*1 May 1945.] In Bank. 17102. F. No. [S. MER- & SHIPOWNERS Respondent, v. INTAGLIATA,
JOB Corpora- (a LTD. COMPANY, TOWBOAT CHANTS Appellant. tion),
Derby, Quinby Sharp, Appellant. & Tweedt George Andersen & Res- Resner, Andersen and Herbert R. Respondent. ner for damages
TRAYNOR, Plaintiff brought J. this action for resulting fishing the harm Giuseppe” to his boat “San from a bearing car float railroad cars with a thirteen towed tried defendant’s “Sea Rover.” The action was jury. judgment awarding before a appeals Defendant plaintiff $2,000 damages denying and from an a motion order for a new trial.
Plaintiff left Wharf in San Francisco alone Fisherman’s fishing in his a.m., boat about half 4:30 an hour before proceeded in westerly The boat direction. displayed running lights. night Since the was clear there was good visibility, and an ebb tide favored movement. About ten leaving minutes after Wharf, plain- Fisherman’s tiff stopped engine because air in the fuel line. He testified that working engine before on the he looked around see whether other craft in sight; he did see float; car worked to clear the *4 fuel line for about five or six minutes and then started engine; that he then saw the car float 25 away to 30 feet crashed into her change bow because he could not his course effectively at that distance. He claims that heard he no warn- ing whistles and that when he called help, as his boat was getting away from the car float under power, its he own re- response ceived no tug from defendant’s or car float. With the assistance of another fishing plaintiff’s boat boat reached It was it sank. where Wharf entrance of Fisherman’s repaired. subsequently raised testified “Sea Rover”
Captain Edwards of 45, San Pier 4:10 a. m. bound that he Tiburón about left that he was by south; generally east Francisco, proceeding an unob- he had tug’s pilot where standing house on and another boat plaintiff’s he view; that observed structed bay; into the and came fishing they Pier boat as cleared the colli- until two boats to and that he continued watch Captain collision According Edwards, sion occurred. to Park; plain- Aquatic from quarter a mile occurred about a Cap- Harbor. the Tacht yards tiff fixed about it at whistle when he blew one tain Edwards also testified that boat indi- plaintiff’s quarter he was of mile from about a change to the going his course cate he was plaintiff pass side; that since plaintiff port order to on the danger gave signal, change course, did he his answer blasts; series of when continued on plaintiff short and that gave on his stop course he and reverse the the order plaintiff’s so that vessel the car float was standstill at a when plaintiff crashed it. After but into the collision called although him, received other fisherman no answer from try plaintiff’s who was he would near called back that boat Captain ascertain Edwards testified condition. fishing that he in tow did not see that left one boat other, proceeded impres- and that he course under sion that damage reported no done. He been to his employers, but to the United States Steamboat Inspector. damages expenses
Plaintiff’s consisted of incurred in re- pairing engine nets, his boat and replacing the and of earnings. only loss The jury’s part verdict was for damages, indicating parties that it both at fault. It found was apply (c) instructed section Har- of the California Navigation bors and Code, provides parties which both ship to a collision are equally “the at fault loss shall divided, appears unless great disparity that there ’’ fault, in which case the equitably apportioned. shall be loss navigable
Plaintiff’s claim from a arises collision on waters of the United and thus States involves a maritime cause of action (United Appalachian States Elec. Power U.S. 377 243]), a federal
370 sitting admiralty
court un as a court of would determined U.S.) Clarke, der federal 5 (Waring maritime v. law. How. Fitzhugh 441, 459 226]; L.Ed. Genessee v. [12 Chief (53 U.S.) 12 1058]; How. 443 L.Ed. Grant Smith-Porter [13 Ship Rohde, 157, 66 L.Ed. 469, v. 476 Co. 257 U.S. S.Ct. [42 321]; West, 42, Martin 56 191, 222 L.Ed. v. U.S. 197 S.Ct. [32 159].) provides equal The federal maritime division law of damages, fault, though parties at even there both 354; Mar disparity (The a in F.2d Marian, fault. 66 garet, 923, 30 cited.) F.2d 928 and there cases Jurisdiction 24(3) try the state court to the action is based on section “in Code, 41(3), of the Judicial 28 U.S.C.A. section all jurisdiction” civil admiralty cases of and maritime saves remedy suitors where “the common law competent give remedy common law is it.” The afforded rights in may the state “as court be invoked to secure such readily in admit of assertion and enforcement actions personam according (Pan to the course of the common law.” 557, 596, ama Vasquez, R. Co. v. 271 70 U.S. 561 S.Ct. [46 1085]; L.Ed. Net, 835, see Moore v. Purse Seine 18 Cal.2d 1]; 837 P.2d Hendry Moore, C. J. 318 133 [118 Co. v. U.S. 499, 663].) personam 87 L.Ed. action [63 Plaintiff’s damages familiar recover tort and is “one the most of the (Panama Vasquez, common law R. v. remedies.” Co. supra.) always “That there been remedy has at common damages law for by collision at sea cannot be denied.” (Schoonmaker Gilmore, 95].) v. 102 119 [26 negligence Since contributory generally precludes plaintiff from recovering damages law, at common defendant con tends that negligence doctrine of contributory part remedy binding common-law and is therefore aon state court a maritime cause as a limitation of court’s jurisdiction.
