Schooner PERSEVERANCE, of 204 tons, was sunk by collision with the schooner GREY EAGLE in Mackinac Straits. The PERSEVERANCE was built at Buffalo in 1855 by B. B. Jones and owned by John Greening of Cleveland. She was sunk opposite Sheboygan.
October 1, 1864
U. S. Circuit Court for Wisconsin, a decision has been rendered which is of great importance to vessel owners -- so much so that we publish the contents of the Court entire. The particulars of the collision which gave rise to the suit, were published in the Blade.
This was a libel for collision, first tried at Milwaukee in the District Court of the United States for the District of Wisconsin, in which Court the action was dismissed. Libelllant appealed to the Circuit Court, where the case was again argued on the same pleadings and evidence. The degree of the District Court was reversed, and the defendant decreed to pay one-half the loss. In the following clear and able opinion:
The schooner PERSEVERANCE sailed from Chicago on the 19th of November, 1864, with a cargo of wheat, bound for
Ogdensburg. When in Lake Michigan, off the Manitou Islands, during a severe storm, she lost her signal lights, which she was unable to replace after making efforts to do so. Owing to the lateness of the season, the severity of the weather and the extent of the voyage, being unwilling to incur the delay of lying by at night, she proceeded on her way, showing at night a white light in order to call the attention of other vessels to her. While running through the Straits of Mackinaw, at two o'clock on the morning of the 24th November, the schooner GREY EAGLE, bound from Buffalo to Milwaukee, collided with her and destroyed both vessel and cargo. It is urged that as the PERSEVERANCE was running without the regular lights and with the prohibited white light, she must bear all the damages, although the Court should find that the GREY EAGLE was also in fault. This position is untenable. It is unquestionably true that the rules of navigation as prescribed by the act of Congress must be observed, but in obeying and construing these rules, due regard must be had to all dangers of navigation. The fact that the PERSEVERANCE had a light prohibited to vessels while sailing, did not of itself absolve the GREY EAGLE from the observance of that degree of caution, care and nautical skill which the exigencies of the case required. If a white light usually represented a vessel at anchor, the officers and seamen of the GREY EAGLE had no right to conclude that it always did. It was their duty from the moment the light was seen, to have watched it carefully, in order to ascertain from its bearings whether the vessel was in motion or at anchor. And if, in the exercise of ordinary nautical skill and care, this could have been done and was omitted, and this omission contributed to the accident, then the GREY EAGLE must share the burden of the loss, although the PERSEVERANCE was in fault in running with a prohibited light. I cannot say that a vessel is, under all circumstances, required to come to anchor at night, if through misfortune she has lost her signal lights. There may be a state of case in which herself and cargo would be in more peril by delay at night that by pursuing a continuous voyage. It is true that she encounters serious hazard by running at night, but she is so far protected that every other vessel occupying the same waters must be navigated with reasonable care, skill and caution.
The obligation of the GREY EAGLE to use all reasonable precautions to avoid a collision was not varied, because the PERSEVERANCE was running with a prohibited light. The present case is out of mutual fault, which in my opinion requires a division of damages. It is unnecessary to discuss the evidence at length in order to show carelessness and fault on the part of the GREY EAGLE. She is convicted of ordinary want of seamanship in her own statement of the collision.
The answer says, " A white light was seen about a mile distant, which was supposed to be a light on shore or upon a vessel at anchor. The GREY EAGLE was then kept away about a point and steadied in her course, to give berth to the light. 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 vessel."
And why was this important discovery not sooner made ? The night was not too dark to do so, for the evidence is that the sails of the PERSEVERANCE could readily have been seen a quarter of a mile off, and the wheels-man of the GREY EAGLE is not the best portion of the vessel to see the night, nevertheless saw it twenty minutes before the collision.
If the light was discovered a mile off, is it not apparent that ordinary vigilance would have disclosed to those on board the GREY EAGLE that it was on a vessel in motion long before there was any danger of collision ? The vessels could not have kept their respective courses without it becoming evident to a watchful seaman that the light was in motion. I cannot, for want of time, analyze the evidence so as to show how the collision could have been avoided if the light of the PERSEVERANCE had been properly watched. It is very clear the persons in charge of the GREY EAGLE were so confident the light was stationary that they rested in security and omitted the observations which good and prudent seamanship required to be made, and which, if made, could not have failed to have disclosed to them the character of the light, and enabled them to keep out of the way of the PERSEVERANCE. This conduct on the part of the GREY EAGLE contributed very materially to the collision, and that vessel should share with the PERSEVERANCE the consequences of that disaster.
December 5, 1867
Schooner perseverance. Of 294 tons. Built Buffalo 1855 by F.N. Jones. Owned by Marsilliott & Abbey. Home port, Buffalo. Value $5,800. Class B.
Register of the Ships on the lakes
and River St. Lawrence for 1864
SHIP BUILDING AT BUFFALO.--This completes the list of vessels now on the stocks there are, however, several others to be built, of which we have no particulars The foregoing 17 vessels now on the stocks and launched within a day or two show a tonnage of 6,160 tons. To which we add a list of vessels launched this spring, with their dimensions
Class Name Tons Length Breadth Depth
Propeller RESCUE 285 125.5 25 10
Propeller DIME 60 -- -- --
Barque JOHN SWEENEY 405 140.4 30 10.6
Schooner BAY STATE 341 127.9 27.8 10.6
Schooner ENTERPRIZE 297 121.9 25.10 10.3
Schooner * PERSEVERANCE 294 121.2 25.9 10.4 *
Schooner ANTELOPE 337 127 26.2 11
Schooner J.F.TRACY 175 102 24 8
Schooner YORKTOWN 125 85 14 6.6
Schooner GENOA 198 104 25.9 9.3
This will give the total tonnage up to the present time from the 1st. January 1855, at 8,777 tons.
The Democracy, Buffalo
Thursday, July 19, 1855