The Munrio , 11 F.2d 900 ( 1926 )

KERRIGAN, District Judge.

These are two libels, brought to recover, for damage which resulted from the collision of two vessels near Cape Mendocino on October 14, 1923.

The steamship Munrio, the more severely injured of the two, was on her way southward from Coos Bay, holding a course 2 degrees eastward of due south. At 7:34 a. m. she was proceeding in dense fog. At that time she stopped to take a sounding, and after doing so went ahead slowly until 7:46, when the fog signal of an approaching vessel was heard, apparently dead ahead and some distance off. According to the testimony of several witnesses, her engines immediately were stopped.

About three minutes later the whistle of a third vessel became audible, apparently several points off the port bow. The Munrio thereupon went ahead again at a slow rate of speed, at the same time changing her course about two points to starboard. At 8:01, in response to dangerously nearing fog whistles, she was swung four points further in that direction. A minute later the Tejan loomed -up, 300 feet away, two points forward of the port beam, and heading for the bridge. The Munrio’s engines were put full speed' ahead and her wheel hard aport; hut before the effect of- this maneuver could be felt she was struck amidships and nearly sunk.

The Tejón is an oil tanker, 430 feet long, and at the time of the accident was heavily laden with a cargo of oil in bulk. At 7:45 a. m. she was on a true course of 358 degrees, exactly parallel to that of the Munrio, when the latter vessel’s whistle was heard on her starboard bow. Although navigating in thick fog, she continued to run, as she had been running for some time, at full speed. At 7:50 her speed was reduced to half, and at 7:56 to slow; but it was not until 8:02, when the Munrio was sighted, with her entire port side in view, that her engines were stopped. At 8:03 she went full speed astern, but not in time to avert collision, which had become inevitable.

Each vessel denounces the other as having been entirely at fault. Article 16 of the International Rules of the Road (Comp. St. § 7S54) provides that “every vessel shall, in a fog, * * * go at a moderate speed, having careful regard to the existing circumstances and conditions”; also that “a steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, * * * stop her engines, and then navigate with caution until danger of collision is over.”

That the Tejón was guilty of a double violation of this rule is conclusively established by the testimony of her own witnesses. Prom 5:52 until the vessels met, she was continuously in dense fog. Paragraph 1 of the rule quoted, as interpreted by the courts,, required her, two hours in advanee of the accident, so to reduce her speed as to make it possible for her to stop in time to avoid collision with any properly approaching vessel, upon coming in sight of it. The Conner (D. C.) 300 F. 827, 830, and cases cited; The Belgian King (C. C. A. 9) 125 P. 869, 876, 60 C. C. A. 451. She was, in the language of the case last cited, “bound to observe unusual caution, and 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 could collide with a vessel which she could see through the fog.” Instead of doing so, from 7:11 until 5 minutes after hearing the first whistle of the Munrio, she ran at full speed of at least 9 miles per hour, dropping down for the next 6 minutes to half speed, which of itself was clearly excessive.

In the Belgian King, supra, the vessel of that name had run. through fog for 15 minutes at 8% knots per hour before hearing the whistle of an approaching vessel forward of her beam. The engines immediately were put at slow, and 5 minutes later were stopped and reversed. A collision occurred 2 minutes afterwards. It was -held, as I think it must be held here, that, had the offending vessel properly reduced speed when fog was encountered, she would have been able to avoid the accident.

In the present ease all hands are agreed that, when struck, the Munrio lay almost squarely across the Tejon’s bows. Her progress through the water in the direction from which that vessel was coming was negligible. It therefore is apparent that the momentum gained by the Tejón during 39 minutes of unjustifiable full speed, aided by 12 minutes of slower steaming, was too great to be checked within the limited distance of visibility. This of itself is sufficient demonstration of negligence. The Manchioneal (C. C. A. 2) 243 F. 801, 805, 156 C. C. A. 313.

