THE AAKRE

• Decision Date: 08 December 1941
• Docket Number: No. 344.,344.
• Citation: 122 F.2d 469
• Parties: THE AAKRE. WATERMAN et al. v. THE AAKRE et al.
• Court: U.S. Court of Appeals — Second Circuit

122 F.2d 469 (1941)

THE AAKRE WATERMAN et al. v. THE AAKRE et al.

No. 344.

Circuit Court of Appeals, Second Circuit.

July 28, 1941.

Writ of Certiorari Denied December 8, 1941.

D. Roger Englar, of New York City (Bigham, Englar, Jones & Houston, W. J. Nunnally, Jr., and F. Herbert Prem, all of New York City, on the brief), for libellants-claimants-appellants.

John W. Griffin, of New York City (Haight, Griffin, Deming & Gardner, Wharton Poor, and James McKown, Jr., all of New York City, on the brief), for Rederi A/S Henneseid.

John L. Galey, of New York City (Burlingham, Veeder, Clark & Hupper and Burton H. White, all of New York City, on the brief), for Lamport & Holt Line, Ltd. George C. Sprague, of New York City (Crawford & Sprague and H. C. Archibald, all of New York City, on the brief), for Continental Grain Co.

Before SWAN, CLARK, and FRANK, Circuit Judges.

Writ of Certiorari Denied December 8, 1941. See ___ U.S. ___, 62 S.Ct. 360, 86 L.Ed. ___.

CLARK, Circuit Judge.

This proceeding arose out of the stranding of the Aakre, a Norwegian motor vessel of 4,138 tons gross and 2,336 tons net, on Cheney Island near Grand Manan Island in the Bay of Fundy on the morning of October 29, 1937. Much of the cargo of potatoes then on board was jettisoned, and most of the remainder was lost through delay and rehandling.

The cargo was carried under bills incorporating the Canadian Water Carriage of Goods Act, 1936, which in all material respects is identical with our own Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315. By Art. IV, sub. 1, of the Schedule of Rules of the Canadian Act, "Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied"; and by sub. 2, "Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from (a) act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship: * * * (c) perils, danger, and accidents of the sea or other navigable waters."

The trial court found that the stranding was not caused by unseaworthiness, but by an error in navigation. It consequently rendered a decree exonerating ship and carriers from liability, and dismissing the cargo owners' libel. From this decree the latter appeals.

The Aakre sailed from St. John at 9:00 P. M., October 28, 1937, intending to traverse the Bay and leave it by way of the gap between Old Proprietor Shoal and Northwest Ledge. The distance from St. John to the gap is about 50 miles, and the width of the gap about 15 miles. The vessel first made good from St. John a course about 211° true, which, if continued, would have carried her just east of Old Proprietor Shoal and safely out of the Bay. When she had proceeded on this course about 26 miles through the water — an estimated 30 miles over the ground — a leak developed from a latent defect in a "telescope pipe," and the engines were stopped at 11:45 P. M. to permit repairs. The court found, by tracing her course back from the point of stranding, that her drift between 11:45 P. M. and 2:50 A. M., when the engines were again started, was about four miles almost due west, placing her where a new course more southerly than the old would be necessary to pass to the east of Old Proprietor Shoal. Instead, she steered further to the west. From 2:50 A. M. until 4:00 A. M., she ran 221° true, toward the mass of shoals and islands behind Old Proprietor. At 4:00 A. M., she shifted her course still further west to 252° true; and at 4:20 A. M., she ran aground on Cheney Island, about 44 miles from St. John.

The strange courses steered from 2:50 until 4:00 A. M., and from 4:00 until 4:20 A. M., are explained by the captain's complete misunderstanding of his position. His dead reckoning until the engines were stopped at 11:45 P. M. was at least roughly accurate, although it probably did not allow for the effects of favorable currents on his speed over the ground. At about 1:45 A. M., however, the third officer saw to the east what he believed to be Prim Point Light, which was actually invisible from the position of the ship at the time, and from anywhere except well to the east of her dead-reckoned midnight position. Surprised at this, the captain called on the second officer for a radio bearing, which the latter took from St. John at 2:25 A. M., found to be 216.5° true, but erroneously transcribed on the chart as about 195° true from St. John. By this error the apparent position of the vessel was shown to be far east of its actual position, and the third officer's mistaken report of having sighted Prim Point Light was confirmed. Hence the captain believed that he was east, instead of west, of his original course, and set the new 2:50 A. M. course accordingly.

