56 F. 729 | E.D. Mich. | 1890
We arc agreed in this case. At the time it was first argued there was some slight difference between myself and the nautical assessors, and some slight differences between the assessors themselves, and upon that account I held the ease for further reflection. I have been persuaded, however, hy the testimony that was taken yesterday, and by the opinions of the gentlemen who have consented to sit with me in this case, that the nautical assessors were right, and, as all four of them agree among themselves and with me, we think that we will not defer the decision.
There is no question in our minds that this collision was caused by the sheering of the Keweenaw, and the only question is what caused that sheer. Row, the burden of proof is upon the libelant.
The testimony given yesterday, and the experience of my brethren here, lead me to believe that the suction of two vessels passing-each other is not very powerful. It is too short to have any particular effect upon the action of the two vessels, unless one is much larger than the other; whereas, if they are going in the same direction, and passing near each oilier, it has a very powerful effect to deflect the weaker vessel, from her course. If one of these vessels had been very large, and the other comparatively small, it is possible the suction would have had some effect; but the Keweenaw, as I understand, was a heavily laden vessel, and it seems to us that if the wheel had been promptly put to starboard, as it should have been, considering the proximity of the tows, there would have been no danger at all. The fact that the order was given to starboard, hard a-starboard, as the Keweenaw passed the City of Cleveland, would seem to indicate that there was an immediate necessity for action, which had not up to that time been had. If this action had been taken before, — and a competent wheelsman would have known that the passing of the City of Cleveland would create some suction, — I say, if this action had been taken before, there is no doubt that this collision would have been avoided. At any rate, we think that the libelant has not sustained his case by a preponderance of proof. I thought at one time that I might dispose of this case as an accident occurring through an inscrutable fault, but my brethren here are so firmly persuaded of the fault of the Keweenaw that I prefer to dispose of the case on that ground.
Therefore the libel will be dismissed.