# Benjamin Haney v. Baltimore Steam Packet Company/Opinion of the Court

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* Dissenting Opinion Taney
United States Supreme Court
64 U.S. 287
Benjamin Haney v. Baltimore Steam Packet Company
The District Court decreed in favor of the libellants in the sum of seventeen hundred dollars, and of Charles Ogden, the master of the schooner the additional sum of $173 and costs.
On an appeal to the Circuit Court, additional evidence was offered, and the decree of the District Court was reversed and the libel dismissed.
The libellants appealed to this court.
It was argued by Mr. Addison and Mr. Battee for the appellants, and by Mr. Schley for the appellee.
The points made by the counsel for the appellants were the following:
1. That it is the right and duty of sailing vessels, when meeting steamers, to hold their course, and of steamers, to give way to them.
St. John v. Paine, 10 Howard, 583.
Steamer Oregon v. Roca, 18 Howard, 572.
2. That the schooner, from the time the steamer hove in sight until a moment or two before the collision, steadily held her course. The answers of the defendants, the evidence of the witnesses for the defence, and the evidence for the libellants, all concur in this; and there is not a witness who alleges the contrary. And this must be taken as a fact in the cause, admitted by the defendants, proved by the defendants, and proved by the plaintiffs.
3. That it was the right of the schooner to change her course, when her continuing to hold it would have caused her to have been run down.
New York and Liverpool U.S. Mail Steamship Company v. Rumball, 21 Howard, 372.
4. That if the danger of being run down was imminent, and the schooner made a false manoeuvre, when a right one would have saved her, even then the steamer is responsible; for she ought not needlessly to have run so close to the schooner as to have excited such well-founded apprehensions of danger as to have disturbed the judgment of those in charge of her.
The Genesee Chief, 12 Howard, 44.
5. That the account of the disaster set up in the answer, and given by Captain Russell and second mate Ward, is incredible, because it is impossible it can be correct.
For if the parallels on which the vessels were running were 150, or 200, or 300 yards asunder, and the schooner changed her course at the distance of 100 or 150 yards from the point at which they would have passed each other, if there had been no change of course, the schooner could not have crossed the steamer's bows, as the steamer's speed was twice that of the schooner.
6. That although Captain Russell and second mate Ward testify to the events immediately preceding the collision, it is very clear:
First. That Capt. Russell did not see the schooner after she got within three or four miles of the steamer, until the schooner's course had been changed-that is, for nine or twelve minutes before such change.
Second. That the second mate Ward's attention was directed to and absorbed in the changing of the course of the steamer when the schooner changed her course.
7. That the schooner, in attempting to avoid the steamer, turned to the right, and thus conformed to the rule of navigation established and promulgated by the Supreme Court in the case of the steamer Oregon et al. v. Roca et al., 18 Howard, 572, where this language is employed: 'The rule adopted by the Trinity masters, and sanctioned by this court, is the safe one: that when two vessels on opposite tacks are approaching each other, each should turn to the right, passing each other on the larboard side. This rule is too simple to be misunderstood, and if observed, collisions would not occur between moving boats, whether propelled by sail or steam. The rule once established, every deviation from it should be chargeable as a fault.'
The Friends, 1 W. Robinson, 479.
Steamer Oregon v. Roca et al., 18 Howard, 572.
8. That the steamer violated said rule by turning to the left, and thereby caused the collision.
9. That there was not on the steamer 'a trustworthy and constant lookout,' 'whose whole business was to discern vessels ahead or approaching, so as to give the earliest notice to those in charge of the navigation of the vessel;' and that the omission is prima facie evidence that the steamer is in fault.
Steamboat New York et al. v. Rea et al., 18 Howard, 225.
Genesee Chief, 12 Howard, 449.
Chamberlain v. Ward, 21 Howard, 548.
10 Howard, 585.
10. That the person alleged to have been acting as lookout was not 'actually and vigilantly employed in his duty as lookout,' (12 Howard, 459;) but was in effect the helmsman, superintending a negro who performed merely the manual labor of working the wheel; who, the lookout testifies, 'acted by my orders in the management of the wheel,' and 'I leave nothing to his discretion;' and 'I give the order, and see and hear if it is obeyed.'
Ward says: 'I' (on the occasion of the collision) 'put the helm of the steamer starboard. I had just steadied the boat on that course, and discovered the schooner had altered her course.'
11. The fact that the steamer was engaged in carrying the United States mail furnishes no excuse for proceeding at a speed endangering the lives and property of citizens.
The Rose, 2 W. Robinson, 3.
The Iron Duke, 2 W. Robinson, 385.
Rogers et al. v. Steamer St. Charles et al., 19 How., 112.
12. In cases of collision between steamers and sailing vessels, 'prima facie, the steamer is chargeable with fault. The exception to this rule must be clearly established by strong circumstances, to excuse the steamer.'
New York and Virginia S. Ship Co. v. Calderwood et al., 19 Howard, 246.
Steamer Oregon v. Roca, 18 Howard, 572.
13. The pretended lookout was stationed in the pilot-house, and not in the forward part of the vessel, where he should have been.
Newton v. Stebbins, 10 Howard, 607.
St. John v. Paine et al., 10 Howard, 585.
Chamberlain et al. v. Ward, 21 Howard, 571.
1. The change of the course of the schooner was the proximate and only cause of the collision; and if such change had not been made, the vessels would have passed each other in safety.
