259 F. 435 | 6th Cir. | 1919
The chute is formed by two islands in the river, just above Manchester, Ohio. One, between 1% and 1% miles long, and called Manchester Island, hereafter referred to as the Island, lies next the Ohio shore. The other, between one-third and one-half miles long and called the Towhead, lies between the upper end of the Island and the Kentucky shore. There is no navigation on the Ohio side of the Island. At the then stage of the water, there was none running between the Island and the Towhead. They were connected by a sand bar. All navigation is next the Kentucky shore, except that in very high water passage may be had between the two islands. It is the portion of the river between the Kentucky shore, and first the Towhead,. and then the Island, that is known as Manchester chute. This portion thereof' is crooked, narrow, and swift. It has three bends. Two are formed by its course around the Towhead. Above, as you descend, the channel turns to the left — i. e., towards the Kentucky shore— and hugs it, until it gets somewhat below the middle of the Towhead, when it turns to the right and runs towards the Island, around the foot of the Towhead. The latter bend is characterized by the witnesses as a very deep bend, and is caused by a rock pr gravel bar extending from the Kentucky shore out into the river. The third bend is caused by a sand bar, which puts out from the lower end of the Island, beginning not far from its middle. The channel here turns to the left, or towards the Kentucky shore, and after hugging that shore for a short diftance, when below the Island it turns to the right, or towards the Ohio shore, forming a fourth bend opposite the wharfboat at Manchester. The uncontradicted testimony is that this chute is a very bad place for boats, and particularly towboats, with tows, to navigate. It is the worst place on the Ohio river between the mouth of Kanawha river, the point whence the Sallie Marmet started, and Cincinnati, its destination.
The dredge was engaged in removing the rock bar, heretofore referred to. It began so to do August 28th, and had been so engaged for four days. It had made two cuts, each about 30 feet wide and over 200 feet long up and down the river, and had nearly completed the third cut. The material so removed was mainly sand, and it was about to enter upon the rock bar, if it had not already done so. The dredge was over the outer edge of the rock bar. There was a rise in the river, just when it began not appearing. The stage at Portsmouth, Ohio, 30 or 40 miles above, was 9 feet 8 inches. The depth over the rock bar where the dredge was located was 8 feet 7 inches, and to the north or the Island side thereof it was 15 feet 4 inches. The dredge was not at work at the time of the collision. It did not work at night. It had a single white light on the upper end of the fuel flat — i. e., on the Ohio side of the dredge — and another on the lower end of the scow. The former could not be seen from below, nor the latter from above. There was no light on the dredge or repair flat on the Kentucky side. The lights were placed on the Island side, because the deep water was there. The work was being done under a contract with the United States, and there was on the dredge at the time a government inspector, Capt. Howard, who supervised the work. The night was a bright moonlight night.
The rise in the river was sufficient to permit Kanawha coal to be transported from the mouth of that river to Cincinnati, and a fleet of tow boats, with tows in charge, took advantage of it. They began to pass through the chute the evening of September 1st, and by 9 o’clock the next morning 7 at least so passed; the Sallie Marmet being the third. They passed in this order: Florence Marmet, J. T. Hatfield, Sallie Marmet, D. T. Lane, Convoy, Dewey, and Matheson 2d. They all seem to have had substantially the same size of tow, though the evidence discloses nothing as to the Convoy and Dewey. The Florence Marmet passed about 9:30 and the J. T, Hatfield about 10. The Leader, a towboat without a tow, passed about 7 p. m. The Leader and the Florence Marmet passed the dredging plant on the left or Kentucky side, and the J. T. Hatfield on the right or Island side. When the others passed, the. plant had been removed to the Kentucky shore. A barge of the Sallie Marmet sunk, straight up and down
The tow of the Sallie Marmet was arranged in four tiers. The first was composed of three barges and one flat, the latter being on the right or Island side, then tire next two of four barges each, and the fourth, next the boat, of two barges and a flat. The barges were 26 feet wide and 126 feet long. This makes the tow 104 feet wide and 504 feet long. The length of the boat does not appear. It is not unlikely that it.was sufficient to make the entire length as much as, if not more than, 650 feet. The draft was 6 feet. In the collision the flat in the first tier struck the repair flat of the plant, and the outer barge of the second tier, which was sunk, the dredge. It is likely that, if the repair flat had been removed when it became apparent that a collision was about to take place, it might have been avoided.
