Broughton & Wiggins Nav. Co. v. Hammond Lumber Co.

This is an appeal in a case of collision between the sister cargo steamers, the Eureka and Ernest H. Meyer, shown by the evidence to have equal power and consequent speed in the conditions prevailing. The general factors controlling the problem of fault follow:

The collision occurred in San Francisco Bay, in the crowded thoroughfare between San Francisco and Oakland. There was no wind and no effective tide. There was a fog so dense that between 11 and 12 o’clock in the morning the visibility was as low as 300 feet and its maximum was 400 feet. In determining the speed of each vessel with reference to visibility in such a fog in a crowded harbor, they being such sister ships, each is entitled to no more than half the area of visibility in which to stop.

“It has been said by this court, in respect to steamers, that they are bound to reduce their speed to such a rate as will enable them to stop in time to avoid a collision after an approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.” The Chattahoochee, 173 U.S. 540, 548 , 19 S.Ct. 491, 494 , 43 L.Ed. 801 ; The Lepante (D.C.) 21 F. 651, 659 ; The Old Colony…

(dissenting).

Scarcely exaggerated is the statement of counsel for the appellees that the respective parties are in agreement only as to the names of the colliding vessels, the time of the collision, and the existence of fog. The fog that enveloped San Francisco Bay on the late autumn morning in question seems to have been wafted into the record. Not only are all of the material facts in sharp controversy, but added to the welter of dispute are the admitted disappearance of the Meyer’s engineroom bell book, smooth deck log, and rough engine-room log, and the admitted alteration of the Eureka’s engineroom bell hook.

The parties agree that ships’ records are of great importance in a collision case, especially where the question of speed is involved.

In the majority opinion, an attempt is made to reconstruct the admittedly altered logbook of the Eureka. Ingenious and plausible as the reconstruction may be, I cannot bring myself to accept it as a substitute for legal evidence, properly introduced. I do not believe that it is the province of an appellate court, even in admiralty, to perform the task of a handwriting expert, and, scrutinizing a document with a microscope, decide what…

(concurring).

I concur with Judge DENMAN except as indicated.

In considering the testimony of witnesses aboard two ships approaching each other in a fog so dense that they are invisible until within 400 feet of each other, it is impossible for observers aboard ship without the use of navigation instruments such as a stadimeter, or range finder, to accurately judge the speed of the approaching vessels. Furthermore, unconsciously the speed of approach is attributed to the other vessel rather than one’s own. In dealing with the speed of his own ship, a witness may have the advantage of the knowledge of the progress of the ship as it has approached the point of visibility. This knowledge includes the speed shown by the patent log, the speed of the propeller, the variations of that speed, the *505 knowledge of progress made over the ground as shown by soundings taken by fathometer or otherwise, and by the time of passing bell buoys, foghorns, and other navigation aids, assisted also in some instances by echo from the near shore, by radio compass, etc. From these factors the navigation officers of the ship are able to determine the speed of their ship at a given time with great…