THE COMMONWEALTH. BOOTH FISHERIES CO. v. DANIELSON

THE COMMONWEALTH. BOOTH FISHERIES CO. v. DANIELSON. Circuit Court of Appeals, Ninth Circuit. December 3, 1929. Rehearing Denied January 13, 1930. No. 5801. A. H. Ziegler, of Ketchikan, Alaska, and Lane Summers and Huffier, Hayden, Merritt, Summers & Bucey, all of Seattle, Wash., for appellant. Lester O. Gore, of Ketchikan, Alaska (Robert W. Jennings, of San Francisco, Cal., of counsel), for appellee. Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges. [MAJORITY — RUDKIN, Circuit Judge.] RUDKIN, Circuit Judge. This was a libel for damages for a collision at sea. Shortly after midnight on tbe morning of September 17, 1926, tbe Commonwealth collided with tbe Annie in tbe waters of Sumner Strait, and as a result of tbe collision tbe latter was sunk and became a total loss, together with, all personal property on board. Tbe Commonwealth was a gas screw vessel about 100 feet long with a capacity of about 60 tons net. Tbe Annie was a gas boat about 40 feet long with a capacity of 11 tons net. At tbe time of tbe collision tbe Annie was disabled because of engine trouble and was lying motionless in tbe water about two miles off shore, beaded north. Tbe Commonwealth, approaching from tbe starboard side, struck the Annie on the starboard quarter/ about 15 feet from tbe stem, with tbe results already stated. There was testimony tending to show that the Commonwealth changed her course when about 400 yards distant from tbe Annie and came directly towards her. Tbe night was clear and tbe visibility good, so that lights could be seen at a considerable distance. As stated by the court below, tbe principal questions in tbe ease were: First, did tbe Annie maintain proper lights? and, second, did tbe Commonwealth maintain a proper lookout? Tbe court found both issues in favor of tbe owner of tbe Annie and entered a decree for full damages. From this decree tbe claimant, or owner of tbe Commonwealth, has appealed. Tbe two witnesses on board tbe Annie at the time of tbe collision testified that her lights were burning brightly. Three witnesses on board tbe Commonwealth testified that they saw no lights. Tbe former testimony was positive and tbe latter negative in its character. Tbe testimony was taken largely in open court, and tbe finding of tbe court, based on conflicting testimony, if there was such conflict, should not be disturbed. And if tbe lights on tbe Annie were burning brightly as found by the court, it follows almost as a matter of course that the Commonwealth did not maintain a sufficient lookout, or that the lookout did not attend properly to his duties. The New York, 175 U. S. 187, 204, 20 S. Ct. 67, 44 L. Ed. 126. We are further of opinion that the court was justified in finding that the fault of the Commonwealth was the proximate cause of the collision. It is contended that the court did not so find, but we see no merit in this contention. In its opinion the court said: “I am of opinion, therefore, that the Commonwealth failed to keep and maintain a proper lookout, and such, failure was the cause of the collision.” The decree is affirmed.