APPEAL from the Circuit Court for the District of Wisconsin.

On the night of the 22d of June, 1866, the steam propeller Cleveland, in rounding Bar Point,1 at the head of Lake Erie, on her way up the lake to Detroit, made the lights of a tug and tow, descending the Detroit River near its mouth into the lake, at the supposed distance of two miles. They proved to be the lights of the tug McClellan, having in tow the bark Maria Martin, bound down the lake.

At the time when the lights were made by the lookout of the propeller, this last named vessel had just obtained her offing from Bar Point and was put upon her course for Bois Blanc light,2 north by east. Her course had been west by north around Bar Point until she brought Bois Blanc light to bear northeast by east, when she at once steered for it. The tug, with the bark in tow, was at this time steering shough-southwest. The respective courses were, therefore, one point divergent. The propeller made the red signal-light of the tug and the red signal-light of the bark from a quarter to half a point over her starboard bow. The McClellan made the green light of the propeller one-fourth of a point over her port bow. The night was a bright starlight night, with a light wind from southwest. The propeller was running past the land from six to six and a half miles an hour. The tug and tow were at about the same speed. All three of the vessels had their red and green signal-lights properly displayed, and they were easily distinguishable. At this time another tug, the Muir, with five vessels in tow, was slowly ascending the Detroit River a little in advance of the propeller, and at about the same distance from the eastern or Canada shore. The bark was towed by means of a rope paid out from her starboard bow, four feet from the bowsprit, 360 feet, and made fast to a samson post in the deck of the tug, about midships, and some twenty-five feet from the taffrail, over which it of course played, from starboard to larboard, as the tow might sheer on the one hand or the other. As the vessels approached each other, their respective lights closed in until they were running nearly 'stem on.' At this juncture, and when separated by about half a mile, the tug and bark being pretty well on to the American shore, and the steamer having a fair berth on the Canada side, the tug sounded one sharp whistle, and in thirty seconds repeated the whistle as a signal to the propeller that she wished her to pass on her port side. the propeller responded with one blast of the whistle, and ported her helm and displayed to the tug her red signal-light. The tug ported her own helm when she turned half a point and became steady on her course. The propeller ran past the tug, port side to port side, with, however, only a narrow berth between ships, when at the instant in which her stem had passed the stern of the tug, the bark collided with the propeller on her port side; the port bow of the bark striking the port bow of the steamer, and the steamer sinking in ten minutes after the blow. The point of collision was about a mile and a half below Bois Blanc light; a point at which tugs usually prepare to cast off their tows, and the tows get ready to enter the lake, and in this case apparently when abreast the light, the bark had commenced making sail preparatory to hauling in her line and steering her course down the lake.

In consequence of the catastrophe the owners of the propeller libelled the bark in the District Court for Wisconsin. It was not asserted that the tug had been guilty of any fault; the main matter relied on in support of the libel being that the bark had not followed the tug, but had made a sudden sheer. Whether she had made such a sheer or not was a principal point of fact in the case, and one about which much conflicting evidence was given. Numerous persons who had been on her swore that she followed straight after the tug, but not less numerous ones who had been on the propeller swore that at the instant when her stern had passed the stern of the tug the bark shut in her red light and showed her green light to the propeller; a fact which, if true, would show that she had left her line of direction and shot off at nearly right angles with the course of the tug.3 It seemed to be in proof that the bark, though a well-steering vessel, had not steered well after the tug through the night; and the allegation of the steamer was that the bark having begun to make sail preparatory to steering down the lake, had misunderstood the whistle sounded by the tug, a theory which the evidence of the mate supported. But whether she had made any such sheer as would have made this accident unavoidable, if the steamer had not been first guilty of the greatest faults, was another question; and whether, if she had made such a sheer, the steamer had not been the cause of her doing so, was yet a third one.

The reader thus sees that the case involved two points:

First. One of mere fact, dependent on conflicting testimony, which it would not be at all worth while to report, whether there was a sheer but for which the catastrophe would not have occurred.

