
    THE LAKE MONROE. 
    
    (District Court, D. Massachusetts.
    April 30, 1920.)
    No. 1666.
    1. Collision @=49 — Evidence held not to show fault of steamer colliding with fishing vessel.
    Evidence held insufficient to establish the fault of a steamer for collision with a fishing vessel at sea at night, in changing her course, but rather that it resulted from an admitted change of course by the fishing vessel made under misapprehension of the course of the steamer.
    2. Collision <&wkey;77 — Wrong position of lookout not contributing fault.
    The fact that the lookout on a steamer was stationed on the bridge instead of forward held not a fault contributing to a collision where each vessel seasonably discovered the other and kept her under continuous observation.
    In Admiralty. Suit for collision by John J. Matheson and others, owners of the fishing boat Helena, "against the steamer Rake Monroe.
    Decree for respondent.
    See, also, 258 Fed. 77.
    
    Blodgett, Jones, Burnham & Bingham, of Boston Mass, for plaintiffs.
    Thomas J. Boynton and Louis Goldberg, both of Boston, Mass., specially, for the United States.
    Louis Goldberg, of Boston, Mass., for respondent.
    
      
      Decree affirmed 271 Fed. 474.
    
   MORTON, District Judge.

This is a case of collision between the Lake Monroe, an ocean-going cargo steamer, and the fishing vessel Helena. It occurred on October 8, 1918, at 7:50 p. m., in the vicinity of Highland Light off Cape Cod. The evening was clear. There was a'heavy undersea, dying out after a storm. <

The Lake Monroe was coming up the outside of the Cape. According to her log, she passed Highland Light at 7:30 p. m. Abreast it she changed course slightly to the west, running for the gas buoy off Peaked Hill Bars.

The Helena was bound south. She had no sails set and was running" wholly under power. She was on or near her fishing ground, and her crew intended to begin fishing as soon as conditions became favorable for seining.

The accounts of the collision given for the opposing vessels are so conflicting that a rather extended discussion of the evidence is required. Matheson, the master of the Helena, testifies that he first made out the steamer’s headlight almost ahead and apparently about three miles distant; that shortly afterwards he made out her green, light; that the green light disappeared, and the red light showed in its place, whether because of a change of direction by the steamer or because the courses of the two vessels were converging he could not say; that the Helena did not at that time change course; that the red light showed on her port bow, and the steamer was then dead ahead; that the witness imagined the steamer would give way and change course to starboard, so that he himself changed course two points to starboard, i. e., from south southeast to south; that at the time of this change the vessels might be half a mile or a little further apart; that after his vessel was on her new course the steamer changed back and showed both lights; that at that time she was about four points on the Helena’s port bow, and he thought everything safe; that “I walked forward again after changing my course, still watching her, and suddenly she changed back and showed her green light”; that the Helena blew one prolonged blast and right after slowed her engine to save herself from being cut in two; that her helm was put hard aport, and the collision then occurred; that the vessels came together “I should say at an angle of about 45 degrees,” the steamer striking the Helena on her port bow; that his vessel was turned by the force of the collision and slid along the side of the steamer as the latter went by; that after the collision the steamer made a circle to the westward and came back to offer assistance; that the Helena was on fishing ground and he intended to commence fishing “as soon as it got dark. We fish when it gets dark and the water commences to get any phosphorous in. it.” On cross-examination the witness testified that at the time of his single blast signal the vessels were about 600 feet apart; that the Helena steered easily and would shift course “a point or two in a length or two.”

This account of the accident is to some extent corroborated by Osier, the lookout of the Helena, by Greenleaf, who was her helmsman, by Hogan, who came on deck just before the collision, and by Devine, who had been on deck for about 15 minutes.

The testimony for the steamer is given by her captain, Berry, and her first officer, Tarson. The most diligent effort has failed to> disclose the whereabouts of her lookout and her helmsman. The failure to obtain their testimony is not to he counted against the respondent, because immediately after the collision the Helena refused offers of assistance, saying that she was not much injured; and it was not supposed that there had been a serious accident until after the men had left the steamer. Capt. Berry testifies:

That Larson was on watch on the bridge; that, owing to the heavy swell which had been breaking over the bow during the afternoon, the lookout was posted on the bridge instead-of on the forward dock; that Larson and the lookout and he (Berry) w’ere on the bridge, and there was a man at the wheel; that at the time in question the sea was not breaking over the bow, and it would have been practicable to have stationed a lookout there, but that the lookout could see fully as well, if not better, from his station on the lee side (the port side) of the bridge; that the Helena was first sighted when about 2l/2 miles •distant, showing a white and green light, about a point and a half on the steamer’s starboard bow; that she continued all the time on the starboard bow, “making practically a course opposite to our own. * * * We were showing our green light to his green light. * * * We kept along that way until the vessel got very near our beam, past our bow, past our fore point on the bow, and was very near the beam, when all at once she turned and showed her red light as well as her green. And we thought at that time that she was a patrol boat and was about to speak us; and the first officer asked me at that time for the megaphone so that he could go out on the bridge and answer him. He asked me where it was, and I said, ‘It is here,’ and got it for him. And, as I supposed then, he [the other vessel] was coming down to cross our stern to speak us. * * * And as the first officer went out on the bridge to him, about that time I heard one whistle; and it took me all aback, I didn’t know what to do. He was so close for him to blow me one whistle at that time; * * * I should think about 700 feet (distant), something of that sort. * * * I then told the man at the wheel to hard astarboard his wheel. If we had stopped at that time, with his coming, if we had offered to go astern or anything, by doing so it would have thrown our stern to port and we would have cut him right in two and sunk him; and, as I didn’t have time to maneuver in that way, I told the man to put his wheel hard astarboard, and I also stepped over and helped him put the wheel hard astarboard so that if we should come together he [the other vessel] would get a glancing blow. Q. If the Helena had held her course, could there possibly have been a collision, Captain? A. No, sir. Q. Did you alter your course at any time, Captain, from the moment you sighted the Helena until the moment when you starboarded your wheel to avoid the collision. A. No, sir. Q. You kept your course throughout? A. Yes, sir.”

Larson testifies substantially as Berry does, adding that the lookout had reported the green light to him and he answered the lookout; that at that time the light was about two points on the starboard bow and about 2 miles dead to windward; that the witness went to the starboard side of the bridge, where there was a box which served as a bearing compass and took bearings of the light; that he went over and took the bearing again and found it had broadened; that all this time the only lights showing on the approaching vessel were the white and the green; that when the other vessel was about seven points abeam she turned and showed red and green; that she was then about half a mile (italics mine) distant; that she then shut out her green and showed the red only; that she was then abaft the beam of the steamer; that he thought it was a patrol boat and asked for the megaphone, as the captain testified; that the Helena, rounding up alongside the steamer, collided with- the steamer, her port bow striking the starboard side about 20 feet aft the steamer’s stem; that no change of course was made by the Lake Monroe until just before the collision; that after the blow the steamer passed by the fisherman which slid astern. On this last point all the witnesses agreed.

Both Berry and Larson have unlimited licenses as masters of vessels of all sizes and in all 'oceans. Both testified with every appearance of truthfulness. Berry holds a responsible public position in the port of Boston. Neither is now connected-with the Lake Monroe nor with the Shipping Board. Most of the witnesses for the Helena also appeared well on the stand. As far as appearance goes, Matheson and Greenleaf did not suffer by comparison with Berry and Larson. Matheson is, however, half owner of the Helena and heavily interested.

This résumé of the evidence shows how conflicting the stories of the accident are as given by the opposing parties. Certain facts — enough. I think, to solve the case — do, however, appear with some clearness. When the vessels were about half a mile apart, they were on substantially opposite courses. Witnesses for the, libelant say that they were practically head on to each other; witnesses for the steamer that only the green light of the Helena was showing on their own starboard bow, but that the courses appeared to be opposite and parallel. At that time the Helena turned to starboard — two points according to her own testimony; much more than two points according to Larson —without giving any signal, and held her new course until collision was imminent. Obviously, if when she changed course the Helena was dead ahead of the steamer, or if, as Matheson testifies, she had the steamer showing a red light slightly on her own port bow, no collision could have occurred without a turn of the steamer to port, which Matheson insists took place. On the other hand, if the Helena were on the starboard bow of the Hake Monroe, her new course took her directly across the steamer’s path, and fully accounts for the accident.

The case therefore depends largely on the determination oE the position of the Helena at the time when she made this unquestionable change of course. As stated, Larson and Berry place her on their starboard bow, and Matheson almost dead ahead of the steamer. Greenleaf, the helmsman of the Helena, testifies that the order from Matheson to change course came “just before the collision”; that the vessels approached on practically head-on courses for four or five minutes before he received the order to change course; and that, standing amidships, he saw the steamer’s lights on the starboard side of the Helena’s foremast. Osier, the lookout on the Helena, when asked on direct examination how the steamer’s light bore when he first saw it, answered, “I should say probably three or four points off her [the Helena’s] starboard bow.” He changed this to “port bow”; but I felt by no means sure that his first statement was a mere slip of the tongue.