In determining who was to blame for the collision, the natural order calls for a consideration first of the part of the operators of the dredging plant in the transaction. The claim is that they were at fault in anchoring at that place at night, and our conclusion is that they were not only at fault in so doing, but grossly so. As hereto-, fore stated, that place was about in the middle of the river. The middle of the river was 6 feet from the Island side of the dredge. It was, however, exactly where, at that stage of water, towboats with tows run; i. e., in what may be termed, as it was by some of the witnesses, the towboat channel. This is established by the testimony of 11 experienced pilots, who saw the dredging plant whilst it was so located, 9 of whom were on the Val P. Collins, Leader, Florence Marmet, J. T. Hatfield, and Sallie Marmet, and 2 of whom were on the Sea Lion, a towboat operated in connection with the dredging plant, then tied to the Kentucky shore, not far away, and 5 other experienced pilots, whose attention was called to its location on the witness stand, and there was no testimony to the contrary.
The claim in behalf of the operators of the dredging plant is that the deep water channel was on the Ohio side thereof. This was undoubtedly the case. But the question here is not where the channel was in extreme low water, when towboats with tows could not navigate; but where did they run when the water was of sufficient height for them to navigate — i. e., where was the towboat channel? And as to that, as stated, it is conclusively established that it was exactly where the dredging plant was located. It is further clearly established by the testimony that the location of the dredging plant at this point endangered the safety of each of the towboats and its tows, which had to pass whilst it was there. It made it a “dangerous maneuver” for a towboat with such tows as these had to attempt to pass it on either side. ' In passing on the Island or deep water side, two turns were called for, first to the right and then to the left, and the danger was
On behalf of the operators of the dredging plant it is urged that the right or Island side was the proper side to take, and that there was no risk in taking it. Such was the view of the operators themselves, shown by their placing the lights on that side of the plant. But it is not impossible that they added to the confusion by so doing, and that it would not have been better had they contented themselves with so lighting up the plant that it, and what it was, could be readily discovered, and left it to the experienced pilots, who were thoroughly familiar with the situation, to determine as to the best course to pursue. No doubt, from the distance of the dredging plant to the foot of the Towhead and Island shore and the size of the Sallie Marmet and her tow, it can easily be made out that there was room enough for her to get around that way, and that with comparative safety. But the determination of the risk, if any, incurred in making the attempt to so do, is not entirely a matter of ciphering. The qualities of the boat and her tow, the skill of the pilot, the effect of the current, how soon it was discovered that the plant was in the way of the usual course, and possibly other things, had much to do with the risk so incurred. That the dredging plant endangered the safety of the towboats and their tows would seem to have been the opinion of nearly all of the experienced pilots heretofore referred to. There was no substantial testimony to the contrary.
Besides, the effect which the condition of things there existing had upon those who were confronted with it leaves no room for doubt that such was the case. The two pilots in the pilot house of the Val P. Collins, as she with her empties passed up on the Island side the afternoon of August 31st, the day before the collision, discussed between themselves that the dredging plant was in the way, and some one from her hallooed to those on it that they had better get out of the way; that a fleet of Kanawha coal was coming, and that they would get run over. The tow of the Collins passed within 4 or 5 feet of the plant. The pilot of the Leader, as she passed at 7, the evening of the collision, tried to get the window of the pilot house open in order that he might halloo and tell them to get out of the way, as boats were coming down that night, and, either because he could not get
There is no accounting for this effect on these experienced pilots of this condition of things, except that the passage of the towboats with their tows was rendered decidedly unsafe by the location of the dredging plant. The operators of the dredging plant knew that this fleet of tow boats with tows was coming in ample time to have gotten out of the way. They ascertained it from the newspaper, • at least as early as the late afternoon before the collision. Two of the fleet, to wit, the Florence Marmet and J. T. Hatfield, passed before the Sallie Marmet’s turn came. They must have observed the close proximity to the plant in which the tows came, which passed before the collision, and the difficulty which the J. T. Hatfield had in getting by, in passing on the island side. The Leader, when it passed" up on the morning of August 28th, with her 6 empties, on the Island side, also had difficulty in getting by, which also must have been observed. It had to go above the plant, then back, and then throw her head around, in order to get across.’ However it may have been as to the warning given