2. The change of course on the part of the schooner, at the time and under the circumstances, was a gross and inexcusable fault.
3. The pilot-house on the steamer Louisiana (as shown by the uncontradicted testimony taken on behalf of the appellee since this appeal, and contained in the depositions of Captains Virden, Turrer, Rice, and Weems) was the best position for the lookout on the steamer; and there was no want of care and no error of judgment on board of the steamer, in any respect.
Mr. Justice GRIER delivered the opinion of the court.
The appellants, owners of a schooner called the William K. Perrin, charge in their libel that between nine and ten o'clock of the evening of 20th of February, 1858, as the schooner, laden with oysters, was on her way down the Chesapeake bay, she was run into and sunk by the steamboat Louisiana; that it was a bright moonlight night, and the schooner, though of only forty-three tons burden and deeply laden, could be and was seen at the distance of a mile.
The answer admits the collision and the result of it. It admits, also, the schooner was seen at a distance of two or three miles; that the steamer was proceeding at a rate of fourteen miles an hour, 'heading due north,' and the schooner holding her course nearly due south. But it alleges as an excuse, that while the steamboat and schooner were meeting on parallel lines, the schooner suddenly changed her course and ran under the bows of the steamer.
This is the stereotyped excuse usually resorted to for the purpose of justifying a careless collision. It is always improbable, and generally false.
There is not the usual conflict of testimony in this case; for the single person on board of the steamer who was able to give any account of the collision, who acted as pilot, and by whose want of vigilance and skill the collision was caused, does not materially contradict, but rather confirms, the testimony of the libellants. The facts of the case are as follows: The steamer Louisiana, of eleven hundred tons burden and five hundred horse-power, was on her way coming up the wide bay of the Chesapeake, steering a due north course, between nine and ten o'clock at night. The small heavy-laden schooner is seen two or three miles off, coming in an opposite direction. The captain of the steamer, (whose theory of action appears from his own testimony to be, that all small vessels are bound at their peril to get out of the way of a large steamer carrying the United States mail,) although he had seen the schooner, and knew that the vessels were approximating at the rate of over twenty miles an hour, retires to his cabin. It was his watch and his duty to be on deck as officer of the deck. He leaves on deck one man, besides the colored man at the wheel, to act as pilot, lookout, and officer of the deck. These two persons constituted the whole crew on duty, besides firemen and engineers. This person, who had to perform these treble functions, was the second mate. His theory is, that the best place for a lookout is in the pilot-house, where, he says, 'I generally lean out of the window, and have an unobstructed view.' Accordingly, as pilot, he remained in the pilot-house to direct the steersman; and as lookout, he occasionally leaned out of the window.
The result shows the value of this theory with regard to the place and person proper for a lookout. The schooner kept on her course, as the rules of navigation required her to do, on the presumption that the steamer would diverge from her course so as to leave a free berth to the schooner, as it was the duty of the pilot of the steamer to do. The boats were approximating at the rate of six hundred yards a minute, or one hundred yards in ten seconds. A slight turn of the wheel of the steamboat, if given in due season, would have left a wide berth for the schooner. But this, by his own account, was neglected by this pilot and lookout till within ten seconds or less of a collision; and then the order was to starboard the helm, instead of porting it, in direct contravention of the rules of navigation.
The steamer, it is true, had a right to pass on either side, and it was her duty to keep clear and give a wide berth to the sailing vessel; but having neglected this duty till the danger of a collision was so imminent that it was probable the schooner would be making some movement to avoid destruction, such a movement only increased the danger of a collision.
The man at the wheel of the schooner had his orders to keep steady on his course south. It is proved, without contradiction, that this order was strictly complied with till the pilot or steersman heard the noise of the steamer's wheels; and being warned of her approach by the lookout, he looked under the boom, and discovered the steamer almost on him; when, in order to save his own life and the lives of the crew, he ported his helm and received the blow on the larboard side of the schooner, near the stern, instead of the bow. The point of collision confirms, beyond a doubt, this view of the case.
The hypothesis set forth in the answer to excuse this collision, that the boats were passing on parallel lines, three hundred yards apart, and that, when within one hundred or one hundred and fifty yards of passing each other, the schooner turned round and run herself under the bows of the steamer, is not only grossly improbable in itself, but contradicted by the testimony, and is a mathematical impossibility.
With this pregnant example of the value of the theory of lookouts contended for in this case, let us compare it with the rules established by this court. Without referring to the numerous cases, the correct doctrine on this subject will be found laid down by Mr. Justice CLIFFORD in delivering the opinion of this court in Chamberlain v. Ward, 21 How., 570:
'Steamers navigating in the thoroughfares of commerce must have constant and vigilant lookouts stationed in proper places on the vessel.' They must 'be persons of suitable experience, and actually and vigilantly employed on that duty.' 'In general, elevated positions, such as the hurricane deck, are not so favorable situations as those more usually selected on the forward deck, near the stem.' 'Persons stationed on the forward deck are less likely to overlook small vessels deeply laden, and more readily ascertain their exact course and movement.'
The entire disregard of these rules of navigation by the steamer, and the consequent destruction of property, demonstrate their correctness and utility.
In fine, we are of opinion that the collision in this case, and destruction of the schooner Perrin, was caused wholly by the negligence and inattention to their duties of the officers who navigated the Louisiana, and that the steamboat should be condemned to pay the whole damage incurred by the said collision.
Let the decree of the Circuit Court reversing the decree of the District Court be reversed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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