
    THE AUREOLE.
    (Circuit Court of Appeals, Third Circuit.
    January 15, 1902.)
    2. Collision — Overtaking Vessels.
    Evidence considered, and held to show that a collision between two steamships, one of which had overtaken and was passing the other in the Delaware river at a place where the water was shallow as compared with the draught of the vessels, was due to the fault of the overtaking vessel in passing too close to the other, so as to create a suction which caused the overtaken ship, which was the smaller of the two, and had slowed to half speed, to deviate from her course and draw against the other.
    8. Same.
    Where an overtaking steamship is passing too close to another, so as to create danger of a collision, the latter is justified in slowing, or even in reversing, so as to shorten the time of passing, and such action cannot be charged as a fault by the overtaking vessel in case of collision.
    
      & Same — Cause of Collision — Suction.
    The force called “suction,” exerted by one vessel on another, due to the creation of currents by a moving vessel, and the effect of which is apparently greatest when a larger and faster vessel is passing another moving in the same direction in shallow water and a narrow channel, has been recognized in many cases by courts of admiralty; and a court is not justified in refusing to consider it as a cause in a case of collision between two steamships, one of which had overtaken and was passing the other in a river at a distance of not more than 75 to 100 feet, and where, under the evidence, it appears that the overtaken vessel, though with her helm hard a-port, suddenly sheered to port, and struck the other after the latter had nearly passed.
    
      Appeal from the District Court of the United States for the Eastern District of Pennsylvania.
    J. Parker Kirlin, for appellant.
    Henry R. Edmunds, for appellee.
    Before ACHKSON, DALLAS, and GRAY, Circuit Judges.
   GRAY, Circuit Judge.

This is an appeal from a final decree^ in admiralty of the district court of the United States for the Eastern district of Pennsylvania (103 Fed. 699), made August 3, 1901, awarding to the libelant the sum of $21,986.05 for damages sustained by the steamship Willkommen in a collision with the steamship Aureole. The collision occurred on January 13, 1898, at about 2 p. m., in thQ Delaware river, between Pennsville and Newcastle. The Aureole is a British tank steamer, 345 feet long and 46 feet in the beam, and was outward bound with a cargo of crude oil in bulk, taken on at Marcus Hook, about 15 miles up the river from where the collision occurred. Her draught was 25 feet ait and 23 feet forward. The Willkommen is a German steamer, 325 feet long, 41 feet in the beam, and was also outward bound with a cargo of like kind. Her draught was 24 feet 3 inches aft, and 22 feet 5 inches forward. Both ships were in charge of regularly licensed Delaware Bay pilots. Both ships had weighed anchor at about noon on January 13th, and proceeded down the river in charge of their pilots. The Willkommen, starting first, had proceeded about a mile on her voyage before the Aureole left her anchorage grounds át Marcus Hook. The Aureole is the faster of the two vessels, and overtook the Willkommen at deep-water point, about eight miles from Marcus Hook, but, owing to a tow of barges then in the channel, was unable to pass the Willkommen until both vessels had hauled up on the deep-water-point range; the Aureole following in the wake of the Willkommen on the last-named range for nearly a mile, when she hauled out to the eastward to pass the Willkommen on the latter’s port side. On this reach of the river, it appears from the evidence, as well as from the chart of these waters, made an exhibit in the case, that there was ample room for vessels to pass each other. According to the testimony of the pilot for the Willkommen, he ran the deep-water-point ranges a little open to the eastward; that is to say, it put his ship a little to the eastward of the range line. No whistles were blown by the Aureole as a signal that'she intended to pass, and no signals were given by the Willkomnten. No point is made of this, however, as both the pilot and the captain and the other officers of the Willkommen observed the Aureole hauling off to pass, and understood that she was about to do so. About the time that the stem of the Aureole lapped the stern of the Willkommen, the captain of the Willkommen was aft on the lower deck of the ship. lie testified that he watched the Aureole, and knew what she was about to do, and that he waved his handkerchief to her captain, receiving a similar salute in return; that he then immediately went upon the bridge, where, besides himself, were the pilot and the first and second officers, and a competent and experienced man at the wheel. All the direct evidence tends to show that all were attentive to their duties; the second officer standing near the man - at the wheel to see that the orders of the pilot were properly carried out, the first officer standing near the telegraph signal to the engine room, and the pilot watching the 'course of the ship.

