Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles E. Woodward, Judge.
Before EVANS and SPARKS, Circuit Judges, and MAJOR, District Judge.
This action in admiralty was brought by appellant, as owner of the S. S. Brentwood, against appellee, as owner of the dredge New York, to recover for damages to the Brentwood and its cargo caused by its running aground in the Bayfield Channel of the St. Mary's River. The grounding is alleged to have been caused by the Brentwood being misled by a red light used by appellee as a danger marker for a swing anchor in connection with dredging operations in the channel, which light it was alleged was located on or near a spar buoy at or near the southerly edge of the channel. The court disallowed appellant's claims and dismissed the libel, and from that judgment this appeal is prosecuted.
Appellee was engaged in dredging the Bayfield Channel in the St. Mary's River, which is a navigable stream connecting Lakes Superior and Huron. For the purpose of marking a swing anchor for the dredge, appellee had placed above it a red lantern light, lashed to a spar, held upright by a chain attached to its lower end, which light was located in the navigable channel, but outside the fairway. It is contended by appellant that this light was improper and unlawful and misled the Brentwood to its injury. It denies contributory negligence, but in case the court should find both parties to be at fault, it urges a division of the damages. Appellee, on the other hand, contends (1) that the light was a proper, usual and customary danger marker, not placed in aid of navigation, but was required by the applicable rules and authorized by the Government engineer in charge, and appellee was not guilty of any negligence with respect thereto, (2) that the injury was caused solely by the negligent navigation of the Brentwood.
A perusal of the entire record convinces us that a preponderance of the evidence supports the following facts: The occurrences in question took place in the waters of the United States, south of the Canadian boundary. The Bayfield Channel extended from the Sault Sainte Marie lock canal on the west to Little Rapids Cut on the east, and was less than two miles long. The general course of vessels downbound through the channel was easterly. The lights provided by the Government to mark the channel in the night time, as aids to navigation, consisted of range lights and channel markers. The front range light was twenty-four feet high and the rear one thirty-four feet high. They were gas lights which burned continuously and were located on Sugar Island and could be seen by the Brentwood at all times in question. They were 140 candle power and served as a guide through the center of the channel, which, unless partly obstructed, was one thousand feet wide. A straight line drawn through the two range lights would coincide with the center of the channel. The channel for navigation was under frequent change on account of dredging operations which had been in progress during the navigating season of 1933, and for some time prior thereto, and at the time in question the greater part of the north half of the channel was closed for dredging. As this work proceeded, it necessarily caused the north line of the navigating channel to be changed from time to time. It was marked with two blinker lights, which are referred to as channel marker lights. The west light, 24B, was about thirty feet north of the center of Bayfield Channel and three or four thousand feet east of the locks; the east light, 24A, was about fifty feet north of the center of the navigable channel, and about three thousand feet east of 24B. These lights flashed at intervals of five-tenths seconds on, and three and one-half seconds off. They marked the north side of the remaining fairway and were eleven feet in height to the focal plane of the light. They were thirty-five candle power and were more brilliant than an ordinary lantern. The open navigable channel south of the center line of Bayfield Channel was five hundred feet in width at its narrowest point. The south side of the navigable channel had a white channel marker light, referred to as Entrance Light 27, on the south side of Bayfield Channel near the intersection of that channel with Little Rapids Channel, and approximately at the entrance of Little Rapids Cut. It was a blinker light of one hundred twenty candle power and flashed at intervals of two and one-half seconds on, and two and one-half seconds off.Formerly there had been a white light further west of Entrance Light 27 on the south side of Bayfield Channel, but it had been removed more than a month prior to the night in question, and on that night there was no white light to mark the south side of Bayfield Channel between the locks and Light 27. About seventeen hundred feet west of this light was a black spar buoy which is referred to in the record as 27A.
Appellee's dredge was a suction dredge one hundred ten feet in length and at the time in question it was brilliantly lighted and in plain view. It was used in connection with a floating plant working in the navigable channel, but outside the fairway. It started operating on June 10, 1933, between 650 and 750 feet south of the navigable channel but not in it. It was at all times at a place where it was entitled to be with the consent of the Government engineers, under the War Department, and at the time of the incident in question those engineers had an inspector upon the dredge.
