Carr v. Hermosa Amusement Corporation, Limited

Citation137 F.2d 983
Decision Date18 October 1943
Docket NumberNo. 10190.,10190.
PartiesCARR et al. v. HERMOSA AMUSEMENT CORPORATION, LIMITED, et al., and fourteen other cases.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Lillick, Geary, McHose & Adams, Ira S. Lillick, and Kent A. Sawyer, all of Los Angeles, for appellants.

Alfred T. Cluff, of New York City, and Hugh B. Rotchford, George H. Moore, and Allan F. Bullard, all of Los Angeles, Cal., for appellees.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Sterling Carr, as trustee in bankruptcy of Nippon Yusen Kabushiki Kaisya, a corporation, bankrupt, hereinafter called Nippon, and Fidelity & Deposit Company of Maryland, a corporation, appeal from a decree in admiralty holding Nippon solely in fault for a collision of its Japanese Motorship Sakito Maru, motoring toward Los Angeles Harbor, with the pleasure fishing barge Olympic II, owned by appellee, Hermosa Amusement Corporation, Ltd., a corporation, hereinafter called Hermosa, the Olympic being anchored at bow and stern while fishing at Horseshoe Kelp in the Pacific Ocean, approximately 3¼ nautical miles from the lighthouse on the west breakwater of Los Angeles Harbor, whereby the Olympic became a total loss, several persons on her were drowned and personal effects lost.

A. The Sakito's liability for the sinking of the Olympic. The Sakito, crashing into the anchored Olympic, has the burden of overcoming the presumption that she was at fault and the Olympic not at fault in causing the Olympic's sinking.

In admiralty this presumption does more than merely require the Sakito's going forward and producing some evidence on the presumptive matter, as in civil suits. Cf. New York Life Insurance Co. v. Gamer, 303 U.S. 161, 171, 58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218. It places a "burden of proof" on the moving vessel "to show either that the steam-tug the moving vessel was without fault or that the collision was occasioned by the fault of the schooner the anchored vessel, or that it was the result of inevitable accident." The Clarita and The Clara, 23 Wall. 1, 13, 23 L.Ed. 146, 150; The Oregon, 158 U.S. 186, 193, 15 S.Ct. 804, 39 L.Ed 943; United States v. King Coal Co., 9 Cir., 5 F.2d 780, 783. Here there is no evidence warranting a finding of inevitable accident.

All the crucial witnesses on both sides testified in open court, with the exception of the Sakito's first officer and lookout. Their testimony, given by deposition in advance of the trial, was in the main consistent with the story of the Sakito's master, who was heard by the court.

There is abundant testimony of these witnesses, heard by the trial court, from which that court could infer that Horseshoe Kelp is a customary and proper place for the anchorage of the fishing barge and that in no way did the Olympic cause an obstruction to the proper navigation of vessels approaching or leaving the harbor.

So far as concerns the Sakito's burden of proof of her charge that the Olympic's crew failed to give the proper signals in the existing fog conditions, and that the Olympic was not properly manned, the Olympic's crew's testimony and that of persons on nearby vessels was heard by the trial court and seems to us acceptable for sustaining even a burden of proof on the Olympic of her lack of fault. True, as to the signals, it is opposed in part by the depositions of the Sakito's lookout and mate, but there is nothing in the cold pages before us of all these witnesses which places us in a position to attempt to reverse the decision of a court which had the opportunity of appraising the mental capacity, memory and veracity of so many witnesses. The Ernest H. Meyer, 9 Cir., 84 F.2d 496, 501. We sustain that court's decision and hold, not only has the Sakito not maintained her burden of proving fault in the conduct of the Olympic's crew but, that the latter is shown to be without fault contributing to the collision. Her failure in manning not contributing to the collision, is later considered.

Similar conditions apply to the burden of proof on the Sakito to show she was without fault in her navigation into the Olympic.

There is some dispute as to her speed, but the fact the scars on the Sakito show that she penetrated into the Olympic's iron frame and plates to her midship section for 23 feet of the latter's 38-foot beam, smashing in not only the latter's side plates and between decks but her bottom and keel, to us proves conclusively that the Sakito's navigator did not have the control over her which would enable her to be dead in the water in half the visible distance between her and the anchored Olympic. The Ernest H. Meyer, supra, 84 F.2d 497; The Silver Palm, 9 Cir., 94 F.2d 754, 757; The Catalina, 9 Cir., 95 F.2d 283, 286. It is possible there is an exception to the rule of these cases where there is a sudden change in visibility such as running into an extraordinary fog density from a much lighter fog area, but no such condition is shown here to aid the Sakito's burden of proof. We hold that the appellants are liable to appellee Hermosa for the total loss of the Olympic.

