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THE WENONA, 86 U. S. 41 (1873)

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U.S. Supreme Court

The Wenona, 86 U.S. 19 Wall. 41 41 (1873)

The Wenona

86 U.S. (19 Wall.) 41


A steamer condemned for a collision with a sailing vessel, the wheelsman, mate, captain, and other witnesses on the sailing vessel swearing positively to courses and distances and times immediately prior to the collision, and these showing that the steamer was in fault; while though there was strong evidence on the steamer's side to show that these courses, distances, and times could not have been truly stated by the witnesses in behalf of the sailing vessel, this evidence was inferential chiefly; consisting of conclusions or arguments drawn from other facts sworn to, as ex gr., the lights which the steamer saw and the lights which she did not see on the sailing vessel, and the effect of giving credence to this inferential or argumentative testimony being to convict as of necessity the witnesses for the sailing vessel of perjury.

About nine o'clock in the evening of the 29th of November, 1869, heading east by north half north, the steam propeller Wenona was on her course down Lake Erie; her rate about ten miles an hour. The evening was somewhat dark and it was raining. There was a little mist on the water, but not enough to make what is called a fog. The wind was south, or south by east.

Going up the lake at the same hour, then, and for a half hour before, heading southwest by west half west, was the chanroblesvirtualawlibrary

Page 86 U. S. 42

schooner Fremont, her rate five or six miles an hour, all her canvas set, close-hauled, though making some leeway.

Both vessels were well officered and had their proper lights properly stationed.

The vessels as they approached saw each other. The steamer saw that the vessel coming up was a sailing vessel, and the schooner before long saw that the vessel coming down was a steamer. The schooner kept on her course till a certain moment, when she changed her course. The steamer kept on her course till a certain moment, when she changed hers also. A collision took place, and the schooner with her cargo went to the bottom of the lake; her officers and crew having barely time to escape with their lives.

Her owner hereupon libeled the steamer in the admiralty. The question in the case was a pure question of fact. Did the steamer change her course, as she was bound by the rules of navigation to do, in time to enable the schooner safely to keep on hers? Did the schooner, when she changed her course, change it because the vessels had got so near that a collision seemed inevitable if she did not do so?

The question, of course, was to be decided by the evidence.

The lookout, on duty at the time was examined -- a man who had been a sailor for fifteen years, eleven of them on the ocean, and the rest upon the lake. He said:

"I was forward on the vessel. Our course was southwest by west half west. I saw the propeller's light -- at first a bright light, right ahead. I reported it to the officer of the deck. He answered, and said 'I see it.' A minute or two afterwards I saw green and red lights; and I reported to the mate that there was a steamer ahead. The mate lit the torch and made a flash light. It was lit twice. It was a turpentine torch, and made a flash for two or three seconds. I watched the lights on the steamer; they appeared to me dead ahead, and seemed, if anything, to be gaining a little to the windward, until they opened out to our port bow, which was our weather bow. I could then see the red and bright light but not the green. The next thing I could see was that her green light shut in for a short time,

Page 86 U. S. 43

and I saw the red and bright light but not the green. Then both green and red opened out brightly, and the vessel seemed to be coming down on us; and to be not more than three times her own length from us, perhaps not that. I called the men below, to come on deck and to look out for themselves. In four or five minutes from the time I saw the bright light, as near as I can give it -- it might have been more or less -- it could not have been many minutes more -- the steamer struck us between stem and cathead, at an angle of something more than forty-five degrees. She was under way and came stem on."

The mate, whose business for twenty-eight or twenty-nine years had been sailing, said:

"The captain came on deck as the second torch was lit; whether he or the cook lit it I can't say; one or the other. The propeller was then pointed right to us. The schooner's course had not been changed. Her course was southwest by west half west. I know that from the compass, and I am swearing from what I know of the compass course. She had been on that course since a little after eight o'clock. She kept on that course till the time the captain came on deck. When the propeller was standing right over, us the captain gave order to the man at the wheel to 'hard a-port.'"

The wheelsman, who had been for three years on the ocean, for ten upon the lakes, and for the last-mentioned term in the habit of steering, said:

"After the lookout reported a light, I saw the light of the propeller; a bright masthead light. Our course -- southwest by west half west -- was taken before we saw that light. After I saw the three lights, the propeller put off suddenly to the windward three or four points or more. It took her five seconds to go off to windward; I could not tell the time; it was sudden. I first saw her dead ahead, and then to windward. She shot to windward. When the vessels came together our course might have been west by south half south. The captain sang out, 'Put the helm hard up,' and the change was made. The propeller was then off our port bow, heading about midships for us, and our vessel was then perhaps half her own length from her. If I had not put the helm hard up, the propeller would

Page 86 U. S. 44

have struck us at the fore-rigging. I put the helm hard a-port. No other change was made in the course of our vessel from the time the white light was reported down to the collision."

