
    UNION S. S. Co. v. LATZ. SAME v. ABRAHAMSON. SAME v. GUALALA S. S. Co.
    (Circuit Court of Appeals, Ninth Circuit.
    May 17, 1915.)
    Nos. 2473, 2474, 2516.
    Collision <S=a39 — Steamships Meeting at Sea — Inattentive Lookout.
    A collision at sea in a calm night between 'the steamships Argyll and Gualala, meeting on slightly converging courses, held due solely to the fault of the Argyll, in that she did not keep an efficient lookout, and after sighting the Gualala failed to observe her course, but, assuming their courses to be parallel, changed her own course slightly to give more sea room, which brought her nearer the Gualala’s course; also because she accepted the Gualala’s signal to pass port to port, and attempted to carry out the agreement, when, owing to her course at the time and the nearness of the vessels, she should have given danger signals and reversed at once, i
    [Ed. Note. — For other cases, see Collision, Cent. Dig. § 39; Dec. Dig. <§^>39.
    Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]
    Appeals from the District Court of the United States for the First Division of the Northern District of California; M. T. Dooling, Judge. .
    Suits in admiralty by Konstant' Latz and by Aslak Abrahamson against the American steamship Argyll, Union Steamship Company, claimant, and by the Gualala Steamship Company against the Union Steamship Company; Decrees for libelants, and claimant and respondent appeals.
    Affirmed.
    The cause of the injuries sustained, of which complaint is made, was a collision between the steamships Argyll and Gualala. The former is a ship of 320 feet in length, and at the time was carrying a cargo of gasoline, distillate, and kerosene. The latter is about 120 feet in length, and was loaded with tan bark and railroad ties. The former was proceeding in a northwest course, while the latter was running in an opposite direction, upon the open sea, on a practically clear night. The water whs smooth, with a slight westerly swell and a light breeze.
    D. S. McAlpine, the Argyll’s third officer, was on the bridge at the time of the collision, which occurred about-3:05 or 3:07 in the morning of October 15, 1912. He relates that the lookout called his attention to a green light, which he saw at the same instant, about a point and a half on his starboard bow. Shortly afterwards the Gualala blew one whistle and ported her helm, and then he saw the red light, which indicated that the vessel was crossing his bow. In the interval, the ships were coming into closer position. McAlpine answered with one whistle, and ported his helm to try to clear the Gualala, which was turning to the right crossing his bow, his purpose being to parallel the Gualala and pass her; but there was not space enough, and the collision occurred. When the Gualala showed her red light and blew one whistle, McAlpine says, “I immediately altered my holm hard aport, and at the same time rang the engine room telegraph full speed astern, and blew him three whistles to indicate I had done so.” McAlpine further relates that the polling of his helm would swing the Argyll’s bow to the right. The Gualala was about three ship’s lengths of the Argyll away at the time the Gualala showed her rod light and blew her whistle, and the Argyll was making eight knots per hour by the log. If, Instead of porting her helm, the Argyll had continued straight ahead, McAlpine was of the opinion that there still would have been, a collision, but that the Gualala would have struck the Argyll; that such would have been the case if the Argyll had reversed her engine without changing her course, and it is probable that the result would ha.ve been the same if the Argyll had starboarded her helm and gone either full speed ahead or full speed astern. McAlpine further relates that at no time did ho starboard his helm, but that subsequent to the receipt of the oue whistle from the Gualala the Argyll may have swung in her course to port half a point or a quarter of a point. The Argyll still had considerable headway at the time of the Impact, and struck the Gualala “head and head.” Had the ships, when first sighted, continued ou their respective courses, McAlpine thinks they would have passed over COO feet apart.
    On cross-examination McAlpine further relates that he saw both the starboard and masthead lights of the Gualala when they were reported to him, and that the vessel was inside of a mile distant; that it was about a minute and a half or two minul.es after that that the Gualala blew one whistle. When the Gualala blew one whistle, McAlpine answered with one whistle, indicating that he was going to port his helm, and did so, and went to starboard, and at tixe same time he saw the Gualala’s red light, the Gualala having already changed her course. At that time the vessels were about two ship’s lengths apart,, and the ships came together in “about two minutes and a, half or so” — ■ possibly in that time. McAlpine testified before the United States inspectors that he first saw the Gualala about 1% to 2 points off the Argyll’s starboard bow, and that she was about three miles away, but on his further cross-examination he was of the opinion that the Guaiala was about a mile and a half away. Replying to an interrogatory he says: “A mile and a half is what I said now.” The whistles oí tile two vessels were exchanged when they were about 900 feet apart. As the vessels approached eaeii other, the Gualala changed her course to starboard, about.one-half point, and at the time of the exchange of whistles the Gualala was about 2 points on the starboard of the Argyll. McAlpine then testified, as interrogated, as follows:
