161 F. 193 | D. Or. | 1908
The libelant is seeking by this cause to recover damages sustained on account of a collision between the dredge Columbia, whUe in tow of the tug .McCraken, and the United States lighthouse tender Manzanita. Under orders from the superintendent of the Thirteenth Lighthouse District to proceed in haste to Astoria, the Manzanita left Portland between 13:15 and 1 p. m. on October 6, 1905. While on the way, and at a point a short distance above Westport reach light, the collision occurred of which complaint is made.
The Manzanita is a vessel of 450 tons, 155 feet in length, appraised as serviceable, and at the time was navigating with a full crew of men. The master and second mate were on the bridge, a lookout was at his proper station, the quartermaster at the helm, and an engineer at the engines. The vessel had her running lights lit, a white light at the masthead and another at the stern. She was drawing 11 feet 4 inches aft and 6 feet 6 inches forward. Waterford post light stands on the north bank of the Columbia river, at a bend near Waterford fishery, and is distant from the place of collision about 3.15 miles. On the opposite side of the river, a little more than a mile from the place of collision, is located the Westport stake or reach light. The former stands on a slight eminence, of GO to 75 feet, and the latter on the level beach, slightly higher than the surface of the water. The accustomed course of navigators in descending the Columbia river is to pass near the Waterford light, continuing beyond from a quarter to a half mile until the light is shut in by the stern, and then to head direct for Westport light; the latter course being southwest by west, or,, by some compasses, southwest by west half west, or southwest by half west. After passing in proximity to the Westport light, and beyond for some distance, the course is again changed so as to make the narrow channel running between Puget and Coflee Islands. It is established by the consensus of the evidence that the current of the stream runs near the north bank of the river 'passing Waterford post light, continuing on in that direction to about Cape Horn, where it sets over toward the Oregon shore, and approaches nearest thereto some distance below Westport light, when it again changes its course across the channel, and makes its way between the islands above designated, that being now the ship’s channel for the larger craft. I append hereto a rough map, being laid upon a section of government’s chart No. 6,143. The figures representing the soundings are not accurate for the present date, and are not relied upon for data in connection with the controversy:
To understand further the -situation, as nearly as it can be ascertained from the conflicting evidence, we will have to pay attention to the salient parts of the testimony of the principal witnesses for the respective litigants. Patrick J. Byrne, who was master of the Manzanita, testifies that the collision occurred about 6:45 p. m.; that the Manzanita was run into and sunk by the» dredge Columbia; that she was struck by the cutter of the dredge about tire starboard fore rigging, which stove a hole in her, by reason whereof she sank immediately; that when he came to the Waterford light — that is, abreast of it, and about 350 feet distant, as he afterwards explains — he headed for West-port light, on a course approximately southwest by west, except that he might have found it necessary to head the ship a little southward on account of the current, which was then strong; that he had just passed the Waterford light when he first- saw the dredge; that he could see the dredge very plainly, and the pontoons stretched across the starboard side of the channel down towards Puget Island; that he could riot make out the number of pontoons, but they seemed to be a long distance across, extending over toward the Puget Island side; that “she appeared as though she was dredging or anchored. It was slack water. .The pontoons were right across the channel.” “She
“Q. Your course from Waterford to Westport is wliat? A. About west, southwest by west. Q. That is compass course? A. Yes, sir. Q. You keep the light ahead of you? A. We seen the light, sir. Q. Well, you run by the compass? A. We run from light to light. 1 was heading for the light from Waterford-to Westport. Q. Continuously, were you? A. Yes, sir. * # * Q. And ran straight for the light up to and beyond the time when you first sighted the Columbia ; is that right? A. I ran on that course till I stopped, sir. Q. Until you stopped? A. Yes; and then 1 changed the course. * * * Q. And where with reference, to the Westport light? Was she nearer you than tile Westport light, or was she beyond the Westport light? A. She was above Westport, light. * * * Q. On your starboard bow? A. Yes, sir. Q. Dead oil, oil your starboard bow, or was she a point or more off? A. About two points, as near as I can remember. Q. About two points on your starboard bow? A. Yes, sir. Q. That is, she was nearer, according to yonr