222 F. 862 | 6th Cir. | 1915
(after stating the facts as above). When we fix the point where the collision occurred, it goes far to determine the' other matters in conflict. This primary fact is ascertainable with less difficulty than- usual. The location of the Ellwood, as she lay upon the bottom after the collision, was fixed by survey, and is practically undisputed. Disinterested observers from one of the-dredges agree with’ the EUwood’s crew that she did not go more than a length, and perhaps not more than -half a length, after the collision before the sinking of only one or two feet which was necessary to make her rest on the bottom. It is also fairly sure that, at the moment of the collision, her stern was swinging to port, answering an endeavor to make the inevitable blow more glancing, and that the blow itself, received on the starboard quarter, would have accelerated this swing. It is therefore not a matter of serious doubt that her heading had been considerably more to the easterly than it was as she lay sunk, and that the point of collision was just about where it is
We agree with the court below that the Brower was in fault. When her captain exercised his right of choice and determined tO' swing into the channel around one of the dredges as far down as the point he selected, he assumed the burden of doing so with all the care required by the fact that another steamer was coming down, and for all he knew, might be bound south or southwest, and might be desiring ti> go just where the Ellwood did go. That the collision was unnecessary, if the Brower had been careful in this maneuver, is highly probable, if not clear. Her captain says that he began starboard-ing 2,000 feet before passing the dredges, so as to enter the channel at an angle as small as possible, and constantly continued star-boarding and swinging to port until the collision. This is exactly what he should have done, if he was careful, but the place of the collision demonstrates it is what he did not do. If he had thus managed his boat, passing close to dredge No. 9, and perhaps checking, it is difficult to see how there was any occasion for him to pass east of tlie center of the channel, say 300 feet from the dredge; but the place of the collision was 700 feet further east. The same consideration demonstrates that he could not have materially changed his heading from Toledo until after he entered into the channel between the dredges; if he had, he would necessarily have gone well astern of the Ellwood, if he had crossed her course at all. He knew that he must make a considerable turn, and that his own boat would, and the other boat might, respond to the helm much more slowly than if in deep water. The reasonably clear conclusion is that he was not navigating with close attention to the danger that might be imminent, but was taking it for granted that the Ellwood was much further away than her real position, or would yield much more than any obligation required.
How the conduct of the Ellwood should be characterized is a question of more difficulty. It is forcefully argued that, as the Ellwood knew that the Brower would come up somewhere through these waters, and as 1he Ellwood’s final course was to be easterly, and as she might have turned off in that direction anywhere below the red gas buoy, and as, if she had kept only a little further away from the dredges, the collision would not have occurred, the result is, at least in part, chargeable to her. Particular reliance is placed on the decision of this court in Lake Erie Co. v. Gilchrist Co., 142 Fed. 89, 73 C. C. A. 313, where it was said that the customary course at this point for vessels bound down the lake, was to turn to the east between the gas buoy and the light; and hence it is urged that the Ellwood was away south of her proper place. If the record in this case justified the same conclusion of. fact reached in the Lake Erie-Gilchrist Case as to the customary course of down-bound vessels, there would be much strength in this position; but that case involved the sailing course customary at a period several years before the time here involved,
In the Lake Erie-Gilchrist Case, each of the meeting boats had to make the turn between the Detroit river course and the course down the lake, and it was held that the boat which took the customary way and kept her own side of the joint course had a right to assume that the other boat would make the proper turn at the proper point, and would not continue on across the joint course and enter the waters which were, in a sense, appropriated to the first boat. The opinion and the authorities there cited fully and sufficiently cover the questions that here arise, and apply to the fault of the Brower in not turning up into the channel when and as she should have done, and to the right of the Ellwood to believe that the Brower would make this turn, and would not continue on into the course of the Ellwood, and lead to the conclusion that, in relying upon this belief, the Ellwood did not thereby, in blameful degree, contribute to the collision.
It remains only to consider whether the Ellwood should, before it was too late, have observed that the Brower was not meeting this anticipation, but was keeping a course likely to be dangerous, and so whether the Ellwood should have checked or blown an alarm. This query is emphasized by the fact that after the meeting signals were exchanged, but before the Brower entered between the dredges, the lookout of the Ellwood had been recalled from his position at the bow and sent about' some other work. We think it should be assumed that the absence of the lookout would be a condemnatory fault, unless it satisfactorily and clearly appears that his presence would have made no difference (The Ariadne, 13 Wall. 475, 20 L. Ed. 542; The Roby [C. C. A. 6] 111 Fed. 601, 612, 49 C. C. A. 481); but we are unable to see any reasonable ground for thinking that the absence of 4he lookout could have been material. The Brower had already been 'observed and a- meeting agreement had been made, the night was clear,
The decree below is affirmed.