Frost v. Saluski

• Decision Date: 21 November 1952
• Docket Number: No. 10587.,10587.
• Citation: 199 F.2d 460
• Parties: FROST v. SALUSKI. THE BLUE GODDESS.
• Court: U.S. Court of Appeals — Seventh Circuit

199 F.2d 460 (1952)

FROST v. SALUSKI THE BLUE GODDESS.

No. 10587.

United States Court of Appeals Seventh Circuit.

October 27, 1952.

Rehearing Denied November 21, 1952.

Edward T. Howe, Chicago, Ill. (Howard C. Goldman, Chicago, Ill., of counsel), for appellants.

Donald L. Vetter, Chicago, Ill. (Seago, Pipin, Bradley & Vetter, Chicago, Ill., of counsel), for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This is an action in admiralty by Mary Frost, libelant, against the vessel Blue Goddess, respondent, to recover for damages alleged to have been sustained by the libelant's sailboat, the Mary L, as the result of a collision with the Blue Goddess on October 4, 1948. The District Court, after hearing the case on the oral testimony of the witnesses, and after a stipulation by the parties that the trial judge should act as a commissioner to determine damages, rendered a decree in favor of the libelant for $1,000.00 plus costs. From this decree the respondent, the vessel Blue Goddess, and the claimant, Stanley Saluski, appeal.

The Mary L, a 28 foot sailboat owned by the libelant, and the Blue Goddess, a sailing craft of approximately 60 feet in length owned by the claimant, were, at the time material herein, moored in a harbor connected with Lake Michigan off the foot of Monroe Street, Chicago, Illinois. Both vessels were moored in berths assigned by the Coast Guard. The Mary L was attached to a mooring planted in the harbor by the harbormaster. This was the usual and customary practice in mooring. The Blue Goddess, however, was fastened to a mooring installed by the claimant, Stanley Saluski.

The trial court found, in substance, that on the morning of October 4, 1948, during a strong wind, the Blue Goddess "dragged her mooring and swung into and against the `Mary L'"; that this contact resulted in damage to the rigging of the Mary L, to some of her planking, and to sections of her rail; and that sometime later, between October 4th and October 7th, due to a loosening by the collision of stays supporting the mast, the mast of the Mary L broke and the boat was then swamped and was in a "near sinking condition." The court found further that at the time of the collision the Mary L was moored and that the cause of the collision between the two vessels was the "insufficiency or inadequacy of the mooring of the Blue Goddess."

In this court the claimant argues, first, that there was no collision between the Blue Goddess and the Mary L; second, that, if such a collision did occur, it was not due to any fault in the mooring of the Blue Goddess but was the result of an inevitable accident; and, third, that it was not shown that there was any negligence in the manner in which the Blue Goddess was moored.

In urging that the findings of the trial court should be disregarded the claimant refers to the general rule of admiralty that on an appeal from a decision in an admiralty case it is a trial de novo. However, as this court said in Koehler v. United States, 7 Cir., 187 F.2d 933, 936, the qualification is widely recognized that "the findings of the district court will be accepted by the appellate court unless clearly against the preponderance of the evidence." To the same general effect see Leathem Smith-Putnam Navigation Co. v. Osby, 7 Cir., 79 F.2d 280, 282; The S. S. Bellatrix, 3 Cir., 114 F.2d 1004, 1006; Hodges v. Standard Oil Co. of New Jersey, 4 Cir., 123 F.2d 362, 363; The Paul Dana v. Socony Vacuum Oil Co., Inc., 2 Cir., 165 F.2d 78, 79; Great Lakes Towing Co. v. American S. S. Co., 6 Cir., 165 F.2d 368, 370; Cappelen v. United States, 88 U.S.App.D.C. 11, 185 F.2d 754, 755; Gibbons v. United States, 1 Cir., 186 F.2d 488, 489; Borcich v. Ancich, 9 Cir., 191 F.2d 392, 395.

There was substantial evidence to support the finding of the trial court that the Blue Goddess, in spite of her mooring, was in motion, and that she swung into and against the Mary L and remained in that position until she was removed by members of the Coast Guard. Two disinterested witnesses, Captain Storvak of the yacht Dixonia, which was moored in the same harbor, and Edward Lee Robinson of the Coast Guard, both testified that the Blue Goddess drifted up to and against the Mary L. The boats having thus come together in rough water, damage would naturally result if they were left in that position for any...