Holcomb v. The Adam E. Cornelius
| Decision Date | 13 May 1954 |
| Docket Number | No. 11027.,11027. |
| Citation | 212 F.2d 719 |
| Parties | HOLCOMB v. THE ADAM E. CORNELIUS et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James P. Heffernan, Richards & Coffey, Buffalo, N. Y., Charles B. Quarles, Lines, Spooner & Quarles, Milwaukee, Wis., for appellant.
Harney B. Stover, Stover & Stover, Milwaukee, Wis., John D. Kehoe, Kehoe & Flatley, Green Bay, Wis., for appellee.
Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.
This is an admiralty action for the recovery of damages sustained by libellant as owner of the Dredge Oshkosh and her equipment, occasioned by the alleged negligence of the Steamer Adam E. Cornelius, owned by American Steamship Company, respondent. The case was tried before the court without a jury, at the conclusion of which findings of fact and conclusions of law were filed, upon which an interlocutory decree was entered, adjudging respondent solely liable for the damage resulting from the collision between the Cornelius and the Oshkosh and her equipment. From this adverse decree respondent appeals.
The decree is predicated upon the finding and conclusion as charged by libellant that the Cornelius was negligent in the manner in which she attempted to gain entrance to a boat slip adjacent to which was moored the Oshkosh, with which she collided, causing damage to the latter. Respondent contends that the damage was caused solely by the fault and negligence of those in charge of the Oshkosh in that she was improperly moored, partially within the entranceway to the slip so that the Dredge and her equipment constituted an obstruction to the navigation of the Cornelius. It is asserted by respondent that this alleged improper mooring on the part of the Dredge was in violation of a contract between libellant and C. R. Meyer & Son, the principal contractor, which in substance required libellant to remove its equipment so that coal boats might be free to enter and exit from the boat slip without any waiting on their part. It is also asserted that libellant violated an act of Congress of March 3, 1899, Title 33 U.S.C.A. § 401 et seq., which makes it unlawful to anchor vessels or other craft in navigable channels in such a manner as "to prevent or obstruct the passage of other vessels or craft". 33 U.S.C.A. § 409.
All the points urged by respondent for reversal rest upon the premise that the Dredge was improperly moored at the time of the collision, in violation both of libellant's contractual and statutory obligations. On this factual issue, the court found adversely to respondent's contention. In doing so it stated: "That the fixed position of the Dredge and her pontoons was outside the channel theretofore used by the Cornelius and other vessels in entering the slip; that the location of the Dredge and her equipment was not the proximate cause of the collision and damage; that the proximate cause of the collision and damage was the failure of the Master and crew of the Steamer Cornelius to avoid striking the equipment of the Dredge Oshkosh in turning into the boat slip." Predicated upon this finding, the court concluded that the location of the Oshkosh at and prior to the time of the collision was not improper or in violation of the statute.
Respondent argues that the finding as to the location of the Oshkosh at the time of the collision is contrary to the physical facts and is, therefore, clearly erroneous. This argument is made notwithstanding the fact that there was testimony, if believed, which supports the crucial finding. While a plausible argument is made that the Dredge was moored in an improper location, it must be remembered that the trial court which heard the testimony of many witnesses was in a better position to judge of their credibility and the weight to be attached to their testimony than is a reviewing court.
No good purpose could be served in reviewing the testimony in detail and certainly we are not called upon to judge either of the credibility of the witnesses or the weight to be attached to their testimony. We have examined the testimony and are far from convinced that the finding of the trial court should be rejected on the basis of physical impossibility. Such being the situation, we shall only briefly refer to the facts.
The Cornelius is a bulk freighter measuring 605 × 60 feet, engaged in navigation and commerce on the Great Lakes. Her Master and Captain at the time of the collision in question had been taking the same Steamer into the slip of the Wisconsin Public Service Corporation at Green Bay, Wisconsin, on the average of twenty-five times per year since 1949. The Oshkosh is an oblong scow measuring 90 × 30 feet, without power...
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...the circumstances ought to be, aware of dangers and who then decides to take the chance, constitutes negligence. Holcomb v. The Adam E. Cornelius, 7 Cir., 1954, 212 F.2d 719; The Morristown, 2 Cir., 1925, 9 F.2d 391. Here, Captain Mattisen misjudged the danger to the Barge 416 resulting fro......
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...blame by showing that it was not within her power to have avoided the collision by taking reasonable precautions, Holcomb v. The Adam E. Cornelius, 7 Cir., 212 F.2d 719, Dahlmer v. Bay State Dredging & Contracting Co., 1 Cir., 26 F.2d 603, this burden shifts where it appears that a contribu......
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