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THE GREAT REPUBLIC, 90 U. S. 20 (1874)
U.S. Supreme Court
The Great Republic, 90 U.S. 23 Wall. 20 20 (1874)
The Great Republic
90 U.S. (23 Wall.) 20
1. In cases of collision, where there is a great conflict of testimony, the court must be governed chiefly by undeniable and leading facts, if such exist in the case. The court so governed in this case.
2. A pilot, when he is close to a vessel before him making movements which are not intelligible to him, ought not, in a case which is in the least critical, to be governed by his "impressions" of what the vessel is going to do. He should make and exchange signals and ascertain positively her purposed movements and maneuvers.
3. A steamer close to the right bank of a broad river -- one, ex. gr., a half a mile broad -- which means to cross over and land on the left shore, is not bound, in the first instance, to give three or more whistles, which is the signal for landing. It is enough that she give two whistles, which is the signal that she is going to the left. The three or more whistles may be given later.
4. Constructions not favorable put on the testimony and maneuvers of a pilot who, it was proved, was "addicted to drinking when ashore" and who confessed to having been drinking on the day when his vessel left port and within an hour of which time a collision occurred, though he swore that he had not taken any drink for six hours before his boat left its dock.
5. Similar constructions put on the conduct of a captain whose watch it was, but who, instead of being engaged in a proper place in superintending the navigation of his vessel, was on the lower deck conversing with a passenger.
6. A large and fast-sailing steamer is bound to act cautiously when overtaking and getting near to a small and slow one, and a collision having occurred between two steamers of this sort, a minor fault of the small and slow steamer was held not to make a case for division of damages where such fault bore but a little proportion to many faults of the large and fast one.
7. When, in a case of collision, it appears that one of the vessels neglected the usual and proper measures of precaution, the burden is on her to show that the collision did not occur through her neglect.
APPEAL from a decree of the circuit court for the District of Louisiana, which court, on appeal from the district court sitting in admiralty, had dismissed a libel filed by the steamer Cleona against the steamer Great Republic, for a collision.
The case was thus:
At about five o'clock on the afternoon of the 28th of
August, 1869, the Cleona, a small stern-wheel steamer of one hundred and eighteen tons and whose speed was about seven miles an hour, left New Orleans bound up the Mississippi to Donaldsonville (a place seventy-five miles above New Orleans), with an assorted cargo of merchandise for various plantations on the two banks of the river. In a little more than half an hour afterwards, the steamer Great Republic, a heavy side-wheel vessel of two thousand two hundred tons, running at the rate of twelve or fourteen miles an hour and therefore one of the fastest on the Mississippi, set off up the river bound on a voyage to St. Louis. The Cleona, as she went up the river, had been all the time and was now in her full view.
Sailing up the stream, the Cleona had now twice made landings, first at what is known as the Stock-wharf, in the upper part of New Orleans, and afterwards at a point known as the Nine-mile Point, a point above the city on the opposite or western bank of the river.
Having made this second landing, she steered for the other or eastern bank -- the stream being in all this part of it about half a mile wide -- and then, after straightening up and running for some time parallel with the eastern bank and within about forty-five yards of it, turned somewhat shortly to cross to a place called Waggaman's Landing, on the western side, at which she wanted to discharge a part of her cargo. She was now perhaps two miles above the Nine-mile Point.
The Republic, from the time that she began to overtake the Cleona, had followed much in her course -- this line perhaps being the one indicated more or less by the channel -- and was so following when the Cleona steered from the Nine-mile Point to the eastern bank. Of course the Republic was rapidly gaining on the Cleona, and if no catastrophe had occurred, would have passed her.
By the rules of navigation on the Mississippi, one whistle from the steam pipe indicates that a steamer wishes to pass on the starboard or right side, two, that she wishes to pass on the larboard or left, and three or more that she is going to cross and land.
