Supreme Court of United States.
*38 Mr. George B. Hibbard, for the appellant.
Messrs. Spalding and Dickman, contra.
*40 Mr. Justice CLIFFORD delivered the opinion of the court.
Appeals under the additional act "to amend the judicial system" are subject to the same rules, regulations, and restrictions as are prescribed in case of writs of error.[*] Both parties in a civil action may sue out a writ of error, to a final judgment, but where one party only exercises the right the other cannot assign error in the appellate court; and the same right to remove the cause from the subordinate to the appellate court for re-examination is secured to both parties by the act of Congress allowing appeals, instead of writs of error, in cases of equity or of admiralty and maritime jurisdiction, or of prize or no prize, as provided in the second section of the act allowing such appeals.[] Subject to the same rules and regulations as in case of writs of error, both parties may appeal, in an equity, admiralty, or prize suit, from the final decree of the subordinate court, but the appeal, when entered in the appellate court, is also subject to the same restrictions as are prescribed in case of writs of error. Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the *41 appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken.[*] Apply that rule to the present case and it is clear that the appellees cannot be heard in opposition to the decree of the Circuit Court, as they did not appeal from that decree.
They were owners and freighters of the steam propeller Cleveland, and they filed the libel in the District Court in a cause of collision, civil and maritime, against the bark Maria Martin to recover damages for the loss of the steamer and her cargo on the twenty-second of June, 1867, occasioned by a collision between the bark and the steamer, near the mouth of the Detroit River, whereby the steamer, with all her cargo on board, consisting of sugar, and other merchandise of great value, was sunk in five fathoms of water and became a total loss.
Four days before the disaster the steamer started from Ogdensburg, in the State of New York; and she was bound on a voyage from that port to the port of Chicago, in the State of Illinois, laden as aforesaid, and having fifty persons on board as passengers. None of these facts are denied by the claimants, but the libellants also allege that the collision was occasioned without any fault on the part of the steamer, and by the negligence, inattention, and want of proper care and skill on the part of those in charge of the bark, which is expressly denied in the answer.
Heavily laden with a cargo of grain, the bark was proceeding down the river, and was bound on a voyage from Chicago to Buffalo, in the State of New York, both the colliding vessels being duly enrolled and licensed for the coasting trade on those waters. Propelled by her own motive power the steamer had complete and effective command of her own movements. On the other hand the principal motive power of the bark was the engine of the tug, with which she was connected by means of a hawser paid out *42 from the forward part of the vessel, three hundred feet or more in length, and made fast to the samson post of the tug, being what is called in such navigation a stern line, as the design was that the vessel without motive power should follow the tug which had her in tow, but the bark on this occasion had unfurled, or "pretty well made," her mainsail, and her mainstaysail, as she had nearly reached the place in the river where vessels in tow usually cast off from the tug, and her master and other officers were in charge of her deck.
Prior to rounding Bar Point, on the Canada shore, the course of the steamer had been west by north, but shortly after passing that point she changed her course to north by east, and headed for Bois Blanc light, as alleged by the libellants. In coming round, or immediately after she was put upon her new course, she made the lights of the tug and tow descending the river towards the lake, heading south-southwest, at the distance, as supposed, of two miles, and not far from two o'clock in the morning.
Attempt is made in argument to show that the lookout of the steamer was incompetent, but the objection is without any legal importance, as the lights of the tug and tow were seasonably seen by all those in charge of the deck of the steamer. They first made the red signal light of the tug and of the tow half a point over their starboard bow, and the evidence shows that the tug having the bark in tow made the green signal light of the steamer one-fourth of a point over her port bow.
Mutual fault is charged, that is, each charges the other with fault, and it is quite evident that one or both must be guilty of the charge, as neither imputes any fault to the tug, and the evidence fully satisfies the court that it was good weather, a bright starlight night, a moderate wind, and smooth water.
Where negligence or fault is shown to have been committed by either party the rule that the loss must rest where it fell, as in case of inevitable accident, can have no application, for if the fault was one committed by the claimant's vessel *43 alone, then the libellant is entitled to recover; or if by the libellant's vessel alone, then the libel must be dismissed; or if both vessels were in fault, then the settled rule of law is that the damages must be apportioned between the offending vessels.[*]
Doubtless the district judge applied the second rule, as he entered a decree dismissing the libel, but the Circuit Court came to the conclusion from the evidence that both of the colliding vessels were in fault, and reversed the decree of the District Court, and entered a decree that each should pay a moiety of the damages and their own costs, and from that decree the claimants of the bark appealed to this court, but the libellants did not appeal, and of course they cannot assign error nor can they be heard in opposition to the last-named decree. On the contrary the decree is conclusive as against the libellants, that the steamer was in fault, and the only question presented by the appeal of the claimants is whether the Circuit Court erred in determining that the bark also was in fault, for if she was, then the decree of the Circuit Court must be affirmed, but if she was not, then the decree of the Circuit Court must be reversed, and the cause remanded with directions to enter a decree affirming the decree of the District Court.
Vessels engaged in commerce are held liable for damage occasioned by collision on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel.
Allusion was frequently made in the course of the argument to the fact that the bark was in charge of a tug, which renders it necessary to make one or two remarks upon that subject before proceeding to examine the real question presented for decision.