testimony, to the Washington shore than your course for the Westport light; Is that right? A. I was heading for Westport light, and she was on my starboard how about (wo points toward the Puget Island side, toward the Washington side. Q. Toward the Washington shore, and away from. Westport light, as. you say you saw it? A. Westport light was to the left of her. Q. As you looked towards her? A. As 1 looked towards her, yes. Q. And what distance off was it, Captain, that you saw her? A. Oh. she was probably, when I first' saw her, she was probably about a mile and a half. I can’t tell to the distance. * * * She was towing across; she was trying to cross the chnnuei. * * * Q. Now. what distance were you when yon slowed down, Captain? A. Prom where, sir? Q. Prom the dredge? A. Oh, less than half a mile. Q. Then, how long after you slowed' down was it that you stopped? A. Eight away, immediately; about two seconds. Q. And how long did you remain stopped? A. I have forgotten the lime, sir. Q. You were still running on the course you say you were on? A. No; I had starboarded two points after the first stop. Q. I mean you were on your course till a fter you had stopped your engines, were you not? A. Yes, for Westport. Q. Headed for the light, were you? A. Yes, sir. And after I stopped her, I starboarded two points. Q.*198 “When was that that you starboarded two points? A. After I stopped her. Q. When with reference to the collision happening? A. I can’t tell you the time, sir. * * * Q. When did you blow two whistles? A. I was less than half a mile from her. Q. Was that before or after the time, Captain, that you starboarded your helm, that you blew the two whistles? A. Bight away after I starboarded the helm.”
Further on he says, “The dredge was on the starboard side of the channel. She wasn’t taking up the Oregon side at all; she was on the Washington side.” And, again, he sajTs, “I didn’t know she was in motion. If I had known she was in motion, it wouldn’t have happened.” “She struck us about right angles. * * * Pretty near broadside.” The tide had “just turned flood.” With reference to the distance the Manzanita was away from the dredge when she changed her course, the witness is at variance with his testimony previously taken, before Mr. Sholes, wherein he states that the Manzanita altered her course probably half a minute before she struck; probably a ship’s length off from the dredge; that he thought there was going to be a collision, and he starboarded his helm to prevent it — this was when his boat was about a ship’s length away from the dredge — and that he did not think the dredge was under way until after they struck. But on his second examination he asserts that he was mistaken in his statement on the previous occasion.
Michael Nolan, who was second officer on the Manzanita, corroborates Capt. Byrne in the main. He was officer of the watch at the time, and on the bridge with the captain. He relates that almost mmediately after passing Waterford light, the Manzanita’s course was directed for Westport reach light; that he “observed the dredge Columbia well on the starbo'ard bow of the Manzanita * * * about two points”; that it was his “opinion that the dredge Columbia was either anchored or at work in dredging”; that he noticed the pontoons were in a position to indicate that the dredge was at work; that they were stretched out from the dredge to the Washington side of the channel; that the Manzanita continued on the same course until within about a quarter of a mile from the dredge, when the ship was stopped and two whistles blown, to indicate to the dredge that the Manzanita would pass to the starboard of her, to which there was no reply; that witness took a pair of glasses and looked for the lights on the dredge, and that he could find none except the lights in the living rooms and those on the dredge for the safety of the crew; that “there was no indication at all to know that she was under way or steaming.” “There was nothing in the background of the dredge Columbia that could be' seen from the Manzanita’s bridge that would indicate that she was under way. At the time it was dark — the sky was clear — and there was no lights at the back of the dredge Columbia to indicate that she was under war-. There was no running lights up whatsoever. * * * There was no lights at the back of the dredge Columbia whatsoever; but right directly ahead of the dredge Columbia Westport reach light was very plainly seen from the Manzanita;” that after the two whistles were blown and the engines stopped, a man was called to the lead and two soundings were made, showing 30 feet of water; that when the Manzanita sank she was headed about the same course as she was before — “right
"No, sir; I did not. IIow could I know it? There .was two whistles blown by the Manzanita ; the dredge Columbia made no reply; there was no running lights visible from the dredge Columbia: and it was impossible for me to understand that the JieCraken was towing the dredge Columbia, or' that the dredge Columbia was under way.”
