At about 9y2 o’clock in the night of the 20th of August, 1867, off the coast of New Jersey, a few miles below Barnegat light, the steamship James- T. Brady, belonging to the libellant, and the steamship Albemarle came into collision. The latter was bound from New York to Norfolk, and the former from Delaware bay to New York. The libellant’s witnesses describe the Albemarle as approaching in a course heading almost directly towards the Brady, but being, when sighted, slightly off the port bow. Those on the Albemarle describe the Brady as seen off the starboard bow, and testify that she continued to approach, opening more and more on the starboard bow. When within 500 yards apart, their speed being, respectively, the Brady, 11 or 12 miles, and the Albemarle, S or 9 miles, the Brady blew one whistle, to signify her wish to port her helm and pass to the right. The Albemarle responded with one whistle, indicating her assent. On receiving the response, the Brady ported and swung towards the east. The Albemarle, as her witnesses testify, also ported, but, before her course was much changed, the two ves-sf Is came together. The witnesses from the Brady testify that the Albemarle did not port, but starboarded, and that she ran into-the Brady on a starboard wheel. The contradiction between the witnesses for the respective parties is not necessarily so great as a cursory perusal of the testimony would suggest, touching the position and course of the two vessels and the bearing of each from the other. Thus, the course of the James T. Brady was, as her witnesses represent, north-east by north, and she saw the lights of the Albemarle when from 1% to 2 miles distant, about one point over her port bow, and the bearing continued about the same or diminishing to half a point, until the Brady gave the signal, by her one whistle, that she proposed to port and pass to the eastward of the Albemarle, and, at some moments, her white light, and then her red and white lights, and then her green and. white lights, and for a time all three lights, were visible. The course of the Albemarle, as her witnesses testify, was south southwest. ' She saw the James T. Brady at a distance of five miles, seeing first her white light and then her green light. When first seen, the witnesses state, she bore from two to two and a half points on their starboard bow, and her green light continued in view until she ported, in accordance with the signal before mentioned.
Now, if the two courses above stated be assumed to be nearly accurate, and the position of the respective vessels, when the Al-bemarle sighted the Brady, was such that the point of intersection of the courses was considerably nearer to the Albemarle than to-the Brady, it would follow that the Albe-marle would see the Brady at about one and a half or two points off her starboard bow, and she would, as they approached each other, continue to bear over such starboard bow; while, also, when the Brady reached a. point distant two miles from the Albe-marle, the latter would bear about one point off the Brady’s port bow, and that bearing-would continue, or gradually draw in towards the bow, until the Albemarle reached the point of intersection. The relative speed of the Brady being, however, the greatest, they might reach the point of intersection at about the same moment. In such ease, if courses and bearings were alone considered.
The prompt and ready response of the Al-bemarle to the whistle- of the Brady is very important in its influence upon the question whether, in truth, tho Brady was four points off the starboard bow at that time, and so near that her porting brought them almost instantly together. It must and ought to be taken to be incredible, thar, if such was the then position and course of the vessels, the Albemarle would have assented to such a manoeuvre. In that situation, it was grossly improper, and both proposition and assent indicated gross unskillfulness and ignorance, or gross inattention and negligence. These concurring, -would, I think, of themselves alone, make a ease for contribution to the loss caused by the concurring fault of both. I have, more charitably, I think, regarded the assent of the Albemarle as indicating that the Brady was not in the relative position stated; but, in either view, the Albemarle would not be without fault.
It is doing no injustice to the Albemarle to say, that the assent of her officers to the signal to port the helm, given by the Brady, is strong evidence that, at the time, they did not regard it as an improper movement, and better evidence that the vessels were approaching nearly end on than testimony of those same officers, given on a retrospective view of the occurrence, under a strong motive to cast all the blame upon the Brady. And the alternative again recurs— if the movement was so obviously improper as they now represent, they were concurring actors in the unskillfulncss or error which caused the loss. I do not say that the Albemarle, by assenting to the signal of the Brady to port the helm and go to starboard, is estopped to allege that it was wrong in the Brady to do so, or that, in a sudden exigency, caused by the fault of
That the Brady was not free from fault, on still other grounds, is quite clear. She had no proper look-out; or, if the man at her bow was competent, then he was not vigilant. He ought to have seen the Albe-marle as soon, or nearly as soon, as the Brady was seen from the Albemarle. The look-out did not report the Albermarle until within one and a half or two miles distant. True, he says he thinks she was three miles off, but he had only the short experience of three months at sea, and las judgment is contradicted by two experienced pilots on board. He did not report her until she had been seen by the man at the wheel, and the pilot in charge did not discover her until the man at the wheel called his attention to her. This shows great want of vigilance, and, although thére was then time to make whatever movement the case required, yet, as they were approaching at a combined rate of twenty miles an hour, it left them a very short time in which to note the position, course and lights of the Albemarle, and apply the discretion which they were bound to exercise.
An alternative view of the duty of the Albemarle, founded upon the rule that, when ships are crossing, so as to involve risk of collision, that which has the other on her starboard, must keep out of the way, and the other should keep her course, will also-make the Albemarle a sharer in the fault.
If the view presented by the testimony of her witnesses be adopted, and, when the signal was given by the Brady, the latter bore four points off her starboard bow, it was a clear fault in the Brady to attempt to cross, without first consulting the Albemarle. The Albemarle had the right to insist that the Brady should keep her. course. When both agreed that the experiment of crossing should be made, they became concurring parties to the experiment and mutual sharers in the hazard.
The criticism, that it was a perilous movement of the Brady, and that she had no right to put the Albemarle in a critical situation and hold her responsible for a hasty judgment, proves too much. For, if there was, at that moment, no peril, there was nothing in the mere proposition, which required the officers of the Albemarle to act hastily. If the position of the two was such that it was plain that the Brady ought not to port, and that the Albemarle was safe without any change, then her officers acted in no sudden exigency, for the Brady did not change until the assent of the Albe-marle thereto was given. The criticism, therefore, involves this, namely, that an exigency had in fact already arisen, in which, and in a consciousness of danger, the Albe-marle received the signal, and was called on to exercise instant judgment. This is precisely what has been already above stated,, and it puts the Albemarle in fault, in not herself acting sooner, either by slowing, or by changing her course, or by herself signal-ling the Brady. This view of the subject' brings me, as every view of the case which I think warranted by a full consideration of the testimony on both sides does, to the conclusion, that these two vessels were both in fault, and that they should share in the loss which resulted therefrom. A decree must be entered in conformity with that view.