Pereue v. Hopkins S. S. Co.

DAY, Circuit Judge (after stating the facts as above). The theory upon which the owners of the Marshall seek to hold the Centurion liable for the collision and its resulting damage is that the Marshall, observing all the requirements of good seamanship on her part, was drawn from her course by reason of the suction of the Centurion passing at a high rate of speed so near to the Marshall as to cause the latter to be strongly deflected from her course, and, by a sudden sheer, which the Marshall could neither prevent nor check, caused to collide with the Centurion. The nature and power of the somewhat undefined force known as “suction” is not very well settled among navigators, nor its limitations defined with .exactness by the courts. That such a force exists is well established, and to it have been ascribed marine disasters in a number of instances. In other cases it has been held insufficient to warrant a court in attributing to it the power required to seriously deflect vessels from their course. The authorities seem agreed that much depends upon the character of the place of meeting. This force is most potent in narrow channels and shallow waters. It is much more likely to produce injury to vessels passing in the same direction than to those meeting on opposite courses. A large vessel may affect a small one by this means, when those of equal dimensions would pass in safety. In the case of The City of Cleveland (D. C.) 56 Fed. 729, the nature and power of suction were under consideration by Mr. Justice Brown, then district judge. The case was heard before Judge Brown and four nautical assessors. It was claimed that the City of Cleveland, in proceeding at a high rate of speed and passing too near to the Keweenaw, had created a suction which drew the Keweenaw into the tow of the Cleveland. Judge Brown, though at first in665 dined to dispose of the case as one of accident occurring through inscrutable fault, joined with the assessors in holding that the accident was the fault of the Keweenaw. There was testimony tending to show that the man at the wheel of the latter vessel turned his wheel the wrong way. The wheel chains of the Keweenaw were not crossed, but straight, and the confusion in the wheelman’s testimony led the court to resolve the doubt in favor of the Cleveland; Judge Brown saying that, if the wheel had been promptly put to starboard, there would have been no danger from the suction of these passing vessels. He says: “The testimony given yesterday, and the experience of my Brethren here, lead me to believe that the suction of two vessels passing each other is not ■very powerful. It is too short to have any particular effect upon the action of the two vessels, unless one is much larger than the other, whereas, if they are going in the same direction, and passing near each other, it has a very powerful effect to deflect the weaker vessel from her course. If one of these vessels had been very large, and the other comparatively small, it is possible the suction would have had some effect.” In the case of The Alexander Folsom, 3 C. C. A. 174, 52 Fed. 412, Judge Jackson (afterwards Mr. Justice Jackson), delivering the opinion of the court, after citing the observations of Judge Brown in the case of The City of Cleveland, says: “The theory of suction in meeting and passing vessels is that the current which rushes in astern to All the displacement of water caused by the larger or more rapidly moving vessel has a tendency to draw the other out of her course when her how comes within its influence. When it is considered that such current has its direction in the lino of the moving vessel, with its greatest force and strength directly astern, its lateral bearing as a drawing and diverting influence cannot, as suggested by Judge Brown, be very powerful. Whatever may he its force, it is clear, from the testimony and from reason, that the smaller vessel is most liable to be affected by it. A relatively greater speed on the part of the smaller vessel may counteract such influence, and may even deflect to some extent the larger vessel, if her speed is sufficiently in excess.” The testimony in this ease tends to show that witnesses residing along the shore and near the place of collision had observed that the Centurion, in passing, “splashed” waves upon the shore, and that a small boat had been broken by the- effect of the waves, and small docks and boat houses carried awa,v. Particularly was this the effect of the Centurion when running fast and near to the shore. The captain of the Marshall attributes the' cause of the collision, from want of other cause, to the suction of the Centurion. Instances are given where the Centurion is shown to have washed waves upon the bank five or six feet. It seems that the Marshall was drawn from her moorings by a passing steamer at Marine City. The captain of the Centurion says the Centurion displaces considerable -water along the bank. “As she goes ahead, she naturally throws a good deal of water up ahead of her. She will throw that on the bank ahead of her a little ways; and then as you get back along amidships she will pull it down, and as the stern comes along, and the water goes out from under her stern, it will pull it back again, and comes up to its natural stage, or probably a little further than its natural level.” Other testimony is given to show the ef-■ect of suction under various circumstances. We do not find in [666] the record any instance of vessels passing in the relation which the Marshall and Centurion are shown to have been just prior to the collision where accident has resulted from force of suction. As the facts show, the channel at this point was deep and wide, and we are not able to say from the proof that suction alone could have produced this collision. Again, the liability of the Centurion depends upon the answer to the question whether she used all the care and diligence which were reasonably incumbent upon her to avoid injury. The Drew (D. 0.) 22 Fed. 852. Conceding that the suction of the Centurion had much to do with the drawing'of the Marshall from her course, the testimony does not satisfy us that, under the circumstances, this force might be reasonably apprehended on the part of the navigators of the Centurion to thus seriously and suddenly affect the course of the Marshall so as to produce the collision in the manner shown in this case. The Centurion, it is true, might have kept a course further out into the river towards the Canadian shore, but she was passing in safety when the Marshall suddenly sheered from her course. From the testimony we cannot say that this force was the sole cause of the collision, or that its action in the manner shown could have been anticipated by the Centurion in the exercise of the care required under the circumstances. When the passing vessel has no reason to apprehend danger, she is held not to be responsible for such injuries as arise from ordinary navigation. Id. 855. It is further charged against the Centurion that she was negligently navigated wdien the sheer came,- in porting instead of star-boarding her wheel. This maneuver was made in extremis, when the peril was imminent, and almost immediately the wheel was star-boarded so as to throw the stern of the Centurion away from the Marshall. We do not think this action culpable on the part -of the Centurion. Was the Marshall in fault? There is not in this ease, as was the fact in the case of'The City of Cleveland, supra, any direct proof of mismanagement on the part of the wheelsman. The testimony of her officers and crew is clear and distinct that the wheel was properly managed. It is quite likely, from the testimony, that the Marshall could not have been deflected by her wheel alone to the change of course which resulted in the collision. It is possible that her wheel was improperly managed, notwithstanding the contrary testimony, so as to assist in the sheer, or fail to avoid the effect of suction, as might have been done with proper management. But this case, like others, must be decided upon testimony, and not upon conjecture. As we have said, there is no testimony, except what might be inferred from circumstances, tending to show that the Marshall’s wheel was improperly handled. There is nothing in the case which, in our judgment, can overcome the positive testimony of the navigators of the Marshall. As to her course, she was well over on the American shore, and so near that the master deemed it imprudent to go closer. The case seems to be, if not strictly an accident occurring through inscrutable fault, one wherein there is a failure of proof to establish the negligence charged by one party against the other. • This was the conclusion reached by the learned [667] judge who beard tlie case in the district court. Finding no error, the decree is affirmed; each party to pay costs by them made, respectively.