Sea Products Co. v. Puget Sound Nav. Co.

• Decision Date: 23 August 1937
• Docket Number: 26595.
• Citation: 191 Wash. 276,71 P.2d 43
• Parties: SEA PRODUCTS CO. v. PUGET SOUND NAV. CO.
• Court: Washington Supreme Court

71 P.2d 43

191 Wash. 276

SEA PRODUCTS CO. v. PUGET SOUND NAV. CO.

No. 26595.

Supreme Court of Washington

August 23, 1937

Department 2.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Action by the Sea Products Company against the Puget Sound Navigation Company. Judgment for plaintiff, and defendant appeals.

Reversed with direction to dismiss the action.

Bogle Bogle & Gates and Claude E. Wakefield, all of Seattle, for appellant.

Shorett Shorett & Taylor, of Seattle, for respondent.

STEINERT Chief Justice.

A collision between a motor ferryboat and a scow being towed by a tugboat, in the waters of Puget Sound, resulted in damages to the scow and the loss of a substantial part of its cargo. The owner of the tugboat and scow brought action to recover damages for the loss sustained. The cause was tried to a jury, resulting in a verdict for plaintiff. From a judgment on the verdict, the defendant has appealed.

The assignments of error are grouped under two heads: (1) Errors in denying a motion for nonsuit and, subsequently, a motion for directed verdict, both based on the ground that respondent was guilty of contributory negligence as a matter of law; and (2) errors in giving certain instructions and refusing to give certain others requested by appellant. The conclusion that we have reached upon the first group of errors renders consideration of the second unnecessary.

On the morning of October 1, 1935, the tugboat Ohio with a scow in tow was on a voyage from Whidby Island to respondent's dock located in the West waterway of Seattle Harbor at the lower end of Elliott Bay. The two line connecting the tug and scow was 100 or 150 feet in length. A thick fog enveloped Puget Sound, including Elliott Bay, at the time, affording a visibility of only about 200 or 250 feet.

The tug and scow left Four Mile Rock, north of Seattle, at about 10:30 a. m. and were proceeding to their destination upon a course described as east southeast. The speed at which the tug started across Elliott Bay was about four knots and hour. Shortly Before 11.30 a. m., the tug and scow arrived at a point near the middle of the bay and opposite to, and west of, Colman dock, which is located on the waterfront of Seattle.

At about 11:15 a. m. of the same day, the motor ferryboat Kalakala left Colman dock, bound for Bremerton. After backing out of the slip and turning around, the Kalakala set upon a course described as west by south, three-quarters south. Shortly thereafter the Kalakala was compelled to stop her engines in order to permit a tramp steamer to cross in front of her. She then resumed her course and proceeded ahead. The courses of the ferryboat and tugboat, respectively projected, intersected at an obtuse angle at a point in the bay about two-thirds of the distance from Colman dock to the bell-buoy opposite Duwamish head.

While proceeding upon her course from Colman dock, the Kalakala intermittently blew her whistle, giving the required fog signal, and the same was heard by those on the tugboat at least five minutes Before the collision. During this same interval the fog signals from other vessels in the vicinity were heard by the captain of the tug. One of these vessels was directly ahead of the tug, and another was astern of it.

When the captain of the tug first heard the whistle of the Kalakala, he slowed down to about two knots an hour, and, then, as the sounds came closer, further reduced his speed to about one knot per hour. However, at no time prior to the collision did he stop his engine in response either to the whistle of the Kalakala or to that of the vessel directly ahead of him.

The vital factor in this case is the relative positions of the tug and ferryboat during the last five minutes Before the collision. Upon that factor depends the answer to the question whether the operator of the tug was guilty of contributory negligence as a matter of law.

Respondent's witnesses testified generally, upon direct examination, that the sound of the Kalakala's whistle at all times came from abreast or amidships of the tug and from the direction of Colman dock. However, when specifically interrogated by respective counsel, upon direct and cross examination, as to the exact points of location of the two vessels, the witnesses carefully and definitely fixed, by reference to a map of Seattle harbor drawn to scale, their relative positions and courses from the time that the whistle of the Kalakala was first heard by the tug, up to the time of the collision. All question and doubt upon that issue were thus definitedly determined and resolved. A reference to the map, which is in evidence, shows clearly and unmistakably that Colman dock and the entire course of the Kalakala up to within a short distance of the place of collision were 'forward of the beam' of the tug as it approached the point of intersection of the two courses.

When those in charge of the tug were finally able to discern the Kalakala emerging through the fog, the ferryboat was about two hundred feet distant and was headed broadside for the tug. The scow, it will be remembered, was a hundred or a hundred fifty feet back of the tug. Sensing that the Kalakala would very probably cut in between the tug and scow, the captain of the tug gave orders to cast loose the tow immediately, which was done. The tug proceeded forward in safety, but the scow, upon being released of its directing power, sheered to port and shortly thereafter collided with the ferryboat, sustaining the damages for which recovery is now sought.

There was evidence, although disputed, from which the jury was warranted in finding that the Kalakala was traveling at an excessive rate of speed under the circumstances, and, for the purposes of this case, we will assume that such was the fact. The question Before us, however, is not whether the Kalakala was negligent, but whether the tug was guilty of contributory negligence as a matter of law.

Inasmuch as the collision took place within navigable waters, the rights of the parties are measured by the admiralty law, even though the action be one at common law for damages. Novak v. Fishermen's Packing Corporation, 184 Wash. 526, 52 P.2d 336; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Puget Sound Nav. Co. v. Nelson (C.C.A. 9) 41 F. (2d) 356; Chesley v. Nantasket Beach Steamboat Co., 179 Mass. 469, 61 N.E. 50.

By Act of Congress passed June 7, 1897 (30 Stat. 96, c. 4), certain rules and regulations were promulgated for the prevention of collisions upon navigable waters and were made mandatory upon all vessels navigating harbors, rivers, and inland waters, with certain exceptions not material here.

Article 16 of the act (Inland Rules, 30 Stat. 99, U.S.C.A. title 33, § 192) provides:

'Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions.

'A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.'

We are here particularly concerned with the second paragraph of article 16 just quoted.

The term 'steam-vessel,' as used in the act, includes any vessel propelled by machinery. 30 Stat. p. 96, c. 4, § 1, U.S.C.A. title 33, § 155. Inasmuch as the tug and the ferryboat involved in this case were both propelled by machinery, the statute applies to each of them.

The term 'forward of her beam,' as applied to a particular vessel, has reference to all those directions and that territory which lie ahead of a line drawn at right angles to the sides, and through the center, of such vessel.

The requirement that a vessel stop its engines immediately upon hearing the ...