April 23, 1946
GREAT LAKES DREDGE & DOCK CO.
THE SANTIAGO ET AL. SANTIAGO S.S. CO., LIMITED, V. UNITED STATES.
Before, L. HAND, SWAN, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
The United States on this appeal somewhat half-heartedly contends that the sinking of the dynamite scow and the damage to the drill-boat resulted solely from the negligence of the Santiago. In the alternative, and more vigorously, it contends that the Santiago was also at fault. We cannot agree with either contention.
The trial judge held that the facts showed a crossing situation. The government on this appeal suggests that it was an overtaking situation. We think it was neither; not a crossing case, because the Dupont was not bound for a pier on the Manhattan side of the river; not an overtaking case,*fn1 because the Dupont had not, before the accident, begun to navigate on a steady course but was still maneuvering preparatory to doing so.*fn2 Accordingly, none of the Rules applied. This was a "special circumstances" case, i.e., one in which prudent navigation, without regard to any Rule, was required.*fn3
We find it difficult to conceive of more imprudent navigation than that of the Dupont.*fn4 At a needlessly high rate of speed she dashed into a well-trafficked river and without possible excuse crowded upon the course of the Santiago. It was simply great good luck that a major catastrophe did not ensue when the Santiago struck the dynamite scow. We cannot ignore the trial judge's impression that Kelly, the destroyer's pilot, thought the destroyer "was entitled to proceed * * * pretty much as she chose, and that other craft of civilian status must govern themselves accordingly." The Navy does not, in that sense, rule the waves.*fn5 No adequate explanation was given for sounding the two blasts; Kelly said it was "merely a courtesy signal of intention." The judge found that no person on the Santiago heard the two blasts. But if they had, the Santiago could not have been expected to understand the "intention" which this "courtesy" signalized.
The judge found that a boatswain and a sailor on the forecastle head "were in a position to act as lookouts." The government asserts that this finding is not supported by the evidence. But even if we assumed that the Santiago had no lookouts, we would not hold her at fault;*fn6 for what lookouts would have seen and reported would not reasonably have suggested, in sufficient time, that the destroyer planned to cross the Santiago's bow. Assuming that it was clear to the Santiago that the Dupont meant to head downstream, the Santiago would justifiably believe either that the Dupont would be directed to the left of the Santiago,*fn7 or would follow her, instead of trying to cross her, since that was a wholly improper undertaking. The Santiago was not obliged to anticipate improper navigation.*fn8 Once the intention of the Dupont became manifest to the Santiago, the latter used all due care.