183 F. 378 | 7th Cir. | 1910
Lead Opinion
(after stating the facts as above). The general locality of the collision in suit was at the entrance between Sturgeon Bay and Green Bay, having about two miles of water, in most part navigable, between the shores; and the appellant’s schooner barge Wilson was at anchor off Sherwood Point, on the southerly shore of such entrance, within or near the usual (and charted) course of vessels bound to or from the ports of Green Bay or Peshtig'O. Sturgeon Bay is a fine expanse of water, both for navigation and for anchorage grounds, extending from the Sturgeon Bay Canal, westerly and northwesterly to Green Bay, with an expansion northeasterly forming good shelter and anchorage, and another expansion southwesterly, called Sawyer Bay, also used for anchorage. The Wilson had discharged cargo at Sawyer, and on the day before the collision had been towed out of Sawyer Bay by a fishing tug, for anchorage to await the arrival of her towing steamer, Mohican. Oil rounding Sawyer’s Point, in Sturgeon Bay, her consort schooner barge Mingo, owned by the appellant, was found at anchor, and the Wilson passed a line to the Mingo, making fast astern, instead of putting out her anchor. Tlieir distance from the shore and actual location in reference to Sherwood Point are in dispute under the testimony. As stated on behalf of appellee, the bearings of the Wilson were taken immediately after the collision, as one mile from Sherwood .Point light S. S. E. by K. Y> E. and “a quarter of a mile right due east” of Sawyer’s Point; while the witnesses for the appellant place their anchorage about. hal f a mile northeast of the light, with about half a mile of navigable water between the vessels and the shore. It is undisputed, however, that the wind was blowing fresh and puffy from the northwest, lining the vessels, accordingly, about parallel with the shore line; that the Mingo
The night of the collision was dark and squally. It had been raining, but the testimony is conflicting whether the rain continued up to the time the respective lights were discovered. The steamer Fisher, towing Car Ferry No. 1, came up from the canal; her course being westerly and northwester^ and bound for Peshtigo. When the lights of the anchored vessels were sighted, they were taken to be “a steamboat going ahead” of them. And the master of the Fisher testifies that he only made out the colored lights when “his electric light showed on this barge” and that “she was right on our starboard bow”; that he put his “helm hard astarboard” and swung “toward the beach, Sherwood Point”; that the Wilson was swinging shoreward, and caught the towline between the Fisher and Car Ferry, so that the Car Ferry struck' the Wilson astern, inflicting and receiving the injuries complained of.
The decree appealed from condemns the Wilson as at fault and alone chargeable for the collision damages. Error is assigned, upon both rulings — that the Wilson was at fault, and that the Fisher was not negligent and not answerable for the damages. So, the first question to be solved is whether fault on the part of the Wilson was rightly found by the district judge under the evidence.
In admiralty the rule is settled: That the moving vessel must keep away from a vessel properly anchored and lighted, and collision in such-cases raises a presumption of fault against the vessel in motion, placing-upon her the burden of exonerating herself from blame for the collision. The Virginia Ehrman and The Agnese, 97 U. S. 309, 315, 24 L. Ed. 890; The Oregon, 158 U. S. 186, 192, 15 Sup. Ct. 804, 39 L. Ed. 943, and cases cited.. The authorities are numerous, however, that the general law of the sea becomes applicable to such collisions, when the anchored vessel is improperly moored in the fairway, or otherwise appears at fault (Ross v. Merch. & Miners’ Transp. Co., 104 Fed. 302, 303, 43 C. C. A. 538; City of Birmingham, 138 Fed. 555, 559, 71 C. C. A. 115; The Scioto, Fed. Cas. No. 12,508, 2 Ware, 360, and notes); and we believe it to be unquestionable that evidence of negligence on the part of the anchored vessel, either as sole or contributory cause of the collision, establishes a case within the general rules of admiralty as to liability for the damages.
While the evidence is conclusive that the Wilson was moored within the usual course of navigation to and from the upper Green Bay ports —whether in one or the other place, in dispute under the testimony— and that no emergency of weather or other circumstances made such location needful, it is equally well established that there was abundant navigable water for clearance on her port hand. Unless the circumstances in evidence, therefore, were liable to mislead the approaching steamer as to the fact or method of anchorage, it may be conceded
We are of opinion, however, that fault for the collision is attributable to the speed and navigation of the steam tug Fisher and her tow in approaching the injured vessel. Although the appellee’s witnesses state her speed at various rates, from 7% to 5 miles an hour, it is stated in the answer to the libel at 8 miles an hour, and no actual moderation of speed appears at any stage of the approach. This we believe to be unreasonable under the conceded circumstances. It is conceded that the lights on the anchored barges were observed from the Fisher when about a mile away, although they were taken for the lights of a moving steamer, outward bound. The night was dark, and rain obscured the lights, as testified on the part of the Fisher; and not only was her speed kept up, but the lookout was called by the wheels-man to take the wheel, immediately after reporting the lights ahead, and was not serving as lookout thereafter, leaving {he master alone to observe the lights and course. Under the testimony, we are satisfied
We believe negligence thus appears in the navigation of the Fisher, and that the decree is erroneous, in exonerating her from liability for such injuries and allowing full recovery against the appellant.
