THE KAGA MARU

• Decision Date: 31 March 1927
• Docket Number: No. 7071.,7071.
• Parties: THE KAGA MARU.
• Court: U.S. District Court — Western District of Washington

18 F.2d 295 (1927)

THE KAGA MARU.

No. 7071.

District Court, W. D. Washington, N. D.

March Term, 1927.

Kerr, McCord & Ivey, of Seattle, Wash., for libelant.

Oliver C. McGilvra, of Seattle, Wash., for respondent and claimant.

NETERER, District Judge.

On September 18, 1922, at 10:42 a. m., at a point off West Point in the fairway of vessels coming into and going from the port of Seattle from and in a northerly direction, while heavy fog prevailed and visibility was limited to about 400 feet, a collision occurred between the George Curtis, a sailing vessel of 1,837 gross tons, length 240.7 feet, beam 42.2 feet, depth 25.2 feet, in tow by the steam tug San Juan, of 284 gross tons, length 118 feet, beam 24.5 feet, depth 13.5 feet, and the gas boat Lillico No. 20, of 32 tons gross, length 60.3 feet, beam 18.2 feet, depth 5.45 feet, the flotilla in charge of Capt. Schade, stationed on board the Curtis, and the Kaga Maru, a twin screw steam steel vessel, 5,860 gross tons, length on tonnage deck 445 feet, beam 49.17 feet, depth 33.52 feet, in charge of Capt. Sprague, stationed on the bridge. The Lillico ahead, with a 60-foot tow line on the bow of the Curtis, and the San Juan, made fast to the port after quarter of the Curtis, left the Ames Terminal in the Seattle harbor at 9:08 a. m. for winter quarters in Lake Union via the Government Canal. Visibility was from one-half mile to a mile. The fleet proceeded at a speed of about 5 knots an hour until 10:10 a. m., when, for the purpose of facilitating entry into the canal locks, the San Juan was changed from the port to the starboard after quarter of the Curtis, requiring from 5 to 10 minutes. While the San Juan was changing position the Lillico was proceeding at 2½ knots per hour. After the change the fleet proceeded on a course for West Point Light, N. N. E., and maintained the general course, and presumably the former speed, until 10:37, when the engines of the San Juan were stopped, and the Lillico proceeded under "slow bell" until 10:40, when the Kaga Maru approached rapidly and the engines of the San Juan were reversed, and the Lillico swung off to port to prevent the bow of the Curtis to swing to starboard by the reverse engines of the San Juan. The fog was dense. Regulation fog signals were blown by the San Juan and the Lillico and the Kaga Maru.

The Kaga Maru, with freight and passengers, left Victoria, B. C., at 4 a. m. for Seattle. Off Port Townsend fog was encountered, speed reduced, and fog signals blown. The fleet was proceeding approximately north and the Kaga Maru was moving in a southeasterly direction.

Both vessels were damaged. The lookout on the Lillico was in front of the pilot house, which is 12 feet from the stem. Schade and McGregor were looking out from the forecastle of the Curtis. A lookout was stationed forward on the Kaga Maru. The whistle of the Kaga Maru was heard by the fleet about 10 minutes prior to the collision.

The testimony is overwhelming — substantially all of the members of the crew testified, and their testimony is consistent and in harmony — that the whistles of the San Juan and the Lillico were given before the whistle of the Kaga Maru was heard by the fleet. The testimony is conclusive that the San Juan had an 8-inch steam whistle and 1½ inches of steam pipe connection, and that it did carry from 2 to 3 miles; that the Lillico's "shrill and penetrating air whistle" did carry from 1½ to 2 miles; that the whistles of both tugs were constantly blown, one long and two short blasts, alternating, producing a whistle at least each half minute from the fleet. It is incredible from the evidence that the whistles from the fleet were not heard by the lookout or officers on the Kaga Maru, as soon as the Kaga Maru whistle was heard by the fleet, or soon thereafter. It is difficult to conceive a situation where, as contended, the Kaga Maru, for some minutes prior to the collision, was proceeding at only steering speed and did not hear the whistles of the fleet, at least 6 or 8 minutes prior to the collision. If the Kaga Maru was moving at a greater speed, the whistles would not be heard so soon, because of the greater distance away and noise. Either the whistles were heard 6 or 8 minutes prior to collision, or the Kaga Maru was moving at a high speed. If moving at 7 or 8 knots, it is conceivable that the whistles were not distinguished until several minutes before the collision.

