Johnnsson v. American Tugboat Co.

• Decision Date: 20 April 1915
• Docket Number: 12377.
• Citation: 147 P. 1147,85 Wash. 212
• Parties: JOHNNSSON v. AMERICAN TUGBOAT CO.
• Court: Washington Supreme Court

147 P. 1147

85 Wash. 212

JOHNNSSON v. AMERICAN TUGBOAT CO.

No. 12377.

Supreme Court of Washington

April 20, 1915

Department 1. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.

Action by Lars Johnnsson against the American Tugboat Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Coleman, Fogarty & Anderson, of Everett, for appellant.

E. C Dailey, of Everett, for respondent.

PARKER J.

The plaintiffs seeks recovery of damages which he claims resulted from defendant's negligence in causing a raft of logs in tow of two of its tugboats to come into collision with and injure his fishing launch and gill net. Trial before the court and a jury resulted in verdict and judgment in favor of the plaintiff, from which the defendant has appealed.

About 8 o'clock in the evening of March 17, 1913, respondent was fishing with his launch and net in the waters of Puget Sound some 2 1/2 miles from Mukilteo. The arm of the Sound in which he was fishing is about 4 miles wide at that point. He was near the middle thereof, though possibly somewhat nearer the west than the east shore. The wind was blowing in a northerly direction, and the tide was running in the same direction. He was drifting with the wind and tide, his net trailing behind to the south some 1,800 feet. Appellant's tugboats, with the raft in tow, were going south. The boats passed about 400 feet to the west of respondent's launch. The boats were made fast to each other by a line about 100 feet long. The raft was made fast to the rear boat by a line about 500 feet long. The length of the raft was about 800 feet, and its width about 70 feet. As the tugboats approached and passed respondent's launch about 400 feet to the west, it was seen by those in charge of the boats, and its position relative to the boats was apparently well understood by them. As the boats came opposite respondent's launch, they turned farther to the west, evidently with a view of having the raft clear the launch in safety. Respondent, seeing that there was possible impending danger of a collision with the raft, in view of the distance it was back of the boats and its length, commenced to take in his net. However, he was apparently unable to escape and came in collision with the raft; his boat and net receiving injuries thereby for which the jury awarded him $288.50. The evidence is in conflict as to the course the tugboats took after passing respondent's launch, though at that particular time they apparently turned farther to the west. There is however, evidence, if believed by the jury, warranting the conclusion that the tugboats very soon thereafter turned to the east, tending to bring the respondent's launch between the rear boat and the raft. This respondent claims was the cause of the collision with the raft, and was negligence on the part of appellant's servants in charge of the tugboats.

It is contended by counsel for appellant that it was not guilty of any negligence, and that respondent was guilty of contributory negligence. A review of the evidence convinces us that we could not so decide as a matter of law, unless possibly it might be so decided if it could be said as a matter of law that appellant's rights there were superior to those of respondent by virtue of the laws of navigation. It is upon this theory largely that counsel for appellant rest their contention that the trial court should have taken the case from the jury upon their motions for nonsuit and directed verdict.

Counsel for appellant, assuming that appellant's rights were superior to those of respondent and that respondent was violating the laws of navigation, invoke the general rule that the burden rested upon him of showing, not merely that his fault might not have been the cause of the collision, or that it probably was not, but that it could not have been, citing The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148, The Providence, 98 F. 133, 38 C. C. A. 670, and other authorities. Let us now inquire in what respect respondent was at fault in the light of the laws of navigation. Counsel for appellant invoke the provision of article 26 of the international rules to prevent collisions, adopted by the act of Congress of August 19, 1890 (2 F. Statutes Annotated, 163), reading as follows:

'Sailing vessels under way shall keep out of the way of sailing vessels or boats fishing with nets, or lines, or trawls. This rule shall not give to any vessel or boat engaged in fishing the right of obstructing a fairway used by vessels other than fishing vessels or boats.'

Counsel seem to assume that it must be determined as a matter of law that respondent with his launch and net were in a 'fairway used by vessels other than fishing vessels.' We are quite unable to understand how it could be determined as a matter of law, or even as a matter of fact, in the light of this evidence, that this location is a 'fairway.' We have noticed that the arm of the...