Elder

203 F. 523, 1913 U.S. Dist. LEXIS 1752

• Court: District Court, D. Oregon
• Decided: February 3, 1913
• Docket: No. 5,162
• Status: Published

Opinion

WOLVERTON, District Judge

(after stating the facts as above). The question to be resolved is which of these two vessels was at fault in bringing on the collision, or whether both are blamable for their part in the affair. The following is a rough chart of the river and its shore lines at and near the place of collision:

"K" represents the place where the collision occured. "C" is adesignation for Cooper’s Point, made by counsel in the examination of one of the witnesses. It is claimed by libelant’s counsel that Cooper’s Point is approximately five-eighths of a mile above the place of collision, which is probably near the correct distance. The line from “C” to “K” shows approximately the ship’s course for vessels of the class and size of the Elder. As they round Cooper’s Point and pick up Waterford Eight, they bear away from the Washington shore on or near the line indicated until they pass the point where the collision occurred. I speak of rounding Cooper’s Point. As a matter of fact, the change in course is only slight, as the vessels run near the Washington shore for some distance above. The Elder on the night of the accident, according to the testimony of her officers, had just rounded or passed Cooper’s Point and had straightened up, not on her regular course, but on a course a half-point to starboard of the Kern, the Kern’s presence in the river below having been discovered at that time, and the pilot intending to bear off the' Washington shore opposite the Kern some 400 feet, which would leave the Kern to the Elder’s port from 300 to 600 feet, thinking, as he says, he could go in through there with safety. It was then that the officers say they blew one whistle as a signal to the Kern that the Elder intended to pass to her starboard, the ship running nearly at full speed. This would put the distance of the Elder above the Kern approximately half a mile when the Elder gave the signal. She slowed up, her officers say, but continued on her course a half-point to the 'starboard of the Kern, and, •getting no response from the Kern, she subsequently blew another whistle, a single blast as before. At this time Patterson, the pilot on the Elder, puts his distance from the Kern at from 1,000 to 1,500 feet, and it was then, according to witnesses for the Elder, that they got the first response from the Kern. They were not certain whether the re- . sponse was a cross or a danger signal. The vessel was at once ordered hard astárboard, and full speed astern. The Elder being constructed with .a left-hand propeller, the effect of the execution of the order' would be to throw her bow to port and her stern to starboard, thus giving her a curving course to port. The Elder, was executing this maneuver when she struck the Kern.

On the other hand, the officers and deck hands of the Kern say they heard the first signal given the Kern by the Elder, and that the Kern answered at once with the danger signal, four short blasts. Very shortly the Elder gave anothér signal, which was also answered as before, with four short blasts. The Kern was heading approximately downstream. Such being her position, the Elder, if steering on her usual or the ship’s course, would be approaching from an angle astern. This will be at once apparent from the above sketch. Moran, the pilot on the Kern, thinks the Elder approached directly for the stern of the Kern, as if she were going to split her up the center. The mate and the master concur in the view that the Elder was approaching, not directly from the stern, but heading for the Kern’s starboard quarter or midships. All the witnesses on the Kern agree that the lights of the Elder-^-port, starboard, and masthead lights — were all plainly visible as she approached the Kern until after the Elder began swinging to port. It was almost at this instant that the collision took place, or so shortly after that it was difficult to estimate the time. In the course of her maneuver to get in between the barges constituting her tow, the Kern’s helm had been thrown to port, and on observance of the near approach of the Elder she was ordered full speed ahead. The effect of the execution of this order would be to throw her stern to port and bow to starboard, thus increasing her angle with the usual ship’.s course. Morán says she had begun to execute this maneuver, and had proceeded ahead 30 or 40 feet when the Elder struck her. The Elder struck her starboard quarter at an angle of about 34 degrees. This is a physical fact shown by the course of the Elder’s bow as it extended into the hull of the Kern.

