Shaver Transp. Co. v. Columbia Contract Co.
| Citation | 208 F. 347 |
| Decision Date | 01 September 1913 |
| Docket Number | 5,420. |
| Parties | SHAVER TRANSP. CO. v. COLUMBIA CONTRACT CO. et al. |
| Court | U.S. District Court — District of Oregon |
Wood Montague & Hunt, of Portland, Or., for libelant.
Rogers MacVeagh and Teal, Minor & Winfree, all of Portland, Or., for claimant.
Snow & McCamant and George B. Guthrie, all of Portland, Or., for respondent.
Claimant relies on the following authorities: The Merchant Prince, Law Repts. (1892) 1 Prob.Div. 179, in Court of Appeal 1892; The Olympia, 61 F. 120, 9 C.C.A. 393 (C.C.A. 6th Cir. 1894); The F. W. Wheeler, 78 F. 824, 24 C.C.A. 353 (C.C.A. 6th Cir. 1897); The Ohio, 91 F. 547, 33 C.C.A. 667 (C.C.A. 6th Cir. 1898); The Fontana, 119 F. 853, 56 C.C.A. 365 (C.C.A. 6th Cir. 1903); The Edmund Moran, 180 F. 700, 104 C.C.A. 552 (C.C.A. 2d Cir. 1910); Nicholas Transit Co. v. Pittsburgh S.S. Co., 196 F. 65 (Dist. Ct. W.D.N.Y. 1912); The Lackawanna, 201 F. 773 (Dist. Ct. W.D.N.Y. 1913); Union S.S. Co. v. N.Y. & va. S.S. Co., 65 U.S. (24 How.) 307 16 L.Ed. 699 (U.S. S.Ct. 1861); The Bywell Castle, Law Repts., 4 Prob.Div. 219, in the Court of Appeal 1878; The Maggie J. Smith, 123 U.S. 349, 8 Sup.Ct. 159, 31 L.Ed. 175 (U.S. S.Ct. 1887); The Phoenix, 50 F. 330 (Dist. Ct. S.D.N.Y. 1892); The Lake Shore, 201 F. 449 (Dist. Ct. N.D. Ohio 1912); The Centurion, 100 F. 663, 40 C.C.A. 634 (C.C.A. 6th Cir. 1900); The Maria Martin v.
Northern Trans. Co., 79 U.S. (12 Wall.) 31, 20 L.Ed. 251 (U.S. S.Ct. 1871) ; The Columbia, 23 Blatchf. 268, 25 F. 844 (C.C.E.D.N.Y. 1885); W. Va. Central & P. Ry. Co. v. The Isle of Pines et al., 24 F. 498 (Dist. Ct. S.D.N.Y. 1885); The A. W. Thompson, 39 F. 115 (Dist. Ct. S.D.N.Y. 1889); The Louise, 52 F. 885, 3 C.C.A. 330 (C.C.A.4th Cir. 1892); The Lisbonense, 53 F. 293, 3 C.C.A. 539 (C.C.A.2d Cir. 1892); The George W. Childs, 67 F. 269 (Dist. Ct. E.D. Pa. 1895); The Victory, 68 F. 395, 15 C.C.A. 490 (C.C.A.4th Cir. 1895); The Maryland, 182 F. 829 (Dist. Ct. E.D. Va. 1910); The Laura Lee, 24 F. 483 (Dist. Ct. E.D. La. 1885); The City of Alexandria, 40 F. 697 (Dist. Ct. S.D.N.Y. 1889); The Havilah, 50 F. 331, 1 C.C.A. 519 (C.C.A.2d Cir. 1892); La Normandie, 58 F. 427, 7 C.C.A. 285 (C.C.A.2d Cir. 1893); The James Gray v. The John Fraser, 62 U.S. (21 How.) 184, 16 L.Ed. 106 (U.S. S.Ct. 1859); The Sturgis v. Boyer, 65 U.S. (24 How.) 110, 16 L.Ed. 591 (U.S. S.Ct. 1860); The J. H. Gautier and The Herbert Manton, 5 Ben. 469, Fed. Cas. No. 7,319 (Dist. Ct. S.D.N.Y. 1872), affirmed 14 Blatchf. 37, Fed. Cas. No. 6,399 (C.C.S.D.N.Y. 1876); The John Cooker and The James W. Eaton, 10 Ben. 488, 13 Fed.Cas. 665, Fed. Cas. No. 7,337 (Dist. Ct. E.D.N.Y. 1879); The Doris Eckhoff, 32 F. 555 (Dist. Ct. S.D.N.Y. 1887); The Umbria, 166 U.S. 404, 17 Sup.Ct. 610, 41 L.Ed. 1053 (U.S. S.Ct. 1897).
