The Packer Scully v. New Jersey Lighterage Co

• Citation: 11 S.Ct. 794,140 U.S. 360,35 L.Ed. 453
• Parties: THE E. A. PACKER. SCULLY v. NEW JERSEY LIGHTERAGE CO
• Decision Date: 11 May 1891
• Court: U.S. Supreme Court

140 U.S. 360

11 S.Ct. 794

35 L.Ed. 453

THE E. A. PACKER.

SCULLY

v. NEW JERSEY LIGHTERAGE CO.

May 11, 1891.

This was a suit in admiralty, instituted by the New Jersey Lighterage Company, appellee, owner of the barge Atlanta, against the steam-tug Dr. John Wolverton, which had the Atlanta in tow, and also against the steam-tug E. A. Packer, to recover damages for a collision between the Atlanta and a barge lashed along-side and in tow of the Packer, on her port side, known as 'Cross Creek Barge No. 5,' which occurred in the afternoon of October 25, 1880, near the mouth of the East river, in the harbor of New York. Service never having been obtained upon the Wolverton, the case proceeded against the Packer, and in the district court a decree was granted dismissing the libel upon the ground that the Wolverton was solely at fault for the collision. 20 Fed. Rep. 327. Upon appeal to the circuit court, this decree was reversed upon the ground that the collision was partly at least the fault of the Packer, and that, under the rulings of this court, the libelant was entitled to recover its entire damages against her, which amounted, with interest, to $5,404.31, for which a decree was rendered against her.

Pursuant to the act of February 16, 1875, (18 St. 315,) the following facts were found by the circuit court:

'First. That on the 25th day of October, 1880, the libelant was the owner of the barge Atlanta, and was a common carrier of a cargo on said barge, as alleged in the libel.

'Second. That on that day, in the afternoon, a collision occurred between said barge and the barge Cross Creek No. 5, then in tow of the steam-tug Packer.

'Third. That the barge Atlanta and her cargo were on that day taken in tow by the steam-tug Wolverton at Roberts' stores in the East river, to be towed to the long dock, Jersey City, and were towed astern of said tug by a hawser of one hundred and fifty feet in length between the tug and barge.

'Fourth. That on that day the tug Packer was bound from the North river into the East river, having in tow on her port side the barge Cross Creek No. 5, loaded with about 450 tons of coal, the barge projecting beyond the bow of the tug.

'Fifth. As the Wolverton, with her tow, was crossing the mouth of the East river, the Packer, with her tow, was heading around the Battery into the East river, passing the New York shore opposite the barge office, nearly two hundred yards away.

'Sixth. That the tide in the East river was ebb, and at about full strength. The Wolverton and her tow were going with the tide about seven miles an hour, and the Packer and her tow were proceeding against the tide at a speed of about two miles an hour.

'Seventh. That the Packer and her tow had come so far around from the North river before seeing the Wolverton as to be in the ebb-tide coming out of the East river, and when she saw her was heading up against that tide, and was about 200 yards out from the shore opposite the barge office.

'Eighth. The vessels saw each other when about 500 yards apart, and at that time the course of the Wolverton was about N. W. by N., and the course of the Packer was E. by N., and as they approached each other the Packer had the Wolverton on her starboard bow and the Wolverton had the Packer on her port bow, the Wolverton being further out in the river from the New York shore than the Packer, and the vessels being upon crossing courses converging towards the New York shore.

'Ninth. As soon as the Packer saw the Wolverton she blew two blasts of her steam-whistle. She was then under a starboard wheel, and making in somewhat towards the end of the piers, but upon signaling the Wolverton she starboarded the wheel still more. The Wolverton made no reply to the Packer's signals, but kept on her course, without abating speed, until blew two more whistles, and reversed then blew two more whistles, and reversed her engines, and the Wolverton ported her wheel. The Wolverton passed the how of the Packer and her tow, but the libelant's barge was unable to do so, and her port side came into collision with the bow of the Packer's tow.

'Tenth. At the time the Wolverton ported her wheel danger of collision was imminent, and a collision seemed unavoidable.

'Eleventh. There was nothing in the river to interfere with the navigation of either vessel. The collision occurred about 400 or 500 feet off the ends of the piers and just below the slip of the South ferry.

'Twelfth. There was no local usage of navigation applicable to the situation of the vessels when they discovered each other.