Capt. Church, in charge of the Hercules, relates that while navigating his vessel up stream to pick tip the empty barges he exchanged the passing signal with the Elder, and that the Elder signaled the Kern just as she was passing the Hercules below Cooper’s Point, inside of 1,000 feet. First Officer Hale on the Hercules lends corroboration to this. Capt. Patterson’s custom was to signal the vessel ahead when about half a mile distant. From these witnesses it would appear that the Elder sounded her first signal to the Kern when approximately half a mile distant, and this I am constrained to believe to be the fact. However, the Rider may have been nearer, and possibly somewhat farther away. No implicit reliance can be placed upon the estimate of the witnesses on board the Kern as to how far distant the Elder was when she blew her first whistle, as they were looking into the darkness, without physical objects by which to determine the fact with relative accuracy. At the distance of a half-mile away, if the Elder kept her speed, say from 10 to 12 miles per hour (she was prob•ably running at a faster rate), she would reach the Kern in from 2x/¿ to 3 minutes, the Kern being dead in the water. The Elder, however, I am led to believe, slowed down, which would increase the time relatively. It is further probable that her speed was not greatly checked until the pilot's order to put her full speed astern was executed, as there is no evidence that her engines were backing, so that she was running at a stiff rate up to that juncture.

All the witnesses on the Kern speaking as to the fact concur in the statement that the Elder was heading almost, if not directly, for the Kern, for they saw all the Elder’s running lights, which is a demonstration in itself, and discredits absolutely the testimony of the officers on the Elder to the effect that she was running on a course having the Kern a half-point on her port bow. If she had been, the evidence would indicate that the Elder’s green or starboard lights would have been shut out from the Kern, and as the Elder approached the angle would have been increased, more perfectly obscuring her green light. It is problematic as to just how near the Elder had approached the Kern when she blew her second whistle. The distance is variously estimated from 1,000 or 1,500 feet to very near at hand. Arneson says, “She was pretty close to us then.” From either point of view, she kepi, her course until that time; that is, she was either running directly for the Kern, or with the Kern one half-point: on her bow; in my view, directly for the Kern. A thing which appears to be practically certain is that the Elder at this point put her helm hard astarboard, and reversed her engines to full speed astern, which gave her a curving course to port, and yet she collided with the Kern. From the expert testimony it would seem that, if she had been 1,000 feet distant when she began to execute the maneuver, she would probably have cleared the Kern and her tow, or stopped before reaching her. If within 500 feet, the result would have been problematical. Possibly she even then would have cleared the Kern. This would make it appear that the Elder was not much, if anything, beyond 500 feet from the Kern when she began to execute her maneuver to port, and she might have been much less.

[1] As to whether the Kern gave response to the first passing signal of the Elder there is a sharp conflict in the testimony. The officers of the Kern, consisting of the pilot, first officer, mate, chief and assistant engineers, and a seaman, all concur in saying they heard the response given to both the first and the second signal of the Elder. Besides these witnesses, the captain of the Hercules and a fisherman testify that they heard all the signals — two from the Elder and two, consisting of four short blasts, from the Kern, and the mate on the Hercules heard both responses. All the witnesses on the part of the Elder testifying, to the fact say they did not hear any response whatever to the first signal of the Elder. Applying the rule that the testimony of witnesses affirming that they heard or saw a thing is entitled to greater weight than the negative testimony of other witnesses who affirm that they did not hear or see it, the greater credence must be given to the testimony of libelant’s witnesses. As applicable to collision cases, it has been held that:

“The established rule is that the testimony of officers and witnesses as to what was actually done on board their own vessel is entitled to greater weight than that of witnesses .on other boats, who judge or form opinions merely from observation.” The Alexander Folsom, 52 Fed. 403, 411, 3 C. C. A. 165.

See, also, The Alberta (D. C.) 23 Fed. 807, 810; The Sam Sloan (D. C.) 65 Fed. 125, 127.

. Further than this, I am impelled to the firm conviction that the Kern gave prompt response to the first signal of the Elder with four short blasts of her whistle; and, not only this, I am of the opinion that the officers of the Elder testifying, or at least one or more of them in authority, did hear such response from the Kern, and that the Elder is chargeable with positive knowledge that it was given. I base this latter deduction the more readily upon the testimony of the captain and mate of the Hercules and the fisherman, who were even less advantageously situated for hearing such signal than the officers of the Elder.

