215 F. 859 | 2d Cir. | 1914
Furness, Withy & Co., Ltd., a corporation created by and existing under the laws of the United Kingdom of Great Britain and Ireland, prosecutes this appeal to reverse a decree of the court below. Fifteen separate libels were filed against the above-named corporation. The separate libelants were Yang-Tsze Insurance Association, Ltd., et al., Nord-Deutsche Insurance Company et al., Federal Insurance Company, Walter Oloffson et al., M. H. Silvers, Hazen & Co., Boston Insurance Company, Walter Despard, Eugene J. F. Coleman, Marshall K. Weidensaul, Frances W. Van Praag, Orton G. Orr, Laura Moore, Louis Bertschman, United States of America. The various libelants brought suits for cargo losses except the.United States. The government suit was for loss of registered mail carried by the steamship Alleghany which sank at sea because of a collision with the steamship Pomaron, and the suits were brought against the owners of the latter vessel. The suits were brought on for trial simultaneously, having been consolidated and heard on the pleadings and proofs. The court below rendered a decision that the libel-ants were entitled to recover. One decree was entered awarding in all, damages and costs amounting to $172,029.81.
This collision occurred off the capes of Virginia about 11:30 a. m. on February 2, 1912. The Alleghany was on a voyage from New York to the West Indies. ' The vessel was an ordinary tramp steamer, 310 feet long. The Pomaron was a steel screw steamship of l',809 tons gross and 1,027 tons net, 278 feet long and belonged to Furness, Withy & Co., Limited. She was on her way from Baltimore to European ports and loaded with grain and general cargo. The Pomaron sighted the Alleghany about an hour before the accident, thé latter being some 10 or 12 miles away and on her port hand. Each vessel kept her course and speed for some 45 minutes. During this time the chief officer of the Pomaron had the Alleghany under constant observation. But all this time the Alleghany had not seen the Pomaron at all. This was occasioned by the fact that her chief officer, then on watch, had taken his observation and gone into the chartroom to calculate his position.
“she was swinging around, her stern was flying into us, and of course, when he put his helm hard astarboard, his stern swung around and caught us on the bow, about abreast of No. 8 hatch.”
“When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way of the other.”
And article 21 provides:
“Where, by any of these rules, one of two vessels is to keep out of the way, the other shall keep her course and speed.”
The Pomaron was to the southward and westward of the Alleghany and on the latter’s starboard hand as the two vessels approached each other. These respective courses had been maintained for several hours prior to the collision, and the two vessels were about a mile apart when the Pomaron, the privileged vessel, changed her course to starboard. In doing so she failed to comply with article 21. The Pomaron.seeks to excuse its porting under article 27. That article is as follows:
“In obeying and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”
It becomes necessary, therefore, to inquire whether the special circumstances as they existed at the time the Pomaron altered her course was justified under article 27. The application of rule 27 is restricted by its terms to situations of immediate danger. That rule applies only to exceptional cases. As said by the Supreme Court in The Oregon, 158 U. S. 186, 202, 15 Sup. Ct. 804, 39 L. Ed. 943, exceptions to the rules are to be admitted—
“with great caution and only when imperatively required by special circumstances of the case. It follows that, under all ordinary circumstances, a ves*862 sel discharges her full duty and obligation to another by a faithful and literal observance of these rules.”
In Marsden’s Collisions at Sea (6th Ed.) p. 455, it is said:
“But article 27 applies only to eases where ‘there is immediate danger, perfectly clear’; and the departure from the rules must be no 'more than is necessary.”
The “special circumstances” apparently relied upon to excuse the Pomaron under article 27 is the testimony of the officer in charge of the vessel that he could see no one on the bridge of the Alleghany. And attention is called to the doctrine of the Supreme Court in The Delaware, 161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771, where it is said:,
“The weight of English, and, perhaps, of American authorities, is to the effect that if the master of the preferred steamer has any reason to believe that the other will not take measures to keep out of her way, he may treat this as a ‘special circumstance,’ under rule 24 (now rule 27)', .‘rendering a departure’ from the rules ‘necessary to avoid immediate danger.’ ”
And the officer in charge of the Pomaron insisted that the change in the Pomaron’s course did not cause the collision. His testimony was as follows:
“Q. What was the danger? A. I saw if he was going to keep on the way he was doing he would catch us somewhere about the engine room. Q. if you had maintained your course he would have struck you near the engine room? A. Yes, about midships. Q. If you had both maintained the courses you were on then without change, what do you think would have happened? 'A. He would have run into us amidships. Q. Are you sure of that? A. Yes. Q. Wouldn’t he have got across your bow? A. No, sir; couldn’t have done it. Q. Could you have possibly got across his bow? A. No.”
