Cosulich Societa Triestina Di Navigazione v. Zosensho
297 F. 182
5th Cir.
1924
Check Treatment
BRYAN, Circuit Judge.

Thе. Italian steamship Anna and the Japanese steamship Baltimore Maru camе into collision 'at the entrance to Galveston harbor. Both ships were damaged. The owners of the Anna filed a libel against the Baltimore Maru, laying damages at $100,-000, and in turn thе owners of the Baltimore Maru filed a libel against the Anna, laying damages at $75,000. The two cases were consolidated for trial.

The harbor is entered from a whistling buoy in the Gulf in a nоrthwesterly direction until bell buoy No. 7 is reached, a distance of about' four miles, and thеn the channel extends fdr some distance in an easterly and westerly direction. The collision occurred late in the afternoon in a fog, which had settled down near this bell buoy No. 7, where the direction of the channel changes, and while the two ships were undertaking to pass each other; ‍‌‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​​​​​​‌‌​​‍the Anna being inward bound and the Baltimore Maru being оutward bound. Both were steel vessels of about the same size; the Anna being 420 feet in length, with а beam of 54 feet, and the Baltimore Maru 405 feet in length, with a beam of 50 feet. The Anna wаs in ballast and was drawing 16 feet 6 inches, while the Baltimore Maru was heavily loaded and drawing 28 feet 6 inches. The tide was flooding in at the rate of about 1% miles per hour.

There wаs evidence for the Anna that she • was proceeding along the line of buoys on thе north side of the channel; that after she got into the fog her engines were stopрed several times, and that she was run at slow speed; that her engines had been stopped for nine minutes when the Baltimore Maru was sighted directly ahead, at a distance of between 200 and 300 feet; and that the collision occurred on the north side of thе channel. There was evidence for the Baltimore Maru that after she got into the fog she-proceeded at slow speed on the south side of the channel, аnd that the Anna was sighted 400 feet away, immediately after which the engines of the Baltimorе Máru were put full speed astern; but, notwithstanding that, the two vessels collided on their port sidеs. At the time of the collision the engines of the Anna were running full speed-ahead, and she did not stop until she reached the north side of the channel. The Baltimore Maru was grounded near the bell buoy on the south side of the channel. At this point the channel is abоut 1,000 feet wide, but there was not enough water for the Baltimore Maru to pass to the sоuth of the bell buoy. *184It is undisputed that each vessel was giving ‍‌‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​​​​​​‌‌​​‍fog signals, which were heard on the оther.

It will thus be seen that the evidence is in direct conflict as 'to whether each vеssel was keeping to its side of the channel, and as to whether the collision oсcurred on the north side or the south side. The District Judge, who heard the. important witnesses, sеttled this conflict in favor of the Baltimore Maru, and we accept "his view as cоrrect. The Anna was therefore at fault in being on the wrong side, of the channel. The. Bаltimore Maru was at fault, in that it failed to navigate with that degree of caution required by article 16 of the International Rules to Prevent Collisions, which is as follows:

“Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, apрarently forward of her beam, the ‍‌‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​​​​​​‌‌​​‍fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.” 26 Stat. 326.

It appears to be settled that a steam vessel violates this rule if she is unable to stop within the distance other vessels can be seen. Lie v. San Francisco & Portland Steamship Co., 243 U. S. 291, 37 Sup. Ct. 270, 61 L. Ed. 726; The Manchioneal, 243 Fed. 801, 156 C. C. A. 313; The Sagamore, 247 Fed. 743, 159 C. C. A. 601; The New London and The Edgerton (C. C. A.) 271 Fed. 83; The Haven (C. C. A.) 277 Fed. 957. The District Judge, applying this rule as thus construed, held the Baltimore Maru also at fault. But he dismissed both libels, and in this there ‍‌‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​​​​​​‌‌​​‍was error. The collision being attributable to the negligence of both ships, the damagе to each should be equally divided. The North Star, 106 U. S. 17, 1 Sup. Ct. 41, 27 L. Ed. 91; The Chattahoochee, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801; Erie Railroad Co. v. Erie Transportation Co., 204 U. S. 220, 27 Sup. Ct. 246, 51 L. Ed. 450.

An appeal was not perfeсted on behalf of the Baltimore Maru, but that is immaterial, and does not prevent the court below, upon further hearing, from applying the rule of divided damages in favor of, as well as against, each vessel. The John Twohy, 255 U. S. 77, 41 Sup. Ct. 251, 65 L. Ed. 511; The Astoria (C. C. A.) 281 Fed. 618.

The decrees are reversed, and the causes remanded for further ‍‌‌​‌​‌‌​​​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​​​​​​‌‌​​‍proceedings not inconsistent with this opinion.