Jakobsen v. Springer

PARDEE, Circuit Judge (after stating the facts). Prima facie, a collision between an ascending and a descending steamer, in a straight stretch of the Mississippi river, where it is half a mile wide, can only result from gross mismanagement in the handling of both steamers, unless there is intended and carried out a deliberate purpose on the part of the one to run the other down. In case each vessel is anywhere near its proper place, they are necessarily too far apart to make a collision possible. The case in hand is no exception to the rule. It is admitted by the pleadings and shown by tbe evidence that at the time the Dumois and the Argo first came in sight of each other the Dumois was ascending the river in her proper place, near the left bank. That the Argo was at the same time descending the river near the same hank, and out of her proper place, which was the middle of the river, is clea.r, by the preponderance of the evidence, supported as it is by conclusions that necessarily follow from admitted facts. Lombard, the pilot of the Dumois, who was keeping a lookout on the bridge, and Sibitsen, the mate, who was with him, also, on watch, each testify that when he first distinguished the Argo he saw her red, green, and white lights dead ahead, — if anything, a little inside; that is, a little nearer the left bank than the Dumois. Lar [950] sen, able seaman, who was on watch, and afterwards at the wheel of the Dumois, says that the Dumois was about a half a ship’s length from the left bank when he saw the lights of the Argo to the starboard of the Dumois, and this was after some signals had been exchanged. Nicholas Theodore, pilot on the tug Day Dream, which, with its tow, was about to land at the lugger landing on the left bank, just above where the collision took place, says that the Argo passed so close to him that he could see her color; that 'she was about 50 feet from him, and he was afraid she would run into him. E. B. Green, cook on board the Argo, says that when he heard the first whistle of the Argo he went up on the steps and looked out, and saw all the three lights of the Dumois. Capt. Brown, master and pilot of the Argo, and who was the only man on watch at the time, although Diseamus, seaman, stood by him,- admits passing the tug Day Dream and giving her a signal of passage, and immediately after admits first seeing the Dumois, but only the white and red lights of that vessel, which he says were on his port bow. Diseamus saw only the lights that Capt. Brown saw. One Nicholas Dedes, pilot of the tug Day Dream, says that they were about making a landing on the east bank of the river when the Argo passed, blowing one whistle. He does not undertake to say where the Argo was when she first signaled the Dumois. One Capt. Jurisch, on one of the luggers in tow by the Day Dream, testifies to the signal between the Argo and the Day Dream, but gives no satisfactory evidence as to where the Argo was at the time she first came in sight of the Dumois. From this evidence, and from legitimate conclusions from admitted facts, it is clear that at the time the Argo first sighted the Dumois the Argo was out of her proper course, unnecessarily, in the path of ascending vessels. This fact being established, it is very easy to reconcile the other evidence, conflicting though it may be, as to the lights, course, and manage- ’ ment of the respective ships, resulting in the collision. The master of the Argo admits that after sighting the Dumois, and before changing his course, he waited for the Dumois to give the passing signal, and that, the Dumois not giving the passing signal, he himself gave it,— one whistle, meaning to pass to the right, — and thereupon, or very soon thereafter, put his helm to port. Notwithstanding the cross signal of two whistles then given by the Dumois, and the apparent direct change of course of the Dumois in accordance with its signal, and the continuance of the Dumois upon its changed course, the master of the Argo, believing in the speed of his vessel, and that he could run around and pass to the right of the Dumois in any event, kept his course until he struck the Dumois and sunk his vessel. We quote from his deposition: “Q. Well, how far away was tlie boat when you first saw her, before you gave the signal? A. She was about three-quarters of a mile away, I guess; about three-quarters of a mile, the way I was going. I understand it now; yes, sir; I saw her some time before I blew the first whistle. Q. You understand, of course, which vessel shorfid blow first? A. It was her place to blow first. That is what I was waiting for. Q. And when she didn’t blow— A. I blew. Q. You blew because she didn’t blow for you first? A. Exactly. * * * Q. Did you blow for the Dumois after you passed abreast of the luggers at the canal? A. Yes, sir; I blew, but I waited some time for him to [951] blow, and he didn’t, blow. Then I blew one whistle as he was on the east shore. Q. After you passed the Day Dream? A. Yes, sir. Q. How far were you past the Day Dream and her luggers when you blew the whistle first? A. I suppose 1 was not more than about — very little distance — about five or sis’ seconds, seven or eight seconds. * * Q. Why didn’t you blow the signals of alarm when you first discovered 1he lights of the Dumois? A. Because I had no business blowing the alarm then, because I was on my right course; and I Mew one whistle to him, and lie answered by two, crossing my signal, which 1 suppose any man would have altered his signals and slopped his ship, coming that close to each oilier. Q. You didn’t sound that one blast of Hie whistle until you had passed the Day Dream, when you were less than half a mile from the Dumois? A. No, sir. Q. When did you sound it? A. I sounded the whistle half a mile from the Dumois; that Is, the first whistle. I was going very fast, captain. Q. You understand the rule to be, then, that, when an ascending- vessel gives the signal for sides, that the descending vessel may give her signal for sides? A. Yes, sir; 1 was waiting for him to do it, and I thought I would have to do it; couldn’t wait any longer; and so I blew one whistle, and he answered mo back two whistles, crossing my signal. Then I blew one immediately afterwards, — one whistle, — then immediately afterwards, and ported my helm quick, when he blew liis two whistles. Instead of blowing his two whistles, he ought to have stopped according to the rules, and backed his ship. X ported my helm right away, to get out of the road, immediately after the two whistles were blown by him. Q. What interval of time elapsed between your first and