270 F. 114 | 6th Cir. | 1921
(after stating the facts as above).
It is entirely possible, as was stated by the master of the Wahcondah, and as was assumed by the trial judge to be a matter of common knowledge by all familiar with lake traffic, that the masters would be glad to run slowly in fog, were it not that the owner generally expected them to make time, which they could not make if they strictly obeyed the rules. Proof tending to show an established and long-continued custom on the part of a steamer never to check merely for fog, no matter how dense, but to continue at full speed, we think would be distinctly relevant toward determining an otherwise doubtful issue of fact, whether the boat on a particular occasion, while under the same management and the same master, did depart from that custom and for the first time show caution, instead of utter recklessness.
Nor can we say that there was error by the trial court in taking up such an inquest on his own motion. The public danger arising from violation of these navigation rules is so extreme that the court, in the public interest, should be vigilant to visit any violations with due penalty.
There is nothing in the record of the ship making it seriously improbable that this mate, just promoted and naturally feeling his responsibility, running into a dense fog bank, should have checked and continued to check for 20 minutes, just as he says he did; nor is the ship’s record, in our judgment, sufficient in itself to justify a finding that the several witnesses invented the whole story, including falsification by the acting engineer of his temporary slate record. There was nothing in the appearance or demeanor of the witnesses to discredit them, as the trial judge found upon the first hearing. Their story was confirmed by the conduct of the Wahcondah people, who on that hearing made no proof that the Choctaw maintained undue speed. Such testimony as was given on the second hearing from the Wahcondah, indicating the speed of the Choctaw, is not very forceful, particularly after failure of the same witnesses to testify on the first hearing, although present in court. We conclude, therefore, that the record does not contain sufficient basis for condemning the Choctaw for undue speed.
By way of answer to the complaint that there was no lookout at the proper place on the bow, it is said, first, that in this type of boat it is usual and right to have the lookout where this one was. His absence from the ordinary and proper location at the bow cannot be justified for these reasons. We find no evidence of such custom; nor is the ship’s type a sufficient excuse. The sea was smooth, and there would have been no difficulty in standing on the bow turret, and that location, seemingly, would not have been beyond calling distance for making reports. In The Manchioneal (C. C. A. 2) 243 Fed. 801, 156 C. C. A. 313, on a ship 150 feet long, her lookout was standing at the
“By the overwhelming weight of authority it is settled that the proper place for a lookout is, under ordinary circumstances, on the bow” (citing cases).
The ■ conditions existing in the present case — a smooth sea and a fog — made it both feasible and especially important that he should be at the conventional station.
By way of further answer as to the lookout’s position, it is said that he could see and hear where he was as well or better than at the bow, so that his faulty location could not have made any difference in the result. There is grave doubt whether the absence of a properly posted lookout ought ever to be held inconsequential in a fog case. There is too much inherent uncertainty as to what he might have seen and heard if he had been in the right place.
“The denser the fog and the worse the weather, the greater the cause for vigilance. A ship cannot be heard to say that the lookout was of no use, because the weather was so thick that another ship could not be seen until actually in collision. Marsden on Collisions at Sea (6th Ed.) 472, 474,” as quoted in The Sagamore (C. C. A. 1) 247 Fed. 743, 755, 159 C. C. A. 601, 613.
“It was incumbent upon the .Columbia [in a fog] to maintain lookouts as far forward and as near the water as possible, and at a height above the water, as well for the purpose of hearing as seeing. * * * No excuse can be found for a failure to have lookouts forward, and there was no reason why they should not have been stationed at the stem, which, besides being so much nearer any approaching object [the lookouts were on the bridge 94 feet from the stem] was about 15 feet closer to the water.” Watts v. U. S. (D. C.) 123 Fed. 105, 113. See, also, The Sagamore, supra, and cases cited on pages 754, 755, and The Tillicum (D. C.) 217 Fed. 976, 978.
We do not find that this court has ever held the lack of a bow lookout in a fog collision to be immaterial, because not a contributing cause; but if the rule of liability, as an invariable one, may be too harsh, and if it may be applied in fog cases with as much flexibility as in others, it at least must be made to appear with reasonable certainty that there is no room for any inference of contributing effect. The Roby (C. C. A. 6) 111 Fed. 601, 612, 49 C. C. A. 481; Great Lakes Co. v. Pittsburgh Co. (C. C. A. 6) 222 Fed. 862, 866, 138 C. C. A. 288; Marmet Co. v. Feiger Co. (C. C. A. 6) 259 Fed. 435, 447, 170 C. C. A. 411.