    “Q. Do you remember this testimony before the inspectors, Mr. McAlpine: ‘Q. Did you notice any difference — whether the red light came up, and the green light went out, or vice versa ? A. His green light was to our green light. He was clear then, and would have gone two to three ship’s lengths from our vessel. When I heard his one whistle, it called my attention to him; when I saw his red light, sir, she was three to four lengths away.’ Do you remember that testimony? A. Yes, six*. Q. Then, it is a fact that the whistle on the Gualala called your attention to it, and yon then looked axxd saw the x-ed light. Is it not trxie that the whistle called yoxir attention to It? A. Certainly he lxroxight iny attention to it. Q. You did not know when that red light was first visible from the Argyll? A. No, sir; not until I saw it come into view. Q. Not until you saw it come into view. You did not see it come into view; you heard the whistle, and then you looked up, and you saw the red light? A. Yes, sir. Q. Yoxx do not know when that red light was first observable from the Argyll? A. No, sir.
    “The Court: That is so? A. Yes, sir. Q. As I understand, yoxi do not know how long the red light may have been in view from the Argyll before he blew this whistle? A. Not accurately.
    “Mr. Ijillick: When did yoxx change your course on the Argyll from the course upon which you were proceeding to the course one-half a point port with reference to these lights? A. 1 did not change it. Q. Your log, as I remember it — your log reads: ‘2:59. Lookout man reported green light on starboard bow two points; altered course one-half point to port; received one whistle from, vessel.’ Do you remember when your course was altered one-half a point to port? A. No, sir. Q. You do not? A. No, sir. Q. Do you know whether your course was altered one-half a point to port? A. It was not altered. Q. It was not altered? A. No, sir. Q. Do you know who wrote this in the log book? A., Some of it is in my writing, and some of it is in some one else’s. Q. Do you know whose writing the language is: ‘Altered course one-half point to port; received one whistle from vessel.’ Do you know whose handwriting that is? A. No, sir. * * * Q. What course were you steering before the lights of the Gualala came up? A. Northwest one-half west. Q. Northwest one-half west? A. Yes, sir. Q. What was the first change you made in the course? A. From that course hard aport. Q. That order of ‘hard aport’ was given after the passing signals? A. Yes, sir: Q. Any other change made in the course of the Argyll after the whistle was blown? A. No, sir; not until after the collision. * * * Well, as I said before, she was a point and a half on our bow; she would have been that distance off of us when she passed. Q. When you testified on direct examination that the Argyll never changed her course at all, except for perhaps a quarter or half a point, what did you mean by that? A. Well, it is customary when you see a vessel on the bow at that distance to say to the man at the wheel: ‘Don’t let her come any closer; keep off a little.’ That is not considered as a change of course. Q. But you did change her course? A. Yes, sir; I spoke to the wheelman. I said, ‘Do you see that fellow, Andrew?’ He said, ‘Yes.’ I said, ‘Don’t let him come any closer.’ Q. You do not know how far the course was changed? A. It was not changed any; she may have swung one-fourth or one-half a point; it is not a direct order to change the course.”
    On cross-examination by Mr. Wall, witness further testified:
    “Q. And you never saw the red light and the green light of the Gualala at any time together prior to the collision, did you? A. No, sir. Q. All of the time prior to the collision the Gualala was on your starboard bow? A. She was never anywhere else until the collision. * * * Q. You say you saw the green light? A. Yes, sir. Q. And you never, prior to the collision, saw the two lights together? A. Yes, sir. Q. But you did afterwards see the red light? A. Yes, sir. Q. Will you tell the court why it was, when the Gualala turned so that you lost her green light and picked up her red light, why you •did not see the two lights together? A. Just at that particular minute I was not looking at the Gualala. Q. At that crucial moment, when she changed from the green light to the red light, you were not looking at her; is that the fact? A. Not looking in that direction. .Q. Then you were not keeping a lookout on her at the time when she turned so as to lose her green light and show her red light; is that the fact? A. I was not looking at her at that actual moment. Q. You were not looking at her? A. Yes, sir. Q. She was over on the starboard bow? A. Yes, sir. Q. And your two vessels coming together at the rate of 16 knots an hour? A. We were coming parallel. Q. You were not separating, were you? A. Yes, sir; we were separating. Q. How were you separating?
    “The Court: One was going northwest, and the other southeast.
    “Q. Did you at any time prior to the collision take any particular notice of the bearings or change in bearings of the Gualala’s light? A. No, sir. Q. You did not? iA. No, sir. Q. And you never at any time saw her masthead light and her two side lights at the same instant? A. No, sir.”
    The log book was offered in evidence, and an entry therein, which the witness says he thinks is in the chief mate’s handwriting, reads as follows':
    “2:59. .Lookout man reported green light 2 Pts on Í3tr. Bow; altered course y2 Pt to Port; rec’d one whistle from vessel. 3:05. Reversed engines full astern. 3:07. Collided with stmr. Gualala.” ■
    At the left of this entry appears the statement: “Answered with one blast; gave 3 blasts; helm hard to port.”
    Richard Dickson, the master of the Steamer Argyll, came on deck just after the signals were given, and saw the vessels come into collision. He says the angle of impact was probably 40 degrees; that the helm of the Argyll, to the best of his recollection, was hard aport; the Argyll responded slowly to her helm, being constructed with a keel; when going at 8 knots an hour she could be stopped in about 7 minutes, between 7 and 8 minutes; that when he came on the bridge.he saw a red light and a bright light of the Gualala, and the Argyll was about three ship’s lengths from the Gualala.
    
