4 F.2d 551 | N.D. Cal. | 1924
The proceedings upon libelant’s libel and petition for limitation of liability have been consolidated and tried. The case is one of collision between steamers, and involves the law of the road at sea, nothing mysterious and in fundamentals like to that upon land. The evidence is mainly by depositions (and in large part vilely leading), though libel-ant, in contrast to respondent, presents its principal witnesses to the place of the collision (the issue most strenuously contested) for oral examination at the trial.
In respect to this issue, the evidence is in direct conflict. However, so much involved are estimates, calculations, opinions based on scanty observations, that in the circumstances perhaps no witness is willfully wrong therein. At the same time it may he observed that, even as “every passenger swears by his ship,” as said the Supreme Court many years ago, a fortiori ships’ crews do likewise.
Libelant and respondent claiming full damages, each has a burden to prove the other’s fault and its own lack of contributing fault. In the latter both have failed. The Clara, 102 U. S. 203, 26 L. Ed. 145.
To describe the ships; Libelant’s Walter A. Luekenbaeh is a freighter, 470 feet long, of 10,500 tons capacity, turbines, and twin screws, 14 knots full speed, and 9.8 half speed; and respondent’s Lyman Stewart was an oil tanker, 450 feet long, of ,11,500 toils capacity, reciprocating engines, and single screw, 9 knots full speed, and 6.5 to 7 knots half speed. The Luekenbach’s half speed is fixed at usual 70 per cent, of full speed, despite some claim that it was but 7.5 knots, an unexplained and unaccepted departure and wholly inconsistent with her performance.
The collision was at 3 :23 p. m., October 7, 1922, somewhat westerly of a line from Lime Point on the north side of the Golden Gate to Fort Point on the south side, and somewhat southerly of mid-channel. That it was southerly, as libelant contends, rather than northerly, as respondent contends, is further supported by the probabilities, as will later appear.
At the time the sea was smooth, the tide half ebb and of 4 knots at collision to 3 knots at material distances. The Luekenbaeh, with less than full cargo was inbound from off the lightship, and one-fourth mile north of Mile Roek she reduced full speed to half speed upon entering heavy fog of rather1 continuous quality, though some witnesses characterize it as in “waves” or “hunches.” Approaching the place of collision, she maintained half speed until too late to stop before arriving at the point of intersection with the Stewart, after sighting the latter in fog of not to exceed two ship lengths’ visibility.
The Stewart, with one-third full cargo (as appears from answers and claims, though her master asserts she had “full cargo”), was outbound from Martinez, via Raccoon Strait, and somewhere off Point Covallo she likewise reduced full speed to half speed upon entering the fog, and she too so continued until unable to stop, even as the Luekenbaeh was. Iri consequence, the Luekenbaeh’s bow struck and penetrated the port bow of the Stewart for 15 feet, and in some part below water line. The Luekenbaeh, comparatively slightly injured, in due time proceeded to port, and the Stewart, flooded forward, drifted with the tide and went ashore inside Mile Rock, practically a total loss.
The pilot of the Stewart, who was also her master, virtually admitted that he did not know the eouyse or speed of the current at Lime Point, that he there failed to allow for the tide (setting him southerly), and that he failed to allow for the westerly deviation of his compass.' As she approached Lime Point, the Stewart was in a tide strengthened by the rivers increased by rains, and on a course crossing the channel. Necessarily to round Lime Point she made several, and her pilot says, slow and easy, shifts of rudder to starboard, part in the obscurity of fog, to take a course about 35° more westerly and out through the Gate and channel. Without allowances as aforesaid, and running 9 to 10 knots over the ground, in the circumstances her momentum and the tide inevitably carried her in a long fish hook curve, rather than a circular one, and she overran her pilot’s intended course the small distance necessary to sweep her more or less broadside around Lime Point and south of mid-channel; and this, although her pilot’s calculations and estimates from fleeting views through holes in the fog and otherwise, are that the Stewart and collision were north of mid-channel. Prom Lime Point the channel scales 3,750 feet to Port' Point buoy. The Stewart’s pilot estimates that at collision she was one-fourth mile, or 1,521.7 feet, from Lime Point, abeam; that is, only 353.3 feet from mid-channel. In the circumstances, his estimate could and did fall short by 353.3 feet and more, however honestly by him made. Moreover, this conclusion finds support in his mental reaction to the collision.
