Stimson Mill Co. v. Moran Co.

175 F. 38 | 9th Cir. | 1910

HUNT, District Judge

(after stating the facts as above). The first three specifications of error may he considered together. They relate to the finding of the court that neither the dry dock nor the apron projected north of the north line of the Aloran wharf. This becomes important in considering whether it constituted a menace to vessels going to and from the wharf. If it did, then the Moran Company, the libelant, cannot recover for any damages. It cannot be successfully contended that the dry dock was a menace, unless it can be shown that it projected north of the north line of the wharf, lying directly in the way of vessels passing to and from the wharf. The court below found that the dock with its apron did not project north of the wharf and was therefore not a menace. This finding is amply supported by the evidence. Witness Croskey testifies that neither the dock nor the apron thereon did so project. Croskey was the captain of the Olympia, and was very well acquainted with the wharf, dock, and apron, in question. Robert Brown, chief engineer of the Olympia, corroborates the captain on this point. Frank W. Hibbs, superintending engineer, and a naval architect of 17 years’ experience, who drew the chart and map oE the wharf, dock, etc., positively asserts that the extreme northern point of the (lock or apron was several feet south of the north side of the wharf. Both he and Capt. Croskey give very satisfactory and cotivincing reasons why they know that to he the fact. The testimony of W. E- McNally corroborates that of Croskey and Iiibbs. Capt. Turner, a witness for the Crosby Tugboat Company, and captain of the Harold C., testified that he did not “think” the apron projected beyond the line of the wharf. J. F. Ives, Eor appellant, testifies that he and J. S. Primrose carefully measured the line of the wharf and dock the morning after the accident, and found that the apron projected 12 feet beyond the north line of the wharf. J. S. Primrose corroborates Ives in every particular. The testimony of these two men sounds convincing, but no more so than the testimony of Croskey and Hibbs, who swear directly to the contrary. Primrose and Ives contradict Croskey, Brown, Hibbs, McNally, and Turner. It is impossible for us to reject the finding of the lower court upon the point.

The fourth and fifth assignments relate to the finding's of the court to the effect that the Olympia struck the corner of the dry dock before she struck the apron. The testimony is very conflicting. Capt. Croskey of the Olympia testifies that his vessel struck the corner of the dock first, and then swung around and bumped1 the apron. Robert Brown, chief engineer of the Olympia corroborates Capt. Croskey. Capt. Charlesworth, of the Tillicum, however, testifies that the vessel struck the apron first, and afterwards drifted down on the corner of the dock. The captain said he could feel the vessel stop as she struck the submerged apron. The testimony of Anderson, mate of the Tillicum corroborates the captain’s testimony in this regard. A witness named Conners, however, who saw the accident from the dock, corroborates the officers of the Olympia. Witness Hibbs, heretofore mentioned, testifies that it was a mathematical impossibility for the injury to the vessel to have been caused by striking against the apron. Witnesses Hibbs, Conners, and McAteer saw the dry dock after the accident, and all testify to injuries inflicted to the dock proper which indicate that it was struck a tremendous blow. The iron shoe on the northwest corner of the dock was broken and stained with fresh paint such as that found on the bottom of the Olympia. The distance and position of the shoe under water and the nature of the injury to the ship, point strongly to the probability of its having been the instrument which punched the hole in the hull. It appears too, quite clearly, that such an injury as was done could not have been inflicted by the blunt end of the apron. There seems, therefore, to be little doubt but that the injury to the Olympia resulted from the collision with the iron shoe fixed on the corner of the dry dock. It takes a blow of very great force to pierce the iron hull of a vessel of 1,730 tons, like the Olympia, and it hardly seems probable that the injury was inflicted after the force of the vessel’s momentum had been broken by contact with the apron. The court’s finding was justified and will not be set aside.

The other more material assignments of error relate to the question of the negligence which caused the accident, and who should be held responsible therefor. The lower court was of opinion that the accident was caused by the negligence of the person who was directing and controlling the movements of the vessels; and), further, that the captain of the Tillicum was directing and controlling them. The evidence shows that the entrance to the Moran dock, to which the Olympia was to be towed, was not dangerous, and that the ship could have been taken in safely if ordinary care had been exercised by the one directing the towing. The captain of the Olympia testifies that the collision and resulting injury to his ship were caused by the fact that the turn to send the vessel in stern first was made too late, and when the vessel was too close to the dock. No proper allowance was made for the drifting of the ship, when it ought to have been known by the officer in charge that a vessel the size of the Olympia must lose head, if presented broadside to the force of the wind and tide. We must hold that it is established by the evidence that the injury to the vessel was caused by the culpable negligence of the officer in charge, and the court’s findings to that effect must be sustained. It is also established by a preponderance of the evidence that Capt. Charlesworth of the Tillicum was in charge of the vessels during the towing. Witnesses Turner and Chesley testify to the custom of the port of Seattle thar the captain of the tug lashed to the vessel shall take charge of and) be responsible for it. Capt. Croskey of the Olympia testifies that he gave no orders or directions as to moving and handling of his vessel, except that relating to entering the ship stern first instead of bow-first, and that the captain of the Tillicum, after lashing his boat firmly to the Olympia, came on board the Olympia and directed the moving of the vessel. The Olympia had no motive power of her own and was under the complete control of the two tugs. The captain of the Olympia was practically powerless—he could not move or guide his ship without assistance. The captain of the Tillicum denies that he had charge of the towing, hut Capt. Brownfield, wlm employed the Tillicum and the Harold C., testifies that he told the captain of the Tillicum that he supposed that he (Charlesworth) would take charge, and Charlesworth said, “All right.” It is certain that the captain of the Harold C. received all his orders from Capt. Charlesworth, although Charlesworth says that he merely transmitted the orders of Capt. Croskey to the Harold C., and gave no orders on his own initiative. Both captains, Charlesworth and Croskey, were on the deck of the Olympia and in equally favorable positions for giving orders to the Harold C. There seems to be no good reason to believe that the captain of the Olympia, if he gave any orders, would have transmitted them to the Harold C. by means of the captain of the Tillicum, yet it is plain that the Harold C. received no orders except those directly given by the captain of the Tillicum. The evidence supports the conclusion reached by the lower court, and will not be set aside. The Julia (D. C.) 91 Fed. 171; Gilchrist v. Sicken et al., 147 Fed. 170, 78 C. C. A. 12; Baker-Whitely Coal Co. v. Neptune Navigation Co., 120 Fed. 247, 56 C. C. A. 83.

There is no evidence whatever tending to establish negligence on the part of the captain of the Harold C., and the appellant’s specifications of error in that regard are without substantial merit.

We do not deem further review of the evidence necessary. Finding none of the assignments of error to be well founded, our conclusion is that upon the whole case the District Court reached a just result.

Decree affirmed.