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whether this be 60 or not is a question Without noticing other questions, I am this court has jurisdiction to determine in of opinion that upon the ground last the present case, and it is clearly the right stated the judgment should be reversed. of the defendant to have it determined. Mr. Justice BREWER authorizes me to If the jugs, bottles or flasks containing say that in the main he concurs with the intoxicating liquors sent into Vermont views expressed in this opinion. from the defendant's place of business,
(144 U. S. 371) over the border, were original packages,
THE BLUE JACKET. the shipment of which into that state, prior to the passage of the act of congress of
THE BLUE JACKET v. TACOMA MILL Co. August 8, 1890, (chapter 728, 26 St. p. 313,)
(April 4, 1892.) known as the" Wilson Statute,” were pro
COLLISION - STEAM AND SAIL VESSELS MEETINGtected by the constitution of the United DUTY OF SAILING VESSEL TO HOLD COURSE States against state interfereuce outil de- PRACTICE OY APPEAL. livered to the consiguees, he is entitled, 1. A tug with a tow, moving along a path of upon the principles announced in Leisy v. W. * 8. and at the rate of about two miles an Hardin, 135 U. S. 100, 10 Sup. Ct. Rep. 681, bour, met a ship in the Straits of Fuca. The to a reversal of the judgment.
tug first discovered the red light of the ship But there is another reason why this
about three-tepths of a point on her port bow, writ of error should not be dismissed for ship, sailing on a mean course of E. N. E.,-her
and when the ship was some two miles off. The want of jurisdiction. The defendant con. actual course being a swinging one, deviating tended in the court below that the judg. half a point each way from her mean course; ment of the Rutland county court inflicted made the mast-head lights of the tug half a point upon him, in violation of the constitution on her starboard bow when the tug was some of the United States, a punishment both
five miles away and afterwards, and 10 or 12 cruel and unusual. It is not disputed
minutes before the collision, made tbe red ligbts
of the tug and the tow. Two and a half minutes that he distinctly made tbis point; and
before the collision, when the tug was one-third the question was decided against him in of a mile from the ship and half a point off her the court below. It is true, the assign- port bow, the ship bearing one and three-eighths ments of error do not, in terms, cover this points off the port bow of the tug, and showing point, but it is competent for this court her red light to the tug and both her lights to the to consider it, because we have jurisdic. tug's tow, and the latter being dead ahead of the tion of the case upon the grounds als ship, the tug hard a.ported and swung to starready stated. I fully concur with Mr.
board. The ship, with no special circumstances
existing which required it, immediately afterJustice FIELD that, since the adoption of wards starboarded her wheel, and kept it in that the fourteenth amendment, no one of the position, thereby swinging to port and colliding fundamental rights of life, liberty, or with the tug. Held, that the ship alone caused property, recognized and guarantied by the collision, by altering her helm to starboard. the constitution of the United States, can
2. The absence of a lookout on a vessel is not be denied or abridged by a state in re
material, if the presence of one would not have
availed to prevent a collision. spect to any person within its jurisdic
3. A tug observed a sailing vessel approach. tion. These rights are principally enu.
ing, and took measures to avoid her by altering merated in the earlier amendments of the her wheel. She did not at the time stop and constitution. They were deemed so vital
When the vessels were close together to the safety and security of the people the sbip also altered her helm. Thereupon the that the absence from the constitution, bells of the tug were rung to stop, but not to readopted by the convention of 1787, uf ex
verse; the pilot leaving the pilot-house by reason
of the imminence of a collision. Held, that the press guaranties of them, came very near
tug was not obliged to stop and back until defeating the acceptance of that instru.
there was risk of collision; and there being no ment by the requisite number of states. risk of collision until the ship altered her wheel, The constitution was ratified in the belief, and the situation then becoming one in extremis, and only because of the belief, encouraged and caused by the wrong maneuver of the ship, by its leading advocates, that, immediate
the failure of the tug to stop sooner, and her ly upon the organization of the govern
failure to back at any time, were no faults. ment of the Union, articles of amendment
4. The district court of Washington Territowould be submitted to the people recog
ry, in deciding this case, made certain findings of
fact and conclusions of law. On appeal to the nizing those essential rights of life, liberty, supreme court of the territory, findings of fact and property which inhered in Anglo. were made by that court, substantially identical Saxon freedom, and which our ancestors with those of the district court. On appeal to brought with them from the mother this court, the record omitting the proofs and country. Among those rights is immu.