Henry K. Wilson, the engineer on the Manzanita, testifies that the Manzanita was struck just abaft the collision bulkhead; that the engines were stopped about five minutes before the collision; that he got a signal to stop, and responded to it; that two whistles were sounded; that he got another signal to go ahead; and when the engines had made two or three revolutions, he received another signal to stop, and the engines were controlled accordingly.
These witnesses are testifying from the view point of the Manzanita approaching the dredge. The following were looking from the dredge and tug:
Eugene H. Hayden, master of the tug McCraken, testifies that on the 6th of October the dredge was at work about 200 feet south of Ihe southerly shore of Puget Island; that they finished the work there in the forenoon, and made preparation for moving up the river to Doublebower; that they made the start between half past 3 and 4 o'clock in the afternoon, and that their rate of navigation was between a mile and an eighth and a mile and a quarter per hour; that they probably did not average a mile yvhen they started; that the tide had not begun to turn then, and as the tide kept slackening, they made better time; that the tide was ebbing when they started, and was still
Charles' F. Smith, inspector for the government on the dredge Columbia at the time, testifies that the dredge started from Coffee Island about four in the afternoon; that they crossed over to the Oregon side, and kept up as close to the shore as possible; that witness saw the Manzanita about a quarter of a mile off; that he had just come out of the dining room, and was standing on the port side of the ■dredge; that the Manzanita was lit up — he did not notice the side lights; that she seemed to be coming directly toward the dredge— that is, at an angle toward the dredge; that he watched her as she approached until she struck about four or five minutes afterwards; that the lights did not seem to change until they got within two or three boat lengths of the dredge; that the Manzanita swerved around .and came directly across the dredge’s course; that the pontoons were trailing on behind the dredge; that when the Manzanita struck she stayed on the cutter about a minute, when she slid off and sank; that she went down where she was struck, and that the current was about slack; that when the Manzanita struck, she was heading right into the fish traps; that she was between 100 and 200 feet out from the
Neis Halvorson testifies that he was the carpenter on the dredge Columbia; that at the time of the collision the dredge “was working over toward the Oregon shore”; that he first saw the lights of the vessel, which afterwards turned out to be the Manzanita, when he came out from the supper table; that he “noticed the light and heard her two whistles blown;” that he was standing at the time “just about amidship of the dredge, on the port side;” that the lights bore as nearly direct toward the witness as could be; that they were about four or five ship’s lengths off — that is, G00 or 100 or 800 feet away; that he could just see the outline of the hull of the approaching vessel ; that he could see the pontoons of the dredge at the time, and that they were trailing a little bit to the dredge’s port side, but not much, just enough so that witness could see ail the lights displayed; that after witness saw the lights, he called the attention of the mate of the steamer McCrakeu to them, then went over to his room, stepped inside, got his hat, and came out again on the deck; that he then saw the steamer changing its course to pass the dredge; that she was' then about 300 feet off — he could not tell exactly; that when he saw the maneuver he expected a collision, and went forward to look at it; that the vessels came together at an angle “pretty close to 45 degrees;” that the Manzanita sank a few feet from the cutter’s frame, and that the dredge stopped, so far as he knew.
Frank Doherty, watchman on the dredge Columbia, testifies that when he first saw the Manzanita he was on the port side of the pilot house of the dredge; that he had just come out from supper a few minutes before; that he saw both of the lights, and that the boat senned to he approaching him directly; that the lights looked as if they were coming in on the port side of the dredge about midship or a little forward; that he did not hear any whistles; that some time after he first saw the lights the boat seemed to change her course to port, enough so that it brought her diagonally across the dredge’s bow, and that he was not sure as to the distance off when the boat changed her course; that at the time the dredge was over “coming up on the Oregon shore side,” and that the boats came together diagonally.