Defendant
relies
Belden
Chase,
on
150
v.
U.S. 674 [14
37
1218],
Supreme
which the United States
held
contributory negligence
Court
plaintiff
would
bar recovery in an
action
a maritime
state
courts, including
court. Other
early decision,
this court in an
have reached
(Kelly
Cunningham,
the same conclusion.
1
365, 367; Maleeny
Cal.
Shipbuilding
v. Standard
Corp.,
It now rules of the mari settled that “The time apply proceeding law an whether the be instituted Packing admiralty Co. v. (Carlisle or common law court.” ; Sandanger, 259 255, 475, U.S. 259 66 L.Ed. S.Ct. 927] [42 Chelentis 380-381 Co., v. Luckenbach S. S. 247 372, U.S. [38 Stewart, 501, 1171]; S.Ct. 62 L.Ed. Knickerbocker Ice Co. v.
253
149,159
;
U.S.
438,
834, 11
L.Ed.
A.L.R.
S.Ct.
64
[40
1145]
Engel
Davenport,
v.
70 L.Ed.
410,
[47 state preserve litigants. admiralty rights all substantial (Garrett Co., 239, 249 v. Moor e-McCormack 317 U.S. [63 246, 239]; Co., S.Ct. 87 L.Ed. 274 U.S. Messel v. Foundation 427, having 434 1135].) 71 A 695, S.Ct. L.Ed. state court [47 jurisdiction same over a case that federal court would have if there, brought suit been must determine the rights parties “system under the maritime law as a with, operating uniformly in, coextensive country.” whole (The Lottawanna, (88 U.S.) 558, 21 Wall.
575 L.Ed. 654]; Jensen, Southern 244 [22 Co. v. Pacific v. 205, 1086]; 215 524,
U.S.
61 L.Ed.
Chelentis
S.Ct.
[37
Co.,
Ice
Co., supra,
382;
Luckenbach S. S.
Knickerbocker
p.
834,
Stewart,
438,
v.
253
159
64 L.Ed.
149,
U.S.
S.Ct.
[40
Packing
Sandanger,
11
259
1145];
v.
U.S.
A.L.R.
Carlisle
Co.
255, 259
475,
927];
66 L.Ed.
Messel v. Foundation
S.Ct.
[42
1135].)
274
434
427,
695,
U.S.
71 L.Ed.
State
S.Ct.
[47
inapplicable
law is
cause “if
it contravenes
to a maritime
Congress or
purpose
the essential
an
expressed by
act
prejudice
works material
to the characteristic features
general
harmony
proper
maritime law or interferes with the
uniformity
law in
interstate
of that
its international and
(Southern
205,
Jensen,
relations.”
244 U.S.
Co.
Pacific
1086];
Ind.
524, 61 L.Ed.
Occidental
Co.
216
S.Ct.
[37
841];
Com.,
310,
Industrial Acc.
P.2d
Cal.2d
[149
Stewart, supra, p. 157.)
Knickerbocker
Thus the
Ice Co. v.
assumption
risk is
available
common-law defense
brought by
either
federal
in a suit
seaman
a state or
court
under
the Jones Act
Stats.
46 U.S.C.A. §
709];
McDuffie,
Paulsen v.
