Chicago & Western Indiana R. Co. v. Motorship Buko Maru, 73-2123

• Decision Date: 13 December 1974
• Docket Number: No. 73-2123,73-2123
• Citation: 505 F.2d 579
• Parties: CHICAGO AND WESTERN INDIANA RAILROAD COMPANY, a corporation, et al., Plaintiffs-Appellees, v. MOTORSHIP BUKO MARU, her engines, tackle, apparel and furniture, and the Sanko Steamship Co., Ltd., a Japanese corporation, Defendants-Appellants, and TUG JOSEPH H. CALLAN, TUG ARIZONA and the Great Lakes Towing Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 579

505 F.2d 579

CHICAGO AND WESTERN INDIANA RAILROAD COMPANY, a corporation,

et al., Plaintiffs-Appellees,

v.

MOTORSHIP BUKO MARU, her engines, tackle, apparel and furniture, and the Sanko Steamship Co., Ltd., a Japanese

corporation, Defendants-Appellants, and TUG JOSEPH H.

CALLAN, TUG ARIZONA and the Great Lakes Towing Company,

Defendants-Appellees.

No. 73-2123.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1974.

Decided Nov. 4, 1974, Rehearing Denied Dec. 13, 1974.

Robert D. Barnes and Jonathan Dean, Chicago, Ill., for defendants-appellants.

C. Roy Peterson, John W. McMurray, Chicago, Ill., for plaintiffs-appellees.

Before HASTINGS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit judges.

HASTINGS, Senior Circuit Judge.

These actions arose out of a collision on July 13, 1970, between the Japanese Motorship Buko Maru (Ship), owned by Sanko Steamship Co., Ltd. (Sanko), a Japanese corporation, and a single leaf Strauss Bascule Drawbridge owned and operated by the Chicago and Western Indiana Railroad Company (Western Indiana) while the Ship was being assisted up the Calumet River from Lake Michigan to Lake Calumet by two tugs of the Great Lakes Towing Company (Towing Company). Western Indiana was in turn owned by five other railroads each of which owned 20 per cent of the stock of Western Indiana. The railroads brought a civil action within the admiralty and maritime jurisdiction of the district court against the Ship, Sanko, each of the tugs and the Towing Company for damages consisting of the cost of temporary and permanent repairs to the bridge, of constructing a connecting track to other railroad facilities, and of routing rail traffic over the connecting lines. Motions to intervene by three other railroads having rights as tenants to use the bridge under agreements with Western Indiana were continued pending trial of the liability issues.

The Towing Company brought an action under the maritime and admiralty jurisdiction seeking exoneration from liability or, in the alternative, for limitation of liability pursuant to various statutes. The district court ordered the actions of the railroads and the Towing Company consolidated for trial of the liability issues arising out of the collision.

The liability issues were tried to the court, Honorable Thomas R. McMillen, Judge, presiding, between January 3 and 23, 1972, and on March 2, 1972, the court issued a decision exonerating the Towing Company and finding the Ship at fault and responsible in damages to the plaintiff railroads. In re Great Lakes Towing Co., 348 F.Supp. 549 (N.D.Ill.1972).

On June 25, 1973, the petitions to intervene of the tenant railroads were granted and the district court issued a judgment order adopting the March 2, 1972, decision as the court's findings of fact and conclusions of law. It held the Ship and Sanko liable to Western Indiana and the proprietor and tenant railroads for damages in the aggregate amount of $873,826.98, exclusive of interest and costs. The Ship and Sanko appeal from that judgment. We affirm.

Appellants raise the following issues: (1) whether the court's findings with respect to the navigation and seaworthiness of the Ship were clearly erroneous; (2) whether the district court erred in exonerating the tugs and Towing Company from liability; (3) whether the district court's finding of a 75 degree angle of opening of the bridge at the time of the collision was clearly erroneous; and (4) whether the district court erred in failing to apply the Pennsylvania rule to find that Western Indiana was a cause of the collision.

I.

A heading in appellants' brief claims that the findings and conclusions of the district court concerning the seaworthiness and navigation of the Buko Maru were clearly erroneous, yet the text of the brief makes no supporting argument or reference to the record. Rule 28(a)(4) of the Federal Rules of Appellate Procedure, 28 U.S.C., requires that appellant's brief include an argument which 'shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.' Where an appellant fails to comply with this rule, we are not required to search the record for error. Holt v. Sarver, 8 Cir., 442 F.2d 304, 307 (1971). Nevertheless, we find that these findings and conclusions of the district court were amply supported by the evidence.

