Nathan Clifford

“ Doubtless the steamer may go to the right or left if she can keep out of the way, but if not, and the approach is such as to involve risk of collision, she is required to slacken her speed, or if necessary stop and reverse, and if she fails to perform her duty as required by the rules of navigation she is responsible for the consequences if the sail-ship is without fault, unless the steamer can show that the collision was the result of causes which could not be foreseen or prevented, or of inevitable accident. ”

“ Lookouts are also required by the usages of navigation, but the object of the requirement will never be accomplished in case the lookout fails to perform the duty which the requirement contemplates. Nautical lookouts must be properly stationed, and should be vigilant in the performance of their duty, and if they are incompetent or inattentive, and the collision occurs in consequence of their neglect, the vessel to which the lookout is attached must be held responsible for the injury resulting to the other vessel. ”

“ Two answers are made by the libellants to that defence, either of which if found to be true is sufficient to exonerate the schooner from the consequences of the accusation, if proved to be well founded: (1.) That the evidence invoked for the purpose does not establish the charge. (2.) That the schooner made no change in her course until the collision was inevitable, nor until it became indispensably necessary in order to avoid immediate danger caused by the fault of the steamer.
1. All must admit that the burden to establish the charge is upon the claimants. ”

“ Where the emergency is great the order to the helmsman should undoubtedly be prompt, but under the circumstances of this case it was a rash act of the second mate to direct the man at the wheel to starboard the helm, as he did, before he had employed any available means to ascertain the course of the schooner. He admits that he had not seen the lights of the approaching vessel and the lookout admits the same thing. ”

“ But starboarding the helm when the schooner was seen over the steamer's starboard bow, was running away from the approaching vessel and consequently proper. To port the helm subsequently was equally proper, when it became apparent from seeing the red light that the approaching vessel had changed her course.
Much reliance is had by the other side on the fact that the captain was in the cabin when the collision became inevitable. If by any possibility the accident could have been attributable to his absence, no doubt the consequences should be visited upon the steamer. ”

“ On the other hand all the persons on the deck of the schooner were examined by the libellants, and they testify, with one accord, that the schooner did not change her course as alleged by the claimants. Two of those, to wit, the wheelsman and the master who stood by his side, must know what did take place in that regard, and unless they have wilfully stated what they know to be false their statements must be correct; nor can it be denied that they state in the most positive terms that the charge is untrue. ”

“ Corresponding conclusions were reached by the district judge, except that he did not find that the lookout of the steamer failed to see the lights of the approaching schooner as soon as he might have done if he had performed his duty. Much reason exists to conclude that the first error of the officer in charge of the deck was occasioned by that omission of the lookout, and that the excitement induced when he discovered that his first order was an improper one had more or less influence in promoting the subsequent errors. ”

“ Vessels with sails being required to keep their course the duty of adopting the necessary measures of precaution to keep out of the way is devolved upon the steamer, subject only to the condition that the sail-ship shall keep her course and do no act to embarrass the steamer in her efforts to perform her duty. ”