This question was before the court on the question of the right of libelant to maintain a suit for collision in rem against one of the vessels and in personam against the owners of another, charged to be involved in the collision. The Samson (D.C.) 197 F. 1017. The cause is now for decision, after evidence taken, and is brought to recover for the wreck of the steamer Henderson in a collision with the tow of the tug Samson; the collision occurring on the Columbia river between Astoria and Portland. The suit is in rem against the Samson and the three barges forming her tow and in personam against the Standard Oil Company; the owner of the oil barge being towed by the Henderson at the time she was struck.
The collision took place between 1:30 and 2 a.m., July 22, 1911, in the main channel of the Columbia river, between Puget Island and the Oregon shore, near Bugby's Hole, during the flood season on the river, with a nine-foot tide at half ebb. The night was dark, but clear, with no moon.
The Henderson, a stern wheel steamer, 158 feet long, with a 31-foot beam, was coming upstream, lashed to the port quarter of her tow, overlapping the stern of her tow some hundred feet, and with her bow turned slightly in towards the tow. The oil barge was without propelling power of her own.
The tug Samson, 110 feet long, was going downstream with a tow of three scows, each about 150 feet long, 36-foot beam, and each loaded with about a thousand tons of rock. Her scows were arranged in what is known as a 'spike' tow, one scow on her port quarter, another on her starboard quarter, and the third between the other two, projecting in front of them some 50 feet and immediately ahead of the Samson; the port and starboard scows flaring from the center scow, making a flotilla, in general outline, not unlike the 'club' upon a playing card.
The collision occurred upon the upper 'reach' of an approximately straight stretch of channel, some three or more miles long. This stretch of channel was marked with certain range lights (two at the foot, on the Washington side, and one at the head of it, upon the Oregon shore) and is known as the 'Hunting Island Range.' At the place of the collision, the channel was about 2,500 feet wide. The Henderson and tow met and passed to starboard of the steamer Kern about two miles below the point of collision. The Samson rounded the point of Puget Island over a mile above the point of collision, thus coming into view from the Washington side of the river.
After sighting the Samson, while two miles apart, the oil barge, whose captain was directing her towing, whistled once, when the vessels were about a half mile apart, thus signaling passage port to port, or on the Oregon side of the Samson. The Samson answered promptly, accepting the signal. Both sets of vessels were properly equipped with lights.
From this point the testimony is conflicting and cannot be reconciled. The captain of the oil barge, considering the Samson was not complying with the signal with sufficient promptness, repeated it when the vessels were about 500 feet apart.
The situation, as stated, discloses that the point of collision, with reference to the width of the channel, is the controlling factor in determining who was responsible for the collision. For the libelant it is contended that this point was to the Oregon side of the range marks, and by the claimant that it was on the Puget Island side.
Much testimony has been introduced concerning the maneuvering of the vessels immediately preceding the collision; how the lights appeared from one upon the other; and the subsequent signals given by the boats as well as the handling of helms just before the collision. But none of it is of a character to shift or divide the responsibility for the relative position of the vessels with reference to the marked channel, after the giving of the first signal and its acceptance in ample time and with ample room to have avoided the collision, with the vessels involved under control.
It is probable that it was the port stone barge which struck and crushed the Henderson's port bow; a hole being made in her bow about 14 feet across and beginning about 35 feet back from her stem. That the Henderson was not struck further aft by the center stone barge is probably explained by the flare of the stone barges, the exact extent of which cannot be known; but whether the Henderson was struck by the center scow or the port scow is deemed unimportant, for the angle of the courses of the encountering vessels would have been substantially the same in either case.
The Henderson, when cut away and free from the oil barge, sank almost immediately and, without any control of her movements, drifted downstream. The oil barge dropped her anchors. The Samson carried her tow astern of the oil barge after the collision, got the lines off the stone barges, and anchored them.
There is a great deal of conflict in the testimony of the witnesses upon the vessels concerned about how long a time elapsed after the collision before the oil barge dropped her anchors. Libelant contends that they were dropped immediately. The witnesses of libelant on the Henderson and oil barge are corroborated on this point and that of the place of collision by a number of drift net fishermen, who were on the river a short distance below the collision. These fishermen, in putting out their drift nets, used the range lights primarily marking the channel for the benefit of vessels.
The oil barge, when anchored, was within a short distance of the Oregon shore, with no more room than was required to swing at anchor. Claimant undertakes to account for her position upon the theory that she had such headway as to carry her upstream, across the range, and over to the Oregon shore. The fact that she was only making three miles an hour at the time of the collision, coupled with the further facts that it was ebb tide, with a strong current, that the Henderson had been backing full speed astern for half a minute before the collision, that the force of the collision was such as to break the five heavy lines fastening the Henderson to the oil barge, renders it improbable that she would go a quarter of the distance from the...
To continue reading
Request your trial