Graves v. Lake Michigan Car Ferry Transp. Co.

SEAMAN, Circuit Judge

(after stating the facts as above). The general locality of the collision in suit was at the entrance between Sturgeon Bay and Green Bay, having about two miles of water, in most part navigable, between the shores; and the appellant’s schooner barge Wilson was at anchor off Sherwood Point, on the southerly shore of such entrance, within or near the usual (and charted) course of vessels bound to or from the ports of Green Bay or Peshtig'O. Sturgeon Bay is a fine expanse of water, both for navigation and for anchorage grounds, extending from the Sturgeon Bay Canal, westerly and northwesterly to Green Bay, with an expansion northeasterly forming good shelter and anchorage, and another expansion southwesterly, called Sawyer Bay, also used for anchorage. The Wilson had discharged cargo at Sawyer, and on the day before the collision had been towed out of Sawyer Bay by a fishing tug, for anchorage to await the arrival of her towing steamer, Mohican. Oil rounding Sawyer’s Point, in Sturgeon Bay, her consort schooner barge Mingo, owned by the appellant, was found at anchor, and the Wilson passed a line to the Mingo, making fast astern, instead of putting out her anchor. Tlieir distance from the shore and actual location in reference to Sherwood Point are in dispute under the testimony. As stated on behalf of appellee, the bearings of the Wilson were taken immediately after the collision, as one mile from Sherwood .Point light S. S. E. by K. Y> E. and “a quarter of a mile right due east” of Sawyer’s Point; while the witnesses for the appellant place their anchorage about. hal f a mile northeast of the light, with about half a mile of navigable water between the vessels and the shore. It is undisputed, however, that the wind was blowing fresh and puffy from the northwest, lining the vessels, accordingly, about parallel with the shore line; that the Mingo had out 30 fathoms of anchor chain and was 200 feet in length; that the line from the Wilson measured 150 feet, and her length was 174 feet; that the “Wilson swung slightly” both ways; and that both white (anchor) lights on the Wilson were placed “about 20 feet above the deck.” Witnesses for the appellant testify that vessels passed them on both sides while they were thus anchored.

The night of the collision was dark and squally. It had been raining, but the testimony is conflicting whether the rain continued up to the time the respective lights were discovered. The steamer Fisher, towing Car Ferry No. 1, came up from the canal; her course being westerly and northwester^ and bound for Peshtigo. When the lights of the anchored vessels were sighted, they were taken to be “a steamboat going ahead” of them. And the master of the Fisher testifies that he only made out the colored lights when “his electric light showed on this barge” and that “she was right on our starboard bow”; that he put his “helm hard astarboard” and swung “toward the beach, Sherwood Point”; that the Wilson was swinging shoreward, and caught the towline between the Fisher and Car Ferry, so that the Car Ferry struck' the Wilson astern, inflicting and receiving the injuries complained of.

The decree appealed from condemns the Wilson as at fault and alone chargeable for the collision damages. Error is assigned, upon both rulings — that the Wilson was at fault, and that the Fisher was not negligent and not answerable for the damages. So, the first question to be solved is whether fault on the part of the Wilson was rightly found by the district judge under the evidence.

In admiralty the rule is settled: That the moving vessel must keep away from a vessel properly anchored and lighted, and collision in such-cases raises a presumption of fault against the vessel in motion, placing-upon her the burden of exonerating herself from blame for the collision. The Virginia Ehrman and The Agnese, 97 U. S. 309, 315, 24 L. Ed. 890; The Oregon, 158 U. S. 186, 192, 15 Sup. Ct. 804, 39 L. Ed. 943, and cases cited.. The authorities are numerous, however, that the general law of the sea becomes applicable to such collisions, when the anchored vessel is improperly moored in the fairway, or otherwise appears at fault (Ross v. Merch. & Miners’ Transp. Co., 104 Fed. 302, 303, 43 C. C. A. 538; City of Birmingham, 138 Fed. 555, 559, 71 C. C. A. 115; The Scioto, Fed. Cas. No. 12,508, 2 Ware, 360, and notes); and we believe it to be unquestionable that evidence of negligence on the part of the anchored vessel, either as sole or contributory cause of the collision, establishes a case within the general rules of admiralty as to liability for the damages.

