Appeal from the District Court of the United States for the Western District of New York.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
The steamer Arcturus, owned by the appellant, and the steamer P. E. Crowley, owned by the appellee, collided at 5:15 a.m. June 9, 1934, in the basin of the harbor at Erie, Pa. It was a clear day with a breeze of about 25 miles per hour southward. The harbor is a land-locked harbor running on the south shore of Lake Erie and is about four miles long and a mile and a half wide at its widest part. The entrance thereto is on the easterly side of the harbor through a channel about 300 feet in width and a mile and five-eighths long. The channel runs in a northeasterly and southwesterly direction terminating in Lake Erie on one end and in the basin, where the collision occurred, on the other. The basin is dredged about 22 feet deep on the northerly side of the basin toward which the stern of the Arcturus was pointing for several minutes before and after the collision; slopes upward gradually from the bottom of the basin until it reaches a depth of about eight feet and from there the water shals gradually to the shore about half a mile away from the basin. There are docks on the south side of the harbor at its easterly end for which the Arcturus was bound and a dock for which the Crowley was bound lies a few hundred feet to the west. The Arcturus was without cargo but with water ballasting her so that her draft was 6'1" forward and 14' aft, and she was bound for the coal dock to take on a cargo of coal. The Crowley was partly loaded with package freight, with a draft of 11' forward and 15' aft and was en route to her dock.
The Arcturus is a freighter 514' long, 54' beam and a moulded depth of 31'. The Crowley is 381' long, 51' beam and a 29' moulded depth. The Arcturus entered the harbor at 4:47 a.m. and the Crowley at 5:05 a.m.
The lakeward end of the entrance channel is marked by two outer buoys, and after passing these buoys, the inbound vessel passes between concrete piers on the northerly one of which is a range which vessels use in steering into the harbor. After passing the piers and getting on the range, an inbound vessel comes first to a pair of buoys which mark the southerly and northerly limits of the channel and which are about 900 feet from the basin. The next pair of buoys mark the junction of the channel with the basin. The channel is about 9400' long and is flanked about a third of its distance by government docks; it is about 300' wide and 20' deep.
The Arcturus in entering the harbor, bound for its dock, had to make a turn of about 7 points to her port. Before the Arcturus reached the outer buoys at the entrance to the channel, she checked her engines to half speed or about 6 to 7 miles per hour and when passing between the piers she checked to slow speed which gave her about 2 to 3 miles an hour and continued thus holding up into the wind until she reached a point where she sought to swing with the rudder hard left, setting her engines ahead stronger, and swinging to port and into the basin intending to go to the dock where she was to load. In order to assist the swing, the port anchor of the Arcturus was let go. The anchor dragged on the bottom; it did not grip the bottom, and more chain was put out before the anchor did grip, and the Arcturus began to swing. Presently the anchor fouled so that the Arcturus could no longer drag it along. At that time she had made a swing to port and was heading on the elevator dock which is the dock next to the Crowley's and there, despite the fact that the engine of the Arcturus was working half speed ahead, her anchor with about 30 fathoms of chain out, brought her to a standstill heading into the south wind and on the southerly side of the range line. Letting go her port anchor to assist her swing was a customary and usual maneuver in making the turn. There was a tug strike at Erie which prevented obtaining a tug to assist in docking.
The captain of the Arcturus ordered the chain windlass locked so that the wildcat would revolve preparatory to heaving up on the anchor chain with the anchor windlass to break the anchor's hold on the bottom. As soon as the anchor windlass was locked, the master saw the Crowley which was then at the entrance to the channel or outside the outer end of the entrance piers about a mile and a half away. She was coming down toward the basin and did not check her speed but came full speed ahead through the channel toward the basin. The Arcturus, in its stationary position, was within sight of the Crowley from then until the time of the collision. But the Crowley continued on and when nearing the inner end of the entrance piers she sheered to port for an unexplained cause. When the Crowley was abreast the lookout station, about 900' from the west end of the north pier, the Arcturus blew a three-blast signal to the Crowley to check down. The Crowley was then more than 3000' away from the Arcturus. The Crowley did not respond to the three-blast signal of the Arcturus but continued to approach, maintaining her speed. After passing through the piers, the Crowley hauled onto the ranges which marked the center line of the channel and her speed was not reduced until after she passed the inner end of the north pier and then only to half speed which gave her about 9 miles per hour. She continued at this rate until her bow had entered the basin where the Arcturus was lying. When about 900' away from the basin where the Arcturus was, she blew a one blast signal to the Arcturus, at which time the Arcturus was unable to maneuver.
The captain of the Crowley knew that the three-blast whistle to him meant to check down. He could have seen the anchor chain and known that the Arcturus was holding the chain taut in the wind by the use of her engines. The Crowley's one blast whistle indicated that she was directing her course to starboard and intended to pass under the stern of the Arcturus where there was admittedly ample room. The stern of the Arcturus was only fifty feet into the channel. The Crowley continued coming at about 9 miles an hour, directing her course between the stern of the Arcturus and the Red Gas Buoy No. 8 until, when about 600' from the Arcturus, she suddenly sheered to port and toward the Arcturus. She did not immediately back or drop her anchor but tried to overcome her sheer by the use of her helm; but when it was seen that this was impossible, she backed and dropped her anchor. In backing her engine the Crowley threw her bow toward the Arcturus instead of away from her. As she delayed dropping her anchor, there was insufficient time for taking a strain on the anchor chain before the stem of the Crowley swung over and hit the Arcturus' bow about 80' forward of her stern causing the damage.
It is conceded the sheer of the Crowley caused the collision. The court below said the only plausible theory by which the sheer of the Crowley could be explained was that it was due to the cross current set up by the propellers of the Arcturus. The theory is that with the revolutions of the propellers a backwash from the bank was created which caused the sheering. But not only do the facts fail to establish this but they indicate that the sheering is more reliably explained by the Crowley's speed than by any other cause. The Ditmar Koel, 65 F.2d 555 (C.C.A. 5). In a channel 300' wide she was proceeding at approximately nine miles per hour when there was no occasion to do so; her speed was excessive.
The Arcturus was in the basin with more than 250' between her stern and Red Can Buoy No. 8, through which the Crowley attempted to pass. The Crowley was a handy boat to navigate. She continued ahead despite the three-blast warning signal and the danger signal that the lookout heard. There was nothing the Arcturus could have done which would have prevented her coming on. The master also knew that the Arcturus had not moved and even if her anchor chain broke or freed itself from the bottom, it would be some little time before she could get away and a distance to the southward. The Arcturus' position, therefore, was a condition which the master of the Crowley should have taken into consideration in navigating.
The simple answer to the various charges made against the Arcturus is that two hundred and fifty feet of the channel were left clear for the Crowley's use, far more than the sector of the channel to which she was entitled. It was not the Arcturus' duty to withdraw from the channel completely. But even if it was its duty, the Crowley had been fully warned of its presence there and could, with proper care, have cleared its stern. The Arcturus' position, even if wrongful, was not the cause of the collision. Cf. The Perseverance, 63 F.2d 788 (C.C.A. 2).
The Arcturus cannot be charged with fault for dropping her anchor as she did. She did so to assist in maneuvering to the dock without a tug. There was no fault in this.
The court below held the Arcturus blameworthy for not veering chain and getting out of the way of the Crowley. But aside from the fact that there should have been no necessity to do so, it has been satisfactorily explained that the anchor windlass of the Arcturus was locked and she could not free chain before it was unlocked and under the testimony it would have taken two minutes to unlock the windlass and after that time the Arcturus would have had to start from a position of rest ...