States Steamship Company v. United States

• Decision Date: 20 August 1958
• Docket Number: No. 15131.,15131.
• Citation: 259 F.2d 458
• Parties: STATES STEAMSHIP COMPANY, a corporation, Appellant, v. UNITED STATES of America, Atlantic Mutual Insurance Company, Pacific National Fire Insurance Company and The Dominion of Canada, Appellees. ATLANTIC MUTUAL INSURANCE COMPANY, Appellant, v. STATES STEAMSHIP COMPANY, a corporation, United States of America and The Dominion of Canada, Appellees. PACIFIC NATIONAL FIRE INSURANCE COMPANY, Appellant, v. STATES STEAMSHIP COMPANY, a corporation, United States of America and The Dominion of Canada, Appellees. UNITED STATES of America, Appellant, v. STATES STEAMSHIP COMPANY, Atlantic Mutual Insurance Company, Pacific National Fire Insurance Company and The Dominion of Canada, Appellees. The DOMINION OF CANADA, Appellant, v. STATES STEAMSHIP COMPANY, Atlantic Mutual Insurance Company, Pacific National Fire Insurance Company and The United States of America, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

259 F.2d 458 (1957)

STATES STEAMSHIP COMPANY, a corporation, Appellant, v. UNITED STATES of America, Atlantic Mutual Insurance Company, Pacific National Fire Insurance Company and The Dominion of Canada, Appellees.

ATLANTIC MUTUAL INSURANCE COMPANY, Appellant, v. STATES STEAMSHIP COMPANY, a corporation, United States of America and The Dominion of Canada, Appellees.

PACIFIC NATIONAL FIRE INSURANCE COMPANY, Appellant, v. STATES STEAMSHIP COMPANY, a corporation, United States of America and The Dominion of Canada, Appellees.

UNITED STATES of America, Appellant, v. STATES STEAMSHIP COMPANY, Atlantic Mutual Insurance Company, Pacific National Fire Insurance Company and The Dominion of Canada, Appellees.

The DOMINION OF CANADA, Appellant, v. STATES STEAMSHIP COMPANY, Atlantic Mutual Insurance Company, Pacific National Fire Insurance Company and The United States of America, Appellees.

No. 15131.

United States Court of Appeals Ninth Circuit.

May 31, 1957.

Modified on Petitions for Rehearing November 15, 1957.

As Amended on Denial of Rehearing on Limitation August 20, 1958.

Wood, Matthiessen, Wood & Tatum, Erskine Wood, Portland, Or., Bogle, Bogle & Gates, Stanley B. Long, Seattle, Wash., for appellant States S.S. Co.

Koerner, Young, McColloch & Dezendorf, John Gordon Gearin, George B. Campbell, Portland, Or., for appellants Atlantic Mut. Ins. Co. & Pacific Nat. Fire Ins. Co.

Summers, Bucey & Howard, Charles B. Howard, Seattle, Wash., for appellant Dominion of Canada.

George Cochran Doub, Asst. Atty. Gen., Leavenworth Colby, Attorney, Department of Justice, Washington, D.C., Keith R. Ferguson, Sp. Asst. to Atty. Gen., Kenneth E. Kulzick, Los Angeles, Cal., C. E. Luckey, U.S. Atty., Portland, Or., for appellant-appellee, U.S.A.

Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges.

DENMAN, Chief Judge.

These are appeals from an interlocutory decree of the United States District Court for the District of Oregon on the petition of States Steamship Company, hereafter the Company, for exoneration from or limitation of liability for the total loss of the cargo of the S.S. Pennsylvania, which sank with all hands in the Gulf of Alaska on January 9, 1952, while enroute over the Great Circle route from Seattle, Washington, to Yokohama, Japan.

The district court held (a) that the Pennsylvania was not lost from a peril of the sea; (b) that she was unseaworthy; (c) that the employees of the Company had not exercised due diligence to make her seaworthy, but (d) that the Company was without privity in or knowledge of her unseaworthiness and hence was entitled to limit its liability to the pending freight.

Here there are no claims for loss of life. For loss of cargo, 46 U.S.C.A. § 183(a) provides that "the liability of the owner of any vessel * * * for any loss * * * incurred, without the privity or knowledge of such owner or owners, shall not * * * exceed the amount or value of the interest of such owner in such vessel, and her freight then pending." The interest of the owner in the vessel is its value after the events leading to the loss of the cargo,¹ here of no value since the vessel was a total loss.

The Company appeals from the denial of its exoneration from liability contending that the evidence conclusively shows that the Pennsylvania was lost because of a peril of the sea (46 U.S.C.A. § 1304 (2) (c)), and that she was not unseaworthy.

The cargo claimants, the United States, the Dominion of Canada, Atlantic Mutual Insurance Co., Pacific National Fire Insurance Co., hereafter Cargo, appeal from the limitation of liability to the pending freight contending the evidence shows that the Company was privy to and had knowledge of her unseaworthiness.

Much of the pertinent testimony supporting the court's decision is viva voce, hence this admiralty appeal is, in effect, governed by Rule 52(a) Fed.Rules Civ.Proc., 28 U.S.C.A. that:

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20.