How far the Republic was behind the Cleona when the latter turned from the eastern bank to cross to Waggaman's Landing was a matter about which the testimony was widely discrepant, the witnesses in behalf of the Cleona asserting that it was from six hundred to seven hundred and fifty yards, while those of the Republic fixed it, some of them, so low as forty yards, while all brought it within three hundred.
The river, as already said, was in this part of it a half a mile wide. There were no obstructions in it. Dusk was supervening, but it was not dark, objects being visible to both vessels alike on the shores and on each other.
When the Cleona turned to cross from the eastern bank to Waggaman's Landing, the captain of the Republic, whose watch it was, was on the lower deck of the steamer conversing with a passenger. The passenger saw the Cleona turning, and said to the captain, "Why, she is taking a sheer." The pilot of the Republic was of the same impression. Instead, therefore, of keeping his own course, he followed the Cleona's. He perceived, however, before very long his mistake, as did all on both vessels very soon that a catastrophe was impending.
What signals were given in this state of things was, as usual in cases of collision, a matter where the evidence conflicted. But the result of the conjoint courses of the two vessels and action on board of them -- that is to say, on the one hand, of the Cleona's turning short to cross when the Republic was so near behind, and one the other, of the Republic's supposing that the Cleona still meant to go up the river, and attempting to follow her -- and either of improper signals or inattention to right signals on one or other of the vessels, or on both -- was a collision by which the Cleona was careened, her stern end cut off, and two persons thrown off her into the river and drowned, a catastrophe the more deplorable since the evidence made it plain that if the boats had had fifteen seconds more time -- if one of them had been ten feet further on or the other ten feet further off -- all misfortune would have been avoided, and that even five feet
in the change of their positions would have prevented any serious injury.
We have already said that the testimony was discrepant.
The pilot of the Republic testified thus:
"When I arrived below the Twelve-mile Point, I saw the Cleona sheer to the larboard. She gave no signal when she thus started. After she had been running out about half a minute, she gave the signal -- two blasts of her steam whistle, which were given just as fast as a man can blow them on a steamboat -- and continued her course out. As soon as I saw her sheer to the larboard, I too pulled to the larboard and was so swung -- all helm -- thinking that she was running off from the shore. When she started off to the larboard, I was below her in the current from two hundred and fifty to three hundred yards, and to the larboard of her about the same distance. Immediately after she sheered, I pulled my boat, as I have said, to the larboard, rang first both stopping bells and then the backing bells. I then told the boat's clerk, who was in the pilot house at the time, to halloo through the trumpet on the larboard to the engineer to 'back hard.' I hallooed the same thing through the starboard trumpet. The engineer on that side hallooed to me that the boat was backing as hard as she could. I cannot say how long the Republic had been backing when she struck the Cleona. The Republic being a low pressure boat, it is impossible for the pilot to tell when she is backing until he feels the vibration of the wheels. It was, I suppose, about half a minute from the time the backing bells were rung until the collision occurred -- not over half a minute. From the vibration of the boat, I was certain that the Republic was backing before she struck the Cleona."
The engineer of the Republic testified thus:
"The bells on both sides were rung to stop both engines. The engines were stopped immediately. Then the check bells, one on each side. This was a notice to us to prepare to back. The engines were checked immediately. Then the backing bells rang on both sides. Both engines backed immediately. No time was lost in obeying these orders. My assistants were very good assistants, and handled the engines very well."
"I did not see the collision nor feel the jar of it. I knew
nothing of it until some time after it had occurred. I therefore don't know how far the Republic was from the Cleona at the time the bells were rung, nor what length of time elapsed between the first ringing of the bells and the collision; but we were alongside of the Cleona before the larboard engine was stopped. I saw her from the engine room. The Great Republic, if going up stream at twelve to fourteen miles an hour, can be stopped dead in seventy-five yards. We can stop her in this way because she is a low-pressure boat."
