The Sagamore

• Decision Date: 15 November 1917
• Docket Number: 1157-1159.
• Citation: 247 F. 743
• Parties: THE SAGAMORE.
• Court: U.S. Court of Appeals — First Circuit

247 F. 743

THE SAGAMORE.

Nos. 1157-1159.

United States Court of Appeals, First Circuit.

November 15, 1917

James Wilkinson and Wm. S. Hero, both of New Orleans, La., for appellant.

T Semmes Walmsley and Michel Provosty, both of New Orleans La., for appellee.

Before BINGHAM, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

These are appeals from the decision of the District Court that the British steamer Sagamore was not in fault for a collision, in a dense fog, with the fishing schooner Olympia, 2:30 a.m June 17, 1913, off the coast of Nova Scotia, between 40 and 50 miles south of Sable Island and in the vicinity of the Grand Banks.

The schooner was on the starboard tack, on a course nearly at a right angle to that of the steamer, and was struck on her port side aft the mainmast, and so deeply cut that she sank in a few minutes. Of her crew of 14 the master and 5 men were drowned. Eight men succeeded in boarding the steamer while the vessels hung together, and before the schooner sank.

The primary question is whether the Sagamore, before the collision, was going, as required by article 16 of the International Rules, 'at a moderate speed having due regard to the existing circumstances and conditions.'

The Sagamore, length 430 feet, beam 47 feet, normal speed 12 or 13 knots, on a voyage from Liverpool to Boston, ran into a dense fog about 2 a.m., half an hour before the collision. She was then in a part of the ocean where her officers well knew that fishing vessels were usually found, and where special precautions for discovering and avoiding them were necessary. Her speed was reduced from 12 or 13 knots to slow speed, which she held until a single blast of the horn of the Olympia was heard, a few moments before the collision. The District Court found the reduced speed to be about 5 knots. The answer to libelants' interrogatories gave her speed about 5 1/2 knots. This was sworn to October 29, 1913, by her master, Alexander Fenton, as claimant. Subsequently, on March 4, 1914, on the witness stand, he put the speed at about 5 knots, with the explanation that his answer to interrogatories was on the assumption that the engines were making 32 turns, and that he subsequently learned that they were making but 30 turns. Upon so critical an issue of fact the admissions in pleading must be given weight. Rarely does a party defendant on such an issue make statements too favorable to the libelant. The Serapis (D.C.) 37 F. 436, 442; Benedict's Admiralty (3d Ed.) Secs. 518, 519. Under the English practice, the 'Preliminary Act,' the object of which is to obtain from the parties statements of facts at a time when they are fresh in their recollection as a rule, cannot be subsequently amended. O 19, r 28, 224.

Without attributing to the master 'more coloring than an upright man may insensibly give to facts in which his interest and feelings are involved ' (Hutson v. Jordan, 1 Ware, 393; Fed. Cas. No. 6959), and after consideration of the other proofs, we are of the opinion that the claimant's original admission was not made inadvisedly, and that the general speed for the half hour before collision was not less than 5 1/2 knots.

It was found by the District Court, and is conceded by the appellee, that the night was so dark and the fog so dense that, while going at this rate, the discovery of the lights of other ships could not be relied upon to enable the Sagamore to avoid collision by stopping and reversing. The District Court says, 'Sight, as both sides agree, was of little use in avoiding collision; ' and this, under the conditions, seems true if the Sagamore was going at a speed as high even as 5 knots. In the opinion of the District Court it is said:

'It is urged that the steamer was at fault whatever her actual speed may have been, because she was unable to stop within the distance over which other vessels could be seen. There are expressions in opinions entitled to great weight which support that view; there are other decisions which are inconsistent with it; and the weight of authority seems to me now to be against it.'

This is assigned as error. Should we apply the rule that speed such that another vessel cannot be seen in time to avoid her is unlawful, the Sagamore must be condemned for a violation of article 16. In The Umbria, 166 U.S. 404, 417, 17 Sup.Ct. 610, 615 (41 L.Ed. 1053) it is said:

'The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law. In a dense fog this might require both vessels to come to a standstill, until the course of each was definitely ascertained,' etc.

In The Chattahoochee, 173 U.S. 510, 548, 19 Sup.Ct. 491, 494 (43 L.Ed. 801):

'It has been said by this court, in respect to steamers, that they are bound to reduce their speed to such a rate as will enable them to stop in time to avoid a collision after an approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.' In The Nacoochee, 137 U.S. 330, 339, 11 Sup.Ct. 122, 125 (34 L.Ed. 687), the statement is that the steamer--

'was bound * * * to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.'

