Matson Nav. Co. v. Pope & Talbot

• Decision Date: 15 June 1945
• Docket Number: No. 10606.,10606.
• Citation: 149 F.2d 295
• Parties: MATSON NAV. CO. v. POPE & TALBOT, Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

149 F.2d 295 (1945)

MATSON NAV. CO. v. POPE & TALBOT, Inc.

No. 10606.

Circuit Court of Appeals, Ninth Circuit.

May 11, 1945.

As Modified May 19, 1945.

Rehearing Denied June 15, 1945.

Brobeck, Phleger & Harrison and Lyman Henry, all of San Francisco, Cal., for appellant.

Lillick, Geary, Olson & Charles, Ira S. Lillick, and Allan E. Charles, all of San Francisco, Cal. (Kent A. Sawyer, of San Francisco, Cal., of counsel), for appellee.

Before GARRECHT, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

A libel to recover damages arising out of a collision between the SS Maui and the SS Absaroka on San Francisco Bay was filed by the Matson Navigation Company, owner of the Maui, against the Absaroka and her owner, Pope & Talbot, Inc. The latter corporation in turn filed a libel against the Maui and the Matson Company. Answers and cross-libels were filed by both corporations. The suits were consolidated for all further proceedings, including trial. The district court adjudged the collision and resulting losses solely the fault of the Maui, decreed the recovery of damages by Pope & Talbot, Inc., and ordered a reference for proof of the Absaroka's damages. The Matson Company appeals from the decision.

The Maui and the Absaroka were both steam cargo vessels. During the early morning of November 2, 1941, the former was proceeding from Crockett in a southerly direction parallel to Treasure Island toward Hunters Point. The Absaroka was outbound to sea from the Oakland Estuary and was proceeding in a westerly direction off Yerba Buena Island. The two vessels collided, when it was dark but clear, near the span between D and E caissons of the San Francisco-Oakland Bay Bridge. The owner of each ship claims the other solely responsible.

Before the collision the Maui, her witnesses declared, was being steered by the green lights in the center of the span between D and E caissons of the Bay Bridge, holding those lights close on her port bow. She sighted ahead of her a tug, the Standard Oil Despatch No. 7, and its tow. She blew a two blast signal to the tug, showing an intention to pass the tug on its port side, and altered her course slightly to port. Thereafter, the Maui and the tug and tow were on parallel courses, with the latter to the right of the former. A two blast signal from the tug, coming a minute or more later, was assumed by the Maui to be in reply to her signal. In fact, the tug's signal was intended as an invitation to the Absaroka for a starboard to starboard passage and was answered by two blasts from the Absaroka.

Shortly after exchanging signals with the tug, the Maui and the Absaroka sighted each other when the two vessels were over a mile and more than five minutes apart. The Maui was starboard of the Absaroka, and the projected course lines of the two vessels crossed. Therefore, as is admitted by all involved, under the rules of the road the Absaroka was the burdened vessel with the duty of keeping clear of the Maui, and the Maui was the privileged vessel with the duty of holding her course and speed.¹ The Maui was proceeding at twelve knots an hour, half speed, and the Absaroka at approximately nine knots, full speed. A one-blast signal by the Maui was immediately answered by one blast from the Absaroka. (There is some confusion as to the blasts exchanged but no indication that either vessel varied from the agreement reached by the one-blast signals.)

After the exchange of signals the Maui maintained her course and speed for several minutes in accordance with her duty under Article 21 of the Inland Rules, 33 U.S.C.A. § 206.² For a period of three and a half minutes the officers on the Maui observed no attempt on the part of the Absaroka to change course or speed in order to pass under the stern of the Maui according to the rules of the road and to their exchange of signals. About two or two and a half minutes before the impact, when a collision seemed imminent to him, the Maui's captain ordered certain maneuvers of his ship in the hope of avoiding the collision; at the same time the danger signal of four short blasts was blown followed by one blast. The maneuvers were begun just as the Maui was passing the tug or shortly thereafter. The tug altered its course to the right away from the scene of danger.

The Absaroka still had headway at the time of the impact. According to the Maui's witnesses she maintained her speed of full ahead, nine knots, until a minute and a half before the collision. She struck the forward port side of the Maui at an angle from ahead of about 70° or 80°.

