Pacific Navigation Co. v. Allen

Opinion of the Court, by Preston, J. This is an appeal by the Pacific Navigation Company from [14] a decision of the Chief Justice whereby he held the steamer J. I. Dowsett solely to blame for a collision which happened between that vessel and the schooner Moiwahine, on the night of the 29th of June, 1886, and awarded the sum of $676.30 to the owners of the schooner for damages sustained by reason of such collision. The facts of the case appear fully in the decision of the Chief Justice and need not be repeated here, except so far as may be necessary to properly understand the claim made on behalf of the James I. Dowsett. The appellant claims that the decision of "the Chief Justice is wrong in holding the Dowsett solely to blame, and contends: 1. That the weight of evidence shows the Moiwahine to be in fault in.not exhibiting any lights. 2. That therefore the Moiwahine could not recover any damages against the Dowsett, but should be held liable because the neglect to carry lights was a culpable omission and a violation of statute law. In support of this contention counsel cited (inter alia) The Olivia, 1 Lush., 497. Larco vs. The Martha & Elizabeth, 1 Sawyer, 129. The Carroll, 8 Wallace, 302. The D. P., 1 Lowell, 124. Taylor vs. Harwood, Taney’s Decisions, 437. The Helen Mar, 2 Lowell, 40. 3. That the neglect to exhibit lights contributed to the collision, and therefore the damage should be divided. 4. That the collision was caused by the improper navigation of the Moiwahine, immediately preceding the collision, through her captain ordering her helm to be put up and to slack off the sheet, instead of ordering the helm to be put down, or keeping her course. The Scotia, 14 Wall., 170: St. John vs. Paine, 10 How., 557: The Genesee Chief, 12 How., 443, and other authorities, were cited in support of this argument. On behalf of the respondents it was contended the evidence showed that the Moiwahine carried proper lights, that the maneuvre ordered by the captain was proper under the circumstances in which his vessel was placed, and even supposing the [15] Moiwahine did not show any lights, yet if the Dowsett could have avoided the collision, she would be responsible, and that it would have been avoided had the Dowsett kept a proper lookout. The Ariadne, 13 Wallace, 475. Counsel for the respondent also cited: 1 Parsons on Maritime Law, pp. 190, 192, 198, 395, 396. Chamberlain et al. vs. Ward, 21 Howard, 570, 571. St. John vs. Paine et al., 10 How., 557. Genesee Chief vs. Fitshugh, 12 How., 443. Ward et al vs. The Ogdensburg, 5 McLean, 634. Larco vs. Schooner Martha and Elizabeth, 1 Saw., 134. Baker vs. City of New York, 1 Clifford, 83. Steamboat Neptune, Olcott, 495. Empire State, 1 Benedict’s Adm., 57. By the Court: In respect to the point, that the Moiwahine did not show any lights, the evidence is certainly very conflicting, as is usual in cases of this nature. The Court below found that the Moiwahine did carry the proper lights, and in this respect gave more credit to the witnesses on behalf of that vessel than to those on board the Dowsett, and we see no reason, on a careful consideration of the whole of the testimony and of the arguments of counsel, to differ from the conclusions arrived at by the Chief Justice on this point; on the contrary we think and feel no doubt that the Moiwahine did carry the lights required by law, and in their proper positions. As to the second point, that the alleged neglect of the Moiwahine to exhibit any lights disentitles her to recover any damages, it is hardly necessary, from the views we have taken of the evidence, to consider it, except for the purpose of passing upon the authorities cited by counsel for the appellants. The principal case relied upon is The Olivia, in which Dr. Lushington says: (1 Lushington, 502), “The question now to be determined is, whether this culpable omission of the Safe Return to show a light is to be considered as a blameable disregard of ordinary nautical precaution, or a violation of statute law. If the former only, then the plaintiff’s will be entitled to recover half their damages; but if the latter, a question may [16] arise, whether the plaintiffs are not altogether barred of recovery.” The statute here referred to is the “English Mercantile Shipping Act, 1854,” Section 298 of which provides that if a collision is occasioned by the non-observance of any rule for the exhibition of lights, etc., the owner of the ship by which-such rule has been infringed shall not be entitled to recover any recompense whatever for any damage sustained by such ship in such collision, unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary. (See the Section in The Milan, 1 Lush., 389). No such provision is contained in our statutes, and it is contrary to the course of decisions since the issuance of the “ Regulations for preventing Collisions at Sea,” of 1863, which were adopted in this Kingdom and afterwards modified in accordance with the amended Regulations. The case of The Martha & Elizabeth was decided in the U. S. District Court, District of California, and although the head note in the report, (1 Sawyer, 129), tends to show that the decision was solely on the ground that “ Lights required by law must be displayed,” yet the learned Judge Hoffman,-who heard the case, admitted testimony to show that the collision was caused by the gross fault and mismanagement of the colliding vessel, and held that the evidence negatived such allegation. There can be no doubt as to the rule observed in the whole course of the decisions of Courts of Admiralty, that where the neglect of the vessel to obey the statutory rules as to carrying lights, or of navigation, has contributed to a collision, the vessel in default is held responsible to the extent of one-half or the whole of the damages, as the case may be, and the authorities cited on behalf of the appellant maintain this view. As to the contention on behalf of the appellant that the Moiwahine executed a wrong maneuver immediately before the collision, we agree with the opinion of the Court below, that such maneuver was justifiable under the circumstances, and indeed prevented greater damage than would have been sustained had she continued on her course. It was made when the collision was inevitable through the default of the steamer. [17] Although there is authority to support the contention of the respondents, that even supposing the Moiwahine did not exhibit any lights, yet if the Dowsett could have avoided the collision she would be responsible, (see in addition to the authorities quoted by respondents: The Englishman, L. R. 3, P. D. 18: The Chusan, 53 L. T. R. N. S., 60), and such is the view taken by Mr. Justice Fornander: we do not decide this case on that ground. We adopt the reasoning of the Court below, and find 1. That the Moiwahine exhibited the proper lights. 2. That the navigation of the Moiwahine was proper under the circumstances, and did not contribute to the collision, which had become inevitable. 3. That the collision was caused by the Dowsett neglecting to keep a proper lookout, and therefore she was solely to blame. The decree of the Chief Justice is therefore affirmed with costs.