By wireless to the Stewart’s owner he promptly reported the collision, and requested, “Send tug oft Port Point,” his only description of locality or place. He admits he then had no plan, and knowing neither course nor speed of the tide,, or without drift in mind, his mental processes grasped nothing but his presently discovered position “off Port Point”; and he called for a tug there, south of mid-channel, rather than off Lime Point, north of mid-channel, and where he testified the collision took place.
The testimony of disinterested witnesses (discarding Otten’s, favorable to libelant, for doubtful identification at least) is of little importance, dependent as it is upon direction and distance of sounds, and subsequent drift and other movements as consistent with one contention as the other. The same may be said of the Luckenbaeh’s slight swing to port and recovery immediately prior to collision. That the latter’s bow struck the Stewart on the port bow is accounted for by the Stewart’s engines reversed, necessarily swinging her stern to port and her bow to starboard, as by tide and momentum she was carried onward to the point of intersection.
In the circumstances the Stewart was where she had no right to be, south of mid-channel, a narrow channel and inland waters, without excuse. But that is not all of the case. As before stated, both ships were proceeding at speed immoderate^ in circumstances of narrow channel, heavy fog, ebb tide of 3 to 4 knots, both capable of steerageway at speed of 1 to 2 knots, and entrance to a great and busy harbor. The Luekenbaeh at the vital time proceeded 9.8. knots through the water and 5 to 6 plus over the ground, and the Stewart likewise 9 to 10 knots over the ground and 5 to 6 plus through the water. The speed of both were proximate causes of collision.
Pixed points, times, and distances confirm this conclusion, despite characteristic disclaimers, and assertions of slow speed, stopped and reversed engines, little headway, or stopped or astern through the water. Speed with the current is more culpable than speed against it, in that the ship in the latter situation is capable of better control and quicker stop and stemway in its approach to the other ship; the vital factor being speed of approach, whether through water or over the ground, by power or mere drift. A ship adrift in the current, like an auto down grade, must apply brakes — reverse the propellers.
It is true that the Luekenbaeh was where
The Luekenbach was bound to anticipate that, in the circumstances and by misadventure or otherwise, outbound ships might proceed more ox less south of mid-channel, and she also was bound to proceed at moderate speed, to avoid any collision so far as moderate speed might do so. Her failure was a proximate cause of the collision that followed. The like comment applies in respect to other rules following.
Additional fault of both ships and proximate causes of the collision appear in connection with their lookouts. The Luckenbach’s was 100 feet abaft the bow and 30 feet above the deck (perhaps 55 feet above the water), and the Stewart’s was on the forecastle head, about 15 feet above the water. That Luekenbaeh’s was not in the bow, and by reason of its construction could not be to the owner’s knowledge, actual or presumed, is immaterial; for, since Stewart’s properly placed lookout sighted the Luekenbach as early as the fog permitted, two ship’s lengths away, but too late to avert collision, had tho Luekenbaeh’s lookout been as advantageously placed, the result would have been the same.
Nevertheless both lookouts negligently failed in their duty, as appears following: The Luckenbaeh’s fog whistle was automatic and duly sounded; tho Stewart’s was by hand and sounded, though probably with some irregularity, by.the second mate, who was contemporaneously making some log entries and telegraphing orders to the engine room. That the Stewart’s, whistles were repeatedly hoard by the Luekenbaeh’s lookout seems clear. But he was an inexperienced college freshman, and failed to interpret and report all the whistles. He heard what he judged to he land fog whistles, ship whistles, and “steam whistles in the harbor.” Evidently he did not understand that all whistles, however distant, forward of the beam, were to be reported, and so he reported none hut the Stewart’s whistle, so close that the Stewart came into view immediately, and not over two ship lengths away. The “steam whistles in the harbor” were whistles of Stewart coming through and out of the harbor, in reasonable probability; but they went unheeded by the lookout and by Luekenbach. The Stewart’s lookout, in ancient and common strategy, on land as well as sea, testifies he heard no whistles, save tho Luckenbaeh’s as she came into view two ship lengths ahead and to port. If so, his failure was due to heedlessness and neglect, closing his ears. They were blown, regular, heavy, and loud, their volume augmented by the faet that the steamers were approaching at 15 to 16 knots; and they, too, were unheeded by the lookout and by Stewart. Like comment applies in respect to testimony of others on the steamers that, though listening, they did not hear the whistles. Neither ship stopped her engines so far as circumstances would permit (the Luekenbach to steerage-way, at least; the Stewart to stationary over the ground) when the other’s fog whistles ought to have been and were heard, viz. long before coming into view. Thereafter stoppage was of no avail.