[2] Now, to apply the rules of navigation, which constitute a cardinal factor in determining the fault and to which of the two vessels it is attributable. As a preliminary statement to the rules adopted by Congress approved June 7, 1897 (Act June 7, 1897, c. 4, 30 Stat. 96 [U. S. Comp. St. 1901, p. 2875]), relating to the prevention of collision upon certain harbors, rivers, and inland waters of the United States, it is premised that a vessel is under way when she is not at anchor or made fast to the shore or ground. According to this, the Kern was a vessel under way. An overtaking vessel “shall keep out of the way of the overtaken vessel.” Article 24. “When steam vessels are running in the same direction, and the vessel which is astern shall desire to pass on the right or starboard hand of the vessel ahead, she shall give one short blast of the steam whistle, as a signal of such desire, and if the vessel ahead answers with one blast, she shall put her helm to port; or if she shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall put her helm to starboard; or if the vessel ahead does not think It safe for the vessel astern to attempt to pass at that point, she shall immediately signify the same by giving several short and rapid blasts of the steam whistle, not less than four, and under no circumstances shall the vessel astern attempt to pass the vessel ahead until such time as they have reached a point where it can be safely done, when said vessel ahead shall signify her willingness by blowing the proper signals. The vessel ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel.” Rule 8 of article 18. “In obeying and -construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.” Article 27.

[3 j In view of these rules, it is clear that it was the hounden duty of the Elder to keep out of the way of the Kern. Having heard the response to the Elder’s first passing signal, the duty was imposed upon the Elder not to attempt to pass the Kern until such time as it could be safely done, at which time the vessel ahead is required to signify her willingness by blowing the proper signal. This makes the vessel ahead the judge as to when the overtaking vessel can safely pass. The Elder slowed down, but kept her course — this in face of the fact that she was steering straight for the Kern, and approaching her at a rapid rate. Continuing in this way, the Elder again asked permission to pass. The Kern again refused; and then it proved too late to avoid the collision, for it occurred in spite of the energetic efforts of the Kern to prevent it.

The fact that the Elder struck the Kern at an angle of 34 degrees in no way conflicts with the theory that the Elder was steering straight for the Kern. It is altogether probable that the Kern was pressing ahead at the instant with her helm aport, which carried her stern somewhat to port, and the “curving” motion of the Elder would naturally bring her into collision at some angle. The Elder should have been eagerly mindful of her rapid approach to the Kern on the course she was steering, and should have avoided running so near to the latter as to put her in peril of a collision. Under the circumstances, she was at liberty to depart from the letter of the rules and steer to the starboard of the Kern, notwithstanding the refusal of the latter to let her pass — this to avoid “immediate danger.” Article 27, Sup. See The North Star, 151 Fed. 168, 172, 80 C. C. A. 536.

The expert witnesses, including Moran and Anderson of the Kern, seemed to be of the view that if the Elder had steered to starboard at a distance of 1,000 feet, or even 500, she would have avoided the Kern. She would have avoided her absolutely, and without question, if she had been running on the course of a half-point to port of the Kern when the first signal was given, and continued on that course. Furthermore, if she had so continued until she gave her second signal, the probabilities are that she would by that time have so indicated her course to the Kern that the latter would have signified permission to pass as requested.

Supposedly at that time such would have been the case. Counsel for respondent suggest that the response given by the Kern indicated, not only that the Kern was in jeopardy, but that it was not safe for die Elder to pass on any course to starboard of the Kern or between her and the Washington shore. The clear reply to this suggestion is that the Elder knew the river, and knew, also, that the Kern was en.gaged in navigating barges downstream, and it is not at all probable that she was so misled by the signals of the Kern. Such is my conviction. But, if it be that the Elder did not hear the response to her first signal, it was a grave fault to approach so near to the Kern on the course she was running as to jeopardize the situation. She should either have done what she did do in the extreme, ■ or have departed from the rules and gone to starboard-of the Kern. In either event, the collision would not have happened. This would be the case-whether she knew the Kern was “dead in the water” or moving. The emergency was one which she ought to have been on her guard about. She knew that the Kern and Hercules were in the habit of exchanging tows in the river, and she met the Hercules almost at the very time that she sounded her first signal to the Kern, and ought to have known that the Kern was likely to be engaged in the very thing that she was trying to do at the time, namely, to pick up her tow. I do not deem that it was a contributing fault on the part of the Kern that she was picking up her tow in the fairway. The James T. Easton (D. C.) 27 Fed. 464. She certainly had a right to navigate with her tow in the fairway, and I have been cited to no authorities holding that she was remiss in using the fairway to make fast to her tow.