From this abbreviated review of the salient features of the testimony, it at once becomes manifest that an irreconcilable conflict obtains; nor is it possible to adopt the testimony of either the one side or the other as accurately and faithfully portraying the facts, conditions, and environment. It, therefore, becomes necessary to proceed
The point of collision is situate from 200 to 300 feet instream, from the outer end of two fish traps noted upon the plat subjoined to the foregoing statement. These traps are located on the government’s map, presumably accurately; yet it has not been made clear that the government has definitely or precisely located them, and it may be that they in reality stand, by a distance somewhat material to the controversy, above or below the position as indicated upon the map. The positions of the two lights — Waterford and Westport — are perhaps faithfully indicated. The fish traps extend into the stream 500 or 600 feet, thus fixing the point of the collision from 700 to 900 feet from the Oregon shore. The consensus of the evidence is to the effect that its locality is some 800 or 900 feet from the shore, and between 200 and 300 'feet from the outer end of the traps, being nearly midway between the traps if extended. By laying a rule upon the map, which is drafted on a scale of 1 foot to 40,000 feet, it will be found that the place of the collision is 2.15 miles below the Waterford light. From the point where the tug and dredge began their navigation upstream to the point of collision is 3.75 miles, and Westport light is located about a mile and a quarter plus 300 feet below the place of collision. The course downstream that the pilots and ship navigators have adopted, after shutting in the Waterford light by the stern and heading for Westport light, passes to the northward of the point of collision from 900 to 1,000 feet; the former distance being probably more nearly exact. The distance of the wreck from this course is but slightly greater than from a course extended from a point 350 feet abreast of Waterford light direct to Westport. It would probably not be far from 100 feet. It will be remembered that this latter course is the one that Capt. Byrne, the master of the Manzanita, claims to have followed until he veered to port at about the time of signaling the Columbia. The average rate of speed of the Columbia, allowing that she left Coffee Island at 4 p. m. and brought up at the collision at 6 :45■ — which data as to time is as nearly correct as can be ascertained —was 120 feet per minute. She increased her speed, owing to the slackening of the tide current as she pursued her voyage, and was probably making more than 1% miles per hour, or 132 feet per minute, at the time of the collision. If the Manzanita made 9 or 10 knots an hour up to within a quarter of a mile of the point of the collision and 3 knots thereafter, the time consumed would have been about 17 minutes from the time she was abreast of Waterford light. If she made 9 or 10 knots until within one-half mile of the place of collision and 3 knots thereafter, about 20 minutes’ time would have been consumed. Now, within 17 minutes, the Columbia, at the rate of iy2 miles per hour would cover the space of 2,244 feet, or 2,640 feet in the space of 20 minutes. If the Columbia pursued the course as delineated by Capt. Hayden, who was in charge of the tug McCraken, she must have crossed the course which Capt. Byrne says he followed, before Hayden first saw the Columbia from nearly abreast of Waterford
I am impressed that the tug and tow did so actually cross the ship’s course within less than that distance from the place of collision. Their course prior to that time cannot materially affect the situation. This probable converging course of the tug and tow with the ship’s course finds support in the positive statement of Capt. Byrne and his second mate, to the effect that the Columbia had the appearance of being at anchor or at work, with the pontoons extending over toward the Puget Island or the Washington shore.
Turning now to the Manzanita, her course is not susceptible of clear definition or explanation. It is probable that the officers of the Manzanita sighted the Westport reach light across the bow of the Colum
Now, having determined the probable movements of the two crafts shortly before and up to the time of their contact, I will endeavor to determine, if possible, the responsibility for the casualty. The tug and tow were at the time of the collision crafts navigating in the nighttime. It was a duty imposed by the rules of admiralty that they should have been provided with running lights; that is to say, the colored starboard and port lights. The Eugene F. Moran (D. C.) 143 Fed. 187.- The tug was so lighted, the tow not; but by reason of the greater height of the tow, the running lights of the former were obscured from all craft approaching from the Columbia’s starboard, and there
Another fault is manifest in the fact that the Columbia was navigating by night, with her cutter lowered and under water, extending 30 feet beyond the bow. It is further shown that the tug sounded no whistle in answer to the signal from the Manzanita. Capt. Hayden says he did not hear the signal, but others on the Columbia did. If. hearing the signal. Capt. Hayden failed to respond, being then under way with his crafts, this was another fault. So that, at the outset, the tug and tow.were at fault sufficient to fix entire responsibility for the collision, unless it be that the Manzanita was so grossly negligent as to conduce primarily to the casualty of which she complains, or was also at fault contributing to the accident.