In the matter of the Luckenbaeh’s pilot, in so far as he is responsible for immoderate speed, he may have been neglectful, and so abused his office; but he is proven competent, as tlie court finds. Further, in the matter of limitation of liability, the proof unquestionably vindicates the owner of the Luekenbach and requires finding for it. The law is settled- and authorities abundant that in the circumstances the collision was due to mutual fault of the two ships; and so the court finds.
Libelant’s charge, that by lack of ordinary care subsequent to collision the Stewart was east ashore, and respondent’s charge, that the Luekenbach failed to stand by, appear to have been abandoned, taking briefs for it; the former for no very clear reason, in that, if the Stewart’s master possessed and exercised reasonable seamanship and skill as a navigator, it is hardly manifest in this record. See The Baltimore, 8 Wall. 377, 19 L. Ed. 463.
In smooth water, one-third cargo, flooded only forward, and down by the head little more than if full cargo, a low main deck, partly awash forward, but lifted by jettison of cargo, bow, forward deck, and forecastle eight feet or more above main- deck, engines in order, and men standing by to work them, anchors likewise, two vessels timely ready to give or take a line, the Stewart in a 3 or 4 knot current was per-
It appears likely that the services of the Luekenbaeh or Loop were not taken, to avoid salvage no more than pro opere et labore — unreasonable economy at least. It is true there was emergency, but none so violent, great, and imminent that should have paralyzed the intelligence of any average shipmaster.
What is seamanship and skill in navigators, but some ability to cope with emergencies?. Ability to box the compass surely is not enough to qualify as a master. In the situation of the Stewart, ■ the average landsman might not have done better; but clearly he would have done no worse. However, the evidence in, libelant with expert knowledge seems to have concluded otherwise, to agree with respondent, and hence there is no reason for the court and a judge from a mile abovp sea level to go counter thereto. .
The conclusion is that both ships were in fault, and caused the collision and all loss that followed; that the damages will be equally divided between the libelant and respondent in amounts and payment in usual course; and that libelant is entitled to limitation of liability. ' The usual reference to determine claims and damages will be had. If either party desires more formal findings, it may submit them on notice.
Amendment to Decision.
The petition of the Luekenbaeh Steamship Company for change in the finding of the court in the matter in said petition set out, is granted. The claim of libelant’s counsel that in their briefs they indicate reliance upon the proposition that by respondent’s lack of reasonable care and diligence subsequent to collision the Lymañ Stewart went ashore and aggravated or incurred further damages, is supported by inspection. But argument is wholly wanting. Nevertheless the court is responsible for the righteousness of its own decisions, as 'more than once the Supreme Court has observed, and when fully informed cannot escape this responsibility by counsel’s neglect or indifferent presentation of his client’s cause.
Even on appeal, the court may and often does note errors not assigned, condone or ignore lack of any brief or argument, and decide the cause upon full examination of the merits. In the instant proceedings the court necessarily read the entire record, and was fully informed of the issues, evidence, and law, whether or not properly aided by counsel.
Prom the whole it appeared likely, as on further consideration it appears as a fact; that the collision affords no sufficient cause for the subsequent loss of the Lyman Stewart and her cargo; that the collision reduced the Lyman Stewart to a condition of damage, but that its navigator’s subsequent negligence greatly aggravated the damages; and that the navigator of the Lyman Stewart inexcusably failed to exercise reasonable care, skill, and diligence to protect the ship from further damage, and because thereof permitted her to be cast ashore to her total loss.
As the court views it, the principle of The Clara, 102 U. S. 203, 26 L. Ed. 145, imposes upon respondent the burden to prove due care and diligence to protect the Lyman Stewart after collision and to mitigate or prevent further damages.
In any event the evidence and the indefinable impressions of the trial impel the finding as aforesaid. It is made accordingly.