The Oregon

• Decision Date: 03 May 1886
• Citation: 27 F. 751
• Parties: THE OREGON. [1] v. THE OREGON. HOLT and another
• Court: U.S. District Court — Eastern District of Wisconsin

27 F. 751

THE OREGON. ^[1]

HOLT and another v. THE OREGON.

United States District Court, E.D. Wisconsin.

May 3, 1886

Markham & Noyes, for libelants.

Harvey D. Goulder, for claimants.

DYER J.

On the nineteenth day of June, 1885, the schooner Richard Mott set sail from Oconto, laden with a cargo of lumber, bound for Milwaukee. Towards midnight the skies became overcast, and there came up a dense fog, accompanied by rain. The wind was from the south, and was a good sailing breeze. The vessel was sailing by the wind, on the starboard tack, steering S.E. by E., and was carrying full sail. The fog-horn was constantly sounded, and the lights were in their places, and burning brightly. It was mate's watch, consisting of mate wheelsman, and lookout. At 11:30 o'clock the master came on deck because the weather was thick and threatening. In obedience to his orders, the watch below were called to shorten sail. The whistle of a steamer was heard, apparently at considerable distance, bearing southwest, and then a little more westward, from the Mott. Sail was taken in, the vessel keeping her course, and the steamer's whistle continuing to be heard. No lights were seen, when suddenly the steamer, which proved to be the Oregon, loomed up in the fog, passing within about 50 feet of the schooner's bow. A hail was heard from the steamer to the effect that she had a tow, and to put the wheel of the Mott hard down. This was done, and she came up in the wind. Almost immediately the first schooner in tow of the Oregon, which was the Cyclone struck the Mott, carrying away her jib-boom. Then the second schooner in the tow, which was the Locke, in a moment or two struck her a second blow, raking her fore and aft, from stem to stern post, doing serious damage. Both blows were received by the Mott on her port side, as she was standing in the wind heading nearly south. The collision occurred about 15 or 20 minutes past midnight, Milwaukee time,--perhaps a few minutes later. For the injury thus occasioned the libelants seek to recover damages, and the question is, which vessel, if either, was in fault?

1. Was the steamer chargeable with negligence? It is insisted on the part of the claimants that, so far as she was concerned, this was an inevitable accident. In the case of a steamer having opportunity to know that a sailing vessel is approaching, the rule is that the steamer is bound to keep out of the way. Whatever is necessary for this, it is her duty to do. The Fannie, 11 Wall. 240. When a steamer approaches a sailing vessel, the steamer is required to exercise the necessary precaution to avoid a collision and if this be not done, prima facie the steamer is chargeable with fault. The Oregon, 18 How. 570. In the case of The Carroll, 8 Wall. 304, it was said: 'As the steamer did not keep out of the way, and as the collision did occur, the steamer is prima facie liable, and can only relieve herself by showing that the accident was inevitable, or was caused by the culpable negligence of the schooner. ' Many other cases to the same effect might be cited.

The Oregon, with her town, was on a voyage from Milwaukee to Escanaba, and was heading about N.N.E. I do not think she changed her course after her whistle was first heard on the Mott, as was supposed by the master of the Mott. The testimony on the part of the claimants is positive that she did not. The course of the wind may have been such as to carry the sound of the whistle more to the westward than northward, and thus to mislead those on the Mott. Her lights were in place, and burning, as were those on the vessels in tow. Her fog-whistle appears to have been diligently sounded at frequent intervals. There was no omission of duty in these respects. The fog-horn of the Mott was not heard until the vessels were in sight of each other, and close together. This would naturally suggest a negligent lookout, and it appears that the person serving in that capacity was a young man less than 19 years old. But the master and mate were also on watch, and the testimony is direct and positive that attention was given to fog signals, and that none were heard. As the wind was from the south, its tendency would be to carry the sound of the Mott's horn away from the Oregon, and make it more difficult to hear on the steamer. Then, the master says the machinery of the boat made a good deal of noise, and thus it is easy to see that the situation was not favorable for hearing sounds from an approaching vessel.