      John Hansen was lookout ou the Argyll at the timo of the collision, stationed on the forecastle head. He relates that he first saw the masthead light of tho Gualala between a point and a half and two points on the starboard now. He next saw a green light in the same direction. He reported the Gualala’s light on tho starboard bow, and immediately after her green light. After reporting the Gualala’s green light, the Gualala blew one whistle, which the Argyll answered with one whistle. Witness continued to see the green light of the Qualala for a little while, “a second” after the whistle was given. Thereafter he saw a red light and a green light and a masthead light, all three at the same time; saw the red light and green light together “just a few moments” after the one whistle. At the time of the collision, he says, the Gualala was coming about a point and a half or two points on the starboard bow of the Argyll, not quite parallel with the Argyll’s course, hut pretty near, and the vessels came together a second or so from a head-on collision; the Argyll gave three whistles a few seconds after giving the one. He continued to watch the light on the Argyll from the time he first saw it. On cross-examination witness says he made no report to the officer on the bridge when he saw tho red and green lights together; that the boats came together about two or three minutes after seeing the first light, and. when the light was seen they were, to his recollection, about three or four ship’s lengths apart, which would be around 1,200 feet; that during the time he was watching the lights of the Gualala she seemed to change her bearing, after she blew her first whistle, to the Argyll’s port, which decreased the distance between the vessels ; that it seemed a couple of minutes that the boats came together after the whistle, and it was a mater of a few seconds after he saw the red light, “about half a minute or so.”
    Andrew Torbjorsen was at the wheel of the Argyll. He received orders from the third officer on the bridge, immediately after the one whistle, to put his helm hard aport, which were obeyed. The ship, he says, at the time of the collision was steering N. W. % W. One whistle was given by the Argyll after the whistle from the Gualala, and then about a minute afterwards the Argyll blew three whistles. He saw the Gualala’s red light just after tile collision. On cross-examination he relates that he kept a straight course, and did not change the vessel’s course at all until he put the helm har'd aport; that from the time the first whistle was blown it was about a minute until the collision, and it was about two or three minutes from the time the lookout reported the lights to the time the whistle was blown. He never got any instructions from the officer on the bridge to keep away from, and not to go any closer to, the Gualala, and when he saw the red light of the Gualala, after the collision, it was on the starboard bow of the Argyll. The Argyll, he says, in answering her helm, starts slowly, and then moves “pretty quickly.”
    James Dickie was of the opinion, from a careful examination of the Gualala after the collision, that the two vessels came together very close to 80 degrees from, a straight line, and, further, that the Gualala was crossing the course of the Argyll, and was at the time on the latter’s starboard bow.
    Such, in short, is the testimony of the claimant respecting the manner in which the collision came about.
    On the other hand, Harry Doloss Gibbs, for libelant, who was second mate and on the bridge of the Gualala at the time of the collision, relates that ihe Gualala was making ?% or 8 knots an hour; that he first saw the Argyll’s range light when she was about a mile and three-quarters or a mile and a half away, and about four minutes before the collision; that the lights were nearly in range,' and were on the port bow of the Gualala, a point and a half or two points; that about tnree minutes before the collision he saw the Argyll’s port side light; that he was watching the range lights in the meantime, and the vessel did not change her course up to the time he saw her port light, when he Mew one blast of Ms whistle, which was answered immediately; the man at the wheel was ordered to put the helm to port, and tho vessel paid off about 1% points; that the Argyll’s range lights appeared to be changing, and the helm was ordered hard aport; that the vessel looked as if she had changed her course, but appeared as if she were not porting her helm at the time, and looked as though she