There is thus the direct and positive testimony of the steamer’s officers that the other vessel was on their starboard bow showing green to green; the statement (as originally made) of the Helena’s lookout that the other vessel was three or four points on her starboard bow; the testimony of the Helena’s helmsman that he saw the other vessel over her starboard bow, and that the collision came just after the change of course by the Helena to starboard; and the testimony of Hogan, another of the Helena’s crew, that the steamer “started to. swing from us” at a time which was plainly subsequent to the Helena’s change of course.

After a careful and prolonged study of the testimony, it seems to me that Matheson is probably in error in saying that the Helena was holding a steady course, showing her red to the steamer’s green as the vessels approached; that they in fact approached nearly head on, each having the other slightly on her own starboard bow; that they would have passed in safety but for the sudden movement of the Helena across the Lake Monroe’s bow; and that the Lake Monroe did not change course after sighting the Helena until she turned to port in her effort to avoid collision.

The inherent probabilities and the character of the Helena’s injuries seem to me to support this view. No plausible reason is suggested why a loaded steamer should make such a wide and purposeless change of course as Matheson attributes to the Take Monroe. An abrupt turn by the Helena, which was on her fishing ground ready to begin fishing whenever conditions became right, is far more likely''. The Lake Monroe did not slow down at all before the contact. The injuries to the Helena were by no means so severe as would naturally be expected from an almost head-on collision, such as Matheson describes, with a heavy steamer proceeding at 7 or 8 knots. They are more nearly what would be looked for if both vessels were swinging and at the moment of contact had reached courses not so sharply opposed, somewhat as Larson testifies, although I think that the Lake Monroe’s stem, not her side, struck, the Helena. When the Helena signaled, the vessels were, as Berry and Matheson both agree, 600 or 700 feet apart. Berry says that the Helena was then so placed that a turn of the steamer to starboard would have cut her down, and that he therefore refused tire signal and turned to port. If so — and Berry’s statement carries conviction because he acted on it — the Helena must have been ahead of the steamer slightly on her starboard bow, and by no means so broad abeam as he places her, a location entirely consistent with the supposition that tire Helena, being on the steamer’s starboard hand, had changed course across the steamer’s bow. As soon a.s the Lake Monroe began to swing to port under her hard astarboard helm, the'bearing of the Helena from her changed rapidly. I do not believe that Berry and Larson are intentionally misstating facts, but that they have confused later positions with earlier ones — an error into which some of the Helena’s crew have also fallen.

The Lake Monroe was camouflaged. One purpose of camouflage is to deceive as to the direction in which a vessel is proceeding. If there was sufficient light for the Helena to see the Lake Monroe, she may have been misled by the camouflage into a change of course which resulted in the accident.

As it devolves upon the libelant to establish by a fair preponderance of the evidence that the accident occurred in such a way as to impose liability upon the other vessel, it is only necessary to decide that upon all the evidence the collision does not appear to have occurred through the fault of the Lake Monroe, and I so find.

Under the decision in The Sagamore, 247 Fed. 743 (C. C. A. 1st Cir.) 159 C. C. A. 601, probably the steamer’s lookout should have been posted on the forward deck, hut tflat fault, if fault it were, in no way entered into the accident. There was no failure of lookout on either vessel. Each seasonably discovered the other and kept the other under continuous observation. The dispute is as to the courses which the vessels took. If they were as the,libelant claims, the Lake Monroe was at fault for not keeping out of the way of the privileged vessel and for changing course so as to cause the collision. If the courses were as the respondent contends, and as I think was the fact, the accident occurred solely because of the change of course by the Helena. As was said by Mr. Justice Clifford in The Dexter, 23 Wall. 69 at page 74, 23 L. Ed. 84:

“Sufficient lookouts are required by the rules of navigation, but where it appears that the officer in charge of the deck saw the approaching vessel while she was yet so distant that no precautions to avoid a collision had become necessary, and that the want of a lookout did not and could not have contributed to the collision, the vessel omitting such a proper precaution will not be held responsible for the consequences of the disaster if in all other respects she is without fault.”

See, too, The Farragut, 10 Wall. 334, 339, 19 L. Ed. 946

Decree dismissing the libel, with costs.  