There was no reasonable necessity for the dredging plant to re'main where it was during that night, when it was not at work. Indeed, it may be said that there was no reasonable necessity for its being at work there whilst this coal fleet was passing. At most it would take but two days for it to get by. But, however this may be, there was no reasonable excuse for its remaining there, if not at work, whilst this fleet’was passing. The only excuse offered is that it would have been difficult to find the place where the plant had quit work. But this is not even plausible. And, if they were to persist in remaining in the way, they should have taken extra precautions, to the end that its presence there would be ascertained by the coming boats at the very earliest possible moment, either by having more lights or by whistling. The single light which it had did not conform to the requirement of the hoard of supervising inspectors of steam vessels, in that it was not as much as eight feet above the surface of the water. That such was the case appears from the evidence introduced on behalf of the dredging plant. That on behalf of the Sallie Marmet and her tow is very strong to the effect that it was not more than 4 or 5 feet from the water. The less the height such a light is from the water, the more difficult is it to determine the distance from it. This was an additional particular of fault on the part of the operators of the dredging plant. But, instead of either getting out of the way or taking such extra precautions, all on board, save a solitary watchman, retired to their slumbers, leaving it to the operators of the coming towboats to deal with the dangerous situation as best they might.
These considerations drive us to the conclusion that the operators of the dredging plant were at fault, and that grossly so. Their fault consisted of three particulars: They anchored the plant at an improper place without any reasonable necessity therefor. The sole light displayed was not placed at the proper height from the surface of the water. They failed to take the extra precautions which the situation demanded, if they were to remain in that improper place. The first of these faults was the main fault. The other two may be said to have grown out of it. This fault, as may also be said of the second, was a statutory fault, in that it was a violation of section 9920. of the act relating to rivers and harbors, which provided that:
“It shall not be lawful to tie up or anchor vessels or other craft * * * in such manner as to prevent or obstruct the passage of other vessels or craft.” 10 U. S. Comp. Stat. 1916, p. 12210; 9 Fed. Stat. Ann. (2d Ed.) p. 60.
That this fault was a violation of this provision is established by the cases cited in the annotation thereof in each of these works. This provision, however, merely emphasizes and is declaratory of the gen
“In ease the contractor’s plant so obstructs the navigation as to impede the passage of vessels, it shall promptly be so moved as to afford a practicable passage on the approach of any vessels.”
And again:
“The contractor will be responsible that his employes observe the laws of the United States, affecting operations under this contract.”
We do not understand that it is contended otherwise on behalf of the owner. It is said in its brief:
“But, while the dredge had a lawful right to obstruct navigation, she must obstruct it as little as possible, so as not to impede the passage of vessels.”
It must further be held that this fault on the part of the operators of the dredging plant was the efficient and proximate cause of the collision.
“The whole damage done to both vessels is put into one mass in common, and each pays one-half, without regard to the different values of the vessels, when both parties have been in fault, without attempting to discriminate whether the faults had not been greater on one side than the other.”
“In view of the recklessness with which the steamer was navigated that evening, it is no more than just that the evidence of contributory negligence on the part of the sailing vessel should be clear and convincing. When the fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor.”
“The fault of the Mack being established, beyond cavil she is not entitled to divide damages with the Rome upon criticism of her management, except upon clear proof of some fault not made in extremis, and reasonable doubt should be resolved in her favor.”
And again, in the case of Western Transit Co. v. Davidson, 212 Fed. 696, 129 C. C. A. 232, through Judge Denison, it said:
“That when the primary liability is placed elsewhere the contributing fault must he very clear.”
