Borcich v. Ancich

• Decision Date: 16 August 1951
• Docket Number: No. 12761.,12761.
• Citation: 191 F.2d 392
• Parties: BORCICH et al. v. ANCICH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F.2d 392 (1951)

BORCICH et al. v. ANCICH et al.

No. 12761.

United States Court of Appeals Ninth Circuit.

August 16, 1951.

Tripp & Callaway, F. V. Lopardo, Los Angeles, Cal., for appellant.

David A. Fall, Ekdale & Shallenberger and Gordon P. Shallenberger, San Pedro, Cal., Lillick, Geary & McHose, William A. C. Roethke, Lawrence D. Bradley, Jr., Los Angeles, Cal., for appellee.

Before BONE, ORR and POPE, Circuit Judges.

BONE, Circuit Judge.

This action in admiralty grew out of a collision in a dense fog on the morning of November 30, 1948 between two fishing vessels, the oil-screw Marsha Ann and the oil-screw Bear. The collision occurred just outside the breakwater at the entrance to San Pedro Bay in California.

The original libel was filed by seven of the crew members of the Bear against the Marsha Ann and the owners thereof for wages and maintenance. An intervening libel was filed by George Korgan and Sam Bilas, as owners of the Bear, for collision damages and by the two remaining crew members of the Bear for wages and maintenance.

The manner in which the collision occurred is in dispute. The Bear is a wooden vessel 65 feet in length, built in 1917. The Marsha Ann is a somewhat larger vessel being 97 feet in length and equipped with radar.

According to the testimony of the appellees the Bear left the vicinity of Oceanside, California at 5:30 A.M. bound for San Pedro Bay, some 55 miles away, with a cargo of fish caught during the night. About 9:30 A. M. Korgan, who was in charge of the Bear changed the watch, turned the wheel over to Nick Milosevich and went to sleep. At this time the weather was clear. Milosevich encountered fog about 10:30 A.M. and reduced to half speed. The fog became thicker as the Bear progressed and its speed was further reduced until just prior to the collision it was alternately stopping and starting and proceeding at about one and one-half knots per hour. Several members of the crew were on deck acting as lookouts though apparently no one was stationed in the bow. Visibility was about 60 feet. A member of the crew was sounding the fog whistle four or five times a minute and in addition answering the whistles of other vessels. The Marsha Ann was first sighted 40 or 50 feet off the starboard bow proceeding toward the Bear at a right angle. Its speed was estimated by crew members of the Bear at various speeds from two to six miles per hour and several testified that a bow wave was visible. Milosevich reversed the engines of the Bear, but, in spite of this action, the Bear still had a slight forward movement at the time of collision. The Marsha Ann struck the Bear a direct broadside blow approximately amidships.

The crew members of the Marsha Ann give a different version of the collision. Their testimony is that the Marsha Ann, having unloaded a cargo of fish early that morning was proceeding outward through San Pedro Bay toward the fishing grounds. In the middle of the Bay it encountered fog and the radar equipment was turned on. Captain Borcich was at the wheel, a crew member was stationed in the bow and Mr. Zankich, the chief engineer, was in the radar room reading the radar screen and giving continual reports to Captain Borcich.

When the Marsha Ann was abeam of the breakwater at the entrance to San Pedro Bay, Zankich reported one vessel one to two points off the starboard bow and two vessels 45 degrees to port — one of them erratic in its direction. Captain Borcich immediately stopped the engine and the Marsha Ann drifted for five or six minutes. The radar operator continued to observe the three boats until they passed off the radar screen into the blind spot (that area within 200 yards of the Marsha Ann in which the radar did not function). Captain Borcich was sounding the fog whistle. The Bear was first sighted about twenty-five feet away approaching the bow of the Marsha Ann at a 45 degree angle and proceeding at a speed of about seven miles an hour. Captain Borcich sounded four blasts on the whistle to apprise the Bear of the danger. When the Bear was about 15 feet from the Marsha Ann it turned hard to port and the stern of the Bear swung around and collided with the stem of the Marsha Ann. At the time of the collision the Marsha Ann was virtually dead in the water.¹

The only damage to the Marsha Ann was a slight damage to the stem but the Bear suffered substantial damage and began to fill with water. It was secured to the Marsha Ann and towed in. Most of its cargo of fish was saved. The Bear was in the process of repair until February 15, 1949 at which time it was returned to the owners.