second whistle? A. I suplióse it was not.very long. Ijet us see; about — not more lhan about 15 seconds. Q. Then you put your helm hard a-port? A. I put my wheel hard a-port, and, the velocity 1 was going, I made sure X would go clear of him. That any sane man would go across my bow, I thought it was too much altogether. I have been on this river XO years, and I never knew anybody to do like that. Q. Why didn’t you stop and back after you saw the Dumois crossing your signal? A. It was too late then. I thought X could clear her. Q. It was not too late to port your helm? A. I ported my helm after I blew llie second whistle, ifiie never blew any more whistles. Q. Why didn’t you stop after you blew the second whistle? A. Because my judgment said I could clear her, with the velocity I was going. Q. That is the reason you never attempted to reverse, — check your speed? A. No, sir; I made sure I would clear her. That is the reason. You could see yourself when I struck her eight feet from the stem. If that ship was backing when they rung (.lie alarm, I would have cleared her two or three hundred feet.” The fault of the Argo is too clear to require further discussion, and it is hardly necessary to add that at the time she was short of her regulation crew. The substitution of passengers to work in case of necessity may satisfy inspection officers, but ought not to deceive the court. She was not constructed so that her speed could he checked when required by the rules of navigation, or that she could be backed within any reasonable time after sighting danger; and, withal, she was running recklessly in the nighttime, with substantially only one man on watch, in the path of ascending vessels, trusting to her speed and management to keep out of trouble. The fault of the Dumois is not so apparent. She was properly officered, manned, and equipped; had a regular licensed pilot on board; carried the regulation lights; was in a place where she had a right to be at the time the Argo was sighted. Ahead of her, almost within hailing or signaling distance, the tug Day Dream was either landing, or had just landed, showing all the lights of such a tow. In addition, coming towards her, showing three lights at an even height (the red, green, and white lights), was the Argo. From the evidence, the Argo signaled first to pass to the right, and ported her helm [952] accordingly. The Dumois, either not hearing this signal, or not willing to permit the Argo to pass to the right, crossed the Argo’s signal, and gave two whistles to pass to the left, and apparently immediately put her helm to starboard, changing the course of the vessel from straight up the river along the left bank to across the river, or towards the right bank. Notwithstanding the failure of the Argo to answer with two whistles, the Dumois kept her course, and only stopped and reversed her engines when the collision was apparently inevitable. Eules 18 and 19 (section 4233, Rev. St.) are as follows: “Kule 18. If two vessels under steam are meeting end on, or nearly end on, so as to involve risk of collision, tbe helms of both shall be put to port, so that each may pass on the port side of the other. Rule 19. If two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way of the other.” According to these rules, the Dumois, instead of insisting on keeping her course, should have ported her helm, and she would have avoided the collision. As soon as the Argo ported her helm, and showed only her red light to the Dumois, and the Dumois had star-boarded her helm, showing only the green light to the Argo, the vessels were in the fifth position foreseen and provided for by the rules of the supervising inspectors, to wit: “This is a situation requiring great caution; the red light of A. in view to B. and the green light of B. in view to A. will inform both that they are approaching each other in an oblique direction. B. should put his helm to port and pass astern of A., while A. should continue on his course or port his helm, if necessary to avoid collision, each .having previously given one blast of the steam whistle, as required by the rules when passing to the right.” And tbe Dumois should have put her helm to port, to pass astern of tbe Argo. As to tbe value of tbe Argo, we have examined all tbe evidence. She bad bad a varied and interesting career, and at different times unquestionably bad different values. Tbe district court allowed $11,-000 as her value, probably based upon tbe testimony of. Col. Miller, who testifies that be bad bad some claim against the owner, and some correspondence with him as to tbe value of tbe Argo. In November or December, 1896, tbe owner expressed himself as willing to sell tbe Argo for $12,000, but claimed that it would be a tremendous sacrifice, and that whoever bought her at that price would be getting a bargain. He was anxious to sell, and would allow one or two thousand dollars commission. Tbe owner himself testifies that the day previous to tbe collision be bad sold a half interest in her for $7,500, and that tbe sale was not concluded only because tbe Argo was sunk; and this [953] <■', Menee is corroborated by one Bagley, the intending purchaser. There seems to be no dispute as to this fact in regard to the value of the Argo, and giving effect to the same, and further considering Hie general average of the values of the Argo fixed by the witnesses, wo find that the value of the Argo at the time of the collision was n! 5,000. The assignments of error not relating to the fault of the vessels nor to the value of the Argo are not well taken. Hester and Blesine were passengers aboard the Argo. The claim that they were part of the crew of the Argo is not sustained by the evidence. Finding as we do both, the Dumois and Argo in fault, the decree of the district court must be reversed, and a new decree, adjusting the damages, entered. The crew of the Argo who lost effects by tbe collision are entitled to recover only half their damages from the Dumois, and, as the Argo was in fault, nothing from their own ship. ‘The Queen, 40 Fed. 694; The City of Norwalk* 55 Fed. 102. Hester and Blesine being passengers on board tbe Argo, and not in fault, their representatives are entitled to recover full damages from the Dumois; but the Dumois is entitled to recoup half the damages so paid, and deduct the same from the amount awarded to the owners of the Argo. The Hercules, 20 Fed. 205; The North Star, 106 U. S. 17, 1 Sup. Ct. 41. The Argo, being a total loss, can recover one-half her value from the Dumois, less one-half the damages suffered by the Dumois, shown by the record to be 8185. Decreed accordi ugly.