Without imputing fault to those on board the Oregon on either of the grounds already mentioned, I am still of opinion that the fact of the collision cannot be reconciled with the exercise of due care on the part of the steamer. Notwithstanding the testimony which tends to show that her speed was checked after the fog came on, I cannot resist the belief that she was going at greater speed than was consistent with safety, and that this was the prime cause of the colliding vessels being brought into dangerous proximity. The master says the fog was so dense that he could not see the tow behind him. As the steamer had a tow of two schooners, there was imposed upon her the necessity and duty of greatly increased vigilance and care since there was liability to collision with the vessels in tow as well as with the steamer itself. In the case of The Favorite, 10 Biss. 536, S.C. 9 F. 709, it was held by Judge BLODGETT that the fact that a steamer has barges in tow does not alter the rule requiring her to keep out of the way of an approaching sailing vessel, and that in such a case the steamer should take extra and timely precautions to avoid a collision. In effect, the same ruling was made in The Civilta, 103 U.S. 699. The chief engineer of the Oregon says she was running between three and four miles an hour; but he was not on duty, and merely looked out of his room, where he had retired for the night, and made a hasty observation. The second engineer places the speed of the boat at three or three and a half or four miles an hour. The mate of the Locke says her speed was probably five miles an hour. The master of the Cyclone thinks it was three or four miles, and the master and lookout of the Oregon say it was four miles an hour. The master, mate, and lookout of the Mott testify, from their observations of the steamer as she passed, that she was going from seven to nine miles an hour. Thus the estimates of speed per hour vary from three to nine miles. The schooners in tow were sailing light. At the time of the collision the steamer was under sail as well as steam-power, carrying fore and main sail. The Locke was carrying foresail, main-sail, stay-sail, and two jibs. Whether the Cyclone was under sail does not appear. The wind was free for the steamer and her tow. The master of the Oregon says her sails were not drawing, but why were they up, if not to add to the propulsion of the boat? These are facts which tend to show that the speed of the Oregon and her tow was greater than is stated by the respondent's witnesses. If, instead of driving through a fog as dense as then prevailed, the steamer had stopped, even for a few moments, the noise of the machinery having ceased, the fog-horn of the Mott would probably have been heard. The master knew he was in a locality where there was liability to meet passing vessels.

The violence of the blows received by the Mott furnishes further evidence of the speed of the steamer and her tow. The Cyclone carried away her jib-boom, and, as I infer from the evidence, quickly passed on out of sight in the fog. The blow of the Locke, according to the testimony, carried away bowsprit, knight-heads, rails, stanchions, bulwarks, plank-sheer, four streaks of plank below the plank-sheer, the anchor stock, fore and main rigging, chain-plates and lan-yard, and fore, main, and mizzen topmast rigging, raking the vessel fore and aft.

Added to all this is the fact that the collision with the two vessels in tow occurred in rapid succession. The mate of the Locke says he heard a noise up ahead, which was when the Cyclone struck the Mott, and then, to use his own language 'in a second or two the Mott was right under our lee bow. ' He says, further, that the collision between the Mott and the Locke was within a minute, or a minute and a half, after he heard the noise on the Cyclone. The length of the tow line between the Oregon and the Cyclone was 300 feet. The proofs do not show the length of the line between the Cyclone and the Locke; but the blows of the two vessels in tow were evidently in very quick succession, and it is fair to assume that the length of the line between the Cyclone and Locke was equal to that between the Cyclone and the Oregon. Thus, the facts and circumstances attending the collision point to the conclusion that such caution was not used in the matter of speed as the situation required. In so dense a fog, especially as the steamer had vessels in tow stretching out 500 or 600 feet behind her, I think it would hardly be unreasonable to say that it was her duty to stop long enough to listen for sounds from vessels that might possibly be approaching. At any rate, she could...