Nine different particulars are pointed out in which it is claimed that these operators were at fault. They were mainly on the part of the pilot; and the faults on his part may be summed up in two — improper navigation after he discovered the light on the dredging plant, and failure to discover it sooner than he did. In judging the pilot’s conduct, it is to be borne in mind that he was “in extremis” from the time that he discovered the light. It will be shown later that such was his condition from the time it is claimed that he might have discovered it. But beyond question such was his condition from the time that he actually discovered it. It is difficult to determine the distance the head of the tow was from the plant when he first made the discovery. But, however this may be, this much is certain: He discovered it as soon as he made the turn to cross over towards the Island — i. e., when the plant was directly ahead of him — and he did not discover it sooner; for such was his testimony, and we are limited to this in determining the matter. He testified as follows:
“When I first started from Tight No. 2 backing, to throw my head tip, the steamboat was lying out in this direction, and the tow pointed to the Kentucky shore. Ry the time I got through backing to throw my head up, the steamboat was lying in the bend. That is when I discovered the light; when I threw y head up. That throws the steamboat down in the bend, and the head of y tow was pointing towards Manchester Island, the Ohio shora”
Before the pilot discovered the light, he had been backing; i. e., operating his engines reversed. As soon as he discovered it, he backed full headway, and continued so to do until the collision took place, in an effort to swing the head of the tow from the plant. It is urged as a further fault in the navigation that the pilot succeeded before the collision in swinging the head of his tow clear of the plant, and that he should then have reversed his engines and gone ahead forward, which would have counteracted the drift of the current towards the plant and prevented the collision. But we do not gather from the evidence that the pilot ever succeeded in swinging the head of his tow clear of this plant, and that it was again drawn to it by the current. He nearly succeeded in swinging it clear. As stated, had the repair flat been out of the way, there would have been no collision. But he did not, before the collision, succeed in swinging it entirely clear. Then, if he had so succeeded, that he did not then drive ahead may be attributed to ño more than error of judgment. The fact that the other boats got by safely is no evidence of the fact that the pilot of the Sallie Marmet was at fault. The conditions in each instance of safe passage were different in certain particulars from those existing in case of the Sallie Marmet, and they may have been different in other particulars not appearing. At most, this circumstance can go no farther than show an error of judgment on the part of the pilot of the Sallie Marmet. Each of the others made a narrow escape. Whichever way was chosen, it was prudent to get as close to the plant as could be done with safety; for on the one side the rock bar had to be avoided, and on the other the sand bar.
How, then, was it in the matter of discovering the light? Was thi pilot at fault in not discovering it sooner? In determining whethe
It is not easy to determine how far from the dredging plant this point was. Two maps were introduced by the coal mining company —one made from observation and the other from observation and measurement; and the points where the light was first discovered by the pilot of the Florence Marmet and the pilot of the Sallie Marmet were indicated on the former. The pilot of the Sallie Marmet testified that he first discovered it when he was 200 or 250 yards — i. e., 600 or 750 feet — from the dredging plant. This of course meant when the head of his tow was that distance therefrom. The pilot on the Florence Marmet testified that he first discovered it when they were 1,300 or 1,400 feet from it. It would seem that in both instances a mistake was made. The distance was greater than that estimated. The light on the plant was not far above the surface of the water, possibly not more than 4 or 5 feet. As heretofore noted, the less the height it was above the water, the more difficult it was to estimate the distance. According to the indication on the map the head of the Sallie Marmet was as much at least as 1,300 or 1,400 feet from the light, and the Florence Marmet as much as 500 feet, .and probably more, further away. It must be taken, therefore, that the pilot of the
Was he at fault, then, in not discovering it sooner, or as soon as he could have done so ? In judging his conduct, it is to be borne in mind that he did not know that the dredging plant was so located, and he had no reason to suspect that it was. His partner, who was to take his place at midnight, and who came into the pilot house after he discovered the light, was the pilot on the Leader when she went up on August 28th, and he had, at some time theretofore, exactly when not appearing, told him that the Northern No. 2 was at Manchester digging sand, not saying exactly where. He supposed that it was at the wharfboat, down next to which the sand bar on the Island extended. Had he known that the work was being done at the place of collision, it was not to be contemplated that she would be anchored there after night, when it must have been known that the fleet of towboats was coming down. The pilots on the other boats, except those on the Florence Marmet, seemed to- have known that the dredging plant was at work somewhere about Manchester; but it never occurred to any of them that she would be so anchored under those conditions. The reason he gives for not discovering the light sooner was that he 'was watching the head of his tow. When he reached the Government Light he reversed his engine and continued to back slowly, floating with the stream, until he discovered the light, when he put on all his power in backing. He backed, and watched the head of-his tow, in order to make the turn successfully. Until he began to turn, his head was towards the Kentucky shore, and the light was to his right, not ahead of him. He stood on the starboard side of his wheel, and he testified that it is probable that he had the stacks between him and the light. Now it cannot be said beyond cavil that he was at.fault in so watching "and so standing, when he had no reason to suspect that such an obstruction was in his course. His testimony was that in floating, backing slowly, it was his practice to stand on the starboard side, and that most all of the pilots did so. The only obstruction that he had reason to suspect might be in his way was an ascending boat. It does not follow from the fact that his attention to the head of his tow and the possible obstruction of his stacks prevented his seeing the light — a single light not far above the water, and that on a bright moonlight night — that they would have prevented his seeing another boat ascending the river. Besides the light was in a line between him and the lights of Manchester, and it is not impossible that this prevented his taking notice of the light on the plant sooner than he did. It was proven by the dredging company that, in explaining the collision-shortly thereafter, he said that when he first saw the light on the ■dredgeboat they were right in the line of the light on the wharfboat at Manchester, and it was some little bit before he could make out what it was.
