The Victory & the Plymothian, 168 U.S. 410 (1897)

The Victory and The Plymothian

Nos. 66-67

Argued October 28-29, 1897
Decided November 29, 1897
168 U.S. 410

CERTIORARI TO THE CIRCUIT COURT

OF APPEALS FOR THE FOURTH CIRCUIT

Syllabus

On the facts, which are detailed in the statement of the case, below, respecting the navigation and the conduct of the Victory and the Plymothian just previous to the collision which caused the injuries and damage herein complained of,

Held:

(1) That as a general rule, vessels approaching each other in narrow channels, or where their courses diverge as much as one and one-half or two points, are bound to keep to port and pass to the right, whatever the occasional effect of the sinuosities of the channel.

(2) That the Victory was grossly in fault, and that the collision was the direct consequence of her disregard of that rule of the road, and of her reckless navigation.

(3) That the fault of the Victory being obvious and inexcusable, the evidence to establish fault on the part of the Plymothian must be clear and convincing in order to make a case for apportionment, the burden of proof being upon each vessel to establish fault on the part of the other.

(4) That, as the damage was occasioned by collision and was within the exceptions in the bills of lading, it rested upon the underwriters to defeat the operation of the exception by proof of such negligence on the part of the Plymothian as would justify a decree against her if sued alone.

(5) That the Plymothian was on her proper course, that she was not bound to anticipate the conduct of the Victory, and that she took all proper precautions as soon as chargeable with notice of risk of collision.

On the 12th day of November, 1891, the steamers Victory and Plymothian came into collision in the Elizabeth River, between Lambert’s Point and Craney Island Light. The Plymothian, laden with a cargo of cotton, was outward bound. The Victory was inward bound, in ballast. The Plymothian and her cargo were seriously damaged. The Victory was also damaged about the bows.

On the fourteenth of November, the master of the Victory filed a libel against the Plymothian in the District Court for the Eastern District of Virginia, and on November 27 a libel was filed in that court by the underwriters of the Plymothian’s cargo against the Victory and the Plymothian, seeking to hold them both liable for damage thereto. The Port of Plymouth Steamship Company, owner of the Plymothian, filed a petition in said district court on the third of December, praying for a limitation of its liability for damages growing out of the collision and giving notice of its intention to contest its liability for any part thereof. A similar petition was filed the same day by MacIntyre and others, owners of the Victory. The value of the owners’ interest in the Plymothian and her pending freight was fixed at $45,221, less $5,000 salvage, or $40,221; the value of the interest of the owners of the Victory at the sum of $67,500. Each gave bond. The damages to the Victory were proven at $14,363.80; to the Plymothian at $41,684.12, and to the cargo at $71,427.97.

The cause was heard upon pleadings and evidence, and the district court held the Victory solely in fault for the collision, and decreed a recovery by the owners of the Plymothian and the underwriters of her cargo, pro rata, to the extent of the bond filed by the owners of the Victory in their limitation proceeding. 63 F. 631. The underwriters of the cargo and the owners of the Victory severally appealed from the decree of the district court to the Circuit Court of Appeals for the Fourth Circuit. That court concurred with the district court so far as concerned the faults found against the Victory, but held that the Plymothian was also in fault to a slight degree, and modified the decree of the district court by awarding the whole of the Victory’s bond to the cargo, and that any amount remaining unsatisfied should be paid by the owner of the Plymothian. 68 F. 395.

The owners of the Victory and the owner of the Plymothian thereupon severally petitioned for the writ of certiorari from this Court, under section 6 of the Judiciary Act of March 3, 1891, 26 Stat. 826, c. 517, and the writ was accordingly issued.

The facts, as stated in substance by the district court and the circuit court of appeals, were as follows:

The Victory was a British steamer of 1,774 tons, net tonnage; 338 feet in length; 38 1/2 feet in breadth; inward bound, in ballast, drawing seventeen feet aft and thirteen feet forward. Her officers and crew numbered thirty-one, all told.

The Plymothian was a British steamer of 1,016 tons net register, 260 feet long, laden with a cargo consisting 3,682 compressed bales of cotton. Her officers and crew numbered twenty-one all told. She was outward bound from Galveston to Liverpool, having come in through Hampton Roads to take in coal at Lambert’s Point. Her draft was fourteen or sixteen feet. Both vessels were in charge of pilots, and their masters were on their bridges, respectively; each acting as lookout and seeing that the orders of the pilots were executed. Neither ship had a special lookout forward of the bridge on her bows. The collision occurred in a straight stretch of the channel of the Elizabeth River, between Craney Island Lighthouse and the turn in the channel at the buoys opposite Lambert’s Point. There were two of these buoys -- a red one, No. 22, known as the "Merrimac Buoy," on the west side, and a black one, No. 9, on the east side. The distance from buoy No. 9 to Craney Island Lighthouse was 1,967 yards on the chart, or about a mile and one-eighth.

