Pacific Tow Boat Co. v. States Marine Corp. of Delaware

• Decision Date: 09 February 1960
• Docket Number: No. 16374.,16374.
• Parties: PACIFIC TOW BOAT COMPANY, E. W. Stuchell, William D. Carpenter, Harry W. Stuchell, Jr., M. A. Wyman, D. E. Wyman and M. H. Wyman, Copartners Doing Business as Eclipse Lumber Co., Appellants, v. STATES MARINE CORPORATION OF DELAWARE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

276 F.2d 745 (1960)

PACIFIC TOW BOAT COMPANY, E. W. Stuchell, William D. Carpenter, Harry W. Stuchell, Jr., M. A. Wyman, D. E. Wyman and M. H. Wyman, Copartners Doing Business as Eclipse Lumber Co., Appellants, v. STATES MARINE CORPORATION OF DELAWARE, Appellee.

No. 16374.

United States Court of Appeals Ninth Circuit.

February 9, 1960.

COPYRIGHT MATERIAL OMITTED

Bogle, Bogle & Gates, Edward C. Biele, Claude E. Wakefield, Seattle, Wash., for appellant.

Summers, Bucey & Howard, Charles B. Howard, T. F. Paull, Seattle, Wash., for appellee.

Before MAGRUDER, HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

This is a collision case brought in admiralty involving the steamship SS Cotton State, the tug Lea Moe, and the barges Eclipse No. 15 and Eclipse No. 25. The accident occurred when No. 15, which had just been towed to the side of the moored Cotton State, drifted into the latter's slowly moving propeller.

The trial court awarded States Marine Corporation, owner of the Cotton State and libelant in this action, damages in the sum of $22,500.¹ The cross libel of the personal respondents named in the caption of this cause, owners of the barges, against States Marine Corporation was dismissed. They were, however, awarded judgment against The Pacific Tow Boat Company, owner of the tug Lea Moe, in the amount of $9,789.25, plus any amount they were required to pay to States Marine Corporation under the decree.

Pacific and the personal respondents jointly appeal. Three specifications of error are urged, as follows: (1) The court should not have applied the admiralty law presumption of fault against a moving vessel which strikes a stationary one; (2) the court erred in finding that those on the Cotton State were not negligent or contributory negligent; and (3) the finding that the tug allowed No. 15 to strike the propeller is clearly erroneous.

On the evening of January 10, 1957, the Cotton State, a vessel 438.9 feet in length, docked in Everett, Washington, after a trip from Seattle. It was moored by lines to the south side of Port Dock No. 1, with the port side of the vessel against the pier and its stern offshore. Docking of the vessel was completed at 6:35 p. m. In about five minutes a standard warning sign and flashing light were displayed at the stern, and the jacking gear of the Cotton State was engaged. This caused the propeller to turn slowly, making a full revolution about every seven or eight minutes. Activation of the jacking gear was normal practice and was designed to cool the vessel's engines slowly, thereby avoiding damage.

It was then dark, sunset having occurred at 4:29 p. m., but visibility, aided by the vessel's lights, was good. The weather was fair, a light southeasterly wind was blowing, and it was low tide.

At about the time the jacking gear of the Cotton State was engaged, the tug Lea Moe came alongside, towing two barges in tandem. The tug is a diesel-powered vessel 60.9 feet long. Each of the barges, with No. 25 ahead of No. 15, were 110.4 feet long and 37.9 feet wide. A short hawser extending eight to ten feet over the stern of the tug was attached to a stanchion at the forward starboard corner of No. 25. There were coupling lines fastened between the two corner stanchions aft on No. 25 and extending to the two forward corner stanchions on No. 15. The two barges were close-coupled with a foot or two of clearance between them. The tug was burning red and green side lights and towing lights on the mast. There were no lights or lanterns burning or carried on either barge.

Each of the barges was loaded with lumber which was to be taken aboard the Cotton State. The lumber was piled ten to fourteen feet high, stowed out to the sides of the barges and in about ten feet from each end. The tug and barges were brought to a stop at a point where the forward end of No. 25 was from 182 to 188 feet from the stern of the Cotton State. The master of the tug then signaled to the chief mate of the Cotton State for a mooring line. A line was passed down to one of the tug's deckhands who was then on the forward deck of No. 25. He attached the line to the starboard forward stanchion on that barge. It was then drawn taut and secured on a cleat on the cabin deck of the Cotton State opposite the forward stanchion on No. 25.²

An unidentified man who was aboard the Cotton State³ then told the master of the tug that he wanted No. 15 moved forward to the number two hatch and No. 25 moved aft to the number four hatch. This made it necessary for the tug to reverse the positions of the barges. The towing hawser of the tug was therefore cast loose and the tug proceeded towards the rear barge.

