Standard Oil Co. v. Shipowners' & Merchants' Tugboat Co.

17 F.2d 366 | 9th Cir. | 1927

GILBERT, Circuit Judge

(after stating the facts as above). The trial court found that the collision was the result of faulty navigation upon the part of the captain of the Dodd in maneuvering his ship around the turn in the channel. Notwithstanding the well-settled rule that a finding of fact so made upon the testimony of witnesses taken before the eoiprt will not be disturbed by an appellate court except for manifest error, the appellant contends that here the rule does not apply for the reason that there was no evidence whatever to show negligence on the part of the officers of the Dodd. We do not so read the record. We accept it as an established fact not only upon the finding of the court below, but upon the evidence in the case, that the battleship was properly anchored with proper anchor lights burning and within the naval anchorage ground, well off the deep-water channel, leaving ample passage clearance for vessels, so that the question of the blame for the collision must rest between the Dodd and the tug. We find evidence tending to sustain the finding of the court below that the collision was the result of faulty navigation, in that the Dodd failed to reduce her speed as she approached the point where the channel makes the turn. The testimony of expert navigators was to the effect that the safer and better practice would have been to bring the Dodd practically to a stop, or at least to a speed not to exceed a knot and a half, and to permit the tug to pull her bow around. The appellant contends that the speed of the Dodd was not to exceed three or four knots, but the evidence of her master as to the time when she passed Beacon No. 2 and the time of the collision would seem to indicate that the average speed was more than five knots. The master of the tug testified that the Dodd made a belated turn and made too much speed, a speed which he said was about seven knots. The commander of the New Mexico, an experienced navigator who was called as a witness for the appellant, testified that “the key to going around that point out there is to go very slowly, very slowly, and be able to back your engines, back on one or go ahead on the other, to twist your ship.” The mate of the tug testified that the Dodd should have been slowed down to a knot and a half, and the master of the tug testified that the Dodd should have been brought practically to a standstill. In brief, the evidence tended to show that had the speed been properly reduced the collision would have been avoided.

Nor do we find ground to question the finding of the trial court that the tug was not in fault in cutting, as she did, the towline. The evidence tends strongly to the conclusion that but for the severing of the line the tug would have been dragged into the collision and probably crushed between the battleship and the Dodd, with possible loss of life.

In the appellant’s libel against the owners of the tug and in its answer to the libel of the United States, the only fault it charged against the tug was that she negligently and carelessly drove the steamship into collision with the battleship. On the trial in the court below counsel for the appellant in his opening statement said: “The final cause of the damage was undoubtedly the towboat letting go, which put the Dodd in a position where the collision was unavoidable.” The same view was taken of the cause of the collision in the appellant’s petition for rehearing, in which it was said that the real question before the court was whether at the time when the towline was dropped the tug was justified in dropping it. On the appeal the contention is made for the first time that the tug lacked sufficient power for the tow-age service. Undoubtedly a tug owner impliedly undertakes to furnish a vessel of sufficient capacity and power for the performance of the contemplated service under ordinary conditions. The E. T. Williams (D. C.) 126 F. 871. But a tug is not an insurer of the safe delivery of the tow. The obligation imposed on it by law is that it shall be reasonably adequate to the service undertaken, The Startle (C. C.) 115 F. 555, and the burden of proofs rests upon the tow to show that the tug was negligent, The L. P. Dayton, 120 U. S. 337, 351, 7 S. Ct. 568, 30 L. Ed. 669. As regards the adequacy of the tug, the question is a practical one of reasonable sufficiency for the particular trip, in the judgment of skillful and prudent navigators. Said Judge Brown in The Allie & Evie (D. C.) 24 F. 745: “There is no other final criterion than the judgment of practical men versed in the business and the customs and usages of the time and place, viewed as representing the judgment and knowledge of the time.” The fact itself that the towage contract here was entered into was, in view of the knowledge and experience of both the parties thereto, evidence that in the judgment of practical men, versed in the business, the tug was regarded as possessed of sufficient power for the service contemplated. They knew the comparative weights of the two vessels and the horse power of each. The tug had taken the Dodd through the channel “several times.” The officers of the Dodd were familiar with the harbor and the channel. Her captain had been sailing regularly in and out of the harbor for the “last five years.” The chief officer had made the turn in the channel “100 times or more.” They must have known also the momentum of their own vessel when under way. Nowhere in the record is the capacity of the tug brought in question. It seems to have been assumed by all the witnesses that the tug was capable of performing the service which she undertook. We find no merit in the contention.

The decree is affirmed.