The City of New York

delivered the opinion of the court.

Notwithstanding the ruling of this court in The. Abbotsford, 98 U. S. MO, that the finding of facts by the Circuit Court is conclusive, and that the only rulings that can be reviewed by this court are' those made upon questions of law, but few collision cases have been brought to this court since the act of February 16, 1875, 18 Stat. 315 , c. 77, took effect, in which an effort has not been made, under one guise or another, to obtain a review of the findings of the Circuit Judge upon the testimony.- , If it' were the duty. of the court to review the ■ testimony úpon every finding of fact to which the defeated party chose to take an exception, and inquire whether such testimony authorized the finding, the title of the act “ To facilitate the disposition .of cases,” was a misnomer, and the act itself- might better never have, beén passed. In this case - sixteen- exceptions were taken to the findings of the court; twenty-one specifications of error are embodied in the seventeenth exception to the'opinion of the court, which was incor"porated in the bill.of exceptions, and there are also thirty-five exceptions to the refusal of the court to find the facts and law as requested -by the claimants.

In construing the act of 1875 the following propositions may be regarded as settled: ■ „.

• 1. That the facts found by the court below are conclusive; that the bill of" exceptions cannot be .used to bring up the evidence for a review of these findings ; that the only rulings, • upon which we'are authorized to pass', are such ns might be -presented by a bill of' exceptions prepared as in actions at Naw; and that the findings have practically the same effect as the special verdict of a jury. The Abbotsford, 98 U. S. 440 ; The Clara, 102 U. S. 200 ; The Benefactor, 102 U. S. 214 ; The Annie Lindsley, 104 U. S. 185 ;. Collins v. Riley, 104 U. S. 322 ; Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U. S. 485 ; Watts v. Camors, 115 U. S. 353 ; The Maggie J. Smith, 123 U. S. 349 ; The Gazelle, 128 U. S. 474 :

' 2. That it is only the ultimate facts which the court is bound to find; and that this court will not take notice of a refusal

3. If the court below neglects or refuses to make a finding, one way or the other, as to the existence of a material fact, which- has been established by uncontradicted evidence, or if it finds such a fact when not supported by any evidence whatever, and an exception be taken, the question may be brought up for review in that particular. In the one case the refusal to find would be equivalent to finding that the fact was immaterial; and, in the other,'that there was some evidence to prove what is found, when in truth there was none. Both of these are questions of law, and proper subjects for review in an appellate court. The Francis Wright, 105 U. S. 381 , 387; The E. A. Packer, 140 U. S. 360 .

In the case of The Francis Wright the court held that the bill of exceptions ought to show the grounds' relied on to sustain the objections, so that it might appear that the court below was properly informed as to the point to be decided, and that the facts sought to be incorporated were conclusively proven by uncontradicted evidence; and if the exception were as to facts found, it should be stated that it was because there was no evidence to support them, and then so much of the testimony as was necessary to establish this ground of complaint, which might under some circumstances include the whole, should be incorporated in the bill of. exceptions.- In The F. A. Paclcer, 140 ü. S. 360, the Circuit Court refused to find a specific fact which this court thought to be material, and to have been proven by uncontradicted testimony, and the case was remanded for a further finding in regard to this point.' ■-.

This case, then, must-turn upon the question whether the Circuit Court found any facts which were wholly’unsüppdr'téd. by testimony, or refused to find any fact.matefi£il;.t'Q'-'the' issup,. when such fact was proven by■ uncontradicfó'd:évídénce •'

The undisputed facts are that, the'-night- was. ioggyn -and. that the barque was bound from Havana to .' New'York- upon ■

1. Appellants’ first exception is to the third finding of fact, that “ the wind was blowing from the southwest or the south-southwest,” because it does not find the direction in which the wind was blowing, and because the direction of the wind was neither S.W. nor S.S/W., but S. There was. some conflict of testimony upon this point between the crews of the respective vessels and the observers at the signal stations and light-houses between Sandy Hook and Cape May; but as the District Judge was also of the opinion that the wind was somewhere from S.W. to S.S.W. it is impossible for us to say that there was no testimony to support this finding. If it were' impossible to ascertain, definitely from- the testimony whether it was from the S.W. or S.S.W., there was clearly no

2. The finding that the vessels could not discover one another at a distance of oné-eighth of a mile is substantially 'confirmed by all the testimony and by the opinion of the District Judge, who makes a similar statement three or four times in his opinion.

3. Appellants also except to the finding that the course* of the barque was “ about N. E.” instead of about N. E. by N. N.; but as the vessel had a free wind, and the usual course at this point between Absecon and Barnegat on the New Jersey coast, where the collision occurred, was N. E. or N. E. by N. for vessels bound to New York from Cape. Iienlopen, a departure from that course will not be presumed in the absence of some controlling reason. Indeed, the probability that a steamer or a vessel sailing with a free wind will pursue the course customarily pursued in that vicinity, by vessels bound from and to the same port, is so strong, that a deviation from that course without apparent cause will not be -considered as established without a clear preponderance of testimony. The District Judge also found that the general course of the vessel was N. E. until her wheel was put to port, just before the collision. Exception was also taken to the finding that “the steamship was going about eleven knots an hour.” As the appellants claim in their brief she was making eleven knots an hour, and both courts agree in this opinion, it-is difficult to see why an exception was taken to this finding. .

4. The fourth, fifth, and seventh exceptions are dependent upon the construction to be given to the several findings made by the court, and are not to the findings themselves, and hence are impertinent. The sixth exception is unimportant.