*44 Whenever the tug is under the charge of her own master and crew, and in the usual and ordinary course of her employment undertakes to transport another vessel, which for the time being has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary, or usually employed, she is legally responsible for the navigation of both vessels. Cases arise, undoubtedly, where both the tug and the tow are jointly liable for the consequences of a collision, as when those in charge of the respective vessels jointly participate in their control and management, and the master and crew of each vessel are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Where the officers and crew of the tow, as well as the officers and crew of the tug, participate in the navigation of the vessels, and a collision with another vessel ensues, the tug alone, or the tow alone, or both jointly may be liable for the consequences according to the circumstances, as the one or the other or both jointly were either deficient in skill or were culpably inattentive or negligent in the performance of their duties.[*] Much examination of that subject, however, is unnecessary in this case, as neither party imputes any fault to the tug, and it is clear from the evidence that the imputation, if made, could not be sustained, as it fully appears that she seasonably ported her helm and allowed the steamer to pass her in safety.
All three of the vessels, that is, the tug, the tow, and the steamer, had their signal lights properly displayed, and the respective lights were burning brightly and were easily distinguishable. Suggestion is made that the lookout of the steamer was incompetent, but the suggestion is entitled to no weight, even if it be well founded in fact, as the proof is entirely satisfactory that the two colliding vessels were seen by each other in season to have taken every precaution to have avoided a collision. They were approaching each other from nearly opposite directions, which clearly rendered it *45 proper, as between the tug and the steamer, that each should port their helms and pass to the right. Seasonable attention to that rule would certainly have prevented a collision if the tow had followed the movement of the tug, as she was bound to do, without unnecessary delay.
Although the bark was larger than the steamer, yet her headway was about the same as that of the steamer, as she was somewhat aided by the current in addition to the motive power of the tug. Larger in size and of greater length than the steamer she probably would not obey her helm quite as quick as the tug or the steamer, but the evidence in the case fails to satisfy the court that the difference in that respect contributed in any degree to the collision.
Probably those in charge of the steamer hesitated for a time as to which side of the tug they would pass, as they proceeded on their course, heading nearly stem on, until the tug and steamer approached within half a mile or less of each other, when the tug sounded one whistle and in half a minute repeated the same, as a signal that she wished the steamer to pass on her port side. To that signal the steamer responded, giving one whistle to signify her assent to that request, and immediately ported her helm, and the tug at the same time ported her own helm, turning the vessel half a point to the starboard, and became steady on her course, the tug and steamer passing each other port to port, leaving a berth between the vessels of about one hundred feet, as appears by the weight of the testimony.
Undisputed proof is exhibited that the steamer ported her helm, and that she turned to the right half a point and then steadied and continued her course, and it is quite clear that there would have been no collision if the bark had ported her helm and followed the tug, and it is highly probable that the disaster would not have happened if she had kept her course without changing her helm, but she neither ported her helm nor kept her course, as is fully shown by the evidence. Instead of turning to the right, as she should have done, she starboarded her helm when the steamer was alongside the tug and sheered to port, shutting out from the steamer *46 the view of her red light and showing only her green light, and continued on that course till she struck the steamer. Orders were given by those in charge of the steamer to put her helm hard-a-port, but it was too late, and the collision took place.
Many theories have been advanced by the claimants as showing that the bark did not sheer, but it is not possible to adopt any one of them without rejecting conceded facts or facts fully proved, or without coming to the conclusion that the two vessels did not collide, which would be in direct conflict both with the libel and answer and the testimony of every witness in the case who was present when the steamer sunk in the river.
Ingenious efforts are also made in argument to show that the berth between the steamer and the tug when they passed each other was not so great as that represented by the libellants. Suppose that theory be admitted, still it cannot benefit the claimants, so long as it is conceded that the distance between them at the time was sufficient to enable them to pass in safety, and that the steamer, while they were abreast, ported her helm and turned to the right, which is as satisfactorily proved as it is that the steamer and tug passed each other in safety.
Proved as these facts are beyond doubt, it is vain to suppose that any theory can be adopted by the court which will make it necessary for the court to shut their eyes to the evidence by which those facts are established. Suffice it to say, the collision did occur, and the court is satisfied that the wheelsman of the bark misunderstood the order to port and supposed it was an order to starboard preparatory to casting off from the tug. He knew that the bark, while she continued in tow, ought to follow the tug, but they had reached the place where vessels in tow usually cast off from the tug, and the master was engaged in adjusting the towage account, and all on deck were looking for the order to cast off, and under those circumstances it is less strange than it otherwise might have been that the wheelsman should have made such a mistake. Undoubtedly it was a great mistake, *47 but it has been fully proved, and it is clear that the collision would not have occurred if it had not been made.
Whether the steamer was or was not also in fault is not a question in this case, as that question was conclusively settled in the Circuit Court, but it may not be improper to remark that if she was so it was because she did not put her helm bard-a-port before she passed the tug, and the moment those in charge of her navigation noticed that the bark had shut in her red light and began to display her green light, showing that she had starboarded her helm and was turning to the left.
Errors committed by one of two vessels approaching each other from opposite directions do not excuse the other from adopting every proper precaution required by the special circumstances of the case to prevent a collision, as the act of Congress provides that in obeying and construing the prescribed rules of navigation due regard must be had to the special circumstances rendering a departure from them necessary in order to avoid immediate danger.[*]
Viewed in the light of that exceptional rule, the better opinion, perhaps, is that the entire decree of the Circuit Court was correct.
DECREE AFFIRMED.
[*] 2 Stat. at Large, 244.
[] 1 Ib. 84; 2 Ib. 244.
[*] The William Bagaley, 5 Wallace, 412; The Quickstep, 9 Ib. 665; The Alonzo, 2 Clifford, 550.
[*] The Morning Light, 2 Wallace, 557; Union Steamship Co. v. New York and Va. Steamship Co., 24 Howard, 313; The Catharine, 17 Ib. 170.
[*] Sturgis v. Boyer, 24 Howard, 121; Sproul v. Hemmingway, 14 Pick. 5
[*] 13 Stat. at Large, 61.
