20 F.2d 17 | 9th Cir. | 1927
The appellee, upon her libel in rem against the motor fishing vessel Albatross, to recover damages for the loss of her husband, a fisherman who came
The appellants’ contention is that the fishermen in the dory were at. fault, in that they violated the international collision rules by failing to display the required signal when they saw the Albatross approaching them; also in that, in taking in their trawl, they hauled their dory upon a crossing course, leading to contact with the approaching vessel, which they continued to do until .they came to the point of collision, although they saw the Albatross coming toward them without change of course. Subdivision (k), article 9, of the International Rules to prevent collisions (Comp. ,St. § 7847), relied upon by the appellants, provides:
“All vessels or boats fishing with nets or lines or trawls, when under way, shall in daytime indicate their occupation .to an approaching vessel by displaying a basket or other efficient signal where it can best be seen. If vessels or boats at anchor have their gear out, they shall, on the approach of other vessels, show the same signal on the side on which those vessels can pass.”
The declared purpose of the rule is to indicate the occupation of the fishing boat to an approaching vessel, since a fishing boat with nets or lines or trawls out is entitled to the right of way over an approaching vessel. Section 7900, art. 26, U. S. Comp. Stat. 1918. And the provision for displaying a basket or other efficient' signal is not to enable approaching vessels to see the fishing vessel, but to protect fishing lines, nets, and trawls. But, even if the appellants’ contention as to the purpose of the basket or other efficient signal is correct, the rule was complied with in the present case; for it is not disputed that, from the time when the Albatross was 200 feet away, one of the fishermen was standing up in the dory, and that just prior to the collision, and at the time when the Albatross was from 20 to 30 feet away, both fishermen were standing and raising their arms and shouting. A man standing in a dory 20 feet long, with two or "three feet freeboard, is believed to be as efficient a signal as is a basket “displayed where it can best be seen.”
Nor can ground be found to sustain the appellants’ contention that the deceased and his companion were negligent in continuing their work as fishermen after they discovered the approach of the Albatross. The dory was being operated against wind and tide. The fishermen were winding their trawl by means of a girdy and were busily occupied with their work. They assumed, and they had the right to believe, that the Albatross would change her course sufficiently to avoid them, notwithstanding that, during the time in which she moved 200 feet in their direction they moved their dory 50 or 60 feet toward her line of approach. The Albatross was a vessel built especially for halibut fishing, and according to the testimony was so constructed as to be handled instantly from the deck or pilot house. She had been cruising around all day in sight of the fishermen. The latter were not surprised at seeing her approaeMng them, as, according to the testimony, such visits from motor fishing boats were not unusual. They thought the Albatross was coming up close, in order to see what they had taken. She was moving at about 4% or 5 miles an hour, in reeogmzed fishing waters, in the vicinity of numerous small boats belonging to herself, to the Yakutat, and to the Tordensjold, all engaged in halibut fishing. When she was 200 feet away from the dory, both fishermen shouted and one of them said: “I wonder if they see us. They are not going to take our word for what we have.”
It was clearly shown that the Albatross failed to maintain a proper lookout. The master, who was standing at the starboard door of the pilot house, 45 or 50 feet astern of the stem, entered the pilot house about five minutes before the collision and relieved the helmsman, who went below to the engine-room and there remained until the collision. There was no lookout forward of the pilot house, and it was shown that the vision of one standing behind the wheel was obstructed by the masts. A fundamental precaution to be observed in navigation is the maintaining of a lookout as far farward as possible, where the view is in no way obstructed, and it is held that the wheelhouse is not a proper place, and that neither the master, when acting as an officer of the deck, nor the helmsman, is a proper lookout. The Ottawa, 3 Wall. 268, 18 L. Ed. 165; Chamberlain v. Ward, 21 How. 548, 16 L. Ed. 211; The Ariadne, 13 Wad. 475, 20 L. Ed. 542; The Colorado, 91 U. S. 692, 23 L. Ed. 379. And the fact,
The Albatross had the burden of showing that she was without fault, if she would avoid liability. The Marshall O. Wells (D. C.) 172 F. 984, affirmed (C. C. A.) 178 F. 918. If the fishermen in the dory were at fault in continuing to haul in their trawl until almost the very moment of the collision, it was a fault committed in extremis, and it did not shift from the Albatross liability for the collision, which occurred primarily by reason of her failure to obey the rules of navigation. The Nichols, 7 Wall. 656, 666, 19 L. Ed. 157; The Stifinder (C. C. A.) 275 F. 271; The Lafayette (C. C. A.) 269 F. 917, 925; The Buenos Aires (C. C. A.) 5 F.(2d) 425, 431.
We cannot agree that the damages awarded by the court below were excessive. The deceased was 47 years of age. He left surviving him a widow and four children, of from 3 to 10 years of age. He had been a fisherman ever since his marriage. His average annual income derived from fishing for 5 years prior to his death was $2,132. He sent or brought all his pay checks home. He had a life expectancy of 23.8 years. He worked steadily, he was in good health, and had not become disabled by his occupation. The appellee has been deprived, not only of the income which he would have earned, but of Ms attention and care on behalf of herself and her children.
We find no error. The decree is affirmed.