Cal.2d
P.2d
Spencer,
Beadle v.
tiff’s a suit. rule of such of risk admiralty, scope, in in applied whatever its be must conjunction admiralty with the established doctrine of com parative negligence harmony and in with it. that Under contributory negligence, doctrine gross, a however bar recovery only mitigates damages.” (Socony- to but Smith, Vacuum Oil Co. U.S. Spencer, Beadle supra, p. 131.) Any doubt as foregoing to whether governs the or Belden cases v. Chase maritime causes in dispelled by the state Supreme courts is the Court’s in declaration Garrett v. Moor e-McCormack pages supra, 244-245 many that: “In other cases this Court has declared necessary the admiralty dominance of principles in actions in rights arising vindication admiralty of law. Chase, Belden v. 1218], an 1893 respondent decision upon relies which as establish ing contrary rule, has never been thus considered in of the later cases cited.”
Garrett v. Moor Co., supra, e-McCormack involved suit by against a seaman in master a state court to recover and for maintenance Act damages injury the Jones under respect With maritime law. general cure under the action, nonstatutory the cause of statutory and the the both general maritime law controlling the rule court held a seaman claims of validity a release of respect to the of with on the defendant against responsibility is that “the his master plaintiff to overcome on the rather than to sustain a release applied the court, which it,” and reversed the state beyond a reason- plaintiff requiring proof by state rule free from the to be right petitioner able “The of doubt. in- Pennsylvania local rule proof imposed by
burden of admiralty in as Deeply in rooted hered his cause of action. claim right very of his is, part
that
substance
it was
proce-
incident
a form of
and cannot be considered a mere
law
(P.
pronouncing
dure.”
In
the rule
state
249.)
substantially
applied
cannot
cause if it would
a maritime
impair
right
law, the court
arising under federal maritime
applied is
governing
‘ ‘
declared:
The source of the
by
practice
national,
governments.
If
its
state,
not the
rights of
substantially
state
to alter
permitted
court were
law,
in federal
litigant,
rights
either
established
as those
enforce, but would
remedy
the state would
afforded
Congress, by providing
actually deny,
rights
federal
more
make not
less but
remedies,
alternative
intended
rights
protect
.
admiralty
secure
. .
invoked
courts, when
the issues
accord-
law,
rooted in
endeavor to determine
state
try-
here, in
So
of the State.
ance with the substantive law
to,
man-
proceed
such
ing this case the state court was bound
control-
under
rights
parties
ner
all the
substantial
(P.
ling
protected.”
federal
law would be
division-of-damages
There can be no doubt
involving
fault of both
cases
rule in maritime collision
as
rule
federal
parties
courts
binding on the state
is as
validity of releases
respect
proof
burden
right
aof
maintenance
cure.
suits
seamen for
collision case
maritime
damages in a
plaintiff
a division
deeply
involving
parties is a substantial
the fault of both
*8
and such
action,
cause of
in his
admiralty,
rooted in
inherent
consid
be
it “cannot
a
claim that
part of the
substance
indeed
It
procedure.”
a
ered mere incident of
form
a
substantive
an
and characteristic feature
essential
action,
cause of
admiralty.
very
The
basis of
action, would
cause of
unquestionably
which is
maritime
a
destroyed if recovery were denied
contributory
because of his
negligence,
only
for it is
under admiralty
law that he has
claim for damages arising from
by
a maritime collision caused
the fault of both parties.
If apply
state court should
state
law rather than admiralty
remedy
law “the
afforded
State would not enforce but
actually deny,
would
federal
rights which Congress, by providing alternative
in
remedies,
tended to
(Garrett
make not less but more secure.”
v. Moore-McCormach
.,
supra, p. 245.)
Co
That the United States Su
preme
regards
Court
plaintiff’s right
such
case as
substantial admiralty right clearly appears
only
not
from its
abandonment of
Chase,
Belden v.
but from its references in
the Garrett case to state
contributory negligence
doctrines of
assumption
of risk
give way
as doctrines that must
admiralty principles in actions at
law on maritime torts.
“There is no
example
obligation
dearth of
lawon
courts
attempt
rights arising
to enforce substantive
from admiralty
conforming
law do so
a manner
ad
miralty practice. Contributory negligence is not a barrier
to proceeding
admiralty
Act,
or under the
Jones
required
state courts
apply
are
this rule in
ac
Jones Act
Spencer,
tions.
v.
