See, opinion of district court (The Wenona, 4 Ben., 212), and of the circuit court, The Wenona, 8 Blatchf., 504.

The signal lights of the schooner were beyond question bad. They were not placed on the sides of the schooner, ut both on the pall bit. They were not properly screened. They were separated by an inch and a quarter board some nine or ten feet long, although they were from a foot and a half to twenty-two inches apart and although they reached only about a foot above the rail, the bow-sprit, twenty-two inches in diameter, and all of it, of course, reaching above the rail forward, formed a continuation of the screen-board. It was impossible to see either, therefore, dead ahead. It was impossible to see both together. Heeled over to starboard, somewhat, as the schooner would be if she was making leeway at all, and with her rail rising forward, it would be impossible that her red light could be seen at all, until she headed, as she did before the collision, so decidedly across the course of the propeller.

Even the district court found the signal lights of the schooner to be bad. It decided that the schooner made one change of course before the collision, and that that change was when the vessels were a considerable distance apart. The Wenona, 4 Ben., 214.

It utterly ignored the proof (and does not refer to it in stating what the testimony was) so absolute even on the part of the schooner, which, taken in connection with the libelant's proof, shows beyond question that the, schooner made another and prior change of course, as the circuit court has substantially found was the case (The Wenona, 8 Blatchf., 509), or that one continuous change was begun long before the change found by the district court. It is even necessary to find that such prior and important change was made, it is submitted that, to make the opinion of the district court consistent with itself, to make the proof on the part of the schooner at all consistent with truth, more especially when the district court finds that the propeller did not port her wheel (The Wenona, 4 Ben., 212,) as, on the trial, it was the whole effort of proof on the part of the libelant to show she did.

It is proposed to show: First. Generally, that the propeller was not in fault.

Second. That the schooner was in fault; that she committed the distinct faults of having bad signal lights and improperly changing her

course.

Third. That the faults of the schooner produced the collision, this involving more close consideration of the conduct of both vessels, and Fourth. That upon fact, principle and authority, the decree of the circuit court should be affirmed.

I. The propeller was in no degree in fault. 1. Fault in collision cases, is not some point of conduct upon which criticism may be made. It is not even some point of conduct which a court may think to be even erroneous or a mistake. To condemn a vessel because, in the opinion of any court, she may have been in error or mistake, when it is not found that she commit

individual opinion, no matter how unintelligent, for the science of the law; science as applicable to collision cases as to any others. To commit a fault, is to violate some statute, some rule, some custom, not merely to err.

2. Where a fault is established upon the part of a colliding vessel, that vessel should be held entirely responsible for all consequences, unless it affirmatively appears, that with that fault known to the other vessel (there being no possibility of her being misled by it) she also has committed affirmative fault which contributed to the collision.

3. The propeller was not in fault in this case. Upon full and accurate consideration of the testimony, this will be seen most plainly. She violated no law, rule or custom. To violate either, she must have done something wrong, with reference to her then situation, to the appearances, the guides for her conduct, recognized by the maritime law. It is but commonplace to say (and yet how often in collision cases is it not recognized!) that it is substantially immaterial to conclude that if something had not happened the collision would not have occurred. In any collision, if the most innocent vessel, it may be said in illustration, had done anything else, had violated every possible rule, the collision would not have happened. The question is: did the vessel conduct herself with ordinary care, skill and judgment under the then circumstances and with reference to appearances which should guide her? In short, did she, under such circumstances and with reference to such appearances, observe the rules prescribed for her then to observe?

4. That the propeller was well officered, that her watch was perfect, is beyond question.

5. That the propeller did not commit any fault, will appear from general consideration of her course and conduct. Such consideration will require only statement of the leading facts respecting her navigation.

(a) The propeller's signal lights were good. The singular attempt to show they were not, upon the theory of some of the libelant's witnesses, is of no sort of consequence. The quality of the propeller's lights had not, nor had anything connected with them, anything to do with the collision.

(b) The propeller's true course was east by north, half north. She first saw the torch light of the schooner substantially dead ahead, or if anything, about a quarter or half a point on her port bow.

The light was then, as has been stated, about one and a half or two miles off. This light was simultaneously seen by master, second mate and lookout. This was about eight or ten minutes, as was estimated, before the collision. In a short time after this first torch-light went out, the green light of the schooner was first seen from the propeller, substantially dead ahead, or, if anything, a little on the propeller's starboard bow. This, of course, indicated that the schooner was passing to starboard, and would pass the propeller starboard to starboard. The master of the propeller thereupon ordered the wheel of the propeller a-starboard. This, as is estimated by different estimates, was from five to eight minutes before the collision. The schooner then

See, especially, The Queen, 8 Blatchf., 234; The Potomac, 8 Wall., 590, 19 L. ed. 511; The Scotia, 14 Wall., 170, 20 L. ed. 822; Gladstone v. Chamberlain, 7 Blatchf., 208.