Witnesses, including the pilot from the Cleona, testified, on the other hand, that as the Cleona's head was directed across the stream, one blast of the whistle was blown as an indication for the Republic to keep to the right, which, had she done it, would have prevented all injury; that the Republic not minding that signal, the signal was repeated in about one minute and a half afterwards; that the Republic neither answered nor obeyed the signals, but kept running on; that the pilot of the Cleona, seeing a collision impending and one which, if the two vessels kept their then courses, would cut the Cleona in two, ordered on all head of steam and headed his vessel downstream so as that the blow, if inevitable, might cut her wheel off, or cut off only an edge of her stern; that by this maneuver the injurious effect of the collision was mitigated; that notwithstanding this, the Republic came upon the stern extremity of the Cleona with tremendous force, causing her to turn partially over, and throwing, as already stated, two persons overboard, who were drowned, and wholly disabling the Cleona, whose surviving passengers sought safety on the Republic.
A witness who had been a passenger on the Republic also testified to the bad action of her pilot and to other unfavorable matters. He said:
"I am a pilot by profession, and have been for sixteen years. When the Cleona swung round to cross, Mr. Fulkerson, one of the pilots of the Republic (not at the time in charge of the wheel), with whom I was conversing, said: 'Look at that fellow. What is he going to do?' I replied, 'I suppose that he is going over the river to land.' I think that it was prudent for the
Cleona to have attempted to cross the river where she did if she had business on the other side. She was then from three hundred to five hundred yards ahead of us. I do not think that at that time the Republic could have passed between the Cleona and the shore. The Cleona blew two whistles; two distinct blowings. Had not the Republic changed her course, there would have been no collision. A little before the collision, and when the Republic was about one hundred yards from the Cleona, Mr. Fulkerson remarked to me that if his partner (that is to say, the pilot then in charge of the wheel) did not stop the Republic, she would be into the Cleona. I do not know whether her wheels were stopped at all before the blow. The Republic gave no signal. Properly it was her duty to give the first signal, stating which side she would take, as she was gaining on the Cleona."
Testimony was brought in behalf of the Cleona to show that when "ashore," the pilot of the Republic was addicted to drinking spirituous liquor, and had been drunk on shore, though the witness "had never seen him at the wheel in an intoxicated state."
The pilot himself, on cross-examination, said:
"I sometimes drink spirituous liquors. I took none for six hours before the Republic left port on that day. I could not say how many drinks I took. I did not keep any account of them."
The court below (herein affirming the decree of the district court) considered that the Cleona had crossed the river without proper signaling, too much under the bow of the Republic and in the current, and that this was the cause of the disaster.
Its view was thus expressed:
"The act of crossing the bow of a boat when in close proximity is forbidden by the rules of navigation, and is a most dangerous and reprehensible action at any time. No prudent pilot will attempt it. In the case of the Cleona, it was doubly dangerous as the Republic was gaining on her so rapidly that a collision was probable, especially as the weight of proof seems to show that the signal of the Cleona was two blows of her
whistle, which signal the pilot of the Republic was bound to interpret as an order to pass to the larboard, which he did."
"When the Cleona first started out from the shore, she gave no signal to indicate her course, as she ought to have done, and when, in response to the two blows of the Cleona, the Republic pulled to the larboard, prudence should have dictated to the pilot of the Cleona to have stopped his boat at once and to have backed her heavily instead of ringing his bell to crack on all steam and cross at all hazards. The pilot of the Republic was indeed guilty of a deviation from the rules and observances of navigation in not answering the signal of the Cleona, and though he acted promptly in letting his boat fall off to the larboard, he ought, in strict duty, to have answered the signal; but this omission had nothing to do with the collision, for his course was fully observed by apparently all on board the Cleona, and the pilot of the Cleona, if he thought that there was a misconstruction of his signal, should at once have stopped his engines and reversed. If this had been done a collision would not have taken place."
From a decree of dismiss of the libel, made on this view, the present appeal was taken.
By the Act of Congress of April 29th, 1864, entitled "An act fixing certain rules and regulations for preventing collisions on the water," [Footnote 1] it is enacted:
"ARTICLE 16. Every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed or if necessary stop and reverse."
"ARTICLE 17. Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel. "