THE ERNEST H. MEYER, 7590.

Citation84 F.2d 496
Decision Date10 June 1936
Docket NumberNo. 7590.,7590.
PartiesTHE ERNEST H. MEYER. THE EUREKA. BROUGHTON & WIGGINS NAV. CO. v. HAMMOND LUMBER CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Lillick, Olson, Levy & Geary and Jos. J. Geary, all of San Francisco, Cal. (Gilbert C. Wheat, of San Francisco, Cal., of counsel), for appellants.

Resleure, Vivell & Pinckney, of San Francisco, Cal., for appellees.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal in a case of collision between the sister cargo steamers, the Eureka and Ernest H. Meyer, shown by the evidence to have equal power and consequent speed in the conditions prevailing. The general factors controlling the problem of fault follow:

The collision occurred in San Francisco Bay, in the crowded thoroughfare between San Francisco and Oakland. There was no wind and no effective tide. There was a fog so dense that between 11 and 12 o'clock in the morning the visibility was as low as 300 feet and its maximum was 400 feet. In determining the speed of each vessel with reference to visibility in such a fog in a crowded harbor, they being such sister ships, each is entitled to no more than half the area of visibility in which to stop.

"It has been said by this court, in respect to steamers, that they are bound to reduce their speed to such a rate as will enable them to stop in time to avoid a collision after an approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law." The Chattahoochee, 173 U.S. 540, 548, 19 S.Ct. 491, 494, 43 L.Ed. 801; The Lepanto (D.C.) 21 F. 651, 659; The Old Colony (D.C.) 52 F.(2d) 992, 993, 994.

The length of each steamer was 300 feet, and hence the speed of either was excessive if she could not be stopped in 150 feet, or half a ship's length with the visibility at a minimum, and 200 feet when at its maximum. A "slow" bell on each vessel gives 5¾ knots. This speed is claimed as to each vessel in causative movements of their maneuvers, that is to say, upwards of 575 feet in a minute. The parties properly assume it would take at least half of a minute to cut over the steam into a full reverse. In that time the vessel would travel at least 250 feet before her propeller began to stop her and thereafter much more than a ship's length before she was dead in the water. This, and the testimony of the experts that at 6¼ knots the vessel would travel three ship's lengths before a full reverse would bring her dead, compels the finding that even a 4-knot speed would be immoderate. The facts do not require us to consider the Eureka's contention that as low as 2-knot speed is the "moderate speed" for the circumstances.

The Meyer Was In Fault. The District Judge found the Meyer in fault for excessive speed and failure to stop engines under Inland Rule 16 (33 U.S.C.A. § 192). In his consideration of the evidence he properly weighed it in connection with the presumption that the unsatisfactorily explained absence "of the `Meyer's' smooth deck log, rough engine room log, engine room bell book and deck bell book" required the "conclusion that had these records been produced they would have shown facts adverse to the `Meyer's' case."

Even if, as we did in The San Rafael, 141 F. 270, 275, 281, we regard the decree below as "vacated" and view the facts without considering the findings, our independent findings on the facts, based on a review of all the facts and including the presumption arising from the unsatisfactory explanation of the nonproduction of the ship's logs, are that the Meyer failed to stop engines and maintained excessive speed in violation of Inland Rule 16 (33 U.S.C.A. § 192), and that these faults proximately contributed to cause the collision.

The Faults Claimed against the Eureka. The findings below are that the Eureka was free of fault, and the decree exonerates her from liability. The Meyer claims the Eureka was guilty of the same faults as those found against the Meyer, and that the District Court erred in not so finding. It also complains that, although the Eureka's engine room scratch log of first entry of the bells from the bridge was obviously and prejudicially altered as to bells controlling the speed of the Eureka in her immediate approach to the Meyer, the District Court ignored the alteration and failed to consider the evidence against the Eureka in connection with the same presumption as it did against the Meyer.

The first question which faces the Meyer is the effect of the findings upon which the decree of the District Court is based. We are required to consider how the position of appellate litigants here has been affected by Admiralty Rule 46½ (28 U.S. C.A. following section 723), promulgated by the Supreme Court in October, 1930, requiring in admiralty cases specific findings of fact by the District Court. If, since that rule was promulgated, we are required merely to determine whether there is sufficient evidence from which rationally may be drawn the particular inference embodied in the finding, and to ignore any other rational inferences, then we must affirm. Since this is a possible interpretation of the recent decision of the Supreme Court in McCrea v. U. S., 294 U.S. 382, 383, 55 S. Ct. 443, 79 L.Ed. 933, it is proper that we review the cases determining the character of trials of fact in admiralty appeals.