The charge is that the Kaga Maru was moving at an excessive speed. There is testimony as to a statement of the master, subsequent to the collision, that she was moving 7 or 8 knots an hour. This statement was made to disinterested parties. While there is objection to the statement of the master as to the speed as not part of the res gestæ and because the court sustained the exception to a similar statement in the libel made by the pilot, I think the objection and the motion to strike should be overruled. A statement by the master with relation to the conduct of the ship is admissible, and it is not necessary to plead it, while this does not apply to a statement by the pilot. See The Potomac, 8 Wall. 590, 19 L. Ed. 511; The Lisbonese (C. C. A.) 53 F. 293; The Wilhelm (C. C. A.) 59 F. 169; The Severn (D. C.) 113 F. 578. No collision could have occurred if the testimony of both sides is true, nor if the Kaga Maru was going at the speed contended for.

The collision occurred in the fairway. It is a place much frequented by watercraft at all times, and requires exercise of caution in the operation of vessels. I do not think, from the evidence, that the log of the Kaga Maru can enlighten the situation very much. The log was not prepared until after the vessel arrived in port, and after some conversation and understanding between some of the navigating officers. It is therefore not an independent record of the events transpiring, made by the officer charged with that duty, at the time, as they occurred, and does not outweigh the testimony of eyewitnesses and disinterested parties.

The San Juan was the controlling power of the Curtis. When the Kaga Maru became visible and the San Juan engines reversed, the Lillico swung off to port in an attempt to swing the bow of the Curtis to port to overcome the reverse motion of the San Juan, tending to swing the bow of the Curtis to starboard, and the libelant contends that the hard aport helm swung the Kaga across and into the bow of the Curtis. The commissioner found "that as a matter of mechanics the rudder of the vessel is the pivot on which she swings." In this the commissioner erred. Knight, on Modern Seamanship (7th Ed.) at p. 330, says:

"As regards the track of the ship in turning under these conditions, we have seen that the curve of a twin screw ship, with both screws going ahead and helm hard over, does not differ materially from that of a single screw ship; but it would be natural to suppose that the case must be greatly changed when the inner screw is reversed to help the helm. There is, in fact, a considerable difference, but it is far less than is commonly supposed; at least in the first brief interval after the turn begins — in the interval, that is to say, during which the emergency for which the action is taken must work itself out. The complete turning circles will be widely different, but the track of the vessel for some time will be but little modified. The stern will, as in all other cases, go off to leeward, and the ship will gain nothing to the side toward which her head is thrown, until she has covered from 2 to 3 lengths along her old track. She will, however, gradually lose her speed, and will throw her head around rather more sharply, with the result that, by the time she does begin to move away from her old line of advance, she will do so at a considerably greater angle than if her helm were merely put over without reversing the inner screw."

On page 305 of the same book it is said:

"It will be noted that, the helm being put hard over as rapidly as possible (position A), the ship begins to turn at once, and turns with increasing rapidity up to about the point B, from which point onward she turns uniformly in a path which is practically a circle. As she swings around the circle, her bow points steadily inward while her stern sweeps out a circle considerably larger than that traced by her bow. She does not — that is to say — follow her own keel line, but presents her bow and side to the water through which she moves. To this statement, however, some qualification must be made, since there is one point of the ship which does, at every part of the circle, follow the line along which the keel is pointing at that part. This is called the `pivoting point.' It is the point about which the ship turns, as viewed by an observer on board. Its position depends upon the speed and the maneuvering power of the ship. When these are exceptionally high, it is well up toward the stem, and it may even be outside and ahead of the ship, on the keel line prolonged."

And then on page 307 says:

"In our average ship, we may take it about one-quarter the length of the ship from the stem."

The findings of fact of the commissioner must be...