Luckenbach S. S. Co. v. Societa Anonima Partecipazioni Industriali Commerciali

HEALY, Circuit Judge. On February 17, 1937 the American steamer Edward Luckenbach and the Italian motorship Feltre collided in the Columbia river at a point about four miles above Longview, Washington. As a result of the collision the Feltre sank to her main deck in the channel. She was thereafter libeled by cargo owners and sold under process. Subsequent to the collision the owner and operator of the Feltre filed a libel in the court below against the Edward Luckenbach and her owner requesting damages sustained in the loss of the ship and her cargo. The owner of the Luckenbach thereupon petitioned for exoneration from or limitation of liability. There were claims and answers in the limitation proceeding on the part of the Feltre and cargo-claimants. A special master was appointed by the court to hear and report on all issues of fact and law involved. The master,, determining that the owner of the Luckenbach was entitled to limit its liability, found, that both vessels were at fault. Exceptions [87] were taken to the findings of the master, but these were approved by the court and all parties save the cargo claimants have appealed. The sole question presented is the responsibility for the collision. The Edward Luckenbach is a steam turbine vessel 457 feet long and with a beam of 57 feet. At the time of the collision her forward draft was 14 feet 6 inches and her aft draft 18 feet 6 inches. She was proceeding, partly loaded, up the Columbia toward Portland in charge of Captain McNelly, an experienced, licensed Columbia river pilot. The Feltre, a vessel about 460 feet in length with a beam of 55 feet, was powered by means of a Burmeister diesel engine. She carried a cargo of 3500 tons. She was proceeding down the river from Portland in charge of Captain Turppa, an experienced, licensed Columbia river pilot. A copy of the government chart of the vicinity is incorporated as an aid to a proper understanding of the discussion which follows. We will refer to the points indicated on the chart without further explanation. As the chart appears here the meridian line is at an angle of about 45° with the vertical. [88] The findings are in substance these: The collision occurred between 1:40 and 1:41 A. M. Prior to and at the time of the impact the wind was estimated to be blowing from 25 to 60 miles per hour from a south south-easterly direction, or approximately down the Upper Cottonwood Island Range, striking the Feltre astern and the Luckenbach on her starboard bow as the vessels approached each other. Visibility was good, although it was raining, and was estimated by witnesses to be from 3 to 6 miles. The tide was ebb and was running against the Luckenbach; and the set of the tide and current was toward the Washington side of the river. The current was running at a speed of about 2 knots per hour. The vessels sighted each other when the Luckenbach was below the red flashing buoy on Dobelbower Bar and the Feltre was about Prescott. The Columbia river in the general vicinity is a narrow channel within the meaning of Art. 25 of the Inland Rules, 33 U.S.C.A. § 210, and said article was applicable to the navigation of both vessels in approaching and passing each other. Both vessels had been proceeding with engines at full speed ahead for some time prior to the collision and both vessels continued at that speed until the impact. The speed of the Luckenbach was about 7.77 knots and that of the Feltre was about 12 knots, over the ground. The vessels collided at a sharp angle, the stem of the Luckenbach striking the Feltre on her starboard side at No. 2 hatch and ripping off a considerable section of the Feltre’s plating, as a result of which the Feltre sank. The collision occurred at a point between the upper end of Cottonwood Island and the lower end of Prescott dock, and, with respect to the channel, occurred between the Upper Cottonwood Island Range and a point 300 feet to the right thereof, proceeding upstream. The collision and the resulting damage to both vessels and to the cargo carried on the Feltre was found to be due to and caused by the negligent navigation and faults of both vessels in the particulars now to be stated. The navigational faults of the Luckenbach contributing to and causing the collision were, (1) she violated the narrow channel rule in that she navigated too far to her own left and crossed the Upper Cottonwood Island Range; (2) she failed seasonably to sound the danger signal and . failed to stop and reverse under the attendant circumstances and conditions; (3) she proceeded at an immoderate rate of speed for the conditions prevailing; (4) she failed, in a channel of ample width to enable vessels to pass safely without crowding, to navigate so as to allow a safe margin for passing the Feltre; and (5) she failed to take any compass bearings of the approaching Feltre, a precaution which would have permitted her to observe a safer margin in passing. As for the Feltre, the findings are that she was guilty of negligent navigation contributing to and causing the collision