'Thirteenth. That between the tide of the East river and the North river there is an eddy, which extends out about 400 feet from the barge office, and the Parker had passed through this eddy and reached the ebb tide, which struck on the port bow of her tow and swung the vessels still further off shore before her pilot saw the Wolverton.

'Fourteenth. To libelant's barge was in all respects properly navigated. By reason of the collision the barge and cargo sustained serious injury.'

The following conclusions of law are found:

'First. The two tugs being on crossing courses, it was the duty of the Packer, having the Wolverton on her starboard hand, to keep out of the way, and the duty of the Wolverton to keep her course.

'Second. It was the duty of the Packer to port her wheel, and stop and reverse her engine in time to avoid the collision.

'Third. The libelant is entitled to recover against the Packer the damages sustained by the collision.'

The course of the Wolverton, as stated in the eighth finding, was subsequently changed by the circuit judge from N. W. by N. to W. N. W.

From the decree entered upon this finding an appeal was taken by the owner of the Packer to this court.

E. D. McCarthy and De Lagnal Berier, for appellant.

R. D. Benedict, for appellee.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.

This court has repeatedly held that under the act of February 16, 1875, (18 St. 315,) 'to facilitate the disposition of cases in the supreme court of the United States, and for other purposes,' we are no longer at liberty to pass upon disputed questions of fact, but are bound to accept the findings of the circuit court as conclusive, and are limited to a determination of questions of law, and to the validity of such rulings, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law. The Abbotsford, 98 U. S. 440; The Benefactor, 102 U. S. 214; The Clara, Id. 200; The Adriatic, 103 U. S. 730; The Connemara, 108 U. S. 352, 360, 2 Sup. Ct. Rep. 754; Watts v. Camors, 115 U. S. 353, 363, 6 Sup. Ct. Rep. 91; The Gazelle, 128 U. S. 474, 9 Sup. Ct. Rep. 139. In the case of The Abbotsford it was held that the only rulings which could be presented for review here by bill of exceptions were those made upon questions of law, following in this particular a multitude of prior rulings under analogous statutes. This was also affirmed in The Annie Lindsley, 104 U. S. 185, with an additional remark by Mr. Justice Woods that 'where the circuit court has passed on all the issues we cannot listen to complaints that it has refused to find certain facts which it was asked to find, or has found certain other facts which the weight of the testimony did not warrant.'

It does not, however, necessarily follow that this court is bound to determine the case upon the precise facts found by the circuit court, if, in its opinion, such findings are ambiguous, contradictory, or incomplete, or fail to establish a satisfactory basis for a decision. The circuit court is bound to pass upon and find every material and ultimate fact necessary to a proper determination of the question of liability, and, in case of refusal to make such finding, an exception may be taken thereto, which can be considered by this court upon appeal. It cannot be that this court is concluded by a finding, for instance, of a single material fact tending to show fault on the part of one vessel, when there is uncontradicted evidence of other facts, which show either that this fault did not contribute to the collision, or that there were contributing faults upon the part of the other vessel which might make a case for a division of damages. If a circuit court could find as a fact that a collision was due to the falt of one vessel, an appeal to this court would be useless; and, unless the findings set forth all the material facts, the ultimate finding of fault becomes more or less a finding of a fact, when it should be a legal inference from other facts.

The question is by no means a new one in this court. In The Francis Wright, 105 U. S. 381, 387, it was said by Chief Justice WAITE that 'if the circuit court neglects or refuses, on request, to make a finding one way or the other on a question of fact material to the determination of the cause, when evidence has been adduced on the subject, an exception to such refusal, taken in time, and properly presented by a bill of exceptions, may be considered here on appeal. So, too, if the court, against remonstrance, finds a material fact which is not supported by any evidence whatever, and exception is taken, a bill of exceptions may be used to bring up for review the ruling in that particular. In the one case the refusal to find would be equivalent to a ruling that the fact was immaterial; and in the other that there was some evidence to prove what is found, when in truth there was none. Both these are questions of law, and proper subjects for review in an appellate court.' It was indicated that the bill of exceptions 'must be prepared as in actions at law,' where it is used, 'not to draw the whole matter into examination again,' but only separate and distinct points, and those of law. This practice was approved in Insurance Co. v. Allen, 121 U. S. 67, 7 Sup. Ct. Rep. 821. In The John H. Pearson, 121 U. S. 469, 7 Sup. Ct. Rep. 1008, the question...