BOSTON SAND & GRAVEL CO. v. UNITED STATES, 7 F.2d 278

BINGHAM, Circuit Judge. This is an appeal from a decree of the federal District Court for Massachusetts in an admiralty proceeding brought by the Boston Sand & Gravel Company, the owner of the steamer Cornelia, against the United States, under a special act of Congress approved May 15, 1922 (42 Stat. 1590), to recover damages sustained by tbe Cornelia in collision with tbe destroyer Bell in tho dredged channel of Broad Sound at tbe entrance to Boston Harbor, August 9, 1918. The court below entered a decree dismissing tbe bill, and the libelant appealed.

The Cornelia was a steam, sand lighter, 130 feet long and 39.5 foot beam. At the time of the collision she was proceeding light from Boston to Scituate, at about 4% knots, to obtain a cargo óf sand and gravel. There was a thick fog, restricting one’s view to from 50 to 75 yards. The Bell was 314 feet long and 31 feet .in width. Her bridge was 225 feet from beer stem, and she Was painted in camouflage eolors. . On the morning in question both vessels were proceeding o-ut of the harbor, intending to go through the north channel.

At that time, for war purposes, a steel submarine net, about 500 feet long, having a gate 100 feet wide, had. been stretched across this channel. Tbe gate swung on buoys at the left side of the channel as one passed out to sea. In the daytime it was kept open, being moored at right angles to tbe net. The net and gate wore submerged, but their location was marked by buoys. A vessel desiring to go out of the harbor was required to- receive permission from a station ship anchored off Deer Island Light, about a mile from the net.

As the vessels approached Deer Island Light, the Bell passed the Cornelia on her starboard side some 150 feet distant, and obtained permission to go through the not a few minutes before the Cornelia did. When tho Bell passed tho Cornelia, the fog had lifted somewhat, and each knew and appreciated that tho other was outward bound through the net, and tbe Bell was aware that the Cornelia was proceeding at a slightly slower speed than she was. When the Bell came within sight of the net the gate appeared to be closed, and her oiScors caused her engines to bo reversed.

The Bell stopped, and remained so for two minutes, when her lookout on the bridge sighted the Cornelia. About three minutes elapsed from the time the net was sighted until the Cornelia was seen. She was first seen on the port quarter of tho Bell by the lookout on the port wing of tbe Bell’s bridge, who was stationed about 215 feet from her stem. Immediately on observing the Cornelia, the Bell signaled for standard speed ahead. Two men were stationed on the Bell’s fan tail, about 20 to 30 feet from her stem.

It was undisputed that the duties of these men wore to attend to the depth charge and to look out for submarines. There was a dispute, however, whether they were to observe and report vessels generally. They made no such reporte that morning on the way out. Both vessels claim to have given tho proper fog signals, though neither hoard the other. On the stem of the Bell was a depth charge sponson extending out under the water some 15 or 20 feet. When the Cornelia sighted the Bell, they were from 75 to 120 feet apart.

She then ported and turned her bow to starboard, and in doing so struck the depth charge sponson, which cut her open and made it necessary to beach her. Tho sponson of the Bell was broken, and she received other damage. The District Court found that the Bell was at rest at the time of the accident and was free from fault; that the Cornelia was at fault, apparently because she failed to so regulate her speed in the fog that she could stop after first seeing the Bell. We think that the District Court erred in finding that the Bell was free from fault.

There can bo no question that the Bell knew the Cornelia was following her out through the net only a short distance behind, that she knew the passage was a narrow one; and that in stopping in the fog as she approached tho gateway she was creating a dangerous situation, which called for special care and caution, particularly with reference to the Cornelia. Being aware of these facts, she failed to station any one at her stem to observe and report the approach of the Cornelia, or to instinct tho men on the fan tail (the depth bomb men) to observe and report the approach of the Cornelia.

The evidence further showed that, had the Bell been 10 feet in advance of the position she was in at the time the Cornelia crossed her stem, no accident would have occurred. It is therefore evident that time was of tho essence, and, had the approach of the Cornelia been reported to the Bell but a short time earlier, tbe accident would not have occurred.

All the witnesses for the libelant testified that, had the Bell stationed a lookout at her stem, the Cornelia’s approach would have been sooner observed, and two of the officers of the Bell testified, that with a lookout the approach of the Cornelia would undoubtedly ba,ve been seen sooner than she was by the lookout on tbe bridge. We think the Boll was guilty of contributory fault. The damages to the vessels should be divided. The decree of the District Court is reversed, and the ease is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the appellant.