containing nu bill of exceptions, held, that the
only question before this court was whether the pity from cruel and unusual punishments secured by the eighth amendment aguinst indings of fact made by the supreme court of
the territory supported the conclusions of law federal action, and by the fourteenth which it made. amendment against denial or abridgment The Manitoba, 7 Sup. Ct. Rep. 1158, 122 U. 8. by the states. A judgment, therefore, of 97, distinguished. a state court, even if rendered pursuant
Appeal from the supreme court of the to a statute, inflicting or allowing the
Territory of Washington. infliction of a cruel and unnsual punishment, is inconsistent with the supreme law
Joho B. Allen, for appellant. John H.
Mitchell, for appellee. of the land. The judgment before us, by which the defendant is confined at hard *Mr. Justice BLATCHFORD delivered the labor in a house of correction for the term opinion of the court. of 19,914 days, or 54 years and 201 days, On the 11th of June, 1885, about 2 o'clock inflicts punishment which, in view of the in the morning, the steam-tug Tacuma character of the offenses committed, must was towing the bark Colusa, of about be deemed cruel and unusual.
1,200 tons burden, laden with lumber and
a voyage to San Francisco, On the 3d of September, 1885, the Tacon Cal., from Port Townsend, in the Terri- ma Mill Company, owner of the tug, filed tory of Washington, to Cape Flattery; a libel in rem against the ship in the dis. the bark being towed by a bawser about trict court of the third judicial district of 150 fathoms long, and the stern of the tug Washington Territory, claiming to recover being about 750 feet ahead of the stem or from the ship $12,000 as damages. Prothe bark. When the tug and the bark cess was issued, and the ship was duly were about four miles to the north of se ed and due notice given. On the 4th of Ediz-Hook light, in the Straits of Fuca, in September, 1885, the master of the ship the Territory of Wasbington, they were put in a claim to her, for D. O. Mills, as steering west-south-west half west, and her owner.. On the 29th of October, 1885, moving along a path west half south, at D. 0. Mills, as such owner, filed a crossthe rate of about two miles an hour by libel in rem, in the same court, against the the land. The ship Blue Jacket, of San tug, to recover $900 damages. On the Francisco, was on her way from that city 29th of October, 1885, the master of the to Seattle, in the Territory of Washing- ship, on behalf of her owner, put in an ton; and when she was about two miles answer to the libel of the Tacoma Mill from the tug, and showed her red light | Company. about three-tenths of a point on the port On the 2d of April, 1886, the Tacoma bow of the tug, she was sighted by the Mill Company filed an amended libel lookout on the tug. The weather was against the ship, and on the same day the cloudy, but the air was clear, with a same company filed an answer to the fresh breeze blowing from the west-south- cross-libel of D. O. Mills. The amended west, and the tide was flood, running up libel sets forth the particulars of the octhe Straits of Fuca at the rate of three currences which preceded and attended miles an hour, from west-south-west or the collision, and alleges that there was west-south-west half west. The ship's no negligence on the part of the tug, but mean course was east-north-east, but her that shortly after her helm was put hard
course was really along a swinging path, a-port, the ship, instead of keeping her @devia ting alternately to starboard and course', as it was her äuty to do, and port about one-half of a point each way which would have avoided the collision, from her mean course, and crossing the negligently put her helm hard a-starboard; same about every one-half mile, at inter- that by that time the tug and the ship vals of about every four minutes. She were so close together, and the course of was running with a fair wind and tide, the ship, then running free, was thereby and going ahead at the rate of about so changed, that the tug could not keep out eight miles an hour by the land,