Upon the Aureole, the captain, pilot, and third officer were on the bridge, with a competent man at the wheel. All of them testified that they'were attending to their duties and watching the ship. There is nothing in the testimony to convict the pilot or officers on either ship of unskillfulness or inattention, except the collision itself. The officers and men all testified strongly in favor of their own ships, respectively, and there is much variance in their testimony as to the facts and circumstances attending the collision. All the witnesses on the Aureole testify that, when she approached the Willkommen to pass, she was about 300 feet away, or about the ship’s length away, and that while she was passing they continued at that distance apart on parallel courses, until the stern of the Aureole was about the bridge of the Willkommen, or between that and her fore rigging, when the latter ship suddenly sheered towards the Aureole, striking the Aureole with the bluff of her port bow, about 35 feet from her stern. The testimony, on the other hand, of those on board the Willkommen, as to the distance the ships were apart when the Aureole was passing, puts'it, some at 150 feet; others, including the captain and pilot, at from 100 to 75 feet. The pilot of the Willkommen testifies (and there is no contradiction of his testimony) that before the Aureole’s bow was opposite to the Willkommen’s bridge he ordered the wheelsman to port the helm. He says he did this because he saw the Aureole was coming too close. When the Aureole’s bow got abreast of his bridge, he says, he told the captain to slow the ship down to half speed, and that when her stern got somewhere about halfway between the Willkommen’s fore rigging and the bridge he had the engine stopped; that he then asked the question if the wheel was a-port, and the chief officer replied that it was hard a-port; that he then went and looked himself, and found that it was so; and that the Aureole was at that time about 75 to 100 feet away. He also testifies that, when the Aureole’s stern got forward of his bridge, her helm was either ported, or else the ship took a sheer towards him. The pilot of the Aureole, on the other hand, testifies that, when he got squared down on the deep-water-point range, he gave the wheelsman, as a point to steer by, the end of the jetty pier, a mile or two ahead, and which extended about three-quarters of a mile out from the eastern shore; that, when he came abreast of the Willkommen, the ships were about a ship’s length apart, which would be something more than 300 feet; that the ships continued in parallel courses until the stern of the Aureole was ahead of the bridge of the Willkommen. He says that the first intimation he had of any danger was the captain’s calling his attention to the Willkommen, and that when he looked she was taking a sheer over towards the Aureole; that she came at an angle of three or four points off the course on which she had been going. It may be noted here what the pilot of the Willkommen says in regard to the position of the pilot and captain, when their bridge was abreast or a little ahead of his, in accounting for the Aureole slanting across his bow:

“Q. What was the reason, do you suppose, of the Aureole attempting to cross your how in this slanting way? A. The only reason that I can see, the pilot must have thought he was a little too far to the eastward. He had his wheel a-port and gave the man a mark ahead to steer at, I guess, and went on the port side of the’ bridge, — he and the captain both. Q. Did you see them on there? A. I could not see them. They were behind the wheel house. Q. If they had been on the starboard side of the bridge, would you have seen them? A. Yes, sir. Q. You saw everybody else, did you? A. I did not see anybody. Q. On the. bridge? A. Not a soul, because the man at the wheel was In the wheel house, and the captain and pilot were on the port side of the bridge, right behind the wheel house. It was right in range of us, and X never saw them until we caught the suction. Then the pilot walked on the starboard side of the bridge first, and saw it right away; and that is when 1 suppose they must have starboarded the Aureole's wheel, because the captain came right across as fast as he could get there. The next I saw of him, he was aft of the pilot house, throwing his hands and hallooing. That' was just before we struck. Q. Your idea, then, is that he was attempting to get hack into deep water from the eastern side of the channel with the Aureole? A. No, sir; he had fully as good water as we had, — if anything, better, maybe. He wanted to get ahead of us, and hauled down on a line, and maybe thought he was a little further to the eastward than he wanted to be, I suppose; but, if the pilot and captain of the Aureole would have been on the starboard side of the ship’s bridge when they got to our fore rigging, then they could have seen how close they were. Q. You are sure there was nobody on the starboard side of their bridge? A. No, sir; not when she got forward of our beam. Q. You mean, there was not anybody there when you say. ‘No, sir’? I asked you whether there was or was not anybody on the starboard side of the bridge? A. Not when she got forward of our beam. Q. Did you at any time see anybody on the starboard side of their bridge until after they got forward of your beam? A. Yes, sir; before they got up abeam of us they were on the starboard side of the bridge. Then when they got up abeam of us they walked on the port side of the bridge. Q. Then, when they got forward of the bridge, they were not there? A. No, sir. * * * Q. What is your theory of this collision? How do you say it occurred? A. The ships came too close, and we took her suction and drawed right together.”