Beadle
Arizona v. Anelich,
ing the arising Jones Act to torts, actions from maritime have usually although attempted, always complete success, apply admiralty principles. courts, The federal when treating maritime torts actions at law rather than suits sought in admiralty, admiralty have also preserve princi ples whenever consonant with the necessities of common law ’’ procedure. approval 239, 244, 8) court cited with note Shipyard Bland,
Colonna Va. S.E. 497], 59 A.L.R. applying a state court decision federal maritime respect contributory negli law with to the effect of gence in an In Ship action on maritime tort. the Colonna yard carpenter injured through ease a ship negligence denying of his In master. to defeat recov ery contributory negligence, Virginia the defense of Supreme Appeals declared: “When Court one suffers an *9 tort, his a maritime injury as to be under such circumstances may choose the rights admiralty law; but he by are fixed remedy, at rights. He his forum in those has which to assert afforded recovery precise relief law, common but his applied, is admiralty law which by him are determined admiralty court. whether in common law or he sues court, may pursue remedy law in the state He his at common may admiralty law. He but that must administer the court change rights court, select his add or which but cannot v. also, States (See, United are the same in both forums.” 128.) A case Corp., 115, 29 F.2d Norfolk-Berkley Bridge proceed holding negligence not a bar to contributory is by ing admiralty in the United States would not be invoked obligation Supreme law courts example as an Court admiralty arising in rights to enforce from law substantive conformity admiralty support of its hold practice, ing principles applied proof to the burden the same regard right cause, a maritime if the court did admiralty right arising damages divided substantive law. - accepted conflict of
Moreover, principles of under governed by the contributory negligence laws the effect of acquired law under rather than cause of action was Ry. (Fitzpatrick v. International the law of the forum. 801]; Co., 252 68 127, 112, N.Y. 134 N.E. A.L.R. [169 Shaffer App. Co., 66 N.E .2d v. New York R. Ohio 417 Central [34 2 on 792]; Rest., Laws, 385; Treatise Con Beale, Conflicts of § Laws, 189, Laws, 385.1; flict of 11 Am.Jur. Conflict of § § objective p. 503; Robinson, Admiralty, 860.) “The constant legislation litigants full jurisprudence pro assure rights tection for all intended be afforded substantive long jurisdiction right originates. itself Not so in which the to enforce ago sought respect we this result with achieve governed by rights ment the federal courts created 817, Tompkins, 304 64 state law R. v. U.S. S.Ct. Co. [Erie (Garrett 1487)].” 114 v. Moore-Mc 1188, 82 L.Ed. A.L.R. supra, fact a federal p.
Cormack
“The
Co.,
than in a federal court
be ascertained in a state rather
is to
apply fed
of the court to
does not make it
less
Martin,
212,
Chesapeake
209,
eral
& R.
v.
283 U.S.
law.
O. Co.
Exchange
Atlas
983];
75
Awotin v.
453,
213
L.Ed.
S.Ct.
[51
Brady
674, 79 L.Ed.
Nat. [55 Co., 88 L.Ed. 320 U.S. v. R. S.Ct. Southern [64 cited; R. and cases v. Baltimore & O. Illinois Steel Co. 239] Co., 320 U.S. and cases 259] cited; S. Steele Louisville & N. R. (Chief concurring Stone, Ct. Justice -].” Corp. Prudence Ferris,-U.S.- Realization 539, 542, L.Ed.-].) governs
Federal only consequences fault parties but question whether their vessels operated compliance navigation governing with the rules *10 navigable waters Inland of the United States. Federal The Rules Navigation, 151-231) of 96-102; (33 30 Stats. U.S.C.A. §§ are controlling except they permit special application as the of local law. Plaintiff violated the in sev Federal Inland Rules eral respects. engine repairing While he he failed his to keep 102; required by 29, lookout as 30 article Stats. 33 221, U.S.C.A. section and was the thus unable see and gave car float in dan time to avoid the collision. He no ger signal required by as of 18, III, article rule and instead reducing 481) speed (The his Pennsylvanian, 478, 139 F.2d just he his Al started motor before occurred. the collision though he keep was outbound he failed to the starboard might side of the channel, regarded which as a the have 101; meaning narrow one within the 30 23, of article Stats. U.S.C.A., 33 (The 210 section Bee, F. C.C.A. Hokendauqua, Phrases, The 270; 270 F. and Words 19.) Although direction, generally westerly he followed he to keep way failed vessels, out of the of an followed east his south direction were therefore on and (Arts. 207, starboard 22, 23; §§204, side. 33 U.S.C.A. 208.)