The latest expression of an English court applying article 16 that has been brought to our attention is in The Counsellor, L. R. Prob. Div. 1913, pp. 70, 72, 73:

'I think a very fair rule to make is this, and it is one that has been suggested to me by one of the Elder Brethren: You ought not to go so fast in a fog that you cannot pull up within the distance that you can see. If you cannot see more than 400 feet, you ought to be going at such a speed that you can pull up. If you are going in a fog at such a speed that you cannot pull up in time if anything requires you to pull up, you are going too fast. If you cannot retain steerageway at such a speed, then you should manage by alternately stopping and putting the engines ahead. In my opinion 4 1/2 knots was, in the circumstances of the case, too great a speed for the Counsellor to proceed at.'

See, also, Marsden's Collisions at Sea (6th Ed.) p. 374; Hayne's Rule of the Road at Sea, pp. 18, 64; The Michigan, 63 F. 280, 287, 11 C.C.A. 187; The Nymphaea (D.C.) 84 F. 711, 715; The Newport News, 105 F. 389, 44 C.C.A. 541; The West Brooklyn (D.C.) 106 F. 751, 752; The George W. Roby, 111 F. 601, 610, 49 C.C.A. 481; The Belgian King, 125 F. 869, 60 C.C.A. 451; The Georgia (D.C.) 208 F. 635; The Kentucky (D.C.) 148 F. 500, 502; The Bayonne, 213 F. 216, 217, 129 C.C.A. 560; The Hilton (D.C.) 213 F. 997, 1001; The Rosaleen, 214 F. 252, 254, 130 C.C.A. 622; The Port Johnson Towing Co., 232 F. 141, 146 C.C.A. 333; The Manchioneal, 243 F. 801, . . . C.C.A. . . .; The Robert M. Thompson, 244 F. 662, 671, . . . C.C.A. . . .; The Etruria, 147 F. 216, 77 C.C.A. 442; U.S. Compiled Stats. 1916, vol. 7, Sec. 7854, note 5; section 7889, note 11; 'Modern Seamanship,' Knight, pp. 254-259, 304.

It appears that there is a very general tendency to apply strictly, and without qualification, the rule that was rejected by the District Court, and we think that the later cases interpret the decisions in The Chattahoochee and The Umbria as in practical agreement with the statement in The Counsellor. Nevertheless, the claimant's contention that this rule has not been fully adopted by the Supreme Court itself, and that it is unreasonable, requires consideration.

The view expressed in Hughes on Admiralty, p. 227, is that the rule does not seem to be a satisfactory or practical test, since a fog may be so thick that one can hardly see the stem of his own vessel, much less an approaching vessel, even though only a few yards off; hence the rule carried to its logical consequences would require the vessel to cease to move; and then, as was pointed out in The Colorado, 91 U.S. 692, 23 L.Ed. 379, danger still attends her, as other vessels may come upon her. 'Perfect security under such circumstances is impossible.' But in The Chattahoochee, 173 U.S.at page 548, 19 Sup.Ct. 491, 43 L.Ed. 801, it seems to be recognized that what is demanded is a slackening of speed to the lowest rate consistent with good steerageway; and in The Umbria, 166 U.S.at page 412, 17 Sup.Ct.at page 614 (41 L.Ed. 1053), it was expressly decided:

'As the general speed of the Ivernia did not exceed 4 knots an hour, the lowest speed necessary to the maintenance of steerageway, it is clear that she was guilty of no violation of the thirteenth article'-- i.e., article 13 of Revised International Regulations of 1885, 23 Stats. 438.

The claimant contends that the true criterion is expressed in The Zadock, 9 Prob.Div. 116:

'It is the duty of the ship, whether she be a sailing vessel or a steamer, to moderate her speed as much as she can, yet leaving herself with the capacity of being properly steered.'

In The Colorado, 91 U.S. 692, 23 L.Ed. 379, and in The Martello, 153 U.S. 70, 14 Sup.Ct. 723, 38 L.Ed. 637, 'the lowest rate of speed consistent with good steerageway' seems to be regarded as the 'moderate speed' required under such conditions. But this formula also is subject to qualification. The inability of a particular vessel to go slow and still maintain steerageway is not an excuse. Were it to be adopted, the rule of moderate speed might be modified by shipbuilders.

In The Pennsylvania, 19 Wall. 125, 134, 22 L.Ed. 148, it was contended that a rate of 7...