It is stoutly urged that the Kern was rendered in fault because 'Moran refused permission to the Elder to pass, under a mistakén interpretation of article 18, rule 8. Moran watched to ascertain whether the Elder changed her course áfter signaling for permission to pass before he acted, and, observing no change, he refused permission. He candidly concedes that his impression of the meaning of the rule' was that it required the Elder to change her helm before the assent should be given. In this he was in error, for the rule requires the contrary; that is, that the overtaking vessel shall change her course upon receiving assent from the overtaken vessel — not before, but after, receiving such assent.

The .question is a serious one, and not free from difficulty; but I have concluded that the mistake of Moran was not the proximate contributing cause of the collision. I am satisfied that Moran did not refuse his consent to the Elder to pass arbitrarily, or with any wanton purpose of vexing her or impeding navigation. He assumed for his own safety that he ought to withhpld his assent because the Elder was heading directly for his boat, upon the mistaken idea that she ought to have changed her course at once after signaling for permission to pass the Kern. The Elder, nevertheless, should have heeded the signal from the Kern, and if she had, and had acted with the same energy that she did on getting the second signal from the Kern, there would have been no collision. The only damage that either boat would have sustained would be some delay to the Elder. Thus it is manifest that the proximate cause of the collision was the omission of the Elder to take prompt action upon getting the response from the Kern to avoid, if possible, any contact with the latter. I reach this conclusion the more readily from the circumstance that the Elder was the overtaking vessel, charged not only with the duty of keeping out of the way of the Kern, but also with the burden of showing that the_ fault of the collision was with the Kern. The reasoning of Betts, District Judge, in The Governor, Fed. Cas. No. 5645, is apposite:

‘•If the Worcester and the Governor had been running in opposite directions. the collision might probably have been deemed to be so far the result oí mero casualty and misadventure as to leave each vessel to bear for herself the consequences of the accident falling upon her. But the fact that they were running in the same direction, the one astern of the other, imposed upon the rear boat an obligation to precaution and care which is not chargeable to the same extent upon the other. In the light of this principle, the circumstances of the present case manifestly cast the burden of proof upon the Governor. She was astern, and was seeking to run past the Worcester. She had a right to the advantage of her superior speed, and, under such circumstances, it' would have been tortious and blamable conduct on the part of' the Worcester designedly to intercept the Governor, to crowd her off, or to baffle her in that effort. But it devolves upon the Governor to show the prudence of her own conduct, as well as to prove negligence or misconduct on the part of the Worcester. It was not the duty of the latter boat to veer from her course so as to open a passage for the Governor, or to lend her any facility in aid of her purpose to pass. We may censure any rigid adherence to strict right by which one competing boat interposes embarrassments in the way of her competitor, and may regret the want of a magnanimous and liberal course of conduct which might relieve a vessel of superior speed and endeavoring to get ahead from delay or difficulty in accomplishing that object. But the court is only empowered to adjudicate the legal rights of the one and the responsibility of the other.”

See, also, the reasoning of the court in The Fontana, 119 Fed. 853, 856, 56 C. C. A. 365.

This leaves but one other contention to dispose of, which relates to the fact that the Kern had no designated lookout in service at the particular time. The absence, however, of. such a lookout was void of any causative effect in bringing on the collision. The officers in charge of the Kern discovered in due time the approach of the Elder, and the action taken was in pursuance of such discovery, and of the movement and signals given by the Elder.

I hold, therefore, that the collision was due solely to the fault of the Elder, and that she must stand accountable for whatever damage was inflicted upon the Kern. The amount of the damages must be ascertained from testimony yet to be adduced.