The testimony of the pilot of the Aureole, as well as that of the captain, seemed to confirm this statement, in so far that they were not in a position, when the stern of the Aureole had just passed the bridge of the Willkommen, to observe the latter vessel, by reason of the intervening pilot house of the Aureole. The pilot of the Aureole, as well as the wheelsman and officer on the bridge, testified that the Aureole was kept straight on her course, and did not go to starboard until she was struck by the Willkommen. The Willkommen struck a glancing blow upon the starboard quarter of the Aureole about 35 feet from the stern. The wind was blowing fresh from the northwest, which would be on the starboard bows of both ships, and the set of the flood tide was also somewhat' against the starboard bows. The Willkommen and Aureole coming together in the manner described, the collision must have been caused either by the Aureole sheering to starboard at an angle that would take her across the Willkommen’s bows (and the pilot and officers of the Willkommen testified that this did occur), or the Willkommen, from faulty steering or from some other cause, turned from her parallel course towards the Aureole. The pilot and officers of the Aureole emphatically deny that the former was the case, and say that they observed the Willkommen, after the stern of the Aureole had passed her bridge, sheering at an angle towards the Aureole. Nothing could be more emphatic and specific than the testimony of the pilot, wheelsman, and first and third officers of the Willkommen as to the correct steering of their ship. The third officer testified that he stood near the wheel for the purpose of watching 'the direction of the indicator, — to see that the wheelsman obeyed the orders of the pilot. The pilot says that he was steering on the ranges, having them open a little to the eastward, and had given the wheelsman a clump of trees pn the western shore to steer by. These were evidently the trees spoken of by the wheelsman, and about which, in his imperfect command of English, there was some confusion when he spoke of them as on the eastern shore. As the river, shortly ahead óf the ship, turns sharply to the southeast, which was the eastern bank might for the moment be mistaken by a man unacquainted with the locality.

Counsel for respondent dwell much upon the fact that the wheels» man of the Willkommen, under cross-examination, said that, some two minutes before the stem of the Aureole came opposite to the bridge of the Willkommen, he had a starboard helm of about an inch on the indicator. This was afterwards sufficiently explained by the testimony that, as a matter of common knowledge among seamen, in steering a ship upon a straight course the wheel is never at rest, and is constantly moved a little a-port or a-starboard, to meet and counteract the sheering of the ship one way or the other. At all events, the testimony is positive, and as specific as human testimony can be, that the ship was kept upon her course parallel with the deep-water-point ranges, until just before the collision. The pilot of the Willkommen then says that, with his wheel hard a-port, the ship slowed down, and, with the engine stopped, she took a sheer to port, which immediately brought' her in contact with the Aureole, which had sheered slantingly across the bow of the Willkommen, and thus diminished the distance between the two ships. This sheer of the Willkommen the pilot accounts for by what he calls “suction”; that is, the Aureole, by passing the Willkommen at full speed through shallow water, with so little distance between them, produced a current which drew the Willkommen’s bow towards the Aureole with such a force as to overcome the influence of the helm hard a-port. This theory of the pilot of the Willkommen in accounting for the collision seems to us to accord more nearly with the probabilites created by the testimony than any other. Whether the Aureole had sheered to starboard or not, it would seem that the testimony of the Willkommen’s officers as to the distance between the two ships is supported by this theory; and the testimony of the pilot and captain of the Aureole, when they suddenly saw the Willkommen coming at an angle towards them, is thereby explained.

On the face of the direct testimony as to the steering of the Willkommen, it is impossible to believe that the collision was caused by any mistake in that respect. She was not steered into the Aureole. On the contrary, her helm was hard a-port. To say that the sheering of the Willkommen towards the Aureole was caused by suction does not necessarily contradict the testimony of the Aureole’s officers as to the steering of that ship, although it makes necessary the inference that they were mistaken in their estimate of the distance between the two ships during the passing by the one of the other, and just before the collision. If the distance testified to by the captain, pilot, and other persons on board the Willkommen be correct, — that is, that it was not more than 75 or too feet, and latterly not more than 50 or 60 feet, -they were near enough to bring the smaller ship and slower ship, going at half, speed, within the influence of any suction that might be created by the Aureole going at high speed through shallow water; and we think that it is established that such a thing is likely to occur under such circumstances.

