APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
At the time of the collision in question, which occurred about one o'clock on the morning of December 27, 1889, the ship Clan Mackenzie, an iron sailing vessel of 2500 tons burden, bound from Rio Janeiro to Portland in ballast, was lying at anchor in five fathoms of water on the westerly or Oregon side of the Columbia River, about 200 feet distant from and below a steamboat dock known as Neer City, about three-quarters of a mile below Goble's Point, and one mile above Coffin Rock. She was anchored on the edge of the ship channel, which, at that point, is nearly half a mile wide at low water, and well out of the usual track of ocean steamers plying up and down the river, and out of the range of Coffin Rock light. She was provided with an anchor watch, and was displaying the proper statutory anchor light between twenty and twenty-five feet above the deck. In this condition she was run into and sunk by the steamship Oregon. The circumstances above detailed raise a presumption of fault on the part of the Oregon, and the burden of proof is upon her to exonerate herself from
liability. The Clarita and The Clara, 23 Wall. 1, 13; The Virginia Ehrman and The Agnese, 97 U.S. 309, 315; 1 Parsons on Shipping, 573. Has she succeeded in doing so? An answer to this question requires the consideration, both of her own movements, and of the alleged delinquencies on the part of the Clan Mackenzie.
1. The Oregon was an iron steamship, 300 feet in length, and of about 1000 tons burden, and was navigated by the railway under a charter from her owner, the Oregon Railway and Navigation Company, in a freight and passenger trade between Portland and San Francisco. She left Portland at about nine o'clock in the evening in question with a cargo of freight and passengers, under charge of a river pilot, drawing about sixteen feet of water, and displaying her proper riding lights. The weather was calm and the sky somewhat cloudy, but the night was dark and clear -- such a night as is most favorable to the discovery of lights. The deck watch was composed of the river pilot in command, who was on the bridge just above the pilot-house; a man at the wheel, and a lookout upon the forecastle head. No officer and no other man connected with the vessel was on deck from the time the watch was changed at 12 o'clock until the collision.
Considering the darkness of the night, her rate of speed, which was fifteen miles an hour past the land, the narrowness of the channel, and the probability of meeting other vessels, the greatest watchfulness was required, and we think that prudence demanded at least an additional lookout. The watch was the smallest that would be tolerated under any circumstances, and even were it sufficient for navigation by daylight, it by no means follows that it was sufficient for running a river in a dark night. It is hardly possible that, in a four-hour watch, the attention of the lookout should not be occasionally diverted from his immediate duty. Yet the withdrawal of his eye from the course of the vessel even for the fraction of a minute may occur at a moment when a light comes in sight, and before this light can be accurately located and provided for, a collision may take place. As was said by Mr. Justice Swayne in The Ariadne, 13 Wall. 475, 478:
"The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment's negligence on his part may involve the loss of the vessel with all the property, and the lives of all on board. The same consequences may result to the vessel with which his shall collide. In the performance of his duty the law requires indefatigable care and sleepless vigilance."
Where, as in this case, the circumstances are such as to require more than ordinary care, we think it not too much to require a lookout to be stationed on either bow. It was said in the case of The Ogdensburg (Chamberlain v. Ward), 21 How. 548, 571, that ocean steamers usually have two lookouts in addition to the officer of the deck, and that no less precaution should be taken by first-class steamers on the Lakes. In the case of The Germania, 3 Mar. Law Cases (O.S.), 269, a case of a steamer which had come into collision with a barque in the English Channel in a dark night, the Privy Council were advised by the nautical assessors, who assisted them, that it was the usual practice in king's ships to have never less than two lookouts at the bowsprit, and their lordships announced themselves as not satisfied with the sufficiency of the reason alleged for having only one lookout in that case. While, in the case of The Colorado, 91 U.S. 692, the collision took place during a dense fog, it was said, in the opinion of the court, that a watch consisting only of the mate, one wheelsman, and one lookout, besides the engineer, would hardly be considered sufficient for a large propeller, even in a clear night.
Nor are we satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While the pilot doubtless supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch on
deck, and that the men are attentive to their duties. The Iona, L.R. 1 P.C. 426.
In The Batavier, 1 Spinks, 378, 383, it was said by Dr. Lushington: "There are many cases in which I should hold that, notwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot; but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners." In an official report made by a maritime commission in 1874, the Elder Brethren of Trinity House are said to have expressed the opinion "that in well conducted ships the master does not regard to presence of a duly licensed pilot in compulsory pilot waters as freeing him from every obligation to attend to the safety of the vessel; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to use every precaution, but to insist upon such being taken." Marsden on Collisions.
