CROSS-APPEAL from the decree of the Circuit Court for the District of Maryland, dividing equally the damages arising from a collision at sea, between the schooner Sarah and the steamer Sea Gull, on the theory that each was equally in fault.
A statute of the United States-the act of 29th April, 1864 thus enacts:
'ARTICLE 16. Every steamship, in approaching another ship, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.
'ARTICLE 15. If two ships, one of which is a sailing-ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.'
These provisions did but embody in a statutory form, what was previously the well-settled law of the sea.
On the evening of January 21st, 1871, the steamer Sea Gull was sailing in the open sea from the north, between Baltimore and Charleston, for the south, in a course south by west half-west, and the schooner Sarah between the same ports, from the south for the north in a course northeast by east. The vessels were thus approaching on converging lines. The steamer's speed was about eight miles an hour, the schooner's seven, and the nearest land was thirty miles distant. There was a fresh breeze, west-southwest. Stars were visible overhead, and though it was somewhat hazy on the water the night was fairly to be called a clear one.
Both vessels had proper lights brightly burning in their proper places. The schooner had one lookout properly placed, and the steamer had one lookout also; the steamer's lookout being on the forecastle, and, as was testified, within a few feet of the steam. At about nine o'clock in the evening the lookout on the schooner described and reported a light ahead. The light proved to be the foremast-headlight of a steamer, about four miles distant, and one point on the port bow of the schooner. The red or portlight of the steamer, which was still on the schooner's port bow, soon now became visible. The schooner, according to the positive testimony of three witnesses on her, including the pilot and the captain, who was at his side giving orders-the captain giving repeated orders to this effect, and calling the helmsman's attention to a star by which he could steer if he could not by the compass-continued her course, when, according to the testimony of these same witnesses, the steamer not having previously changed her course at all, and the vessels being close by one another, the green or starboard light of the steamer came suddenly into view; showing, of course, that the helm of the steamer had been starboarded. The captain and master testified that not knowing on which side of her the steamer would attempt to pass, and deeming it prudent and their duty under the circumstances still to keep their course, so as not to baffle those in charge of the steamer in any effort which they might make, even at the last moment, to pass on either side, still kept the schooner steadily on her course, but that the steamer continued, with undiminished speed, to approach. The result was a collision in which the steamer ran so violently into the schooner as to cut three or four feet into her, and sink her almost immediately; those on board barely escaping with their lives.
The only oral or written evidence from witnesses on the schooner tending to show any other proceedings than these, was that of the captain himself, who testified that when the steamer was about to strike the schooner, and only forty or fifty yards off, he shouted out, 'Let go her gaff-topsail, and lower her peak;' but that the order was not executed, the collision having occurred immediately after it was given, and before time had elapsed to execute it.
However, three witnesses from the steamer-the captain, the second mate, and the helmsman-all swore the when the collision took place, the course of the schooner was southeast; a course which would have been produced by the execution of the captain's order to change the schooner's sails, and that as they saw her sails after the schooner was struck her sails were on the port side.