It is claimed by the appellant that if the Willkommen had not slowed down, and afterwards stopped, but had kept at full speed on the course on which she was, the accident could not have happened; that by slowing down, and afterwards stopping the engines, she lost steerage way, and was beyond the control of her helm, against the set of the tide and wind. But the answer to this is that the Aureole was the overtaking ship, and, as such, had the burden placed upon her, by the laws and usages of navigation, of safely passing the slower ship; and, if she passed so close as to create a justifiable apprehension of peril on the part of those navigating the Willkommen, the latter ship would not be responsible for a mistaken judgment produced by such a situation. There is, however, nothing in the record to show that the slowing up of the Willkommen to half speed was an error, or transgressed the rules of navigation referred to. Under the circumstances, it seems to us, as if seemed to the pilot at the time, good judgment to slow up, so as to allow the Aureole the more quickly to pass; and the stopping of the engines just before the collision seems clearly justified by the situation in which the ships were. The pilot and captain of the Willkommen both say that it was necessary to slow and stop, in order to prevent a worse collision. Indeed, the judgment of the captain of the Aureole seems to have agreed in this respect with that of the pilot of the Willkommen, 'for the captain testifies to a conversation with Mr. Marshall, the pilot on the Willkommen, as follows:

“Q. What did yon say? A. A very few words. Q. Tell us what they wore. A. My words were these: ‘Tom, why did you not slow that ship down when we were passing her?’ He said: T did; I went half &i>eecl. I went slow. I stopped, her, and I went hack on her.’ I said: ‘How do you account for this collision?’ ‘Suction.’ I said: ‘Impossible!’ I said no more.”

Another fact which seems conclusive as to the distance between the two ships being much, less than that testified to by those on board the Aureole is that, with the stern of the Aureole abreast the bridge of the Willkommen, or between that and the fore rigging, it. would have been impossible for the Willkommen, going at half speed, to have overtaken the Aureole, going at full speed, so as to strike her an angling blow at a point 35 feet from the taffrail, if 300 feet or more had separated them. And to this effect is the testimony of the pilot of the Willkommen:

“Q. If your vessel’s bow was opposite the bridge of the Aureole, and you were going full speed and the Aureole full speed, and you were 300 feet away from each other, would it have been possible for you to have touched her? A. We never would have caught her. Q. You could not have caught her, even if you had changed your helm to go that way? A. No, sir; because, even taking us going half speed, we were not going over four miles an hour, —between four and five, — and the Aureole was going ten. She was going just twice as fast. We never could have caught her at that distance apart.”

Thé direct testimony of no witness contradicts this opinion of the pilot of the Willkommen.

An attempt was made by the respondent to throw doubt upon, if not to deny, the existence of such a force as suction when ships are passing each other at full speed. The engineer of the Aureole testified that he had passed ships in the Seine much closer than he had passed the Willkommen, without any danger, and never knew one of them to sheer. He did not say, however, whether he had passed them going in the same direction, nor did he speak as to the depth of the water. The captain says that they were not passing close enough for suction to have had any influence on the Willkommen if she had kept her proper course. His statement seems to recognize, however, the possibility of such a thing as suction. Pilot Maull, of the Aureole, says he never had any experience that would enable him to form an opinion as to whether there was any such-influence between passing vessels as suction, although he admits that he has heard of such a thing. Taking as true the facts testified to as to the steering and management of the ships while the Aureole was passing the Willkommen, and the preponderating weight of the evidence that the ships were much nearer than 300 feet, some other force or influence than the steering must be resorted to, to account for the sheering of the' Willkommen towards the Aureole. Pilot Maull says that this force or influence is what he calls “suction,” produced by the passing of the Aureole at high speed through shallow water close enough to the Willkommen to produce the effect. That such a force can be created, under the circumstances, which we think probably existed in this case, seems to have been generally, if not universally, recognized among those experienced in the navigation of ships in the shallow waters of rivers and bays, and has been accepted as sufficiently proved in a number of adjudicated cases. The strength of this force undoubtedly will differ according to the locality, and is largely affected by the depth of water and the width of the channel through which the ships are passing. It seems to be established that this power or influence called suction is much greater and more dangerous when one vessel is passing another going in the same direction than when they are going in opposite directions. The Alexander Folsom, 3 C. C. A. 165, 52 Fed. 403; The City of Cleveland (D. C.) 36 Fed. 729. In the latter case the court says:

“The suction of two vessels passing each other in different directions is not very powerful. It is too short to have any particular effect upon the action of the two vessels unless one Is much larger than the other; whereas, if they are going in the same direction, and passing near eacli other, it has a more powerful effect to deflect the weaker vessel from her course.”

