PETITION OF ERLANDSEN, 14307.
| Decision Date | 24 August 1943 |
| Docket Number | No. 14307.,14307. |
| Citation | 51 F. Supp. 921 |
| Parties | Petition of ERLANDSEN et al. |
| Court | U.S. District Court — Western District of Washington |
Bogle, Bogle & Gates, Stanley B. Long, and Edw. S. Franklin, all of Seattle, Wash., for petitioners.
Sam L. Levinson, of Seattle, Wash., for claimants.
I believe that any admiralty lawyer representing these claimants would have been justified in filing actions here on the ground of unseaworthiness, particularly after reading Judge Cushman's decision, The Warren, D.C., 40 F.2d 700, and others in this Circuit relating to the presumption which arises by reason of the unexplained destruction and loss of a vessel at sea, and particularly the loss and destruction of this vessel at sea; and where, as I indicate, there is no known explanation of it at the time of filing such suit.
Judge Cushman's interpretation of this Circuit's rule upon that, of course, is this Court's interpretation at one time, and it has great weight with me as the Trial Judge in this case. That rule is to the effect that the sinking of a vessel while being properly handled, without undue stress of weather or other known external cause, was presumptively due to unseaworthiness.
The Court is not convinced from the evidence here that the weather and seas prevailing at the place where the Nordic Pride was last seen in her sinking condition were of sufficient force to convincingly explain the swamping of the vessel. There was a Beaufort scale force gale of approximately 7, and there were some heavy seas; but vessels of this type commonly successfully navigate the waters along the Pacific Coast in such gales and seas.
There must have been some other force or condition, either within or without the vessel, which resulted in her waterlogged condition in which she was found before she finally sank.
There was a lot of testimony on the question whether the position in which the vessel was riding in the water in her waterlogged condition indicated that the vessel was stable or unstable, and whether or not the vessel's loss was caused by her own instability. Much of the testimony was conflicting as to the proper inference to be drawn from the slanting position of the vessel in the water (slanting from stern downward in the water); but it seems to me the evidence was overwhelmingly to the effect that, so far as one could reasonably judge from that position of the vessel, such position pointed to the fact that the vessel was stable in her sea action athwartship; and by her "sea action athwartship" I mean her reaction to the force of the seas against the side of the ship.
The principal contention made by claimants in respect to their assertion of unseaworthiness turns around the issue of instability, the claimants asserting that the vessel was unstable, and therefore unseaworthy for that reason.
The last known physical evidence as to stability of the vessel is circumstantial and consists of the conditions observed by those who saw the vessel in the water in her waterlogged condition, bow down, stern up, during the two days that she remained afloat before she finally disappeared beneath the surface of the water. Witnesses who interpret that physical and circumstantial evidence have testified to inferences properly to be drawn therefrom, and from such evidence the Court must conclude that such condition of the vessel with...
To continue reading
Request your trial