Although it may be true in individual cases, there can be no presumption that a lookout 200 feet back from the bow and higher up can see as well; sometimes he could, and sometimes he could not; but in this case we 'must agree with the District Court that a lookout at the bow would not have seen anything enough earlier to have made any difference whatever in the result. No one could see further than a boat’s-length, if so much as that.
A different question arises as to hearing. The lookout should be not only the eyes, but the ears of the ship. This group of three men, close together on the deck structure, might naturally talk together,, and the lookout’s attention be diverted. The fog whistle blowing three-blast signals at intervals of less than a minute, and therefore blowing
In addition, and in a fog, there would be further advantage in this position. He might hear a signal from the true direction, while 200 feet away, a false impression of direction would be given because of the peculiarities of the fog. In any event, it might be helpful to have two different bearings upon the approaching signal; but we would be reluctant to rest upon these features a conclusion of fact that his absence from the bow might have contributed, because there is no satisfactory evidence
Accepting the statements of the Choctaw and the Wahcondah as to their respective speeds, and the Choctaw’s testimony that the first-fog whistle heard was three minutes before the collision, it follows that the boats were then about 3,600 feet apart. The Choctaw witnesses say they all estimated the distance as more than a mile. A lookout at the bow might well have judged the distance accurately; it is familiar knowledge that there may be no uniformity in the obstruction to sound here and there in a fog. They all appreciated that the whistle was from a boat coming toward them. There is no claim that it could have been anything else. It was the duty of this approaching vessel to blow fog whistles once a minute, but for 2y$ minutes nothing was heard. An approaching boat would be expected only from Mackinac or Detour. If the former, it would be on a converging course, and the danger would speedily become imminent; if the latter, the courses would be parallel, and the danger only less probable. On whichever course, the approaching boat was not obeying the law. It would seem that the mate might well have taken alarm, even though thinking that the fog signal they heard had come from a mile away.
If this boat was not blowing the required signals, what inference
We have, thus far, accepted the estimate of the Choctaw’s mate as to timo and distance. She can hardly complain if the wheelsman’s testimony is considered. He heard the Wahcondah’s fog whistle about three minutes before the collision, and heard a two-blast passing signal immediately thereafter. He says the two were as close together as they could be without danger of being misunderstood, as intended for an alarm. If this is true, then so much the greater would have been the probability that a lookout at the bow would have placed these signals at their true distance, instead of thinking that they were twice as far away. In that event, there would have been sufficient time for an alarm and a stop to have avoided the collision.
After we assume that the Choctaw is chargeable with that knowledge of the truth which it might not improbably have obtained through the ears of a bow lookout, we have a case substantially within rule 26, as interpreted and applied by this court in The Roby, supra. Rule 26 (U. S. C. S. § 7936; the White Raw, Act Feb. 8, 1895) provides that:
“ * * * jn every case where the pilot of one steamer fails to understand the course or intention of an approaching steamer, whether from signals being given or answered erroneously, or from other causes * * * the pilot so in doubt, shall sound several short and rapid blasts of the whistle; and if the vessels shall have approached within half a mile of each other both shall reduce their speed to barely steerage way, and, if necessary, stop and reverse.”
In The Roby, supra, 111 Fed. 609, 49 C. C. A. 489, we thought that this rule, in connection with rule 15 (Comp. St. § 7925), applied imperatively to vessels which had approached within half a mile of each other without having reached a satisfactory passing agreement. Applying that rule here, we find that the vessels had, in fact, approached within half a mile of each other (on the mate’s testimony) without any passing agreement; that the pilot of the Choctaw was, or should have been, in doubt as to the course or intention of the approaching boat, and was required by the rule to blow an alarm; that the only excuse for not doing so is that they misjudged the signal, and did not think the approaching steamer was so near; and that, with a lookout prop
_ This view leads to the conclusion that the Choctaw should be condemned for the lack of lookout, and that the damages should be divided.
For this reason, the decree will be affirmed.
On this second hearing, the Wahcondah’s captain says he blew two successive two-blast signals; but, in view of his silence on the first hearing, this testimony should be received cautiously.