*1 LINES, STATES. UNITED Inc. v. COYLE LINES, Inc. STATES v. COYLE UNITED 13777.
No. Appeals Court of States Circuit. Fifth
April May 15, 1952.
Rehearing Denied Lemle, La., Orleans, New
Selim appellant. II, Ferguson, Counsel, V. Joseph Dist. Administration, Lansing L.
U. Maritime S. Atty., Orleans, Mitchell, Asst. U. S. New appellee. La., for *2 SIBLEY, RUSSELL, Before and sels and Pier A and Pier the river end of RIVES, Judges. Circuit B. description accident as con- RIVES, Judge. tained in rough log bridge book parties appealed from a final Both have Victory quoted not with here finding decree of the mutual district the intention approving that is said States, fault on -the of the United in description helps to a because Coyle owner of the clear understanding of the case: Lines, 1845, for barge, owner D.B. “Sunday May 11th 1947. between the collision which occurred “Left Dock Pier B. assisted 11th, May vessels in Mobile Harbor on Ernest Capt. E. Ladd. N. p. at about 8:00 m. decree handling ship. Pilot Engine—slow judgment against awarded Lines a astern. Tug Ernest Ladd made fast $10,830.67, the United in the sum of States Quarter on Port ship to assist turn together with costs. The interest and pitch around. Weather opinion reported in of the district court is up ships dark. up Laid tied F.Supp. seq. 821 et ship. east bank astern of the One night was dark and clear. A tug boat barges two moored out- southerly blowing wind was the Mobile strong side Pier A. A eb tied was point river which due at this runs south setting down the chanal which made it flowing and a ebb down tide very ship up difficult to turn the the river. stream and head her down the Chanal The wharves State Docks of Alabama Quarters on very also account of close constructed bank are on west very in the difficult darkness to piers river on which the wharves judge the ships distance from the tied in had built a northwest-south- run up at the east bank astern of us. was east A is the direction. Pier lower necessary to clear a boat and two B more southernmost Pier barges which moored outside at slip dredged north of Pier AA. several Pier A. We which separates in A width Pier on lites but no lites from Pier B. barges. speeds engine Various ship were used turn around & head barges, in- Two the D.B. here * * * ship’s her down the chanal volved, and a Sherman were moored bow struck 2nd laying outside A, D. to the east or river end Pier lights APier no barge. We B. 1845 the lower or downstream not see as she low this laid barge being and the Sherman in below the water the Pier head. upstream barges barge. Both un- Dont know was done to tug, E, moored lighted. A barge as we not see account of outboard Sherman ** * * * * darkness let go Victory had been moored ship straitened out and proceeding Pier B dredged side of the south down the channal on Examination of slip Pier and Pier between A ship’s bow found a dent small above vessel of the seagoing merchant apparent water line. No other States, Victory feet long. an old * * damage to departed When found, judge The district and with evening May 11th, B on south Pier agree, finding that the D.B. 1845at at anchor two vessels were collision violating the time of the opposite of the Mobile river east side provisions of Section 332.18 of the Pilot slip separating Pier from Pier B. This for Western Rivers unusual Rules she circumstance
was not in or near was about moored the channel appears that there 800 feet of of the Mo water between the navigable anchored ves- river bile after dark burn- aids tions, mere analysis, are that such the final presumption follows ing. The right of rule, statutory getting sole the court violation de- must matter, weight their cause, contributory cause of relative was at least a particu- upon pend upon collision, rests the circumstances the burden *3 merely that lar case. Coyle showing of Lines might one not have been such fault admiralty the appeal an “On not, causes, probably was that or re duty hearing novo, our de and is to was under that it have could not been. de and make such the view whole case of The rule, the that established in case Pavlis made.” ought have been cree as 148, Pennsylvania, 125, L.Ed. 22 19 Wall. Cir., 363. In 131 Jackson, 5 F.2d the failure held that that district court the the witness all of the of this case carry light a of the D.B. 1845 to by deposition es the taken collision was contributing least of the collision a cause dis the and no afforded opportunity was The United and found mutual fault. witnesses. hear those trict court to see and was caused that the collision States insists weight give therefore to We have reason D.B. 1845. by of the sole fault the findings fact. of the district court’s Act, U.S.'C.A. Stand-By The § &S. R. M. Corp. v. S.U. S. S. Waterman by failing to stand provides that vessel Lap 687, 690; Co., Cir., The 155 F.2d “in the absence of after collision shall Cir., careful wing, 5 150 F.2d contrary” to have proof be deemed leaves us with consideration record of Douglas The Vic- caused the collision. fault for that sole conviction free of tory, maneuvering herself after Victory. Douglas collision rests on identify stop herself barge, did not at the Taylor V. W. P. Long H. barge had ascertain of employees were time of the collision assistance, sustained, or to offer Taylor was Chief Alabama Docks. State attending tug send her as- did she Department the Docks and of the Police of Vic- sistance driven in his automobile tory proceeded on down the Mobile river occurred. minutes before the collision few en toward the Gulf of Mexico route burning lights that there were testified addition, Orleans. the district New of the warehouse on face found, finding and with this A, of that he end the Pier could see agree, that “the evidence taken as a whole auto- light and that the barges, shows that the S. S. barges; that shining mobile was being maneuvered in unseamanlike standing which struck was manner”. wharf, above deck of the that tug- In this case we are confronted boat barges outside lit up, with conflicting presumptions because sitting that from where there was statutory fault of the D.B.1845 light sufficient for him to see failing carry required by struck. Long prior which was testified that Rivers, the Pilot Rules of Western and to the collision he turned on the on by because the violation the Douglas the warehouse on the face of the wharf Victory of the Stand-By Act. Lines there five lights burning, claims the against benefit the United States two in group end, on the north one a 200 of still further watt, presumptions, viz.: that watt and the other a 150 and three vessel, the moving group on other end which were ei- presumed fault, Victor, to be at lights. ther 100 150 watt All of the Cir., 200; F.2d the failure lights were on the river end of the ware- the United States to produce They the Douglas house. carried shade reflectors Victory’s deck produce bell book and to photographs show were which not turn- knowledge witnesses directly collision ed downward would cast the inference production raises that their lights beyond of the beam of the the river However, disclose information pier. unfavorable to end of it must be borne All the Government. presump- these mind that crew the Vic- tory approxi- happened bow vessel What ? A. after that mately Well, above water the ship was swinging to perspective their all same was not at set down at the same time. as that of the witnesses were on the Set down what? A. pier. tide, the tide. ebb only Government called three wit- “Q. Was assisting? A. there a nesses the actual happening col- There was a tug on the stern. We lision, all Victory: officers the Douglas were being set down the time and Green, Captain her master Ernest E. her port, down, turning set and we officer, McMunn, second Donald R. seed another barge. pilot, N. Borden. Bor- *4 “Q. What did you do? A. Called den testified Douglas that was Victory bridge and let them about know scheduled Sunday sail at on this 7:31 time, and dark, at that well, it was evening, and that short while before that a pretty was late then. time he went B out the end Pier where “Q. Pretty late you ? What do Douglas Victory pur- for the lying mean by pretty late? A. Didn’t have pose looking at the draft he vessel’s much time to anything.” do saw small lighted a the north lying at The second testimony, mate’s leave or river of Pier that end A and impression bridge that he called only McMunn, thing he there. the sec- saw about the D. barge that that time mate, ond testified that as there pilot was not much time. The on the Victory slip cleared the he saw the other hand is definite that he called the sec- barge master, tug. astern ond mate to if the find out was clear. Captain Green, testified that he saw place pilot another in his tug but that first he .knew either reiterates that statement: mate, McMunn, barge was the second when sang out that barge first one saw “Q. Now, Captain you say the first then that he the other. time you that barge there knew was a was when the Mate out to pilot, Borden, you sang went on No, there barge ? testify: was a A. he did not sing out. I him called to him asked maneuvering, that while were forward, how she was if she was clear he “called the Mate on the fore- forward, and he said there a barge castlehead, I think was the Second about feet ahead.” there, Mate of the asked It will be noted that on both statements clear, I him—we were see the quoted the second mate her, every- tug, we clear were of —if that saying barge there was a about 30 or thing was clear forward. said Actually, feet pres- ahead. as we shall there about 30 or 40 feet barge was a show, ently Captain Borden referred to the Well, ahead of us. our bow was distance 30 or feet a third time. That then, swinging the left and I out to distance receives corroboration from engines give reversed the them full — Strickland, engineer Willie. half, instead of and at about astern E, Tug moored who moved from that There she hit 8:04% barge tug onto Sherman because he was no barge; on the I had knowl- apprehensive barge until the there edge Mr. tug. strike Strickland tes- Mate told me that she was Second part: tified in there.” “Q. you any see men McMunn, Could the Second Mate on who Victory? forecastlehead, A. I seen four testified as follows: o.r up on bow of the five Vic- barge seen the “Q. you And had tory there. that time? A. As next you “Q. slip hear And conversa- I seen we cleared anything? A. heard tug.' tion or I some- astern lookout— happened. Did and what he was—but who body don’t know —I the lookout all, said, first of who was somebody, back he ‘hollered’ sea- One A. forecastlehead? and ‘it’s thirty away,’ ‘it’s about now. men, name know his I don’t feet,’ going ‘it’s about ten that, hit,’ all about and it was “Q. in addition And apart.” forecastlehead? was there else there; A. The second mate 30 or Let us contrast this distance there, the boatswain mate, carpenter was the second testimony of feet with three four there, there was’ fol- McMunn, on Mr. cross-examination seamen. lows : you or them told “Q. none But you approxi- “Q. off, far How ahead reported that there was when mately, in feet from and asked out called you, you until there was bridge you notified forward, right? it was say ? —that ahead A. would right. That is A. maybe hundred I noticed we were feet off. he told was it And then He said out? you sang you when that time? *5 And moving how thirty feet barge about there was a going ? We were Ahead astern A. or ahead, ahead.” or 40 feet ahead at the time. —30 “Q. you By feet off’ hundred ‘a inescapable that is almost conclusion The mean hundred feet out in river and Mc- lookout forecastlehead barge? A. We were a hun- from on the seamen the other probably Munn and dred, well, a hun- say we were I barge but failed saw the forecastlehead away barge. dred feet from Captain bridge. it report they correctly “Q. In A. What- have surmised may direction? what visible sufficiently angle we was it was heading, thought ever we n away him. words, bow, “Q. your other In produce as did not The Government your away stem forecastlehead, on the witnesses the lookout port barge? from the side of the seamen located there any of the other right. That is barge, seen the nor did might have “Q. barge? Or outstream side any in the tes showing Government make right.” (Emphasis sup- A. That is missing these witnesses were timony that plied.) or that employ the Government not in testimony quoted From the last when they or that searched for connection considered The inference clear that be located. not testimony Captain Mr. McMunn and of called their they had been draw Mr. Borden we the conclusion that probably have been unfavorable to the barge McMunn considerable time saw Chicago Ry. See & N. W. the Government. responded before Borden’s he Cir., 572; Kelley, F.2d 8 84 The v.Co. query was clear. everything as to whether 658; Cananova, D.C., Mincio, 297 F. The is strengthened by That conclusion A.M.C.1765, 1771; Equipment 1936 Ac testimony: Borden’s further Corp. Mfg. Co., ceptance v. Arwood Can “Q. you Did have a lookout on 442, 445; Cir., Cir., 2 Algie, 117 F.2d Yes, forecastlehead? A. 389; Graf, we did. D.C., F.2d Woods F.Supp. report not you But he did you that there ahead of ? can see no why We valid reason report not A. He did to me. I call did not either take the Government testi- thought guess probably he saw the I of the lookout on the mony forecastlehead tug. saw too. I being account for available. Supreme what Court thought. Never mind observation of made you century ago to what than Clifton v. Lets confine ourselves Unit- more States, 242, 247, 957, against ed 11 L.Ed. concrete in- pier bending 4 How. it applicable: shape. seems a crescent here it sec- repairing tion center about 25 feet satisfactory “If the and less weaker new, to be removed and built the bow sup- given evidence is and relied on in joined then at a stern ends fact, apparent it is $20,000. says: cost of about This witness proof the court more jury of a “It on, right head struck as near at explicit direct and within character was * * * angles it possible to do it. party, the power the same cau- Oh, it was not glancing, was head If on. rejects secondary evi- tion