118 F. 972 | 9th Cir. | 1902
after making the foregoing statement of facts, delivered the opinion of the court.
After reading the foregoing statement of facts, it will be observed that the evidence upon many of the material points is conflicting. The testimony upon some of the points cannot be harmonized. It is apparent that some of the witnesses must have been mistaken. The judgment of others was, evidently, expressed without a full knowledge of all the facts. The testimony of witnesses as to distances is frequently variable, and often very unsatisfactory. In some instances it is a mere guess. So in relation to the question as to lapse of time that transpired before the occurrence of certain events, it is often difficult for the court to determine where the truth of the matter lies. When the testimony of the witnesses is taken before commissioners, or by deposition, as in the present case, the court is deprived of the opportunity of seeing them, of judging the weight to be given them' by their manner and appearance upon the witness stand, and the opportunity afforded of asking questions concerning doubtful matters, which always materially aids a court or jury in determining the reasonableness of their statements, and affords safe guides for arriving at the probability or improbability of the story they tell. Nevertheless, there are other landmarks that can be taken hold of, weighed in the scales, and balanced up, in measuring their reliability and truthfulness; their opportunity to discern the conditions, their position and opportunity to correctly ascertain the facts, the duties charged upon them by the positions they hold, etc.; and in many cases there are independent facts which tend to shed more or less light upon the testimony of the witnesses.
We are of opinion that the weight of the testimony establishes the fact that the exchange of signals took place about four minutes before the collision, and that at the time the signals were given the steamers were about a mile apart. The admitted rate of speed of the steamers indicates, as strongly as the testimony of the witnesses, that at the time the signals were given the steamers must have been about one mile apart. The testimony also supports the position that the vessels were about one mile from shore. The testimony also establishes the fact that the Lakme must have been steering an irregular course. The fact that at the time the signals were given the Lakme was showing her green light is positively testified to by Olson, the pilot, and Andresen, the quartermaster of the tug Tyee. These men were at their posts of duty; they had the opportunity to observe; they must have known the facts. The pilot was charged
With reference to Guilfoyle and Hanson, of the Lakme, we have given their testimony at greater length than others. It speaks for itself. It need not be discussed at length; it is neither clear nor convincing, and in our judgment is not entitled to as great weight as the testimony of Olson and Andresen.
Appellant invokes the law of the road to show that the tug Tyee was at fault in giving the signals and then changing its course. Whether the tug was at fault, or the law of the road applies, depends upon the facts of the case. If the signals were given in ample time to make the change without any danger of collision, the tug Tyee, having received the consent of the Lakme, had the right to act as it did. The channel was wide enough for both vessels. They were one mile apart; there was no danger of collision if both vessels promptly complied with the signals agreed upon. There is no pretense that the tug was in any manner at fault except in giving the signals. Appellant does not deny the proposition that, on a body of water five miles or more in width and navigable almost from shore to shore, vessels approaching from different directions are not prohibited from navigating in any direction that will not interfere with the course of the other vessel, unless so situated as to come within the law of the road.
The facts in this case fail to show any breach of the statute upon the part of the Tyee which would, as claimed by appellant, bring it within the settled rule announced in Belden v. Chase, 150 U. S. 674, 699, 14 Sup. Ct. 264, 37 L. Ed. 1218, “that, when a vessel has committed a positive breach of statute, she must show not only that probably her fault did not contribute to the disaster, but that it could not have done so.” At the time the signals were given there was no danger of collision: The tug, having a large steamship in tow and being within a mile of the western shore, where there were more or less shoals, and with an ebb tide, the current setting in strongly
It will be noticed from the testimony that all the witnesses on board the Tyee testified that the Lakme proceeded under a port helm from' " the time the signals were exchanged until she was nearly opposite the Tyee. Upon this point we did not quote, in the statement of facts, the testimony of Captain Fulton of the Queen Elizabeth. The record shows that he testified, upon cross-examination, upon this point as follows:
“Q. At that time you and the Lakme were approaching directly head on, were you not? A. I could not tell you whether he was approaching direct, but I was swinging off on an angle, and it appeared to me that he must have been swinging— I was swinging on an angle from south southeast to east, and it appeared that he must have been swinging on an angle from northwest to north. * * * I was swinging to port on my starboard helm, and he kept coming about on the opposite direction, and he must have been swinging to starboard on the port helm, otherwise he would have gone clear of me; if he ported his helm he would have cleared me.”
The log of the Queen Elizabeth, after mentioning the fact that the lights of the Lakme were discovered off Point No Point, contains the following:
“A few moments after our tug gave two blasts with its whistle, which was immediately answered by the approaching steamer, two blasts. Our tug at once starboarded his helm, and our helm was also starboarded to follow the tug. The tug was noticed to be going to port very fast, and our helm was ordered by master to be put hard'astarboard. The approaching steamer did not seem to alter her course to port, but came directly between our tug and ship; struck us a very heavy glancing blow on the port bow.”
Appellant contends that the vessel which is first to depart from the rules takes upon herself the risk of passing in safety, and, failing in the maneuver, the law holds her in fault. The Oceanic (D. C.) 61 Fed. 338, 352, and authorities there cited. We have already stated that the situation of the vessels—one mile apart—at the time the signals were exchanged did not make the rule of the road applicable. Moreover, it is not shown that the Tyee failed to execute the maneuver she undertook in changing her course in accordance with the signals she had given. It is manifest from the testimony that, if the Lakme had done nothing to embarrass the Tyee, the collision would not have occurred. Our conclusion is that the Tyee was free from fault, and that the Lakme alone was blamable for the collision.
The decree of the district court is affirmed, with interest and costs.