It must be held, therefore, that there should-not be any division of damages because of fault on the part of the pilot of the Sallie Marmet. Tlie only other particular in which it is claimed that its
It is quite likely that, if the lookout had been at his post and properly attending to his duties, he would have made such earlier discovery
In determining this, note must be taken of the fact that from the time when such a communication could have been made to him he was in extremis. It was not possible for him to stop. He did not have sufficient power to back upstream, or even to hold, his tow against the current. There was nothing on the Kentucky shore to tie to. He was compelled to go ahead and confront the extremely dangerous situation ahead of him. The situation was extremely dangerous. It was not certain that he could get by safely on either- side. Whichever side he took he was in danger of being drawn by the swift current against the dredging plant. It was important for him to go as close to it as he could possibly do with safety. On the left he had to avoid the rock bar, and on the right the sand bar. Possibly there was less danger in striking the sand bar than the rock bar. But in going that way he had two turns to make. The situation was so dan- ' gerous that there is reason to believe that neither the Sallie Marmet, nor the Florence Marmet, nor the J. T. Hatfield would have attempted to make.the passage, had they known it before they were-where they could not keep from going ahead and confronting the danger. It was calculated to alarm and scare the pilots of each of these towboats, and did alarm and scare each of them. Any error of judgment- on the part of the pilot of the Sallie Marmet, in the contingency under con-
Oan it, then, be confidently said that if there had been a proper lookout, and he had communicated the presence of the light to the pilot as soon as in the proper performance of his duties he discovered it, the pilot by the exercise of reasonable care could and would have avoided the collision? It does not follow that such would have been the case, because the Florence Marmet, which took the left, and the J. T. Hatfield, which took the right, made the passage in safety, the latter with much difficulty. Possibly — not improbably — to avoid the rock bar he may have determined that he should go closer to the dredging plant than did the Florence Marmet, and possibly — not improbably —the Sallie Marmet may not have been as good a twister as the J. T. Hatfield. Whichever way he went, therefore, he may have been drawn onto the dredging plant by the swift current. We think, therefore, that it cannot be said “beyond cavil” that the collision would not have happened by the exercise of reasonable care on the part of the pilot of the Sallie Marmet in the contingency stated; and if for this reason it cannot be said that the absence of a proper lookout was not contributory to the collision, for the same reason, if we should be in error in the position that the pilot was not in fault in himself not discovering the light sooner than he did, it cannot be said that his fault was contributory thereto.
The case, then, comes to this: It is an absolute certainty that the operators of the dredging plant were flagrantly in- fault, and that such fault on their part was an efficient and a proximate cause of the collision; whereas, on the other hand, though the operators of the towboat and her tow were in fault in the matter of the lookout, but not flagrantly so, at best it is no more than a matter of speculation, to a more or less extent, that such fault contributed thereto. Such being the case, there should be no division of the damages.
We are therefore constrained to hold that the decree of the lower court should be affirmed on the appeals of the dredging company, and reversed on that of the coal and mining company, with directions to enter a decree in its favor, for the sum of $2,775.93, the damages found to have been sustained by it, with interest thereon from 2d day of March, 1917, and costs.