
    THE CARLTON CASE.
    William Carlton et al. v. The United States.
    
      On the Proofs.
    
    
      A collision occurs between the war steamer Stoneioall and the schooner Carlton. The steamer is in fault as to lights. When she sights the schooner she does not slacken speed nor change her course. When the collision becomes imminent she puts her helm astarboard when it should have been aport. (The sehoonei•, when meeting another toar steamer ahead of the Stoneioall and on her port bow, shifted her course to olear the steamer, and then resumed it just before the collision.) The owners bring their action under a private act passed for their relief.
    
    A sailing-vessel meeting a steamer is not in fault if she shifts her course to avoid a collision and immediately resumes it. This is one of the “ special circumstances ” contemplated by the rules established by the Act April 29, 1864, (13 Stat. L., p. 58, art. 19,) and does not excuse a second steamer, folio-wing in the wake of the first, if guilty of a violation of the rules for meeting sailing-vessels.
    
      The Reporters'1 statement of the case:
    The facts here sufficiently appear in the opinion of the court.
    
      Mr. JE. W. Dicleerson for the claimants:
    This collision occurred under the Act April 29, 1864, (13 Stat. L., 58.) Under that act naval as well as mercantile vessels were required to carry lights and to obey the sailing directions contained in it. The only exception in favor of naval vessels was in regard to carrying lights when, under special circumstances, they were dispensed with by an order. In this case there was no such dispensation, and the Stonewall was carrying lights.
    The quality of lights for steamships is fixed by article 3, which requires a bright white light at the mast-head, and on the starboard side a green light, and on the port side a red light, “so fixed as to throw the light from right ahead to two points abaft the beam, and of such a character as to be visible on a dark night in a clear atmosphere at a distance of at least two miles. The said green and red side-lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow.” Sailing-ships are required to carry the same side-lights, but not the mast-head light, “ which they shall never carry.” Article 7 requires ships, whether steam or sailing, when at anchor, to “ exhibit where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light, visible all around the horizon and at a distance of at least one mile.” Article 13 says: “ If two' ships under steam are meeting, end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other.” And articles 15 and 16 provide: “ If two ships, one of which is a sailing-ship, and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.” “Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steamship shall, when in a fog, go at a moderate speed.” And article 18 provides : “ Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the following article.”
    The Stonewall was entirely in fault. Being a steamer, she was bound to keep out of the way of the sailing-vessel, (article 15,) provided the sailing-vessel could be seen at the distance which the law requires. That she could be so seen is proved by the fact that the Rhode Island and Hornet — the one ahead, the other astern of the Stonewall — both saw her for distances not less than six miles, and .both of them did what the law required; that is, they took measuresto avoid the schooner; in ■doing which the Ehode Island put her h elm astarboard, so as to show her green light to the schooner, and to pass • to the westward of the schooner, and the Hornet put her helm aport, so as to show her red light to the schooner, and to pass to the eastward of the schooner. The Stonewall also was in fault because she did not have side-lights which could be seen by a vessel approaching her end on. She therefore was presenting to a vessel approaching her nearly end on the aspect •of an anchored vessel; that is, having a white mast-head light nnd no side-lights visible.
    The William Carlton, on the other hand, was equipped and sailed in exact conformity with the .law. She had sidelights, in all respects according to the statute, and they were visible for nearly eight miles. She was entitled to keep her course; and every steamer coming in the opposite direction was bound to keep out of her way. The Ehode Island kept out of her way rather slowly, and as a consequence the schooner had to change her course a little in order to prevent collision; but she came on her course immediately after she had passed the Ehode Island, and was on her course at the time when she was ’struck. She saw the only light which the' Stonewall ■showed or could show to her — that is, her mast-head light — and the pilot and captain, after observing it, concluded, as they were bound to do, that it was the light of a vessel' at anchor. It was very natural to expect vessels to be at anchor, because the wind was ahead to vessels going up the bay, and under these circumstances vessels are very likely to anchor and wait for a change of weather. The schooner’s lights were perfectly good; and whether the vessel which had the white light was at anchor, or whether she was a steamer under way with sidelights, in either case the schooner was entitled and bound to keep her course, relying upon the visibility of her own lights and upon the law which required a steamer to keep out of her way. If the light belonged to an anchored vessel, as it seemed, the schooner was in no danger of running, over that vessel, because it was under the lee of the schooner and a considerable distance from her when it was observed and talked about by the captain and pilot. If, on the other hand, there was a steamer under way carrying that light only, the schooner was legally right when she kept her course, having the other vessel' ■on her port bow; and because, in all cases, if there is danger of a collision, tbe statute requires the vessels to port their helms and show their port sides tojeach other.
    Whether, therefore, it is considered in the light of the general obligation of the steamer to [keep out of the way of the schooner and to make timely provision for doing so by seeing her at a distance and changing her course; or whether it is considered in the light of the obligation of the steamer, when a collision seemed imminent, to slow and port the helm; or whether it is considered in the light of the- obligation of the steamer to carry lights which can be seen by the approaching vessel, the result is the same, and the steamer was at fault in all things.
    And the schooner kept her course till she was slightly driven out of it by the Ehode Island, when she resumed it, and was on her course when she was struck. She steered clear of an anchored vessel, which was what the Stonewall seemed to ber and was herself fitted with lights which were seen many miles by the two steamers, but not at all by the Stonewall, and was-therefore entitled to suppose that if a steamer was under way,, when the anchor-light alone was visible, she would steer clear of her instead of steering right into her. ' *
    
