Commonwealth & Dominion Line v. United States

• Decision Date: 19 July 1927
• Docket Number: No. 300.,300.
• Citation: 20 F.2d 729
• Parties: COMMONWEALTH & DOMINION LINE, Limited, v. UNITED STATES. UNITED STATES v. COMMONWEALTH & DOMINION LINE, Limited.
• Court: U.S. Court of Appeals — Second Circuit

20 F.2d 729 (1927)

COMMONWEALTH & DOMINION LINE, Limited, v. UNITED STATES.

UNITED STATES v. COMMONWEALTH & DOMINION LINE, Limited.

No. 300.

Circuit Court of Appeals, Second Circuit.

July 19, 1927.

Emory R. Buckner, U. S. Atty., and Charles E. Wythe, Sp. Asst. U. S. Atty., both of New York City, for the Proteus.

Lord, Day & Lord, Allan B. A. Bradley, and George De Forest Lord, all of New York City, for the Port Phillip.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The Port Phillip had been in motion for at least 15 minutes before the collision, during all of which time she was or ought to have been plainly visible to the Proteus. The suggestion that the cluster of anchored ships in which she moved prevented this is quite without merit. True, her movement was slow, but even a slowly moving ship may be detected among others at anchor, indeed more readily than when she is alone. Her motion becomes the more evident because of the vessels close beside her, and the idea that they could blot her out is incredible. The further to the eastward the course of the Proteus lay, the more imperative was the duty of her lookout, for common caution should have anticipated that among so many ships one might be moving out to a convoy. To confess that she only saw the Port Phillip as her bows came out from between the vessels further west, was to admit at least one serious fault.

But her faults did not stop there. When the Port Phillip did come out she was the privileged ship; it was a crossing case. The effort to make it one of special circumstances depends upon the assertion that the Port Phillip was not on a steady course. The Washington, 241 F. 952 (C. C. A. 2); The Transfer No. 17, 254 F. 673 (C. C. A. 2); The Newark, 289 F. 801 (C. C. A. 2). It involves a misconception of the meaning of that phrase. A ship is on a steady course, not only when her heading does not change, but whenever her future positions are certainly ascertainable from her present position and movements. A steady course may thus involve many changes of heading; it is enough if these can with accuracy be foretold. If they can, so that at any given time in the future her position can be ascertained, she is on a course, and if that course crosses the course of another vessel, who holds her on her starboard hand, the latter must keep out of her way. Whether the way be sinuous, or the speed variable, makes no difference, so it be plainly disclosed. It is well settled that this applies to head-on cases in a winding channel. The Victory, 168 U. S. 410, 419, 421, 18 S. Ct. 149, 42 L. Ed. 519; The Arrow, 214 F. 743, 745 (C. C. A. 2). The rule is the same in England. The Velocity, L. R. 3 P. C. 44; The Pekin, 1897 L. R. App. Cas. 532. The Roanoke, 11 Asp. M. C. 253 (C. A.), applied it as well to a crossing case, where the privileged vessel was held without fault, though she stopped to take on a pilot, that maneuver being apparent from her position and course.

The Port Phillip's movements might have been fairly evident to the Proteus from the moment she weighed anchor, if her lookout had done his duty. She carried a convoy signal, and could hardly have had any other intent than to come into the channel and steam down the bay. However, if it be thought that this is too much to imply from the signal alone, she had headed westerly between the anchored ships plainly bent upon entering the channel for five minutes before the collision, beginning at a time when the Proteus was necessarily over a mile away. For that period her heading did not change, and the Proteus' duty was fixed from then on, whatever it had been before. She had plenty of opportunity to discharge that duty and her failure was without excuse. The Port Phillip, on the other hand, had a duty to keep her course and speed, which she did. We accept the finding that she at no time reversed, supported as it is by the testimony of her crew, though her log was sunk with her. It is true that the witnesses on the Proteus all say that she blew a backing signal after getting the Proteus' single blast. The probabilities are all against such navigation. It is agreed that the Port Phillip by her answer, if a single blast, refused the Proteus' proposal to cross her bows. This meant that she expected the Proteus to go under her stern. To back under such circumstances would have been in direct contradiction of her indicated purpose; we do not believe that her bridge so far lost their heads.

Thus it seems to us of little consequence just where the collision took place, or where in the channel the Proteus was coming up. In fact, the great weight of testimony puts it at least 1,000 feet away from the anchored vessels, which gave room for the Proteus to port under the Port Phillip's stern, had she acted with decision. On her own version she vacillated, due no doubt to her surprise at the emergency suddenly thrust upon her. How much that vacillation contributed to the result it is quite impossible to say, for its extent is in sharp dispute, and the District Judge, though he has found that the Proteus did first fall off to port, has not said how much. The extremes on either side are probably incorrect. Certainly there was the strongest possible motive for each to press or eliminate the effect of this feature of the case. At any rate it is conceded that there was a...