Defendant contends it can determined as a matter negli of under the Federal Inland Rules that was not it gent. The evidence shows without conflict that defendant’s proceeded prescribed by vessels on their rules course as the applicable ordinary question under circumstances. of remains, captain sometime before however, whether the gave stop ship, Rover” “Sea and reverse the order he or knew should have known that could avoid a collision by stopping by changing course, vessels, his for provide, construing due obeying rules “In and these rules regard dangers navigation shall be all and had to of de may and to render a special circumstances which parture necessary from im the above order to avoid rules 212.) danger.” 102; U.S.C.A. (Art. mediate Stats. § requiring A action “special case of outside circumstances” danger captain to the the rules exists was manifest departing from rules. problem the vessel faced with particularly to vessel, “Where two are open courses privileged vessel, prescribed one rules to follow imperative to ob depart them, duty the other to from will rules, approaching serve the and to assume that an vessel likewise, danger so manifest do until after has become than judgment other proper show there is no choice departing Any course would the rules. other of accidents.” prolific lead to confusion and be a most source (The 810.) ves Piankatank, 87 F.2d Defendant’s they privileged vessels, sels were the on the starboard (30 101; 33 approaching side of the U.S.C.A. vessel. Stats. Rules to 204.) They duty Federal Inland had a under the
§ 206), speed (30 their U.S.C.A. hold course and Stats. § way. plaintiff’s duty keep while it was out of their ques Stats. decisive U.S.C.A. §§ captain tion, therefore, is when became change stop ship the “Sea reverse his or to Rover” to in fault preferred his course. will not be held “The steamer long maintaining speed, possible her as it is course and so porting, for the other her least to avoid at absence *11 in her of some i/ndication she about to fail distinct that duty.” 454, 462 (Wilson Co., 276 v. Mail S. S. U.S. Pacific 369, 651].) privileged 72 “The vessel [48 always keep in a difficult The rule is that she must situation. apparent
her bur speed course and until it becomes that the (The Boston dened vessel cannot the collision.” alone avoid captain Socony, 246, 248.) present 63 In case the F.2d the boat after it cleared of the “Sea Rover” watched good. Visibility 45 Pier of San Harbor. was the Francisco fishing in There were boat was distress indications that the Although navigation the and that it not rules. would follow very a running lights, proceeded at fishing boat showed six drifting about five or speed, with the ebb tide for slow fishing boat minutes the collision. The failure before signal change the “Sea Rover’s” her course or answer that going change her course indicated the that latter was that mismanaged and control, or out of was plaintiff’s boat not to be navigation was plaintiff rules observance of the reasonably concluded that have expected. could 378
captain of the Rover” that a dan “Sea should have known gerous indicating developing signal situation was when its change only- unanswered, course that remained and procedure safe speed not was to maintain his course and but to stop change and reverse the or “Sea Rover” course stop at once. their “The lesson that steam vessels en must gines presence in the danger, danger, anticipated or even of learn, is a hard one to failure has been the but the to do so cause of many condemnation of so vessels that it would seem repeated ultimately these must have admonitions some effect. We impress upon cannot masters steam vessels insistently too passing crossing necessity of caution (The the course of other vessels constricted channels.” York, 187, 126].) 175 44 New 207 captain par “Sea Rover” should have exercised caution, ticular special he did maintain a not lookout on required by his vessel as article of the Federal Inland 221.) tug Rules. Stats. A with a U.S.C.A. tow § comply simply does with this rule because officer in charge pilot (City Philadelphia looks out from the house. Gavagnin, 552]; The Williams F. C.C.A. port, Bay 74 F. C.C.A. Dahlmer State captain etc. Moreover, F.2d did located, although where tow know the lookout on the he barge length had in tow a about feet and feet in Although width. ordinarily ship it is of the other tug (The make allowance for the encumbered state of tug Chilton, captain Edward 27 F.2d of a 625), a barge give in tow special danger must consideration to the deciding connected with such a whether situation dangerous stop tug. was so he As should stated Marsden, Sea, edition, page taking “In Collisions at ninth 185: third measures avoid a vessel a has to consider her tow; step right, clear, and that would be take her unencumbered, may bring between about her tow the ship she herself has avoided.” attempts these
Defendant to meet considerations asserting “major under the rule known as minor negligence fault rule” to its reasonable doubt as to be *12 recently resolved in The rule been restated its favor. has and its “It is well limitations defined as follows: settled law that is part ‘where fault on of one vessel established un testimony, is, itself, contradicted fault .and such sufficient
379 not'.enough vessel is for such disaster, to account for' the it other regard management of the raise a doubt to the to its adverse presumption at least vessel. is some There claim, regard propriety reasonable doubt with in its resolved other vessel should be conduct of such 1893, York), (The City favor.’ New Alexandre Machan The Vic 84], Accord, 211, 147 37 72, 85 L.Ed. S.Ct. [13 423 S.Ct. tory (The Plymothian), 1897, 410, 168 U.S. [18 60 Ludvig erg, 1895, 157 U.S. 149, 42 Holb 519]; The L.Ed. 1933, Simeon, Cir., 2 620]; 39 L.Ed. The San 477, S.Ct.