These deficiencies in the watch, however, are rather evidences of negligence, and illustrative of lax management in the navigation of the vessel than distinct faults in themselves, and would not suffice to condemn the vessel in the absence of evidence that they contributed to the collision. The question still remains, what was the particular act or omission which brought about the collision?
At Goble's Point, three-quarters of a mile above where the Clan Mackenzie lay, there is a bend in the channel; but the anchor light of the ship, as well as Coffin Rock light, might have been seen from the deck of the Oregon near the railway ferry landing, a mile or more above Goble's Point. The pilot did in fact see one of such lights, which he took to be Coffin Rock light. As the steamer neared Goble's Point, however, both lights were shut in by the land; but a little before reaching the point, if she had been in mid-channel, both lights would have been plainly visible from her deck, though somewhat in line, that of the ship being a little nearer the bank.
But the Oregon, instead of being in mid-channel, hugged the shore in the bend above Goble's Point, and was on the southerly (more properly, the westerly) side of the channel as she came abreast of the point, when the pilot saw a light, which he supposed to be Coffin Rock light, and headed for it, giving the wheelsman the course N.W. by N., which was held to the moment of the collision, although the general direction of the ship channel from a point abreast of Goble's Point is N.N.W. (This finding is probably a mistake for N.W. by N. 1/2 N.) The light which the pilot saw both above, at, and below Goble's Point, and which he mistook for the Coffin Rock light, was in fact the light of the Clan Mackenzie. But the Coffin Rock light was burning brightly all this time, and should have been visible from the deck of the Oregon.
The pilot did not in fact discover the Clan Mackenzie until he was within 300 feet of her, when he and the lookout simultaneously made her out, and the wheel was immediately put to port. The change of course, however, was too late to avoid a collision, and the steamer struck the Clan Mackenzie in a direction slightly diagonal to her keel, between the port cathead and the stem, and cut into her a distance of about thirty feet. It is stated by the District Judge that the pilot sought to excuse himself for seeing but one light, by suggesting that the two lights must have been so near in line that a mast of the Clan Mackenzie intercepted the rays of the Coffin Rock light. But, as the outline of the shore from Goble's Point to Coffin Rock was easily distinguishable from the deck of the Oregon, it was manifestly owing to the negligence or inefficiency of the lookout, that the two lights were not separated and distinguished, as the Oregon rounded Goble's Point. Indeed, the finding of the Circuit Court is that both lights might have been seen at the railway ferry landing, a mile above Goble's Point, and from the course of the river at and below the landing, it is impossible that the two lights should not have been distinguished before the steamer reached the point; and, even after that, they could hardly have been so constantly in line as not to be separated, if the lookout had been attentive to his duty. In all probability, however, he
was watching the Coffin Rock light, and gave no thought to the possibility of there being another light between him and Coffin Rock. From the fact that the Clan Mackenzie was anchored on the westerly edge of the channel, and that as soon as she was perceived, the order was given to port, it would appear that the Oregon was considerably to the westward of her proper course, and that, instead of shaping her course outside of Coffin Rock light, she was in reality heading directly for the light of the Clan Mackenzie, which she mistook for the other. The pilot should not have been taken unawares by the presence of the ship, as there is a distinct finding that it was the custom of vessels being toward from Astoria to Portland to anchor for the whole or part of the night in the Columbia River, and that this fact should have been known to the persons in charge of the Oregon, and they should have kept a good lookout for such vessels. Add to this the further fact that the lookout of the Clan Mackenzie repeatedly hailed the steamer, while she was yet a quarter of a mile away, and that the Oregon neither distinguished her light nor heard her hail, and the inattention or incompetency of the lookout becomes even more clearly manifest. In short, there can be no doubt whatever that this collision was attributable to the inefficiency of the pilot and lookout of the Oregon.
2. The District Judge was also of opinion that the Clan Mackenzie failed to discharge her whole obligation to the steamer, and should consequently share the loss. In this opinion the Circuit Judge, with evident hesitation, concurred. As we had occasion to remark in The City of New York, 147 U.S. 72, 85, where one vessel clearly shown to have been guilty of a fault, adequate in itself to account for the collision, seeks to impugn the management of the other vessel, there is a presumption in favor of the latter, which can only be rebutted by clear proof of a contributing fault. This principle is peculiarly applicable to the case of a vessel at anchor, since there is not only a ...