Western Transit Co. v. Davidson S.S. Co.
| Decision Date | 13 March 1914 |
| Docket Number | 2416. |
| Citation | 212 F. 696 |
| Parties | WESTERN TRANSIT CO. v. DAVIDSON S.S. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. B Richards and Harvey L. Brown, both of Buffalo, N.Y. (Brown Ely & Richards, of Buffalo, N.Y., of counsel), for appellant.
H. D Goulder and F. S. Masten, both of Cleveland, Ohio, for appellee.
Before KNAPPEN and DENISON, Circuit Judges, and COCHRAN, District judge.
The steamer Troy, belonging to the Western Transit Company, was libeled by the Davidson Steamship Company on account of damages suffered by its barge Chieftain, while being towed by its steamer Orinoco. A collision occurred in the Portage river. The Troy was bound for Duluth, and shortly after entering from Lake Superior into the lower end of the river channel, and while below 'cut No. 1,' gave a port to port meeting signal, and the Orinoco, then coming down the river at a point about a half mile above, agreed. place, and the position of the boats in collision, according to the theories of the respective parties, appear by the following plats, based upon the Lake Survey charts. The channel in cut No. 1 was about 200 feet wide, somewhat wider in the open water next above, and narrowed to 120 feet in the reach from which the Chieftain was emerging.
(Image Omitted) It is claimed by the Troy that she was kept headed to starboard as far as practicable, and that the Chieftain swung to port and came across the bows of the Troy, away over upon the Troy's side of the channel, and that the collision happened just as the Troy was swinging to starboard, while clearing cut No. 1. It is the Chieftain's claim that, upon a 200-foot towline, she was following the Orinoco and was keeping as close as possible to the bank (which here was a revetment) on her starboard; that passing the end of this revetment she began to make the turn to starboard, but that the Troy came over into the Chieftain's side of the channel across the Chieftain's course, and then struck the latter on her starboard bow, a few feet aft of the anchor hawse pipe.
At the outset, we think it necessary to determine the conflicting question of fact presented by these two theories. It would be useless to discuss all the evidence, but, upon the whole, we are clearly satisfied that the theory of the Troy is correct; and that the collision occurred substantially at the point and in the manner shown by sketch No. 1. If we examine the Chieftain's claim that she was at the point shown on sketch No. 2, and was successfully making her turn to the starboard, it is not impossible (as at first glance it appears to be) that the 400-foot Troy could have passed through the space between the Orinoco and the Chieftain, and swung around and struck the latter from the other side, inflicting the kind of a blow given and at the spot where received-- but though not impossible, this is highly improbable. It is to be noted also that shortly before the collision the Chieftain's captain had dropped his starboard anchor, thus indicating that his vessel was swinging to port beyond the control of her rudder, or at least that the rudder was insufficient to turn the bow to starboard as desired; and by this fact the improbability of the Chieftain's claim is increased. Then we have the final, controlling circumstance, by testimony from the Chieftain's crew, that just before the boats came together they saw a red spar under their port bow. There seems no reason to doubt that this must have been 'Red Spar No. 2,' because 'Red Spar No. 2A,' though it was shown by the charts which were before the witnesses at the time they were testifying, was in fact not placed until the year after the collision. Any possibility of reconciling the Chieftain's testimony about the red spar with its present theory that the collision occurred at the point shown by its sketch depends upon a mere guess, supported by no testimony, that there may have been a red spar unknown to the records of the Lake Survey in the same place where No. 2A was afterwards set. Taking the testimony all together, we are clearly satisfied that the collision occurred as shown on sketch No. 1.
The district judge found that the Troy was in fault in allowing the meeting to take place at this necessarily dangerous turn in a narrow channel. With this result we agree. We do not, however, base this conclusion on Rule 24 and the principles governing boats moving with or against current or tide. 'Portage Entry and River' is a channel four or five miles long, connecting Lake Superior and Portage Lake. It runs through marshy ground. Normally there is a slight current from Portage Lake to Lake Superior. There is another outlet to Lake Superior from the opposite side of Portage Lake, and under suitable wind conditions the current may be the other way. there was any current; and rights should hardly be fixed with reference to a conventional current in a channel where the navigators may not be able to tell which way the actual current is running-- at least, if resort may be had to any other applicable rule and clearer standard. In our judgment, the fault of the Troy sufficiently depends on the fact that she was alone, while the Orinoco was burdened with a tow. When vessels are to meet in a narrow, winding channel, and one of them, being free, can absolutely control her own motions, while the other, being with a tow carried on a towline can neither stop nor back and cannot move at all except as the safety of the tow is also considered this fact alone is sufficient to put upon the free vessel a considerable burden of duty so to handle her own speed and position, and so to select the exact place of meeting, as to minimize whatever unavoidable danger there may be. We do not find that this duty has been declared quite so explicitly as in the language just used, and in a case where neither current nor tide was important; but we think we fairly state the necessary result of applying the rule of ordinary care. See The Syracuse, 9 Wall. 672, 675, 19 L.Ed. 783; The Saratoga (D.C.) 1 F. 730, 732; The Owego (D.C.) 71 F. 537.
In the instant case the Troy unnecessarily proceeded to a point where, if for any reason the Chieftain kept on past the proper turning point for only her own length without making the turn properly and successfully, a collision must happen while by slowing a little more, or by stopping for two minutes down in the straight channel of cut No. 1, there would have been ample...
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