5. The remaining ten exceptions to the findings of fact are taken to the several clauses of the last paragraph of the fifth. finding. There were also twenty-one specifications of objec-

In this connection the allegation of the original libel was that “ the wind at the time was W.S.W., and the said barque was heading E. by N. N., running free, and going at the rate of about three knots an hour. . . . That when the said steamer was close upon the said barque, and the impending collision inevitable, and in the effort to 'escape the same, order was given to port the barque’s helm, which order was obeyed, but did not alter the course-of said barque more than a-point, and in a direction away from the said approaching steamer.” The answer denied “ that such order was given when the collision was inevitable, or that it did not alter the course of the barque more than a point, or that such alteration was in a direction away from the approaching steamer; ” and averred that at about ten o’clock and fifty minutes the

The case was tried upon these allegations, and the District Judge found that all the witnesses agreed that, at the -time of the collision, the barque “'was heading about E. or E. by N., or about four points to the eastward of the usual courseNfor vessels bound for-New York;” that the testimony of the mate apd wheelsman of1 the barque, who were the officers of the deck, that her course prior to the collision was. E. .by N. N., was untrue and wholly irreconcilable with the, admitted' facts, and with the other accredited testimony; and inferentially,1 at least, that their testimony was fabricated for the purpose of demonstrating that the change of course from. E. by N. N. to E. or E. by N. (from half a point to a point and a half) was so slight that it must have been made in extremis,

Pending that appeal, the libel was amended by averring that “ the wind at the time appeared . be by said barque’s compasses W.S.W., and the said barque was heading, as it appeared by said compasses, E. by N. N., running free, and going at the rate of about three knots an hour.....That the said barque was an iron vessel and had a list to starboard, and her compasses were affected by those facts, and she had a deviation card on board, by means of which corrections in the ■readings of said compasses were made, which said deviation car’d was lost with said vessel, and, the master being drowned, libellants were unable to more accurately state the said deviation than that it was between one and three points on different courses.” .

Exceptions were filed to this libel for indefiniteness and insufficiency, and a second amended libel was filed, averring “ that the wind at the time appeared to be, by said barque’s compasses, W.S.W. Libellants believe that the true direction of the wind was S.W.; that the compasses of the barque indicated it to be W.8.W. for the reasons hereinafter stated. 'The said barque was heading, as it appeared by said compasses, E. by N. N.,- and libellants believe her true heading was N.E. ■£. E., and that the said heading appeared to be E. by N. i N.,- by said barque’s compasses, for the reasons hereinafter stated.” The previous allegation with regard to deviation was repeated with the addition that “ libellants believe that such’-deviation on a trufe N.E. i E. course was two points, so that the course appeared by said barque’s compasses to be E.

The court conceded that the mate of the barque, who was the only witness who attempted to give her course by the compass, was not entitled to any credit, but that the testimony of the wheelsman, the lookout, and the engineer of the steamer so strongly confirmed the testimony of the witnesses for the barque, to the effect that her change of course was not made until the vessels were so close together that a collision was unavoidable, that it was not necessary to devote any time to the attempt to ascertain what the course of the barque was previously to the time this change was made. “All the witnesses for the steamer agree that the barque’s change of course took place under their observation, and that the steamer sounded an alarm of successive blasts of her steam whistle and

Upon the findings of the Circuit Court there can be no question of the gross negligence of the - steamship. She was not only not running at the moderate speed required by rule 21, but she failed to take the proper precautions when the proximity of the sailing vessel became known to her. ■ Upon hearing the .fog hofn of the barque only one point on her starboard bow, the officer in charge should at once have checked her speed, and, if the sound indicated that the approaching vessel was near, should have stopped or reversed until the sound was definitely located, or the vessels came in sight of each other. Indeed, upon the testimony in this case, it is open to doubt whether, if the engine had been at once stopped, the steamer would'have come to a standstill before she had crossed the course of the barque. There is no' such certainty of the exact position of a horn blown in a fog as will justify a steamer in

So far as the case of the barque is concerned, there was evidently testimony to support the findings of the Circuit Court, and if these findings are consistent, and justify its conclusion of law that the barque’s change of course was an error in extremis, we cannot do otherwise than affirm the decree. In view of the recklessness with which the steamer was navigated that evening, it is no more than just that the evidence of contributory negligence on the part of the sailing vessel should be clear and convincing. Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of' itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its clainij and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor. Taking the finding of the Circuit Court, that the course of the barque was' about N.E., in connection with the fact that after she luffed she changed her course but one or two points by the time the vessels came together, it is evident that that court did-not agree with the District Court that she was headed E. or E. by N. at the time of the collision. Nor is this finding inconsistent with his further finding that when the barque was first seen the officers of the steamer discovered that her course was eastward, since that may be construed as any point east of north. The evident gist of the steamer’s complaint is the refusal of the Circuit Court to find the heading of the barque at the moment of collision. Had it found such course to be E. or E. hy N., as the answer averred, and as much of the testimony indicated, it would necessarily-follow that she must have changed her course from three to four points under her hard-a-port helm — a change scarcely consistent with an error in extremis. But the testimony upon this

The court evidently thought that more satisfactory evidence of the heading of the two vessels at the time of the collision was derived from the fact that the steamer while running at 11 miles an hour put her helm hard-a-starboard from one to two minutes prior to the collision. - At this rate of speed it is by no means improbable that .she swung three or four points before the collision took place, while the other testimony left

Upon the whole, it is impossible for ils to say that these findings, while inconsistent with the theory of both parties, were not supported by the testimony, or that they did not justify the conclusion that the change of course of the barque was made in extremis. The decree of the court below is therefore

Affirmed.