In this action the owners of the Bear seek to recover for necessary repairs, for surveyor's fees and for loss of the use of the Bear for the time it was being repaired. The nine crew members of the Bear seek to recover their lost earnings and maintenance. The crew members were employed for the sardine season on the lay plan, whereby the crew received 68% of the proceeds — to be divided equally, and the remaining 32% went to the vessel and to the net.

The trial court found substantially as follows: That the Bear was manned by a competent crew, was maintaining a proper lookout and in all other respects being properly navigated; that the Marsha Ann picked up the Bear on its radar screen some minutes before the collision but took no steps to avoid the collision by reversing her engines or coming to a complete stop; that the speed of the Marsha Ann was immoderate under the circumstances. The court further found that these faults of the Marsha Ann, especially her excessive speed, were the direct and sole cause of the collision; that the additional signals given by the Bear, even if not required, did not contribute to the happening of the collision.

On the matter of damages to the Bear the court found that as a result of the collision the reasonable expenditures incurred by the owners of the Bear were $17,770.67 for repairs and $507.94 for surveyor's fees; that 90 frames of the Bear were in such condition that they would have had to be replaced regardless of the collision. The court deducted the cost of labor and material for replacing these frames and awarded $14,678.61 to the intervening appellees for damages to the vessel.

The court found that 38 days was a reasonable time for repairing the Bear and that the total catch during that period would have been 270 tons of fish of a value of $13,500. He awarded to the owners of the Bear 32% of this figure ($4,320) for loss of use of the Bear. The other 68% ($9,180) was awarded to the nine crew members and the one working owner, George Korgan, in equal shares of $918 each for loss of earnings during this period.²

Appellants assign as error virtually every finding made by the trial court on the issue of negligence. It is strenuously argued that the collision was caused by the negligence of the Bear and that the Marsha Ann was not at fault. It is not contended by appellants that they are entitled to de novo review in this court but they do contend that the uncontroverted evidence and the testimony of appellees' own witnesses show the trial court's findings to be erroneous. Among the matters which appellants stress are the following: The testimony of appellees' witnesses shows that the Bear was traveling at an excessive speed, not sounding proper fog signals and failing to maintain a proper lookout; that their testimony shows that the Bear could not stop in one-half its length as required by the International Rules, that the wound in the guard rail of the Bear corroborates appellants' version of the collision; had the collision occurred in the manner and with the force claimed by appellees the Bear would have been cut in half. It is also claimed that the trial judge's reasoning in arriving at his decision was erroneous.

It would serve no useful purpose and would unduly lengthen this opinion to discuss the evidence relating to the above noted contentions. We have examined this evidence with care and it is our view that it does not sustain appellants' arguments. The testimony of appellees' witnesses indicates nothing more to us than these witnesses, who had little knowledge of English, were confused. Any inconsistency in their testimony is a matter of credibility to be weighed and determined by the trier of the facts.

The claim by appellants that the nature of the wound in the Bear indicates the manner in which the collision occurred is an assumption unsupported by any expert testimony. It was but one factor of many considered by the trial court in arriving at its decision.

The trial court's findings are supported by substantial evidence. The evidence is conflicting, each of the parties contending that their vessel was virtually dead in the water when the collision occurred. On the record before us we must recognize and give persuasive weight to the superior opportunity of the trial court to observe the demeanor of the witnesses, judge their credibility and to draw just and fair conclusions from the sum of the evidence they tendered. Findings based on oral testimony should not be set aside in the absence of exceptional circumstances not present in this case. Viewing the record as a whole we cannot say that an injustice has been done. Blake v. W. R. Chamberlin & Co., 9 Cir., 176 F.2d 511; United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.

Appellants contend that as the Marsha Ann was to the starboard of the Bear, the Bear was the burdened vessel under Article 19 of the International Rules³ and had the duty to keep out of the way. We agree with the conclusion of the trial court that this rule does not apply under the circumstances of this case. The visibility was at most 60 feet and there is no evidence that the Bear was aware there was a vessel to her starboard. This rule presupposes two vessels which are in sight of each other and can continually check on each other's position.⁴

Damages

We...