"I saw the bright light about eight minutes before the collision. The propeller must have then been a mile and a half from us. When I first saw her three lights, I judge she might have been a quarter of a mile from us. She got three or four points off our port bow or more. This was not many minutes before the collision. It may have been two."

The aster, who was also the owner of the vessel, and had been sailing on the lakes for twenty years, said:

"I was in may cabin reading a newspaper. I heard through the windows the lookout report, 'Light ahead.' The mate said, 'Steady. Don't let her fall off.' The mate then said to me, 'Light this torch,' handing it to me. I dropped my paper and lit it. In about a minute, I heard another report in the cabin, 'It's a steamer; she is coming right for us.' The torchlight would only burn two or three seconds. The mate asked me to light the torch again. I said, 'I have no time; the cook will do it.' I jumped on deck and got on the cabin top. I watched the lights for a few seconds. When I first saw them they were about half a mile off, probably less. I watched till the lights got pretty close to and the green light almost shut in. At this time I could see the port side of the hull, a kind of glance of it. The boat seemed to come in that style till within about four times her length of us, and then she straightened up and came towards us. I asked the man at the wheel how our vessel was heading. He said she was on her course. The propeller seemed to starboard her wheel suddenly, when she was perhaps one hundred feet or more from us. I then ordered our wheel hard a-port, hard up. The propeller struck us. The collision took place in tworhaps one hundred feet or more from us. I then ordered our wheel hard a-port, hard up. The propeller struck us. The collision took place in tworhaps one hundred feet or more from us. I then ordered our wheel hard a-port, hard up. The propeller struck us. The collision took place in two or three minutes after I got on deck; I can't tell well about the time. It was not more than five or six minutes after the first report of 'Light ahead.'"

The cook, who was also steward, one Clements, gave his account of what part of things fell under his observation, as follows:

"At the time of the collision, I was on deck. Before that I had been below. I heard the lookout report light ahead. The

Page 86 U. S. 45

mate answered, 'All right,' or something to that effect. Then I heard the mate report to the captain that the light did not appear to alter its course. The mate was standing on deck looking down in the cabin. Then the captain got up and looked out of the companionway, and told the mate to light the torchlight. I got the matches to light the torch, and gave them to the captain. He lit the torch. Then the mate swung it under the leeside of the boom. Then, while he was swinging the light, I looked up the scuttle to see if I could see the propeller light myself. I did see a bright light. It was right ahead; might be half a point on the weather bow. Then I heard the captain say, 'Light the torchlight again,' and I went to the cabin and gave some matches again to the captain and he lit the torch. The mate showed the torch lighted at the same place as before. Then I went to look up through my scuttle again, and I could make out the whole three lights of the propeller bearing right down upon us. I could then just begin to see the hull loom up. In hazy weather like that, I cannot give any estimate of distance. I see the captain then jump atop of the house and hail the propeller. He sung out two or three times, but what words he said I cannot say. Then the vessels came together."

There was no lack of testimony on the other side.

It tended to show, and some of it positively enough, that the first light which the steamer saw on the schooner was the torchlight, dead ahead, or, if anything, a quarter or half point on her port bow; that this light was seen eight or ten minutes before the collision; that in a short time afterwards, the green light of the schooner was seen dead ahead or, if anything, on the propeller's starboard bow -- this, of course, indicating that the schooner was passing to the starboard, so that the vessels would pass starboard to starboard -- "green to green;" that the second torchlight was then seen, and still the green light alone, opening on the propeller's starboard bow, from dead ahead to one or two points on that bow. So that whatever might be thought about "leeway," there was still no danger, nor appearance of danger; that after the green light had been thus opened until it was about a point and a half or two points on the propeller's chanroblesvirtualawlibrary

Page 86 U. S. 46

starboard bow the green light suddenly became invisible, and the red one shot in sight a minute or two before the collision, and appearing about one and a half or two points off the propeller's starboard bow, appearing as soon as the green one became invisible; that the schooner was estimated by those on the propeller to be then from an eighth to a half of a mile on the propeller's starboard bow; that they conceived that this indicated that the schooner had changed her course and was crossing the propeller's bow; that the propeller then put her wheel hard a-starboard, stopped, and backed her engine.

All this part of the case was made out by the statements of witnesses who, as to exact times and distances, were in opposition to the witnesses of the other side, and were in certain particulars not absolutely consistent with each other.

So at least the district court thought, and it therefore decreed for the libellants, condemning the Wenona for the loss of the schooner and her cargo.

The circuit court, on a more favorable view of the evidence of the respondent, reversed that decree, and the owners of the schooner brought the case here to reestablish, if they could, the decree of the district court.

There was no denial that the propeller was well officered, with a good watch &c.; the chief allegation being that they had wholly mistaken distances, and so committed fault. chanroblesvirtualawlibrary

Page 86 U. S. 51

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