
    Catharine Thrush et al., owners of the schooner Flight, v. The United States.
    
      On the Proofs.
    
    
      The schooner Flight is going down the Potomac to Norfolk in the night time, the-steamer Tallapoosa up Chesapeake Bay to Washington. The steamer has a lookout, and sights the Plight five miles away, hut proceeds without materially changing her course. The schooner, xohen east of Smith’s Point light, a position where vessels hound down the Potomae change their course to go down the hay, jibes, changing her course to south, and immediately runs into the Tallapoosa, striking her forward of her starboard paddle-box. The schooner is lost by the collision. Congress refer the claim to this court.
    
    I.A sailing-vessel bound down tlie Potomae for Norfolk is entitled to. eliange lier course to sontli when east of Smith's Point light, so as to proceed down Chesapeake Bay; and a steamer coming np the bay is bound to take notice of that fact, and keep out of her way.
    II.When a steamer is partially disabled, she should exercise increased vigilance to keep out of the way of sailing-vessels.
    III.The fact that a sailing-vessel bound down Chesaxjoake Bay in the nighttime has no man on the lookont may be a fault conducing to a collision with a steamer; but if the steamer be much more in fault, the loss will not be apportioned.
    
      The Reporters statement of tbe case:
    Tbe following are tbe facts as found by tbe court:
    I. At tbe time of tbe collision hereinafter found, tbe claimants were the owners, each of one-half, of the schooner Flight,, of 65.84 tons burden, enrolled in tbe port of Baltimore, Md., and. of tbe value of $3,500.
    II. On tbe 6tb of October, L873, tbe Flight sailed from the-port of Georgetown, D. C., bound for Norfolk, Va., being in-command of the claimant, William B. Stone; and, besides him,, she bad a crew of a mate and two mariners; and she bad a cargo consisting of 1,700 empty barrels, owned by Horace Jarboe, of said Georgetown, and of the value of $450.
    III. Between half past three and four o’clock on tbe morning;of the 8th of said October, it being a very clear starlight night, the Flight was sailing down the Potomac River, on a southeasterly course, before a fresh breeze from the north, with her main booni over the starboard quarter. Her mate and one of the mariners were on deck, and the lights which the law required her to carry were set and burning, namely, a green light in her starboard' fore-rigging and a red light in her port fore-rigging. As she neared the mouth of the river the mate called the captain and the other mariner to the deck, informing the captain that the vessel was out of the river, and would have to take her course down the bay. The captain aud the other mariner came on deck, when the former immediately took the wheel and ordered the foresail to be taken in, which was done by the mate and the two mariners, and the sail was tied up. He then changed the course of the Flight to south when she was about abreast and due east of the Smith’s Point light, which was the proper jdace for a vessel coining out of the Potomac and bound for Norfolk to make that change in her course. This change in the Flight’s course made it necessary to jibe her mainsail. Her captain had the mainsail peak dropped, and one of the men was in the act of hauling in the main-sheet to jibe the sail, when, for the first time, a steamer was seen ahead. The captain discovered her and cried “ Hold on, there is a steamer ahead,” and almost immediately thereafter the schooner collided with the United States side-wheel steamer Tallapoosa, striking the Tallapoosa, head on, forward of her starboard paddle-box, by which collision the Flight was immediately sunk and totally lost, with everything on board of her, the officers and crew escaping to the Tallapoosa with nothing but the clothes they had on. The collision occurred about half a mile east of the Smith’s Point light.
    IY. On the said morning the said steamer Tallapoosa was . steaming up Chesapeake Bay from Norfolk bound to Washington, having a lookout stationed and her lights set and burning bright. A pilot was at her wheel, and her captain was in the wheel-house with him, and an officer of the deck was on duty. Owing to a defect in her boilers, which prevented her carrying a full head of steam, her speed was only about three miles and a half an hour, when with sound boilers it would ordinarily be ten. Her course up the bay was north by east un- ' til she came nearly abreast of Smith’s Point ’ light, when she changed her course to about north-northwest, for the purpose of entering tke Potomac River; wbieb last named course was the proper one for her to take for that purpose. At the time of this change of course she was about two miles distant from Smith’s Point light and about five miles distant from the nearest land due east of her. At ten minutes before four o’clock the officers of the Tallapoosa discovered the Flight one point off the Tallapoosa’s starboard bow about five miles distant, and they continued to see her until the collision occurred between her and the Flight, which was at twenty minutes after four o’clock.
    From the time they sighted the Flight until immediately before the collision, when the vessels were so near to each other that a collision was inevitable, the Tallapoosa’s course was not changed, or, if changed, it was only from north-northwest to northwest, nor was her speed slackened nor her steam-whistle blown. Between the time when the Tallapoosa’s officers sighted the Flight and the point of time immediately preceding the collision, the Flight’s green light was seen by the officers of the Tallapoosa, but her red light was not seen by them until the Flight changed her course to south, immediately before the collision. During that interval of time the Flight was still off the Tallapoosa’s starboard bow, and was sailing a southeast or southeast a half south course, at a speed of about seven-miles an hour. When the vessels were abreast of the Smith’s-Point light, about where all vessels descending the Potomac and bound for Norfolk change their coursefrom a southeasterly one to due south, as was well known to the officers of the Tal-lapoosa, the Flight made that' change in her course, and when she was in the act of jibing her .mainsail, her captain at the wheel sighted the Tallapoosa for .the first time, but too late to avoid a collision. Immediately on discovering that the Flight had changed her course to south, the captain of the Tallapoosa put her helm astarboard; and when he saw that the Flight was going to strike his ship, he stopped her engines. The sound was not out of the bell that was rung to stop the engines' when the collision occurred. The time that elapsed between the discovery by the Tallapoosa’s officers of the Flight’s change of course to south and the collision was about three minutes. When the officers of the Tallapoosa made that discovery, the two vessel’s were about three hundred yapeds apart.
    V". Clothing of William B. Stone, jr., of the value of $2.5, was lost in the Flight.
    