And on cross-examination he was asked:
“Do-you think collision would have happened if-you had not ported your helm? A. Yes, it would have happened in any case; she would have caught us somewhere probably about amidships if I had not ported.”
But there can be no doubt that it was the duty of the Pomaron to have kept on her course until a departure was necessary to avoid immediate danger. At the time she ported her helm she was a mile away from the Alleghany, and the circumstances had not yet developed which justified any departure from the established rules. Her chief officer was asked:
“In order to get the matter quite plain on the record, will you tell us when it was that in your judgment the circumstances had developed so that collision became unavoidable unless you did something.”
To which he replied:
“Really not until the Alleghany had given me two blasts on the whistle.”
At that time the two vessels were, according to his testimony, half a mile away from each other. He testified that up to that time he had appreciated risk of collision, but thought it might have been avoided by the other vessel. He was then asked: “Then it became under the rule your duty to do something.” And he answered, “Yes.” “It had not been your duty to do anything before that?” To which he replied,
“Rut, when as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that tile fault, -if not the sole cause, was * * * a contributory cause of the disaster, in such a case the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.”
The principle thus laid down that, when a ship at the time of the collision is acting in violation of a statutory rule the burden is on her to show, not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been one of the causes of the collision, has been reaffirmed in subsequent cases, and is the law beyond all controversy. Richelieu Navigation Co. v. Boston Marine Ins. Co., 136 U. S. 408, 422, 423, 10 Sup. Ct. 934, 34 L. Ed. 398 (1890); Beldeu v. Chase, 150 U. S. 674, 699, 14 Sup. Ct. 264, 37 L. Ed. 1218 (1893). And the same rule is established in the English courts. The Agra, L. R., 1 P. C., 501, 504, 505. The Elizabeth Jenkins, L. R., 1 P. C., App., 501. Under these decisions the burden of proof rests upon the Pomaron to show that the fault she committed could not have been one of the causes of the collision.
“It was not a proper compass bearing; I just glanced over tile top of title compass and took a rough bearing.”
Then he was asked:
“It was not a guess, you looked at the compass?”
To this he answered:
“It was not a true bearing, not an accurate bearing.”
He also testified that at that time the Alleghany was bearing northeast and was three points or more on his port bow. The Alleghany remained on her original course until just before the collision. Whether she changed just before the collision is not free from doubt. The officer of the Alleghany who was on watch at the time says that “no commands were given to the steersman of the Alleghany,” although the chief officer of the Pomaron states that the Alleghany swung under a starboard helm. If the Alleghany did bear northeast and was three points on the Pomaron’s port bow when the latter changed course, it is a demonstrable proposition that a collision would not have occurred if both vessels had continued on as they were, neither one changing her course. It can readily be ascertained by applying the speed ratios whether the intersections of the known courses would be coincident, whether or not the two vessels would come together.If the Alleghany was three points on the Pomaron’s port bow and had not changed her speed or course, she would have passed the point where the two courses intersected safely, and some seconds before the Alleghany reached it. And if as some of the testimony indicated the Alleghany was five points on the Pomaron’s port bow, the Alleghany would have passed the point of intersection about two minutes before the Pomaron reached it. But in reality the contradictions in the testimony as to what the actual bearing of the vessels was makes it impossible to demonstrate whether or not any change at all in the Pomaron’s course or speed was necessary to avoid collision. We have already cited the opinion of the chief officer of the Pomaron that the collision would have happened if neither vessel had not changed. But we cannot accept his testimony on the point as conclusive. He estimated that the Alleghany was making 13 knots, and this according to his report to the Board of Trade was a knot and a half more than she was making. This would make a difference of 750 feet in the Alleghany’s position in the five minutes which elapsed between the first porting and the collision.