The two barges held by the one line from the Cotton State, as described above, then drifted sideways towards the vessel. No. 15 came under the stern counter of the Cotton State and collided with the revolving propeller. This occurred about five minutes after the tug and barges had come alongside. Two or more blades of the propeller struck the port side of No. 15. The tug thereupon towed No. 15 from under the stern and to a place where it would not sink.

The trial court found that the tug and its owner, Pacific, were at fault and negligent in three particulars in causing and contributing to cause the collision of No. 15 with the propeller of the Cotton State.⁴ The barge No. 15 was found to be at fault and negligent in not having navigation lights displayed and burning on the aft end of No. 15. The court found that appellants failed to show that the absence of such navigation lights was not and could not have been a proximate cause of the collision. It was further found that the faults of No. 15 were occasioned by the primary negligence of the tug and its owner-operators. The trial court also found that the Cotton State was not negligent or contributorily negligent.

Under their first specification of error appellants argue: (1) the measure of the trial court's decision is "no more than" an application of admiralty's presumption of fault in favor of a stationary vessel damaged by one under way; and (2) such a presumption does not apply here because the moving vessel (No. 15) was safely at rest and was under the control of those on the moored vessel (Cotton State), the crew of which had participated in securing the barge to the vessel before the barge drifted into the propeller.

We cannot agree that the basis of the trial court's decision is "no more than application of admiralty's presumption of fault. * * *" Of the three findings of fault and negligence on the part of the tug and its owners held to have been proximate causes of the collision, as quoted in footnote 4, only the first purports to give application to admiralty's presumption of fault. The other two findings pertain to the failure to place navigation lights and have a lookout posted on the aft end of No. 15.

The finding that lights were not placed on the aft end of No. 15 is not questioned by appellants. Nor do they challenge the trial court's ruling that such lights were required by applicable law and regulations.⁵ It being established that appellants were guilty of a statutory fault before a collision, the drastic and unusual presumption known as the "Pennsylvania" rule must be given application.⁶

Under this rule the vessel guilty of violating a statute or regulation pertaining to equipment or navigation must, in order to escape liability, prove not only that the fault shown probably did not contribute to the collision but also that it could not have contributed to it.⁷ The words "could not have," as used in this rule, do not require the vessel guilty of a statutory fault to prove that its fault could not by any stretch of the imagination have had any causal relation to the collision no matter how speculative, improbable, or remote. Seaboard Tug & Barge, Inc. v. Rederi, AB/DisA, 1 Cir., 213 F.2d 772, 775. But they do cast upon such vessel the burden of establishing that the violation could not reasonably be held to have been a proximate cause of the collision. States Steamship Co. v. Permanente Steamship Corp., supra, 231 F.2d at page 87.

The trial court found that appellants had failed to maintain this burden and so had not overcome the presumption. Appellants contest this finding, calling attention to testimony which in their opinion indicates that lights on No. 15 were not needed for observation from the Cotton State.

If this evidence was such as to call for a finding of fact to that effect, appellants maintained the burden cast upon them by the Pennsylvania rule. This court has twice held that noncompliance with applicable rules regarding lights could not possibly have caused the accident where persons aboard the other vessel actually saw what needed to be seen in order to avoid the accident.⁸

There is considerable evidence given by persons aboard the Cotton State to the effect that visibility was "good". The trial court made a finding to that effect. There was also testimony by these witnesses that the tug and the two barges were seen as they came alongside. Boatswain Dusevoir, who secured the line on the Cotton State after it had been attached to a stanchion on No. 25, testified that "it may have been possible" to determine from that point where the stern end of No. 15 was with reference to the stern of the Cotton State. He did not, however, make that determination.

The chief officer, who was present at the point where the line was secured on the Cotton State, knew that there was another barge behind the forward barge because he saw a pile of lumber behind the first barge. He testified, however, that he could not determine where the stern end of the after barge was with respect to the stern of the vessel because the "lumber was too high." He further testified that it was very dark at that time "but you could see everything around by the lights on the ship." No one had informed the chief officer as to the length of the barges.

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