U.S. Supreme Court The Java, 81 U.S. 14 Wall. 189 189 (1871)
81 U.S. (14 Wall.) 189
APPEAL FROM THE CIRCUIT COURT FOR
THE DISTRICT OF MASSACHUSETTS
1. Though a steamship pursuing, in a crowded harbor, for her own greater convenience in getting into dock in a particular state of the harbor, a channel not entirely the ordinary one for vessels of her size, be bound to more than ordinary precaution, yet if she has a right to use that channel and do take such more than ordinary precaution, she is not responsible for accidents to other vessels that, with pit all, were inevitable.
2. Hence, where such a steamship pursuing in such a case such a channel, with the utmost care, had occasion to cross at an acute angle the stern of a large school ship that stood high out of water (so obstructing view), and thus struck and injured a small schooner that drifting along on the other side of the school ship, emerged suddenly at its stern -- the steamship not having before seen the schooner, nor the schooner the steamship -- held that the steamship was not responsible, the more especially as the schooner which was going out of port had just cast away her tug, was drifting along with the tide, and having all her hands engaged in hoisting sail, had no sails set so as to make her specially visible, nor any lookout to see ahead.
On the 7th of November, 1866, the Cunard steamer Java, a screw steamship of large size, drawing nineteen feet water, and about 360 feet long (more than usual length), entered Boston harbor (a diagram of part of which is on a page following), about noon, in fine, clear weather, the tide being about one hour's ebb, and the wind blowing a three or four knot breeze from the west. Her berth and point of destination was a wharf at East Boston, about 2,000 feet east of the Boston Commercial Wharves. Her proper course in coming up from what is called the Upper Middle until she arrived within about a mile of the Commercial Wharves, and
seven-eighths of a mile from her own dock, was about northwest by west. At this point, a direct course to her dock would require her to change her course about two points more to the north. But almost directly in her path, a little to the right of it, lay at anchor a large school ship for the instruction of boys, nearly two-thirds of the distance between her and her dock, and about 17 feet out of water. In getting into her berth, she could go either to the right or to the left of this school ship. The main expanse of water (2,000 feet wide) was to the left of the school ship, but there was a sufficient channel, and one recognized on charts as such, of about 500 feet in width, at that period of tide, to the right of it. Her most direct course would have been to the left, and this was the one by which the Cunard steamships more usually went in; but they had, more than once, it was testified, gone in on the right, as other steamships not unfrequently did, and on this occasion the pilot chose the right for the reason, as alleged, that several vessels were lying at anchor to the left or west of the school ship, along in front of the East Boston docks; and he judged that he could get the Java more easily into her berth by going to the right than on the other side. His idea was that, owing to her length, if going on the left side, the vessel could not have turned herself round without aid. He had scanned the channel about a mile below the school ship, and saw nothing opposing.
It so happened that just as the Java approached the school ship, the schooner James McCloskey, laden with linseed, came out from behind it, having been previously concealed by it (her sails not being up), and although the Java was only making about two knots an hour, had her lookouts all in place and vigilant, and used every exertion that human skill could devise, a collision was inevitable, and the schooner and cargo were so much injured that she had to run on to the East Boston flats to prevent sinking. The schooner, it may be added, had been towed down from a wharf at East Boston to the school ship by a tug, which she there discharged; and she was now floating along with the tide while her crew
were hoisting her sails, and not having at the moment any lookout. This suit was brought by the owners of the James McCloskey to recover the damage to vessel and cargo.
The question was whether the Java was in fault. No fault was seriously suggested but that of going to the right hand of the school ship. The district court decided in favor of the Java. From that decision an appeal was taken to the circuit court. It was there argued that, as matter of fact and on the evidence before the court, the Java had pursued an unusual course in attempting to go to her dock by the passage to the right of the school ship, and that for having taken this unusual course she was liable for what had happened. The learned judge who delivered the opinion of that court, in answer to this argument, said:
"A vessel is not to be considered in fault merely because she takes, for reasons of her own convenience or necessity, an unusual course; but when there is a usual and an unusual course, the vessel taking the unusual course for her convenience does it at her peril, and is bound to see that she does it in safety. "
Again he said:
"The school ship for many years had been constantly, during the winter months, kept moored in the same position near the edge of the channel. She was large and high out of water. The pilot of the Java knew her position, and that the view of a small sailing vessel might be shut out by the school ship. The steamer was bound to guard against the emergency. If she went under the stern of the school ship at an acute angle under such circumstances, she was bound by law to proceed so slowly and with so much vigilance that she could keep out of the way of a sailing vessel."
The circuit court accordingly reversed the decree of the district court, and decreed for the libellants. The owners of the Java now brought the case here.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
If the expressions of the learned judge who delivered the opinion of the circuit court, in answer to the argument that the Java pursued an unusual course in attempting to go to her dock by the passage to the right of the school ship, and which have been commented on at the bar, mean that she was bound to use more than ordinary precaution by reason of taking an unusual route, they are correct; but if they mean that she was liable at all events, whatever precautions she took, we cannot concur in the position. A small vessel might have been concealed by the school ship, and might have come out upon the Java unawares, whichever side of the school ship she had gone. It was shown by the evidence that the Cunard steamers had before passed in by the same route which the Java took, and it seems on this occasion to have been the preferable one, inasmuch as the Java, from her great length, could not by herself have turned into her dock had she taken the other route and gone around the vessels lying at anchor. She had a perfect right to go by the passage which she took, as much so as the James McCloskey had to come out by that passage, and in doing so, she was not liable at all events; she was only bound to use that degree of care and precaution which the particular circumstances of the case demanded. There is not the slightest evidence that in this regard anything was wanting, or that there was any lack of skill or vigilance on the part of the pilot and crew of the Java.
On the other hand, the James McCloskey was not without fault. She had been towed down from one of the East Boston wharves to the school ship, and there discharged her tug, and floated along slowly with the tide, without having her sails up (her crew being engaged in hoisting sail), without being under control, and entirely concealed from the view of the Java by the intervention of the school ship. She came out from behind the latter without any notice or warning. If either ship is to blame, we think the blame rests with her, rather than with the Java.
It is contended that the Java ought to have anticipated
the possibility of a small vessel lying behind the school ship. The answer is that she took every reasonable precaution which the circumstances required. She proceeded very slowly, only two knots an hour; she had lookouts posted in every proper place; as soon as the schooner was seen, she took every means in her power to stop and back and avoid the collision. How could she anticipate the possibility of a vessel lying behind the school ship, without sails hoisted, incapable of being seen in a bright, clear day, drifting along helplessly with the tide, ready to drop under the Java at her approach? Is it not applying too severe a rule to the Java to require her to anticipate all this and to require the schooner to anticipate nothing?
It seems to us that if this was not an inevitable accident so far as the Java was concerned, it would be very difficult to imagine a case of inevitable accident not caused by external force, as of winds and waves.
The decree of the circuit court is
Reversed with directions to dismiss the libel.