Federal Insurance Company v. SS ROYALTON, 15570.

• Decision Date: 03 March 1964
• Docket Number: No. 15570.,15570.
• Citation: 328 F.2d 515
• Parties: FEDERAL INSURANCE COMPANY et al., Libellants-Appellees, v. S.S. ROYALTON, Her Engines, Etc., and Scott Misener Steamships, Ltd., Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

328 F.2d 515 (1964)

FEDERAL INSURANCE COMPANY et al., Libellants-Appellees, v. S.S. ROYALTON, Her Engines, Etc., and Scott Misener Steamships, Ltd., Respondents-Appellants.

No. 15570.

United States Court of Appeals Sixth Circuit.

March 3, 1964.

Lucian Y. Ray, Cleveland, Ohio, McCreary, Hinslea & Ray, Cleveland, Ohio, McMillan, Binch, Stuart, Berry, Dunn, Corrigan & Howland, Toronto, Canada, on brief; F. O. Gerity, Toronto, Canada, of counsel, for appellants.

Leonard J. Matteson, New York City, Dickinson, Wright, McKean & Cudlip, Detroit, Mich., Bigham, Englar, Jones & Houston, New York City, on brief; Fred W. Freeman, Detroit, Mich., and Donald M. Waesche, Jr., New York City, of counsel, for appellees.

Before MILLER, CECIL and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This is an admiralty case involving a collision on Lake Huron between the Canadian vessel, the S. S. Royalton, and a Liberian vessel, the S. S. Monrovia. The Monrovia sank some ten hours after the collision. The District Court order, sought to be reviewed by this appeal, was entered following our decision in this same cause, reported as Federal Insurance Co. v. S. S. Royalton, 312 F.2d 671 (C.A.6, 1963). In reversing the judgment of the District Court, 194 F.Supp. 543 we there held that those in charge of the Royalton were guilty of described navigational faults and had failed to establish that such faults could not have contributed to the collision. Libellants, Federal Insurance Company, et al., as owners and underwriters of the Monrovia's cargo, had brought this action to recover for the loss they sustained as a consequence of the sinking of the Monrovia.

In addition to its denial of any negligence, the Royalton had asserted, in its defense, that if it was guilty of any negligence, such negligence was not a proximate cause of the total loss of the Monrovia's cargo. Its claim in this regard is that the failure of the master of the Monrovia to take steps available to him, to beach his vessel during the ten hours that it remained afloat after the collision was negligence that broke "the chain of causation" and that this negligence was the sole proximate cause of the total loss of the Monrovia's cargo. In view of the District Judge's original finding that the Royalton was free of any fault in the collision, he did not, in his first opinion, pass on this question.

After our reversal of the case, Royalton's counsel made a motion requesting the District Court to make a special finding on the issue of the alleged post-collision negligence of the Monrovia. They asked for an interlocutory decree excluding from any award of damages that part thereof which they claim was sustained as a result of the charged post-collision negligence of the Monrovia. The District Judge denied the motion. We affirm such denial.

There is authority for the proposition that plain and inexcusable failure, on the part of those in charge of a vessel stricken in a collision, to take available steps to prevent further damage, may, under some circumstances, exonerate another vessel, originally at fault, from liability for the additional damage. The Baltimore, 75 U.S. (Wall) 377, 387, 19 L.Ed. 463; The Asbury Park, 147 F. 194 (C.C.A. 2, 1906); The Redwood, 81 F.2d 680 (C.A.9, 1936). A heavy burden, however, is cast upon him who relies upon such rule. As stated in The Algonquin, 70 F.2d 335, 336, 337 (C.A. 2, 1934), "To be relieved of liability they must show an intervening act of negligence so extravagant and unusual, and in such disregard of every rule of prudence, as to be beyond the horizon of ordinary foresight." (Emphasis supplied.) See also The Walter A. Luckenbach, 14 F.2d 100, 103 (C.A.9, 1926), cert. denied 273 U.S. 741, 47 S.Ct. 335, 71 L.Ed. 868.

Proofs had been taken on this issue at the original trial. These disclosed that the collision occurred in a dense fog on Lake Huron. After the collision, the Monrovia veered off and disappeared in the fog. About an hour later, its master and crew came in lifeboats to the Steamship Foy, which was standing by. The master of the Monrovia did not then go aboard the Foy, but with his chief officer and several of the crew left to return to the Monrovia to "get his papers and documents and make a survey of the vessel." (Emphasis supplied.) Sometime thereafter, the Monrovia's master, with his men, returned and went aboard the Foy. He stated to the captain of the Foy that he had made a survey of the Monrovia and that his ship "had quite a hole and was making...