Union S. S. Co. v. Latz, 223 F. 402

Union S. S. Co. v. Latz

223 F. 402 | 9th Cir. | 1915

WOLVERTON, District Judge

(after stating the facts as above). The' sóle problem for solution is to fix the fault, if possible, as it respects the vessels in collision. The testimony of the respective parties, touching the situation and the incidents leading up to the collision, is very conflicting and in many particulars flatly contradictory. The solution rests on where the truth lies, and this can only be determined by ascertaining where reliance shall be placed.

The Argyll claims that when the Gualala was first sighted the ships were passing green light to green light'; the Argyll having the Gualala from 1% to 2 points on her starboard bow. The Gualala, on the other hand, claims that the vessels were passing red light to red light; the Gualala having the Argyll from 1% to 2 points on her port bow. If either were right, and the vessels had kept their courses, it is probable there would have been no collision. If both were right — a thing not possible — and the vessels had kept their courses as indicated by the testimony of each respectively, they would have come together in proximity to where they'did actually meet, and at approximately the same angle, 30 degrees from a right line, assuming one had the other 1 % points on her starboard and the other 1% points on her port bow. The inconsistency in statement being such that both parties cannot be right, the problem is to- determine what did in fact happen.

If McAlpine, as he says, saw the green light of the Gualala, when .a mile and a half distant, a point and a half on his starboard bow, and each vessel had kept its course, there could have been no collision. McAlpine says they would have cleared by 600 feet. There must have been a change made in the course of one vessel or the other to bring them together. McAlpine affirms that the Gualala changed her course to starboard, so as to cross the bow of the Argyll, and it is urged that the fault lies with the Gualala in so doing. Shortly after the red light of the Gualala was observed, McAlpine says, the Gualala blew one whistle and ported her helm, which changed her course to starboard, and it was then that he saw the Gualala’s red light, which indicated to the Argyll that she was crossing the Argyll’s bow. McAlpine further asserts that in the interval between the time the light was reported and the time the whistle was blown the vessels had come into closer relation, so much so that there was not time for the Argyll to do anything else than to answer with one whistle, which she did, and an attempt was made, by porting the Argyll’s helm, to clear the Gualala port to port. It is very apparent according to McAlpine’s view of the situation, that instead of the vessels keeping their course in the interval, and passing clear, as he thinks they would have done by 600 feet, they were approaching one another to a common point of contact, for at the time the whistles were exchanged they were in such close proximity that there was nothing else for the Argyll to do but to answer with one whistle and port her helm; this although, from the time the Gualala was observed, the Argyll had gradually changed her course one-half point to port, which was calculated to widen the clearance of the; vessels as it first appeared to McAlpine.

*409It will be remembered that McAlpine, when he discovered the Gualala, directed the officer at the wheel of the Argyll not to- let “that fellow” come any closer, and McAlpine and the ship’s log concur that the Argyll changed her course to port one-half point. The officer at the wheel denies, hnd so does McAlpine at other periods in his testimony, that there was any change of course in that direction; but it is altogether probable that such a change in the Argyll’s course was made. It is manifest, however, that the ships were running on their respective courses, which were bringing them into probable contact. This fact was apparently not discovered by McAlpine until it was too late to do anything else than to answer with one whistle, which was in effect an agreement with the Gualala to pass port to port, and the collision followed. Why it was that this approach of the vessels was not sooner discovered is not satisfactorily explained by McAlpine. He says that he did not observe the change in lights of the Gualala from green to red until the one whistle was given, and then he looked up and saw it. He did not know when the red light was first observed from the Argyll, nor how long it had been in view.

Hansen is not in accord with McAlpine, for he says that when the Gualala blew her whistle her green light was visible to the Argyll; that after sounding her whistle she seemed to change her course to the Argyll’s port; that he continued to see her green light a while— “a second” — and then he saw her red light and green light together, and her masthead light; this “just a few moments” after the one whistle.

The rule seems to be that a ship changes her course after and not before she signals her intention as to which side of the approaching vessel she will pass, and this is what the Gualala did, according to the testimony of McAlpine, which confirms what the second mate on the Gualala says he did. The red light, therefore, must have been visible from the Argyll before the Gualala changed her course, and Hansen must have seen the change from green to red before the passing signal was given. This he did not report to McAlpine. But McAlpine, being on the bridge, should have observed the change for himself, and noted then and there the course the Gualala was steering.

According to Torbjorsen, "who was at the wheel of the Argyll, one whistle was given by the Argyll after the whistle of the Gualala, and then about a minute afterwards the Argyll blew three whistles. So that some time must have elapsed between the one-whistle and the three-whistle signals of the Argyll. In this Torbjorsen is not in accord with McAlpine, who says the three-whistle signal was given almost instantly after the one whistle. The engines were reversed after the three-whistle signal was given.

