Stainback Et Al Claimants of the Ship Washington, Her Tackle Appellants v. William Rae, In His Own Right, and As Administrator of Joseph Porter Wheeler, Deceased and Edmund Crosby, Master Owners of the Ship Mary Frances, and Frederick Tudor, Owners of the Cargo of Said Ship, Appellees

• Decision Date: 01 December 1852
• Citation: 14 L.Ed. 530,55 U.S. 532,14 How. 532
• Parties: L. L. STAINBACK ET AL., CLAIMANTS OF THE SHIP WASHINGTON, HER TACKLE, &C., APPELLANTS, v. WILLIAM A. RAE, IN HIS OWN RIGHT, AND AS ADMINISTRATOR OF JOSEPH PORTER WHEELER, DECEASED, AND EDMUND CROSBY, MASTER, OWNERS OF THE SHIP MARY FRANCES, AND FREDERICK TUDOR, OWNERS OF THE CARGO OF SAID SHIP, APPELLEES
• Court: U.S. Supreme Court

55 U.S. 532

14 How. 532

14 L.Ed. 530

L. L. STAINBACK ET AL., CLAIMANTS OF THE SHIP

WASHINGTON, HER TACKLE, &C., APPELLANTS,

v. WILLIAM A. RAE, IN HIS OWN RIGHT, AND AS

ADMINISTRATOR OF JOSEPH PORTER WHEELER, DECEASED, AND

EDMUND CROSBY, MASTER, OWNERS OF THE SHIP MARY FRANCES,

AND FREDERICK TUDOR, OWNERS OF THE CARGO OF SAID

SHIP, APPELLEES.

December Term, 1852

Mr. Justice Curtis did not sit in this cause, having been of counsel in the court below.

THIS was an appeal from the Circuit Court of the United States for the District of Massachusetts, in admiralty.

The facts are stated in the opinion of the court.

It was argued by Mr. Badger and Mr. Lawrence, for the appellants, and by Mr. Goodrich, for the appellees.

The points made by the counsel for the appellants, were the following:

First. That the watch on board the Washington, was usual, proper, and safe; and that consequently, no negligence is imputable to her.

Second. That in the state of the weather, and the position of the two vessels in respect to each other, it was impossible that the Washington could have discovered the Mary Frances at a greater distance than a quarter of a mile, and highly improbable that she could have discovered her at more than half that distance; and that under such circumstances, considering the admitted rate at which the two vessels were approaching each other, it was impossible for the Washington, by any manoeuvre whatever, to have avoided the collision.

Third. That if-the Mary Frances, as stated by some of her witnesses, discovered the Washington ten minutes, and as stated by others, five minutes, before the collision, the two vessels must have been at a distance of two miles, or at least one, from each other, and it was in her power, by changing her course, to have avoided the collision; and if, as stated by the same witnesses, she perceived that the Washington had not discovered her, it was her duty to have done so, and consequently the collision is attributable to the fault, not of the Washington, but of the Mary Frances.

And hence, that the collision was either a mere misfortune, without fault in either party, or without fault on the part of the Washington, and, in either view, the decree must be reversed.

Mr. Goodrich, for the appellees, contended,

1. That on the night of the collision, the weather was fair and starlight overhead, with a hazy horizon, and that the night was not unusually dark.

2. The ships being each closehauled on the wind, neither was materially to windward of the other, and each crew was equally favorably situated to see the other ship, and to hear hailing from the other ship.

And if either ship was to windward of the other, and for this reason less favorably situated in those respects, it was the Mary Frances.

3. That the crew of the Mary Frances had a good look-out

before, and at the time of the collision, and used all due care to prevent it; and that they actually saw and hailed the Washington in time to prevent the collision; and that the crew of the Washington did no act to avoid the collision, and the collision was attributable to the absence of a good look-out on board the latter ship.

4. The appellees maintain, that the rule of the sea is, that where two vessels, closehauled on the wind, approach each other, and must meet unless the course of one is changed, the vessel having her starboard tacks on board, must keep her course, and the one having her larboard tacks on board, must bear up and give way. The Alexander Wise, 2 Wm. Robinson, Adm. R. 65, 68; The Virgil, Id. 201; The Mary Stewart, Id. 244; The Chester, 3 Haggard, Adm. R. 316; The Ligo, 2 Id. 356, 360; Clapp v. Young, 6 Law Reporter, 111-13; 1 Conkling's Admiralty Practice, 303-6; The Europa, 14 Jurist, 627, (2 Law and Eq. R. 562-4); The Genesee v. Fitzhugh, 12 Howard, 443; Walsh v. Rogers, 13 Id. 283; Pritchard's Admiralty Digest, art. 12, p. 156; 1 Bell's Com. 583.

5. That the appellees having made out a prim a facie case of want of skill and care on the part of the crew of the Washington, the burden of proof is on the appellants to show that due care and skill was used. Authorities previously cited. The George, 9 Jurist, 282, 4; Notes of Cases, 161; Pritchard's Admiralty Digest, art. 114, 116, and 117, p. 137, tit. Damage.

6. That appellees are entitled in law to recover compensation for freight and cargo, as well as for the ship of appellants. See 3 Kent's Com. 6 ed. 232, § 8; Story on Bailments, ch. 6, §§ 599, 602, 608, and case of Dundee, note to § 609; 1 Bell's Com. 580.

12. The Washington was in fault, because her officers and crew did not maintain that constant care and vigilance which her position required.

A. The Washington, having her larboard tacks on board, was bound to give way.

B. No officer, and only two men on deck, attending to the navigation of the ship—one, McCoy, was at the wheel, the other, Simmons, a boy, was on the look-out.

C. A large ship, with noisy passengers, nearing the land, under full sail, in a hazy night, should have had at least two men on the look-out.

D. No sufficient look-out before the call to the pumps.

E. The Washington might have avoided the collision.

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from the Circuit Court of the United States for the District of Massachusetts, in admiralty.

The libel charges, that the ship Mary Frances, laden with ice, was on a voyage from Boston to New Orleans, and that on the 11th December, 1847, at about half-past three o'clock in the morning, while on her starboard tack, in the prosecution of the voyage, she was struck by the ship Washington, nearly midships on her larboard side, breaking in her bulwarks and stanchions, and starting her planks and timbers, so that in a few hours she filled with water, and the master and hands were obliged to abandon her, and she went to the bottom.

The respondents, in their answer, state, that the ship Washington, at the time mentioned in the libel, was upon the high seas between George's Shoals and the south shore of Nantucket Island, at a distance of about sixty miles from land; that the wind was blowing a moderate breeze from the south-south-west, and the Washington, with all her reefs out, with courses free, and main-topgallant sails, jib, and flying-jib, and fore and main-topmast-stay-sails set, was sailing full and by, upon her larboard tack, and steering due west by the compass, and as near the wind as possible; that she had a competent watch on deck, keeping a good look-out, the weather being dark and hazy towards the horizon, especially to the leeward of the ship, but the stars visible above. That while she was thus pursuing her course, at about...