112 F. 161 | 9th Cir. | 1901
after stating the foregoing facts, delivered the opinion of the court.
The assignments of error are numerous, but relate entirely to the findings of fact by the court below, and its application thereto of rules of law. The appellees contend that this court has no jurisdiction over the appeal in this cause, for the reason that there is no provision of law directly authorizing this court to entertain appeals in admiralty from the district court of Hawaii. In support of this contention they cite section 86 of the organic act of April 30, 1900, providing a government for the territory of Hawaii, which section defines the jurisdiction of the district court of Hawaii as follows:
“Said court shall have, in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizable in a circuit court of the United States, and shall proceed therein in the same manner as a circuit court.”
And with regard to appeals from said court it provides:
“Writs of error and appeals from said district court shall he had and allowed to the circuit court of appeals in the Ninth judicial circuit in the same maimer as writs of error and appeals are allowed from circuit courts to the circuit courts of appeals as provided by law.”
The appellees construe this section as making no‘ provision for tppeals from the district court except when acting as a circuit court, and contend that, as the circuit court has no jurisdiction in admiralty, there is no “manner” of allowing an appeal in admiralty from that court. The language of the section does not warrant such a restricted interpretation. It expressly provides that writs of error
“It would be difficult to conceive an intention in the legislature to discriminate between judgments rendered by the district court of Kentucky while exercising the powers of a district court and those rendered by the same court while exercising circuit powers, When it is demonstrated that the legislature makes no distinction in the eases from, their nature and character. Causes of which the district courts have exclusive original jurisdiction are-carried into the circuit courts, and then become the objects of the appellate jurisdiction of this court. It would be strange If, in a case where the powers of the two courts are united in one court, from whose judgments an appeal lies, causes of which the district courts have exclusive original jurisdiction should be excepted from the operation of the appellate power. It would require plain words to establish this construction.”
In . our view, this case is controlling, and disposes of the question qf appellate jurisdiction of this court.
Proceeding now to the consideration of the case upon the merits,, we notice that the appellants recognize the presumption arising from:
The duty of steam and sailing vessels, respectively, with regard to avoidance of collisions at sea, is set forth in the revised international' rules prescribed by the act of congress entitled “An act to adopt regulations for the prevention of collisions at sea,” approved August 19, 1890 (26 Stat. 320, 327). They are as follows:
“Art. 20. When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel."
“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.
“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 case 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.”
It appears to be admitted that the course of the steamer Claudine was E. Y S. up to the time her whistle was blown and she ported her helm; that between the blowing of the whistle and the collision a minute or more of time elapsed, and that at the time of blowing the whistle the steamer ported her helm, and changed her course to starboard ; that the steamer’s rate of speed was 10 knots per hour; that the rate of speed of the barkentine William Carson was 2)4 to 3, knots per hour; that prior to the collision the barkentine was sailing free, with all her canvas set, and her fore and aft sails on the starboard side; that up to the time the steamer blew her whistle- and changed her course to starboard the barkentine kept on her
“The fact that the vessels did collide explodes the theory that there was no risk of collision; and, besides, why did the mate port his helm, if, in his judgment, there was no risk of it? He says this was done as soon as he saw the schooner. If so, he believed at the time the relations of the vessels to each other were such that they might collide, and the possibility of it is all that is required to charge the steamer, unless she can establish that she was without fault.”
To overcome this prima facie case that the two vessels were proceeding in such directions as to involve the risk of collision, appellants invoke a preliminary note to article ,17 of the international rules relating to two sailing vessels approaching one another in such manner as to involve risk of collision. This note contains the following suggestion:
“Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change, such risk should be deemed to exist.”
Assuming that this note is a rule of navigation, and applicable to a vessel under steam approaching a vessel under-sail, the appellants proceed to show from the testimony that the lights afterwards identified as being those of the barkentine did change in their bearings to the steamer; that with respect to the observations made on the steamer the lights of the barkentine appeared first on the port bow; that they kept gradually changing to the right, crossing the bow of the steamer, and aftérwards appearing on the starboard bow. From this evidence the appellants draw the conclusion that no risk of collision was apparent to the steamer tip to the moment sfie. blew her whistle and ported her helm. The objection to this conclusion is obvious. In the first place, the preliminar}' note is not a rule of navigation, but merely a suggestion of one method of determining a risk of collision from a particular compass bearing of an approachirig vessel. It does not determine or assume to suggest that' all other compass bearings involve no risk of collision, nor does it suggest the only method of determining a risk of .collision under the conditions mentioned. Manifestly, vessels approaching each other at about the same time on crossing courses, with compass bearings gradually changing, involve the risk of collision in the highest degree. It is only when the bearings alter quickly, and the vessels are a considerable distance apart, that, there is no risk of collision. In the second place, the only purpose of this conclusion is to show that up to the time the steamer blew