But the Tejon’s inexcusable failure to stop her engines on hearing the Munrio’s first fog signal was an even more obvious fault. The second paragraph of rule 16 imposed an absolute duty upon her to do so, violation of which may not be ignored (The Beaver [C. C. A. 9] 219 F. 134, 137, 135 C. C. A. 32; Lie v. San Francisco & Portland Steamship Co., 37 S. Ct. 270, 243 U. S. 291, 296, 61 L. Ed. 726), and with which during a space of 17 minutes admittedly no attempt whatever was made to comply. Hence in two important particulars she was guilty of highly culpable negligence.

The remaining question is: Was the Munrio, under the circumstances of her position, at fault in- changing her course? Her witnesses all claim that, when they first heard the Tejon’s whistle, it seemed to be coming from dead ahead. But inasmuch as at that time the courses of the vessels were exactly parallel, had this been true, any substantial change by either would have prevented their coming together. The only conclusion to be drawn from subsequent events is that at 7:46 the Munrio was about half a mile eastward of the Tejon’s path of navigation, and that her changes of course, instead of bringing that vessel abeam, had an opposite result.

It is urged that these changes of course were made without regard to their probable effect, that they proximately contributed to the accident, and that, had either of them been omitted, the vessels would have passed in safety. More specifically, the charge is that the Munrio’s action carried her obliquely across the lane of north-bound traffic; that she speculated on the position of fog whistles, the position of which she had not ascertained, and in attempting to avoid them placed herself almost at right angles to the usual path of navigation, thus exposing herself to injury. The second paragraph of article 16 is invoked, and it is vigorously asserted that, after her engines had been stopped, the Munrio did not “navigate with caution until danger of collision is over.”

If the record contained even slight palliation of the Tejon’s own disregard for this rule, her argument might seem to come with a better grace. “But the offending vessel always accuses. What was done by the unoffending vessel in the high peril which the offending vessel’s wrongdoing had brought shows the reverse of beneficial action. If the injured vessel moved, then she should not; if she remained at rest, she should not; if she went forward, she should have gone astern; if she reversed, it was the height of unskillfulness; and so the delinquent seeks to escape, in whole or in part, from the results of his own wrongdoing.” The Ponce (D. C.) 116 F. 55, 56. Significantly, the rule laid down repeatedly by the Supreme Court is that, where fault on the part of one vessel is obvious and inexcusable, the evidence to establish that of another must be clear and convincing to make out a ease for apportionment. The City of New York, 13 S. Ct. 211, 147 U. S. 72, 85, 37 L. Ed. 84; The Ludvig Holberg, 15 S. Ct. 477, 157 U. S. 60. 71, 39 L. Ed. 620; The Umbria, 17 S. Ct. 610, 166 U. S. 404, 409, 41 L. Ed. 1053; The Victory, 18 S. Ct. 149, 168 U. S. 410, 423, 42 L. Ed. 519.

No contention is made that the Munrio committed any act specifically prohibited by the International Rules, or that she failed to do any act made mandatory by them. On the other hand, full speed in a fog, in known proximity to ánother vessel, is so gross a fault that the Munrió’s negligence must be made very clear before she will be condemned. The Umbria, supra.

It may, of course, be argued that a vessel ought never to change her course (without reversing) while ignorant of the exact position of an approaching vessel. In three eases decided by Judge Brown there are intimations to this effect (The Alberta [D. C.] 23 F. 807, 811; The City of Atlanta [D. C.] 26 F. 456, 461; The Wyanoke [D. C.] 40 F. 702, 704), and there are others which lend authority to such a view. But in The Umbria, speaking for the Supreme Court, Judge Brown himself declared that there was no rigid rule applicable to such eases, and approved a decision of the House of Lords that each must depend on its own circumstances, which may or may not be sufficient to excuse the action complained of. The Vindomora, [1891] App. Cas. 1.

