facts. I am unwilling to indulge in speculation as to whether the vision of some lookouts is clearer than that of others, or whether the night was such that the unlighted frame should have been sighted by a lookout exercising ordinary care. The libelant, as owner of the dredge, was charged with the statutory duty of lighting or marking the place where the Pocantico sank, and navigators fulfill their duty, I think, when they look for lights at night to mark obstructions in the pathway of vessels, and the dredge was in fault for failing to maintain such lights or marks as would have prevented the collision. To charge navigators with the responsibility of sighting unlighted or unmarked wrecks after dark, or to require them to bear in mind the exact location of such obstruction merely because they had been previously notified thereof, would not only be burdensome to them, but would put upon them a greater responsibility than the law requires.'
Finally, Reading complains that the Waltham Victory negligently failed to post a competent lookout. It argues that the lookout was an ordinary seaman whose eyesight was so defective that he could not obtain an able seaman's ticket, and who admitted that he had to wear glasses on watch. It appears, however, that the lookout was unable to obtain an able seaman's ticket because he is color-blind, a defect in no wise impairing his ability to see objects or lights. We know of no rule that holds a seaman incompetent for lookout duty merely because he wears glasses. The lookout was wearing glasses at the time of the collision, and there is no evidence that his vision, as thus corrected, was defective. While the lookout's testimony was somewhat confused and evasive, we cannot say that he had been inadequately instructed as to what he was to report as lookout, as Reading contends.
If the evidence indicates any negligence in the navigation of the Waltham Victory, it was not negligence of which Reading can complain. The hazard which might render such navigation negligent was the danger of running aground, not the risk of collision with an unlighted wreck negligently left in a navigable channel. The orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. Cardozo, C.J., in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253. In any event, we are persuaded that the alleged negligence of the Waltham Victory was not a legal cause of the collision, but only a condition of its occurrence, a circumstance that made it possible. The legal cause of the collision was Reading's negligent non-compliance with the statute.
We regard as pertinent here, the language of the Supreme Court in The City of New York, 147 U.S. 72, 85, 13 S. Ct. 211, 216, 37 L. Ed. 84:
'Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor.'
Conclusions of Law
1. The Court has jurisdiction of the parties and of the subject matter.
2. Reading's carfloat was wrecked and sunk in a navigable channel within the meaning of the Wreck Act, 33 U.S.C.A. § 409.
3. It was Reading's duty, as owner of the wrecked carfloat, to mark it as required by the provisions of the Wreck Act.
4. Merritt-Chapman was under no legal duty to mark the carfloat.
5. Reading was negligent in failing to mark its wrecked carfloat.
6. Reading's negligence was the sole legal cause of the collision between the Waltham Victory and the carfloat.
7. The Waltham Victory's alleged negligence was not a legal cause of the collision.
8. Pope & Talbot, Inc., is entitled to recover from Reading the damages sustained as a result of the collision.
9. Reading's libel must be dismissed.
10. Pope & Talbot's cross libel against Merritt-Chapman must be dismissed.
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