The Mexico Maru, 2596.
| Decision Date | 03 February 1921 |
| Docket Number | 2596. |
| Citation | 270 F. 800 |
| Court | U.S. District Court — Western District of Washington |
| Parties | THE MEXICO MARU. |
Bogle Merritt & Bogle, of Seattle, Wash., for Booth Fisheries Co. and others.
Huffer & Hayden, of Seattle, Wash., for The Mexico Maru and others.
Walter F. Meier, Corp. Counsel and Edwin C. Ewing, Asst. Corp. Counsel, both of Seattle, Wash., for city of Seattle.
The case is one of collision between two vessels, and the questions involved are almost entirely of fact. The Mexico Maru, hereinafter called the Mexico, a steamer 400 feet in length, at 12:55 a.m., October 30, 1918, left her wharf on the East waterway at the port of Seattle for Tacoma. At 1:33 a.m. she was in collision with the A. J. Fuller, hereinafter called the Fuller, a full rigged American ship, 229 feet long, which was lying at anchor within a certain portion of Elliott Bay designated, in the year 1915, by a city ordinance of Seattle as an 'anchorage ground.'
It has been stipulated that the court shall first determine the fault of which vessel caused the collision, or whether both were in fault, before considering the other questions involved. A comprehensive statement of the vast amount of evidence taken is not feasible. The testimony of many of the witnesses can be reconciled, to some extent, on the assumption that, prior to about 2 o'clock, the denser fog was, for the most part, confined to the waterways along the face of the docks and off the shore of Harbor Island.
Taking into account the changing conditions of the fog, the drifting of the banks, the liability of witnesses to be mistaken in the matter of time and distances, the matter the particular witness had in hand as bearing upon his reason to observe and recollect the fog conditions, and further making allowance for the interest of the witnesses and the lapse of time after the occurrence and prior to the taking of testimony, many of the contradictions in the testimony are more apparent than real. Yet there is a large amount of testimony that it is impossible to reconcile.
As the tendency of witnesses aboard colliding vessels to be loyal to and partisans of their own ship is well recognized, when the testimony of such witnesses is not consistent, I have given the greater weight to the statements and admissions made by them against such recognized bias. The outstanding and, as the court considers, the controlling facts are as follows:
Claimant disputes that the anchorage ground set apart by such ordinance was privileged ground, and contends that the city's action was contrary to the Act of Congress of March 4, 1915, c. 142 (38 Stat.p. 1053 (Comp. St. Sec 9959a)), which provides:
* * *'
The War Department not having acted in pursuance of the statute and this being a usual and customary anchorage, claimant's contention is without merit.
It is shown that the Fuller had permission from the office of the port warden to tie up at buoy No. 2 in the anchorage; that she had been at that buoy for several days (since the afternoon of the 23d of October); and that the fact that she was at that buoy during this time was known to the pilot and captain of the Mexico, they having seen her there as late as the day before the collision. This renders immaterial any question as to the regularity of the permission to tie the Fuller up at that buoy.
The East waterway lies west of certain wharves of the city, between such water front on the east and Harbor Island on the west, the fairway, or channel, north of the East waterway, extends along such water front between it and the anchorage. Harbor Island lies between the East and West waterways. The anchorage ground lies north of Harbor Island and between the channels or fairways, which are extensions of the East and West waterways. The anchorage ground is, roughly, half a mile or more square.
As Elliott Bay opens to the westward, all vessels, ordinarily, on entering or leaving the channel extending north of the East waterway, make an abrupt turn around the northeast corner of the anchorage ground. Such vessels probably form more than half of the shipping entering and leaving the port of Seattle in the course of a year. Within the anchorage and adjacent to this corner, buoy No. 2 was located. Exactly how near the east and north boundaries is not shown, as the buoy went down with the Fuller. The Fuller was anchored some 1,000 feet west of the east boundary of the anchorage, and some 600 feet south of the north boundary. The Fuller, at the time of the collision, swung to the northwest of the buoy, all parts of her within the anchorage. The fairway east of the anchorage, opposite buoy No. 2 is approximately 1,900 feet wide.
There was a heavy fog, varying in density in the East waterway at 12:55, when the Mexico left her dock. It took her until 1:28 to run out of this fog. The point at which she did so, while not exactly established, must have been opposite the Skinner & Eddy shipyard. This point could not have been much farther than 2,500 feet from the Fuller.
Up to this time the first and fourth officers had been on lookout on the forecastle head, while the captain and pilot, together with the third mate at the engine room telegraph, a quartermaster at the wheel, and an apprentice officer keeping the log, were on the bridge. On passing out of this heavy fog, the captain testified that he had a visibility along the water front to the north for a half mile, meaning, evidently, that he could see the lights along the pier fronts for half a mile. Had it been clear in the ordinary sense, he could have seen the lights along the water front to Smith's Cove and the city lights on the hill beyond.
Capt. Oniya, on the bridge of the Mexico, testified that from this point, which he described as the wider part of the bay, the fog was not very thick, that it was misty, and that he noticed no change in it until the Mexico struck the Fuller, which occurred about five minutes later. The Mexico had to this point, where she came out of the heavy fog, been going under 'slow'-- 'stop' signals, taking over 30 minutes to reach this point, which is not more than 5,300 feet from the wharf she had left. As she came down the waterway, she frequently sounded fog signals. Immediately after emerging from the fog north of the entrance of the East waterway, the pilot increased the speed and changed his course from north-northwest to west by south, and the captain recalled the first mate from the lookout. The latter officer went below, where he remained until the collision.
Prior to the change in course, the captain mentioned to the pilot the position of the Fuller. The pilot testified, and evidently calculated, that the Mexico, with her momentum, would be slow enough in responding to her helm to carry her so far north that, on making the turn, he would pass beyond where the Fuller was lying at the buoy. The true explanation of his miscalculation I find to be in the way the Mexico was loaded. Her draft was 11.3 forward and 20 feet 9 aft. Being down at the stern made her liable to turn more quickly than usual in response to her helm. The pilot probably did not make due allowance for this. He may not have known it, for, from the time he came aboard until the Mexico left her wharf at 12:55, he was asleep a great part of the time.
Libelants' contention is unsupported by the evidence; this contention being that the Mexico left the fairway and cut across the anchorage immediately after passing the red spar buoy in the southeast corner of the anchorage. There must have been a heavy fog at this point, rendering such a maneuver unlikely. The pilot testified, and his pocket log of former trips corroborates him, that he never departed or took a departure in that manner, save in daylight and clear weather.
The testimony of those aboard the Mexico indicates that there was but one change of course. If the Mexico had left the fairway at this point on that course, she would have missed the Fuller. If the Mexico, so departing, because of being down by the stern, had turned more rapidly, as has been found, than the pilot calculated, this would carry her still further from the Fuller. If the pilot had knowingly taken a course across the anchorage in the direction of the Fuller, he would have been on the lookout for her, which does not appear to have been the case.
In reaching my conclusion, I have given much weight to the testimony of the witness Harding, who was night foreman for the Pacific Coast Coal Company. He is the only disinterested witness who testified to seeing the Mexico making this maneuver. He testified that he saw her come down the fairway and turn off the bunkers, upon which he was at work, and disappear in the fog in the direction of the Fuller. These bunkers are east of, and constitute the nearest point on the water front opposite, the point of collision. The Mexico must have begun to turn before she was directly opposite the bunkers.
At about 1:32, the captain of the Mexico saw the light of the Fuller and said to the pilot, 'What is that light?' to which the pilot made no response. The pilot had been looking back, as he testified, over the starboard quarter watching the lights on the Smith Building...
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