      Mr. J, K. McOammon (with whom was the Assistant Attorney-General) for the defendants :
    Had the schooner William Carlton discovered in due time the lights of the steamers following the Ehode Island,' and not changed her course on passing the Ehode Island, she would still have passed clear of the Ehode Island, and the collision with the Stonewall would not have occurred, as the schooner would have passed astern of the Stonewall, which had seen and been guided by her, green light, and had prepared to pass to westward, as the Ehode Island had done, and ahead of the Hornet, which had seen and been guided by her red light, and had prepared to pass to the eastward of her.
    No blame attaches to the officers and crew of the Stonewall for the loss of the schooner William Carlton, and neither the-owners and crew of the schooner nor the owners of her cargo-have any just claim against the United States on account of the loss of that vessel. The schooner undoubtedly was guilty of negligence; and granting, for the sake of argument, that. the steamer was also partly responsible for the collision, damages should be divided between them where both suffer ; but where one only is the loser under such circumstances, then one-half the sum representing the damage sustained can be-recovered by her; for if one in fault has sustained no injury, it is liable for half the damages sustained by the other, though that other was also in fault. (The Sapphire, 18 Wall., 51-56 ; Chaml) v. Ward, 21 How., 548.) The Stonewall having sustained no damages, this rule would apply if she had been in fault, which was not the case, and the rule can have no application here. The claimants have failed to prove such a state of affairs as would show negligence or want of due care on the part of the steamer. The incompetency of those in charge of the Carlton is fully proved by the failure to see the Rhode Island until within a short distance, the disregard of the white light seen on their starboard side, and the failure to see the lights on the Hornet, which was within a half or quarter mile of the Rhode Island. A sailing-vessel is bound to exercise the same care, skill, and-prudence in passing a steamer as in passing a sailing-vessel. (Ligo, 2 Hag., 356; The New Jersey,. Olcott 415; Chamb v. Ward, 21 How., 548, 564.) The lights-of the Stonewall were plainly seen by the Rhode Island, which takes away the ■ chief and only claim of the Carlton. The failure on the part of the Carlton to see altogether the lights on the Hornet and the lights of the Rhode Isl- and, which were both very bright until within close proximity, shows gross negligence and want of prudence.. A sailing-vessel suing a steamer for damages from collision must prove the injury was not produced by her own negligence or fault. (The New Jersey, Olcott, 415; The Relief, ib., 104; The. Neptune, 2 Hag., 493 ; Act April 29, 1864; art. 20.) Here, conversely, it is proved that she was neglectful and in fault, and therefore the first element of the claimant’s case fails. (Catherine of Dover, 2 Hag., 145.) The position of the Carlton when struck headed west, and the sighting of the green light, and then the red or port light of the Carlton from the Stonewall, conclusively indicated a change of course after the sighting of the white light of the Stonewall by the Carlton. This change relieves-the Stonewall of any responsibility, when every effort had been made by the Stonewall to prevent a collision. (The Post Roy, 10 N. T. Legal Observer, 65; The Osprey, 1 Sprague, 245.). The schooner should have kept her course; that is, a parallel course, and not in a straight line, as the counsel for the claimant asserts. It is conceded that the white light on the Stonewall was a mast-head light. Therefore.it could not have been mistaken for a light on a ship at anchor, for the act of 1864, section 7, provided that “ ships at anchor should exhibit a white light not exceeding twenty feet above the hull,” &c. (13 Stat. i., 58.)
   Deaice, Ch. J.,

delivered the opinion of the court:

Upon the facts as found by the court three questions arise 1. Whether the collision which caused the loss of the schooner William Carlton was due to the fault of that vessel. 2. Whether it was due to the fault of both that vessel and the steamer Stonewall. 3. Whether it was due to the fault of the steamer Stonewall. If the first question should be answered affirmatively, the claimants are not entitled to recover. If the •second should be so answered, the loss must be divided between ■the two vessels. If the third should be so answered, then the loss must fall upon the owner of the Stonewall.

The decision of these questions brings into view some of the rules prescribed, for vessels in the “ Act fixing certain rules and ■regulations for preventing collisions on the waterf (13 Stat. L., 58,) which was passed April 29,1864, and went into effect September 1, 1864. The following are the rules contained in that act which bear 'upon this case :

“Article 2. The lights mentioned in the following articles, and no others, shall be carried in all weathers between sunset and sunrise.

“ Article 3. All steam-vessels when under way shall carry—

a. At the foremast-head a bright white light, so fixed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light of ten points on each side of the ship, viz, from right ahead to-two points abaft the beam on either side, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles.