were coming to starboard. The next thing he saw was her green side light, which was about a minute and a half after he saw her red light. He'saw the Argyll’s red light 'first, and her green light about a minute and a half later. When the Argyll’s range lights were seen, he says, the Gualala was steering south-southeast, or southeast, compass course, deviation one degree westerly. When “I saw her port side light,” says the witness, “I blowed one blast of the whistle, and told, the man to put his helm to port. We was heading south-southeast then. I saw these range lights changing, and I told him to put his helm’hard aport, and then I saw the green side lights; then I stopped and backed full speed.” The Gualala was heading sóuth-southwest, when the engines stopped and backed full speed astern. The Argyll answered with one whistle, but, he says, “there was no more whistles -blown. * * * I don’t think he [the Argyll] ever stopped and backed. I think he was going full speed all the time. * * * The way it looked to me, the Argyll put her helm hard astarboard when she answered this one whistle.” He further relates that the Argyll commenced to swing to starboard; that shortly after the Gualala blew one blast, her range lights began to change, and that is the reason the Gualala’s helm was ordered hard aport; that the Argyll changed her course just about the time the Gualala stopped and backed, which was just about the time the Argyll’s green lights were seen; that at this time the vessels were about a quarter of a mile apart, and the Argyll did not, during any portion of the time after her range lights were first seen, up to the time of the impact, get over on the Gualala’s starboard bow: this because the Gualala “was going on a port helm”; that the lookout reported the range lights of the Argyll, but made no further report; that the Gualala had not lost her headway at the time of the impact, and it appeared that the Argyll had never stopped, and that the two vesselá met nearly head on.
    On cross-examination he says that the course of the Gualala was southeast ; that the range lights of the Argyll were seen about a point and a half across the Gualala’s port bow, and the course of the Argyll, as indicated by the range lights, was nearly in a direct line for the Gualala; that the helm of the Gualala was ordered to‘port, and the vessel ported about 1% points; that at that time the vessels were about a mile and a half apart, and it was about three minutes before the collision. Witness next saw the Argyll, the whole ship; saw the red light about a minute after he saw the range lights. When he saw the range lights, he blew one blast, and when the answer came he put his helm to port. At this time, the Argyll was about a mile distant, and when he saw the body of the Argyll she was about a quarter of a mile distant, or a little more. As interrogated, he testified:
    “Q. After you blew your one whistle, you ported your helm, and she continued to swing on that port helm? A. Yes. Q. You say the Argyll answered with one whistle? A. One whistle. Q. What did you do next? A. Well, I saw the Argyll’s range lights changing. Q. The range lights changing? A. Yes; and I told my -man to put his helm to hard aport. Q. How were they changing? How could you tell the range lights were changing? A,.Well, they appeared to me ■ they were changing. Q. And it was by those range lights that you were judging that she was swinging? A. Yes. Q. Which way did you think she was swinging? A. Well, I thought she was swinging to — I thought she was swinging a little to starboard. Q. Then you at that time ordered your helm to hard aport? A. I still saw that range light, and I ordered him to put hisj helm hard aport. Q. From that time, from the swinging of the range lights, you thought the Argyll was swinging to starboard? A. I thought she was swinging a little to starboard; it appeared that way to me. Q. How long before the collision was it that you put your helm hard aport? A. It was about a minute and a half. Q. How long was that after you had first put your helm .to port? A. It was about half a minute. Q. Her bow was then swinging to starboard under her port helm, with the engines working full speed ahead, going about 8 knots? A. Yes; her engines were going full speed ahead. Q. What was the next that you saw of the Argyll? A. The next thing I saw was a green light. Q. How soon was that after you put your helm hard aport? A. That was about 25 or 30 seconds. Q. How far distant was the Argyll from you at that time? A. About a quarter of a mile. Q. How