B. The liability for the death, personal injury and personal property loss on the sinking of the Olympic. The sinking of the Olympic caused the drowning of eight persons on her, injuries to others, and the loss of certain personal effects, for which libels in intervention and independent libels were filed claiming liability against both Nippon and Hermosa. The district court held the Sakito solely at fault for these losses and entered decrees awarding damages solely against Nippon. From these decrees Nippon has appealed but has failed to cite the claimants and has brought here Hermosa as the sole appellee in each. Nippon contends that Hermosa, if not solely at fault, causatively contributed to these losses.

Sakito's causative relation to the loss of life and personal effects is apparent. The question remaining is whether Hermosa is also at fault, in which event one-half of Nippon's liability to the claimants for loss of life, personal injury and personal property must be shared by Hermosa. The Chattahoochee, 173 U.S. 540, 554, 555, 19 S.Ct. 491, 43 L.Ed. 801; Erie R. Co. v. Erie & Western Transporation Co., 204 U.S. 220, 226, 27 S.Ct. 246, 51 L. Ed. 450; Aktieselskabet Cuzco v. The Sucarseco, 294 U.S. 394, 401, 55 S.Ct. 467, 79 L.Ed. 942.

The Olympic was an ocean-going barge of over 100 tons. She was navigating the Pacific at the time she was carrying the pleasure fishermen and others at Horseshoe Kelp and hence required by the United States Code1 to comply with the requirements of the United States local inspectors as to her structure and otherwise. United States v. Monstad, 9 Cir., 134 F.2d 986, 987.

The Los Angeles local inspectors had required of the Olympic and other pleasure fishing barges operating in the neighborhood of Los Angeles Harbor and within the control of these inspectors, that the annual thousands of fishermen they carry should be protected from the results of just such a collision as occurred here by having, inter alia, (1) the hull of each compartmented by sufficient water-tight transverse bulkheads to keep the vessel afloat if one of the compartments were flooded, and (2) a licensed master in charge, who could direct the life saving operations in the confusion arising from the struggle of the passengers to escape drowning.

The local inspectors' specific requirement regarding the licensed master was a "Minimum crew while vessel is at anchor with persons other than crew on board" of "1 licensed master * * *." There was no licensed master nor any licensed officer to assume instantly the direction and command of the saving of passengers in the event of such an emergency as caused by a collision. The total crew consisted of but an ordinary seaman, a watchman and a bait boy.

Section 222 of Title 46 U.S.C.A. provides that a vessel such as the Olympic, subject to the provisions of chapter 14, which in § 395 provides for the requirements of local inspection for the navigation of barges, shall not be navigated "* * * unless she shall have in her service and on board such complement of licensed officers * * *, as may in the judgment of the local inspectors who inspect the vessel be necessary for her safe navigation." Section 223 provides that no "ocean-going vessel carrying passengers * * * shall be navigated unless she shall have on board and in her service one duly licensed master."

Without such a master or any licensed officer as required by the local inspectors, the Olympic was being navigated in violation of a statutory requirement for the safety of life at sea, just as was The Denali, 9 Cir., 112 F.2d 952.

The Olympic was an ancient iron sailing vessel, 63 years old. She had but a single hold for her length from a collision bulkhead abaft her bow to her stern. For decades such a single-hold vessel had been outmoded for the carrying of passengers on the high seas. The local inspectors' specific bulkhead requirement was "a sufficient number of transverse watertight bulkheads * * * fitted so that the vessel will remain afloat with positive stability in the event any one main compartment is flooded." The local supervising inspector approved the local inspectors' action. Hermosa appealed from the action of the local inspectors and supervising inspector and their action was sustained. On July 24, 1940, six weeks before the collision, the Director of the Bureau of Marine Inspection of the Department wrote Hermosa's representative,

"I have reviewed the requirements itemized in `exhibit A' including the bulkhead and the licensed master requirements in their relation to their applicability to the Olympic II, permanently anchored as a nonself-propelled pleasure vessel on the highseas, and am of the opinion that such requirements are reasonable and generally necessary to adequately ensure the safety and protection of the patronizing public.

"Since no specific...

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