The proper station for a lookout is where he can have an unobstructed view. It must be a place unobstructed by the sails, and is usually on the forecastle, or near the eyes of the ship.30 31' In the case of steamers, although courts discourage the practice of having the lookout in the pilot house, his proper location is a question of fact, not of law. The dissenting opinion of Chief Justice Taney in Haney v. Baltimore Steam-Packet Co., puts the doctrine as follows: "It has been argued that the lookout ought to have been in the bow, and some passages in the opinions of this court in former cases are relied on to support this objection. But the language used by the court may always be construed with reference to the facts in the particular case of which they are speaking, and the character and description of the vessel. What is the most suitable place for a lookout is obviously a question of fact, depending upon the construction and rig of the vessel, the navigation in which she is engaged, the climate and weather to which she is exposed, and the hazards she is likely to encounter; and must, like every other question of fact, be determined by the court upon the testimony of witnesses-that is, upon the testimony of nautical men of experience and judgment. It cannot, in the nature of things, be judicially known to the court as a matter of law." The courts have ruled that this doctrine applies to all steamers, large and small, both as to the location of the lookout and the necessity of having a man independent of the master and wheelsman. In the case of tugs it is a rule 371, 12 Sup. Ct. 711, 36 L. Ed. 469; HERCULES, 80 Fed. 998, 26 C. C. A. 301; Elk, 102 Fed. 697, 42 C. C. A. 598; Columbia (D. C.) 104 Fed. 105; Fannie Hayden (D. C.) 137 Fed. 280. 30 Java, 14 Blatchf. 524, Fed. Cas. No. 7,233; John Pridgeon, Jr. (D. C.) 38 Fed. 261; Bendo (D. C.) 44 Fed. 439, 444; Vedamore, 137 Fed. 844, 70 C. C. A. 342; Prinz Oskar, 219 Fed. 483, 135 C. C. A. 31 23 How. 292, 16 L. Ed. 562. more honored in the breach than in the observance. There is some excuse for it, as the pilot house of the tug is so far forward and so elevated as usually to afford the best view. And, in addition, the stem of a tug being low down in the water, unlike the lofty stems of large vessels, is so wet a place in a heavy sea that a lookout could do no good. Hence the courts, though insisting on their rule even as to tugs, especially in harbor work, and requiring strong proof to satisfy them that the want of a special lookout did no harm, are more lenient in such cases than in cases of large steamers. The instances in the books where tugs have been condemned in this respect were cases where the accident was directly traceable to such neglect.32 SAME-ANCHORED VESSELS 141. When a moving vessel runs into a vessel anchored in a lawful place, with proper lights showing, or a bell ringing, if such lights or bell are required by rule, and with a proper anchor watch, the presumptions are all against the moving vessel, and she is presumed to be in fault, unless she exonerates herself. The law in relation to collision with anchored vessels can best be classified under this twenty-ninth rule. The presumptions against the moving vessel in such a case are very strong. Practically her only defense is vis major, or inevitable accident, in the absence of fault on the part of the anchored vessel.33 32 City of Philadelphia v. Gavagnin, 62 Fed. 617, 10 C. C. A. 552; George W. Childs (D. C.) 67 Fed. 271. As instances where tugs were held blameless on this score, see Caro (D. C.) 23 Fed. 734; Bendo (D. C.) 44 Fed. 439; R. R. Kirkland (D. C.) 48 Fed. 760; Blue Jacket, 144 U. S. 371, 12 Sup. Ct. 711, 36 L. Ed. 469; HERCULES, 80 Fed. 998, 26 C. C. A. 301. § 141. 33 Le Lion (D. C.) 84 Fed. 1011; Minnie (D. C.) 87 Fed. If, however, there is any maneuver by which an anchored vessel, on seeing a collision imminent, can avoid or lighten it, she is required to do so. Sometimes the courts have held anchored vessels in such case required to sheer, or to let out additional chain, if they can do so.34 Anchoring in Channels How far it is negligent in an anchored vessel to anchor in a channel of navigation is a question of fact depending upon special circumstances. In the neighborhood of many ports there are designated anchorage grounds, and a vessel anchored in these grounds designated by proper authority is not at fault on the mere score of anchorage. In other places vessels have grounds designated not by any special authority, but by general usage, and in that case, if the vessel anchors where it has been customary to anchor, and anchors in such a way that ample room is left for the passage of vessels, whether by day or night, allowing all necessary margin for the uncertainties of wind or