Great Lakes S. S. Co. v. Pittsburgh S. S. Co.

DENISON, Circuit Judge (after stating the facts as above). When we fix the point where the collision occurred, it goes far to determine the' other matters in conflict. This primary fact is ascertainable with less difficulty than- usual. The location of the Ellwood, as she lay upon the bottom after the collision, was fixed by survey, and is practically undisputed. Disinterested observers from one of the-dredges agree with’ the EUwood’s crew that she did not go more than a length, and perhaps not more than -half a length, after the collision before the sinking of only one or two feet which was necessary to make her rest on the bottom. It is also fairly sure that, at the moment of the collision, her stern was swinging to port, answering an endeavor to make the inevitable blow more glancing, and that the blow itself, received on the starboard quarter, would have accelerated this swing. It is therefore not a matter of serious doubt that her heading had been considerably more to the easterly than it was as she lay sunk, and that the point of collision was just about where it is [865] indicated on the sketch, and so that there was a distance of not less than 1,000 feet between that point and the line of dredges. Accepting and based upon this theory of the place of collision, we proceed to coxivsider the conduct of the respective boats. We agree with the court below that the Brower was in fault. When her captain exercised his right of choice and determined tO' swing into the channel around one of the dredges as far down as the point he selected, he assumed the burden of doing so with all the care required by the fact that another steamer was coming down, and for all he knew, might be bound south or southwest, and might be desiring ti> go just where the Ellwood did go. That the collision was unnecessary, if the Brower had been careful in this maneuver, is highly probable, if not clear. Her captain says that he began starboard-ing 2,000 feet before passing the dredges, so as to enter the channel at an angle as small as possible, and constantly continued star-boarding and swinging to port until the collision. This is exactly what he should have done, if he was careful, but the place of the collision demonstrates it is what he did not do. If he had thus managed his boat, passing close to dredge No. 9, and perhaps checking, it is difficult to see how there was any occasion for him to pass east of tlie center of the channel, say 300 feet from the dredge; but the place of the collision was 700 feet further east. The same consideration demonstrates that he could not have materially changed his heading from Toledo until after he entered into the channel between the dredges; if he had, he would necessarily have gone well astern of the Ellwood, if he had crossed her course at all. He knew that he must make a considerable turn, and that his own boat would, and the other boat might, respond to the helm much more slowly than if in deep water. The reasonably clear conclusion is that he was not navigating with close attention to the danger that might be imminent, but was taking it for granted that the Ellwood was much further away than her real position, or would yield much more than any obligation required. How the conduct of the Ellwood should be characterized is a question of more difficulty. It is forcefully argued that, as the Ellwood knew that the Brower would come up somewhere through these waters, and as 1he Ellwood’s final course was to be easterly, and as she might have turned off in that direction anywhere below the red gas buoy, and as, if she had kept only a little further away from the dredges, the collision would not have occurred, the result is, at least in part, chargeable to her. Particular reliance is placed on the decision of this court in Lake Erie Co. v. Gilchrist Co., 142 Fed. 89, 73 C. C. A. 313, where it was said that the customary course at this point for vessels bound down the lake, was to turn to the east between the gas buoy and the light; and hence it is urged that the Ellwood was away south of her proper place. If the record in this case justified the same conclusion of. fact reached in the Lake Erie-Gilchrist Case as to the customary course of down-bound vessels, there would be much strength in this position; but that case involved the sailing course customary at a period several years before the time here involved, [866] and upon this record, it cannot be doubted that the Ellwood was following a common and natural course for vessels of her draft bound down the lake. Her captain so testified in terms, it can hardly be said that he is contradicted, and his general conclusion is supported by the’ specific fact that while the Ellwood was on the bottom, more v of such vessels passed her on the south than on the north. We must assume,- therefore, that she was following a rightful course. It does not follow that she was entitled to navigate without regard to the approach of the Brower; she was bound to know that the Brower might enter this channel and make the turn, and she was bound to leave, not merely sufficient room, but ample room, for that purpose. This we think she did. If the space left for the Brower, in which to make the turn, had been, for example, only 500 feet, it might well be said that, while this was- apparently space-enough, yet it might not prove so, and that the Ellwood, being able to yield further, could not have been wholly exonerated; but a lack of due care on the part of the Ellwood must rest upon her reasonable anticipations of what the Brower might do, and it cannot be said that there was any duty to anticipate that the Brower would require 1,000 feet of channel in which to make a swing of four points, two points of which ought to have been made before entering the channel at all. In the Lake Erie-Gilchrist Case, each of the meeting boats had to make the turn between the Detroit river course and the course down the lake, and it was held that the boat which took the customary way and kept her own side of the joint course had a right to assume that the other boat would make the proper turn at the proper point, and would not continue on across the joint course and enter the waters which were, in a sense, appropriated to the first boat. The opinion and the authorities there cited fully and sufficiently cover the questions that here arise, and apply to the fault of the Brower in not turning up into the channel when and as she should have done, and to the right of the Ellwood to believe that the Brower would make this turn, and would not continue on into the course of the Ellwood, and lead to the conclusion that, in relying upon this belief, the Ellwood did not thereby, in blameful degree, contribute to the collision. It remains only to consider whether the Ellwood should, before it was too late, have observed that the Brower was not meeting this anticipation, but was keeping a course likely to be dangerous, and so whether the Ellwood should have checked or blown an alarm. This query is emphasized by the fact that after the meeting signals were exchanged, but before the Brower entered between the dredges, the lookout of the Ellwood had been recalled from his position at the bow and sent about' some other work. We think it should be assumed that the absence of the lookout would be a condemnatory fault, unless it satisfactorily and clearly appears that his presence would have made no difference (The Ariadne, 13 Wall. 475, 20 L. Ed. 542; The Roby [C. C. A. 6] 111 Fed. 601, 612, 49 C. C. A. 481); but we are unable to see any reasonable ground for thinking that the absence of 4he lookout could have been material. The Brower had already been 'observed and a- meeting agreement had been made, the night was clear, [867] the Brower’s lights were in plain sight, there was np obstruction of any kind, and there was nothing to distract the captain’s attention in any other direction. It is obvious from the sketch that, as the Brower entered the channel and began to turn, both her lights would open to the Ellwood, if they were not already open; that this condition would be modified by the forward progress of both boats towards their course intersection; and that the difference in the amount which these two lights would open to the observer on the Ellwood as between a careful and safe turning into the channel and the kind of a turn which actually was made could hardly, for some time, be sufficient, even to an attentive and skilled observer, to show that the Brower was turning so slowly as to be creating danger; nor can we think, when we remember the Ellwood’s rightful anticipations as to what the Brower would do, that probable danger should have appeared to the Ellwood’s captain, or would have appeared to her lookout, before the time when both boats did appreciate the danger and make the efforts to escape which were then bound to be ineffectual. The decree below is affirmed.