Oliver J. Olson & Co. v. Luckenbach Steamship Company

• Decision Date: 08 June 1960
• Docket Number: No. 15766.,15766.
• Citation: 279 F.2d 662
• Parties: OLIVER J. OLSON & CO., a corporation, Appellant, v. LUCKENBACH STEAMSHIP COMPANY, a corporation, Appellee. MARINE LEOPARD CARGO, Appellant, v. OLIVER J. OLSON & CO., a corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.2d 662 (1960)

OLIVER J. OLSON & CO., a corporation, Appellant, v. LUCKENBACH STEAMSHIP COMPANY, a corporation, Appellee.

MARINE LEOPARD CARGO, Appellant, v. OLIVER J. OLSON & CO., a corporation, et al., Appellees.

No. 15766.

United States Court of Appeals Ninth Circuit.

April 27, 1960.

As Amended June 8, 1960.

COPYRIGHT MATERIAL OMITTED

Brobeck, Phleger & Harrison, Gregory A. Harrison, J. Stewart Harrison, San Francisco, Cal., for appellant Oliver J. Olsen & Co.

McCutchen, Thomas, Matthew, Griffiths & Greene, Russell A. Mackey, Norman B. Richards, Hauerken, St. Clair & Viadro, George H. Hauerken, Cyril Viadro, and McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for appellant Marine Leopard Cargo.

Lillick, Geary, Wheat, Adams & Charles, Joseph J. Geary, Allan E. Charles, Willard G. Gilson, San Francisco, Cal., for appellee Luckenbach Steamship Co.; Burlingham, Hupper & Kennedy, New York City, of counsel.

Before MAGRUDER, HAMLEY, and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

This is an admiralty case involving a collision at sea between the SS Howard Olson and the SS Marine Leopard.

The Leopard is a C-4 freighter 622 feet 10 inches long with a beam of 71 feet 7 inches and 10,662.53 tons gross register. The Olson was a 261-foot lumber schooner of 2,477 gross tons. The Olson left San Pedro, California, in ballast, during the afternoon of May 12, 1956, northbound for Coos Bay, Oregon. The Leopard departed San Francisco on the morning of May 13, laden with 11,766 tons of cargo, bound down the coast to San Pedro.

In the early hours of May 14, 1956, the two vessels, proceeding in opposite directions, approached Point Sur off the California coast. The night was bright and clear, and visibility was unlimited. There was a northwest wind of force two or three, a northwesterly swell, and a moderate sea. Both vessels had the lights required of a steamer navigating at night, and they were properly positioned and burning brightly.

The vessels sighted each other's lights at approximately 1:40 a. m., when they were almost sixteen miles apart, and were in sight continuously thereafter until they collided. The speed of the Leopard was about seventeen knots and that of the Olson about eight knots. In the course of their approach the Leopard turned to the right and the Olson turned to the left. They collided at approximately 2:19 a. m. at a point from three and a half to four and a half miles off Point Sur.

The collision resulted in the sinking and total loss of the Olson, the death of four of its crew members and the injury of others, and damage to the Leopard and its cargo.

Oliver J. Olson & Co., owner of the Olson, filed a libel in rem and in personam against the Leopard and its owner, Luckenbach Steamship Company. Damages in the sum of $450,000 representing the market value of the Olson, $1,268.24 for loss of cash on board, $9,543.91 for loss of ship's inventory, and an unspecified sum for unascertained losses were sought. Luckenbach answered denying liability. Luckenbach also filed a libel in personam against Oliver J. Olson & Co. Damages in the approximate sum of $400,000 were sought as compensation for costs of repairs to the Leopard, expenses during detention, and loss of use and profit. The Olson Company answered denying liability.

Oliver J. Olson & Co. thereafter filed a petition for exoneration from or limitation of liability pursuant to 46 U.S.C.A. §§ 181-189, inclusive. Answers to this petition asking that it be denied were filed by Luckenbach, various cargo claimants, and one personal injury claimant.

These actions were consolidated for trial on the issues of fault and limitation of the Olson Company's liability. After a trial the district court filed an opinion, reported in 152 F.Supp. 197, determining that the collision was caused by the mutual fault of personnel on the two vessels. The court further held that the owner of the Olson was entitled to limit its liability to an amount not exceeding the amount or value of its interest in the Olson and her freight then pending.

