Societe des Voiliers Francais v. Oregon R. & Nav. Co.

Decision Date21 March 1910
Docket Number4,988.
PartiesSOCIETE DES VOILIERS FRANCAIS v. OREGON R. & NAV. CO.
CourtU.S. District Court — District of Oregon

W. C Bristol, for libelant.

W. W Cotton, Arthur C. Spencer, James G. Wilson, and Ralph E Moody, for respondent.

WOLVERTON District Judge.

The French bark Marthe Roux, being loaded and ready for the sea was on December 24, 1906, moored at Montgomery Dock No. 2, her bowsprit downstream. Previous to her departure it was desired that she should be taken to anchor instream, and the respondent was employed to make the removal. Capt. Pearson was placed in charge of the work. He utilized two tugs for the purpose-- the Oklahoma and the Henderson. The Oklahoma, with bow downstream, was made fast to the port quarter, and the Henderson, with bow upstream, to the port bow of the Marthe Roux. The river was at freshet at the time, and some drift was observed to be running. Owing to this condition of the water, although the Marthe Roux was of the smaller type of vessels, being about 1,600 tons net register, it was deemed expedient to use two tugs for the service. Pearson's purpose was to take the vessel to anchor a short distance upstream, and in doing this he designed to navigate her diagonally across the stream to a point near where the Albina ferry lands on the west side, and thence to place of anchorage still above that point. Immediately above Montgomery dock was an open space, and above this space was a sand dock provided with a crane for handling merchandise. A large scow lay immediately in front of the sand dock loaded with wood. By reason of these conditions, it became necessary to navigate the vessel somewhat instream from the start, so as to pass the scow. In other words, by reason of the sand dock and the scow, it was impracticable to navigate the Marthe Roux directly upstream at once along the margin of the stream on the east side. The mate, Jean Louis Quero, was in charge of the Marthe Roux at the time, the captain being ashore. Pearson testifies that when ready to move he ordered the mate to let go, and proceeded to swing the ship away from the docks, but that the jib boom caught inside of the jib boom of another ship lying in front of her, and that it was by an accident that he got her back to the dock so as to clear the forward ship; that he then pulled away from the dock, proceeding upstream slowly. Quoting the language of the witness:

'It was a heavy current; dodging logs and drift as they come along, a few here and there; and the Henderson was working ahead slowly. I was backing full speed. We proceeded about, Oh, for a matter of 25 minutes, I should say, and proceeded up the river probably a half a mile, when there was an immense body of drift, Oh, covering nearly the whole river; anyhow it would be two or three hundred feet across it coming down. Well, I had no way of seeing this drift when I left the dock. The conditions at the time were favorable that I could dodge anything that was out there then, but there was a strong running current which carried this down from above, and the only thing I had to do was to go through the thinnest spot I could find. There was no possible chance of going down the stream. So I went through what I thought was the thinnest piece of the drift. Well, all at once I tried to pull my helm over, and it would not come; I tried the other way and it would not go; so then I stopped the engines and went ahead. I surmised right away what was wrong, that there was something in the rudders, so I went ahead with the wheel, with the intention to throw anything out that would be in there, which it evidently did, because I turned her ahead two or three times, which caused the wheel-- then I backed up, and she answered all right. This action of shoving the boat ahead, being made fast on that side of the ship that way, cants the ship. We had no way of steering the ship until we got her going, and when you first start to push on a ship it shoves the ship away; that canted the ship in the current, and before I could recover-- that is, to get my wheel back and back her back-- the Henderson backing the other way and me this way, why we was going across the river there; well, I could not say how fast, but a pretty good rate of speed across the river. You see, she was neither at that time going up nor down, she was just about stationary; and a strong current, and the canting of the ship in the current that way, the current striking her at an angle, takes her across. Well, we was going across the river, and I see she was going into that dredger when I was in, Oh, I should say 75 feet of the dredger. Well, then, I did the best thing that I considered under the circumstances. * * * I told the Henderson to let go, and I let go myself to let the dredger take on the ship. She was at an angle, Oh, of about three degrees with the current then going across the river; and so we let go, doing what I thought was the best under the circumstances, and when the ship hit the dredger, as I knew she would, why she would slip on by and I would be with the boat there, and the Henderson was below, we would pick her up again. Well, we let go, but this mate that was on the ship was a very excitable one, and he could not understand much English, and when I let go, why he evidently supposed, I guess, that we was just turning loose to let him go. Well, he goes to work and he lets go his anchor, mind you, head downstream, with a strong current; he let go his anchor. Nobody said anything to him. The sum and substance of it was, instantaneously the ship come around like that (indicating). Why, he let go when he was in probably 75 or 50 feet from the dredger. Just as soon as we let go he let go. That brought the stern of the ship, got it over in the current, and brought her in faster and harder against that dredge, and very nearly caught me. As a matter of fact, he tore the fenders and a few things off of the side of the boat. I got out of there by just a miracle.'