Appellee had placed a red light on a spar marking the location of a swing anchor for the dredge about 300 feet upstream from the black spar 27A, and about twentyfive feet south of the south line of the navigable channel. The dredge from time to time in its operations moved in an arc about the anchor as a pivot. The light was an ordinary lantern with a red globe, about four and one-half inches in diameter and eight inches in height, hung on a spar weighted at its lower end so that the upper end of the spar stood up out of the water. The spar was two inches in diameter and extended about four feet above the water. The lantern was hung on a nail driven in the spar six or eight inches from its upper end, and the lower end of the lantern was lashed to the spar. It was used as a danger warning and not directly as an aid to navigation. The light was visible for over five miles, and it differed from lights 24A and B in that it was not a blinker light and was of much less candle power. The marking of a swing anchor with a red lantern hung on a spar was an approved marking of such anchor as supervised by the engineers of the War Department. Such marking had been customary for many years, and was a custom of which mariners generally had knowledge.
The United States Department of Commerce, prior to the incident in question, had published Pilot rules for the Great Lakes and their tributaries, and had incorporated therein rules and regulations of the Secretary of War governing the display of signals in connection with dredging and channel improvement work. Of these, Rules 5 and 11*fn1 are applicable, and the appellee's light in question reasonably complied therewith.
A reporting room was maintained at the locks where masters were required to report when passing. In that room was posted a map showing the channel markers and the conditions respecting dredging and channel occupation. At the time in question that map disclosed that dredging operations were in progress south of the fairway and that it was closed to navigation and was used as an anchorage ground. The master of the Brentwood had navigated this for many years prior thereto, and it had been the well-known custom of mariners in the connecting waters of the Great Lakes to keep all red channel lights to port when downbound and to starboard when upbound. The Brentwood was downbound and laden with grain. Its officers had in their possession the Government chart showing the general geographic conditions as they existed at the beginning of the season, and also, the hydrographic chart showing the position at that time of lights and channel markers which had been changed from time to time as necessity required. The Brentwood left the locks at 11:50 P.M. on June 14 and grounded not later than 12:10 A.M. on June 15, at a point about 1300 feet downstream from Black Spar 27A, and 700 feet upstream from Entrance Light 27, practically on a line between the two. The night was dark, the sky was somewhat overcast, and there was an intermittent drizzling rain, with a southwest wind, but the visibility was good.
The master, the second officer, and the wheelsman were in the pilot house of the Brentwood. On the charts in their possession there were indicated in the channel the two red channel markers 24A and 24B to mark the north side of the fairway, and the white light 27 on the south side of the fairway near the turn into Little Rapids Channel. The lookout, the master, and the second officer observed three red lights in the Bayfield Channel, although the chart indicated but two channel marker lights. Two of those lights, 24A and B were practically in line with the range lights, as indicated by the hydrographic chart. The other red light, which was the appellee's swing anchor light, was south of the two red lights 24A and B and the range line. The crew of the Brentwood testified that appellee's anchor light appeared to them as a blinker light, yet the record does not disclose that they made any observation or undertook to determine that appellee's anchor light was regularly intermittent nor that its blinking was timed according to the timing of lights 24A and B, notwithstanding the fact that they passed south of and within fifty feet of appellee's light, and pursued their course beyond it for a distance of one-fourth of a mile before grounding.
Appellee's anchor light was seen by the Brentwood's lookout before he reached red light 24B, and at that time the range lights and the red lights 24B and 24A were practically in line, and appellee's anchor light was not dead ahead of the Brentwood but was to the south and off her starboard bow.
The Brentwood was straight with the channel when she passed 24B. She could have passed safely within fifty feet of that light, but she passed about two hundred feet south of it. In that location, however, the master could have used the range lights as an aid in keeping his course as he was so headed, and he could have employed Entrance Light 27 by keeping it over his starboard bow as a guide to keep in the navigable channel had he seen fit to do so, but he made no observation of the range lights, because, as he said, he was not interested in them.
To navigate a channel by use of range lights it is not necessary that the vessel be exactly in line with them. A competent navigator can tell how much he is off the line of the ranges by observing them, whether one hundred or three hundred feet. Before approaching 24B, where the Brentwood crossed the range line, the identity of 24B was determined by ascertaining that it was the range line, and there was ...