of her way; that the ship had not a proper The lookout on the ship first sighted lookout or watch; that no special circumthe tug about half an hour before the cold stances existed which rendered necessary lision hereinafter mentioned, about half a a departure from the steering and sailing point on the starboard bow of the ship, rules prescribed by act of congress; that and five miles away, showing two wbite the ship did not have her side lights prop. mast-bead lights to the ship at that time erly set, but they were so placed that they and at all times up to the collision, and did not throw a uniforin or unbroken the red lights of the tug and the bark light from right abead to two points abaft being seen by those on board of the ship the beam, or at all, and she did not, on from 10 to 12 minutes before the collision. the approach of the tug, show a lighted When the tug was so sighted, she was torch, as she should bare done, on the reported at once to the master and mate point or quarter of the ship which the of the ship. Two and one-half minutes tug was approaching; and that, if those before the collision, the tug being about in charge of her, when they put her helm one-third of a mile from the ship and half hard a-starboard, had hauled her spanker a point off her port bow, the ship bearing boom midships and braced her after-yards about one and three-eighths points off the in on the port side, all of which they negliport bow of the tug, and showing both gently failed to do, although they had her lights to the bark and her red light to abundant time so to do, the collision the tug, and the bark bearing dead ahead would have been avoided. The answer from the ship, the tug, for the purpose of to the cross libel makes the sane allegaavoiding the ship, put her helm hard tions. a-port and swung to starboard but the The croes-libel against the tug alleges ship immediately thereafter, instead of that the latter, when about 1,000 or 1,500 keeping her course or putting her helm feet away from the ship, and about two to port, put her helm hard a-starboarii, points off her starboard bow, hard and kept it in that position until the col. a-ported her helm, and unskillfully tbrew lision occurred. Neither the tug nor the herself across the bows of the ship, and bark, at any time up to the collision, rendered a collision imminent: tbat the showed to the ship any side or colored tug had no colored lights set, and it was, lights, except their red lights. By putting not discovered by those in charge of the ber belm hard a-starboard the ship slewed *navigation of the ship that the tug bad: rapidly around to her port until her changed her course until she was within course was changed to about porth-north- about 275 or 300 feet of the ship, and steereast; and while the tug was still swing- ing directly across her bows; that it was ing to her starboard under a port helm then apparent to those in charge of the the two vessels came into collision, the navigation of the ship that, if she kept ship striking the tug bow on, on the port her course or purted her helm, she would side of the tug just abaft of midships, and collide with either the tug or the bark, damaging the tug seriously.
and perhaps both, and they thinking and
believing that those la charge of the pavi. them for said amount and costs, and an
that the tug did not have, before or at 19 Pac. Rep. 151, and was delivered by
ger of a collision. It also alleges that the case the appeal is from both the findings collision was due to the negligence of the of fact and the conclusions of law thereon. tug, and that there was no fault on the There is no contention but that the coopart of the ship. The answer to the libel clusions of law of the district court were contains substantially the same allega. correct, if the findings of fact were cortions as the cross-libel.