According to Gibbs, the second mate on the Gualala, he saw the Argyll’s range lights, which were nearly in range, when about a mile and a half or a mile and three-quarters away; tbe Argyll being on the Gualala’s port bow a point-and a half to two points. About a minute afterwards he saw her port side light. The Argyll did not change her course up to that time. Then he blew one whistle, which was answered immediately with one whistle. After giving the signal, the *410man at the wheel was ordered to port the helm, and the vessel paid off a point and a half to starboard. The Argyll’s range lights appeared to be changing, while he saw her red light, and the helm was ordered hard aport. He next saw the Argyll’s starboard light, and then he stopped and backed full speed. He was of the impression that the Argyll never stopped and backed at all. To his vision, although the Argyll had exchanged the passing signals port to port, the Argyll appeared to be swinging to port. This he judged from the changing of her range lights, and it was this that caused him to put his helm hard over to port. When the Argyll’s green light showed up, a collision appeared imminent, and then the order was given full speed astern.

Carlson, who was at the wheel of the Gualala, thinks the Argyll, when first sighted, was from a point to a point and a quarter off the Gualala’s port bow; but it appeared to him that, while the Gualala was executing her maneuvers, with her helm to port, then hard aport, and after the signals were exchanged, the Argyll was following the Gualala right along. “We could get no further apart "from her,”, he says; “she was coming up on us right along.”

Comstedt, the watchman, who reported the-Argyll’s red light, relates that he could see her red light when she swung to starboard, but that she was still coming closer, and somehow she could not swing clear; she kept on swinging with the Gualala; “she was coming right after us.”

To our minds, the cardinal and decisive point in the controversy consists in the fact, as to- which both parties agree, that the passing signals were given whereby the vessels agreed to pass port to port. The Argyll evidently thought at the time it was safe to do so, and said in effect to the Gualala, “Make your maneuver accordingly,” which it did. All agree that the Gualala’s course was continually changing to starboard after the signals were given, up to the time of the collision, unless her backing checked it. Notwithstanding this maneuver on her part, of which the Argyll could not have been ignorant, the Argyll kept pressing her by coming in the same direction, and it was probably not until a minute had elapsed that the Argyll gave the signal indicating that she had stopped and thrown her' engines full speed astern. If there was danger of collision by accepting the Gualala’s offer to pass port to- port, the Argyll should never have agreed to it, but should have at once protested by giving the danger signal, and taken immediate steps to prevent it. But the Argyll did not do this, and allowed some time to elapse at a critical moment before stopping and backing.

The Gualala’s view of the situation is, to- our minds, the true one. The Argyll was heading, when first sighted, almost in a direct course for the Gualala. As the Gualala continued to starboard, the Argyll changed to port, as she. was directed to do, and probably swung further in that direction than the officer on the bridge was aware of. Notwithstanding this, he concluded it was safe to pass port to port with the Gualala until it was too late to prevent a collision. A more vigilant lookout on the Argyll would have discovered the converging course of the vessels, and prompt action would have prevented'the dis*411aster. A critical analysis of the testimony convinces us that the Gualala did not suddenly cross the bow of the Argyll, but kept her course until signaling her intention to pass to port, and, on receiving the Argyll’s signal consenting thereto, directed her course accordingly. Opinion respecting time and distance in such a contingency is more or less unreliable, and hence we base our findings upon what, seems to he the more reasonable testimony, omitting a critical discussion of such evidence.

Nor is the opinion of experts as to the probable result from defined relative positions of the vessels at a given time of any value, unless the positions, the time of running, and distance of separation are correctly estimated and given — a thing hardly possible under the exigencies then present.

“Lookouts,” says tbe Supremo Court, “are valueless unless they are properly stationed and vigilantly employed in the performance of (heir duty; and if they are not, and in consequence of their neglect the approaching vessel is not soon in season to prevent a collision, the fault is properly chargeable to the vessel, and will render her liable, unless the other vessel was guilty of violating the rules of navigation.” The Colorado, 91 U. S. 692, 699, 23 L. Ed. 379.

The failure of officers whose duties are to keep a lookout to see what they ought to have seen, or to hear what they ought to have heard, where casualty results, is a grievous fault, for which the vessel will be rendered liable. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. Further, as to the duties of a lookout and the consequences attending a lack of strict attention to duty, see The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943; The Viola (D. C.) 59 Fed. 632.

It is strange and inexplicable that the Argyll did not discover very much sooner than it did that its course was convcrgtug upon that of the Gualala, not diverging from it, starboard to starboard, and at the same time that it should have assented to a signal to pass to port. There was a serious inattention to what ought to have been sooner observed, and if it had been sooner observed we cannot doubt that the collision would have been avoided. In the case of The Manitoba, 122 U. S. 97, 7 Sup. Ct. 1158, 30 L. Ed. 1095, the Manitoba was held at fault, under somewhat similar circumstances, for not slowing, and not reversing until too late lo avoid a collision, although the. Comet, the other vessel, ported and ran across her course — a fault (that is, of running across the converging vessel’s course) not attributable to the Gualala in the present, case, as wc are convinced by the manifest weight of the testimony.

The Gualala is perhaps subject to criticism that she did not sooner stop and reverse, but the primary and causative fault lies with the Argyll, for which she is alone liable.

This being the only controverted question, the decrees in all the cases are affirmed.