The Oregon

by Henry Billings Brown

United States Supreme Court

158 U.S. 186

The Oregon

The suit was originally instituted December 31, 1889, by the filing of a libel in admiralty by John Simpson, master of the British ship Clan Mackenzie, against the steamer Oregon, to recover damages for a collision between the two vessels, which occurred December 27th, in the Columbia river, about a mile above a point in the river known as 'Coffin Rock Light,' and resulted in the sinking of the Clan Mackenzie, and the loss of two of her crew. The libel charged the Oregon with fault in not having a proper lookout or a competent pilot, and in failing to keep out of the way of the Clan Mackenzie, which was then at anchor.

Upon the Oregon being arrested, a claim to her was interposed by the Oregon short Line & Utah Northern Railway Company, and a stipulation given in the sum of $260,000 to answer the libel. Subsequently, intervening petitions were filed by James Laidlaw, administrator of the estates of the two seamen of the ship who were killed in the collision, by John Simpson and his wife individually, and by 18 others of the crew of the Clan Mackenzie, for the loss of their property, clothing, and effects in the sinking of the ship. Copies of these petitions were served upon the claimant, but no warrant of arrest was issued, and no separate stipulation was given to answer the interveners' demands.

James Joseph, another of the crew, also intervened, alleging that he had been seriously injured by the collision, and asking damages therefor. Exceptions to these petitions were filed, denying the right to intervene after the vessel had been discharged from arrest. These exceptions were overruled, and the claimant ordered to answer. Answers were accordingly filed.

Subsequently, and on April 5, 1890, the Oregon Short Line & Utah Northern Railway Company, charterer of the Oregon, filed a cross libel against the Clan Mackenzie, charging that the collision occurred through the fault of the latter, in failing to display a proper anchor light, to keep a proper anchor watch, or to call the steamer's attention by shouting, ringing the ship's bell, or showing a lantern or torch, as required by Rev. St. § 4234. A stipulation was given in the sum of $50,000 to answer this cross libel, and the cases came on to a hearing in the district court upon libel and cross libel.

The district court found the Oregon to have been in fault for excessive speed, for want of a proper lookout and of an officer on deck, and for the engligence of her pilot in mistaking the anchor light of the Clan Mackenzie for that of Coffin Rock, and for not keeping further out in the channel of the river. The district court also found the Clan Mackenzie to have been in fault for the want of a proper lookout, for failure to ring her bell, and for the omission to exhibit a torch. The case was adjudged to be one of mutual fault, and a decree was entered dividing the damages. The intervening petitions were held to have been properly filed, and one-half of their claims was ordered to be paid by the Oregon, and the other half out of the money found to be due to the Clan Mackenzie. 45 Fed. 62. From this decree both parties appealed to the circuit court, which affirmed the decree of the district court, and made the finding of facts printed in the margin. ^[1]

C. E. S. Wood, for Simpson, master.

Artemas H. Holmes, John F. Dillon, and J. M. Wilson, for the Oregon.

William A. Maury, for interveners.

Mr. Justice BROWN, after stating the facts in the foregi ng language, delivered the opinion of the court.

Notes

1. Finding of Facts.

First. That the Clan Mackenzie is a British vessel, of twenty-five hundred tons burden, built of iron, two hundred and fifty-nine feet in length, thirty-eight feet beam, and twenty-three feet in the hold, and was early in the forenoon of December 26, 1889, at Astoria, Or., bound for Portland from Rio Janeiro, in ballast, and in two of the steamboat Ocklahama, of which one Henry Empkins was master and pilot.

Second That about eight o'clock in the evening of said day said vessel came to anchor on the Oregon side of the Columbia river in five fathoms of water, at three feet flood tide, and about nine hundred feet distant from and a little below a dock and woodyard for steamboats called 'Neer City'; also, about three-fourths of a mile below Goble's Point and a mile above Coffin Rock.

Third. That immediately below said Coffin Rock, and a short distance inside of it, on the face of a wooded promontory, and at a height of about thirty feet from the water, there is and was at said time maintained a government light, described as a tubular-lens lantern of a one hundred candle power, with a radiating power of four miles, and easily visible on a dark, clear night from three to four miles.

Fourth. That said steamboat Ocklahama was owned at said date by the Oregon Railway & Navigation Company, but was in possession and control of said Oregon Short Line & Utah Northern Railway Company, under a lease from said Oregon Railway & Navigation Company, and that said Henry Empkins, as master and pilot, was the agent of the said Oregon Short Line & Utah Northern Railway Company.

Fifth. That said pilot anchored the Clan Mackenzie on the edge of the ship channel, which at that point is nearly half a mile wide at the mean of the lowest low waters, and well out of the usual track of the ocean steamers that ply between Portland and San Francisco, and also back and out of the range of said Coffin Rock light.

Sixth. That, under the direction of said pilot, there was placed in the fore rigging of said Clan Mackenzie on the starboard side, midway between the foremast and the shrouds, between twenty and twenty-five feet above the deck, and thirty-five to forty feet above the water, an anchor light, which was a white light in a copper lantern with a globular corrugated lens over eight inches in diameter, and that the material used in it was equal to the best coal oil, and it would burn eight hours without trimming; that it was easily visible on a dark, clear night a mile away, and was kept in place and burning brightly from ten o'clock p. m. of said December 26th up to and at the moment of the collision hereinafter mentioned.

Seventh. That said pilot then proceeded with said Ocklahama to the dock of the woodyard at said Neer City, where said steamboat was tied up for the night.

