The Australia
| Decision Date | 03 February 1903 |
| Docket Number | 1,084. |
| Citation | 120 F. 220 |
| Parties | THE AUSTRALIA. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John C Shaw, for appellant.
Herman A. Kelley, for appellee.
The barge Maida, bound down the river Ste. Marie in tow of the steamer Marina, came into collision with the barge Australia bound up the river, in tow of the steamer Italia, the Maida receiving considerable damage. The collision occurred on a bright afternoon in May, 1898, in that part of the river known as the 'Little Rapids Cut.' That cut is an artificial channel 300 feet wide, between navigable banks. There is a current through this cut of about four miles. There is a cross-current setting around the foot of Island No. 1, on each side of the cut, which comes into the cut at an angle down stream of about 45 degrees. The force of this cross-current is variable, dependent on direction and force of the wind on Lake Superior. When some distance apart passing signals of one blast were exchanged between the two towing steamers. About as the bow of the Australia reached the lower end ofthe island referred to, she took a sheer to starboard, and persisted in it until she struck the right-hand bank just above the foot of the island, and then sheered to port. A collision with the Marina was narrowly avoided, and one actually occurred with the Maida before the sheer to port was broken, or just about as she had begun to swing to starboard, though still pointed somewhat toward the westerly bank. The collision was almost head on, the starboard bow of the Australia striking the starboard bow of the Maida. Judge Ricks, after hearing a great mass of evidence, held that the Australia was in fault, and acquitted the Italia, as well as the libelant's two vessels, of all contributory fault. The Australia only has appealed.
Before LURTON, DAY, and SEVERENS, Circuit Judges.
LURTON Circuit Judge, after making the foregoing statement of the case, .
Within a proper distance the two steamers agreed to pass port to port. The navigable channel was 300 feet wide. The day was clear. There ought to have been no difficulty in these two tows passing each other if properly equipped and navigated. That the two barges should, under such circumstances, come into collision, strongly indicates that there was negligence in the navigation of one or both. Both barges were under obligation to follow in the wake of their steamers. The steamers did pass port to port in safety. The barges were both unusually long, the Maida 391 feet and the Australia 390 feet. Both were laden. Each was on a towline of about 500 feet. The passing agreement bound the Australia to keep on the right-hand or eastern side of the cut, while the Maida was equally bound to keep on the western side. Confessedly the Australia took a sheer when about opposite the foot of Island No. 1. This sheer was not controlled, according to her answer and the evidence of her master, until she struck the bank just above the foot of the island. She then took another sheer to port. There is a great deal of conflict in the evidence as to the extent of this sheer to port. The master of the Australia makes little of it, and testifies that he recovered and straightened up just about mid-channel, and contends that if the Maida had directed her course to the starboard, as she was bound to do under the passing signals, there would have been no collision, as he claims the collision occurred in, or just about, the middle of the channel. The other officers and the crew of the Australia and the officers and crew of the steamer Italia substantially concur in putting the collision in the middle of the cut. The people on the Maida and her steamer, the Marina, unite in putting both the Marina and her barge close in to the western shore at the moment of the collision. Certain shore witnesses were also heard, but they, too, differed as to the location of the collision. The probabilities are that the Marina and her barge did direct their course to starboard as they had agreed to do, and that they were over on the westerly side of the channel when the collision occurred. This probability is strongly confirmed by certain evidence now to be mentioned.
It is in evidence and undisputed that, at the very instant when the stems of the two schooners came into collision, the Maida dropped her kedge anchor over. That anchor was found and picked up from the bottom of the channel the next day. It was found at a point about 98 feet from the visible west bank of the cut, or about 62 feet from the west channel bank. Now this kedge anchor was kept on the port side, about halfway between the keel and the side. The heads and flukes of a patent anchor belonging to the Australia were also broken off short at the starboard hawse pipe at the time of the collision. The bows of the two colliding vessels remained locked together for a moment after the collision, swinging, while so locked, a little to the eastward and slowly downstream. The theory of the appellee is that the broken anchor head and flukes must have dropped to the bottom, just as the two vessels separated. In confirmation it is shown that in February, 1899, divers went down and located these broken parts at a point 62 feet west of the mid-channel, and at such a point downstream as tends to support the theory that these broken parts had not been dropped until the stems of the colliding vessels separated.
Without entering into an argument, we are convinced, upon all the evidence, that the collision occurred quite over on the western side of the channel, and about as claimed by the appellees. This was the conclusion of Judge Ricks, and we see every reason to concur in his opinion on this question of fact. We have, then, a case of where a collision is shown to have occurred which certainly would not have occurred if the Australia had kept upon the eastern side of the channel, as she was bound to do. What is her excuse? She says she was sheered by the effect of a cross-current which is felt at the lower end of Island No. 1. But this was a well-known condition of navigation, and vessels properly equipped and properly navigated are not materially...
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THE SEVERANCE, 5389.
... ... Great Lakes, D.C., 237 F. 432 (ship, towed by tugs, struck a bridge). And peculiarly apposite here is the statement of Circuit Judge Lurton (afterwards Associate Justice of the United States Supreme Court) in The Australia, 6 Cir., 120 F. 220, 222: ... "To say that her erratic course in bounding backward and forward across the channel was due to a sheer is no defense, unless she (that is, those in charge of her navigation) can show that that sheer was unavoidable; that is, that the cause which ... ...
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... ... * * *" ... 6 See Note 5 ... 7 Inability to control a vessel in a known current is fault. Christie & Lowe v. Fane S.S. Co., 5 Cir., 159 F. 648; The Australia, 6 Cir., 120 F. 220; Long Island R. Co. v. Killien, 2 Cir., 67 F. 365 ... Compare The Gulftrade (Charles Warner Co. v. Independent Pier Co.), 278 U.S. 85, 49 S.Ct. 45, 73 L.Ed. 195; The City of Macon, 5 Cir., 51 F. 949; Northern Nav. Co. v. Minnesota Atlantic Transit Co., 8 Cir., ... ...
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