City of Long Beach v. American President Lines, 13972.

• Decision Date: 14 June 1955
• Docket Number: No. 13972.,13972.
• Citation: 223 F.2d 853
• Parties: CITY OF LONG BEACH, a municipal corporation, H. Halvorsen, J. A. Jacobsen and Jacobsen & Company, Inc., a corporation, Appellants, v. AMERICAN PRESIDENT LINES, LTD., a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

223 F.2d 853 (1955)

CITY OF LONG BEACH, a municipal corporation, H. Halvorsen, J. A. Jacobsen and Jacobsen & Company, Inc., a corporation, Appellants, v. AMERICAN PRESIDENT LINES, LTD., a corporation, Appellee.

No. 13972.

United States Court of Appeals Ninth Circuit.

June 14, 1955.

Ekdale, Shallenberger & Toner, San Pedro, Cal., and Irving M. Smith, Long Beach, Cal., Arch E. Ekdale, Gordon P. Shallenberger, George E. Toner, San Pedro, Cal., for appellant.

Lillick, Geary & McHose, William A. C. Roethke, Gordon K. Wright, Lawrence D. Bradley, Jr., Los Angeles, Cal., for appellee.

Before POPE, FEE and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

This is an admiralty appeal.

On April 19, 1950, the President Van Buren,¹ a C-3 cargo steam vessel, collided with a finger pier at Forster's shipyard in Los Angeles Harbor, doing consequent damage to the piers of Forster and a small fishing boat and a barge of a fishing company.

Pertinent facts follow. On the date mentioned the President Van Buren was being shifted from Berth 145, Wilmington, Los Angeles Harbor, to the Procter & Gamble dock in Long Beach Harbor. The course of the shift begins in a channel of the west basin of Los Angeles Harbor, proceeds thence southerly to a turning basin, thence through the turning basin into the east basin channel and thence through east basin channel and on beyond to Long Beach. The three sectors of the waters in the course of the ship (the west basin channel, the turning basin and the east basin channel) with which we are concerned together may be roughly described as "U" shaped. The turning basin would be in the bottom of the "U." The area between the inner sides of the "U" is occupied by a tip of Mormon Island.

The ship's master on the day in question was Ralph George Wilson, employed by American President Lines, owner of the Van Buren. Also aboard was one Hans Halvorsen, a harbor pilot employed by Jacobsen & Company, Inc., which concern had a pilotage contract with the City of Long Beach. Other than the harbor pilot who took command of the ship for the passage, all personnel concerned with the movement were regular members of the ship's crew. The movement of the Van Buren was assisted by the tug Pacific Atom, which had its lines tied to the starboard bow of the larger vessel. As the movement proceeded the tug was on the inside of the course formed by the "U" and the Van Buren was on the outside. Coming out of the west basin just before entering the turning basin, the Van Buren had some difficulty in negotiating a narrow neck in the channel running under what is known as the Pacific Electric drawbridge. But it did get through without any mishap. Then the trouble began, and in a few minutes the Van Buren had struck the Forster pier. Only the most superficial damage was done to the Van Buren. The collision was a light one, but the damage of Forster and the fishing company seems to have added up to about $10,000.

The American President Lines, deeming itself liable in rem, paid without suit the damage claims from the collision. In turn, this company herein sought recovery in personam against the City of Long Beach, the Jacobsen Company and Halvorsen for what it has paid. It would hold Long Beach (assuming negligence of Halvorsen) because (it says) Halvorsen was what is known as a compulsory pilot.

The trial court found in favor of American President on all issues and the libelees appeal.

The first big issue is negligence. The ghost of trial de novo in this intermediate appellate court has been laid to rest with finality in McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6. But the appellants say that the findings below were clearly erroneous and they argue that we are in a specially advantageous position to reconsider the evidence because so much of it was by deposition. Three witnesses appeared before the trial court: Captain Wilson of the Van Buren, Captain Halvorsen (harbor pilot) and an expert witness produced by the libelees, an engineer named Sims.

On the day of the collision the elements were at peace — no unusual wind, no rain and apparently calm water.

We have examined and reexamined the evidence on negligence. Captain Wilson thinks that the accident was caused essentially by Halvorsen, the harbor pilot, mismaneuvering the ship. Put in the vernacular, Halvorsen got the ship into a place and position where he shouldn't have put it, with the wrong speed and direction, and thus the accident happened. But as Halvorsen tells it, the course he followed was good seamanship. The trouble, says he, came from the fact that he couldn't get a "full astern" command to the engine room promptly and adequately executed. That may have been due to human failure below or more likely to an excess of water in the one boiler which was operating for this shift.² Undoubtedly too much water in a steam boiler can result in power problems with the engines.

We do not detail all of the evidence. The admission of default in the performance of one's occupation is a rare incident. Everyone almost always rationalizes the blame over to the other fellow. We think there was abundant evidence here for the trial court to find Captain Halvorsen blameless and the fault wholly with Captain Wilson of the Van Buren or his crew. But in sharp contrast was the evidence of Wilson that Captain Halvorsen mishandled the ship as it entered and while it was in the turning basin. Sifting the evidence, we arrive at a place short of an abiding conviction that the trial judge was clearly erroneous in his conclusions on negligence. We do think if we had had the opportunity to see and hear Captain Wilson and Captain Halvorsen we would have had little trouble arriving at a conclusion as to which had overrationalized the experiences of the day. The trial court could take its choice.

Appellant relies heavily herein on the case of City of Los Angeles v. Standard Transp. Co., 9 Cir., 32 F.2d 988. Cursory reading of the case gives some support to the appellant. Closer reading does not. There a harbor pilot was on board. Apparently the employment of the Los Angeles harbor pilot in 1927 was not a compulsory matter. Further, the accident occurred as a result of faulty signals given by the ship to another ship. It is not suggested that the harbor pilot called for improper signals. The crew blew the improper signals. It is not suggested that the harbor pilot blew them. To charge to the master the signals as given instead of to the pilot does not seem amiss. Were it shown that the pilot called for improper signals, the case would be different. Also, doubtless the case is affected by the fact that the employment of the harbor pilot was voluntary on the part of the ship.

Here it was stipulated that Halvorsen started out in charge of the navigation of the Van Buren and was in charge of giving such directions and orders to the tug Pacific Atom as from time to time might be necessary. The lengthy pleadings are to the same effect. The answer of the libelees so far as negligence is concerned dwells upon faulty condition of the ship when the shift was commenced and upon the faulty execution of "Halvorsen's orders." Under the pleadings we do not think it was open to the libelees to contend, as they appear to do on this appeal, that Halvorsen was under Wilson in command or that Wilson partially resumed command.

We come next to a question wholly of law. Can the City of Long Beach be held liable because Halvorsen was a Long Beach harbor pilot? The Long Beach Harbor to which the Van Buren was bound is municipally controlled and maintained. It adjoins the Los Angeles Harbor at Wilmington, out of which the vessel was bound. The shift began in the Los Angeles Harbor and the ship was still in Los Angeles Harbor as it emerged from the turning basin into the east channel and struck the Forster pier.

Long Beach by ordinance requires that a ship be piloted by a harbor pilot of its designation while within the...