THE PRESIDENT MADISON

• Decision Date: 23 August 1937
• Docket Number: No. 8125.,8125.
• Citation: 91 F.2d 835
• Parties: THE PRESIDENT MADISON. AMERICAN MAIL LINE, Limited, v. SKAGIT RIVER NAVIGATION & TRADING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F.2d 835 (1937)

THE PRESIDENT MADISON.

AMERICAN MAIL LINE, Limited, v. SKAGIT RIVER NAVIGATION & TRADING CO. et al.

No. 8125.

Circuit Court of Appeals, Ninth Circuit.

August 23, 1937.

COPYRIGHT MATERIAL OMITTED

Bogle, Bogle & Gates, Lawrence Bogle, Cassius E. Gates, and Edward G. Dobrin, all of Seattle, Wash., for American Mail Line, Limited.

Kerr, McCord & Carey, Stephen V. Carey, and J. L. Collins, all of Seattle, Wash., for Skagit River Navigation & Trading Co.

C. E. H. Maloy, of Seattle, Wash., for Washington Tug & Barge Co., Tugs & Barges, Inc., H. F. Haines, and Petroleum Nav. Co., Inc.

Bayley & Croson and F. B. Fite, Jr., all of Seattle, Wash., for Northland Transp. Co.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal by American Mail Line, Limited, claimant of the steamship President Madison, from interlocutory and final decrees in libels brought against the vessel and her owners by Skagit River Navigation & Trading Company and others, adjudging that respondent American Mail Line is liable to appellees for damage done when the President Madison broke from her moorings in Seattle during a windstorm of unprecedented violence and drifted against appellees' vessels, causing the injuries for which relief is sought. The appeal from the interlocutory decree takes issue with the District Court's finding of fault in the President Madison. The American Mail Line appeals from the final decree on the same ground and also assigns error to the amount of damages awarded the Skagit River Company. All shipowning appellees take cross-appeals from the final decree, asserting error in various amounts awarded.

An admiralty appeal requires us to consider the evidence de novo. This consideration is controlled not only with reference to the burden of proof, but also where, as here, the evidence of fifty-two witnesses, all heard by the District Judge at the trial, required a record of testimony of over one thousand pages, by a rebuttable prima facie presumption that the findings of the trial judge are correct. This presumption, where all these fifty-two witnesses were heard by the trial judge, "has very great weight." The Ernest H. Meyer (C.C.A. 9) 84 F.(2d) 496, 501. However, the existence of the presumption does not relieve us from a careful consideration of all the evidence to determine its weight against the presumption in favor of the lower court's findings. The Ernest H. Meyer, supra (C.C.A.) 84 F.(2d) 496, 501.

The burden of proving absence of fault is upon a vessel which breaks from her moorings and drifts on and collides with moored vessels.

"The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented." The Louisiana, 3 Wall.(70 U.S.) 164, 173, 18 L.Ed. 85; The Buffalo (C.C.A.) 56 F. (2d) 738, 739 (and cases cited).

On October 21, 1934, the President Madison, out of commission, was moored to Pier 41, Port of Seattle. This pier is 2,505 feet in length, running south from the land into Puget Sound. Lying 347 feet to the easterly was a parallel pier, No. 40. The vessels with which the drifting President Madison collided were moored to these piers and lay to the northerly of the latter.

The President Madison had been permanently moored since the preceding August to the east side of Pier 41. She was headed offshore, with her bow about 100 feet inside the south end of the pier. The vessel was 535 feet long, 72 feet beam. Her draft was 14 feet forward and 24 feet aft. Her tonnage was 14,187 tons. At the time in question she was light. The double bottoms were full of salt and fresh water weighing 1,610 tons and there were 140 tons of fuel oil on board. The District Court found that the vessel's metacentric height was very close to zero. At 12:40 p. m., approximately the time she broke from her moorings, the vessel's stem was 43 feet above the water and more than 31 feet above the pier. The total height of the sun deck above the pier was 52.9 feet. Thus she presented a broad surface to winds off the starboard bow, and there were no buildings or other obstructions on Pier 41 which would mitigate the force of such winds.

On October 21, 1934, a windstorm of unprecedented proportions struck the Pacific Northwest. Weather reports, local and state, issued the preceding evening, gave no hint of the force of the gale which commenced about 8 o'clock in the morning. Official records taken by anemometer at Boeing Field show the following average velocities: From 8 to 9 a. m., 12 miles per hour; from 9 to 10 a. m., 19 miles; from 10 to 11 a.m., 29 miles; from 11 to 12, 30 miles; from 12 to 1 p. m., 35 miles; from 1 to 2 p. m., 34 miles. Also registered at Boeing Field, by Dines pressure anemograph, were the maximum single gust velocities during each hour. There were: At 8:47 a m., 27 miles per hour; at 9:43, 38 miles; at 10:45, 55 miles; at 11:54, 65 miles; at 12:20 70 miles; at 1:15, 69 miles; at 2:56, 69 miles.