did she bear from you? A. She was on our port bow. Q. How much? A. She was about two points on our port bow. Q. How soon after you saw the Argyll’s green light did you reverse full speed astern? A. Right away. Q. That was about 25 seconds before the collision, 25 or 30 seconds before the collision? A. No; it was about a minute before the collision. Q. You have just stated that you saw the green light about 25 or 30 seconds before the collision? A. No; I did not. Q. How did you come to reverse full speed astern a minute before the collision? A. Well, I knew there was going to be a collision, or I was nearly certain of it. * * Q. When you reversed full speed astern, you had not at that time seen this green light? A. Yes; that Is wliat made me reverse. Q. By seeing the green light? A. Yes. Q. How long was that, did you say, before the collision? A. About a minute. Q. About a minute? A. Yes. Q. How far dis taut did you say that you thought the Argyll was then? A. About a quarter of a mile away. Q. Your vessel continued to swing on this port helm all this time, did it not, going ahead at 8 knots up to the time you stopped her — she continued to veer off to starboard under this port helm up to the time you reversed? A. Yes. Q. And at the time of the collision the Gualnla had not slopped in the water; she still had headway? A. She still had headway; yes. Q. So that she was still under the influence of her hard a port helm, forging ahead, was she not? A. Yes. Q. Now, how fast, in your judgment, was the Gualala going through the water at the time of the actual impact': A. About a mile an hour. Q. That is a knot an hour? A. A knot an hour.”
    Witness was also of the opinion that the Gualala had swung about six points when she started to reverse her engines. On further cross-examination by Mr. Wall, he explains that, when he spoke of the Argyll swinging to starboard, he meant that she was swinging on a starboard helm, but the bow was swinging to port; that, with the helm to port, the Gualala’s bow, when backing, would swing to port, llo further says: “I know for a fact we was heading south-southwest just a few seconds before the vessels ran together. I know that to be a fact, because I looked at tlio compass. Just at the time they struck I don’t know, but just a few. seconds before that 1 know the Gualala was laying in that position.”
    Fred Carlson relates that he was at the wheel of the Gualala, and that sise was steering southeast; that he saw the Argyll’s mast light when she was about a mile and a quarter away, about a point or a point and a quarter oft the Gualala’s port bow. When he heard the exchange of whistles he was ordered to port his wheel, and not more than half a minute after that he was ordered to “put her hard over,” find it was about 3 or 3% minutes after the whistle that the collision took place. From the time the wheel was hard over, he says, to the instant of collision was not more than a minute. It looked to him as if the Argyll were following the Gualala right along. “We could got xxo further apart from her; she was coining up on us right along. -s ■■ * We were four points off the course the lime we struck.” On cross-examination he had gotten the helm over before the order “hard aport” came, hut the vessel had .not steadied on her course at that time — -was still swinging. The vessel was heading at the time of the collision south-southwest.
    Ernest Comstedt, the lookout on the Gualala, testifies that he saw the masthead light of the Argyll about three miles away, and “just a little after” saw her red light. After having the masthead light, he reported to the second mate on the bridge, who replied, “Ail right.” Further testifying, he says: “After I reported her light, we was blowing one whistle, and the Argyll was answering us right off, and I could see her red light when we swung, being swinging to starboard, and she was still coming closer to us, and somehow site couldn’t swing clear; she was keeping on swinging with us, and 1 didn’t know what way she was going; she was coming right after ns, came right on for us, like.” The vessels struck about three minutes after sounding the whistle. He did not notice the Argyll’s green light at any time.
    Edward J. McCutchen, Ira A. Campbell, and McCutchen, Olney & Willard, all of San Francisco, Cal., for appellant.
    Ira S. Fillick and L. A. Redman, both of San Francisco, Cal., for appellee Gualala S. S. Co.
    F. R. Wall, of San Francisco, Cal., for appellee Latz.
    S. T. Hogevoll, of San Francisco, Cal., for appellee Abrahamson.
    
