Defendant Shedd filed a counterclaim against Bremmer who she claims was responsible for the negligence of Francis and his alleged failure to yield the right of way under the Great Lakes Rules and the Pennsylvania Motor Boat Law. Shedd claims damages to her boat in the amount of $ 1907.56. Shedd also joined Francis, the operator of the boat, as third party defendant. At Tr. p. 464, the court made the observation that it was "hopelessly confused by this evidence as how the accident could have happened". After mature deliberation and study of the transcript and briefs and arguments of the parties and the exhibits in the case this court still remains without any definite conclusion as to exactly how this collision occurred. There are many circumstances which give rise to questions in the court's mind but still the exact way this accident happened remains a matter of sheer speculation.
The court finds that Shedd had left the marina and was headed in a southwardly direction across the Bay. It is not clear, however, whether her course was such that she was going on a straight line for the Public Dock whence she had come or whether she was headed for a point approximately one-half mile west of that point on the south side of the bay. The court is also uncertain of the speed at which she was proceeding. Plaintiff Shedd insists she was not exceeding 10 mph but the violence of the impact would give rise to an inference that her speed must have been greater than 10 mph and there is also some testimony indicating that her boat was in a planing position. A boat is in a planing position when speed is increased at a certain point and the bow rises out of the water thus interfering with vision ahead. The court, however, considers this testimony to be sheer speculation precluding a definite finding as to her speed. We do find from her own testimony that the bow was elevated. There is also an indication from the testimony of Anderson that she had made a turn to starboard just before the collision. The testimony of Anderson, however, the court finds is so confusing that very little, if any, reliance can be placed thereon.
The court further finds that the Shedd vessel was properly lighted at the time of the collision. It was equipped with a red port running light and a green starboard running light on the point of the bow and a 360o white stern running light in the middle of the stern railing behind the engine. These lights were in operating order and were illuminated at the time of the accident.
The Bremmer boat, which was operated by Francis, was proceeding in the direction of the marina although there is some conflicting testimony from Seaman Overcast of the Coast Guard. Overcast testified that at the time of the collision, according to Bremmer, plaintiff's boat was proceeding from the Perry Monument, which is east of the entrance to the marina, and had turned slightly to port. See Tr. 228, 236. The difficulty with such a course of navigation is that the testimony also shows that the water is very shallow along the north shore of the Bay and that a boat coming in this direction would run the risk of going aground. Again, we have only sheer speculation as to the exact course of the Bremmer boat immediately before the impact. We do find, however, that it had made a corrective turn to port according to the statement given by Francis after the accident. See Boating Accident Report (D Ex 2).
It is also speculative as to whether the lights on plaintiff's boat were illuminated immediately prior to the collision. Bremmer and Francis testify flatly that they were illuminated. However, there is a statement made by Seaman Eldred, that he heard Bremmer say he had been "working on the lights, prior to the collision." Whether the lights were malfunctioning or had been extinguished or were illuminated immediately before the collision is another matter of speculation. The court finds nothing definite to contradict the statement of Bremmer and his operator that the lights were illuminated at the time of the collision.
The court further finds that the Bremmer boat was covered by the canvas top, which is used to protect the boat from the weather, which would interfere to some extent with the operator's vision.
The accident report given by Francis to the Pennsylvania Fish Commission (D Ex 2) states as follows:
"Vessel # 1 proceeding northward across bay toward marina. Lights of Vessel # 2 in view through forward window. Approx 500 yards from marina entrance made corrective turn to port to align entrance. Had lost sight of lights of Vessel # 2. Continuing in westerly direction when lights of Vessel # 2 appeared for an instant on starboard side aft of mid-ships, then Vessel # 2 collided with us. Vessel # 2 obviously changed course at high speed."
It will be noted that in this report Francis states that he did see Vessel # 2, the Shedd boat, through the forward window, approximately 500 yards from the marina entrance. He then states that he lost sight of her lights. From the position of the Shedd lights it must have been obvious that the boat was approaching him almost head on at this time and, therefore he should have kept a lookout with respect to its movements. This corroborates his testimony that he had made a corrective turn to port to align the entrance lights so as to enter the marina and this is in accordance with his testimony at the trial. He agrees with Bremmer's testimony that he next saw the light of the Shedd boat. It appeared to be approaching them from the starboard side, and the collision occurred almost immediately thereafter.
