Henry Billings Brown

“ It is insisted, however, that, irrespective of the statute, the Clan Mackenzie was bound to make use of every precaution which the exigencies of the case called for to avert a collision; that she had no right to rely upon her statutory light, but was bound either to exhibit a torch, ring a bell, or in some other equally efficient manner call the steamer's attention to the fact of her presence in the river. Undoubtedly, where the circumstances of the case are such as to demand unusual care, such care should be exercised. ”

“ No such argument, however, applies to the case of vessels at anchor, which were required by rule 10 (article 8 of the Revised Code of 1885) to exhibit a large white light so constructed as to be visible all around the horizon, and at a distance of at least a mile. If a proper lookout be kept upon the approaching steamer, this is an adequate provision for a clear night, and the additional requirement of exhibiting a torch might impose upon the vessel anchored in a stream where steamers are constantly passing and repassing the duty of keeping a torch burning the entire night. ”

“ If courts were at liberty to add to the requirements of the statute, it would always be claimed that the signal added was not the proper signal that should have been used. Undoubtedly, if there be fog or thick weather, a vessel at anchor is bound by rule 15 to ring a bell; but in an ordinary clear night, with no immediate danger impending, we think a proper anchor light supplies every needful precaution. ”

“ We think the court must have confounded a stipulation given to answer a particular libel with a stipulation for the appraised value of the vessel, under the limited liability act, which, by general admiralty rule 54, is given for payment of such value into court whenever the same shall be ordered, and in such case the court issues a monition against all persons claiming damages against the vessel to appear and make due proof of their respective claims. ”

“ While the pilot, doubtless, supersedes the master, for the time being, in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are attentive to their duties. ”

“ Justice Swayne in The Ariadne, 13 Wall. 475, 478: 'The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment's negligence on his part may involve the loss of the vessel with all the property and the lives of all on board. The same consequences may result to the vessel with which his shall collide. ”

“ No British merchant would become security for foreign claimants in any case if he should be considered responsible to the extent of such a possible contingence as that of a subsequent intervention of hostilities.' The gist of this opinion is that, if the change in the case has been merely that of substituting the crown for the original captors, the bail would be responsible, but that the subsequent intervention of hostilities so far changed the original cause of action as to exonerate the bail. ”

“ Indeed, there is a special provision in rule 24 that, 'in construing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances whc h may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger.' The Code, however, is supposed to make provision for all ordinary cases. ”

“ Nearer in point, and almost exactly analogous in principle, is the case of The Nied Elwin, 1 Dod. 50. This vessel, sailing under Danish colors, was captured by a privateer, and subsequently restored, by consent, to the owners. A claim was interposed for the cargo by a firm in Copenhagen, to whom the judge restored four-sevenths, and ordered further proof of the remainder. Bail was given to the captor in double the appraised value of the latter, and subsequently the judge pronounced the goods to be Danish property, and apparently ordered it to be returned to the owners. ”

“ It originated in the English merchant shipping amendment act of 1862, the twenty-fifth section of which provided for the adoption by order in council of certain rules and regulations for preventing collisions at sea; requiring the adoption of certain lights, fog signals, and steering and sailing rules adapted to almost every case. ”

“ The light was of the regulation size, and, if it were hung a little over 20 feet above the hull, the difference was entirely immaterial, as it is found to have been seen by the pilot of the Oregon, though mistaken for the Coffin Rock light.
The obligation to exhibit a torch is claimed to arise directly from Rev. St. ”