey shore to Crow Shoal. The Wells was heavily laden; the Ann Caroline in ballast. The two vessels had tacked at the Crow Shoal, upon the long tack, nearly at the same time; the Caroline at the time being to the leeward of the Wells and somewhat astern of her. The Ann Caroline ran out but one-half or two-thirds of her course when she suddenly came round on her starboard tack in consequence of a vessel ahead suddenly tacking and obstructing her course. While on this course she came in collision with the Wells, striking her on her starboard side, about ten or fifteen feet from her taffrail, opening her side so that she sank to the bottom of the channel in a few minutes, and was totally lost.
The main ground upon which the defence of the Ann Caroline rested was, that she was on the starboard or privileged tack, and that it was the duty of the Wells to give way and pass to her right. This rule of navigation was admitted on the other side; but it was insisted that it had no application to a case where the relative position of the two vessels was such as was here made out. It was contended for the owner of the Wells that she was to the windward of the Caroline, and ahead or above her in the channel, and that if this rule had been observed and the Wells had ported her helm, a collision would have been inevitable; that the change of course would have brought her head against the starboard side of the Caroline, and that a proper manoeuvre in the emergency was to starboard her helm, which she did, and which would have avoided the other vessel if she had not ported her helm at or about the same time, and so done that which caused her to strike the Wells on her starboard side, but a few feet from her stern.
One controlling question in the case therefore was, whether or not the Wells was to the windward, and so far above the course of the Ann Caroline, before the two vessels came together, as to forbid the application of the settled rule of navigation, that when two vessels are approaching each other on opposite tacks, both having the wind free, the one on the larboard tack shall give way and pass to the right.
The proof were voluminous, and the testimony of the master and hands on board the respective vessels as usual in this class of cases was contradictory-those of the Wells contending that the course of the Caroline was to the leeward and southerly of that of their vessel, while those on the Caroline insisted that her course was to the windward of the Wells. But, in addition to the witnesses on the two vessels themselves, it so happened that four other witnesses (masters and hands upon two other vessels engaged at the same time in beating up this channel, and who were on the same tack with the Wells, but to the leeward and a little to her stern,) witnessed the collision and the course of the vessels previous to the accident. These confirmed the testimony of the master and hands of the Wells as to the course and relative position of the two vessels. The Circuit Court accordingly made an interlocutory decree that the libellant recover 'the loss and damages by him sustained by reason of this collision;' and it was referred to a commissioner 'to ascertain the amount of such loss or damage.'
The commissioner reported that the damages sustained by the libellant were:
1. The loss of his vessel, the Wells, whose value he fixed at $5000 00
2. Interest from the day of the collision and loss to that of filing
the report, November 12, 1860,. 2362 50
This being excepted to, the Circuit Court recommitted the report. The commissioner now made a second report, in which, finding, as before, the value of the Wells to be $5000, he took another basis of damages and gave the libellant:
1. The value of the Ann Caroline, which was estimated by the
commissioner at...................... $3500 00
2. The freight pending on her cargo,.... 513 00
3. Interest on the freight and value of the Caroline to the date of
the second report, October 7, 1862,... 2431 43
It is necessary here to state that, after the marshal of the United States attached the Ann Caroline, her claimants and the owner of the Wells, by agreement, filed of record, fixed her value at $5000, and that stipulators entered into stipulations reciting the attachment, value fixed, 'as appears from said consent, now on file in said court;' and 'agreeing that, in case of default or contumacy on the part of the claimants or their sureties, execution for the above amount may issue against their goods, chattels, and lands:' on which the vessel was discharged. A stipulation was also filed for costs, to the extent, however, of but $250.
The Circuit Court entered a decree on the basis of the second report. The decree
ORDERED, that the libellants recover against the schooner Ann Caroline and claimants (the sum awarded by the commissioner), $6444 43
With interest from the date of the commissioner's report, 26 31-$6470 74
Together with their taxed costs, 731 77
In all, $7102 51
And that 'a summary judgment be, and the same is hereby entered, for the amount aforesaid against the stipulators, &c.;' and, unless an appeal was entered, that execution issue against the claimants and them.
From this decree both parties appealed. The libellant objecting because, as he said, the damages allowed were less than he was entitled to recover, the Ann Caroline having been valued by the commissioner but at $3500, instead of at $5000, as it ought to have been, that having been the value agreed on by the claimants themselves. And the claimants objecting because, as they said, the Wells was in fault and nothing was due; or if she was not, and anything was due, it could not possibly exceed $5000, the amount fixed by consent as the value of the Ann Caroline; and for which sum, and no greater, the stipulators had agreed to be contingently bound. The libellants asserted, moreover, that the first report of the commissioner, which gave them the value of their own vessel, the Wells-which, by the fault of the claimants' vessel, had been sunk-and interest from the date of that loss, was the true rule.
Mr. Benedict for the libellants; Mr. Donohue, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.