The matter is further confused by the fact that certain witnesses, to wit: Francis, Bremmer and Seaman Moore indicated that the Shedd boat struck the Bremmer boat on the starboard side, at an angle of approximately 15o to 20o beyond a right angle. Their testimony would lend credence to the attack theory that Shedd had turned and was pursuing the Bremmer boat at the time of collision. On the other hand, Overcast and Anderson (P Ex 25 and 27) indicated that the Shedd boat struck Bremmer at right angles. This is important because under the Great Lakes rules, which are applicable to this collision, the Shedd vessel had the right of way if it struck any point ahead of two points abaft the starboard beam. There is also testimony that the compass is divided into 32 points and dividing 360o by 32 gives each point 11.25 degrees of compass movement and therefore 2 points abaft the starboard beam would be 22.5o aft of the vessel's right angle at amidships or 112.5o from dead ahead on the starboard side of the vessel. As a result of the confusing testimony, the court can make no specific finding as to the angle at which the boats struck. If the Shedd boat was overtaking the Bremmer boat at an angle greater than 2 points abaft the starboard beam, then it would be in an overtaking position and have to give way to the Bremmer boat. The court has studied the photographs of the Bremmer boat (P Ex 1) and is unable to arrive at a conclusion which would place the angle of impact at a greater degree than 2 points abaft the starboard beam or an angle of 112.5o from dead ahead. As a matter of fact, a study of the photographs would indicate that most probably the Shedd boat struck the Bremmer boat at right angles which would clearly place it in a position where Bremmer had to give way to Shedd. The testimony, however, is so indefinite that the court can make no specific finding in this respect. It should be noted that we have D Ex 3, a drawing, made by Anderson, a passenger in the Shedd boat, the evening after the accident. The drawing shows that the Shedd boat struck the Bremmer boat at an angle of 45o from dead ahead but the photographs in evidence contradict this depiction and Anderson's testimony is so confusing and contradictory that we are unable to base any finding thereon.
The U.S. Coast Guard Rules of the Road, published on July 1, 1972, are the embodiment of the Act of Congress with respect to the operation of boats on the Great Lakes. 33 U.S.C. §§ 282-293. Rule 90.5 provides that when vessels are approaching head to head, normally they pass each other port side to port side as vehicles upon a highway in the United States, with the exception of vessels that are so far on the starboard of each other as not to be meeting head on. Provision is made, however, for signals in such case. Rule 90.8 provides that signals are to be given in a situation where one vessel is overtaking another. In Rule 90.8(b) it is provided that an overtaking vessel from a direction more than 2 points abaft the other's beam shall keep clear of the overtaken vessel until the overtaking vessel has finally passed and cleared. It is further provided that no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel. In Rule 90.10, it is provided that where vehicles are approaching each other at right angles or obliquely so as to involve the risk of collision other than in a case of a vessel overtaking another, the vessel which has the other on her port side shall hold her course and speed and the vehicle which has the other on her starboard side shall keep out of the way and, if necessary, slacken speed and reverse engines. Rule 90.12, provides that due regard for all dangers of navigation and collision and special circumstances may render a departure from the above rules necessary in order to avoid immediate danger.
While these Coast Guard Rules are on their face applicable only to steam vessels, nevertheless by regulations of the Coast Guard, the same are applicable to all pleasure craft operating on the Great Lakes. See P Ex 6(a) entitled "Coast Guard Official Recreational Boating Guide July, 1971" at p. 32, et seq. Both of the boats involved in this collision fall within Class 1, motorboats 16' to less than 26', (Ex 6(a), at p. 6), and the Coast Guard Rules are applicable to all vessels propelled by machinery. See Ex 6(a), at p. 35 where it is stated:
"Note that in these rules "steam vessel' includes any vessel propelled by machinery."
At page 36, of Ex 6(a) attention is called to the application of the Rule of good seamanship, Rule 29. Rule 27 is found at 33 U.S.C. § 292 and reads as follows:
"In obeying and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger. Feb. 8, 1895, c. 64, § 1, 28 Stat. 649."