The circuit court having found the facts respecting the collision, our examination will first be directed to a consideration of their sufficiency to sustain the decree. The findings, under the act of February 16, 1875, have the same effect as a special verdict in an action at law. 18 St. c. 77; The Adriatic, 107 U.S. 512, 2 Sup. Ct. Rep. 355. The bills of exception of the claimants in the record embrace only the refusal of the court below to find certain propositions of law, which can as well be presented to the court upon the present findings.
The findings of fact, with the facts admitted by the pleadings, disclose the following case: On the evening of February 26, 1883, the Maggie J. Smith, a three-masted schooner steamer, under sail only, ran into and sunk the three-masted schooner Enoch Robinson off the coast of New Jersey. The night was clear and starlight; the wind was about north-west, and blowing a whole-sail breeze, and the sea was smooth. The Smith was on a voyage from New York to Newport News, Virginia; her course was south-west; her first mate, and her engineer, who was acting as second mate, were on deck; one man was at the wheel, and another was stationed forward on the lookout; her regulation lights were set; and she had the wind on her starboard side.
The Enoch Robinson was on a voyage from Baltimore to Providence, Rhode Island, with a cargo of coal. When the Maggie J. Smigh was first seen by those on board the Robinson, the latter vessel was on her regular course, heading north-east, and had the wind on her port. Her regulation lights were set and burning brightly; her master and second mate were on deck; a competent seaman was on the lookout forward on the top-gallant forecastle; and one was at the wheel. The court finds that when the vessels were first seen from each other, they were about two miles apart; that they were approaching each other 'end on, or nearly so, and on courses involving risk of collision;' that the wheel of the Robinson was put to port almost immediately after the position of the Smith was discovered, and that the Smith starboarded her wheel, and that this starboarding was the direct cause of the collision. The court also finds that when those in charge of the Robinson perceived that the Smith was falling off, and that the vessels were approaching in dangerous proximity, they put the wheel of the Robinson hard a-port, and let go the spanker-sheet; and that a few seconds before the collision the wheel of the Smith was first put to port, and then hard a-port, but the head sheets were not let go, and before the changes to port materially affected the course of the Smith the two vessels came together, the Smith striking the Robinson a square blow on the port side near the mizzen rigging. And the court finds as a conclusion of law, that the Smith was in fault in not porting her wheel when the Robinson was first seen approaching her end on, or nearly end on, and was in fault for putting her wheel to starboard, and that this was the immediate cause of the collision.
Upon these findings, there could be but one conclusion as to the liability of the Smith under the sixteenth rule of navigation adopted by congress, which is as follows: 'If two sail vessels are meeting end on, or nearly end on, so as to involve risks of collision, the helms of both shall be put to port so that each may pass on the port side of the other.' Rev. St. 817.
Three cases in this court are cited by the counsel for the libelants in which this rule has been applied under circumstances not materially different from those in the present case: The Nichols, 7 Wall. 656; The Dexter, 23 Wall. 69; and The Annie Lindsley, 104 U.S. 185. In the case of The Nichols, a schooner and a bark sailing on Lake Erie in nearly opposite directions came into collision by which the schooner was sunk. Each vessel was seen from the other, when two or three miles apart. The schooner had the wind free and on her starboard side; the bark was close-hauled, with the wind on her port side. The vessels approached each other on lines that diverged not more than half a point, and at a combined speed of 12 miles an hour. The schooner starboarded her helm; the bark ported. The owner of the schooner filed a libel against the bark, but the court held that the schooner had violated the rule of navigation in not porting also, and therefore the owner had no claim for damages.