Occidental & O. S. S. Co. v. Smith

74 F. 261, 20 C.C.A. 419, 1896 U.S. App. LEXIS 1916

Opinion

HANFORD, District Judge

(after stating the facts). The appellant contends for the reversal of the decrees upon the ground that, in order to make out .a case against the Oceanic, it was incumbent upon the plaintiff to prove by a preponderance of the evidence the commission of some act which should not have been committed, or the omission of some duty which should have been performed, and which act of commission or omission on the part of the Oceanic was the direct or approximate cause of the injury complained of; and that there was a total failure to introduce such proof, there being no proof whatever showing negligence in the conduct of the Oceanic. It is insisted that as the Oceanic entered the Golden Gate its officers and crew were at their proper stations; that an efficient lookout was kept, and proper discipline maintained; that the Oceanic was in all respects found and equipped in the most complete manner, and was under perfect command; that the proper fog signal was given, and had been given by blasts of the steam whistle sounding ill intervals of less tlian a minute for several liours preceding the collision; that for a considerable time preceding the collision the speed of the Oceanic had been moderate, running from half speed to slow, dead slow, and with several stops, and for 11 minutes preceding the collision her speed had been dead slow, with only sufficient movement of her engines to maintain steerage way; that the master and pilot of the Oceanic saw the Chester through the fog at a distance of half a mile, points off the starboard bow of the Oceanic; that the Chester was moving at full speed; that the Oceanic imniediaieiy sounded two blasts of the steam whistle, indicating her purpose to go to port and pass on the starboard side, and at the same time the helm of the Oceanic was put hard a-starboard; that the master of the Chester answered said signal with two blasts of the steam whistle, which meant that the Oceanic’s signal was understood, and that the Chester assented, and would act accordingly; that in a short interval the same signals were again-interchanged; that, if the Chester had acted according to the signals given and responded to, the vessels would have passed each other safely; that after thé second interchange of signals the master of the Oceanic observed that the Chester did not go to port pursuant to her signal, but turned in the opposite direction; he then instantly ordered Hie engines of his vessel to be put to full speed astern, and the order was immediately obeyed; that said order was given and obeyed about two minutes before the collision occurred; that at the time of the collision the Oceanic’s headway had been stormed, and she was beginning to move backward; that the Chester swung around and struck the prow of the Oceanic, and was so injured by force of the blow that she sank.

An important fact established by uncontradicted testimony is the fact that the flood tide, entering San Francisco harbor, makes, in along the; south shore, striking the land just outside of Ft. Point, and from there deflects and sets with a strong current nearly due north towards Lime Point until it reaches about mid-channel, where it turns, taking a straight course into Ban Francisco Bay. The narrowest part of the entrance to San Francisco Bay is between Ft. Point and Lime Point, and this current setting northward from Ft. Point when the tide is flooding creates a tide rip rendering navigation across it extremely difficult. A vessel outward bound, upon striking the tide rip, is liable to be deflected from her course and slewed to starboard by force of the current. Another fact is that the collision occurred somewhere between Ft. Point and Lime Point. As the City of Chester, after signaling that she would go to port, behaved exactly as she would if caught by the tide rip, it is natural to infer that the vessels, at the time of signaling to each other, were both on the south side of mid-channel; and, as the first signal was given by the Oceanic, counsel for the appellant have labored to convince the court that in entering the Oceanic hugged the north shore, and that the collision actually occurred a considerable distance to the northward of mid-channel. To illustrate the testimony and indicate the course of the Oceanic from a point two miles out side of Point Bonita and the place of the collision, the accompanying map was introduced by the appellant:

The course of the Oceanic from the ocean outside the headlands to the place of the collision near Lime Point, is indicated on this map by a straight black line, and the course of the City of Chester by the black line curving to the point of meeting the Oceanic, and the sweep of the tide around Ft. Point is indicated by the curving black lines. The course of the Oceanic as indicated by this diagram was changed when off' Point Bonita, from N. E. by E. to N. E. E., taking her across the channel and across the course of outward-bound vessels. If the court should find as a fact that the course of the Oceanic in entering, and her position at the time of coming in sight

oí lite City of Chester, were as claimed by the appellant, such finding would not: exculpate the Oceanic, unless the position oí the Chester was south of mid-channel; for if, at the time of giving passing signals, both vessels were near mid-channel, or if the positions and courses of the two vessels made it necessary for them to pass each other iri the narrows, and on the same side of mid-channel, the law of the road required each to turn to the right, so as to pass each other port to port. And the Oceanic, in taking the initiative lhv signaling to pass on the starboard hand, assumed the risk of all consequences. , If both vessels were north of mid-channel, in that comparatively narrow passageway, they must have appeared to each other at a distance of half a mile to have been approaching each ether end on, or neatly so. Each vessel was therefore required, by article 15 of the revised international rules and regulations for preventing collisions at sea, adopted by act of congress of March 3, 1885 (23 Stat. 438-441), to alter her course to starboard, so as to pass on the port side of the other. If, however, they were not meeting end on, or nearly so, then necessarily the two vessels were on crossing courses, and the Oceanic had the Chester on her starboard side, and it was made her duty, by article 16, to keep out of the way of the; other vessel, and failure to do so in view of the claim made on her behalf that she was officered, manned, and equipped in the most perfect and complete manner, and raider perfect command, was inexcusable. The position in which the witnesses for the appellant place the Oceanic, hugging the north shore, proves too much, for the collision could not have occurred without fault on the part of her officers. Unless the City of Chester, from a position southward a sufficient distance to justify passing under a starboard helm, changed her course, and crossed ihe channel, she could not have swung sideways against the how- of the Oceanic, as counsel for the appellant would have us believe. This theory is contrary to the evidence, and wholly unreasonable. There is no probability that the Chester threw herself across-the how of the Oceanic, unless she was deflected from her course by the tide rip, and according to the testimony the current would not have sufficient force to have caused the misadventure so far north of mid-channel, as the witnesses for the appellant have located her. We consider, therefore, that the district court was right in finding that the place of the collision was near mid-channel, and, if it were not so, the appellant would fare no better in the result. This court might ivell affirm the decrees of the district court for the reasons given in the opinion of the district judge. We have deemed it proper, however, in view of the earnest manner in which able counsel have presented the cause for the appellant, to give careful attention to flie evidence and all the facts appearing-in the record, and, having doin' so, we have, nevertheless, been led to the same conclusion as that announced by the district court This case affords an opportunity which should not he lost for emphasizing another important rule for preventing collisions, which must he observed by navigators. This is found in article 21 of the international rules, above referred to, and article 25 of the act of August 19, 1890 (1 Supp. Rev. ¡St. [2d Ed.] 781-788), which reads as follows: “In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fair way or mid-channel which lies on the starboard side of such vessel.” The statutes of California contain a similar provision, to which reference was made in the opinion of the district judge. This rule was violated by the Oceanic in entering the Golden Gate on the occasion of the disaster involved in these suits, and the only excuse offered for taking the north side is that it is customary for large vessels in entering to take the north side. We cannot find in the testimony or argument of counsel any attempt to give a reason for the alleged custom, and, if it be true that there is such a custom, it is bad in principle, and contrary to law, and the courts will not recognize it as affording any ground for exempting a vessel from liabilities incurred by disregarding the law. The Victory, 15 C. C. A. 490, 68 Fed. 395; The Britannia, 153 U. S. 130, 14 Sup. Ct. 795. The decrees of the district court are affirmed, and the causes remanded for further proceedings in accordance with this opinion.