[15 long ago 63 rule However, said that this F.2d 798. court this gross fault, is guilty that- the other where vessel one was presumed fault, mis artificial and not to have'been was Schley, leading The Admiral very carefully applied. unless rehearing, 1 Cir. Cir., 1904, 433, 1 439, 131 affirmed on F.
1905, 64, denied, 142 nom. Consolidation F. certiorari sub. Co., 648 Steamship 1906,
Coal 201 U.S. Co. v. American Mail though first vessel 762, S.Ct. 50 L.Ed. Even [26 905].
grossly fault, a-plain part of the other vessel at fault on the 240, 253 1900, Dumois, 177 U.S. excused. The Albert Kabushiki 751]; 44 The Yamashita Kisen 595, S.Ct. L.Ed. Co., 1927, 9 20 F. Ka S. S. isha v. McCormick Inter. Cir. Corp. 25; (General Simeon, supra.” 2d The San Seafoods major Dredg. 117, 119.) The
v. J. S. Packard 120 F.2d Co., give way rule of minor to the well-settled fault rule must navigated vessel, though correctly maritime law that if one dangerous some perceive time can before the mismanagement developing through situation is of another ves sel disposal pre becomes her with all means at her gross fault, and vent the accident “the even and that vessel, fault of one from the use does absolve the other precautions good judgment accomplished seaman .such ship (The Dumois, require.” 177 U.S. Albert York, 751]; The New 175 U.S. etc. Kaisha The Yamashita Simeon, 63 25, 27; San F.2d McCormick etc. F.2d Corp. 798, 800; Trim, 283; General F.Supp. Seafoods Rules, Dredg. Co., supra, 119; Inland p. v. J. S. Packard see article Stats. U.S.C.A. § to the
Defendant contends that several instructions jury objects prejudicially in erroneous. It certain ground they support structions no in the evi legal consequences dence. The instructed as to the *13 signals confused by vessels, although both uni- the evidence formly signals given by showed that all were the defendant. jury The obligation was instructed as to the of a vessel to although avoid risk of collision rest, plaintiff’s with vessels at vessel, since it with at rest. tide, moved the ebb was never jury The contrary can- instructed was that “a custom to towing legal not relieve tug duty a maintain from the to proper lookout,” although defendant did not claim that there was such a hypothetical custom. These facts instructions on apt confusing. to be jury
The keep a was instructed that “a must lookout alongside, at the projects bow of the tow where the tow beyond tug. case, you If in from a preponder this find ance of the in keep evidence that failed a lookout the bow proximately of the that caused barge, and such failure instructing By then the defendant is liable.” particular place lookout be on must stationed at a the tow, jury. province court There invaded the is no rule a particular the lookout must at be stationed place; his “position station in should be he is best where adapted descry approaching vessels at the earliest mo (Inland ment.” Rules, 102; 33 30 Stats. U.S.C.A. art. 221; The Catalina, 283, 285; F.2d Puratich v. United § States, (51 914, 916; Paine, F.2d St. John How. U.S.) 557, Pennsylvania, Fed.Cas., 537]; The No. 10949; Skidmore, Patria, 92 972; The A. P. F. F. Co., 20 F.2d Yamashita etc. Kaisha v. McCormick etc. 25, 29.) respect formula instruction the effect of
the disabled condition of vessel Was erroneous omitting contributory negligence, the element of for the given above; omitting any reasons incomplete was but it plaintiff’s duty reference to to indicate disabled status of by giving danger signals signals. his vessel or other distress 100, 102; 203, 231.) Stats. 33 U.S.C.A. §§ following Defendant also attacks instruction: place, “Whenever a collision between two takes it is vessels duty vessel, person charge the master or of each so far as safety, stay by consistent with to ascertain the other may assistance, she is such aid be need and render requisite give port the name of the vessel. Failure shown, this, may pre do without reasonable cause raise sumption wrongful act, the collision caused vessel, apprised fact that a neglect, or default. The assistance goes any attempt render collision, on without instruc- This regarded suspicious circumstance.” to be as a U.S.O.A., 26 Stats. 