      Before GILBERT and ROSS, Circuit Judges, and WOEVERTON, District Judge.
   WOLVERTON, District Judge

(after stating the facts as above). The' sóle problem for solution is to fix the fault, if possible, as it respects the vessels in collision. The testimony of the respective parties, touching the situation and the incidents leading up to the collision, is very conflicting and in many particulars flatly contradictory. The solution rests on where the truth lies, and this can only be determined by ascertaining where reliance shall be placed.

The Argyll claims that when the Gualala was first sighted the ships were passing green light to green light'; the Argyll having the Gualala from 1% to 2 points on her starboard bow. The Gualala, on the other hand, claims that the vessels were passing red light to red light; the Gualala having the Argyll from 1% to 2 points on her port bow. If either were right, and the vessels had kept their courses, it is probable there would have been no collision. If both were right — a thing not possible — and the vessels had kept their courses as indicated by the testimony of each respectively, they would have come together in proximity to where they'did actually meet, and at approximately the same angle, 30 degrees from a right line, assuming one had the other 1 % points on her starboard and the other 1% points on her port bow. The inconsistency in statement being such that both parties cannot be right, the problem is to- determine what did in fact happen.

If McAlpine, as he says, saw the green light of the Gualala, when .a mile and a half distant, a point and a half on his starboard bow, and each vessel had kept its course, there could have been no collision. McAlpine says they would have cleared by 600 feet. There must have been a change made in the course of one vessel or the other to bring them together. McAlpine affirms that the Gualala changed her course to starboard, so as to cross the bow of the Argyll, and it is urged that the fault lies with the Gualala in so doing. Shortly after the red light of the Gualala was observed, McAlpine says, the Gualala blew one whistle and ported her helm, which changed her course to starboard, and it was then that he saw the Gualala’s red light, which indicated to the Argyll that she was crossing the Argyll’s bow. McAlpine further asserts that in the interval between the time the light was reported and the time the whistle was blown the vessels had come into closer relation, so much so that there was not time for the Argyll to do anything else than to answer with one whistle, which she did, and an attempt was made, by porting the Argyll’s helm, to clear the Gualala port to port. It is very apparent according to McAlpine’s view of the situation, that instead of the vessels keeping their course in the interval, and passing clear, as he thinks they would have done by 600 feet, they were approaching one another to a common point of contact, for at the time the whistles were exchanged they were in such close proximity that there was nothing else for the Argyll to do but to answer with one whistle and port her helm; this although, from the time the Gualala was observed, the Argyll had gradually changed her course one-half point to port, which was calculated to widen the clearance of the; vessels as it first appeared to McAlpine.

