Compagnie De Nav. Francaise v. Burley

• Citation: 183 F. 166
• Decision Date: 03 October 1910
• Docket Number: 604.
• Parties: COMPAGNIE DE NAVIGATION FRANCAISE v. BURLEY et al.
• Court: U.S. District Court — Western District of Washington

183 F. 166

COMPAGNIE DE NAVIGATION FRANCAISE v. BURLEY et al.

No. 604.

United States District Court, W.D. Washington.

October 3, 1910

Hughes McMicken, Dovell & Ramsey, for libelant.

James M. Ashton, for respondents.

DONWORTH District Judge.

On the evening of November 9, 1904, during a heavy fog the French bark Admiral Cecille, lying at anchor in Tacoma Harbor was struck by the steamer Multnomah which had just left her berth at Tacoma bound for Seattle on one of her regular trips. The Multnomah suffered damage but the bark was uninjured. On a libel filed in this court by the owner of the Multnomah against the bark, Judge Hanford decided both vessels to be at fault, the Multnomah in failing to steer with proper care and in failing in other respects to exercise the vigilance demanded by the existing circumstances, and the bark by reason of the fact that she was anchored without a written permit from the harbor master, in a location where such anchoring was prohibited by city ordinance. The damages were accordingly divided, and a decree for one-half damages and one-half costs in favor of the owner of the Multnomah was entered against the bark. The Admiral Cecille (D.C.) 134 F 673. In holding the bark at fault, Judge Hanford said (134 Fed 676):

'The evidence introduced in behalf of the respondent locates the bark at the time of the collision approximately 400 feet from the place indicated by 'H. 2' upon libelant's Exhibit 1. Both locations are unnecessarily near to the track of vessels entering and leaving the waterway, and this is so because there is in the harbor of Tacoma an abundance of room for anchorage at a safe distance from the track of vessels coming into and leaving the wharves and docks; and the circumstances above narrated do not, in my opinion, afford a reasonable excuse for the action of the tugboat manager in anchoring the bark within the prohibited zone. He knowingly violated a reasonable regulation prescribed by lawful authority, and for the consequences of his act while in the service of the bark as a local pilot the bark is liable to respond in damages. The Robert Rickmers (D.C.) 131 F. 638. There is no probability whatever that the accident would have happened if the ordinance had not been violated by anchoring the bark in that part of the harbor which I have referred to as the prohibited zone. It is true, that if a permit had been applied for, it might have been granted by the harbor master but it is not fair to assume that he would have granted such an application, and it is sufficient for the purpose of this case to find that the permit was not obtained, and without it the bark was prohibited from anchoring at the place where she was anchored. It is my opinion that the mere failure of the harbor master to exert his authority to enforce the city ordinance is not the equivalent of a permit in writing, and does not condone the offense. * * * In the case of The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148, the Supreme Court declared the law as follows: 'But when, as in this case a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributing cause of the disaster. In such cases the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.' This was repeated and declared to be the settled rule in collision cases by the Supreme Court in Richelieu Nav. Co. v. Boston Ins. Co., 136 U.S. 422, 10 Sup.Ct. 934, 34 L.Ed. 398. The same rule was again reiterated in the case of Belden v. Chase, 150 U.S. 699, 14 Sup.Ct. 264, 37 L.Ed. 1218. And in the case of the United States v. St. Louis & Miss. Transportation Co., 184 U.S. 255, 22 Sup.Ct. 350, 46 L.Ed. 520, the Supreme Court held that local harbor regulations are necessary aids to commerce, and must be obeyed, like other statutory requirements, and that, where a vessel 'anchors in an unlawful position, or fails to observe the statutory requirements and such other precautions as good seamanship would suggest, it must suffer the consequences attending a violation of the law.' In this the court quotes with approval Spencer on Marine Collisions, Secs. 99, 106.'

Capt. Burley, one of the respondents here, was the tug boat manager and pilot under whose guidance the bark was towed and anchored on the occasion in question. The present libel, filed by the owner of the bark charges the respondents (who were copartners, jointly engaged in the business of harbor towage and pilotage) with violation of duty in negligently and wrongfully causing the bark to be anchored in the fairway directly in the course of vessels bound in and out of Tacoma Harbor and at a point forbidden to be used for anchorage of vessels by the city ordinance, alleges the proceedings in the former suit, and seeks to recover from respondents the amount paid by libelant in discharge of the decree in that cause, together with certain sums expended for proctors' fees and costs in defending the same, and also damages for the detention of the bark caused by the litigation.

During the progress of the former suit the present libelant served notice upon the present respondents of the pendency thereof and the nature of the claim asserted by the owner of the Multnomah, and called upon respondents to make defense, stating that the libelant would look to them for reimbursement of any moneys which it should be compelled to pay in consequence of the collision. Respondents took no action in response to this notice. Libelant now asks that the decision in the former case be held to be res judicata against respondents on the ground that where a person is responsible over to another for whatever may be justly recovered in a suit against such other, and he is duly notified of the pendency of the suit, requested to defend and given an opportunity to do so, the judgment therein, in the absence of fraud or collusion, will be conclusive in a subsequent suit against him for indemnity. Under the authorities this contention must be sustained. Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427; Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 Sup.Ct. 564, 40 L.Ed. 712. By stipulation of the parties, a great part of the evidence taken in the former case has been made a part of the record in this case, and there is also additional evidence not offered before. Aside from the binding effect of the former decision, I fully concur in the above-quoted conclusions expressed by Judge Hanford, both as to the law and facts, so far as the issues in the two cases are the same.

The question of fact which is most seriously contested on the present hearing is whether at the time of the collision the bark was in the same place at which she dropped anchor by order of Capt. Burley the day before. On this point Judge Hanford found (134 F. 674):

'For the convenience of shipping, the city of Tacoma provided several buoys in the harbor for mooring ocean-going vessels, and the ordinance referred to contains a section authorizing ships to moor at said buoys by permission of the harbor master and upon payment of a fee of $10 for 15 days' use; one of said buoys, commonly called the 'goverment buoy' being situated within the zone in which vessels are prohibited from anchoring without a permit, and which, for convenience, will be hereafter referred to as the 'prohibited zone.' On the 9th day of November, 1904, the bark, having completed the taking on board of her cargo from her berth in the waterway was towed by a local

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