The decree of the District Court, therefore, is reversed, with direction tó enter a decree for division of damages as found, and of costs as well, to be borne by the parties respectively, in conformity with the provisions of admiralty for like cases of mutual fault; and it is ordered that the appellant recover the costs of this appeal.
Dissenting Opinion
(dissenting). I am unable to agree with the majority of the court in holding that the Mingo and Wilson were guilty of negligence which contributed to the collision. While there is a conflict of testimony as to the location of the Mingo and Wilson, it is conceded that there was abundant sea room on both sides. It is shown that vessels passing through Sturgeon Bay to points on Green Bay usually take a general course which brings -them somewhere in proximity to the place of anchorage of the libelant’s barges, though the whole bay is good sailing water. It appears from the evidence that while at anchor the libelant’s barges were passed by a number of vessels going up and down Sturgeon Bay — sometimes on the port side and sometimes on the starboard.
So far as the evidence goes, there is no defined course through Sturgeon Bay along which a vessel may proceed at night without keeping a strict lookout. It appears that the object of those in care of the barges, in making the Wilson fast to the Mingo, and in anchoring near the usual course of vessels through the bay was to be in readiness to be picked up by the Mohican. It further appears from the evidence of a number of witnesses for libelant that anchorage near the traveled course was not unusual. On the part of respondents, a number of witnesses testify that it was not a proper or usual thing for vessels to come to anchor in that course. Several of libelant’s witnesses swear that they have on various occasions seen vessels so anchored. While, perhaps, it was not the safest place to anchor, yet the libelant was chargeable with only reasonable care, and it cannot be said that it was per se negligence on the part of the barges to anchor where and as they did, no matter in which of the places claimed they were anchored.
The answer states that the Wilson had a white light, which only showed from her stern; that it-had red lights, but whether they were in the forward and mizzen rigging respondent does not know, but calls for strict proof; that the red light could be and was seen about a quarter of a mile away; that the Mingo displayed two white lights, one forward and the other aft, which could be and were seen almost a mile away, except when the squall and rain were too strong.
Respondent claims that it was misled by the position and lights of the barges into believing that the lights were carried by a steamer going out of Sturgeon Bay into Green Bay. Neither the answer nor the cross-libel charge the absence of the lights required by statute in case of vessels at anchor, i. e., one white light at the forward part of the vessel at a height of not less than 20 feet nor more than 40 feet, and one at or near the stern not less than 15 feet below the forward light (article 11, tit. 48, p. 2867, Comp. St. 1901), as in any way responsible for the collision. The failure to see the lights is attributed rather to the thick squally weather. The testimony as to the relative altitude of the several lights of the Mingo is unsatisfactory and indefinite. It nowhere appears just what was their position. It does appear, as above stated, that the Wilson had her regulation lights set, i. e., two red lights, one in the forward rigging and one in her mizzen rigging, and one white towing light showing only from her stern, and that they were seen by the Fisher.
It is contended for respondent that no proper lookout was maintained upon the Wilson. The evidence shows to the contrary; though just henv a lookout, however diligent, could have averted the accident, is not stated, except that it is claimed the Wilson might have shown a torch or flare-up, rung a bell, shouted, blown an alarm whistle, or taken some means of attracting the Fisher’s attention. I f she had her lights set as above stated, she had no reason to assume that the Fisher and tow would run into her, and consequently had no time in which to sound or give an extraordinary alarm, nor could she, under the circumstances, be blamed for not shortening her line.
There are discrepancies between the admissions of the answer and cross-libel and the evidence. For instance, the rate of speed maintained hv the Fisher up to the time of the collision is admitted by the answer to have been about 8 miles an hour. Respondent’s witnesses fix the speed at about 71/G to 5 miles an hour. The libelant is entitled to whatever advantage there may he, if any, in assuming the speed to have been 8 miles an hour. The case comes fairly within the rule laid down in Totten v. The Pluto, Fed. Cas. No. 14, 106; Ward v. The Fashion, Fed. Cas. No. 17, 154; The Santa Claus, Fed. Cas. No. 12, 327; Palmer v. Merchants’ & Miners’ Transp. Co. (D. C.) 154 Fed. 695.
There seems to be no doubt the whole navigable water of the bay was open to the Fisher. She had sighted some of the barge lights more
Under the doctrine laid down by the Supreme Court in The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943, The Clara Clarita, 23 Wall, 1, 23 L. Ed. 146, and The Virginia Ehrman, 97 U. S. 317, 24 L. Ed. 890, the burden of proof was upon respondent to show either that the Fisher was without fault or that the collision was occasioned by the fault of the Wilson, or that it was the result of inevitable accident. This the respondent has failed to do.
Under the circumstances, respondent should be held to pay the full amount of the damages sustained by the libelant.