Admiral Towing Company v. Woolen, 16735.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation290 F.2d 641
Docket NumberNo. 16735.,16735.
PartiesADMIRAL TOWING COMPANY, a corporation and Walter B. Martinson, Appellants, v. Theo WOOLEN and Dorothy E. Cone, Appellees.
Decision Date18 April 1961


Lofton L. Tatum, Wood, Matthiessen, Wood & Tatum, Portland, Or., for appellants.

Ewing Sibbett, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., Frank Pozzi, Pozzi & Wilson, William F. White, White, Sutherland & White, Portland, Or., for appellees.

Before STEPHENS and HAMLEY, Circuit Judges, and BOWEN, District Judge.

STEPHENS, Circuit Judge.

Pursuant to 46 U.S.C.A. § 185, Admiral Towing Company, a corporation, and Walter B. Martinson, an individual, petitioned the District Court for a limitation of liability arising out of the disappearance at sea of the tug boat Companion en route from San Francisco to Astoria, Oregon. The court denied the petition. It ruled that Martinson was the de facto, equitable and true owner of the tug although legal title resided in Admiral Towing Company, that Martinson with privity and knowledge had negligently failed to provide the vessel with an adequate crew, a life boat or life raft, or a functioning ship-to-shore radio, and that these omissions rendered the Companion unseaworthy and proximately caused her loss at sea and the deaths of her master, John R. Cone, and her sole crewman, Paul Woolen, who were aboard her.

On appeal, both Admiral Towing Company and Martinson contend that the evidence was insufficient to show negligence or unseaworthiness or to show that such alleged negligence or unseaworthiness proximately caused the loss of the tug or the deaths of Cone or Woolen. In addition, appellant Martinson contends that the District Court lacked jurisdiction to hear his petition to limit liability because he was neither the owner nor the charterer of the vessel. He also argues that if the court had jurisdiction, it erred in concluding upon the evidence that he had privity or knowledge of the inadequacy of the Companion's crew. Appellees are Cone's widow and the administratrix of Woolen's estate.

In September, 1956, Martinson sold the Companion and another tug, the Bulldog, to Louis B. Horne and an associate. Part of the purchase price of both vessels was paid in cash; the balance was represented by two promissory notes given to Martinson by Horne. One of these notes was secured by a mortgage upon the Companion. Horne sailed the Companion from Portland, Oregon, the scene of the sale, to San Francisco, where for some time it plied the waters of the bay. In March, 1957, Horne transferred legal title to Admiral Towing Company, a corporation of which he was president. Several months later, when the promissory notes given in payment of the purchase price of both the Companion and the Bulldog were in default, Martinson and Horne, on behalf of himself (Horne) and Admiral Towing Company, entered into a written agreement providing that Horne would deliver the vessels to Martinson at Astoria, leaving San Francisco within sixteen days of the date of agreement, weather permitting. Upon delivery of the tugs to him, Martinson was to cancel Horne's promissory notes. If Horne did not depart from San Francisco within the time alloted, Martinson reserved the right to cancel the agreement and take other action.

Horne attempted once to fulfill his end of the bargain but the Bulldog sank in the vicinity of Bolinas Bay, and the Companion was brought back to San Francisco. He then advised Martinson that he would be unable to deliver the Companion to Astoria, at least until his funds were replenished. Consequently, in July, 1957, Martinson employed Cone at Portland to bring the Companion north from San Francisco. Cone was to receive $425.00 for the job. He was advanced that sum, supplied with instructions pertinent to his task, and given a letter from Martinson to Horne and Admiral Towing Company reading in full as follows:

"This letter is to authorize John R. Cone to act as my representative and agent in the matter of returning the Companion from San Francisco to Portland, Oregon."

When Cone arrived in San Francisco and showed this letter to Horne, the latter turned the Companion over to him. No other written or oral agreement was thereafter made among the parties. Martinson apparently paid for whatever Cone thought was needed either to ready the Companion for the trip or to sustain her at sea. And during the course of the vessel's preparation Cone was frequently in contact with Martinson through the latter's San Francisco attorney. The Companion was last seen by anyone involved in this litigation moored in San Francisco on the night of July 18, 1957.