II. The schooner was guilty of two distinct faults, the worst, the only ones substantially, that she could commit. These faults were fatal and, as will be seen, caused the collision. She had bad signal lights. She changed her course. She caused the collision.

1. The allegations of the libel, sworn to by the master of the schooner and the libelant, who was on the schooner at the time of the collision, state a case widely different, in important features, from the case claimed on the trial. This covers the libelant's case with suspicion.

The William Penn, 3 Wash. (C. C.), 484; The Aurora, 1 Lush., 327.

The lights of the schooner are alleged to have been on the vessel's side, etc.

her red light was not seen when it should have been, had it been properly placed, if there be any truth in the libelant's allegations or proofs, before the decided change of course, which the schooner made, as already appears, but will be more conclusively shown, took place? 3. That the exhibition of a bad light is a most important fault is, of course, beyond question; and that, when such fault is shown to exist, the burden is on the vessel guilty of such fault, to, show that the collision would have happened even if her light was good, and was in no degree attributable to that fault, these positions are beyond question.

The Continental, 8 Blatchf., 3; The Lion, 1 Spr., 40; The Anglo Norman, Newb., 492; Bullock v. The Lauch, 8 Law Rep., 275; The Miranda, Newb., 227; Lowndes, Col., 88; The Ariadne, 2 Ben., 472, and 7 Blatchf., 211.

4. The schooner changed her course before her master gave the order to put her wheel hard up. It may have been done without his knowledge. It may have been done without the

The libel alleges that very soon after the white light was seen, the red and green light of the propeller was seen, apparently about a mile ahead of the schooner, and that the hull of the propeller was soon discovered on the port bow of the schooner, etc. The district court finds that this was not so; for, as has been seen, it finds that the propeller did not port her helm and, therefore, could not have got off the schooner's port bow at any such time, unless, indeed, it might be by the schooner's change of course. 2. The schooner's signal lights were bad. They were bad as a matter of fact. They were not on the side, but were both placed on the pall bit. They were not properly screened. They did not show from dead ahead to two points abaft the beam. They could not both be seen from dead ahead at once, and the bowsprit obscrued them from vessels dead ahead and, heeled over to starboard as this vessel must have been, if she was making so much leeway as is claimed, her red lights could not have been seen by a vessel off her port bow, when it was so little above the rail. These things, it is claimed, the proofs show. The district court held this light to be bad, that it was bad upon authority.

The Urania, Swab., 253; The Mangerton, Swab., 124; Lady of the Lake, Holt, Rule of the Road, 38; Lowndes, Collision, pref., VI.; The City of New York, 8 Blatchf., 194; The Ariadne, 7 Blatchf., 211.

Had a red light been seen by the propeller at any time while she was governing her conduct by the opening green light, the wheel of the propeller would have been put the other way, or that thing would have been done which a competent and vigilant propeller's crew would have done had a red light been thus seen.

How does it excuse the schooner, when her green light was alone seen, and everything was

is true the wheelman asserts he did not do it, as is always the case in collision causes but, both he and the captain and others on the schooner swear to things absolutely, which could not have existed had not this change taken place; things, although they are positively sworn to by the leading witnesses on the part of the libelant, the district court has not even alluded to, although they are by far the most important facts in the whole case.

The district court substantially finds that when the captain of the schooner gave the order to his wheelman to change the course of his vessel, to put her wheel hard a-port, the vessels were several hundred feet apart.

The whole evidence of the schooner's crew is, that this order was given when the vessels were close together, but a few seconds before the collision.

There was a change, of course, on the part of the schooner before this.

(a) This, the whole proof on the part of the propeller shows; for the whole proof as to the opening green light, and the suddenly exhibited red, shows it.

(b) This, the finding of the district court establishes, when it finds that the propeller did not port her wheel.

(c) This, the proof on the part of the libelant shows most conclusively, as will be soon shown. It was the claim of the libelant that the propeller put her wheel a-port and ran off on the schooner's port bow. If the course of the schooner had been changed, the appearances would have been the same as if the propeller had put her wheel a-port. She did not put her wheel a-port as the proof shows, and as the district court finds. Therefore the schooner's course must have been changed, at the very time when her crew thought (and they all might be ignorant of the change except the wheelman) the propeller ported her wheel and run off on the schooner's port bow. The wheelman of the schooner shows this more conclusively than anyone else.

