196 F. 651 | 6th Cir. | 1912
(after stating the facts as above). We are satisfied that the Gault cannot escape blame. The finding of the District Judge was that the collision occurred1 in the lower and wider part of the channel, and as the result óf¡the Gault’s sudden and inexcusable sheer. This conclusion would end all controversy; but we prefer to rest the liability of the Gault
This maneuver is not to be excused because it was necessary; for it was wholly unnecessary. If the Gault chose to come up the easterly edge of the channel and close along the shore as she did, a trifle of additional slowing so as to be sure that the Whitaker was clear of this part of the channel before the Gault attempted to swing into it-would have avoided the accident, and would not have cost two minutes of time. Again, if the up-bound boat, some distance below the so-called shoulder of the bottle, had swung over on to or near to the Elliott Point range line and then followed up parallel with that line she could have seen the lights and judged the course of the Whitaker to better advantage, the change of direction into the new course would have been as gradual as desired, and the specific danger would never have de>
A more difficult problem arises as to the fault of the Whitaker. The vital question may be formulated as being whether the Whitaker, when opposite the red light, was on her own side of the range, and at least 175 or 200 feet away from the light, or whether she was over on the wrong side of the channel and within 50 or 100 feet of the light. The two lights of the range, according to which .the Whitaker was taking her. course, .were over the bow' and less than one mile away. The night was clear, and these lights were perfectly visible. The universal testimony from the Whitaker is that these lights were continuously open to the west, andl it necessarily follows, if this is true, that the Whitaker was continuously well to the westward of the range line, and hence well westward of the center of the channel. This testimony is clear, positive, and certain, and there is little or no opportunity for mere mistake. On the other hand, the captain of the Gault had no accurate means of locating himself with reference to this range at this time, and nothing definite to tie to excepting that, when he struck the Whitaker, he was close to the red light. This state of the proof makes, as we think, a clear, initial preponderance in favor of the Whitaker. Since, upon the undisputed facts, we find] the Gault guilty of “fault sufficient to account for the disaster,” the contributing fault of the Whitaker must be very clearly and satisfactorily established. The City of New York, 147 U. S. 72, 85, 13 Sup. Ct. 211, 216, 31 L. Ed. 84; The Chisholm (C. C. A. 6) 153 Fed. 704, 713, 82 C. C. A. 562, 571. It only remains to determine whether this initial preponderance is destroyed and the contrary conclusion clearly established by the four matters to which we now allude:
(2) It seems to be the fact that the captain of the Whitaker, seeing the Gault come so far up the river and so far to the eastward, supposed that she was going to come up on the east side of the red light, as, in fact, might have been done; but this would only have furnished some excuse for the captain of the Whitaker to come down east of the rang'e line and dose to the redi float light. It does not prove, nor indeed tend to prove, that he did do so, and is not of much importance as against the proof as to his exact position.
(3) When the captain of the Whitaker was asked to state the distance of the red light from his port side as he was opposite it, he said he did not know exactly, it was “probably 100 feet; probably further.” If this was to be taken as establishing that lie was not more than 100 feet from the light, then it showed he was on the wrong side of the channel and was in fault. However, the context, as well as this answer itself, shows that he was giving only an estimate, and that lie did not intend to limit the distance to 100 feet. 1 He had, by his preceding answer, estimated the distance at the same moment from the west side of the 300 foot channel as only 50 feet. His estimates were, therefore on their face, inaccurate; and being satisfied, as we are, that the captain of the Whitaker was intending to tell the truth about the transaction, we regard this as an unintentional inaccuracy attending upon
(4) Just before the collision, after the Gault had given an order to port and was just beginning to swing her bow to starboard in an effort to avoid the collision, the Whitaker backed. The effect’of this backing-, if there was time for it to take effect, was to swing her stern to port and towards the course of the Gault. This action is relied upon to charge the Whitaker with fault. It is not sufficient for that purpose. It is not clear that this backing did contribute to the collision,-since the stem of the Gault struck the Whitaker near the latter’s bow, and, even without the backing, it is only surmise that the collision would have been .avoided; but, in any event, this order to back -was given when the disaster was imminent and within not more than a minute before the. actual collision. Under such circumstances, it was action taken in extremis, and, even if it was fault, it would not be condemnatory. The Atlantis (C. C. A. 6) 119 Fed. 568, 572, 56 C. C. A. 134.
The judgment of the court below will be affirmed, with costs.