The General William McCandless, 6 Ben. 223, 226, Fed. Cas. No. 5,321; The Mariel (D. C.) 32 Fed. 103.

The case of The City of Brockton (D. C.) 37 Fed. 897, is, on its facts, much like the present case. That was a case in which the Brockton, being the faster ship, was following the J. C. Hartt iti the channel near Sandy Hook, and, overtaking her, attempted to pass her on the starboard side. The Brockton averred that she was passing at a safe distance, 250 feet away from the Hartt, but that, after her pilot house had passed the bow of the Hartt, the Hartt changed her course, which caused her bow to collide with the stern of the Brockton. The Hartt, on the other hand, averred that the Brockton was passing too close for safety, and several witnesses 011 board of her at the time testified that the ships were not more than 75 or 100 feet apart. The court thought this the more correct estimate of the distance between them. The court, after referring to the testimony of the sudden lurch or sheer by the Hartt towards the Brockton, says:

“Such language does not describe a change of course effected by the rudder, but points strongly to the presence of some other force outside of the .Hartt, to which her change of course should be attributed. And such a force was present, namely, the force of currents created in the water by the powerful action of the Brockton’s wheels driving so large a vessel through the water at high speed. Currents of water more or less strong are necessarily created by a vessel like the Brockton moving at high speed. They will differ according to the locality, and are largely affected, no doubt, by the depth of water. There is evidence that their power is increased when two vessels of about the same speed are passing each other. What the depth of water or the configuration of the bottom was at the place where the Brockton’s wheels approached the bow of the Hartt is not proved. But the extent and power of the current actually created by the Brockton seems to me to be shown by what the Hartt did as the wheels of the Brockton neared her bow. * * * As it seems to me, therefore, the testimony given by the witnesses called in behalf of the Brockton warrants the conclusion that the change of course on the part of the Hartt testified to by Mr. Adams and Mr. Olioate, and to which they attribute the collision, was not caused by the fault of the Hartt in porting her helm, as charged in the Brockton’s pleadings, but was caused by the fault of the Brockton, charged in the Hartt’s pleadings, namely, either by her sheering across the Hartt’s bows, or ‘that she did not come up to the starboard side of the Hartt at a sufficient distance from the Hartt to pass in safety.’ ”

This and the other cases above referred to, judicially recognizing the existence of the force called “suction,” and its power, under favoring circumstances, to draw one vessel towards another, cannot be .disregarded by this court in considering the denial on the part of the appellant that such a force can exist or be operative, — a denial for which there is no support, except in the testimony of the captain, pilot, and engineer of the Aureole that they had had no experience of such a force.

We are of opinion in this case that the sheering of the Willkommen towards the Aureole just before the collision was not caused by the steering of the Willkommen; for the evidence is clear that her helm was not a-starboard, except in the temporary adjustment thereof in steering a straight course, while the Aureole was passing, and was put hard a-port some time before the collision. Such being the case, we are of opinion, also, that the Aureole was passing the Willkommen close enough, under the circumstances of the depth of the water and the set of the tide and wind, to bring the latter vessel within the influence of a force or current known as “suction.” In other words, that the Aureole failed in her duty, as the overtaking vessel, to pass the Willkommen at a safe distance. As such, overtaking vessel, the burden was upon her to show that the collision was occasioned by no fault on her part, but by some fault or neglect of duty on the part of the Willkommen. Such fault on the part of the Willkommen, in her situation, must have been through so steering with a starboard helm as to turn the vessel from her straight and parallel course towards the Aureole. Of this there is no proof whatever, and to the contrary we have the positive testimony of those on board the Willkommen. As we have already said, we think the weight of the testimony establishes the fact that a suction was produced by the rapid passing of the Aureole too close to the Willkommen, in water that was shallow, when compared with her draught of 25 feet.

The decree of the court below is therefore affirmed.  