“ 5. On the starboard side a green light, so constructed as to throw a uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles.

o. On the port side a red light, so constructed as to show a uniform unbroken light^over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles.

d. The said green and red side-lights shall be fitted with inboard screens, projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow.

“ Article 5. Sailing-ships under way, or being towed, shall carry the same lights as steamships under way, with the exception of the white mast-head lights, which they shall never carry.

11 Article 7. Ships, whether steamships or sailing-ships, when at anchor in roadsteads or fairways, shall, between sunset and sunrise, exhibit, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light, visible all around the horizon, and at a distance of at least one mile.

“ Article 15. If two ships, one of which is a sailing-ship and the other a steamship, are proceeding in such direction as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.

“Article 16. Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. # * *

“ Article 18. When, by the above rules, one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the following articles:

“ Article 19. In obeying and construing these rules, due regard must be had to all the dangers of navigation; and due regard must also be had to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid immediate danger.”

In every case of collision almost the first question to be determined is whether either vessel was in fault in the matter of having lookouts properly stationed. In this respect there does not appear to have been fault on the part of either of these vessels.

The next question is as to lights. In this matter we consider it clear that the Carlton complied with the above rules. Her lights were seen on the Ehode Island, the foremost of the three ships, thirty minutes, and by the Hornet, the hindmost of the ships, twenty minutes before the collision took place; which proves that they were visible at a distance of miles.

We consider it equally clear that in the matter of side-lights the Stonewall was in fault. The lights were there, and each was on its proper side of the vessel, but they were not so fixed as to throw an unbroken light right ahead, as required by the rule. Placed on the after turret, “ considerably inboard,” the light was broken to a vessel ahead by the main and fore rigging and the running-gear, and also by the catheads, which were higher than the lights. This was a clear violation of the rule, and the result of it was the inability of the officers of the Carlton to see the Stonewall’s side-lights when the vessels were near each other, though they made careful scrutiny to see if she showed such lights.

But it was in the management of the Stonewall that her greater fault was committed. Though her officer of the deck saw one of the lights of the Carlton ahead when she was half a mile off, he made no effort to slacken the speed of his vessel until the vessels were too near to each other to avoid a collision. The engines of the Stonewall should at least have slowed, if not stopped and reversed, immediately upon the discovery of the Carlton’s light ahead. From the moment of that discovery the duty of the Stonewall was to “keep out of the way” of the Carlton j and we cannot doubt that it was in her power to have done so. Had she put her helm aport when the light of the Carlton was first seen, or had she then stopped her engines,, the collision could hardly have occurred. But she was kept at undiminished speed, and on her previous course, until collision was imminent, and then her deck-officer seemed to lose his presence of mind, and ordered the helm astarboard when it should have been aport; and the collision ensued.

It may, however, be supposed that there was fault on the part of the officers of the Carlton in not keeping her steady on her course, as required by article 18 of the above rules; but we do not consider this position tenable. It will be observed that the requirement upon the sailing-vessel under such circumstances to keep her course is subject to the qualification that, in obeying thatrule, “ dueregard must be had to all dangers of navigation, and * * * to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid immediate danger.” With reference to this qualification, what was the situation of the Carlton? She fouud herself approaching the Rhode Island, and, to avoid her, she changed her course only half a point, and immediately on passing her, and before the collision, resumed her previous course. We cannot regard this as a fault on her part, but a proper regard “to special circumstances, rendering a departure from the above rules necessary in order to avoid immediate danger.” But, in the language of the Supreme Court in The Carroll, (8 Wall., 302,) “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 at the moment preceding the collision; and as she has furnished no excuse for this misconduct, she is chargeable with all the damages resulting from this collision.”

Those damages are, first, the value of the Carlton, $25,200; second, the freight stipulated to be paid for the transportation of the cargo of 219i§ tons of coal, at $4.75 per ton, amounting to $1,385.30; and, thirdly, the value of the cargo at the place of shipment, $7 per ton, aggregating $2,041.55.

Judgment will be entered in favor of the owners of the Carlton for the first two of those items, aggregating $26,585.30, and in favor of the Boston and Sandwich Glass Company for the third item.

Losing, J.,

dissenting:

1 think that, under the statute dividing the damage between vessels in fault, the petitioners are entitled to only half the damages adjudged to them, because I think their schooner committed the first and chief faults, without which the collision would not have occurred.

On the vessels nearing each other the schooner was bound to hold her course and the steamers were bound to keep off from her, and it is not stated in the facts found, nor suggested in the evidence in the case, that the steamers would not have done so bad the schooner held on to her course. But this the schooner did not do. She altered her course, and in such way as to bring her nearer to the Stonewall; and it is certain that the schooner was not, when she was run into, where she would have been had she held her course.

And she was struck about or abaft her midships, and she was one hundred feet long, so that fifty feet or less of distance would have prevented the collision. And I think the evidence shows that she would have been more than fifty feet ahead of where she was when struck had she steadily held her course instead of changing it, and that her change of course brought her more than half of her length nearer to the Stonewall.  