THE WW BRUCE
| Decision Date | 04 March 1938 |
| Docket Number | No. 58.,58. |
| Citation | 94 F.2d 834 |
| Parties | THE W. W. BRUCE. THE SAN VINCENTE. WEYERHAUSER TIMBER CO. et al. v. CONTINENTAL S. S. CO. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Stanley R. Wright, both of New York City, of counsel), for appellant.
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Cletus Keating and W. H. McGrann, both of New York City, of counsel), for The San Vincente.
Bigham, Englar, Jones & Houston, of New York City (D. Roger Englar, T. Catesby Jones, James W. Ryan, and W. J. Nunnally, Jr., all of New York City, of counsel), for certain owners of cargo on The San Vincente.
Carter, Ledyard & Milburn, of New York City (Rush Taggart, of New York City, of counsel), for other cargo owners.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This litigation arose out of a collision between the steamships Bruce and San Vincente which occurred in Craighill Channel in Chesapeake Bay on October 13, 1934, about 8:05 p. m. The Bruce, a tank steamer with a full cargo of bulk oil, was inbound for Baltimore; the San Vincente, with miscellaneous cargo and a deck load of lumber, was outbound from that port. For damages resulting from the collision, a libel was filed against the Bruce and her owners by owners of cargo on the San Vincente; similar libels were filed by other cargo owners. The owners of the Bruce impleaded the San Vincente and her owners. The owners of each vessel filed a libel against the other, and the owners of the San Vincente impleaded her cargo owners. The causes were consolidated for trial, which resulted in an interlocutory decree holding the Bruce solely at fault. Her owners have appealed. Owners of cargo carried by the San Vincente have filed assignments of error to rulings with respect to certain pleadings. The controversy thus raised has to do with the validity of a clause in the bills of lading and is material only if both vessels are held at fault.
In the District Court and in this court each vessel has contended that the collision occurred on her side of the channel and was solely due to the fault of the other in being on the wrong side. The trial judge found that the place of collision was on the westerly side of the channel, the San Vincente's side, and without fault on her part. All of the testimony was by deposition. Under such circumstances, the findings of the District Court, though not to be lightly disregarded on appeal, are not entitled to the same weight as when the trial judge has the advantage of drawing conclusions from the appearance of witnesses. On this appeal our opportunity to determine the crucial facts is equal to his. The Coastwise, 2 Cir., 68 F.2d 720, 721.
Craighill Channel is slightly less than 3 miles long; it is dredged to a depth of 35 feet at mean low water for a width of 600 feet. The channel course is N 5/8 E for inbound vessels, and the range lights are in line from a vessel in midchannel. The width of the channel is marked by even-numbered buoys on the east and odd-numbered buoys on the west. Some of these buoys had been moved out of position prior to the night in question, and an official Notice to Mariners, dated September 5, 1934, giving warning of their changed locations, was in force. At its northerly end Craighill Channel joins Cutoff Channel running N by W toward Baltimore. The junction is marked by lighted buoys, 2 K on the east and 13 C on the west. The San Vincente, followed by another outbound vessel, the State of Maryland, came down Cutoff Channel and rounded buoy 13 C into Craighill Channel. Between buoys 13 C and 11 C she was overtaken and passed on her right (the westerly side) by the Maryland. Disinterested witnesses from the latter vessel say that the San Vincente was then a little to the east of the center of the channel. As the Maryland was passing, the San Vincente blew a one-blast signal to the upbound Bruce, which was then about a mile away, and the Bruce answered with one blast, thus agreeing to a port to port passing. The Maryland continued on and passed the Bruce port to port a little below 9 C. According to the Maryland's officers the Bruce was then on the east side of the channel; but not nearly so far over as she claims; namely, about 75 feet from the eastern buoys. Shortly before the Maryland reached the Bruce, the latter sounded four or five short blasts, followed by a backing signal. The San Vincente and the Bruce were then about half a mile apart, and the reason given by the Bruce for sounding the alarm and putting her engines in reverse was that the San Vincente was still showing her green light. Despite the Bruce's danger signal, the San Vincente continued at full speed, 10 knots, and about half a minute later put her rudder hard right in an effort, as she says, to run out of the western side of the channel. The vessels came together with such violence that the stem of the Bruce was imbedded in the port side of the San Vincente to the depth of some 12 feet. The point of contact was 127 feet from her stem. The angle of collision was 45° according to the Bruce's testimony, and nearly 90° according to the San Vincente's. When the vessels came to rest, the San Vincente was against the western bank of the channel a short distance above buoy 9 C, and the stem of the Bruce was locked fast in her port side. According to the San Vincente's log, her engines continued at full speed ahead for two minutes after the collision. It is the contention of the Bruce that the collision occurred on the easterly side of the channel and that she was dragged by the San Vincente across the channel to the western bank. The latter contends that she was practically on the mud when the Bruce struck her.
In our opinion both vessels must be held at fault. When the Bruce accepted the San Vincente's passing signal, she did not put her rudder right, her excuse being that she was already on the extreme east side of the channel and only about 75 feet from the buoys. This position is not only contradicted by the distance between the Bruce and the Maryland when they passed, as testified by members of the Maryland's crew, but also by the fact that with the buoys in their changed locations it would have put her just on the edge of the dredged channel where she probably could not have navigated because of insufficient water. Finally, the angle of collision proves that it could not have occurred close to the eastern edge of the channel. This is so because a ship's change of heading before she leaves her course under a hard-over helm is considerably less than 40 degrees. The Bruce was therefore at fault, even though she was on her own side of the center of the channel, as we think she was, when she accepted the passing signal, because she did not co-operate by putting her rudder right and giving the San Vincente more room. The latter was also at fault. In putting her rudder easy left to allow the Maryland to pass, she got into the Bruce's side of the channel, and she certainly did not get back to her own side as soon as she could and should. This is shown by her log. The "easy left" helm was followed by "steady" for one minute, "easy right" for two minutes, "easy" for one minute, "right" for one minute, and "hard right" for one minute, then "collision." She was also at fault in keeping on at full speed after the Bruce's alarm. She was endeavoring to cross the Bruce's bow, a maneuver which, even if sometimes justifiable in an emergency, cannot be so justified here, for she did not put her rudder hard right until half a minute after the alarm. If, as we believe, the collision occurred somewhere near the center of the channel, the place where the vessels came to rest can be accounted for by the speed of the San Vincente for two minutes after they were locked together.
Since both vessels were at fault, we must consider the questions raised by the assignments of error of owners of cargo on the San Vincente. The bills of lading contained a "both to blame collision" clause, reading as follows: "If the shipowner shall have exercised due diligence to make the ship seaworthy and properly manned, equipped and...
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