rect; but the sole contention is that the The record properly omits the proofs, district court erred us to its findings of but shows that on the 7th of March, 1887, fact, and hence that conclusions of law the cause having been heard on the plead-predicated on such erroneous findings of ings and proofs, the district court filed its fact were wrong, but only because the findings of fact and conclusions of law. findings of fact were wrong. As this The findings of fact were 29 in number, court refinds the facts as the district and were verbatim the same as the first court found them, (with the additional 29 findings hereinafter set forth, made by findings requested by the proctor for the the supreme court of the territory on ap- appellants hereunto attached and adopt. peal. The 1st, 2d, and 4th conclusions of ed by this court,) all contertion ceases exlaw made by the district court were incept as to the error of fact. The only terms identical with the 1st, 2d, and 4th opinion, therefore, that could be written conclusions of law of the supreme court of in this case, that would be germane to the territory, hereinafter set forth. The the question raised, would be an opinion 3d conclusion of law made by the district which would give reasons as to why thg court was that the Tacoma Mill Company findings of fact are correct deductions from was entitled to recover from the claim the evidence. Such could not be useful or ants of the ship $11,043.75 add costs, and necessary, and hence no attempt will be was entitled to a decree that the stipu- made to give reasons for the findings of lators for the claimant of the ship pay fact. But these findings of fact and con. that sim into court within 10 days, with clusions of law tliereon are all the decis. the costs, and that in case they failed so to ion which the case requires, and they are do the company was entitled to a sum- as follows." Then follow the findings of mary judgident against them and each of fact, 30 in number, and the 3 additional
findings of fact requested on the part of therefor. On
the same day, in open the ship and found by the supreme court, court, the claimant of the ship and her and also its conclusions of law, all of owner, D. O. Mills, the cross-libelant, and which are set forth in the margin; the the stipulators, took an appeal to this
part in brackets at the close of the first court, which was allowed. additional finding of fact not being con • It was contended in the lower court, 88
tained in that additional finding, as re set forth in the answer and the cross-libel equested by the proctor for the ship, but on the part of the ship, that the collision being added by the court.1
resulted through the fault of the tug, en. * On the 14th of August, 1888, the supreme titling the ship to damages. It is urged court entered a decree dismissing the here that, although by finding 23 it is cross-libel at the cost of the cross-libelant, found that the collision and all resulting and decreeing that the Tacoma Mill Com- damages were “occasioned solely by the pany recover from the claimant of the ship negligence, waut of skill, and improper and from its stipulators* $12,121.02, and conduct of the officers and persons navj. costs to be taxed, and tbatexecution issue gating said ship Blue Jacket, and not
*(1) That the libelant, the Tacoma Mill Com. the same were at all times properly set and pany, is and at all times mentioned in the plead brightly burning. ings in this cause was, a corporation organized (9) That at about ten minutes before two o'clock and existing under the laws of the state of Cali. in the morning of said day, while said steam-tug fornia, and duly authorized to do business in the was towing said bark Colusa at the place and in Territory of Wasbington.
the manner herein before stated, and steering on (2) That said libelant, before and at the time the said course, the_ship_Blue Jacket, of San of the collision mentioned in these findings, was Francisco, whereof F. F. Percival was then and and still is the owner and proprietor of the there master, and being then on her way from steam-tug Tacoma, with her steam-engines, boil San Francisco to the port of Seattle, in the Ter. ers, machinery, tackle, apparel, and furniture, ritory of Washington, was first sighted by the which said steam-tug said libelant used in tow lookout of said tug: said ship then being about ing vessels from, to, and between the various two miles distant from said steam-tug, and showports of Puget sound and the Pacific ocean, on ing her red light about three-tenths of a point the waters of Puget sound and the Straits of on the port bow of said steam-tug. Fuca, and through the waters tributary and ad (10) That the mean course of said ship at all jacent thereto, and where she was regularly run, the times wentioned in these findings, up to the daily and every day except Sunday, for the pur time her helm was put hard a-starboard, was poses aforesaid.
east-north-east; but her course was really along (3) That on the 11th day of June, 1985, at the a swinging path, deviating alternately to star. hour of about two o'clock in the morning of said board and port about one-half a point each way day, said steam-tug Tacoma, with her steam from said mean course, and crossing the same engines, boilery, apparel, tackle, and furniture about every half mile, at intervals of about every on board, was towing the bark Colusa, of the four minutes, up to the time her helm was put port of Boston, of about twelve hundred tons hard a-starboard, as hereinafter stated, which burden, then and there lumber-laden, and bound was done when said ship was on the port side of upon & voyage to San Francisco, Cal., from the said mean course. port of Port Townsend, in said Territory of (11) That said ship was ruoniug with a fair Washington, to Cape Flattery; and the said wind and tide, and at all times up to the time of steam-tug, with said" tow, was then about four the collision was going ahead at the rate of miles to the north of Ediz-Hook light, in he about eight miles per hour by the land. Straits of Fuca, steering west-south-west one. (12) That said steam-tug was first sighted by half west, and moving along a path west one-half the lookout of said ship about half an hour before south at the rate of about two miles per hour by said collision, and was then about one-ball a the land.
