Usages, called sea laws, having the effect of obligatory regulations, to prevent collisions between ships engaged in navigation, existed long before there was any legislation upon the subject, either in this country or in the country from which our judicial system was largely borrowed.
Plenary jurisdiction was conferred upon the courts in such controversies; and the judicial reports show, beyond peradventure, that the courts, both common-law and admiralty, were constantly in the habit of referring to the established usages of the sea as furnishing the rule of decision to determine whether any fault of navigation was committed in the particular case; and, if so, which of the parties, if either, was responsible for the consequences.
Examples of the kind are quite too numerous for citation, and they are amply sufficient to prove that the usages of the sea, antecedent to the enactment of sailing rules, constituted the principal source from which the rules of decision, in such controversies, were drawn by the courts of admiralty and all the best writers upon the subject of admiralty law. Maclachlan on Ship., 2d ed., 280; Williams & Bruce's Prac., pp. 4, 15.
Sailing rules and other regulations have since been enacted; and it is everywhere admitted that such rules and regulations, in cases where they apply, furnish the paramount rule of decision; but it is well known that questions often arise in such litigations, outside of the scope and operation of the legislative enactments. Safe guides, in such cases, are often found in the decisions of the courts, or in the views of standard text-writers: but it is competent for the court, in such a case, to admit evidence of usage; and, if it be proved that the matter is regulated by a general usage, such evidence may furnish a safe guide as the proper rule of decision.
Compensatory damages are claimed by the libellants for the value of the schooner 'John D. Jones,' employed as a pilot-boat, which it appears was sunk and became a total loss in a collision that occurred on the 28th of March, 1871, between the schooner and the steamship 'City of Washington,' the latter being on her return voyage from Europe to the port of New York. Just prior to the collision, it appears that the schooner was lying-to, some two hundred miles off Sandy Hook, with her helm lashed on her starboard tack, and with her jib-sheet to the windward. While lying in that condition, the wind being north-west by north, a light was reported bearing from the schooner south by east, off the port quarter of the schooner. It appears that the schooner was a pilot-boat, with foresail, mainsail, and jib; and that her sails, except the jib-sheet, were closely reefed, as she was waiting for employment as a pilot-boat. Seeing the light, the first act of those in charge of her navigation was to give sail, put up her helm, and let her fall off; and in the mean time they showed her flash-light, that the approaching vessel might know that the schooner was a pilot-boat waiting for employment.
Such lights are shown, under such circumstances, to disclose the special character of the vessel; and the evidence shows that the approaching vessel immediately displayed a blue light, which is the proper signal to show to a pilot-boat to signify that the light of the pilot-boat is seen, and that her services as such are wanted. Such a signal shows that the flash-light is seen, that the character of the boat displaying the same is known, and that the vessel displaying the blue light is coming up to secure a pilot.
When the master of the schooner first discerned the blue light of the approaching vessel, the schooner bore from the blue light, about west by north, as near as those in charge of the schooner could judge. Enough appears to warrant the conclusion that the schooner kept her course to the southward and westward, and that those in charge of her very soon discovered the signal-lights of the approaching vessel. Beyond doubt, they first made the green light; but it appears, that, shortly after that, they made all three of the approaching signal-lights, and became convinced that it was a steamship heading directly towards the schooner for the purpose of securing the assistance of a pilot. Pursuant to that obvious purpose, the steamship continued to keep that course until she got within about a quarter of a mile of the schooner, when she ported her helm, the effect of which was to close her green light, and to show her red light and masthead-light, indicating that the steamship would cross the stern of the schooner.