The District Court decreed in favor of the libellants in the sum of seventeen hundred dollars, and of Charles Ogden, the master of the schooner the additional sum of $173 and costs.
On an appeal to the Circuit Court, additional evidence was offered, and the decree of the District Court was reversed and the libel dismissed.
The libellants appealed to this court.
It was argued by Mr. Addison and Mr. Battee for the appellants, and by Mr. Schley for the appellee.
The points made by the counsel for the appellants were the following:
1. That it is the right and duty of sailing vessels, when meeting steamers, to hold their course, and of steamers, to give way to them.
St. John v. Paine, 10 Howard, 583.
Steamer Oregon v. Roca, 18 Howard, 572.
2. That the schooner, from the time the steamer hove in sight until a moment or two before the collision, steadily held her course. The answers of the defendants, the evidence of the witnesses for the defence, and the evidence for the libellants, all concur in this; and there is not a witness who alleges the contrary. And this must be taken as a fact in the cause, admitted by the defendants, proved by the defendants, and proved by the plaintiffs.
3. That it was the right of the schooner to change her course, when her continuing to hold it would have caused her to have been run down.
New York and Liverpool U.S. Mail Steamship Company v. Rumball, 21 Howard, 372.
4. That if the danger of being run down was imminent, and the schooner made a false manoeuvre, when a right one would have saved her, even then the steamer is responsible; for she ought not needlessly to have run so close to the schooner as to have excited such well-founded apprehensions of danger as to have disturbed the judgment of those in charge of her.
The Genesee Chief, 12 Howard, 44.
5. That the account of the disaster set up in the answer, and given by Captain Russell and second mate Ward, is incredible, because it is impossible it can be correct.
For if the parallels on which the vessels were running were 150, or 200, or 300 yards asunder, and the schooner changed her course at the distance of 100 or 150 yards from the point at which they would have passed each other, if there had been no change of course, the schooner could not have crossed the steamer's bows, as the steamer's speed was twice that of the schooner.
6. That although Captain Russell and second mate Ward testify to the events immediately preceding the collision, it is very clear:
First. That Capt. Russell did not see the schooner after she got within three or four miles of the steamer, until the schooner's course had been changed-that is, for nine or twelve minutes before such change.
Second. That the second mate Ward's attention was directed to and absorbed in the changing of the course of the steamer when the schooner changed her course.
7. That the schooner, in attempting to avoid the steamer, turned to the right, and thus conformed to the rule of navigation established and promulgated by the Supreme Court in the case of the steamer Oregon et al. v. Roca et al., 18 Howard, 572, where this language is employed: 'The rule adopted by the Trinity masters, and sanctioned by this court, is the safe one: that when two vessels on opposite tacks are approaching each other, each should turn to the right, passing each other on the larboard side. This rule is too simple to be misunderstood, and if observed, collisions would not occur between moving boats, whether propelled by sail or steam. The rule once established, every deviation from it should be chargeable as a fault.'
The Friends, 1 W. Robinson, 479.
Steamer Oregon v. Roca et al., 18 Howard, 572.
8. That the steamer violated said rule by turning to the left, and thereby caused the collision.
9. That there was not on the steamer 'a trustworthy and constant lookout,' 'whose whole business was to discern vessels ahead or approaching, so as to give the earliest notice to those in charge of the navigation of the vessel;' and that the omission is prima facie evidence that the steamer is in fault.
Steamboat New York et al. v. Rea et al., 18 Howard, 225.
Genesee Chief, 12 Howard, 449.
Chamberlain v. Ward, 21 Howard, 548.
10 Howard, 585.