Second. A point of law, whether, if so, it was in view of the propeller's previous conduct, a fault.

The District Court, taking one view of the evidence, considered, apparently, that the alleged sheer was nothing more than the bark's keeping on her course before she had time to swing round and follow the tug, a matter which that court considered would, to those on the steamer, look just like a sheer.

That court held, therefore, that the propeller was alone to blame, and it dismissed the libel.4

Diagram illustrating the libellant's general view.

Diagram illustrating the respondent's general view.

On appeal to the Circuit Court, while that court was fully of the opinion with the District Court, that the propeller was in great fault in driving at a reckless rate in narrow water, where vessels in tow usually cut off from their tugs, and where a small channel is liable to be crowded by numerous tows—as this channel at this tiem actually was crowded—yet making a somewhat different case on the evidence from that which the District Court had assumed, it inculpated the bark also. On the first point—the liability of the steamer—it said thus:

'It is clear that the libellants knew that the Detroit River, on account of the magnitude of its commerce, and the number of tugs with loaded vessels passing through it, had to be navigated with great watchfulness and care, and that the tug and bark whose lights they had made, as they were descending the river, could not be handled, in case of peril, as well as the propeller could. Notwithstanding these things, we find these officers managing their boat without regard to the dangers of navigating this river, and exercising no more watchfulness than if they had been navigating the open lake. Although they saw the lights of the tug and bark, and pronounced them to be very bright, at the distance of two miles, yet they did not change the course of their boat until the tug had signalled them to do it, and at this time the vessels had approached within half a mile of each other. But even then, by the practice of reasonable seamanship, all trouble could have been avoided. If the propeller, instead of porting half a point, or three-fourths even, had gone a point further to the eastward, the collision could not have taken place. There was nothing in the way of her doing this, for the river was wide enough, and there were no lights closing on them from the east. To put only one hundred feet between her and the tug, when she could, with safety to herself, put a greater distance between them, considering the circumstances of this navigation, was bad seamanship. Watchful and careful officers, having due regard to the rights of persons and property, would not have taken the risk that the officers of the propeller did. They surely risked enough by not changing the course of their boat until she was close on to the tug. Common vigilance required that when they changed the course of the propeller they should have made a more decided change. But these officers, besides not going further to the eastward, were in fault in not checking the speed of their boat. They should not have entered a narrow river where in the night there is always more or less danger of collision, without materially slackening the speed at which they had been running. And this was only the more incumbent on them, because, at so short a distance from the tug and bark, they should, as careful seamen, have apprehended the possibility of danger.'

On the second point—the liability of the bark after examining the evidence—the Circuit Court said thus:

'It is plain, notwithstanding the faults of the propeller, that this disaster would not have occurred had the bark followed, as she was required to do, the course of the tug. That she did not follow after the tug, but when the propeller was abreast of the tug, sheered to the port of the tug, shutting out from the propeller her red light, and showing only her green light, and continued on in this course until she struck the propeller on her port side, as she was swinging to starboard, is a fact clearly established by the weight of the evidence. . . . I agree that it is not easy to reconcile the sheering of the bark, with the testimony of those on board of her, but we are more concerned to know that the sheering did occur, than to show how it occurred. . . . The conduct of the bark was the result of either mistaken orders or careless management. We have the testimony of the mate that an important signal was mistaken, and it is not at all unlikely that the error in management commenced with this mistake. It is in proof, that the bark through the night did not steer after the tug, and as she was a good steering vessel, the inference is plain, that there was a want of proper observation on the part of those who had her in charge. The approach of the propeller was not regarded by her, because the officers of the deck understood the signal of the tug for casting off line, instead of an approaching vessel. If a vessel is in tow, she is not therefore excused from keeping close watch, and observing and obeying all signals. The duty of watchfulness was the greater, because the river was full of boats, and light as the night was, there was more necessity for it, than if it had been daylight, but this duty does not seem to have been appreciated by the officers of the bark. When the bark made the sudden sheer to port, the propeller not being required to anticipate it, did all she could under the circumstances, put her wheel hard a port.