point off the starboard bow of said ship, and five (4) That at that time and up to the time when miles away from her, showing two white mastsaid ship put her helm bard a-starboard, as here head lights to said sbip at that time, and at all inafter mentioned, said bark was being towed times up to the time of said collision; the said by said tug by means of a hawser about one hun. tug steering at that time, and at all times until dred and fifty fathoms in length, and from the her helm was put hard a-port, as hereinafter stern of the said tug to the stem of said bark the stated, a course of west-southwest one-ball west, distance was about seven hundred and fifty feet, but, owing to the detecting influence of wind and, during all the times mentioned herein, said and tide, moving along a path in the direction of bark was steering the same course as said tug. west one-half south. That said tug, when so
(5) That at that time, and during all times up sighted by said lookout, was at once reported to to the collision hereinafter mentioned, the weath the master and mate of said ship. er was cloudy, the air was clear, and a fresh (13) That owing to the improper manner in breeze was blowing from the west-south-west, which said ship was steered, and to the irregular and the tide was flooding, running up the Straits course which she pursued in consequence of such of Fuca at the rate of three miles per hour from improper management, said tug bore from said west-south-west or west-south-west one-half ship from time to time about as follows: west.
At twenty three and three-quarters minutes (6) That said steam-tug at that time, and up to before said collision, (being three and five-sixths the time of the collision hereinafter mentioned, miles away,) dead ahead. was tight, staunch, strong, and in every respect At twenty-two and one-half minutes before well tackled, appareled, and appointed, and had said collision, (being three and five-eighths miles the usual complement of officers and men, and away,) dead ahead. was also, except as hereinafter found, well At twenty-one and one-quarter minutes before manned.
said collision, (being three and tbree-sevenths (7) That said tug at that time, and at all times miles away,) one-half a point off the starboard herein mentioned, carried all the lights pre bow. scribed by law, and carried the same in the At twenty minutes before said collision, (be. manner prescribed by law, and the same were at ing three and two ninths miles away,) one-halt all of said times properly set and brightly burn a point off the starboard bow. ing.
At eighteen and three-quarters minutes before (8) That said bark Colusa at all times carried said collision, (being three miles away,) one all the lights prescribed by the law, and carried half a point off the starboard bow. the same in the manner prescribed by law, and At seventeen and one-half minutes before said
from any fault, negligence, or improper | the compass, or so fixed as to throw a conduct on the part of any person on light from right ahead tu 2 points abaft board the said steam-tug Tacoma:" yet the beam on the side of the ship on which there are express and specific findings said lights were respectively placed, but which not only fail to sustain the general that those facts in no wise contributed to deduction in finding 23, but demonstrate the collision; that it is found by finding that the faults or misconduct resulting in 26 that the ship was well officered and the collision were mutual, if not entirely manned, and had the usual number of those of the tug, and that such findings, officers and seamen on board; that it is like special rerdicts, overcome the general found by finding 12 that the tug was first findings and are controlling; that it is sighted by the lookout of the ship about found by finding 24 that the side lights of half an hour before the collision, at five the ship were at all times brightly burn-miles distance; that that demonstrates the ing, but were not placed or constructed so vigilance of the lookout of the ship, that as to show a uniform and unbroken light | it is found by finding 10 that the mean over an arc of the horizon of 10 points of course of the ship up to tbe time her helm
collision, (being two and three-quarters miles said collision, said tug being about one-third of away,) one-third of a point off the starboard bow. a mile distant from said ship, and one-half a
At sixteen and one-quarter minutes before said point off her port bow, the ship bearing about collision, (being two and five-eighths miles away,) one and three-eighths points off the port bow of one-eighth of a point off the starboard bow. the tug, and showing both her lights to the bark
At fifteen minutes before said collision, (being and her red light to the tug, and the bark bear. two and two-fifths miles away,) one-twelfth of a ing dead ahead from the ship, said tug, for the point off the starboard bow.
purpose of avoiding the ship, put her belm hard At thirteen and three-quarters minutes before a-port and swung to starboard; but the said ship said collision, (being two and one-seventh miles immediately thereafter, instead of keeping her away,) dead ahead.
course or putting her helm to port, either of which AC twelve and one-half minutes before said she could and one of which she should have collision, (being two miles away,) one-third of a done, and either of which would have avoided point of the port bow; the ship bearing three- said collision, carelessly, unskillfully, and neg. tenths of a point off the port bow of the tug, and ligently put her helm hard a-starboard, and kept showing her red light to both the tug and bark ; the same in that position until the said collision the bark bearing three-tenths of a point off the occurred. port bow of the ship.
