that the vessel was going to full astern. The effect of the WARTENFELS' engines going full astern was to throw her bow even further to starboard causing her to collide with the OHIO SUN.
17. Immediately after the danger signal, the captain of the OHIO SUN ordered full ahead and a hard left rudder to which the vessel was responding at the time of the accident.
18. At approximately 0430 on August 12, 1961, the bow of the WARTENFELS struck the port quarter of the OHIO SUN, approximately 25 feet forward of the latter's stern. The collision occurred on the right descending side of the channel. The Houston Ship Channel is only 350 feet wide and 35 feet deep at the point of impact.
DISCUSSION AND CONCLUSIONS OF LAW
Before discussing the issue of fault, the Court is faced with introductory questions pertaining to the burden of proof and the existence of presumptions.
The Libellant argues that the Respondent has the burden of proof in the sense of the risk of non-persuasion since the latter was the overtaking or "burdened" ship. While the cases are somewhat vague and ambiguous due often to an imprecise use of the term "burden of proof", the better rule only places on the overtaking ship the burden of going forward with the evidence once it is shown that she was the overtaking vessel and that she collided with the overtaken ship. See Clara, 102 U.S. 200, 26 L. Ed. 145 (1880); Gosnell v. United States, 262 F.2d 559 (4th Cir. 1959); B.F. Diamond v. M/V Fernside, 252 F.2d 381 (5th Cir. 1958); The Percheron v. Alabama Transit Co., 246 F.2d 135 (5th Cir. 1957); The Greystoke Castle, 199 F. 521 (N.D.Calif.1912); Sif, 181 F. 412 (E.D.Pa.1910); Charles R. Spencer, 178 F. 862 (D.Oreg.1910); Mesaba, 111 F. 215 (S.D.N.Y.1901); Griffin, Collision §§ 24, 61. The proof required of the respondent to rebut the presumption in favor of the libellant is some evidence that the collision was not her fault or was the fault of the libellant or was the result of an inevitable accident. Patterson Terminals Inc. v. S.S. Johannes Trans., 209 F. Supp. 705 (E.D.Pa.1962); Patterson Oil Terminals v. The Port Covington, 109 F. Supp. 953 (E.D.Pa.1952), aff'd 205 F.2d 694 (3d Cir. 1953). After such evidence is presented, the presumption in favor of the overtaken vessel disappears and the libellant's duty to prove her case by a preponderance of the evidence remains without the aid of the presumption. See Wigmore, Evidence §§ 2485-2493.
In addition, if the court finds that either vessel had violated a statutory duty, that vessel has the burden of going forward with evidence to show not only that her fault probably did not cause the collision but that it could not have caused or contributed to it. The Pennsylvania, 19 Wall. 125, 136, 86 U.S. 125, 136, 22 L. Ed. 148 (1873); Boyer v. The Merry Queen, 202 F.2d 575 (3d Cir. 1953); Gilmore & Black, Law of Admiralty, § 7-5; Griffin, Collision §§ 24, 200.
While the WARTENFELS produced evidence tending to negate any fault on her part so as to remove the presumption in favor of the OHIO SUN, the court finds that the libellant proved by a preponderance of the evidence that the respondent was guilty of negligence and that this contributed to and was a cause of the collision. Instead of reducing her speed as the overtaking vessel to make the speed differential between herself and the OHIO SUN as small as possible, as should be done in a passing situation in the narrow Houston Ship Channel,
the WARTENFELS ordered her engines to full ahead. This increased momentum and her proximity to the port shore brought the forces of bank suction into play, making her sheer to starboard and collide with the OHIO SUN.
The respondent was also in violation of her statutory duty under the Inland Rules of Navigation, Art. 24, 33 U.S.C. § 209 which provides:
"Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel."
Although this clause must not be read literally so as to hold an overtaking vessel liable in every situation where she does not in fact "keep out of the way", there are no extenuating circumstances here to extricate the respondent from the force of the rule. The Pilar De Larrinaga, 42 F. Supp. 648 (E.D.Pa.1942); See, The Artemis, 39 F.2d 553 (2d Cir. 1930).
The WARTENFELS clearly did not meet her burden of going forward to show that this infraction could not have been a cause of the accident even if she did violate the statute. The collision with the OHIO SUN was a direct result of her failure to observe Art. 24 of the Inland Rules of Navigation, 33 U.S.C. § 209.
The respondent contends that even assuming her own negligence, the libellant did not have a proper lookout astern and therefore must also be held at fault. Specifically, the WARTENFELS alleges that the OHIO SUN violated the Inland Rules of Navigation, Art. 29, 33 U.S.C. § 221 which provides:
"Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."