Opinion
No. 4936.
March 28, 1927.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge.
Suit by the Redwood Steamship Company, owner of the steam schooner Katherine, against the United States Shipping Board Emergency Fleet Corporation and the United States. Decree for respondents, and libelant appeals. Affirmed.
William Denman and William B. Acton, both of San Francisco, Cal., for appellant.
Geo. J. Hatfield, U.S. Atty., and Esther B. Phillips, Asst. U.S. Atty., both of San Francisco, Cal., for appellees.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
On the morning of May 3, 1924, the steamship President Lincoln came into collision with the steam schooner Katherine on the waters of San Francisco Bay, causing injury to the latter. The present libel was filed in the court below to recover damages for the injury thus sustained, and, from a decree of dismissal, the present appeal is prosecuted.
Shortly before the collision, the Lincoln left quarantine near Alcatraz Island, and was proceeding around the docks and piers to her berth at pier 44. At the same time the Katherine was proceeding from the Alameda side of the bay to pier 17 on the opposite shore. The vessels sighted each other as the Katherine rounded Goat Island. They were then approximately one half mile apart according to the testimony of the two masters, and the customary passing signals were exchanged. When sighted, the Katherine had the Lincoln on her own starboard side, and under the inland rules it was her duty to keep out of the way of the Lincoln and to slacken speed, or stop, or reverse if need be. On the other hand, it was the duty of the Lincoln to keep her course and speed. The officers of the Lincoln testified that she did maintain her course and speed; that the Katherine likewise maintained her course and speed until she crossed the bow of the Lincoln, when the vessels were about 300 feet apart; that the Katherine then turned abruptly to starboard; that danger signals were given; and that the Lincoln struck the Katherine a glancing blow about 18 feet forward of the stern on the port side. The officers of the Katherine, on the other hand, testified that immediately upon the giving of the passing signals the Katherine ported her helm and continued so to do until the time of the collision, and that the Lincoln turned her course to port, striking the Katherine before she had time to get out of the way
The court below found the facts substantially as testified to by the witnesses for the appellees. It found that the Lincoln maintained her course; that her change of speed, if any, in no wise contributed to the accident; that the Katherine maintained her course and speed after the passing signals were given until she had crossed the bow of the Lincoln; that she could have crossed in safety had she continued on that course, but that she turned abruptly to starboard when the danger signals were given and was struck by the Lincoln as already stated.
These findings in the main are amply supported by the testimony. Counsel for the appellant contends, however, that certain facts and circumstances in the case demonstrate that the witnesses for the appellees were either mistaken or testified falsely. In support of their contention that the Lincoln was constantly increasing her speed up to the time of the collision, it is claimed that her full speed was 18 knots per hour, that the second turbine was cut in 8 or 9 minutes before the collision, and that this would necessarily increase her speed and would continue so to do until the maximum speed of 18 knots per hour was reached. But the master of the Lincoln testified that full speed ahead in port did not mean 18 knots per hour, or anything like that rate of speed. What rate of speed it did indicate he did not state, nor was he asked to explain. All of the officers of the Lincoln agreed that there was no material change of speed prior to the collision, and there was no substantial testimony to the contrary on the part of the appellant, aside from testimony tending to show that the Lincoln appeared to be coming pretty fast prior to the collision. Furthermore, when the vessels were first sighted at a distance of about one-half mile apart, they were approaching each other almost head on; the master of the Katherine placing the position of the Lincoln at about a point off his starboard bow, the master of the Lincoln placing the position of the Katherine at about two or three points off his port bow. The speed of the Lincoln was about 9 or 10 knots per hour, and the speed of the Katherine about 6 knots per hour, so that the combined speed of the two vessels would cover the distance between them in about two minutes. It seems apparent, therefore, that the speed of the Lincoln increased little if any in that brief period, and we agree with the court below that her change of speed in no wise contributed to the collision.
Again, it is contended that, notwithstanding the testimony to the contrary, the Lincoln changed her course immediately prior to the collision, and that this change is demonstrated by the gyroscope record. An expert witness for the appellant testified that the change of course to port, as indicated by this record, occurred shortly before the collision, while a like witness for the appellees testified that the change took place after the collision, when the Lincoln changed her course to stand by the Katherine. The time indicated by the gyroscope record was some minutes slower than the time indicated by the ship's clock, and for this reason, among others, the witnesses were not agreed as to the course of the Lincoln at the time of the collision as indicated by the chart. As already stated, one witness was of opinion that the change of course preceded the collision, while the other was of opinion that the change followed the collision. It seems to us that the latter view is the more reasonable and better harmonizes with the other testimony in the case, especially in view of the fact that no reason has been assigned for any such change.
Again, it is contended that there were erasures and defects in some of the ship's logs, and that witnesses were not called to explain these changes and defects. In answer to this contention we deem it sufficient to say that no such claim was advanced in the court below, and it is now too late to raise these questions after all opportunity for explanation has passed. Realizing this, perhaps, counsel for the appellant suggested on the argument that the appellees might have applied to this court for leave to take further testimony after the charges were made in their brief, but the appellees were under no obligation to make the application, and there is little likelihood that it would have been granted, if made.
It is likewise contended that the appellees failed to produce as witnesses the helmsman and the engineers, and that such failure on their part gives rise to a strong presumption that the testimony would be unfavorable to them if produced. But the collision occurred in the open bay, in broad daylight; the appellant called as witnesses five or six officers and others who were in a position to observe the movements of the two vessels at and prior to the collision, and we doubt very much whether the court would be at all aided if the record had been incumbered with the testimony of the entire crew and all the passengers.
Another contention is that the claim of the appellees that the Katherine made a 90 degree turn within the brief period elapsing between the giving of the danger signals and the collision is absurd. There would seem to be merit in this contention unless the witnesses were mistaken in their estimates as to courses, time, or distance. But the contention of the appellant that the Katherine turned to starboard upon the giving of the passing signals and continued so to do, until the collision occurred is equally untenable. As already stated, the Katherine was headed almost directly for the Lincoln and the Lincoln was headed almost directly for the Katherine when the vessels sighted each other, and, if the Katherine immediately turned to starboard and continued so to do, there would have been no collision. And, while it does not seem probable or even possible that the Katherine could cross the bow of the Lincoln on the course indicated by some of the witnesses and then turn so abruptly as to receive the blow on the opposite side, yet it seems equally clear that the Katherine did not change her course when the passing signals were exchanged, as claimed. The collision took place at a point opposite pier 17, which was the destination of the Katherine. The distance off shore or from the pier to the place of collision was estimated by all the witnesses save one at from little more than a ship's length to 1,000 or 1,200 feet. This would seem to indicate that the Lincoln was little, if any, off her course, considering her size and destination, and it would likewise seem to indicate quite clearly that the Katherine continued on her course toward the pier after the passing signals were given, and that she did not yield the right of way by immediately turning to starboard as claimed, and as was her duty to do.
Other contentions are made in the briefs, but they call for no comment. The only question in the case was a question of fact; the court below found adversely to the appellant, and we see no sufficient reason for disturbing the finding thus made.
The decree is affirmed.