THE GRAY EAGLE, 76 U. S. 505 (1896)

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U.S. Supreme Court

The Gray Eagle, 76 U.S. 9 Wall. 505 505 (1896)

The Gray Eagle

76 U.S. (9 Wall.) 505


1. A neglect by one vessel, on approaching another in the night, to show proper signal lights, or her showing a wrong one, does not absolve such other vessel, under the act of Congress of April 29, 1864, prescribing the lights which sailing vessels shall carry, from obligation to observe the usual laws of navigation or such reasonable and practicable precautions generally as the circumstances allow.

2. A loss equally divided between two vessels, on facts, set forth in the case, showing fault in both.

The owners of the schooner Perseverance filed a libel in the District Court of Wisconsin against the schooner Gray Eagle, for a collision in which their vessel had been sunk. The collision occurred in the Straits of Mackinaw soon after midnight of the 23d of November, 1864, the night not having been a dark one -- not so dark at least as that the sails of vessels could not be seen for near a quarter of a mile. The Perseverance had lost her lights in a storm, and was sailing

Page 76 U. S. 506

with a white light, contrary to the rules prescribed by the act of Congress, "fixing certain rules and regulations for preventing collisions on the water," approved April 29, 1864, and which made it her duty to carry a green light on her starboard side, and a red one on her larboard, "and no others" anywhere. She was sailing down the strait on a course E. by S., with the wind south, and discovered the lights of the Gray Eagle about a mile ahead, coming up the strait, on a course of about W.N.W. [Footnote 1] The witnesses differed a little as to these points, but this was according to the weight of the testimony. The libel alleged, and the evidence of all the libellant's witnesses corresponded with its statements, that when the Gray Eagle was first seen, or soon afterwards, she showed a red light; but that this soon disappeared; after which she showed a green light until near the moment of the collision, when she again showed her red light. The libellants asserted that they had a right to suppose that the Gray Eagle would pass on the starboard of the Perseverance; but that shortly before the disaster she kept away, and, although the master of the latter called on her to luff several times, in a loud voice, and at the same time ordered his own man at the wheel to put the wheel hard a-starboard, the Gray Eagle made no reply, but kept on her course, and in less than two minutes struck the Perseverance stem on, abreast the starboard quarter, with such force as to sink her in about two minutes, the master and crew with difficulty saving their lives.

The defense set up by the answer for the Gray Eagle was, chiefly,

1st. That the other vessel was sailing without the regulation lights and in violation of the act of Congress.

2d. That at a certain place in the bay mentioned

"a white light was seen about a mile distant, bearing about a point on the Gray Eagle's port bow, which was supposed to be a light on shore, or upon a vessel at anchor; that the Gray Eagle was then kept away about a point and steadied on her

Page 76 U. S. 507

course to give berth to the light; that the light was not discovered to be a vessel's light in motion by the commanding officer until the Perseverance got within about three lengths of the Gray Eagle, the said light being then nearly ahead and to windward; that the light was then supposed to be the binnacle light of a vessel that had hauled up all she could to pass the Gray Eagle to windward; that the mate, not seeing any other light, ordered the helm hard a-port, so as to pass on the port side and keep off and clear the stern of the vessel, and stepped to windward of his vessel, and then heard for the first time a cry from the other vessel to port the helm hard down, but that it was too late, and that the vessels were right together."

It seemed from the evidence that the light on the Perseverance was not reported to the mate in charge of the Gray Eagle till near the moment of collision. The mate testified that as soon as he saw it, he ordered the "wheel up;" a wrong order. The men who had been watching the light cried out, "hard down" -- a right order, but not the one obeyed.

The district court dismissed the libel, principally on the ground that the Perseverance, having lost her lights, ought to have lain by at anchor in the night time, and was expressly prohibited from sailing with a white light. The circuit court reversed this decision, and decreed that both vessels were in fault, and that the damages should be divided between them. From this decree the owners of the Gray Eagle appealed.

Page 76 U. S. 509

[image included in argument of counsel]


Page 76 U. S. 510

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