      
      Mr. James W. Denny (with, whom was Mr. James Fullerton) for'tbe claimants:
    An examination of tbe authorities shows that courts lay hold of any incident or facts in collision cases between steamers and sailing-vessels to charge the steamer. (Sampsons Case, 12 0. 01s. R. 489; The Colorado, 1 Otto, 692; New York & Liverpool v. Bumball, 21 How., 383.)
    “ The possibility of collision is all that is required to charge the steamer, unless she can establish she was without fault.” (The Fannie, 11 Wall., 238; The Stetson, 4 Bened., 508; The Yielcs-burg, 7 Blatch., 216; Whitney v. Empire State, 1 Bened., 57; Walcefleld v. Steamer Governor, 1 Olif., 93.)
    The respondent cannot allege surprise. The suggestion that 'the schooner might have avoided the danger by continuing out into the bay, and thus out of her course (1 Olif., 96), is entitled to no weight. The accident occurring on a bright starlight morning, with the moon shining, where there was an abundance of sea-room, with no obstructions to navigation, makes this clearly a case where the rule applies which requires the sail-vessel to keep her course. No whistle or signal was given. (The Johnson, 9 Wall., 146; The Falcon, 19 Wall., 75; Dyer v. National SteamNav. Co., 3 Bened., 173; The Herman, 4 Blatch., 440; The City of Paris, 9 Wall., 634.
    
      Bule 20 of the Revised Statutes of the United States, on page ■823, title 48, chapter 5, section on navigation, says: “If two vessels, one of which is a sail vessel and the other a steam, are proceeding in such directions as to involve risk of collision, the s'team-vessel shall keep out of the way of the sail-vessel.
    The vessel which has the privilege of keeping her course has the right to presume the other will steer clear of her. (The Niagara, 3 Blatch., 37; The Catharine v. Martha, 11 N. Y. Leg. Obs., 225; The Empire State, 12 N. Y. Leg. Obs., 259.)
    A vessel lost by collision is to be paid for at her value when lost, and, in case of a total loss, the measure of damages is her fell value and that of her freight. United States v. Ciarle, 6 Otto, 37; Alien v. Machy, 1 Sprague 219; TheBebeeea, 1 Bl. & H., 347; Sampson's Case, 12 0. 01s. R., 489.)
    An approaching steamer, supposed to have command of her movements, takes upon herself the peril of determining whether a safe passage on or across the course of a sail-vessel is open to her, and must always bear tbe peril of xnisjudgment. {Dyer v. N. 8. Nav. Go., SEened., 173; Reed- v. N. S. & N. T. R. R. Go., 18 How., 482.)
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    That a plaintiff in a cause of collision must prove both care on his part and want of it in the defendant is a well-established principle. (1 Pars, on Shipp, and Admr., 529.) In the case of the Ann Caroline (2 Wall., 546), Clifford, J., says: “The vessel of claimant was also in fault, because she had no lookout, and the evidence tends strongly to the conclusion that the disaster is mainly attributable to that cause.” In the case of WMtrklge v. Dill (23 How., 452) Clifford, J., says: “ They (the witnesses) all agree that the vessel of the libellants was not seen by any one on board their vessél until she was so near that all efforts on their part to prevent a collision were unavailing (p. 453). The testimony of the respondents shows conclusively that their vessel had no sufficient lookout at the time of the collision. * * * From these facts it necessarily follows that the vessel of the respondents was in fault.”
    In the case of the schooner Catharine et al. v. Dielánson et al. (17 How., 177), Nelson, J., says: “As to the Catharine, we are not satisfied that she had a proper lookout on the vessel at the time of the collision. Under such circumstances, a competent lookout stationed upon a quarter of the vessel affording the best opportunity to see at a distance those meeting her is indispensable to safe navigation, and the neglect is chargeable as a fault in the navigation.” (See Pars, on Shipp, and Admr. 577, and cases cited in note 1.)
    But this is not a case where, if there had been a lookout, it would have been possible for the Flight to get out of the way. It is a case of the Flight changing her course and turning suddenly into the Tallapoosa and rendering collision inevitable.
    Captain McBitchie’s lights were burning brightly. He had a right to assume that there was a lookout on the Flight, and to assume that the Flight would keep her course. (The steamer Oregon, 18 How., 570; The Osprey, 1 Sprague, 245.) The ruléis that the sailing-vessel must keep on her course and the steamer-must avoid her. (Pars., 570, and cases cited in note 1.)
    