Eighth. That said Clan Mackenzie was well and properly anchored, and that the light hung in the rigging thereof was properly hung, and was in all respects a good and sufficient anchor light.

Ninth. That about nine o'clock in the evening of said December 26, 1889, the Oregon, an iron steamship of about one thousand tons burden and three hundred feet in length, and being operated by said Oregon Short Line & Utah Northern Railway Company under the lease from the Oregon Railway & Navigation Company, as owner thereof, left Portland, Or., for San Francisco, Cal., with a cargo of freight and passengers, under the charge of a pilot, and drawing between sixteen and seventeen feet of water, and having a proper mast light and said lights burning.

Tenth. That the night of said December 26, 1889, was dark and clear, the weather calm, with some clouds in the sky. A few stars were visible, and, according to the calendar, the moon set at 9.42 p. m.

Eleventh. That during the passage of the Oregon down the Columbia river, and up to the time of the collision, the pilot thereof was on the center of the bridge just abaft and above the pilot house, and there was a man at the wheel and another forward on the forecastle head acting as a lookout. The steersman and lookout came on duty at twelve o'clock, and besides these no person connected with the vessel was on duty on deck from that time to the collision.

Twelfth. That near one o'clock, and a mile or more above Goble's Point, and opposite the railway ferry landing, the anchor light of the Clan Mackenzie and the Coffin Rock light might both have been seen from the ship's channel in the Columbia river, and there the pilot of the Org on saw one light which he took for said Coffin Rock light.

Thirteenth. That from this point the Oregon followed the bend of the river to the westward for nearly a half mile, until both lights were shut out by Goble's Point, and in the course of the next half mile she came back to the northward, so that by the time she was abreast of the foot of Sand Island, and just above Goble's Point, if she had been in mid-channel, both lights would have been plainly visible from her deck, though somewhat in line, the light of the Clan Mackenzie being the further in shore; but the Oregon, instead of being in mid-channel, hugged the shore in the bend above Goble's Point, and came abreast of said point on the south side of the channel, when the pilot saw a light, which he supposed to be Coffin Rock light, and headed for it, giving the steersman the course northwest by north, which was held to the moment of the collision, while the general

direction of the ship channel from abreast of said Goble's Point to below Coffin Rock light is north-northwest.

Fourteenth. That the light which the pilot saw both above, at, and below Goble's Point, and which he mistook for the Coffin Rock light, was in fact the anchor light of the Clan Mackenzie, but that the Coffin Rock light was burning brightly during all said times, and should have been visible from the deck of the Oregon.

Fifteenth. That during said time, and up to the moment of the collision, the Oregon was going through the water at the rate of twelve miles an hour, and about fifteen miles past the land.

Sixteenth. That the Oregon arrived within three hundred feet of the Clan Mackenzie when the pilot and lookout of the Oregon simultaneously discovered the Clan Mackenzie, and the helm of the Oregon was immediately put to port.

Seventeenth. That the course of the Oregon was not changed in time to avoid a collision, and she struck the Clan Mackenzie in a direction slightly diagonal to her keel, between the port cathead and the stem, and cut into her for a distance of about thirty feet.

Eighteenth. That from the deck of the Oregon the outline of the shore from Goble's Point to Coffin Rock was easily distinguishable, and the light of the Clan Mackenzie should have been seen and distinguished for at least a quarter of a mile.

Nineteenth. That it was and is the custom of vessels being towed from Astoria to Portland to anchor for the whole or part of a night in the Columbia river, which fact should have been known to the persons in charge of the Oregon, and they should have kept a good lookout for such vessels in order to avoid a collision.

Twentieth. That said collision was caused primarily by the fault of the Oregon, in that she was being run at too high a rate of speed; that she did not have a proper lookout on the bow; that she should have had at least one officer on deck to oversee said lookout; and that her pilot was negligent or incompetent in mistaking the anchor light of the Clan Mackenzie for that of Coffin Rock light, and in not keeping well out into the channel of the river before rounding Goble's Point, so as to bring the Coffin Rock light plainly in view before giving the steersman the course, and also in standing continuously at the middle of the bridge over and above the light in the pilot house, instead of moving back and forth thereon.

Twenty-first. That there was a watch on board the Clan Mackenzie, who had instructions from the master to keep a good lookout and ring the bell if the weather became thick or foggy, and that said watch saw the light of the Oregon when about three-fourths of a mile away, and her hull when at a distance of about one-fourth of a mile, when he perceived that she was

heading directly for the Clan Mackenzie, and commenced shouting and continued to do so until just before the collision, but he did not ring the bell. The weather was not thick or foggy.

Twenty-second. That said Clan Mackenzie was not provided with a torchlight to be shown on the approach of danger, and none was shown at the time the Oregon was approaching.

I further find from the evidence now introduced in connection with that introduced in the district court that it is not customary when a ship is at anchor in a harbor, river, or channel, as in this case, with her anchor light burning brightly, and the night is clear and without fog, to show a torch or a flash light or ring a bell on the approach of a steamer, and that, if a torch or flash light is not already prepared and at hand and ready for use, it would take five minutes to obtain one from the place where they are usually kept and light it.

Twenty-third. That said Clan Mackenzie, being a foreign vessel, was not required, under section forty-two hundred and thirty-four of the Revised Statutes, to burn a torch on the approach of the Oregon; and it was not the custom on the Columbia river to do so, or to ring a bell in a clear night under like circumstances, but the liability to a collision would have been greatly diminished had either been done in time.