178 F.2d 259 (1st Cir. 1949), 4433, Gertrude Parker, Inc. v. Abrams
| Citation | 178 F.2d 259 |
| Docket Number | 4433. |
| Date | 06 December 1949 |
| Parties | GERTRUDE PARKER, Inc. v. ABRAMS et al. |
| Court | U.S. Court of Appeals — First Circuit |
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Seymour P. Edgerton, Boston, Mass. (Charles S. Bolster and Bingham, Dana & Gould, Boston, Mass., on the brief), for appellant.
Thomas H. Walsh, Boston, Mass. (Leo F. Glynn, Boston, Mass., on the brief), for appellees.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.
WOODBURY, Circuit Judge.
The diesel powered fishing vessel Skilligolee, outward bound from Gloucester on a fishing voyage, collided almost head-on in the open sea about 25 miles northeast by east of Cape Cod Light with the similarly powered fishing vessel Gertrude Parker, inbound from the fishing grounds to Boston. The collision occurred in a thick fog at about 10:30 o'clock in the evening of June 5, 1946. As a result of it the Gertrude Parker immediately began to fill and in about ten minutes sank, becoming with her cargo a total loss except for her two dories valued at $50 in which her crew escaped. The Skilligolee was damaged in the collision but nevertheless managed to pick up the crew of the Gertrude Parker and return to port.
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On June 25, 1946, a libel in admiralty was filed against the Skilligolee and her owners by the appellant as owner of the Gertrude Parker for the loss of that vessel, her cargo of approximately 85, 000 pounds of fish, and the personal effects of her crew. And, on November 20, 1946, the appellant filed a petition under 46 U.S.C.A. 183 for the limitation of its liability in the premises to the value of the salvaged parts of its vessel; the two dories mentioned above.
The appellees as the owners of the Skilligolee answered this petition and then at once filed a petition of their own for exoneration from all liability arising out of the collision, or, in the alternative, limitation of their liability to the value of their interest in their vessel, etc. After interlocutory proceedings which do not call for recitation these petitions came on for trial together in the court below, at which time it seems to have been understood by the court and proctors for the parties that the appellant's original libel, although proceedings therein had been stayed in the appellees' limitation proceeding, was also before it for trial. At any rate the court below after hearing found that the collision did not occur through any fault on the part of the owner of either vessel, or through any faulty navigation of the Skilligolee, but was caused solely by the faulty navigation of the Gertrude Parker. Therefore it concluded that the owners of the Skilligolee were entitled to exoneration, that the owner of the Gertrude Parker was entitled to limitation of its liability to the value of the two dories, and that the latter's liebl in admiralty against the Skilligolee should be dismissed. The present appeal by the owner of the Gertrude Parker is from the final decree entered in accordance with these conclusions. 1
On this appeal, and apparently throughout this litigation, the proctors for the Gertrude Parker with commendable candor have freely conceded that their vessel was at fault for the collision in two important respects- failure to have a look-out stationed on her bow, and failure to reduce her speed in the thick fog which prevailed when the collision occurred. Their position here, and their position below, is that the Skilligolee was also at fault in that she was unseaworthy to the knowledge of her owners and that she was improperly navigated. Wherefore they contend that the appellees' petition for exoneration or limitation of liability ought not to have been granted, and that their libel in admiralty ought to be remanded to the court below for an assessment of damages and entry of a decree dividing them equally.
It appears from the clear testimony and the findings of the court below based upon adequate evidence that the collision occurred under the following circumstances:
The Skilligolee left Gloucester at about 4:30 p.m. on the day of the collision bound for fishing grounds in the vicinity of Georges Bank. She took a course of southeast by east from Eastern Point and proceeded at her full cruising speed of 8 to 9 knots. The sea was smooth, the wind calm and the weather clear. But at about 9:30 p.m. she encountered heavy fog whereupon her master reduced her speed to 5 or 6 knots and the man at her wheel began to sound for signals in accordance with Article 15(a) of the International Rules. 33 U.S.C.A. § 91. She had a lookout
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posted on her bow, who appears to have been alert and to have had no other duties, and her regulation navigation lights were in proper order and lit. Her master, after checking these arrangements, went below to his quarters under the pilot house where he remained until just before the collision.
The Gertrude Parker left Georges Bank about noon on the same day bound for Boston with her cargo of fish. She took a course of west northwest and proceeded at her full cruising speed of 8 to 9 knots which was maintained until just before the collision occurred. At about 10 p.m. she encountered fog but did not reduce her speed and the court below found on conflicting evidence that she did not immediately start sounding her fog signal. As she entered the fog bank, and thereafter until the vessels were in collision, one man was at her wheel, another man was beside him in the pilot house aft on look-out, and a third man, an engineer, was on duty in her engine room. Her master went below to have a 'mug up' before she entered the fog and remained there until a moment or two before the collision.
The first intimation by any one that the vessels were approaching one another came when the look-out on the Gertrude Parker heard one of the Skilligolee's fog signals. He told his watch mate at the wheel beside him that he thought he 'heard something', and the helmsman, saying he would 'soon find out', sounded a blast of several seconds duration on the Parker's whistle. This blast brought the master of the Gertrude Parker on deck and immediately thereafter the look-out saw the Skilligolee's lights a little to starboard of dead ahead. The look-out shouted 'haul her over' to the helmsman, who immediately complied, by swinging her bow to port, and the signal was given to her engineer to reverse and go full speed astern. He did so with all possible speed, but nevertheless the two vessels collided, the stem of the Skilligolee striking the starboard side of the Gertrude Parker about ten feet aft of her stem.
The long blast of the Gertrude Parker's whistle just mentioned was heard by the look-out on the bow of the Skilligolee and gave the first intimation to any one on that vessel that another was in the vicinity. The look-out immediately ran a short distance aft shouting to the helmsman 'I hear a whistel ahead' and then turned to return to his post. As he turned he saw the lights of the Gerturde Parker dead ahead and thereupon he shouted 'Hard astarboard' to the helmsman, who immediately complied. He then started forward but failed to reach his post on the bow before the collision occurred.
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