Doe v. Columbia Contract Co.

GILBERT, Circuit Judge (after stating the facts as above). [1] It seems clear that the Kern was at fault in the first instance in not signaling her consent to the first passing signal of the Elder. The Kern and her tow lay in the channel way and at least 1,000 feet from the Washington shore. There was ample room for the Elder to pass to starboard, without danger to the Kern or her tow. The only reason which Moran, the pilot of the Kern, assigned for answering with the danger signal, was that the Elder was headed directly for him, and that there was going to be a collision, and that he could see no evidence that the Elder had started to turn to starboard. He did not think that it was unsafe for the Elder to pass, but that it was unsafe for her . to come farther on her course. Moran, it appeared, was laboring under a misapprehension of the rule, and he thought that the law required the Elder to accompany her whistle by an alteration of her helm, so that the Kern could see what she was doing. The fault of the Kern was a grave one. But for her pilot’s refusal to assent to the passing signal, the Elder would undoubtedly have passed to starboard, and a collision would have been avoided. But we are not convinced that the court below erred in holding that the proximate cause of the collision was the fault in navigation of the Elder, and that the fault of the Kern was not a contributing cause. It was the Elder’s duty, on hearing the first danger signal, to proceed no further in the attempt to pass. By the rules of navigation the pilot of the Kern was made the judge of the necessity for giving the *958 danger signal. Responsibility for the collision must be determined from the situation as it existed from and after the time when that signal was given. The duty was imposed upon the Elder “under no circumstances” to attempt to pass at that point, or until the Kern signified her consent. At that time, and for some appreciable time thereafter, it was obviously possible for the Elder to keep clear of the Kern, as it was her duty to do. [2, 3] The appellant contends that the Kern was lying dead in the water, and was therefore not an overtaken vessel. It is not disputed that the side lights of the Kern were not visible to the Elder, and that the latter was not coming up from any direction more than two points abaft the Kern’s beam. The appellant’s answer admitted that the Kern was a vessel'under way, and thus correctly stated the situation, for the Kern was “not at anchor, or made fast to the shore, or aground.” Act June 7, 1897, c. 4, 30 Stat. 96 ; The Nimrod (D. C.) 173 Fed. 520 ; The Ruth, 186 Fed. 87 , 108 C. C. A. 199 . But, even if the Kern were to be deemed to have had the rights of a vessel at anchor, the obligation of care upon the part of the Elder would have been in no degree lessened. The Col. John F. Gaynor, 130 Fed. 856 , 65 C. C. A. 340 ; The Lucile (D. C.) 169 Fed. 71 _. _[4] The contention that the Kern was at fault in not maintaining a lookout is answered by the fact that the absence of a lookout in no way contributed to the collision. The pilot, who was on the bridge of the Kern, saw the Elder immediately upon her sounding the first signal to pass. The mate and the deck hands were forward of the forecastle head, and a watchman was on the barges. The absence of a proper lookout is unimportant, when it has nothing to do with causing the disaster. The Fannie, 11 Wall. 238 , 20 F- Ed. 114; The Nacoochee, 137 U. S. 330 , 11 Sup. Ct. 122, 34 F. Ed. 687; The Blue Jacket, 144 U. S. 371, 389 , 12 Sup. Ct. 711, 36 F. Ed. 469; The Havana (D. C.) 54 Fed. 411 ; The Fivingstone, 113 Fed. 879 , 51 C. C. A. 560 ; The Aurora, 198 Fed. 383 , 117 C. C. A. 259 . The decree is affirmed, with directions to the said District Court to enter judgment for costs and interest against appellant and his stipulator-on the appeal bond, and with costs in this court in favor of the appellees and against the appellant.