105 F. 436 | E.D. Mich. | 1900
About 12:30 a. m., August 6, 1899, the car ferry Lansdowne, while on her trip from the slip at Windsor for her .slip at 18ijf street, Detroit, came into collision with the steamer W. B. Morley, coal laden, and bound up, the Detroit river. The car ferry is a registered Canadian steam vessel, 318 feet long, 41 feet beam, and at the time of the collision was fully laden with freight cars.
“The expression ‘steam-ship’ or ‘steam-hoat’ includes every vessel propelled wholly or in part by steam or by any machinery or power other than sails or oars;”
“Sec. 2. The following rules with respect to lights, fog 'signals, distress signals, steering and sailing, and rafts shall apply to all the rivers, lakes and other navigable waters within Canada, or within the jurisdiction of the Parliament thereof, — that is to say:
“Preliminary. In the following rules, * * - every vessel under steam, whether under sail or not, is to he considered a steam-vessel.”
“The word ‘steam-vessel’ shall include any vessel propelled by machinery.”
Then follow the rules concerning lights, etc., prefaced by this provision :
“The word ‘visible’ in this rule when applied to lights shall mean visible on a dark night with a clear atmosphere.”
“Article .1. The rules concerning lights shall be complied with in all weather from sunset to sunrise, and during such time no other lights which may he mistaken for the prescribed lights shall he exhibited.”
“(e) A steam-vessel when under way may carry an additional white light similar in construction to the light mentioned in subdivision (a). These two lights shall be so placed in line with the keel that one shall he at least 15 feet higher than the other, and In such a. position with reference to each other that the lower light shall be forward of the upper one. The vertical distance between these lights shall be less than the horizontal distance.”
“Art. 18. When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other.”
This article only applies to cases where vessels are meeting end on, or nearly end on, in such a manner as to involve risk of collision; and does not apply to two vessels- which must, if both keep on their respective courses, pass clear of each other, filie only cases to which it does apply are when each of the two vessels is end on, or nearly end on, to the other; in-other words, to cases in which, by •day, each vessel sees the masts of the other in a line, or nearly in a line, with her own; and, by night, to cases in. which vessel is in such a position as to see both the side lights- of the other. It does
“Art. 2. A steam Vessel when under way shall carry: (a) On or in front of the foremast, or if a vessel without a foremast, then in the forepart of the vessel, at a height above the hull of not less than 20 feet, and if the breadth of the vessel exceeds 20 feet, then at a height above the hull not less than such breadth, so, however, that the light need not be carried at a greater height above the hull than 40 feet, a bright white light, so constructed as to show an unbroken light over an arc of the horizon of 20 points of the compass, so fixed as to throw the light 10 points on each side of the vessel, viz: from right ahead to 2 points abaft the beam on either side, and of such a character as to be visible at a distance of at least five miles. On the port side, a red light so constructed as to show an unbroken light over an arc of the horizon of 10 points of the compass, so fixed as to throw the light from right ahead to 2 points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles.”
A like requirement is made for the starboard light.
“The said green and red side lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow.”
“Art. 19. When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.” .
This is identical with rule 18 of the White law (28 Stat. 648).
“Art. 21. Where by any of these rules one of two vessels is to keep out of the way, the other shall keep her course and speed. Note, — when, in consequence of thick weather or other causes, such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she also shall taire action as will best aid to avert the collision.”
Excepting this note, this rule is, in substance, rule 20 of the White law.
“Art. 22. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the cause admit, avoid crossing ahead of the other.
“Art. 23. Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.”
This is rule 21 of the White law.
“Art. 25. In narrow channels every steam vessel shall, when it is safe and practicable,' keep to that side of the fairway or midchannel which lies on the starboard side of such vessel.”
“Art. 27. In obeying and construing these rules, due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”
This is identical with rule 27 of the White law.
“Sound Signals for Vessels in Sight of One Another.
“Art. 28. The word ‘short-blast’ used in this article shall mean a blast of about one second’s duration. When vessels are in sight of one another, a steam vessel under way, in taking any course authorized or required by these*439 rides, shall Indicate that course by the following signals on her whistle or siren, viz.: One short blast to mean: T am directing my course star-board.’ Two short blasts to mean: T am directing my course to port.’ Three short blasts to mean: ‘My engines are going full speed astern.’
“Art. 29. Nothing in these rules shall exonerate any vessel or the owner, or master, or crew thereof, from the consequences-of any neglect to carry lights or signals, or of any neglect to keep a proper look-out or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”
“Sec. 5. If, in any case of collision, it appears to the court before which the case Is tried, that such collision was occasioned by the non-observance of any of the rules prescribed by this act, the vessel or craft by which such rules have been violated shall be deemed to be in fault; unless it can be shown to the satisfaction of the court that the circumstances of the case rendered a departure from the said rules necessary. 43 Vict. c. 29, § 6.”