The place of collision was at black buoy, No. 7 at the easterly edge of the eighteen-foot curve of the channel, 1,200 yards south of the Craney Island Lighthouse, and 767 yards north of the black buoy, No. 9. The channel is 250 yards wide at Craney Island and 450 yards wide at buoy No. 9.

The following diagram of the channel sufficiently indicates the situation.

The Plymothian had been taking coal at Lambert’s Point pier, a short distance from buoy No. 9. She left the pier at 4 p.m., heading out off the buoy, the course from the pier to the turning point down the channel being northwesterly at an angle of 45 degrees. The usual departing signal was given as she moved from the pier. Proceeding outward to round buoy No. 9, with the helm slightly a-port, the engines were at half speed until the buoy was close aboard on the starboard bow. The engines were then put at full speed, and the helm hard a-port; and, rounding the buoy, she set her course down the easterly side of the channel.

At this time, the Victory was seen both by the captain and the pilot of the Plymothian to be coming up the channel, southward, below Craney Island Light, to the westerly side of the mid-channel, and on their port bow. The Plymothian thereupon blew a passing signal of one whistle, just as she passed buoy No. 9, and a minute later repeated it, without hearing any reply from the Victory. The vessels were over a mile apart at this time, with a bend of the channel between them. The wind was southwesterly, with force enough to enable sailing vessels to make two or three knots against the tide. The Victory had in the meantime been maintaining her general course so as to pass well clear, port to port. She had ported her helm, so as to show her port quarter to those on the Plymothian, straightening up to the channel course of S. 1/2 W. from Craney Island Light. She had been moving at the rate of ten miles an hour, but at Craney Island she slackened her speed, and proceeded at the rate of six or seven miles an hour, assisted by a flood tide running southward with a force of two knots. The Plymothian, in straightening out at buoy 9, had begun to move against the tide at the rate of about four knots an hour, keeping well to the eastern side of the channel.

As the vessels were thus proceeding, the Victory, shortly after passing Craney Island Light, apparently directed her course towards the easterly side of the channel, as if under a starboard helm. The pilot of the Plymothian blew a single blast on his whistle, and, receiving two in reply, immediately reversed his engines, sending them full speed astern, blew a danger signal of three blasts, and put the helm hard a-port. The Victory somewhat later also blew a danger signal, and then, or shortly afterwards, reversed her engines three lengths away from buoy No. 7, but not in time to stop her headway, due to high speed, and the force of the flood tide. The Victory claimed that she gave two two-blast signals, and there is a conflict of evidence as to her position when the first of them was sounded. The Plymothian heard but one such signal, just preceding the danger blasts.

The Plymothian came practically to a standstill before the collision, with buoy No. 7 close under her starboard bow; but the Victory came on, and struck the Plymothian’s port side at the bridge at an angle variously estimated at from 45 to 60 degrees, penetrating about fifteen inches into the ship, through her three steel decks, stringer plates, and beams. The force of the blow threw the Plymothian’s head around to the starboard, so that buoy No. 7, which, prior to the collision, had been under her starboard bow, was seen to come around in front of her stem, to her port bow.

The Plymothian rapidly filled with water, and, to prevent her sinking in the channel, her engines were put at full speed ahead, until she grounded on the mud flats to the eastward of the channel, where she sank in shallow water. She was subsequently raised, repaired temporarily at Newport News, and finally in England, on the completion of the voyage. The Victory was able to proceed to Norfolk. She was also temporarily repaired at Newport News, and finally in England.

Of the cargo of 3,682 bales of cotton shipped on the Plymothian at Galveston, 1,671 bales were shipped under bills of lading containing the provisions, among others, that the vessel should not be liable for loss or damage occasioned by collisions or other accidents of navigation, even though occasioned by negligence, and that the contract should be governed "by the law of the flag of the vessel carrying the goods."

The other 2,011 bales were shipped from interior points under bills of lading given by the inland carrier to the shipper. On reaching Galveston, this cotton was delivered to the Plymothian, which issued bills of lading or receipts to the inland carrier, containing the negligence and flag clauses. The bills of lading given by the inland carriers had the negligence, but not the flag, clause.