Facts concerning the ship's experience before sinking. The Pennsylvania was a Victory ship, length 455 feet, beam 62 feet, gross tonnage 7,608 tons. On January 5, 1952, the ship left Seattle, and on January 9, 1952, sank in a storm in the Gulf of Alaska about 505 miles WNW of Seattle. Since no wreckage was ever found and there were no survivors, the only information concerning the sinking is in the radiograms received from the ship during the storm. These radiograms show: At 5:35 ship's time (approx.) January 9, 1952, the ship reported WNW wind at force 9 on the Beaufort scale and "mountainous" seas. A little later she reported a 14-foot crack beginning in a butt weld in the sheer strake between frames 93 and 94 running down her side, "very high westerly sea", and stated she would turn around to return to Seattle as soon as possible. At 6:10 she reported she was taking water through the crack, but that her pumps were holding. At 9:27 she reported that she was steering a course for Seattle (i. e., had succeeded in turning around), "can't steer at present taking water in number one hold and engineroom". At 10:05 a message received from the ship stated that she was taking water in number one hold "down by head cannot steer or get forward to see where the trouble is pumps holding in engineroom. If we cannot fix steering gear will require assistance. Very high seas. Cannot get on deck at present. Deck load adrift taking tarpaulins off forward hatches. Cannot get on deck to rescue." Emphasis supplied. The first SOS was sent at 10:20 in a message stating she was taking water in engineroom, number one hold, and was down by the head. At 11:15 she reported tarpaulins in forward hatches were still holding, that she was taking water in number one hold and engineroom, and was using hand steering. At 3:05 P.M. she reported steering gear fixed but unable to steer as rudder too far out of the water, and that number two hatch was open and full of water. At 3:22 the last message stated that the crew was abandoning ship.

The bills of lading provided that the Company was not liable for the loss of the cargo by a peril of the sea. Here the loss of the cargo being admitted the burden of proof is on the Company to prove that such a peril caused its loss.

The accepted definition of a peril of the sea is that of Judge Learned Hand's opinion for the Second Circuit, who stated that it means "nothing more * * * than that the weather encountered must be too much for a well-found vessel to withstand." Philippine Sugar Centrals Agency v. Kokusai Kisen Kabushiki Kaisha, 2 Cir., 1939, 106 F.2d 32, 34-35.

We think the evidence sustains the district court's finding that the vessel was not lost by a peril of the sea. The messages from the Pennsylvania described the seas as very heavy and that after a crack in her hull she was returning to Seattle. After the vessel had been able to turn around in the heavy seas to return to Seattle, she had trouble with her steering gear and then wirelessed: "If we cannot fix steering gear will require assistance." Emphasis added. From this the court could draw the inference that it was the inherent condition of the ship's hull rather than the heavy seas which caused her sinking.

In the deposition of John W. McMunagle, captain of the Canadian Weather Ship, Stonetown, he testified as follows:

"By Mr. Gearin: Q. Captain, what would you say would be the usual and expected weather for the vicinity of Weather Station Papa in the winter months? A. Well, you can expect very rough seas and gales of varying degrees of intensity practically throughout the winter.

"Q. Was there anything unusual or unanticipated about the weather conditions that existed in the month of January, 1952, in the vicinity of Weather Station Papa? A. No.

"Q. Do you have an independent recollection of winter weather in the vicinity of Station Papa which is not shown on your log? A. Yes, we have had weather just as bad in the late fall, — in September and October.

"Mr. Wood: Just as bad as what?

"The Witness: Pardon?

"Mr. Wood: Just as bad as what?

"The Witness: As bad as what we have had in the winter months of January and February. We have had gale force in late fall."

McMunagle turned his ship around in the heavy seas, responding to the Pennsylvania's call for assistance and testified:

"Q. At any time when you were searching for the Pennsylvania were you unduly apprehensive for the safety of your vessel? A. No."

Seiichi Mori, the captain of a Japanese ship, testifying through an interpreter:

"Q. Captain, was there anything unusual that you recall about the weather and sea conditions that you encountered during this period from January 7th through January 9th? A. Yes, big storm.

"Q. Big storm? A. Yes, but in winter times, North Pacific Ocean, sometimes we expect the same kind of storm then.

"Q. Was there anything unprecedented about the storm that you encountered during this period, for this time of the year?

"The Witness: (Through Interpreter) Not unusual.

"Mr. Howard: Q. Not unusual?

"A. No, but quite a sized storm."

He further stated that a seaworthy vessel fully loaded could stand the weather from January 7th through January 9th.

Robert M. Kinzebach is a meteorologist by profession who had three years' service as a weather officer, five years with the Pan American Airways forecasting between Seattle and Alaska and about three years in the Weather Bureau in Seattle. After an extended examination as to the character of the weather when the Pennsylvania was sunk compared to that of his long study of weather conditions in this area, he testified:

"Q. All right, sir. How would you characterize the Pennsylvania storm, Mr. Kinzebach? A. Well, it was — I wouldn\'t say a typical winter storm, but it was not an unusual one."

Remembering that the wind...