The W.H. Gilbert
| Decision Date | 12 April 1916 |
| Docket Number | 2751. |
| Parties | THE W. H. GILBERT. |
| Court | U.S. Court of Appeals — Sixth Circuit |
This is a libel in admiralty brought by Garretson and Shane Receivers of the Gilchrist Transportation Co., the owner of the steamer City of Genoa, against the steamer W. H. Gilbert for damages caused by the sinking of the Genoa in a collision occurring in the channel of the St. Clair River, at a point between Sarnia, on the Canadian side, and Port Huron, on the American side, alleged to have been caused solely by fault in the navigation of the Gilbert. The Pittsburgh Steamship Co. owner of the Gilbert, answered the libel as claimant, denying that the collision was due to the fault of the Gilbert alleging that it was caused solely by the fault of the Genoa, and claiming damages to the Gilbert; but no cross libel was filed. The Boston Insurance Co. and other underwriters, insurers of the cargo of the Genoa, filed an intervening petition setting up their claim for damages thereto. It was stipulated that if the Gilbert should be held responsible for the collision, the Pittsburgh Steamship Co. was entitled to limit its liability for damages to the libelants and interveners to the sum of $53,375.03, with interest; that the damages to the libelants, as owners of the Genoa, amounted, including interest, to $33,639.06; and that the damages to the interveners, as insurers of the cargo of the Genoa, amounted, including interest, to $82,690.05.
The trial judge found that the collision was caused solely by the fault of the Gilbert; and it was thereupon decreed that the libelants and intervening petitioners recover of the Pittsburgh Steamship Co., claimant of the Gilbert, the said sum of $53,375.03, with interest, amounting to $62,760.14, pro rata upon their respective claims; from which decree the Pittsburgh Steamship Co. has appealed to this court.
The opinion of Day, District Judge (211 F. 754), clearly states the case and his conclusion thereon.
Hoyt, Dustin, Kelley, McKeehan & Andrews, of Keehan & Andrews, of Cleveland, Ohio (H. A. Kelley and G. W. Cottrell, both of Cleveland, Ohio, of counsel), for appellant.
A. J. Gilchrist and H. D. Goulder, both of Cleveland, Ohio, for appellees.
Before WARRINGTON and KNAPPEN, Circuit Judges, and SANFORD, District judge.
SANFORD District Judge, after making the foregoing statement of facts, :
It is conceded, at the outset, that as the damages to the insurers of the cargo of the Genoa, which largely exceeded the liability of the appellant, are, in the event of fault on the part of the Gilbert, a prior claim against that vessel, independently of the question of joint liability on the part of the Genoa, the only material question presented for review under this appeal is whether or not the trial court was in error in holding the collision to have been due to fault on the part of the Gilbert, regardless of whether there was also joint fault on the part of the Genoa.
On behalf of the appellant it is earnestly insisted that the evidence discloses no fault whatever in the navigation of the Gilbert, and that as to her the collision was due to inevitable accident or inscrutable fault.
A part of the testimony in the court below was taken by deposition. However, by far the greater portion was taken orally in the presence of the court; the witnesses testifying in open court, including, among others, five of the crew of the Gilbert, two of the crew of her barge and three of the crew of the Genoa.
Without determining whether the evidence sustains the conclusion of the trial judge that the Gilbert was at fault in the manner in which her course was shaped across the river in the fog at the time of the collision, causing her to over-run her expected turning place and collide with the Genoa, we are of opinion that it does sustain his conclusion that the Gilbert was in fault in failing to maintain an efficient and attentive lookout, whereby the fog bell of the Genoa might have been heard and the collision avoided.
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