APPEAL from the Circuit Court for the Southern District of New York, in a case of collision, the question being one largely of fact; and the case being submitted.
The opinion of the court was delivered by: Mr. Justice Swayne stated the case and delivered the opinion of the court.
Messrs. Carlisle and C. N. Black, for the appellants; Mr. O'Donohue, contra.
This is a case of collision. It occurred on the East River, in the afternoon of the 5th of August, 1863, between the yacht Ariel and the schooner Grace Girdler. Both vessels were beating down the river to the bay. The yacht had made her long tack, and had gone about near the New York shore, and was standing upon her short tack across the river. The schooner had done the same things, and was standing in the same direction. In going about she had passed to the windward of the yacht, and held that position in her short tack. The yacht was to the leeward, and a very little way in advance. As she was beginning to make headway, the approach of a steam ferry-boat coming up the river compelled her suddenly to luff three or four points in order to get out of the way. This threw her unexpectedly in the way of the schooner, and was the proximate cause of the collision. The vessels came together, and the yacht was sunk and lost. The locality of the collision was opposite to the foot of Stanton or Grand Street, in the city of New York, and about one-third of the way across the river.
So far both sides agree as to the facts, but no further. Here begins the stress of the case, and the antagonisms in the testimony of the parties gather around it.
The libellants allege that the schooner was wholly in fault. They say that she ought not to have been so near the yacht; that she ought to have seen the danger to the yacht from the approach of the ferry-boat, and seeing it, ought immediately to have luffed, to get more to the windward; and that if she had done so, the accident would not have occurred. They insist that the schooner, being so nearly in the track of the yacht, and in such close proximity, it was her duty to exercise the greatest vigilance, and to omit no precaution against danger.
The respondents insist that there was no fault on the part of the schooner; that when the yacht suddenly came into her path to avoid the ferry-boat, the schooner, if not in stays, had so little headway on that she was powerless to change her course, or to do anything else to prevent the two vessels from coming in contact. In behalf of the schooner there is testimony to the effect that the yacht, having escaped the ferry-boat by luffing, should have luffed still more to avoid the schooner, and that if she had performed this simple and obvious duty, the collision could not have occurred.
The schooner was thoroughly manned. The captain was an experienced seaman. A regular Hurlgate pilot was at the helm.
A pleasure-party was on board the yacht. Lockwood, the captain, was the superintendent of an oil warehouse. He had served as a seaman during a voyage to California in 1849. He had no other nautical experience. Slavin was the sailing-master. He was twenty-two years of age, and had some experience as a sailor. He 'had been, off and on, five or six years, sailing-master of those small vessels about New York,' and 'had been on the Ariel six or seven weeks at that time.' Before he went upon the yacht he had been at work for Lockwood in an oil factory. Lockwood, in his deposition, says, 'All on board were gents but Slavin and an extra hand.' The testimony of the extra hand has not been taken, and it is not shown who he was, what were his qualifications, or in what capacity he served. It does not appear that any one was charged with the duty of a look-out. Lockwood, the captain, was at the helm. He says:
'The schooner made a longer tack than I, and followed on nearly in our track–a little to the southward. Before I got across the steam ferry-boat Cayuga crossed track on my bow. I luffed a little up to avoid a collision with her, and as I was filling away again, the Grace Girdler came up behind and struck me astern. Her jib-boom went into my mainsail. We had got about first, and she was about one hundred feet behind us when she got about. I did not pay any particular attention to her, as I was watching the ferry-boat. When I got clear of the latter, then I saw the Grace Girdler coming down upon us. Mr. Slavin, the sailing-master, hailed her three times, but received no answer. She was not further than this room from us when I saw she was coming down on to us. When I saw she was coming I put my helm hard up, expecting she would go off to the windward of me. I also let go my main sheet, to let my vessel run off before the wind; but she hit me before she (the yacht) run off. . . . She could have cleared me by coming up into the wind. . . . The ferry-boat was from fifty to seventy-five feet from me. She was bound to Williamsburg, and crossed my bow, and I came within fifteen or twenty feet of hitting her, notwithstanding I luffed. . . . I did not suppose it necessary to act to avoid the ferry-boat till she got near us. I luffed three or four points, and continued that long enough to let her run by.'
From this testimony it appears that no very great vigilance was exercised on the yacht to supply the place of a look-out, and that the judgment formed by the captain as to the danger involved in the approach of the steamer was by no means accurate.
The chief fault attributed to the schooner is, that she did not luff into the wind and avoid the yacht by passing to the windward. It is not denied that the schooner was to the windward after running out her long tack and coming about, nor that she would have avoided the yacht if the yacht had not thrown herself in the way of the schooner to avoid the ferry-boat.
Horton, the pilot of the schooner, had been a Hurlgate pilot for sixteen years. He says:
'After we went about, we drawed away our jibs, let up anything forward; saw the yacht to the leeward, about fifty yards on our lee quarter, dead to the lee quarter. She kept hauling up and nearing us all the while, and we was motionless at the time, and I told them on the yacht to slack the main sheet, but they paid no attention to me, and came right up to our lee bow in contact with our jib-boom, which hooked his mainsail. We had not got under headway at the time of the collision. Our jibs had not filled. We could not have done anything in our condition to avoid it. The helm was to the leeward, in the leebecket dover. When we got around so that the jibs took, I put my helm down.'
This testimony, if credible, vindicates the schooner and fastens the blame upon the yacht. Perhaps the reason why the warning of the pilot was not heeded was, that the officers of the yacht had not recovered from the perturbation produced by their narrow escape from the ferry-boat, and that there was no look-out to give notice of the dangerous proximity of the schooner, induced by the new position which the yacht had been compelled to assume. The statement of the pilot is fully sustained by the captain and several of the crew of the ...