According to the Absaroka's version of the facts she was approaching the D-E span of the Bay Bridge from the east keeping the green lights in the center of the span a little open on her port bow. She exchanged two-blast signals with the tug Despatch No. 7, thereby agreeing on a starboard to starboard passage. Thereafter and about three minutes before the collision, the Absaroka sighted the Maui, and one blast signals were exchanged. The Maui appeared to be on a course crossing that of the tug. Within a minute or two after the one blast signals the Absaroka stopped her engines. Soon, the Maui altered her course to the left and blew the danger signal of four blasts. About a half minute before the collision the Absaroka went full astern on her engines and hard right on her rudder; she also blew the danger signal to the Despatch No. 7. The appellee's brief explains: "As the vessels approached more closely the Maui appeared to be caught in a tideway in such manner that her port side was swept down on the stem of the Absaroka." The Absaroka's captain admitted that at the time of the collision his ship had some headway while the Maui had none but insisted the Maui "swept down in a sidewise motion * * *. She swooped on the Absaroka at a right angle."

The Absaroka contends that the collision took place near pier E of the Bay Bridge, that is, the pier to the Maui's left as she headed south. The Maui declares that the collision occurred almost under the green lights in the center of the D-E span, the Maui having passed only partly under the bridge.

The district court after making findings of fact concluded that the Maui was at fault for excessive speed in the circumstances, for crossing ahead of the tug in violation of her duty as burdened vessel under Article 19, Inland Rules, 33 U.S.C.A. § 204, or for passing the tug without the assurance that an understanding had been reached in violation of Article 18, Rule VIII, 33 U.S.C.A. § 203,³ for altering her course to the left in violation of Article 21, Inland Rules, 33 U.S.C.A. § 206, and of her passing agreement with the Absaroka, and for failing to keep to the right with respect to the passage between piers D and E in violation of Article 25, Inland Rules, 33 U.S.C.A. § 210.⁴

The rule in admiralty cases is that, although an appeal opens the case for a trial de novo, findings of fact are entitled to great weight but such rule is modified where the findings are based wholly upon depositions. The Natal, 9 Cir., 1926, 14 F.2d 382, 384; Alioto v. Imahashi, 9 Cir., 1940, 115 F.2d 324, 325. In cases in which witnesses testify in open court and depositions also are introduced, the rule is subject to modification in the sound judgment of the appellate court. See Yamashita Kisen K. K. v. McCormick Inter. S. S. Co., 9 Cir., 1927, 20 F.2d 25; The Ernest H. Meyer, 9 Cir., 1936, 84 F.2d 496, 501. In the instant case one witness appeared at the trial and twelve witnesses testified by deposition. The testimony of two witnesses, taken before a "C" Marine Inspection Board a few days after the collision, was introduced into evidence pursuant to stipulation.

We have weighed the evidence with the rule in mind, allowing due weight, as we see it, to the District Court's advantage in having an important eyewitness before it.

When the Maui and the Absaroka sighted each other, they were on crossing courses. Risk of collision, that is the possibility of collision, was involved as is evident from the actual occurrence of a collision. The Carroll, 1868, 8 Wall. 302, 75 U.S. 302, 305, 19 L.Ed. 392.⁵ Under the Inland and Pilot Rules the Maui, being on the starboard side of the Absaroka, was the privileged vessel, with the duty of maintaining her course and speed while the Absaroka was the burdened vessel with the duty of keeping out of the way.

The facts show that the vessels sighted each other approximately five minutes before the collision. At that time they were more than a mile apart. There was, then, ample opportunity for the taking of any steps necessary to effect a safe passage. They exchanged one blast signals thereby entering into a passing agreement in accordance with the rules, an agreement that the Maui would cross the bow of the Absaroka and that the Absaroka would cross the stern of the Maui.

In the face of her duty under the Inland and Pilot Rules and of her whistle agreement the Absaroka maintained her speed at full ahead, nine knots, until at least two minutes before the collision, when her engines were stopped. She maintained her course until approximately a half minute before the collision, when the wheel was put hard right and the engines reversed. She still had headway at the time of the impact. The rules direct that a burdened vessel keep out of the way by directing her course to starboard so as to cross the stern of the other vessel or by slackening her speed, stopping, or reversing. The Absaroka ignored their commands until too late to avoid disaster. She disregarded her duty as the burdened vessel and thereby violated Articles 19, 22, and 23 of the Inland Rules and Pilot Rule VII.

As a burdened vessel violating an applicable statutory rule, the Absaroka is prima facie at fault and to relieve herself of liability has the burden of proving that the collision could not have been caused by her fault. The Pennsylvania, 1873, 19 Wall. 125, 86 U.S. 125, 136, 22 L.Ed....