(15) That the red lights of both said tug and At eleven and one-quarter minutes before said said bark were visible to and were seen by those collision, (being one and three-fourths miles on board of said ship from ten to twelve minutes away,) one-half a point off the port bow; the before said collision. ship bearing one-third of a point of the port bow (16) That, although said lights of both said tug of the tug, and showing her red light to botb the and said bark were properly set and brightly tug and the bark, and the bark bearing four-tentbs burning, such were the relative positions of said of a point off the port bow of the ship.
ship, said tug, and said bark that neither said At ten minutes before said collision, (being tug nor said bark at any time up to the time of one and four-sevenths miles away,) five-eighths the collision showed the said ship any side or of & point of the port bow; the ship bearing colored lights except said red lights. four-tenths of a point off the port bow of the tug, (17) That owing to the putting of said helm of and sbowing her red light to both the tug and said ship to starboard, as aforesaid, said ship the bark, and the bark bearing from the ship slewed rapidly around to port until her course was five-ninths of a point of her port bow.
changed to about north-north-east, and sbe then, At eight and three-quarters minutes before said at about 2 o'clock in the morning of said 11th day collision, (being one and one-third miles away,) of June, while the tug was still swinging to starone-half of a point off the port bow; the ship board under a ported helm, collided with said bearing one-half of a point of the port bow of tug, striking her “bow on” on the port side, just the tug, showing her red light to both the tug and abaft of midships; thereby causing great damthe bark, and the bark bearing one-half of a point age to the hall of said tug, her machinery, tackle, of the port bow of the ship.
apparel, and furniture. At seven and one-half minutes before said col. (18) That had said ship kept her course, or bad! lision, (being one and one-seventh miles away,) her helın been put to port at the time it was put one-sixth of a point of the port bow; the ship to starboard, said collision would bave been bearing two-thirds of a point of the port bow of avoided, and no injury would have been occathe tug, and showing her red light to both the sioned to either said ship, said tug, or said bark. tug and the bark; the bark bearing one-eighth of (19) That no special circumstance at any time a point of the port bow of the ship.
mentioned herein existed which rendered At six and one-quarter minutes before said change of course on the part of said ship neces collision, (being nine-tenths of mile away,) sary or excusable. point of the port bow of the tug, and showing on board of said tug to discover that said sbip both of her lights to both the tug and the bark; had put her helm to starboard, everything was the bark bearing one-tenth of a point off the star- done on said tug to avoid said collision and lessen board bow of the ship.
the damage occasioned thereby; and, at the time At five minutes before the said collision, (be- of said collision, said tug, owing to said port ing five-sevenths of a mile away,) dead ahead; helm, was heading about north north-west. the ship bearing three-fourths of a point of the (21) That up to the time that said ship's helm port bow of the tug, and showing both her lights was put to starboard, as aforesaid, no one on to the tug and her green light to the bark; the board of said tug had any reason to expect or bark bearing one-sixth of a point off the star- anticipate any change of course on the part of board bow of the ship.
said ship; and, after the helm of said ship was so At three and three-quarters minutes before said put to starboard, nothing that said tug could have collision, (being one-half of a mile away,) dead done would have averted said collision. ahead; the ship bearing five-sixths of a point off (22) That the mate of said tug was & compethe port bow of the tug, and showing both of tent person for that position, and faithfully perher lights to the tugs and her green light to the formed his duties at all times mentioned in these bark; the bark bearing one-sixth of a point off findings, but he had no license. the starboard bow of the ship.
(23) That said collision was caused, and all (14) That two and one-half minutes before the the damage resulting therefrom was occasioned,