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THE NICHOLS, 74 U. S. 656 (1868)
U.S. Supreme Court
The Nichols, 74 U.S. 7 Wall. 656 656 (1868)
74 U.S. (7 Wall.) 656
1. Sailing ships are "meeting end on" within the meaning of the eleventh article of the Act of Congress of April 29, 1864, fixing "Rules and Regulations for Preventing Collisions on the Water," when they are approaching each other from opposite directions or on such parallel lines as involve risk of collision on account of their proximity, and when the vessels have advanced so near to each other that the necessity for precaution to prevent such a disaster begins -- a condition which always depends to a certain extent upon the state of the navigation and the circumstances of the occasion.
2. The expression, "meeting nearly end on," in the same article, includes cases where two sailing ships are approaching from nearly opposite directions,
or on lines of approach substantially parallel, and so near to each other as to involve risk of collision; but the application of the rule must be considered as subject to the same limitations and qualifications as is the phrase "meeting end on" in the same article.
3. Accordingly, two sailing vessels pursuing, in the night time, lines which, if followed, it was probable would bring them into collision were considered, when but two or three miles apart, as "meeting end on or nearly, end on so as to involve risk of collision" within the meaning of the eleventh article above referred to, their rate of speed having been, at the time, six miles an hour each, and their rate of approximation, therefore, a mile in each five minutes. Held, consequently, that the helms of both vessels ought to have been put to port, as provided for in such contingencies by the said article, so that each might have passed on the port side of the other. And a vessel which, in such circumstances, put her helm a starboard and was run down and sunk by the other vessel was held to have no claim on her for damages.
4. Mistakes committed in moments of impending peril by a vessel in order to avoid a catastrophe made imminent by the mismanagement of those in charge of another vessel do not give the latter, if sunk and lost, a claim on the former for any damages.
Brown, owning a schooner of that name, filed a libel in the District Court for Northern New York against the barque Nichols, the ground of his complaint being that the two vessels being on Lake Erie, one going in one direction and the other coming towards it in another nearly opposite, and the two so approaching each other, the barque had, in violation of the "Rules and Regulations for Preventing Collisions on the Water," fixed by the Act of Congress of April 29, 1864, [Footnote 1] run into his schooner and sunk her and her cargo. The Phoenix Insurance Company, which had insured the cargo and paid for the loss, filed a similar libel.
The case was thus:
Congress, by the act above referred to, laid down certain rules or articles to prevent collisions on the water, and among them these:
"Article 11. If two sailing ships are meeting end on or nearly end on, so as to involve risk of collision, the helms of both shall be put to port so that each may pass on the port side of the other. "
"Article 12. When two sailing ships are crossing so as to involve risk of collision, then if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship which the wind on the port side is close-hauled and the other ship free, in which case the latter ship shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward."
"Article 18. Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course."
With these articles in force, the schooner was bound up Lake Erie, of a clear, starlight night, her course west by north. The barque was bound down it, her course east by south, half south -- the two vessels being nearly dead ahead of each other. The wind was from the northeast and the speed of each vessel full six miles an hour, the two so approaching one another at the rate of a mile every five minutes. The schooner had the wind free and on her starboard side. The barque was close-hauled, with the wind on her port side. Each vessel was seen from the other about the same time, and when they were some two or three miles apart, the evidence being conflicting as to the exact distance.
When the two vessels made each other, the mate of the barque ordered her helmsman to "keep her off a little" so as to give the schooner "a good full," but as the vessels approached closely, he ordered him to "put the helm hard up, and keep her right off" -- in other words, to port the helm. The effect of this was, of course, to turn the vessel's head southward. Such were the maneuvers of the barque.
The master of the schooner, on his part, so soon as he saw the barque's lights -- judging them to be two or three miles off, "nearly dead ahead, a very little on our starboard bow" -- ordered his helm put starboard, "to keep her off to the west." The vessels were advancing rapidly, and with the maneuvers ordered, respectively, were fast approaching each other as well. Two or three minutes before the collision -- and the vessels being then not more than a quarter of a mile apart -- the
master of the schooner "seeing the barque bearing down on him, and that she was off the wind," ordered the wheel of his schooner put "hard up," and to "let the main sheet run out." The schooner accordingly swung to the south, somewhat of the southwest. But this was too late, or perhaps the very cause of the catastrophe. The barque advancing, went, bow first and at right angles, into the starboard quarter of the schooner, and the schooner went down at once.
The collision being, of course, the exact result which was liable to follow from the combined maneuvers of the vessels, the question was which vessel had made the false navigation under the act of Congress? And this question involved largely a consideration of the element and effects of distance -- that is to say, in this particular case, the proximity of the vessels at the time when the master of the schooner gave the first order to starboard.
The district court, not without hesitation, came to the conclusion that the distance between the vessels at this time -- two or three miles -- was such that the master was not in fault in making the order; that the case fell within the twelfth rule, and that the barque ought not to have changed her course. Conceding that the vessels were clearly approaching each other "nearly end on," and that if they had both continued their courses, they would soon have been "meeting nearly end on, so as to involve risk of collision" within the meaning of the eleventh rule, that court was yet in doubt whether, at the distance at which these vessels were when they first made each other, they were "meeting end on, . . . so as to involve risk of collision," which the plain import of the eleventh rule required them to be before both were obliged to port their helms. It accordingly dismissed the libels.
On appeal, the circuit court was of a different opinion. The vessels being nearly dead ahead, their combined speed being twelve miles an hour, and they being thus within ten to fifteen minutes of meeting, that court considered that they were "dangerously close together," and their proximity such that the execution of the first order to starboard the helm of
the schooner involved not only the risk of the collision, but was the controlling cause of it, and thinking that the master of the schooner had mistaken the position of the barque and had supposed that her lights were to the windward when in fact they were to the leeward, reversed the district court's decrees.
The correctness of this reversal was the question now here, on appeals by the owner of the schooner and by the insurers of her cargo, the Phoenix Company.
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