It will be remembered that McAlpine, when he discovered the Gualala, directed the officer at the wheel of the Argyll not to- let “that fellow” come any closer, and McAlpine and the ship’s log concur that the Argyll changed her course to port one-half point. The officer at the wheel denies, hnd so does McAlpine at other periods in his testimony, that there was any change of course in that direction; but it is altogether probable that such a change in the Argyll’s course was made. It is manifest, however, that the ships were running on their respective courses, which were bringing them into probable contact. This fact was apparently not discovered by McAlpine until it was too late to do anything else than to answer with one whistle, which was in effect an agreement with the Gualala to pass port to port, and the collision followed. Why it was that this approach of the vessels was not sooner discovered is not satisfactorily explained by McAlpine. He says that he did not observe the change in lights of the Gualala from green to red until the one whistle was given, and then he looked up and saw it. He did not know when the red light was first observed from the Argyll, nor how long it had been in view.

Hansen is not in accord with McAlpine, for he says that when the Gualala blew her whistle her green light was visible to the Argyll; that after sounding her whistle she seemed to change her course to the Argyll’s port; that he continued to see her green light a while— “a second” — and then he saw her red light and green light together, and her masthead light; this “just a few moments” after the one whistle.

The rule seems to be that a ship changes her course after and not before she signals her intention as to which side of the approaching vessel she will pass, and this is what the Gualala did, according to the testimony of McAlpine, which confirms what the second mate on the Gualala says he did. The red light, therefore, must have been visible from the Argyll before the Gualala changed her course, and Hansen must have seen the change from green to red before the passing signal was given. This he did not report to McAlpine. But McAlpine, being on the bridge, should have observed the change for himself, and noted then and there the course the Gualala was steering.

According to Torbjorsen, "who was at the wheel of the Argyll, one whistle was given by the Argyll after the whistle of the Gualala, and then about a minute afterwards the Argyll blew three whistles. So that some time must have elapsed between the one-whistle and the three-whistle signals of the Argyll. In this Torbjorsen is not in accord with McAlpine, who says the three-whistle signal was given almost instantly after the one whistle. The engines were reversed after the three-whistle signal was given.

According to Gibbs, the second mate on the Gualala, he saw the Argyll’s range lights, which were nearly in range, when about a mile and a half or a mile and three-quarters away; tbe Argyll being on the Gualala’s port bow a point-and a half to two points. About a minute afterwards he saw her port side light. The Argyll did not change her course up to that time. Then he blew one whistle, which was answered immediately with one whistle. After giving the signal, the man at the wheel was ordered to port the helm, and the vessel paid off a point and a half to starboard. The Argyll’s range lights appeared to be changing, while he saw her red light, and the helm was ordered hard aport. He next saw the Argyll’s starboard light, and then he stopped and backed full speed. He was of the impression that the Argyll never stopped and backed at all. To his vision, although the Argyll had exchanged the passing signals port to port, the Argyll appeared to be swinging to port. This he judged from the changing of her range lights, and it was this that caused him to put his helm hard over to port. When the Argyll’s green light showed up, a collision appeared imminent, and then the order was given full speed astern.

Carlson, who was at the wheel of the Gualala, thinks the Argyll, when first sighted, was from a point to a point and a quarter off the Gualala’s port bow; but it appeared to him that, while the Gualala was executing her maneuvers, with her helm to port, then hard aport, and after the signals were exchanged, the Argyll was following the Gualala right along. “We could get no further apart "from her,”, he says; “she was coming up on us right along.”

