Burke v. United States

• Decision Date: 02 August 1926
• Docket Number: 9715,9716.,9658,No. 9657,9657
• Citation: 15 F.2d 573
• Parties: BURKE v. UNITED STATES. OLSON v. SAME. SLOVARP v. SAME.
• Court: U.S. District Court — District of Oregon

15 F.2d 573 (1926)

BURKE v. UNITED STATES.

OLSON v. SAME.

SLOVARP v. SAME.

Nos. 9657, 9658, 9715, 9716.

District Court, D. Oregon.

August 2, 1926.

Carey & Kerr, Chas. A. Hart, and M. K. Holland, all of Portland, Or., for libelants Burke and Olson.

H. S. McCutchan, of Portland, Or., for libelant Slovarp.

Erskine Wood, of Portland, Or., for the United States.

BEAN, District Judge.

This is an action growing out of the collision of the steamship West Nomentum with the fishing schooner Nenamosha near the Columbia River Lightship on June 25, 1925, in a dense fog.

The West Nomentum is 410 feet long, 53 feet beam, and a gross tonnage of 5,652 tons. The Nenamosha was a gasoline propelled schooner, 54 feet long, 14 feet beam, and 22ton capacity. She was engaged in fishing for halibut along the Oregon coast. Her crew consisted of four men, who were interested in her operation and the profits of the venture.

On the afternoon of the accident the Nenamosha left the fishing grounds, with five tons of fish and her fishing tackle aboard, bound for the Columbia River. Some time before she reached the lightship she ran into a fog so dense that she could not safely enter the river, and, after picking up the lightship, hovered near it for the night.

The West Nomentum was proceeding from San Francisco to Portland, and when near the lightship ran into and capsized the fishing schooner, causing the death of two of her crew and the loss of the vessel, her cargo, and fishing tackle. The collision occurred so near the lightship that the cries of the shipwrecked men were heard on board the lightship, and two of them were picked up by the lifeboat from the ship.

It is claimed on behalf of the libelants that the West Nomentum was proceeding along at an unreasonable rate of speed in the fog, and had no lookout on watch at the time of the collision. The collision occurred at 11:49 p. m., or a few seconds prior thereto. The captain and three of the officers of the West Nomentum were on the bridge at the time. She was going full speed ahead at 11:48, and at a rate of from 8 to 10 knots an hour. As she was expecting to pick up a pilot, an order half ahead was given at 11:48, and less than a minute thereafter the mastlights of the schooner loomed up in the fog, about two points off the starboard bow and about a ship's length away. A stop and full astern order was immediately given, but too late to avoid the collision, and the West Nomentum passed out of sight and hearing of the schooner and her crew before the lifeboats could be lowered.

Article 16, International Rules, provides that "every vessel shall in a fog, mist or falling snow, or heavy rainstorm, go at a moderate speed, having careful regard to the existing circumstances and conditions." Comp. Stat. § 7854. This rule has been the subject of considerable discussion by the courts, and text-writers. In The Umbria, 166 U. S. 404, 17 S. Ct. 610, 41 L. Ed. 1053, it is said: "The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law. In a dense fog this might require both vessels to come to a standstill, until the course of each was definitely ascertained."

The same doctrine was announced in substance in The Chattahooche, 173 U. S. 540, 19 S. Ct. 491, 43 L. Ed. 801; The Nacoochee, 137 U. S. 330, 11 S. Ct....