The contention of the respondent is that “The Manzanita was noi running upon the course prescribed by law, and was, moreover, so improperly, recklessly', and imprudently navigated as to bring about the collision in question.” Article 25 of the pilot rules (Act June 7, 1897, c. 5, 80 Stat. 101 [U. S. Comp. St. 1901, p. 2883]) is invoked. It reads:
“In narrow channels every steam-vessel shall, when it is safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel.”
I have no doubt the rule is applicable on the Columbia river in the vicinity of the collision, ,as it must there be considered to be a narrow stream. The Sydney; The William Worden (C. C.) 47 Fed. 260; The Acilia; The Crathorne (D. C.) 108 Fed. 975. The probable exigencies of the situation were, however, that when first sighted by the Manzanita, the tug and tow presented the appearance of being at anchor, with the pontoons extending toward Puget Island or the Washington shore, which closed up for navigation purposes the fairway to the north of the dredge. The course of the Manzanita was thenceforth dead on for the dredge, or for some light other than the Westport reach light, because as I have shown by a reference to the testimony of witnesses upon the dredge, she wTas heading, with both her running lights in view, shortly before the collision, for the dredge, and both the dredge and Manzanita were at that time entirely south of the regular ship’s course some hundreds of feet. Even up to shortly before the collision, the dredge and its pontoons must have presented the ap
Another excuse put forth by Capt^ Hayden is that he supposed he was entirely south of the ship’s course, and that it was not incumbent upon him to pay any attention to other navigating craft. However this may be, his course had been, and was then, by the greater probability angling across the channel, and it did not behoove him to disregard in any measure the rules of navigation while in the ship’s channel. I am impressed that, had the tug answered the signal of the Manzanita so as to indicate that she was a navigating craft, or changed her course even slightly to port, there would have beén no collision. Or had she, by the appropriate signal, declined the signal of the Manzanita to pass to starboard, the Manzanita might have prevented the collision by stopping and backing, if need be.
It must be considered that the Manzanita was not a deep seagoing craft, and it was not essential that she navigate upon the regular ship’s course. It is explained by Nolan, the second mate, that, “as a matter of fact, the lighthouse tenders are seldom steered on a course.” I think it was a fault, however, in the Manzanita that she did not steer on a course. If she had, she would have discovered that the Columbia was navigating, because she must have become aware, if holding direct for Westport light, that the Columbia was crossing her path, and thus she could have passed by the Columbia’s stern and avoided the collision. Instead of doing this, she, in all probability, as I have before observed, approached the Columbia as a craft at anchor, intending to go by with reasonable facility when within proper range, being-deceived by the fact that the Columbia was moving instead of being at rest.
Considerable testimony was offered with a view to establishing the existence of a custom with pilots and navigators as to signaling the dredge when at work. The witnesses are not in entire harmony relative to the subj ect, j^et it may be said that such a custom prevailed. Groves describes the signal as one prolonged blast. Then, he says, if the
It will be seen from these brief references to the testimony, touching the custom as to signaling the dredge while at work or at rest, that the approaching vessel even then expects a reply from the dredge, and especially so if the dredge is out of the way so that there is channel way for the vessel to go by. But the dredge in the present instance, although it was navigating at the time, omitted to signal at all, and otherwise paid no attention to the Manzanita’s approach. On the other hand, a more attentive observation on the part of the Manzanita, as previously observed, should have put her in possess:on of the knowledge that the tug and tow were moving craft, although their running lights were obscured. Being in possession of that knowledge, it would have been an easy matter to avoid collision. Being a craft, however, that was not required to pursue the regular ship’s course, she was at greater liberty to direct her course anywhere in the channel affording ample depth of water for safe navigation, though she was bound to observe the rules of the roadstead in meeting and passing other craft, the same as they. I attribute, however, the primary cause of the collision to the faulty action of the tug and tow.