367 of 33 tion was based section in the circumstances described provides that under the ren- of each vessel “to the master instruction, it is the (if passengers master, crew, and vessel, her der to the other may be and as may practicable any) such assistance as danger caused necessary in order to them save charge person give and also to to the master *14 port her of of and the other vessel the name of his own vessel do, If and no reasonable cause registry. ... so to fails in the of for failure the shall absence shown, such is proof by his contrary, to the to have been caused be deemed wrongful provides act, neglect The instruction or default.” requisite” may that a shall “render such aid as be vessel provides whereas the vessel shall render the statute practicable may may as be neces- “such assistance as be Although sary.” “requisite” may equivalent be fair of the equivalent “practicable,” for it “necessary,” it is not of the necessary aid. The may “practicable” to render the condition, “in also the absence of instruction omitted the ” proof contrary. These omissions rendered the instruc- the incomplete. tion ‘‘ following gave The fact The court the instruction: heavy unwieldly im tug that a is burdened with tow poses taking keep extraordinary on the the of care to way is her tow of the other vessels.” There no such out of equal, rule. It established vessels otherwise that as between way right the of without with a tow has over vessel (The Chilton, 27 F.2d 624, 625.) The Edward cumu tow. foregoing instructions and those considered lative effect of the jury the as the real issues the below was to confuse governing the of sea. duties vessels at conflicting on substantial mat
The instructions were question proper conduct of vessels ters. On the as to the crossing jury approaching was instructed courses, on Navigation terms of 284 of Harbors and section the California Code; necessarily inevitably or “When steam vessels will continuing respective there by cross so near that their courses right give rudder, each so would be risk of shall always port of the pass on the or side other.” On left questioil in the jury was also instructed terms of same (30 Federal Inland Rules 101; Stats. 33 U.S.C.A. §§ 208) that “When two crossing, steam are so as in vessels volve risk of collision, the vessel which has the other her on right keep way starboard side shall of out of the other.” “Every vessel keep which is directed these rules to out of way shall, circumstances vessel, another if the case admit, crossing avoid “Every ahead of other.” steam vessel which way is directed to keep these rules out shall, another vessel approaching her, on necessar y slacken her speed giving in conflicting or reverse.” (Pipoly
structions this prejudicial vital issue was error. v. Benson, 515]; Cal.2d P.2d 147 A.L.R. City Pittam Riverside, Cal.App. P.2d Patterson, Torvend 413].) Cal.App. P.2d Moreover, the instruction under the California code section was in erroneous, itself parampunt. the federal rules are In light say in this we cannot it evidence case improbable negligent that the found defendant because give failed rudder accordance with Califor nia code section. Furthermore, the instruction on the applicable federal rules incomplete, the court refused give an requested by instruction defendant based on the 206) Federal Inland Rules Stats. U.S.C.A. § “where by rules, keep of these one of two is to vessels way, out of keep speed.” the other her course and shall pivotal question captain in the case is whether the *15 of the stopped tug “Sea the Rover” should have and reversed or changed prevent his in an time course to otherwise inevitable jury properly respect had instructed with collision. to be regard to captain’s the in duties this before it could determine question negligence. the in of his The failure of the court to jury Rover” had maintain her struct the that the “Sea to danger speed manifest, course the of and until collision became and to all was then under a take reasonable action to prevent governing collision, jury left the without the stand negligence. ard which to measure defendant’s While-we say cannot as a matter of law under the evidence this case jury captain not conclude that the a reasonable could tug stop of and the to the “Sea Rover” reverse or failed danger change course after the of collision became mani his say neither can fest in time avoid the we improbable under instructions the proper would is. reached a have different'conclusion. appeal from the order judgment reversed and the motion for trial dismissed.
denying the new Edmonds, Carter, J., J., J., J., Gibson, Shenk, C. J., concurred.
