APPEALS from the Circuit Court of the United States for the Southern District of New York. The facts are stated in the opinion of the court.
The opinion of the court was delivered by: Mr. Chief Justice Waite delivered the opinion of the court.
Mr. William Allen Butler for the 'Civilta.'
Mr. Lucius E. Chittenden for the 'Restless.'
Mr. Robert D. Benedict, contra.
This is a suit for damage by collision, begun by the owners and master of the schooner 'Magellan' against the ship 'Civilta' and the tug 'Restless.' The libel alleges that the schooner was heading about northeast, having her booms on her port side, and making about two and a half or three knots an hour, and that 'the tug was towing the ship at the rate of about eight or nine knots an hour and headed for the schooner until she was very near to her, when she suddenly sheered to port across the bows of the schooner and just cleared her, but brought the ship down on the schooner.'
The answers both of the tug and the ship state that the course of the tug with the ship following in her wake was southwest and that of the schooner about northeast, which if kept would have carried her at a safe distance on the starboard side of the tug and ship; that the tug and ship kept steadily on their course, until the tug passed the schooner, when the schooner suddenly kept away to the right between the tug and the ship, ran on to the hawser, and was sunk. In this way was presented the principal issue of fact in the case.
The findings were substantially as follows: The tug was towing the ship from New Haven to New York by a hawser about two hundred and seventy feet long, leading astern from the tug. The ship had on board a pilot and the tug was subject to his orders. The night was clear and pleasant and lit by the moon. The wind was light and a little to the west of south. The ship and tug were going between seven and eight knots an hour. The collision occurred a little to the westward of Sand's Point.
The schooner was bound to Boston. She was sailing free with her booms off to port, and was making from two to three knots an hour. Her lights were properly set and burning brightly, as required by law. She had a competent man at her wheel and a competent lookout, and each of them faithfully performed his duty. Her course was about northeast, and it was not changed before the collision.
The ship and tug were seen by those on the schooner bearing a little on their port bow, and the schooner was seen by those on the ship and tug bearing a little on their starboard bow. The courses of the schooner and the ship and tug and the each other just ahead of the tug or between the tug and the ship. The tug did not slow her engine until the schooner had got up to her, and did not stop till the schooner was just striking the hawser. The tug did not change her course until the schooner was up to her or nearly so, and the tug and ship had changed their course about a point to the south before the collision.
The ship struck the schooner on her port side at about the fore-rigging and sunk her. The lights of the schooner were not observed by those on board the tug or those on board the ship, and those on board the tug and ship mistook the course of the schooner. The pilot on the ship gave no orders to the tug.
Upon these facts the court below gave a decree against both the ship and tug and apportioned the damages, one-half to each, with a provision that if either of the vessels should prove insufficient to pay its share the residue might be collected from the other.
The ship and the tug have taken separate appeals.
It was substantially conceded in the argument that upon the findings the schooner is entitled to recover her damages either from the ship or the tug. The effort of each of the respondents has been to throw on the other the entire responsibility for the loss. On the part of the tug, however, it was contended that the findings do not meet the issues raised by the pleadings, but in this we think counsel are in error. It is quite true the finding is that the courses the vessels were on crossed each other just ahead of the tug, or between the tug and the ship, when there is no express averment to that effect either in the libel or the answer, but the finding is certainly not inconsistent with anything that is alleged. A southwest course would be parallel with a northeast course, and the two could not cross; but in the libel it is averred that the schooner was heading about northeast. Such, also, is the statement in the answers, and the finding is the same. A course which varied even a little from northeast might cross one that was southwest. The libel charges the tug with suddenly sheering to port, while the tug and ship say the schooner suddenly kept away to the right. The finding is that the schooner did not change her course, and that the ship and tug only went off their course one opint to the south. Upon the findings courses crossed eac other with occurred because the original courses rossed each other with the vessels in dangerous proximity, and not because of a sudden change of course by the tug as alleged. This we think sufficient.
Upon the findings as they stand we think the decree below was right. The ship and the tug were in law one vessel, and that a vessel under steam. It was their duty, therefore, to keep out of the way. Whether the one vessel, which the two constituted for the purposes of ...