Unbeknownst to Martinson, Cone had taken Woolen with him from Portland to act as a deckhand on the intended voyage of the Companion from San Francisco to Astoria. Woolen was seventeen years of age and without experience in deep sea ship operations. Martinson well knew that Cone was going to take on a crewman, but the selection of the man was left entirely to Cone as the vessel's master. Martinson did not know that Cone had hired Woolen until the loss of the Companion had been reported.


Under 46 U.S.C.A. §§ 183, 186, only an owner or charterer of a vessel may petition to limit liability arising from its loss.1 Martinson originally sought in his complaint to place himself within the purview of the statute; in this appeal he claims just the opposite. We think he is estopped from following such a course. In Callanan Road Improvement Co. v. United States, 1953, 345 U.S. 507, 73 S.Ct. 803, 97 L.Ed. 1206, the appellant, by instituting proceedings before the Interstate Commerce Commission, had obtained the transfer to itself of a certificate of convenience and necessity. It then unsuccessfully attempted to win an interpretation of the certificate so that it could engage in towing services. Still perservering, it brought suit alleging that the Commission lacked the power to issue the certificate as it existed at the time the appellant had successfully obtained this transfer. The Supreme Court was unimpressed. It declared that: "* * * the appellant, having invoked the power of the Commission to approve the transfer of the amended certificate to it, is now estopped to deny the Commission's power to issue the certificate in its present form and as it existed prior to the time the appellant sought its transfer. * * * The appellant cannot blow hot and cold and take now a position contrary to that taken in the proceedings it invoked to obtain the Commission's approval. If the appellant then had taken the position it seeks now, the Commission might conceivably have refused its approval of the transfer." 345 U.S. at page 513, 73 S.Ct. at page 806. The same reasoning is applicable here. Had Martinson obtained a favorable judgment below limiting his liability as an owner or charterer of the Companion, he would have been more than satisfied. But now that the District Court has determined that he had knowledge of or was privy to the negligence or unseaworthiness which caused the loss of the Companion, he seeks to repudiate the position he took at the outset, namely, that he was entitled to seek the benefits of the limitation statute. Indeed, as in the Callanan Road Improvement Co. case, if Martinson had assumed the position in the District Court which he now urges before us, the judgment from which he appeals could never have been issued; his petition for limitation would never have been filed.

Martinson's contention that he was neither the owner nor the charterer of the Companion at the time she disappeared may also be disposed of upon other grounds. The Supreme Court has frequently declared that the terms of the Limitation Act should be given a broad construction so as to achieve Congress' purpose: to induce and encourage investment in shipping. Flink v. Paladini, 1929, 279 U.S. 59, 49 S.Ct. 255, 73 L.Ed. 613; American Car & Foundry Co. v. Brassert, 1933, 289 U.S. 261, 263, 53 S. Ct. 618, 77 L.Ed. 1162. In recent cases the term "owner" has accordingly been given a liberal definition, one that coincides with popular notions of the meaning of ownership. In Petition of Colonial Trust Co., D.C.D.Conn.1954, 124 F.Supp. 73, the court ruled that the holder of a lifetime interest in a pleasure craft and the trust company which as trustee held legal title to the vessel were both "owners" within the meaning of § 183. The holder of the life estate not only had equitable title but, significantly, exercised a substantial number of the attributes of ownership. She had full and exclusive possession and control of the craft, and she was responsible for its maintenance and operation. Her dominion over the vessel was such as to qualify her, said the court, as an owner under the statute. Similarly, in Petition of United States, 3 Cir., 1958, 259 F.2d 608, Mathiasen's Tanker Industries, Inc., sought to limit its liability for the loss of a vessel owned by the United States but operated by Mathiasen under a written contract. The contract granted Mathiasen exclusive possession and management of the vessel. The court concluded that Mathiasen was thus both a charterer and an owner pro hac vice.

We are well aware of the significant differences between the present case and the two mentioned above. Here Martinson, through his agent Cone, exercised complete control and dominion over the Companion, but he held no life estate in the lost vessel nor was he operating her under a written contract which approximated a chartering agreement. Nevertheless, these decisions exemplify the desirably broad definition which courts have come to place upon the term "owner."

In American Car & Foundry Co. v. Brassert, supra, the Supreme Court indicated that a mortgagee not in possession was not an owner within the meaning of the statute. And Petition of Colonial Trust Co., supra, and The Severance, 4 Cir., 1945, 152 F.2d 916, ...

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