“Sec. 9. When foreign ships are within Canadian waters, the rules for preventing collisions prescribed by this act, and all provisions of this act relating to such rules, or otherwise, relating to collisions, shall apply to such foreign ships; and in any case arising in any such court of justice in Canada concerning matters happening within Canadian waters, foreign ships shall, so far as regards such rules and provisions, be treated as if they were British or Canadian ships. 43 Vict. c. 29, § 11.”
The provisions of the While law, so called, regulating navigation on the Great Lakes and their connecting and tributary waters, which took effect March 1, 1895, and rule 2 and rule 7 of the American pilot rules for the Great Lakes and their connecting tributary waters, have also been referred to in argument. But, as the case is controlled by the Canadian statutes, they have not been considered where they differ from the foreign code. The Lansdowne, being a Canadian vessel, was subject to the law of her flag; and under it’s requirements, because of her beam, should have carried a bright while light 40 feet above her hull, having a range of illumination of 10 points, as required by article 2 of the Canadian statute. She carried instead the lights prescribed by rule 7 of the American pilot rules for double-ended ferryboats. These were but 32 or 33 feet above her hull. The faults charged against the Lansdowne are: (1) Failure to exhibit her lights; (2) the lack of proper officers and crew; (3) failure to maintain a lookout; (4) for not sounding a whistle at the proper time; (5) for not checking her speed or stopping wdien risk of collision was evident. The first three specifications of fault against the Morley are identical in substance with those made against the Lansdowne. The remaining specifications in the cross libel charge: (4) That, the vessels being on cross courses, the Morley, having the Lansdowne on her own starboard side, did not adopt timely measures to keep, out of the way of the Lansdowne. (5) For attempting to force the Lansdowne out of her course, and calling upon her for an impossible maneuver in order to let the Morley cross ahead of the former when the vessels were close together, (6) For wrongfully attempting, when the vessels were in close proximity, to cross the Lansdowne’s course ahead of that vessel, instead of waiting, if necessary, or porting her wheel so that she might pass on the port side of and under the Lansdowne’s stern. (8) For not passing between the Lansdowne and the Canadian shore. (9) In proceeding on her adopted course up the river, close to the Canadian docks, at an excessive and dangerous speed. (10) For adopting an unusual
The LanSdowneis what'is termed a double-ended ferryboat. On her main deck aré two tracks, upon which, at her slips in Detroit and' Windsor, cars are run over her bow proper. At her stern are bumpers at the end of each track to prevent further movement of the cars astern. When running up the river from Detroit to her Windsor slip, she proceeds bow first. On the return trip to her Detroit slip, she moves, down the river stern first, under engine signals of two bells, until she has arrived at a point where her bow can be swung, into the slip. She carries two sets of colored lights, and has two pilot houses, one forward and aft, set upon the bridge. The lights are placed six .or seven feet outboard from each side of the pilot house, and were properly fitted with inboard screens of the full regulation size. They had, however, an additional appliance to dispense with the necessity of shifting them each trip from one end to the other of the steamer, consisting of a metallic cylindrical shield of about the same height as the light, but of greater diameter, permitting it-to be revolved freely around the lights, which it inclosed. This shield had an opening somewhat larger than the lens of the lights. It was the watchman’s duty, preparatory to the return trip for her slip at 18¿- street, Detroit, to adjust this shield on each forward light so as to close the light, and to open the lower lights by bringing the opening of the shield in front of the lens. There was also an opening about 2-} inches in diameter through the inner side of the screen board, a few inches in front of the light, through which the gleam of the light could be seen by those in the pilot house, if the lens was either fully opened or not completely closed. The Lansdowne, while in her slip at Windsor, lay with her stern about' 30 feet further out in the stream than her bow, heading about on her course to her Detroit slip. Her master, before entering the pilot house to give the starting signal, went to the outer side of the bridge’ —that is, on the starboard side of the boat when she is running down stream, — and looked down the river, before giving the starting signal. Prom that point his range of vision was limited, and he saw no vessel coming up. Before the steamer started from her slip, the master, in accordance with his custom, went into the pilot house at the upper end of the boat. Bassett, the wheelsman, Pierce, the watchman, and Prior, the assistant wheelsman and lookout, were on the main deck at this time. The first two were handling the apron and adjusting the clamps, preparatory to moving out of the dock. When this was done, the wheelsman signaled from, the main deck to the master, who then sounded two short and smothered blasts of the whistle as a signal to the assistant wheelsman, who was on the. main deck at the lower end of the boat, to cast off the line. This done and reported, the master gave the signal to work the port engine. When the steamer had cleared the slip, the current had a tendency, aided by the port wheel, to swing her somewhat to starboard. There was no-one in the pilot house on the down-stream end of the boat when the-
It is charged as a fault on the part of the Morley that her course was dangerously near the shore, and imperiled vessels and ferries whose track it crossed. The proofs fail to sustain this contention. The collision is in no way referable to the proximity of the Morley’s course to the Canadian shore.