in that, (1) she did not have a proper lookout, no lookout being stationed in the bow of the ship and no member of the watch being stationed elsewhere for the sole purpose of acting as lookout; (2) she failed to sound the danger signal and failed to stop and reverse as required- by the attendant conditions; (3) she sounded a two-blast signal and altered her course to her own left before the Luckenbach assented; (4) she violated the narrow channel rule by swinging to her own left across the Upper Cottonwood Island Range; (5) she proceeded at an immoderate rate of speed for the conditions prevailing; (6) she failed, in a channel of ample width, to allow the Luckenbach a safe margin for passing; and (7) she failed to take any compass bearing of the Luckenbach as the two vessels approached each other, a precaution which would have permitted her to observe a safer margin in passing. We see no sufficient reason for disturbing these findings. While the evidence is in sharp conflict the weight of it appears to us to require an affirmance. We agree that the narrow channel rule is applicable.1 Whether each vessel was guilty of all of the faults attributed to it we need not inquire, since it is clear that each was guilty of one or more serious navigational faults contributing to the collision. When the vessels sighted each other they were well over a mile, perhaps a mile and a half, apart. In the vicinity of the collision that portion of the channel having a depth of 19 feet or more was over 2000 feet [89] wide, and the width of the deep water channel — 30 feet or more in depth — was in the neighborhood of 1000 feet. While those on board her deny it, the Luckenbach, when first sighted by the Feltre, was on the Washington side of the channel and continued on that side at least for several minutes thereafter. On her part, the Feltre had no lookout in the bow of the vessel, and the lookout on the bridge had other duties to perform. The Feltre saw the range lights and the starboard colored light of the Luckenbach on her port bow and in a short time blew one whistle to indicate a port-to-port passing. This was answered by an assenting blast from the Luckenbach, but the answering whistle was not heard on the Feltre. Had a proper lookout been maintained it is entirely possible that the answering signal would have been heard, and the confusion thereafter arising in the mind of Pilot Turppa as to the purpose of the Luckenbach would have been to an extent obviated. As the vessels neared each other, according to Pilot Turppa and others aboard the Feltre, the Luckenbach crossed the Upper Cottonwood Range and blotted out the range lights. At that time the Feltre sounded a two-blast whistle, and simultaneously her course was directed to the left. Shortly after the two-blast whistle the vessels collided at a sharp angle. Neither vessel stopped her engines until almost the instant of collision. Prior to sounding the two-blast whistle and making the left swing, the Feltre had been guided, not by means of a compass, but by two shore lights marking the Upper Cottonwood Island Range. This is a proper course to be used by vessels going downstream, and it is not disputed that the Feltre continued on that course until the two-blast whistle was sounded.2 In the neighborhood of the collision this range is well to the right of mid-channel on the Washington side of the river. While the master was of opinion that, as a result of her left swing, the Feltre actually passed over from her right side of the channel and into the Luckenbach’s side of the river, the precise point of the collision is unclear. Divers found the Feltre’s strong backs from No. 3 hatch on the bottom of the river about 15 feet from the starboard side of the Feltre and 55 feet upstream, and anchor flukes of the Luckenbach which were broken off by a boat davit on the Feltre were also found in the same relative position. From these physical facts the Luckenbach insists that the Feltre sank practically in the same spot as that at which the collision occurred. However, the master and the trial court accepted the testimony of Pilot Turppa that the Feltre did not sink immediately, but came to rest on the bottom in about her own length, or about 450 or 500 feet. There are good reasons for believing that the estimate approximates the truth. A watchman and an oiler, who were in the engine room of the Feltre at the time of the collision, had ample time in which to go from the engine room to the deck after the crash occurred. It may well be that the wreckage did not drop into the water until the vessels became separated. In any event it is fairly clear that when the vessels collided the Luckenbach was being navigated too close to mid-channel to permit of a safe margin of passing, and this despite the obvious fact that the channel was of ample width to allow ships to pass without at all crowding each other. No other vessels were in the vicinity to complicate the situation. A chief dispute concerns the position of the Luckenbach at the time she passed between the fixed green light and the flashing red bouy near the bend of the river. The