current, it would not be negligent so to anchor. But, if a vessel anchors in a channel of navigation in such a way as to plant herself in the necessary path of passing vessels, so that moving vessels in such case come into collision with her, she is liable at least to be held partly in fault for the resulting collision; and, if it was a matter of nice calculation whether the moving vessel could pass or not, she would be held solely in fault. In the Worthington,35 a vessel anchored in the St. Clair river where it was customary to anchor, but left ample room for the passage of moving vessels. It was held that she was not to blame on the mere score of her anchorage, but that 780; Id., 100 Fed. 128, 40 C. C. A. 312; Europe (D. C.) 175 Fed. 596: Id., 190 Fed. 475, 111 C. C. A. 307. 34 Sapphire, 11 Wall. 164, 20 L. Ed. 127; 26 L. Ed. 145; Oliver (D. C.) 22 Fed. 848; L. Ed. 146; Director (D. C.) 180 Fed. 606. 35 (D. C.) 19 Fed. 836. Clara, 102 U. S. 200, Clarita, 23 Wall. 1, 23 the situation imposed upon her increased vigilance in reference to keeping an anchor watch and proper light. The cases of the Oscar Townsend 36 and the Ogemaw 37 were also cases of vessels anchored in the St. Clair river, in which the anchored vessel was held blameless. On the other hand, in the Passaic,ss a vessel at anchor in the St. Clair river was held at fault, not so much for anchoring there as for anchoring herself in such a manner that she could not move or sheer either way, the other boat also being held in fault for running into her. In the S. Shaw,39 a vessel anchored in the Delaware within the range of the lights, which was forbidden by the local statute. She was held at fault. 40 So, in La Bourgogne, a steamer was held in fault for anchoring in New York harbor, in a fog, outside the prescribed anchorage grounds. In Ross v. Merchants' & Miners' Transp. Co.,41 certain barges were anchored in such a way as to obstruct the channel, and there was strong evidence also that they did not have up proper lights. The court decided that they were to blame for adopting such an anchorage. This doctrine of obstructing narrow channels has the merit of great antiquity. Article 26 of the Laws of Wisbuy provides: "If a ship riding at anchor in a harbor, is struck by another ship which runs against her, driven by the wind or current, and the ship so struck receives damage, either in her hull or cargo; the two ships shall jointly stand to the loss. But if the ship that struck against the other might have avoided it, if it was done by the master on purpose, or by his fault, he alone shall make satisfaction. The reason is, that some masters who have old crazy ships, may willingly lie in other ships' way, that they may be damnify'd or sunk, and so have more than they were worth for them. On 36 (D. C.) 17 Fed. 93. 87 (D. C.) 32 Fed. 919. 38 (D. C.) 76 Fed. 460. 39 (D. C.) 6 Fed. 93. 40 86 Fed. 475, 30 C. C. A. 203. which account this law provides, that the damage shall be divided, and paid equally by the two ships, to oblige both to take care, and keep clear of such accidents as much as they can." These decisions were all rendered independent of statutory provision. 42 In the appropriation act of March 3, 1899, Congress made elaborate provisions for the protection of navigable channels, not only against throwing obstructions overboard, but against illegal anchorage. Sections 15 and 16 of that act 2 provided that it should not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft, and imposed a penalty not only upon the navigator who put them there, but upon the vessel itself. It was not the intent of Congress by this act to forbid vessels absolutely from anchoring in navigable channels. If their draught of water is so great that they can only navigate in a channel, it is so great that they can anchor nowhere else. At the same time, any great draught and the necessities of the occasion could not be used as an excuse to blockade the channel. The meaning of the act is that vessels are thereby forbidden from completely obstructing the channel, or so obstructing it as to render navigation difficult. The language of the act is, "prevent or obstruct." Hence, if a vessel anchors in a navigable channel, where other vessels had been accustomed to anchor, and anchors in such a way as to leave a sufficient passageway for vessels navigating that channel, she can hardly be held to violate this statute. If she was put there by local authority-as by a local pilot or harbor master-that would be evidence in her favor to show that she was not guilty of negligence; but even that would not excuse her for completely obstructing the channel, or so far obstructing it as to render navigation around her diffi 42 30 Stat. 1152, 1153 (U. S. Comp. St. §§ 9920, 9921); post, p. 489. C |