Two questions arise in this case which are the subject-matter of directly conflicting testimony. The master and crew of each vessel testify that their own steamer sounded the first signal. Eleven witnesses on the part of the Lansdowne are confronted upon this issue by 11 equally credible witnesses who testify as positively that the Morley’s signal of two blasts was first given. It is unnecessary to determine this issue. The case must be decided upon other grounds. There is much force in the suggestion that the signals sounded by the two steamers were independent, and the evidence is satisfactory that neither steamer made any change of course because of the signals of the other. The Morley’s version of the circumstances which led to the collision contradicts in every material point that given in support of the Lansdowne’s case. The pivotal question in the case is that relating to the port light of the Lansdowne. The libel charges, and libelants’ proofs tend to show, that when the Morley was on the described course “her watch discovered on the water, and not a great distance ahead, nearly, but somewhat inside and to the starboard .of, the course of said steamer, a dark object showing no lights of any kind which were visible to the men on said steamer, and which object had not and did not give any signal or indication of being a steamer navigating. The Morley promptly sounded a signal of two blasts, indicating an intention to keep outside, whereupon the dark object, which proved to be the said car ferry Lansdowne, * * * replied with a signal of one blast, and suddenly exhibited a red light. The Morley, not having changed her course, at once stopped, and reversed her engines, and backed strong; * * * but the Lansdowne, apparently without checking her speed or stopping, * * * came on, and struck the bows of the Morley nearly stem on, and crushing them in,” etc. The deck watch of the Morley was composed of the master, the mate, the lookoutman, and the wheelsman-. There is no evidence assailing their competency. Their testimony is that they were giving their attention closely to the navigation of the steamer; that no light was visible on the “dark object,” which proved to be the Lansdowne, no indication that it was in motion, nor was any signal given by her until after the Morley had sounded a signal of two blasts, notifying her course to port; that no change of course was made on the part of the Morley in pursuance of her signal, but
Section 29 of the Canadian statutes, above quoted, is decisive of the fault of tire Lansdowne in failing to comply with the requirements of the Canadian statute as to the position and character of the bright lights, and is prima facie evidence, until conclusively refuted of the agency, of that violation of the statute in the collision. Both the American and English courts hold that, where a vessel has disregarded a rule of navigation, it is incumbent upon her to show, in cases of collision or other disaster, that the violation of the statute not only did not, but could not have, contributed to the collision. The Fenham, L. R. 3 P. C. 212; The Pennsylvania, 19 Wall. 125, 22 L. Ed. 148; Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398. In view of the number of lights in that neighborhood for which the lights of the Lansdowne could easily be mistaken, it is impossible to say that the breach of the statute did not contribute to this disaster. The general courses of the two vessels were intersecting at an angle of between 1 and 1-^ points until the wheel of the Lansdowne was ported after the exchange of signals. It is not claimed that the green light of the Lansdowne was at any time visible to those on the Morley. If her port light was open, and burning, it should have been visible to the Morley’s watch from the time the Lansdowne left her slip. It is insisted by libelants that it was first displayed immediately after the whistles were sounded. It was one of the numerous duties of the watchman of the Lansdowne to care for, close, and open the lights. He is the only witness who testified to the manual act of opening the metallic shields upon the lights at the lower end of the boat, although the assistant wheelsman of the Lansdowne states that he incidentally saw the port light open when going, to the wheel after the Lansdowne had left her slip, and when he was standing near that light for the purpose of ascertaining if the bright light was burning. As the bright light was in plain sight on his way to his post at the wheel, and before he reached the stairs leading to the bridge, upon which the lights were placed, a better reason for his visit to the port
The great majority of the witnesses had no concern with the absence or presence of the lights. The deck watch of the Morley was charged with the duty of navigating their vessel with reference, to the dangers and exigencies of navigation, which in that locality were numerous and great. They knew that ferryboats were constantly crossing in that vicinity, that the numerous lights on each side of the river increased the difficulty of distinguishing those on land from those water-borne, and the conditions peculiar to the locality called for the utmost vigilance. It must be presumed that men of their experience, familiar with the river and the exceptional hazards of its navigation, were alive to their duties, and appreciated the conditions of the locality. Prom a point 600 or 700 feet — -nearly one-third of the width of the river from the Canadian shore — the Morley’s crew was, for over half a mile at least, in a position to discern the light of an approaching vessel, whether that vessel was leaving her dock bound down, or coming from a point above. It is hard to believe that if the Lansdowne seasonably showed her port light, competent navigators would be so negligent of their duties, and so reckless of the consequences of collision, as to take no precaution, nor give any warning, but keep on at full speed until that vessel had approached within 800 or 900 feet. By rule 23 of the White law every steam vessel in taking any course authorized or required by the rules shall indicate that course by prescribed signals of her whistle, and by rule 5 of the pilot rules for the Great Lakes and their connecting and tributary waters, with both of which her master was familiar, it was the duty of the Morley to sound a passing signal to an “approaching vessel” on any course, and within half a mile distant. The Canadian statute is yet more stringent requiring the passing signal when vessels are “in sight of each other.” The statutes of both countries penalize the violation of any of their provisions. While the master of the Morley had no actual knowledge of the Canadian statute, yet the instinct and training of every competent American master and the penalty of the statute would naturally prompt him to observe at least the salutary requirement of the American statute and rules. He willfully disregarded these if he knew, or might have known, before the exchange of whistles, the approach of the Lansdowne, whose port light, at least if opened, was visible to him from the time she cleared from her slip, and yet approached her at full speed without signal or precaution of any kind. Such a gross violation of law and of the dictates of common prudence is not to be presumed, but must be established by the clearest evidence. That offered in support of the charge fall short of the requirement.