Findings of fact, conclusions of law, and an interlocutory decree consistent with the court's written opinion were thereupon entered. It was adjudicated that both vessels were at fault for the collision and that the owner of the Olson was entitled to limitation of liability. The court ordered that the damages thereby incurred be divided between the ship-owners in accordance with the law in admiralty cases of mutual fault. It was directed that the cases be referred to a United States Commissioner to take testimony and report to the court concerning matters of damage. All questions in respect to the division of damages and application of the statutes for limitation of liability were reserved for later decision.

Oliver J. Olson & Co. has appealed from that portion of the interlocutory decree wherein fault was attributed to the Olson, asserting that the collision was the sole fault of the Leopard.¹ Luckenbach has not appealed, and therefore the faults of the Leopard are admitted and are not in issue on this appeal. Marine Leopard Cargo (Cargo), representing various claimants in the limitation of liability proceeding, has appealed from that portion of the decree wherein the liability of the Olson Company was limited.²

The Issue of the Olson's Fault

The trial court determined that the Olson was at fault in two particulars: (1) in attempting to pass the Leopard starboard to starboard; and (2) in maintaining her course and speed when there was risk of collision and failing to take positive and proper action in ample time to avoid collision and the risk of collision.³

The Olson Company contends that its vessel was not at fault in either of these particulars, and that the trial court erred in holding otherwise.

The first of these asserted faults (attempting to pass the Leopard starboard to starboard) brings into question the applicability of Rule 18 of the International Rules for Preventing Collisions at Sea, 33 U.S.C.A. § 146b(a). Under this rule, when two power-driven vessels are meeting end on, or nearly end on, so as to involve the risk of collision, each shall alter her course to starboard so that each may pass on the port side of the other.

Rule 18 provides that vessels are deemed to be meeting end on, or nearly so, at night only if each vessel is in such a position as to see both the sidelights of the other ahead.⁴ As further indicated in this rule, an alteration of course is not required at night in cases where the red light of one vessel is opposed to the red light of the other ahead, for then they will safely pass port to port, and they must so pass. Nor is an alteration of course required where the green light of one vessel is opposed to the green light of the other, for then they will safely pass starboard to starboard, and they must so pass.

As the Leopard approached the Olson she made several course changes to the Leopard's starboard and endeavored to pass the Olson port to port. As the Olson approached the Leopard she made no course changes until the risk of collision became imminent. She then made a course change to her port and endeavored to pass the Leopard starboard to starboard.

Therefore, with regard to the asserted fault of the Olson in attempting to pass the Leopard starboard to starboard, the critical question of fact is whether the Olson saw or should have seen the red light or the red and green lights of the Leopard ahead. If she saw or should have seen the Leopard's red light ahead, the Olson should not have attempted a starboard-to-starboard passing. She should have continued her course and passed port to port. If she saw or should have seen the Leopard's red and green lights ahead, she should have altered her course to starboard and passed port to port.

The trial court resolved this question of fact in favor of the Leopard. Specifically, the court found that the vessels were situated end on, or nearly so, within the meaning of Rule 18, and each was therefore required to alter course to the starboard and pass port to port. Implicit in the finding that the vessels approached end on is the further finding that as the vessels approached each other each saw or should have seen both the red and green sidelights of the other ahead.

The Olson Company challenges this finding of fact, arguing that the evidence required a finding that the Olson saw only the green sidelight of the Leopard ahead. The Olson Company also contends that the trial court erred in excluding opinion testimony bearing upon the question as to which side of the Leopard the Olson should have passed.

This second contention will be dealt with first. The testimony which was excluded was a portion of that of Kenneth E. Kittinger. As second mate of the freighter John B. Waterman which was proceeding south shoreward of the Leopard, he had witnessed the approach of the Olson and the collision of the two vessels. Testifying by deposition, Kittinger described the positions of the Leopard and Olson as he had observed them. He stated that it had appeared to him that the Leopard and Olson were meeting on opposing courses and that the Leopard was slightly to the eastward, "which would make it apparent to me that there would be a starboard-to-starboard passing."

Two questions were then asked of Kittinger designed to elicit his expert opinion as to what alteration of courses the vessels should have made to effectuate a safe passage, and what the circumstances called for with respect to "the duties and obligations" of the Olson and Leopard.⁵ The first such question was objected to, and the objection was sustained, on the ground that Kittinger did not know the courses of the Leopard and Olson and therefore could not possibly determine what course alterations they should have made.

The second of these questions was objected to on the same ground and on the further ground that the question called for a conclusion of law which was for...