The loss of property for which a recovery is sought was due to a collision on the high seas, in broad daylight and in clear weather, and with no other vessels about to embarrass or interfere with navigation. Ihe two vessels involved were steamers, and therefore could be maneuvered more easily than any other kind of vessels. They were in plain sight of each other when miles apart. They nevertheless came into collision and with such force that one of them sank in a few hours,
That the negligence of the Alleghany was inexcusable and even unparalleled, seemed to be admitted. The vessel was under the command of one of the best officers the Hamburg Line had in its service. But he had no idea that there was any vessel anywhere in his vicinity. And for three quarters of an hour prior to the collision there was no lookout. The owners of that vessel filed a petition for limitation of liability and surrendered the amount of the freight for the voyage.
“which shows the necessity for the proposed new rule which will not hold each ship in solido, but will apportion liability according to fault.”
And it was urged upon us in argument that the court erred in not apportioning the damages in accordance with the degree of fault. Attention was called to the fact that the Alleghany was a German vessel, and that her cargo, for the loss of which the suit was brought, was shipped under bills of lading issued by the Hamburg-American Line, a corporation organized under the laws of the German Empire. And as the Pomaron was a British vessel, it is said that it was the duty of the court to have taken judicial notice of the fact that by the Maritime Conventions Act (1 and 2 Geo. V. C. 57) the English rule as to division of loss by collision due to mutual fault was modified in accordance with the convention signed at the Brussels Conference in 1910. In like manner it is said that judicial notice should have been taken of section 735 of the Commercial Code of Germany of May 10, 1897, which reads as follows:
“If the collision is caused by faults of both sides, then the liability for damages, as well as the amount of the damages to bo paid, depends on the circumstances, especially to what extent the collision has been caused by the prevailing fault of the members of one or the other crew.”
It may be that at the time when this collision occurred the laws of Great Britain and Germany coincided in providing that the liability for damages is to be in proportion to the degree in which each vessel is in fault. If the foreign law had been pleaded and proved, and the court had assessed the damages in accordance with it, there would have been some authority for so doing. That course was adopted by the Circuit Court of Appeals in The Eagle Point, 142 Fed. 453, 73 C. C. A. 569
“There can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted.”
It added that this rule had some qualifications and among such qualifications stated:
“That if the maritime law, as administered by both nations to which the respective ships belong, be the same in both in respect to any matter of liability or obligation, such law, if shoicn to the court, should be followed in that matter in respect to which they so agree, though it differ from the máritime law as understood in the country of the forum; for, as respects the parties concerned, it is the maritime law which they mutually acknowledge.”
In Liverpool Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 444, 445, 9 Sup. Ct. 469, 473 (32 L. Ed. 788) (1889) an admiralty case, the court below was asked to take judicial notice of a British statute exempting from liability for losses occasioned by the negligence of the
“The law of Great Britain since the Declaration of Independence is the law of a foreign country, and, like any other foreign law, is matter of fact, which the courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved. The rule that the courts of one country cannot take cognizance of the law of another without plea and proof lias been constantly maintained, at law and In equity, in England and America. * * * The rule is as well established in courts of admiralty as in courts of common law or courts of equity.”
And in the case of The Scotland, 105 U. S. 24, 29 (26 L. Ed. 1001 [1881]) Mr. Justice Bradley said:
“If a collision should occur In British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it icere shown what that Imi was. If not shown, we ‘would, appty our oten law to the ease.”
The Supreme Court, as these extracts from its opinions show, does not recognize any duly in the Admiralty Court to ascertain and apply the foreign law in fixing the liability of foreign vessels responsible for a collision where the foreign state has by statute changed the rule of the general maritime law. Such statutory limitation must be “shown” to the court and not taken judicial notice of, and it must be “shown” as any other fact is shown, by proper evidence. As the foreign law was not pleaded and no evidence of it was introduced, the court had no alternative but to follow the rule of the forum.
We do not wish, however, to be understood as intimating in what we have said that, even if the foreign law had been pleaded, the court could have assessed the damages according to the principle adopted by statute in Great Britain and in Germany. Whether it could or could not have done so is not now before us. And we do not find it necessary under the facts disclosed in the present record to consider how the decision of the Supreme Court in The Oceanic Steam Navigation Co., Limited, v. Mellor. 233 U. S. 718, 34 Sup. Ct. 754, 58 L. Ed. 1171, announced May 25, 1914, a Teds the qxiestion.
Decree affirmed.