The district court concluded that the Buko Maru, although suitable for the open sea and wide harbors, 'was not well constructed for traversing a twisting and comparatively narrow waterway,' and that the navigation of the ship was faulty. In re Great Lakes Towing Co., supra, 348 F.Supp. at 552.

The district court reached its conclusion regarding seaworthiness after reviewing the construction and operating mechanisms of the Ship. She was approximately 549 feet long and 74 feet wide and weighed about 17,500 tons as she was loaded at the time of the collision, with a cargo of steel products. The trial court found that 'she was a clumsy ship with a rudder too small to do the job without help from the propellor, and she consequently lost steerage under 3 m.p.h. Although the engine therefore was needed for steerage, it could not run slower than 5-7 m.p.h., too fast for the Calumet River.' In re Great Lakes Towing Co., supra, 348 F.Supp. at 552.

The findings were well supported by the deposition of Great Lakes Captain Melvin Leslie Nobes who had piloted the vessel through the Welland Canal. Captain Nobes detailed the mechanical problems of the Ship and told how, just a week prior to the collision in this case, he had run the vessel aground when he was unable to get a response from the rudder. Glenn V. Dawson, captain of the tug Arizona, testified that he had had difficulty in handling the Buko Maru throughout the trip on the Calumet River prior to the collision because of the performance of the Ship's rudder and engine. The trial court's findings and conclusions concerning the seaworthiness of the Buko Maru were supported by substantial evidence and were not clearly erroneous.

A simple recitation of the uncontested facts about the conduct of the crew of the Ship in its approach to the bridge demonstrates the validity of the trial court's conclusion of the Ship's faulty navigation.

The captain and crew of the Ship were all, Japanese. At Port Huron, Michigan, the Ship took on a Canadian Great Lakes pilot, Harry S. Randall, who was responsible for giving engine and rudder orders to the crew of the Ship. Randall spoke no Japanese, so all commands were made in English. The seaman at the helm, Shimada, was 22 years old, was making his first trip to the Great Lakes, had only sailed as quartermaster for a period of three months, and spoke no English. Third Officer Sakou, who was stationed at the engine telegraph controls and who was responsible for receiving and carrying out all engine orders, was 25 years old, was making his first trip to the Great Lakes, and said, through a Japanese interpreter, that his ability to understand English was 'so and so.'

At the mouth of the Calumet River the Buko Maru was met by the tugs of the Towing Company. The tug Joseph H. Callan was attached by tow line to the bow of the Ship and the tug Arizona to the stern. As the vessels approached the bridge at about midnight the bow tug sounded the required signal for opening the bridge and the bridgetender responded by opening it. Although dark, visibility at the time was clear and there was no noticeable wind or current affecting navigation. At no time prior to the collision was there any attempt by Randall to communicate with the bow tug about the procedure to be followed in going through the bridge draw.

After the Ship was about one-third through the bridge draw Randall ordered the rudder to be put hard to starboard. The right rudder caused the stern of the Ship to move to port, toward the bridge leaf to the left of the Ship. Captain Dawson on the stern tug made three calls to the Ship requesting that the Ship go ahead on a port rudder in order to counteract the swing to port. The Ship did not respond until the third request, but the attempt to correct the swing failed because the propeller was started up before the rudder had been changed from the hard starboard position and the effect was only to accelerate the swing to port. At 12:20 a.m. the port wing of the navigation bridge deck of the ship collided with the bottom chord of the westerly truss of the railroad bridge. The stern port lookout was in the washroom.

These facts make it evident that the district court was not clearly erroneous in finding and concluding that the Ship was guilty of faulty navigation.

II.

Appellants also claim that the trial court erred in exonerating the Towing Company from liability. Appellants contend that if the Ship and Sanko are found liable, then the Joseph H. Callan, the Arizona, and the Towing Company should be required to pay their proportional share of the damages because they were contributing causes to the collision.

Appellants argue that the Towing Company and the tug Arizona are liable for damages under the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), for violation of 46 U.S.C. 673. The Pennsylvania rule imposes upon a vessel, which at the time of a collision, is in violation of a statutory rule intended to prevent collisions, the burden of proving that the violation could not have been a cause of the collision. Title 46, U.S.C. 673, limiting the hours of work of officers and seamen, is applicable only to 'merchant vessels of the United States of more than one hundred tons gross.' The only member of the crew of either tug who had been at work for more than eight hours at the time of the collision was Glenn V. Dawson, Captain of the stern tug, Arizona. The record in this case includes the sworn affidavits of two marine...