A second radio bearing from St. John taken at 3:41 A. M. showed the vessel at 218.5° true; but another error was made, and this bearing was transcribed onto the chart as about 197° true from St. John. Both errors were of 21°, the amount of local variation,¹ and may have been made by marking the chart with reference to the inner or magnetic, rather than the outer or true, rose. When the second St. John bearing was crossed immediately by a correct bearing from Yarmouth, Nova Scotia, the captain was led to believe that he was still to the east of his course and then dangerously near Northwest Ledge. Meaning to avoid this, he veered more sharply westward at 4:00 A. M. and directly onto Cheney Island.

It is entirely futile for appellants to question that such apparently simple mistakes of navigation could have been made. The three stated radio bearings were certainly taken, and the ship's course was certainly laid as described. No other explanation of that course, except the complete uselessness of the compasses, can be imagined. Appellants do not suggest this, or any alternative explanation. The compasses were shown to be accurate and reliable, the court found that they were, and appellants have not even made out a serious case to the contrary.

The two charges of unseaworthiness which appellants make against the Aakre are that it used an inaccurate chart of the Bay, and that it lacked proper compass records.

The gist of the first of these charges is that the Aakre was using an old chart which showed the Fairway Buoy outside St. John Harbor to be 2½ miles south by east of its position at that time, and that by taking the buoy as a point of departure she steered a course somewhat west of what she intended.

The vessel had aboard, however, another chart and a catalogue of lights and buoys by which the error might have been corrected, and the captain was personally aware of the error. Under such circumstances, a failure to make the necessary routine correction was possibly bad navigation, but was certainly not a deficiency in the vessel's equipment. United States Steel Products Co. v. American & Foreign Ins. Co., 2 Cir., 82 F.2d 752; cf. The W. W. Bruce, 2 Cir., 94 F.2d 834, certiorari denied, Pacific-Atlantic Steamship Co. v. Weyerhaeuser Timber Co., 304 U.S. 567, 58 S.Ct. 950, 82 L.Ed. 1533. Although the first mate originally was misled by the erroneous chart, the captain noticed the error and corrected it before midnight. Moreover, navigation after the period of drifting was from a new point of departure, and completely detached from navigation before that period. Even if the course reckoned from the erroneous chart had gone uncorrected, it could never have thrown the vessel more than a negligible distance to the west of its reckoned course, for the east-west difference in the actual and indicated position of the buoy was very slight. Consequently, unseaworthiness with respect to the chart, if it had existed, could not have contributed to the accident.

The second charge of unseaworthiness was directed at the alleged deficiency in the compass book of entries on compass deviations.² The vessel carried deviation records in three different forms: (1) The compass card, kept on the bridge, showing the deviations at each compass interval of ten degrees, as found by a government adjuster at Sandefjord, Norway, on March 9, 1936; (2) the compass book, also kept on the bridge, showing 103 deviation entries made since the Sandefjord adjustment, and also catalogued under compass intervals; (3) the logbooks, showing many more entries, but not catalogued except in the chronological order in which they were taken. Appellants argue that logbook entries are practically useless because not easily accessible, and that good practice requires daily observations and regular entries in the compass book, at least of all observations showing as much as one degree's difference from the last recorded observation in the same sector. With this, all the expert witnesses and the court itself seemed to agree; and it is evident that the compass book lacked a record of some observations which it would have had if the practice had been strictly observed.

The court found, however, that adequate observations had been made, and, from the logbook entries, that the deviation in the south-west quadrant had never been greater than three degrees. Of this maximum deviation the navigator was apprised by an entry in the compass book September 30, 1937, showing a plus three-degree deviation on a course S 50° W; and if the navigator failed to make proper allowance for it the night of the accident, his error could not be attributed to lack of information. Since the compass book carried the particular entry necessary for this occasion, even a fairly general deficiency in the records could not have been material to the stranding. Furthermore, it is a sufficient answer to this charge, as to the former, that no possible error in the ship's course before the period of...