While the evidence is conclusive that the Wilson was moored within the usual course of navigation to and from the upper Green Bay ports —whether in one or the other place, in dispute under the testimony— and that no emergency of weather or other circumstances made such location needful, it is equally well established that there was abundant navigable water for clearance on her port hand. Unless the circumstances in evidence, therefore, were liable to mislead the approaching steamer as to the fact or method of anchorage, it may be conceded that the AA'ilson should not be chargeable with fault. Nevertheless, it is obvious that the master and lookout of the steamer Fisher were deceived by tlie location or the lights (or both) and misunderstood both fact and method of anchorage. The testimony is conflicting whether anchorage off Sherwood Point was or was not customary, or deemed safe or unsafe, within or without the usual course of navigation; but the evidence is convincing, if not undisputed, that the other side of Sturgeon Bay affords both abundant and better anchorage ground for vessels; and the master of the Mingo, who fixed the anchorage place, had not visited Sturgeon Bay for 10 years prior to his present trip. We believe both masters were mindful of a convenient place to be taken in tow, and not of better anchorage ground to leave clearance for navigation, and that the testimony is sufficient to support tlie finding that the AA'ilson -was at fault, in the following particulars: Their anchorage in the fairway, for days and nights, if not negligence per se, was an obstruction without reasonable cause — and possible menace in darkness or thick weather — to free passage of vessels on a much frequented course. While the testimony is conflicting (as above mentioned) whether it was reasonable and customary for vessels to lie at anchor off Sherwood Point, it is far from satisfactory that it was either reasonable or usual to thus anchor in the course, or that navigators were chargeable with notice that such anchorage was to be expected. Instead of putting out an anchor, the Wilson made fast astern of the Mingo, with 150 feet of line, so that she was constantly swinging under tlie variable wind; and, if such method was usual (as stated by witnesses) in free anchorage ground, no sanction appears tor it under the circumstances. We believe it was a material contributory cause of the collision. The anchor lights of the Mingo, as the master testifies, were placed alike 20 feet above the deck, and not in conformity with rule 9 of the act regulating lake navigation (Act Feb. 8. 1895, c. 64, 28 Stat. 615), which requires the stern light to be “not less than 15 feet lower than the forward light” (3 U. 85. Comp. St. 1901, p. 2888) ; and this departure from the rule tended, as we believe, to confuse the lookout of the approaching steamer — a failure chargeable as well to the consort Wilson.

We are of opinion, however, that fault for the collision is attributable to the speed and navigation of the steam tug Fisher and her tow in approaching the injured vessel. Although the appellee’s witnesses state her speed at various rates, from 7% to 5 miles an hour, it is stated in the answer to the libel at 8 miles an hour, and no actual moderation of speed appears at any stage of the approach. This we believe to be unreasonable under the conceded circumstances. It is conceded that the lights on the anchored barges were observed from the Fisher when about a mile away, although they were taken for the lights of a moving steamer, outward bound. The night was dark, and rain obscured the lights, as testified on the part of the Fisher; and not only was her speed kept up, but the lookout was called by the wheels-man to take the wheel, immediately after reporting the lights ahead, and was not serving as lookout thereafter, leaving {he master alone to observe the lights and course. Under the testimony, we are satisfied that a vigilant lookout should have discovered the colored lights and position of the Wilson and Mingo when a quarter of a mile away, to say the least; and the master of the Fisher admits that he “would have had no trouble in keeping away from her” had he “seen these red lights” at that distance. He changed course only when 150 feet away, having then (as he testifies) first discovered the red lights and position of the Wilson on his starboard bow. He immediately ordered his helm “hard astarboard,” without giving warning or signal to his tow, and thus cleared the Wilson, although she was then swinging in the same direction according to the testimony. The master of the Car Ferry was left to follow his tug, as best he could; but the swing of the Wilson caught the towline, and the stem of the Car Ferry struck her astern, causing the injuries in suit, both to the Wilson and the Car Ferry.

We believe negligence thus appears in the navigation of the Fisher, and that the decree is erroneous, in exonerating her from liability for such injuries and allowing full recovery against the appellant.

The decree of the District Court, therefore, is reversed, with direction tó enter a decree for division of damages as found, and of costs as well, to be borne by the parties respectively, in conformity with the provisions of admiralty for like cases of mutual fault; and it is ordered that the appellant recover the costs of this appeal.