      It seems clear that the collision resulted from the negligence of the Flight, and that no fault or want of care is imputable to the Tallapoosa.
   Drake, Ch. J.,

delivered the opinion of the court:

The case is so similar to that of The Carroll (8 Wall., 302) that we cannot do better than apply to it the principle and rules there laid down, as follows:

“Where a steamship and sailing-vessel are approaching from opposite directions or on intersecting lines, the steamship, from the moment the sailing-vessel is seen, shall watch with the highest diligence her course and movements, so as to be able to adopt such timely measures of precaution as will necessarily prevent the two boats coming into contact.
“Porting the helm a point-when the light on the schooner was first observed, and then waiting until a collision was imminent before doing anything further, does not satisfy the requirements of the law. The safeguards against danger, in order to be effective, must be seasonably employed.
“If there was fault on the part of the schooner, the steamer committed a far greater fault in suffering the vessels to get in such dangerous proximity, and, as she has furnished no excuse for this misconduct, is chargeable with all the damages resulting from this collision.”

Controlled by these views, this case seems to us to turn upon a few leading facts:

1. The Flight was entitled to change her course to south at the place where she did change it.

2. The officers of the Tallapoosa well knew that vessels descending the Potomac and bound for Norfolk change their course there to south to go down the bay.

3. The officers of the Tallapoosa saw the Flight for thirty minutes before the collision.

4. The Flight did not see the Tallapoosa till three minutes before the collision.

5. For miles to the eastward of the Tallapoosa, from the time she sighted the Flight, there was clear water.

Under these circumstances it was the plain duty of the Talla-poosa to keep out of the way of the Flight, as it was perfectly in her power to. have done, by porting her helm and passing entirely east of the place where the Flight, as the Tallapoosa’s officers well knew, would in all probability turn south. To neglect this manifest precaution, which would probably have cost only a few minutes of time, was a grave fault on tbe part of the Tallapoosa.

This fault was the more serious because of the partially disabled condition of the Tallapoosa. She was making only three miles and a half an hour, instead of her ordinary speed of ten miles an hour. It would seem to be quite clear that this should have increased the vigilance and efforts of her officers to avoid an emergency; for it was fairly presumable that she could not, in that condition, be as quickly, readily, and skillfully handled as she could have been if she were in all respects in her usual good condition.

It is contended that the Flight, as well as the Tallapoosa, was in fault in not having a stationed lookout, and, therefore, that the loss should be apjiortioned between the two vessels. To this the closing words of the above extract from the opinion of the Supreme Court are a complete answer. The fault of the Tallapoosa was so much greater than the Flight’s, that there is no case for apportionment of the loss; the whole must fall on the Tallapoosa.

The judgment of the court is that the claimants recover $3,975, of which the sum of $3,500 is for the value of the schooner : $450 for the value of the cargo, to be paid to Horace Jar-boe; and $2p for the value of the clothing of William B. Stone, jr., to be paid to him.

Nott, J.,

dissenting:

I am of the opinion that a sailing-vessel which did not see a large steamer until almost immediately before the moment of collision, although the steamer had seen her for half an hour and from the time when the two were five miles apart, must be deemed guilty of gross negligence; and I am further of the opinion that a schooner which, with twenty miles of sea-room before her, jibed and changed her course when so near to a steamer that she must inevitably run into her, should be regarded as the vessel that caused the disaster.

For these reasons I exonerate the captain of the Tallapoosa from all blame, and hold that he was guilty neither of want of skill nor want of prudence.  