Oh the other hand, the violation of article 28 of the Canadian statute, quoted supra, is confessed by the master of the Lansdowne in the admission that he saw the Morley’s green and masthead light
Where reputable witnesses, whose competency and experience in their calling is not questioned, testify that no light was visible, who were in a position to see it if it was, whose interest, duty, and safety were involved in observing it, and where there is nothing to indicate negligence on their part, and a collision occurred which might easily have been avoided, and would naturally have been averted if the light had been visible and seen; when their'testimony is opposed mainly by that of men having less favorable opportunities of knowledge of the fact in question, and which is quite consistent with the obscuration of a light by a cause which they were not in a position to observe; and where the testimony of one of the opposing witnesses, who was charged with the duty of opening the light, is apparently to his practice, rather than his recollection of the facts and of the time when he opened the light; and when the navigation of vessel charged with fault is shown to have been llagrantly negligent in other particulars, — the weight of evidence must be deemed to establish the light in question was either imperfectly displayed or was not seasonably shown. The Drew (D. C.) 35 Fed. 791; The Livingstone (D. C.) 87 Fed. 775; The Monmouthshire (D. C.) 44 Fed. 697.
It is argued that the vessels were on crossing courses, and therefore the Morley was at fault,- — if she was the first to signal, — in announcing that she was taking her course to port; that her duty was to keep out of the way of the Lansdowne by passing under her stern. It may be remarked, in passing, that the Canadian statute does not make that course imperative. Article 19 of that Code is qualified by article 22, providing that “every vessel which is directed by these rules to keep out of the way of another vessel, shall, if the circumstances of the case admit, avoid crossing ahead of another.” It is manifest, however, that the rule and its qualification apply only to those cases where both vessels are under way, and the intersection of their courses is evident. If no light was visible to the Morley until she had given the signal of two blasts, and there was nothing to indicate that the Lansdowne was on a crossing course, she was, as to the Morley, not an “approaching” vessel, but merely a possible obstruction to be shunned, — the “dark object” which the Mor lev’s crew described her to be. When she notified her course and character by her signal and the exhibition of her port light, the collision was inevitable; and under articles 22 and 23 the “circumstances of the case” did not admit of any other course than that adopted by the Morley. It is strong evidence of careful navigation that the master refused to take the chances of crossing ahead of the Lansdowne at
The navigation of the Lansdowne was fraught with so many sins against the Canadian statutes, the neglect of so many precautions required by the ordinary practice of seainen, that all doubts must be resolved against her. No proper precaution was taken to ascertain the proximity of vessels before she left the dock. She moved out of her slip without a competent navigator in- charge- of her- forward deck. Her master was her only licensed officer. She had no lookout-. ■ She did not carry the lights prescribed by the statutes of Canada. She failed to properly and seasonably display her port light. She did not seasonably sound the passing signa 1, although she had seen the Morley more than half a mile away. She neither slackened speed, stopped, nor reversed until a length away from the Morley, although it should have been evident to her master at the exchange of signals that collision was imminent. Were the evidence less convincing of the careful navigation of the Morley, any doubt of the propriety of her, management must be given her when contrasted with the many and grievous faults of the Lansdowne. “Where 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 City of New York, 147 U. S. 85, 13 Sup. Ct. 211, 37 L. Ed. 84.
A decree will be entered holding the Lansdowne solely- in fault for the collision, dismissing the cross libel, and referring the cause to a commission to ascertain and report the damages.