channel at this point from light to light is about 1000 feet wide. Pilot McNelly, Captain Murphy, and others on board the Luckenbach say she passed close to the red bouy, estimating the distance to be 100 to 150 feet. Pilot Turppa and another witness aboard the Feltre testified that the Luckenbach passed much closer to the green light on the Washington side than to the red light opposite. Disinterested witnesses aboard vessels coming upstream in the rear of the Luckenbach corroborate the Feltre. Captain Stayton, a Columbia pilot who was [90] navigating a vessel upstream about a mile and a half astern of the Luckenbach, testified that at the time the latter passed between the red blinker and the green light he could see that she was nearer the green light. He estimated her place in the channel as about one-third of the distance from the green light and about two-thirds from the red light. The pilot and a watchman? on a river tug bound upstream some distance below the vessel navigated by Captain Stayton, both say that the Luckenbach passed much closer to the green light than to the red blinker. If this testimony be true— and we see no persuasive reason for discarding the statements of these disinterested and competent witnesses — it places the Luckenbach well to the Washington side of the channel at the time of her passage between these lights. The course (approximately 155.5°) which she thereafter steered for a space of about 4 minutes continued to carry her obliquely toward the line of the Upper Cottonwood Range and on the wrong side of the channel. At 1:38 A. M. her compass course changed to 176° and at 1:39 it was 188.5°. At 1:40, almost at the moment of the collision her course was 180.5°. As she proceeded up the river the Luckenbach had been navigated entirely by compass. It is plain that wind, tide and current had all tended to set her toward the Washington shore; and it is to be gathered that her pilot failed for a time to realize his position and that he attempted tardily to correct it by a hard turn to the right. Witnesses on board the Feltre testified that very shortly prior to the collision the Luckenbach crossed the Upper Cottonwood Island Range; and the court found this to be true. However, it may be doubted whether the Luckenbach actually crossed the course of the Feltre in the manner testified. It seems rather more probable that when Pilot Turppa’s view of the range lights was blotted out by the Luckenbach the latter had already commenced her swing to the right; and that as she swung the vessel’s advance brought her between the Feltre and the shore lights. But whatever may be the fact, the record as a whole is persuasive that the Luckenbach was so far off her proper course as to come between the Feltre and the lights by which the latter was steering, thus leading the mystified Turppa to believe that the Luckenbach was pursuing a crossing course and that his only safety lay in turning his own vessel to the left. The Luckenbach was equipped with a Sperry gyroscope compass. Connected to the compass was an auxiliary course recorder which automatically made a record of the courses steered and the corresponding times. An interpretation of the gyro record made by the Sperry Company shows the various courses steered by the Luckenbach for each minute during the time. On the basis of this data, and on the assumption that the collision occurred where the Feltre sank in the river, a Captain Conway undertook to reconstruct the Luckenbach’s course from the time she left the Longview bridge until the collision. Conway’s chart, if accepted as accurate, tends strongly to confirm the Feltre’s side of the case. The reconstructed course is a theoretical one and no allowance was made by Conway for the influence of wind, tide and current, or for the vessel’s advance in turning. Counsel for the Luckenbach argue that, in addition to these infirmities, the evidence afforded by Conway’s chart is patently inaccurate in other respects. We will not undertake to appraise the value of the charter course, and we have given it little consideration in evaluating the testimony. The theoretical showing was admissible for what it might be worth. Whatever its worth it is corroborative of the testimony of eye witnesses and of the circumstances to which we have called attention. We do not believe that the master or the trial court gave excessive weight to this showing. Affirmed. Footnotes [1] Art. 25. “In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.” 33 U.S. O.A. § 210. [2] All witnesses who mention the subject seem to agree on this. For example, Captain Murphy of the Luckenbach testified that he was watching the Feltre prior to the two-blast signal, that she appeared to be coming right down her range as she had been going; that he observed her masthead light, range light, and red side light on' her port bow; that when she blew the two-blast signal be observed that “her red light started to swing to her left, * * * then both side lights came into view, the masthead light and range lined up, and the red light went out of sight and the green light came in full view.”