Nothing can be more clear than that the occurrence of a collision between a steamer and a schooner upon the open sea, in clear weather, in broad daylight, with no storms, the vessels sighting each other at a distance of seven or eight miles, and for twenty minutes or half an hour, was the result of a great negligence.
[NOTE. On appeal by the claimants, the judgment of the circuit court in this case was affirmed by the supreme court, on the ground that it was the imperative duty of the steamer to keep out of the way of the schooner: and, although there was no special finding that the steamer saw the schooner, it would have been a gross fault on her part if she did not.' In' delivering the opinion of the court, Mr. Chief Justice Waite, remarked that, “as the responsibility of avoiding the collision was on the steamer, it was a fault in her to get so close that a slight change in the course of the schooner, in the midst of what seemed to be' imminent peril, would bring the vessels together. It is clear that those on board the steamer were deceived as to the movements of the schooner by the leeway they themselves were making, and that they expected to pass to the windward, when they should have shaped their course to go to the leeward.” The Benefactor, 102 U. S. 214]The duty of avoiding the collision belonged to the steamer, and she had the most abundant opportunity of doing it. The principal fault of the steamer was in not making the proper arrangement to avoid the schooner, when first discovered. A very slight deviation from her course would have made the divergence so marked as to avoid all peril or alarm, and would not have produced any perceptible effect upon her own voyage. Instead of that she pursued a course which, according to 'her own evidence, would have carried her to the windward of the schooner a cable’s length only, or seven hundred and twenty feet. The wheelsman of the steamer testifies, that, after he took the wheel, the schooner was on his port bow, and he noticed that she kept off a little, (i. e., ported her helm, carrying her to the east;) and that the captain ordered him to port the helm which he says was done. He further says, that, if the schooner had kept this corn'se and the steamer had kept her course, he would have passed the schooner on the port side, a cable’s length from each other, that is, seven hundred and twenty feet. This, with vessels whose conjoined speed equalled, eighteen miles an hour, was quite too close a calculation. An allowance of thirty seconds of time, which could be absorbed by a slight excess of steam or a slight increase of wind, is very far from an exercise of reasonable prudence. The presence of a large steamer in such close proximity might well disturb the composure of the navigation of a smaller craft
There is really but a single question of fact in the case, to wit, whether the schooner so deviated from her course as to justify the action of the steamer. It is by no means clear that the evidence given by the mate, Norwood, establishes such a justification, but I am disposed to rely upon the evidence of the captain of the schooner, which is clear, consistent throughout, and in apparent harmony with all the circumstances of the case. If his testimony is credited, there was no change except in the moment of peril. He attempted to put his wheel a-port, but did not succeed in his attempt. The emergency compelled him to abandon the wheel and go to the forward part of the vessel. Whatever was done in this crisis, whether wise or otherwise, is not to be charged as a fault upon the captain. It is the fault of those who forced the emergency upon him. To the same effect is the evidence of the pilot of the schooner, MeNamee.
The collision was occasioned by the fault of the steamer, and she should be condemned therefor. The decree of the district court was right, and should be affirmed, with costs.