US SUPREME COURT DECISIONS

1. A vessel astern of another cannot be held in fault for not complying with the rule which obliges the rear vessel to keep out of the way of one ahead, when it is so darn that the latter vessel cannot be seen by the former.

2. As a general rule, there is no obligation on a sailing vessel proceeding on her voyage to shorten sail or lie to because the night is so dark that an approaching vessel cannot be seen.

3. A collision resulting from the darkness of the night, and without the fault of either party, is an "inevitable accident."

About the 6th of August, 1855, the brigs Jerry Fowler and chanrobles.com-red

Page 69 U. S. 551

Morning Light, in a dark and rainy night, were pursuing a voyage off the coast of Rhode Island through Buzzard's Bay and Martha's Vineyard, eastward, with the wind from the northeast, the Jerry Fowler being the head vessel and the Morning Light in her rear, both vessels running on their starboard tacks on about a common course. At 4 o'clock in the morning of that day a collision occurred between them, the stem or bows of the Morning Light breaking through the starboard side of the Jerry Fowler near her main rigging, so that the latter vessel, with her cargo, was, by the collision, sunk, and became a total loss.

The Alliance and other insurance companies, who had connectedly underwritten upon the Jerry Fowler in stated proportions, paid the amount of their policies, and unitedly filed their libel in the District Court for the Southern District of New York (Betts, J), to recover from the Morning Light the sums so paid. The answer set up inevitable accident as a defense.

The Jerry Fowler, at the time of the collision, was either in the act of completing her tack or had just come round from the larboard to the starboard tack, and come underway on the last tack; the evidence as to her particular position when the two vessels came in contact not being exactly concurrent upon that fact on either side. She was tacked, not because of any actual necessity from the nearness of shoals or dangerous impediments, but because her master thought she had approached so near the Cutterhunk Shoals as to render it proper, in the darkness of the night, to change her course. It proved she was not, in reality, within five or six miles of the supposed reefs.

The wind was about a five or six knot breeze during the greater portion of the night, but it was not steady. There were fogs, and the rain came on in fog showers. Neither vessel had unusual sail up, and both appeared to have been well manned and navigated with care. There was no attempt to prove that the Morning Light had, at any time, shortened sail or lain to.

The witnesses on each vessel asserted that a light was suspended chanrobles.com-red

Page 69 U. S. 552

in a place for being easily seen from the other, and on each side it is asserted that neither discovered any light exhibited upon the other vessel. The witnesses on the Morning Light testified to a darkness so extreme as to disable them discerning objects distant less than her length off. Some on the Jerry Fowler state that they saw the other vessel coming upon them half a mile distant. But in their sworn protest, made directly after the accident, they represented the darkness to have been so extreme at the time of the collision as to prevent their seeing objects beyond a slight distance off. The protest, signed and attested by the crew of the Jerry Fowler, was made at Portland, Maine, on the arrival at that port of the Morning Light with those men within three or four days after the collision, and the representation made by those men at that time of the thickness and darkness of the weather corresponds essentially with the evidence of the crew of the Morning Light on the final hearing.

The district court held that the evidence showed a case of inevitable accident between the two vessels, or if there was, at the time of the collision between the two vessels, any culpable inattention or misconduct which conduced to produce the collision, the fault therein was a common one to both, arising from the obscure state of the weather, the want of extreme vigilance and precaution in making further signals on board both vessels or even coming to anchor, and the uncertainty from that cause, to each vessel, what was the proper and prudent course for either to pursue in respect to the other vessel or its own individual navigation. That if it was imprudent and hazardous with the Morning Light, having knowledge that the Jerry Fowler was probably ahead in the direction she was steering, to continue a course which might have been concurrent in both vessels during the night, because the darkness had then become so dense and continuous as to prevent her position being seen by the vessel astern of her, it was no less faulty in the Jerry Fowler to put about in that state of darkness, when not impelled to depart from her previous course by any necessity of navigation, chanrobles.com-red

Page 69 U. S. 553

when such evolution might place and leave her in a helpless condition, in the probable path of the approaching vessel, until the latter should be so near her before she could be seen, to disable either one from escaping a collision. That upon the proofs no necessity was shown for the Jerry Fowler to make a tack for her own safety, or as an act of prudence or good seamanship, a distance of five or six miles off the reefs she intended to avoid, and that no higher necessity was shown for the Morning Light to come to in that state of the weather than for the Jerry Fowler to have done so also. That comparing the testimony given by the crew of the Morning Light with the statement in the protest made directly after the occurrence by the crew of the Jerry Fowler, the fair weight of evidence was that all hands aboard each vessel were bewildered and confused by finding themselves in sudden and dangerous proximity to each other in a thick fog, and that the collision consequent thereto was the result of accident common and unavoidable to both. That each party, under the circumstances, was accordingly bound to bear his own loss. The district court accordingly dismissed the libel.

On appeal to the circuit court, the same view was taken of the evidence, and the decree was affirmed. It was from this second decree that the case came here by appeal.