which they had hit it they tried to could not have suspi- dence will distrust and awaken * * * hit heavy fairer. It was a cion of the and less satisfacto- weaker blow”. ship says The master of the several ry.” times that she at an going angle inference from failure of the degrees, while observer tes- on the shore Government produce missing wit- tifies that she going down the river nesses is particularly strong in this case crosswise. effect elo- where proven there is a violation of the quently testifies in what direction Stand-By The testimony Act. of the three going, and with momentum. produced by witnesses to the collision happened Say think what was this: Government, un- somewhat conflicting there was 800 feet of water between the noted, satisfactory has does not con- ships anchored on the east side of the chan- stitute the “proof contrary” heads, pier nel must take off Douglas Victory’s in this case where fault width of the say barge, appears that the lookout and other mem- fifty feet, length ship, and the bers of crew the forecastlehead *6 feet, feet and leaving a hundred probably to direct supply be able twenty ship’s feet less the length, to than Government testimony and the has neither turn get around in after she should produced proved that they them the river. A tide strong ebb known was unavailable. river, be the running down and a tug was Accordingly hold that the decree of quarter, attached to the the facing district should be di- ,the reversed with river, push the stern up the river and States, as that the United owner rection around, so turn the ship as she backed out. solely the be decreed got But the stern out where cur- and for this condemned fault collision rent was strong in center the chan- libellant, Lines, Inc., pay the full push nel the failed stern damages amount with interest and of its current, against so that the backing ¡costs. ship ships to hit about anchored pro- for further Reversed remanded and channel, about 75 feet ' n ceedrngs. ship forward, from had go them. So space but enough without to get steerage SIBLEY, Judge (concurring). point and down the river. She was in fact opinion, the time judgment drifting down the Concurring river side- pilot fully why I say began the reasons wise. The master state more I wish to put light to “back and fill” in order straighten failure to her not think the do out, way injury she towards the to it. came so "Barge caused n marine Grant, inspected A. the close that the watch surveyor, thought n sunken later, days got and after- be hit off onto barge two be- barge reconstruction, superintended pier. passed its and tween She her and below wards Mary, evidence, photographs, still by is that but she backing filling backed barge, 80 feet and 26 hit next below. It steel welded nearly sighted ship’s lookout beam, amidships, that by struck ‘feet away, report four he did not it till into its side ship’s cut asked stem entirely the feet. pilot pilot the bottom when within buckled half says side he could not see low lying be- across, crushing prow. ship’s height cause of the of his pier there, have hit
knew but would think, had not yielding 'barge if the ship. blow, stopped the
cushioned the dam- ship serious probably saved not need a
age to herself. lookout pilot it. The light he saw down low have seen the so see the
for the same reason he could not light played no The absence of ship part. The
effective truth
was out of control. the collision. after tug was dismissed departed find out without effort to also report failure itself. Its getting had a
turn trouble,
into witness produced. The cause of true and sole large ship turn injury effort against in the river
around current space.
with insufficient Bledsoe,
Fennemore, Craig, Allen & Phoenix, (Thompson, Wright, Ariz. Knight, Simmons, Dallas, Tex., Weisberg & appellant. counsel), for CO., ELOY Inc. SMITH EUGENE B. & *7 et al. CORP. GIN Evans, Hull, Jenckes, Kitchel & S. Jos. No. 13096. Phoenix, appellee, Jenckes, Ariz., for Jr., Eloy Corp. Gin Appeals States Court of Ninth Circuit. McKesson, Theodore G. Robert H. Re- April 3, 1952. naud, Phoenix, Ariz., appellee Home Ins. Co. May Rehearing Denied MATHEWS, POPE,
Before ORR and Judges. Circuit Judge. ORR, Circuit question Determination of the main appeal requires a construction aof Appellant written contract. asserts that expresses portion the contract but a agreements involved and that a subse- quently executed contract controlled other Eloy portions. Appellee, Corporation, Gin we shall hereafter Eloy, whom refer as engaged in the business of purchasing, ginning selling producing, cotton. Its principal place of business is situate in Phoenix, cotton, plant, Arizona. As at its Judge, Pope, ginned marked, and the bales baled, dissented.