Comstedt, the watchman, who reported the-Argyll’s red light, relates that he could see her red light when she swung to starboard, but that she was still coming closer, and somehow she could not swing clear; she kept on swinging with the Gualala; “she was coming right after us.”

To our minds, the cardinal and decisive point in the controversy consists in the fact, as to- which both parties agree, that the passing signals were given whereby the vessels agreed to pass port to port. The Argyll evidently thought at the time it was safe to do so, and said in effect to the Gualala, “Make your maneuver accordingly,” which it did. All agree that the Gualala’s course was continually changing to starboard after the signals were given, up to the time of the collision, unless her backing checked it. Notwithstanding this maneuver on her part, of which the Argyll could not have been ignorant, the Argyll kept pressing her by coming in the same direction, and it was probably not until a minute had elapsed that the Argyll gave the signal indicating that she had stopped and thrown her' engines full speed astern. If there was danger of collision by accepting the Gualala’s offer to pass port to- port, the Argyll should never have agreed to it, but should have at once protested by giving the danger signal, and taken immediate steps to prevent it. But the Argyll did not do this, and allowed some time to elapse at a critical moment before stopping and backing.

The Gualala’s view of the situation is, to- our minds, the true one. The Argyll was heading, when first sighted, almost in a direct course for the Gualala. As the Gualala continued to starboard, the Argyll changed to port, as she. was directed to do, and probably swung further in that direction than the officer on the bridge was aware of. Notwithstanding this, he concluded it was safe to pass port to port with the Gualala until it was too late to prevent a collision. A more vigilant lookout on the Argyll would have discovered the converging course of the vessels, and prompt action would have prevented'the disaster. A critical analysis of the testimony convinces us that the Gualala did not suddenly cross the bow of the Argyll, but kept her course until signaling her intention to pass to port, and, on receiving the Argyll’s signal consenting thereto, directed her course accordingly. Opinion respecting time and distance in such a contingency is more or less unreliable, and hence we base our findings upon what, seems to he the more reasonable testimony, omitting a critical discussion of such evidence.

Nor is the opinion of experts as to the probable result from defined relative positions of the vessels at a given time of any value, unless the positions, the time of running, and distance of separation are correctly estimated and given — a thing hardly possible under the exigencies then present.

“Lookouts,” says tbe Supremo Court, “are valueless unless they are properly stationed and vigilantly employed in the performance of (heir duty; and if they are not, and in consequence of their neglect the approaching vessel is not soon in season to prevent a collision, the fault is properly chargeable to the vessel, and will render her liable, unless the other vessel was guilty of violating the rules of navigation.” The Colorado, 91 U. S. 692, 699, 23 L. Ed. 379.

The failure of officers whose duties are to keep a lookout to see what they ought to have seen, or to hear what they ought to have heard, where casualty results, is a grievous fault, for which the vessel will be rendered liable. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. Further, as to the duties of a lookout and the consequences attending a lack of strict attention to duty, see The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943; The Viola (D. C.) 59 Fed. 632.

It is strange and inexplicable that the Argyll did not discover very much sooner than it did that its course was convcrgtug upon that of the Gualala, not diverging from it, starboard to starboard, and at the same time that it should have assented to a signal to pass to port. There was a serious inattention to what ought to have been sooner observed, and if it had been sooner observed we cannot doubt that the collision would have been avoided. In the case of The Manitoba, 122 U. S. 97, 7 Sup. Ct. 1158, 30 L. Ed. 1095, the Manitoba was held at fault, under somewhat similar circumstances, for not slowing, and not reversing until too late lo avoid a collision, although the. Comet, the other vessel, ported and ran across her course — a fault (that is, of running across the converging vessel’s course) not attributable to the Gualala in the present, case, as wc are convinced by the manifest weight of the testimony.

The Gualala is perhaps subject to criticism that she did not sooner stop and reverse, but the primary and causative fault lies with the Argyll, for which she is alone liable.

This being the only controverted question, the decrees in all the cases are affirmed.  