Speaking again of the drift, witness says:

'It was an immense body of sticks and trees and logs and timbers, all characters of stuff, even houseboats and such old trash that would pile up on a bank, and when the high water come it would come off. * * * This was nearly solid; there was a thin place here and there through it.'

Speaking further as to the direction the vessel was navigated, the witness continued:

'We would come up straight-- straight with the current; then we went to pull over; that would angle her a couple of degrees. It don't take much of that strong current to cut a ship sideways. A couple of degrees, and we would come over that way clear, and if I thought I was clear, whatever was behind me, then I would cut over again and come straight up. * * * Q. What was the angle of the ship as to the stream? * * * Start with the first; what was your first maneuver when you got away from the dock, how did the tow and the tugs go, and what angles were they with the stream? A. About three degrees, no more. Q. Now, did they ever increase that bearing at any time? A. They did when she was going right to the dredger. Q. About how many degrees was that? A. I should say that was about eight or ten degrees.'

The mate testifies that in getting the ship away from the dock Pearson steered at an angle of 45 degrees with the stream, so as to pass the sand dock and scow; that, after clearing them, he tried to head the vessel upstream again, but was unable to do so; that he succeeded slightly, but the current was so violent that he was driven back; that when he saw the conditions got worse--seeing that the barge was lying there, and knowing that something had to happen, and seeing that there was plenty of space, when he reached a certain point in his effort to head upstream again and did not succeed, to reverse the machinery and take the vessel down in the current of the river-- instead of doing what any other mariner would have done, he kept on going across the river, and, when the vessel came in proximity with the dredge, he let go the tugs; whereupon witness dropped the port anchor of the Marthe Roux, and right away she came into collision by her port bow, about the main hatch, on the after starboard quarter of the dredge, and the current carried her port quarter against a scow lying to the rear and to the west of the dredge. In the opinion of the witness, the vessel would have crushed the dredge entirely had he not let go the anchor when he did. And he further states that the chain was not tight when he hit the dredge, but that nevertheless the shock was minimized by the action of the anchor. There was lying in proximity to the dredge the Eugene Schneider, a vessel moored to the dock, by the side of which, instream, were two scows, the dredge lying somewhat further instream than any of these craft. Subsequently the dredge was taken away downstream, the scows removed, and the Marthe Roux made fast alongside the Schneider.

The narratives of these two witnesses comprise the salient features of the testimony in the case relative to the facts leading up to the collision. The libelant claims that, upon the testimony thus adduced, it is entitled to damages, and the respondent insists to the contrary.

In a case like this, the tug becomes the dominant mind. It supplies the propelling force which is to carry the tow to its destination. The tow is essentially inanimate, without mind to direct its maneuvers, or power to carry them on. All therefore, depends upon the tug for direction and for navigation. It is true that the officer upon the tow may, and often does, assist in maneuvers, but he is under the direction of the navigating officer upon the tug, and subject to his orders. The tug does not become a freighter for the transportation of...

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