190 F. 475 | 9th Cir. | 1911
(after stating the facts as above). By the record it appears that the learned district judge before whom this case was tried made a painstaking and exhaustive analysis of the evidence upon which the case was submitted, from which he evolved the following conclusions:
“Finally, I conclude that the Europe was not anchored in an improper place, but was so anchored as to require of her great .care in protecting other, navigating vessels against collision; that she carried two lights, of requisite size and dimensions, so placed, and without substantial obstruction, that they could be seen for a distance of two miles or more; that the forward light was not carried to the proper height, by 2% feet, required by the statutory inland rules for a vessel at anchor of the class of the Europe; that the aft light was not hung at a point 15 feet below the forward light, nor more than 8 feet lower; that the Europe had a watchman on board at the lime of the collision, but not in a position just then to discover the approach of the Annie Comings; that the navigators on the Annie Comings either saw or ought to have seen the lights on the Europe and distinguished them as riding lights upon a vessel at anchor, and that they were grossly negligent in allowing their boat to come into collision with the latter vessel; (hat the position of the lights on the Europe contrary to the regulations of law manifestly could not have contributed as a cause to the collision; and that the Europe was supplied with a competent and proper watch, and, if not upon the forecastle at the time, the fault, if it be a fault, could not in*478 all reasonable probability have contributed to the cause of the accident. I therefore find the Annie Comings liable, and the Europe free from fault.”
In making these conclusions, consideration was given to the testimony of witnesses in connection with knowledge of the general physical geography surrounding the place of the collision, derived from examination of a purported blue print, copy of a government chart, confirmed, no doubt, by the local knowledge which the judge in common with all intelligent inhabitants of his state necessarily possesses. Thp general direction in which the river flows and its.width and depth were matters proper to be considered. We deem the criticism of the decision on the ground that exact accuracy of the map was not proved to be unmerited, and after a careful study of all the evidence we find the quoted conclusions, as to all questions of fact, to be true and accurate.
The appellant urges for a reversal or modification of the decree on the following grounds:
(1) At the time of the collision the Europe was lying at anchor in the deep channel of the Willamette river between the city of Portland and the town of Einnton.
(2) The rules for the prevention of collisions applicable to harbors, rivers, and inland waters of the United States (30 U. S. Stat. 98; 2 F. S. A. 176; Pierce’s Fed. Code, § 2026 [U. S. Comp. Stat. 1901, p. 2879]), prescribes that vessels of 150 feet or more in length, to which class the Europe belongs, when anchored at night shall carry in the forward part of the vessel at a height of not less than 20 feet, and not exceeding 40 feet above the hull, a white light so constructed as to show a clear uniform and unbroken light visible all around the horizon at a distance of at least one mile, and another such light at or near the stern of the vessel, at such a height that it shall not be less than 15 feet lower than the forward light, which requirement was not complied with on the part of the Europe, for that her forward light was hung at an elevation not greater than 17 feet and 6 inches above her hull, and her stern light was not more than 8 feet lower; and said forward light was obscured by the forestay to which it was suspended and by the jib boom on which sails were furled and which extended upwards so that its tip end was on a level with said' light.
(3) The watchman on board the Europe on duty at the time of the collision was on the main deck,'in which position he could not observe the approach oí vessels coming down the river, and he failed to do anything to give warning of her presence, or to attempt any maneuver which might possibly have prevented the collision.
(4) The District Court included in its decree as part of the taxable costs a large and unusual item of expense incurred in obtaining a bond to release the Europe from attachment.
.-“The International Code. (Iter. Stat. § 4233 [TJ. S. Comp. St. 1901, p. 28951), in force at tills time, provided (rule 10) that ‘all vessels, whether steam vessels or sail vessels, when at anchor in roadsteads or fairways, shall, between sunset and sunrise, exhibit, where it can best be seen, hut at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light, visible all round the horizon, and at a distance of at least one mile.’ This rule was substantially, if not literally, complied, with. The light was of the regulation size, and, if it were hung a little over 20 feet above the hull, the difference was entirely immaterial, as it is found to have been seen by the pilot of the Oregon, though mistaken for the Coffin Rock light.”
“The provision of article 24 of the act of March 3, 1885, is that a vessel is not to be exonerated from the consequences of any neglect to keep a proper lockout. It does not say that a vessel shall, because of not keeping a proper lookout, be visited with the consequences of a collision. If the collision does not result as a consequence of neglecting to keep a proper lookout, the vessel is not thereby made responsible for the consequences of the collision. * * *”
The Decree of the District Court is affirmed.
16 Sup. Ct. 804, 39 L. Efl. 943.