He says that when he made the change of the wheel, under the captain's orders to put the wheel hard a-port, the propeller was not more

than a length off, and this is in consonance with the other proof on the part of the schooner on that precise point; and yet he says that before this, for he says he put the wheel hard up afterwards, under the captain's orders, the propeller got three or four points or more on the schooner's port bow; that the propeller "put off to windward sudden, and she got off to windward three or four points, and perhaps It took her five seconds to go off to windward; could not tell the time; it was sudden; first saw her dead ahead, and then to windward; she shot suddenly to windward; did not get the wheel hard up then;

more.

did afterwards."

The propeller could not have got to windward, even if she had attempted that folly against the indications of the schooner's opening green light, without putting her wheel a-port. This it is proved and found she did not do. She could not have gone off thus suddenly had she tried. What, then, does this prove beyond question, and what does all the other corroborating testimony on the part of the schooner prove beyond question? and yet the district court has not noticed the proof? It proves that, at this time, before the master of the schooner gave his order to put the wheel hard a-port, and at the time and distance apart that the propeller's witnesses show the vessels were when the schooner's red light was first seen, the schooner changed her course, kept away, caused that sudden change of bearing which only her change of helm could cause, and thus brought the propeller on the schooner's port bow. There is no disputing this. All the proof on both sides shows it.

The proof on the side of the propeller as to the opening green light, the suddenly appearing red, and her own starboard wheel, certainly does. The substantial proof on the part of the schooner, the wheelman's evidence and all, places it beyond doubt.

5. That this change of course was a most flagrant fault, and that with such fault the schooner cannot recover, but is solely responsible for this collision, is established upon unquestionable authority.

The New Jersey, Olcott, 415; The New Champion, Abb. Adm., 202; The Oscar, Holt, Rule of the Road, 231; The David Cannon, Holt, 235; The Thomas Lee, Holt, 240; The Meander, Ib., 243; The Potomac, 8 Wall., 590, 19 L. ed. 511; The Queen, 8 Blatchf., 234.

III. Under the principles stated in the foregoing points, and under every view in which this case can be considered, the decree of the circuit court should be affirmed.

Mr. Justice Clifford delivered the opinion of the court:

Sailing vessels, when approaching a steamer, are required to keep their course, and steamers, under such circumstances, are required to keep out of the way. Vessels propelled by sails are required to keep their course on account of the correlative duty imposed upon the steamer to keep out of the way, in order that the steamer may know the position of the object to be avoided and may not be led into error in her endeavor to comply with the requirement. Under the rule that the steamer must keep out of the way she must of necessity determine for

herself independently of the sailing vessel, whether it is safer to go to the right or *to [*52 the left, or to stop, and in order that she may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the attempt to perform her duty in the emergency, it is required by the rules of navigation that the sailing vessel shall keep her course and allow the steamer to pass either on the right or left, or to adopt such measures of precaution as she may deem best suited to enable her to perform her duty and fulfil the requirement of the law to keep out of the way. Rules of navigation, such as have been mentioned, are obligatory upon such vessels, when approaching each other, from the time the necessity for precaution begins, and they continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain. They do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary to avoid a collision. Steamship Co. v. Rumball, 21 How., 384, 16 L. ed., 148; 13 Stat. at L., 60, 61.

Injuries of a serious character were received by the schooner Frémont, owned by the libelant, on the 29th of November, 1869, in a collision which occurred on Lake Erie about nine o'clock in the evening of that day, between the schooner and the propeller Wenona, in consequence of which the schooner sunk in the middle of the lake and, with her cargo of salt, became a total loss. Damages were awarded to the libelant, as the owner of the schooner, by the decree of the district court, in the sum of $13,979.52, and costs of suit, from which decree the respondents appealed to the circuit court, where the parties were again heard, and the circuit court reversed the decree of the district court and entered a decree dismissing the libel, holding that the collision occurred solely through the fault of the schooner. Whereupon the libelant appealed to this court.

*Briefly stated, the facts of the case, as [*53 they appear to the court here, were substantially as follows: bound on a voyage from the Port of Oswego to the Port of Sandusky, the schooner, just before the collision, was proceeding up the lake, heading southwest by west half west, and moving about five or six miles an hour. On the other hand, it appears that the propeller was bound on a voyage from Chicago to Buffalo, and was proceeding down the lake ten miles an hour, heading east by north half north. They were, therefore, sailing in nearly opposite directions, there being only a single point of variance, and the leeway which the schooner was making, as appears by the evidence, made the lines of their actual progress more nearly parallel. None of these facts are much disputed, and it is quite certain that the wind was south or south by east, and that the schooner, though making some leeway, was nearly close-hauled. It was raining, and the night was somewhat dark, but the witnesses agree that there was no fog and not much mist on the water. Both vessels were seaworthy and well manned, and the evidence furnishes no reason to doubt that they both had good and sufficient lookouts properly