The last case considered by the Supreme Court which arose prior to the effective date of Rule 46½ is Brooklyn Eastern Dist. Terminal v. U. S., 287 U.S. 170, 176, 53 S.Ct. 103, 105, 77 L.Ed. 240. There, in a trial de novo, the Supreme Court weighed the evidence as on a new trial and found that the District Court's finding of the amount of demurrage was excessive. This finding agreed with that of the Circuit Court of Appeals (54 F.(2d) 978). The Supreme Court sustained the decree of the latter court ordering the District Court to enter its decree on the basis of its finding. The language of Justice Cardozo's opinion considering the nature of a new trial in the Circuit Court of Appeals is as follows: "In admiralty an appeal to the Court of Appeals is deemed to be a trial de novo. Munson Steamship Line v. Miramar Steamship Co. (C.C.A.) 167 F. 960; Gilchrist v. Chicago Ins. Co. (C.C.A.) 104 F. 566, 571; cf. The Abbotsford, 98 U.S. 440, 25 L.Ed. 168; Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U.S. 9, 21, 39 S.Ct. 1, 63 L.Ed. 100, 3 A.L.R. 323; Standard Oil Co. v. So. Pacific Co., 268 U.S. 146, 155, 45 S.Ct. 465, 69 L.Ed. 890. An assessment of damages may be corrected if erroneous in point of law, but also it may be corrected if extravagant in fact."

The first case his opinion cites, Munson Steamship Line v. Miramar Steamship Co., is the leading authority on the nature of the new trial in admiralty appeals to the Circuit Court of Appeals. While it arose in the Second Circuit, its conclusions were applied to the Ninth Circuit in Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520, where the court concurs with the language of Mr. Chief Justice White in Reid v. Fargo, 241 U.S. 544, 548, 36 S.Ct. 712, 60 L.Ed. 1156, that its review of the authorities was "full and convincing."

Upon the review of the authorities, Judge Ward's opinion in the Munson-Miramar Case holds: "That this court stands with relation to the District Court exactly as the Supreme Court before the act of 1875 stood in relation to the Circuit Court. The appeal is still a new trial in this court, subject to the regulations before mentioned." (Italics supplied.) Munson S.S. Line v. Miramar S.S. Co. (C.C.A.) 167 F. 960, 964.

The regulations referred to were rules requiring assignments of error and providing discretionary allowance of new pleadings and evidence in the appellate court. Among the cases relied on in Judge Ward's review of authorities is Chief Justice Marshall's opinion in Yeaton v. U. S., 5 Cranch, 281, 3 L.Ed. 101, in which the Supreme Court held that the admiralty appeal "suspends" the decree below, and the case of Post v. Jones, 19 How. 150, 160, 15 L.Ed. 618, where the Supreme Court, in disagreement with both the Circuit Court and District Court, increased an award to salvors, saying that the court must give its "conscientious judgment * * * on every question arising in the cause." Judge Ward's opinion further relies on Irvine v. The Hesper, 122 U. S. 256, 7 S.Ct. 1177, 30 L.Ed. 1175, holding that on an admiralty appeal the decree below is "vacated altogether."

This court, in an earlier case in an opinion by Judge Ross, held that on an appeal from a limitation decree that decree was "vacated." One McHugh, who had not appealed, was allowed to appear in this court which reviewed the evidence without regard to the finding below and raised his award for personal injuries from $1,000 to $5,000. The San Rafael (C.C.A.) 141 F. 270, 275, 281.

It will be noted that in none of these cases is any distinction made between reviewing the decision of the lower court on facts where the evidence considered below is given in open court and where it consists of depositions.

As significant as is his reliance on the Munson Steamship Case is Justice Cardozo's citation to the specific page in Gilchrist v. Chicago Insurance Co., 104 F. 566, 571, where the Circuit Court of Appeals held that, under the act of 1891 (26 Stat. 826) "an admiralty appeal by the libelant in the circuit court of appeals * * * is to be heard and determined under substantially the same rules and limitations that regulated the determination of admiralty appeals in the circuit courts prior to the passage of that act. It results that this court may properly consider and determine every issue raised by the pleadings, and, without regard to the decree below, direct such a decree to be entered here as is consistent with law. If, in our judgment, the libelants are not entitled to a decree in any amount * * * we may dismiss the libel, notwithstanding the underwriters did...

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