This case arose out of a collision off the Jersey shore, south of Sandy Hook, on the evening of the ninth of February, 1863, between two steam-ships, the Ella Warley, bound from New York to New Orleans, and the North Star, bound from Key West to New York. The former was struck about midships, and was sunk and lost; and the North Star was considerably damaged. The owners of the Ella Warley libeled the North Star, and the owners of the latter filed a cross-libel in personam against the owners of the Ella Warley. The suits were tried together, and the district court held the Ella Warley alone in fault, and rendered a decree accordingly. The circuit court held both vessels in fault, and rendered a decree in favor of the owners of the Ella Warley for so much of their damage as exceeded one-half of the aggregate damage sustained by both vessels. This was the proper decree to make if the conclusion reached, as to both vessels being in fault, was correct, unless the question arising on the limited-liability act, hereafter discussed, required a different decree. Each vessel being liable for half the damage done to both, if one suffered more than the other, the difference should be equally divided, and the one which suffered least should be decreed to pay one-half of such difference to the one which suffered most, so as to equalize the burden.
Since both of the courts below held the Ella Warley to be in fault, we would not disturb this decision without preponderating evidence to the contrary; and such evidence we do not find. On the contrary, we think that the whole evidence taken together sustains the conclusions reached.
The vessels were approaching each other in contrary directions, nearly head on, one going down the coast, the other coming up, and saw each other's mast-head lights when eight or ten miles apart. The Ella Warley, instead of porting her helm according to the rule, starboarded it in order to pass outside. This was evidently the first cause of the disaster; for, as the North Star obeyed the rule, it brought the vessels directly together. It is also obvious that the persons in charge of the Ella Warley did not keep a sufficient lookout, for they allege that they only saw the green light of the North Star until the instant before the collision; while it is demonstrable, both from the diagram produced on the part of the Ella Warley, and from the courses which the two vessels must have pursued, that after they were near enough to discern their respective side lights, the red light of the North Star was exposed to the view of the Ella Warley during the entire approach, and must have been seen by her men if they had exercised the least diligence. One of the grounds of complaint against the North Star is that her lights were not properly screened, and could be seen across her bow. This only makes it the more certain that, from the relative position of the vessels, her red light must have been visible. It is impossible that it was hidden from view up to the time immediately preceding the collision.
As to the question whether the North Star was also in fault we agree with the circuit court that she was. The rules of navigation in force at the time required that the side lights of steamers navigating the sea, bays, etc., should be fitted with in-board screens of at least six feet in length, (clear of the lantern,) to prevent them from being seen across the bow, and to be placed in a fore-and-aft line with the inner edge of the side lights, and in contact therewith. 1 Pars. M. Law, 679, (Ed. 1859.) In flat defiance of this rule the screens of the North Star did not project two inches forward of the bull's-eye of the lights, so that the lights could be seen two or three points across the bow. This was undoubtedly one reason why the green light of the North Star caught the eye of the mate and others on board of the Ella Warley so readily as it did, and, indeed, goes to some extent to mitigate their negligence in not discerning the red light. This was clearly a fault on the part of the North Star, and one that probably contributed to the accident. We think, therefore, that both parties were in fault.