The first change of course made by the Munrio was almost identical with that of the Iberia in the Umbria. The officers of the latter vessel heard the Umbria’s first whistle about two points on their port bow, and immediately put her head two points more to starboard. Without this maneuver collision might have been avoided. But the court held that, although it would have been more prudent for the Iberia not to have changed her course until the position and course of the Umbria had been definitely ascertained, “yet in view of the fact that the whistle of the Umbria appeared to come from off her port bow, we should be unwilling to say that it was necessarily a fault on her part to port her helm two points, the effect of which would be to give the Umbria more room.”

It is possible that under the circumstances of her position, five miles north of Blunt’s Reef, the Munrio had a right to assume that the Tejón was inshore of her, and off her port bow, just as it was possible that the Iberia had a right to assume that the Umbria was pursuing a course substantially parallel to her own. For this reason, the Munrio’s first change of course may not be held to have been negligent. The Belgian King (C. C. A. 9) 125 F. 869, 877, 878, 60 C. C. A. 451; The Umbria, supra. Her second change, which was made but a single moment before the vessels came in sight of each other, might be excused on similar grounds; but it is unnecessary to excuse it at all.

While a majority of the Supreme Court were of opinion that the Iberia was not at fault in changing her course, other of its members believed that (even if such were not the case) her negligence did not contribute to the collision. As far as progress in the direction of the Tejón was concerned, up to her final full speed ahead movement, the Munrio virtually was stopped. To be exact, her speed, which was barely 3 miles an hour, was carrying her southward, and across the Tejon’s path at an angle of 70 degrees, with only a third of her actual speed, or 1 mile per hour. Bowditeh, table 2. Yet the crash made by the impact of the vessels, not only was loud enough to be heard on the Culburra, more than 400 yards away, but was so loud as to cause that vessel to stand by and clear away her lifeboats, thinking that the Munrio had been sunk. The mere facts seem to prove beyond question that the Tejon’s speed could not have been in proper control, and that, even if the Munrio had been dead in the water, the Tejón would have run her down.

It is further contended that the evidence fails to disclose that a lookout was on duty on board the Munrio at the time of the accident, and it is admitted that efforts to produce him were unavailing. I am satisfied that a lookout was on duty, and equally convinced that, had there been none, his absence would not have contributed to the collision. The master of the Munrio testified that he had a lookout stationed on the forecastle head. No attempt was made to cross-examine him upon the point, or to elicit any information as to how he knew the lookout was there. I cannot find a shred of evidence in the record from whieh the deduction may fairly he made that his testimony was incorrect.

It also has been argued that the Munrio did not sound proper fog signals. Her witnesses testified that the whistle was sounded regularly, and none of those produced by the Tejón could swear that there was more than a two-minute interyal, as required by the rule, between the blasts whieh were heard by them. Yet it is alleged that the Munrio “did not conform to the salutary practice of careful navigators by shortening the interval, so the approaching vessel could definitely locate her, and ascertain what she was doing.”

Such an excrescence, in my opinion, should not be grafted on the rule, whieh is a sufficient standard of due care. Additionally, it is to be observed that this “custom of careful navigators,” not only has been established by men guilty of flagrant violations of the express provisions of article 16, but that it is supported by at least one master mariner who regards full speed in a fog as good seamanship. The two-minute rule for fog signals, of course, has been adapted to vessels whieh navigate at proper speeds. The fact that it is inadequate for those which do not is insufficient ground for its amendment by the courts.

The Tejon’s final contention is that the Munrio was at fault for going ahead at full speed when collision was imminent. To this there are several answers. Article 27 (Comp. St. § 7866) provides that, in obeying the other rules, due regard shall be had to any special circumstances whieh may render a departure from them necessary in order to avoid immediate danger. It justifies an attempt to save a vessel when by rigid adherence to rules she could not be saved from injury, and in fact makes such adherence in some eases negligence. Secondly, if the Munrio’s ultimate maneuver was faulty, it was error in extremis. Lastly, it did not contribute in any way to the happening of the accident, and for that reason alone may be disregarded.

It follows that the owners of the Munrio are entitled to a decree against the owners of the Tejón for full damages, and that the libel against their vessel must be dismissed. It is so ordered.