Spence, I judgment. agree with the SCHAUFER, the J. I concur holding majority opinion that the federal maritime governs in the cause and that evidence is of action negligence support finding sufficient, law,-to of as a matter of operator of plaintiff as on that of the part on the as well tugboat. at fault .vessels are defendant’s Where both degree irrespective damages divided, equally are be (The (1933), 66 F.2d Since of fault. Marian damages apparently equally here but were divided in accord upon theory.of apportioning the loss assessed judgment fault, ance with must be reversed. way at under plaintiff’s
Both and defendant’s vessels were I, Preliminary Definitions, paragraph (see all times concerned as to Rules) Inland is a the evidence but there conflict collision, plaintiff’s whether, up few moments before through making way vessel under and was command According plaintiff his had not been under water. boat way through the water making command had not been barge prior time when five or six minutes to the .some the master approached within 25 feet of him. or 80 But plaintiff con- he had watched of defendant’s testified that one-quarter during closing gap of at least tinuously of a and speed”; his mile; plaintiff had “held course of a way tow had lost with its that before the collision ran into plaintiff’s boat which completely and that it was barge. may have been involved
Regardless other of all rules found, upon his either own plaintiff could it is obvious that master, to been testimony upon that have keep failing proper lookout guilty negligence á testimony either upon the approaching vessels. Likewise latter be found that the plaintiff tug’s master or the it.could bring- negligent otherwise or unskillful or was inattentive unwieldy close to ing .tow so cumbersome and any of the under immediate risk boat to involve *16 under com- plaintiff’s If boat- was shown. circumstances "experienced, apparent to have been an mand fact should competent, and pilot attentive officer house of defen- tug ample dant’s time permitted to have of the avoidance if, collision and hand, plaintiff’s on the other boat was under making command through way the water then it would seem to tug be a reasonable inference that the master of the negligent was having recognized, in not upon sooner or acted fact, that risk holding of collision of was involved speed course by plaintiff’s both the after tow boat latter had signal failed to crossing answer a which called for it to cross the port bow tow from starboard and where compass bearing its remained constant.
I do not see how the quoting instruction section 284 of the Navigation California possibly Harbors and could have Code prejudiced According the defendant. to the master of de- tugboat calling fendant’s he sounded one blast of whistle for each boat to alter her course starboard and to leave the port. other to This is rule accord the California code as well with I as rule of article 18 Rules. It Inland does not necessarily however, appear, that the was situation by controlled such rule I. I applies
Rule vessels, passing is, article “approaching vessels each other head and [italics added] head ... . nearly by or so. apply day . . It does cases in which course, crossing vessel sees another ahead her own night” positions where the same are shown relative running lights. It was the almost latter situation which certainly coming present was from here. Plaintiff’s boat was Wharf, Fisherman’s vicinity Pier 45. Defen- coming dant’s tow at was from Tiburón on course to dock against they Pier 45 Necessarily, an tide. until ebb crossed, plaintiff’s tug boat was to starboard defendant’s and barge, and, expected, master was to that where the plaintiff’s said that he first boat. He saw said fishing side, saw several in- boats “well starboard side, Aquatic towards Park” plaintiff’s and that boat my one of two which “steered in such a direction as to cross sepa- bow.” At that time a distance of one-half mile about plaintiff’s rated Plaintiff under boat and defendant’s tow. (Inland way. Rules) “When two article had the vessels, statutory steam definition both [under crossing, boat and are “steam vessels”] so as risk of the vessel which has the involve *17 way of keep other her shall out the own side starboard the other.” plaintiff’s boat
Apparently, it at about the time was plain- position nearly the tow that reached a dead ahead of engine or he altered engine stopped. stopped tiff’s Either his In either crossing passing his course. course from course to angle of defendant’s on the bow event it is obvious that change provision preliminary craft ceased the provision Steering Sailing applicable. That Rules became can, (Inland when circum- Rules, IY): “Risk of § watching com- by carefully the permit, stances be ascertained bearing does pass bearing If the approaching of an vessel. deemed to exist.” appreciably change, such risk should be recognized the this tug apparently
The the risk when master of He tes- one-quarter boats mile from each other. were about fishing they signaled when were tified boat first I good said, quarter “a mile” “When saw apart. of a He meaning com- [apparently that he had not altered his course pass whistle, naturally bearing], I one then when blew this gave right.” I men to to the orders come plaintiff called to cross one blast of whistle cross bow of defendant’s tow that the vessels so would pass signal port port. That was answered. coupled change compass bear- failure to answer no it, “risk ing, recognized evidencing should at have been as once master, Prompt at collision.” action separating vessels, it could have distance then would seem, averted the collision.
Although certain I do not be- instructions were erroneous preju- complained of lieve that of the instructions jury dicially except they authorized the erroneous insofar apportion they there equitably found “that loss great disparity fault.” As obvious that equitably judgment did loss apportion undertake to cannot stand. only judgment I
For above concur stated reasons of reversal. petition rehearing was denied June
Appellant’s 1945.