Matheson v. Norfolk & North America Steam Shipping Co.

• Decision Date: 22 October 1934
• Docket Number: No. 7438.,7438.
• Citation: 73 F.2d 177
• Parties: MATHESON et al. v. NORFOLK & NORTH AMERICA STEAM SHIPPING CO., Limited, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 177 (1934)

MATHESON et al. v. NORFOLK & NORTH AMERICA STEAM SHIPPING CO., Limited, et al.

No. 7438.

Circuit Court of Appeals, Ninth Circuit.

October 22, 1934.

R. G. Wright, H. B. Jones, Robert Bronson, and Wright, Jones & Bronson, all of Seattle, Wash., for appellants.

Erskine Wood and Wood, Montague, Matthiessen & Rankin, all of Portland, Or., for appellee Norfolk & N. A. Steam Shipping Co.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

This is an appeal from a decree in admiralty in an action whereby libelant/appellee, the Norfolk & North America Steam Shipping Company, Limited, owner of the British motorship Pacific Commerce, a steel steamer 420 feet long, 54 feet in beam, and 25 feet in depth, sought to recover from appellant Matheson, as pilot, damages alleged to have resulted from the grounding of said vessel on Desdemona Sands, opposite the Port of Astoria, Or., on October 29, 1931, while Matheson was in charge of the navigation of the vessel as pilot.

The Hartford Accident & Indemnity Company is involved in the proceeding only as surety for appellant Matheson.

Matheson impleaded the Port of Astoria, a municipal corporation, under General Admiralty Rule No. 56 (28 USCA § 723), claiming said port to be primarily responsible for any damage which was occasioned. The Port of Astoria was exonerated by the decree of the court below, and, by stipulation of the parties, it has been eliminated from this appeal, and the decree, in so far as it affects such party, is not sought to be disturbed.

The libel alleged that Matheson was a licensed Columbia river pilot and a member of the Columbia River Pilots' Association, and held himself out as one able and skilled in the piloting of vessels on the Columbia river; that on October 29, 1931, appellee employed Matheson as pilot on its vessel the Pacific Commerce and while in charge of the navigation of said vessel Matheson so maneuvered and navigated her that she grounded upon a sand bank in the Columbia river at Astoria, Or., doing considerable damage to the vessel; that the causes and circumstances of the grounding were as follows:

"The said respondent Matheson, while in charge of said vessel and her navigation, attempted to bring her alongside and make her fast to Astoria Port Dock Pier No. 1, but so misjudged the state of the tide and the currents and eddies thereby set up around said dock, that after the forward spring line was made fast, the tide, striking the vessel on her port quarter, set the stern out from the dock before a stern line could be made fast; that thereupon said respondent ordered the spring line let go, intending to turn the vessel around on a port helm and come up stream to the dock with the vessel's starboard side thereto so that she would not be set out from the dock as had just happened; that said respondent, in navigating said vessel in his attempt to turn her around on a port helm, ran her aground on a bar or shoal, the port side of the vessel grounding on the shoal; that the navigable channel at this place is more than a quarter of a mile wide; that as a result of said grounding, the ship's plates were bent and dented and she was otherwise damaged, and had to be repaired, and also had to employ towboats to come to her assistance, and libelant was thereby damaged in the sum of $9,000.00; that said damage was all occasioned by the negligence of the respondent, and especially respondent was negligent and careless in the following particulars, to-wit:

"1. In attempting to dock the vessel head down stream in the then state of the tide and currents;

"2. In the manner in which he attempted to turn the vessel around after leaving the dock;

"3. In misjudging the strength and effect of the tide and current that he would encounter in turning the vessel around in the manner he attempted;

"4. In misjudging the distance between the dock and the shoal and the width of the navigable water;

"5. In failing to order one or both anchors dropped to keep said vessel from going aground;

"6. In not backing away from the dock when the spring line was cast off, instead of going ahead, and in not turning the vessel around by means of so backing her out instead of in the manner he attempted;

"7. In grounding the vessel upon said shoal as alleged;

"8. And all of said acts of negligence caused or contributed to the said stranding and damage."

The court found and decreed that Matheson was negligent in navigating the ship, as follows:

"In failing to keep the motor-ship in the channel of the river;

"In misjudging the location and extent of the shoal on the north bank of the river;

"In misjudging the distance between the dock and the shoal;

"In grounding the vessel upon said shoal;

"In failing to order one or both anchors dropped to keep said vessel from going aground."

The court held that "libelant is entitled to recover of and from the respondent such damages as it incurred in employing towboats and such incidentals as were necessary to pull the motor-ship off the bar of the shoal, including the cost of employing towboats to come from Portland to its assistance," but is not entitled to recover for damages to the ship's plates. The amount of expenses and loss has been reached by agreement of the parties as $1,169.11 and is not in dispute on this appeal.

The court also made findings of facts as follows:

"That shortly prior to said stranding the said pilot had attempted to dock the said vessel at the Port of Astoria dock in the Columbia River, but failing to do so, due to the then state of the tide, he attempted to turn the vessel around in the channel by going ahead on a port helm with the intention of bringing the vessel back again to the dock, starboard side to, and head up stream. The channel at this point between the dock and the shoal on which the ship stranded is about 1800 to 2000 feet wide, and is of ample width to turn ships of the size and character of the `Pacific Commerce' with safety, and a great many ships have been turned there in safety.

"That the weather was clear, it was broad daylight, there was no wind sufficient to affect the movement of the vessel, and the tide was commencing to ebb. The Port of Astoria dock is on the south side of the channel. Desdemona Sands are on the north side of the channel. The ebb tide sets in a westerly direction, down stream, or a northwesterly direction from the dock toward the Sands, according to the varying stages of the tide, but there were no tidal or any other conditions existing to...