It is argued that the Manzanita did not soon enough change her course. I think, myself, that she did not. But from the standpoint of her navigators, she changed in time to avoid the dredge if the latter had been a stationary thing in the channel; hut being a moving object, and continuing on her way without giving any signal by which to indicate her action, or issuing any note of warning whatever, hers became and was the proximate contributing cause of the accident.
The further question then arises as to -whether there should not he a contribution oí damages as bewveen the dredge and the Manzanita. It was determined in the case of The City of New York, 147 U. S. 72, 85, 13 Sup. Ct. 211, 216, 37 L. Ed. 84, that:
“Where fault on Hie part of one vessel is established by unoontradieled testimony. and sueli fault Is, of Itself, sufficient to account for the disaster, it is non 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 he resolved in its favor.”
Following this is the case of The Umbria, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053, where it is, in effect, held that, where the fault of the offending vessel is gross, any doubts respecting the management of
“As between these vessels, the fault of the Victory being obvious and inexcusable, the evidence to establish fault on the part of the Plymothian must be clear and convincing in order to make a case for apportionment. The burden of proof is upon each vessel to establish fault on the part of the other.”
To the same purpose are The Ludvig Holberg, 157 U. S. 60, 15 Sup. Ct. 477, 39 L. Ed. 620, and The Genevieve (D. C.) 96 Fed. 859.
It is manifest that the fault of the tug and tow in attempting to navigate the river in the nighttime, without running lights and without constant lookouts upon the tow, with the cutter of the tow extending 30 feet in front of her, lowered beneath the surface of the water, and in utterly failing to recognize or reply in some way to the signal of the Manzanita so as to apprise her of their action and intentions, was very gross; and, the burden being imposed upon the respondent to show that the Manzanita was also a contributing factor to the casualty in order to an apportionment of damages, it is required to make out such a state of the case by clear and convincing proof. I cannot say that the respondent has done this, and therefore I conclude that it should be required to bear the entire burden of damages arising from the collision.
Having found the respondent liable, I tax the damages against it in the sum of $12,670.90, in accordance with an itemized statement thereof, which I now file with the record in this cause.
The claim of $2,000 for repairing the rent in the Manzanita’s hull, I allow to the extent of $1,327 only, adopting the testimony of I. N. Day as showing the reasonable cost thereof. The claim of $2,000 for labor in cleaning, overhauling, and repairing wreck, I allow to the amount of $1,653.60. I arrive at this estimate upon the testimony of Wilson, the engineer, who says that eight men were employed three months in cleaning and repairing the engine and the engine room and wreck. Three of these men received compensation of $10 per month, three $50 per month, one assistant engineer $3 per day, and the engineer himself $4 per day. And I allow for findings for the six men 20 cents each per day, and for the officers $1 each per day. It seems to me that this fully covers the reasonable cost of such cleaning, overhauling, and repairing. I allow the item of $1,635.55 for loss of clothing and personal effects of the seamen. I do this upon the authority of The Minnie (D. C.) 26 Fed. 860, and Leonard et al. v. Whitwill (D. C.) 19 Fed. 547. It is the policy and practice of the government to make appropriations to cover allowances for loss of personal effects through a wreck not occasioned by the officers or men themselves. In this very case it seems, from the testimony, that a bill was introduced covering the amount of the claim made by these men, with a view to reimbursing them for their loss. The government does this in justice to the men, they being in its employ. There is question whether I should allow the full amount of this claim, but the only objection made to the item was that no part of it is a proper item of damages
I disallow the items paid crew as per. pay roll for the months _ of October, November, and December of 1905, and all items denoting amounts paid for subsistence of crew during the same months, as the government would have expended these sums notwithstanding the wreck of the Manzanita.
Dibelant is entitled to interest upon the amount of damages found against the respondent at 6 per cent, per annum from the time of the wreck.