The official weather station on top of the Exchange Building recorded the following average hourly velocities for October 21: 8 to 9 a. m., 19 miles per hour; 9 to 10, 26; 10 to 11, 41; 11 to 12, 43; 12 to 1, 50; 1 to 2, 49. The anemometer on the Exchange Building also recorded maximum velocities based on the fastest five-minute period during each hour. These were: 9:43 a. m., 37 miles per hour; at 10:48, 46; at 11:42, 53; at 12:42, 56; at 1:39, 54; at 2:36, 59.

That the storm was unprecedented is shown by the meteorological records. The highest five-minute velocity during the preceding 41 years was 53 miles per hour in December, 1924.

The Exchange Building anemometer recorded the wind as southeast until 12 noon, then shifting to south until 2 p. m. At Boeing Field, nearby, the direction was recorded as southeast from 7 to 8 a. m.; south-southeast from 8 to 10; south from 10 to 11, and south-southwest from 11 to 2.

On the evening of October 20th, the local forecast for Seattle predicted "southerly winds" for the following day. The district forecast for Oregon and Washington included "fresh southerly winds offshore, strong at times." A "strong wind" is one between 25 and 38 miles per hour.

At 7 a. m. on the morning of the 21st, the district forecast at San Francisco wired the Seattle Weather Bureau that a "whole gale" was in the offing. A "whole gale" is a wind from 55 to 75 miles per hour. Shortly thereafter, the whole gale storm warnings were displayed on top of the Exchange Building, at the Seattle Yacht Club, and on the north shore of Lake Union. A "whole gale warning" consists of two flags, flown one above the other, each eight feet square, red with a black center. In addition to displaying the warnings, the weather office made attempts to reach many steamship lines, including appellant, by telephone; but, the day being Sunday, no one was reached at appellant's office.

The tide, on the morning of October 21st, was rising between 9:54 a. m. and 3:17 p. m. Its range was approximately eight feet.

At approximately 1 p. m. the President Madison, under pressure of the high winds, broke from her moorings. The forward spring and breast lines, practically simultaneously, pulled out portions of the pier, and the vessel's head swung away from Pier 41, having now only the two bow and breast lines to hold her bow in. These lines snapped and the bow swung over towards Pier 40, 347 feet to the east of Pier 41. Next, the after spring and breast lines tore out portions of the pier, leaving only the three stern and breast lines intact. Two of these then parted and the third unwove from the bitts on the ship.

The bow of the President Madison then swung over and hit Pier 40; and the wind forced the vessel northward in the slip, her bow scraping Pier 40 and her stern Pier 41. Moored to Piers 40 and 41, landward of the President Madison's mooring place, were the Harvester, owned by appellee Skagit River Navigation & Trading Company; the Aleutian Native, belonging to appellee Petroleum Navigation Company, Inc.; the North Haven, of appellee Northland Transportation Company; and several tugs and barges owned by appellee Washington Tug & Barge Company. In her journey up the slip, the President Madison collided with some of these vessels, forcing them against others, and finally, after about 45 minutes from the time of breaking loose, came to rest near the north end of the slip.

The Port of Seattle, jointly libeled with the President Madison on a charge of maintaining a pier of insufficient strength for her moorings, was exonerated by the interlocutory decree. There is no assignment by appellant that this exoneration was error. None of the litigants appealed from this holding of the decree.

The appellees owning the vessels injured by the President Madison claim appellant has failed in its burden of proof that the collisions were without her fault. Specifically they claim that the President Madison has not —

(1) Maintained her burden of proof that her moorings were sufficient and properly handled for even the usual heavy winds of that locality;

(2) Maintained her burden of proof that her master, in her charge as watchman, constituted a sufficient manning of the vessel or made sufficient observations of the weather conditions for a proper care of the ship, high above the pier, and hence was unaware that added precautions were necessary for her safety;

(3) Maintained her burden of proof that additional moorings were unnecessary;

(4) Maintained her burden of proof that it was unnecessary to drop her anchors before or after she broke away from the pier, or that the anchors would not have held her on the bottom of the waters between the piers.

The President Madison has maintained her burden of proof that she...