But what was the course of the barkentine, as shown by the testimony? Were the steamer and barkentine approaching each other on crossing courses? Capt. John Piltz, master of the barkentine at the time of the collision, and one of the libelants herein, testified that the barkentine was sailing free on a southwest course, and maintained that course to the time of the collision; that it appeared to him that the steamer was sailing on a course E. J4 S. He states that he was on deck, on "watch, and that there were also on duty at that time the second mate, the man at the wheel, the lookout, and the man amidships; that the lookout reported a light on the starboard bow a few minutes after 8 o’clock p. m.; that about 8:25 p. m. the witness saw the red light of the steamer, and about 8:27 p. m. saw the green light also, both lights being visible at the same time; that he took the bearings of the steamer at that time, and judged that she was coming towards the barkentine about E. J4 S-, and was about 3 miles distant; that about 8 135 p. m. the green light alone became visible. In the judgment of this witness the barkentine crossed the course of the steamer about 8:3o p. m., just prior to the shutting off of the red light from his vision. From 8 :35 p. m. he continued to see the green light alone for three or four minutes. The steamer then blew one whistle, and changed its course to starboard, the collision occurring a minute or two later. It is his opinion that, if the steamer had not pórted her helm, and changed her course immediately prior to the collision, no damage would have ensued, as the vessels would probably have cleared each other. Nelson, second mate of the barkentine, and who was on deck at the time, testified that the barkentine was sailing free on a southwest course; that he saw the steamer a little after 8 p. m., apparently coming right to the starboard side of the barkentine; that she was headed in a southeasterly direction; that
.. The' appellants claim that the barkentine was not on a south- ■ west course, and base this contention in part upon testimony elicited by propounding hypothetical questions to various expert witnesses, .to the effect that a southwest course for the barkentine was not possible if the steamer’s course was E. ¾ S., and the libelant, who ■was on the barkentine, saw, as he testifies, first the port light of 'the steamer, then both lights of the steamer for the space of nine ■ minutes, and then the starboard light alone. The inference which ■the appellants appear to draw from this testimony is that, as the ..libelant was able to see both lights of the approaching steamer •for the space of nine minutes, the barkentine was not crossing the 'bow. of the steamer on a southwest course, but was approaching nearly head on. The first observation to be made with respect to the hypothetical question that brought out this testimony is that 'the witnesses were not informed as to the speed of the barlcen-■tine during the nine minutes, and it is not clear how, in the absence
There is still another feature attending appellants’ conjectured! course of the barkentine, which must not be overlooked. If it were established as a 'fact that the lights of the steamer were seen on board the barkentine for the space of nine minutes just prior to'the collision, and that the barkentine was on a course that brought her end on, or nearly so, to the steamer, then the light of the barkentine that was observed on the steamer did not appreciably chahge its bearings during that time, and the risk of collision must be deemed to have existed, under the suggestion contained in the preliniinary note to rule 17, invoked by the appellants in a branch of the' argument previously noticed, and it became the duty of the steamer, in that situation, to keep out of the way. It follows that the- effort to establish a-course for the barkentine other than that of southwest would not, under any of the supposed conditions, furnish a defense to the action, and, as that course has been satisfactorily established by the evidence, we are left to consider it with respect to the remaining aspect of the case.
Did the steamer exercise due care and diligence to keep out of the way of the barkentine? If the second mate, in charge of the steamer,. saw the green light of the barkentine, no sufficient excuse is shown for
The federal courts in early cases declared it to be the duty of a steamer, when the lights of an approaching vessel were fluctuating, or for any reason there appeared to be uncertainty as to her course, to slacken'its speed, and, if necessaryi stop, neither pro
“The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment’s negligence on- his part may involve the loss of his vessel, with all the property and the ' lives of all on hoard. The same consequence may ensue to the vessel with which his shall collide. In the performance of this duty the law requires Indefatigable care and sleepless vigilance. * * * It is the duty of all •courts charged with the administration of this branch - of our jurisprudence to give it the fullest effect whenever the circumstances are such as to call for its application. Every doubt as to the performance of the duty, and the •effect of nonperformance, should be resolved agaihst the vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary.”
No deviation from this statement has been made by the supreme court in later cases (The Oregon, 158 U. S. 186, 193, 15 Sup. Ct. 804, 39 L. Ed. 943), and it is therefore as binding to-day as when first made.
The appellants seek to overcome the presumption of negligence upon the part of the officer in charge of the steamer by .the contention that the colored lights of the barkentine were not visible to'those on board the steamer. The only testimony in support of this contention is.-that of McNeal, the officer in charge, and that is
It is further urged by the appellants that, if the lights were burning upon the barkentine that evening, they were obscured from sight ahead by the arrangement of the sails. Much theoretical testimony was taken upon this point, in the endeavor to show that, the lights of the barkentine being carried in the spanker rigging, ‘the sails extending over the rail would cut off the lights from the range of vision ahead. As against this the appellees show that the barkentine was a new vessel, on her first voyage, from Eureka to Newcastle, thence to Honolulu; that she had been duly inspected by the United vStates inspector before leaving Eureka in January, 1899, and given a certificate of seaworthiness. The captain of the barkentine testified positively that the ship did not and could not carry her booms over the rails, and Campbell, the lookout on duty at the time of the collision, testified that he could see the side lights from the forecastle head as he walked across. If he is to be believed, it is evident that the lights could be seen straight ahead under the foresail. Mere theoretical contentions are not to be accepted against positive testimony of eyewitnesses, unless circumstances are shown to discredit the truth of such testimony. Such showing has not been made here. And, as is stated by Judge Thomas in The Gate City (D. C.) 90 Fed. 314, 317,—a case involving a similar state of facts in many particulars,—it is not a reasonable presumption that a sailing vessel would so adjust her sails as to obscure her light, upon whose appearance her own safety and the safety of other vessels might depend. Moreover, the mate 'of the steamer, coming on deck just prior to the collision, saw the green light of the barkentine at once. It is conceded that the barkentine had not changed her course, and the steamer had but just been given the order to change hers. It would seem, therefore, that the green light must have been .visible to those on the steamer for some time before, if proper attention had been given to it.
The conclusion is unavoidable that the officer in charge of the steamer conspicuously failed to see what he ought to have seen, and, consequently, to direct properly the steamer’s course. The liability therefore rests upon the appellants.
The decree of the district court is affirmed.