'It follows from what has been said, that a decree should be entered, dividing the loss.'

The case was now here on appeal by the owners of the bark. The owners of the steamer did not appeal, being content to pay half the loss; and they seeking simply an affirmance of the decree of the Circuit Court.

Mr. George B. Hibbard, for the appellant:

I. Collated the evidence with skill, to show

1. That in point of fact there was no sheer, but that the tug's running off to starboard upon a line divergent half a point, while the bark sagged down the stream, caused the same appearance which the vessels would have presented had the tug kept her course and the bark sheered, and that this most natural ocular deception caused such of the witnesses as swore innocently that the bark sheered, to make that mistake; and that this running to starboard of the tug, and sagging down stream of the heavily laden bark, with her deep draught of water, unable as she was to obey her port helm as quickly as did the tug, caused the collision to happen in the precise manner in which it did.

2. That it was a physical impossibility that the bark could have so sheered as to have caused the exact sort of collision, which confessedly had taken place, and the particular form of wound which was found to have been left. This position was elaborately and ably argued on the evidence, with the aid of diagrams.

II. Passing to the point of law, Mr. Hibbard argued that it was difficult to reconcile the two parts of the opinion in the Circuit Court. Upon the facts set forth and arguments made in the first part, the conclusions reached in the second did not properly 'follow.' The reverse of them were the true consequences. Upon perusal of the latter part of the opinion, the conclusion, it was argued, could not be avoided, that the court had lost sight of the substantial rule, that that vessel, which, through fault, causes haste, alarm, and peril, shall not escape the consequences of such fault by imputing something to another vessel which has been caused by the haste, alarm, and peril thus brought about. The maritime law, the learned counsel contended, would not tolerate inquiry in favor of a wrongdoer, as to even probable error committed by another. It would not countenance the weighing of possible culpabilities against the ascertained faults of a positive offender, much less the comparison of some shade of imaginable mistake with the transgressions of one absolutely and indefensibly in the wrong. The Circuit Court had assumed that if the bark did sheer division of damages must follow. This was fundamental error. To make any vessel wholly or partly responsible she must commit a fault. To commit a fault is to violate some rule, some duty. To sheer is not a fault, it is but an accident. For accident no man is responsible. The actual question in collision cases never is, 'What was done?' It is, 'Which committed fault?' It was a great mistake to say, as was said, in the Circuit Court, that 'the court was more concerned to know that the sheering did occur than to show how it occurred.' The very opposite of this proposition was the true one. How anything occurs in a collision case is of every consequence, for it is in the manner of the occurrence, its cause, that fault must exist or not exist. The ascertainment of the facts only aids in arriving at the conclusion, wherein, and what, and how many were the faults which produced the result. It is of but little if any aid to conclude, if this thing had been done or not done, no collision would have happened. In almost every collision, if anything different had been done, there would have been no collision. In the opinion delivered in the Circuit Court, it is assumed that if the bark sheered, it was something which the propeller was not bound to guard against. But was not the propeller bound to guard against the natural consequences of the haste, alarm, and peril she created? Nay, more, was she not bound so to navigate, so to obey plain rules, that haste, alarm, and peril should not arise?That the propeller was guilty, many times guilty; that she violated statute and rule, is emphatically declared and enforced by the Circuit Court; that she brought about the haste, alarm, and peril, in the midst of which this collision took place, is not to be doubted. Can it be that under such circumstances the bark can be held even partly responsible for the result thus caused? Such a doctrine will inflict a blow upon commerce which commerce can scarcely sustain; for practical men will not risk property and incur the hazards of a hazardous business beneath rules of such impracticable severity.

Messrs. Spalding and Dickman, contra, argued in support of the decree below.

Mr. Justice CLIFFORD delivered the opinion of the court.