REDERI A/B SOYA v. SS Grand Grace

• Decision Date: 29 November 1966
• Docket Number: No. 20591.,20591.
• Citation: 369 F.2d 159
• Parties: REDERI A/B SOYA, as owners of the Swedish MOTOR VESSEL OTELLO, Appellant, v. SS GRAND GRACE, Grace Navigation Corporation, the MV JANE STOVE and Lorentzens Skibs, A/S, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

369 F.2d 159 (1966)

REDERI A/B SOYA, as owners of the Swedish MOTOR VESSEL OTELLO, Appellant, v. SS GRAND GRACE, Grace Navigation Corporation, the MV JANE STOVE and Lorentzens Skibs, A/S, Appellees.

No. 20591.

United States Court of Appeals Ninth Circuit.

November 29, 1966.

Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., Eli Ellis, David C. Wood, of Hill, Betts, Yamaoka, Freehill & Longcope, New York City, for appellant.

Curtis W. Cutsforth, of King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellee, Lorentzens Skibs, A/S.

Erskine B. Wood, of Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellee, Grace Navigation Corp.

Before BARNES, HAMLEY and BROWNING, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal in admiralty from the United States District Court for the District of Oregon. The court below had jurisdiction under 28 U.S.C. § 1333(1). Our jurisdiction is under 28 U.S.C. § 1291.

On January 19, 1964, the Swedish M/V OTELLO collided with the Liberian S/S GRAND GRACE in the Columbia River near Astoria, Oregon. The OTELLO claims that the collision was in part caused by the Norwegian M/V JANE STOVE.

The events leading up to the collision and the collision itself occurred in the middle of the afternoon when there were no restrictions on visibility. The wind was from the west, about 35 knots, with gusts to 55 or 65 knots.

At the place of the collision, the Columbia River runs approximately east-west, flowing westward to the Pacific Ocean. Thus the wind, from the west, was blowing upstream. Along the length of the Columbia River near Astoria is a recognized ship channel. The area of the river to the south of the ship channel is used as an anchorage.

As we analyze the events of January 19 we must concern ourselves with the activities of four vessels, beginning at 2:30 P.M. The OTELLO was anchored in the anchorage area south of the ship channel, with 75 fathoms of chain down, with her bow to the west, into the wind. Approximately one half mile astern of the OTELLO, i. e., to the east, upriver, the GRAND GRACE lay anchored, also with her bow to the west. Northward and slightly upstream (to the east) of the OTELLO, but still slightly south of the ship channel, was anchored the American vessel ANTINOUS. Proceeding downstream (to the west), through the general area of these vessels, was the JANE STOVE. The reason for the movement of the JANE STOVE was to secure better anchorage since in previous locations her anchor had dragged.¹

At 2:30 P.M. on January 19, 1964, the OTELLO noticed that her own anchor was dragging. She decided to move to a new anchorage position and sounded her whistle for a pilot. There was no response. Her engines were not started until 2:40 P.M. At 3:00 P.M. she attempted to haul in her anchor, but when it was part way (45 fathoms) up, the chain caught on the bow, and the anchor was raised no more. She did not drop her second anchor. She did not attempt to use her two screws to steer the vessel. At all times she had use of her twin screws and rudder.

The wind (from the west) swung the OTELLO's bow to the starboard so that she was headed toward the north with the wind from her port. In this position she dragged past the ANTINOUS. The master of the OTELLO decided to steam north to the open water on the other side of the ship channel as soon as he had dragged past the ANTINOUS. However, the JANE STOVE was observed coming west along the southern edge of the ship channel about 100 to 120 feet east of the OTELLO, between the ANTINOUS and the OTELLO. There is a decided dispute as to how far the JANE STOVE was north of the OTELLO when the JANE STOVE was first seen, and when she crossed the OTELLO's bow. The OTELLO did not steam north, because of the possibility of collision with the JANE STOVE. She continued to drag (under the force of the wind) until, at 3:22 P.M., she collided with the GRAND GRACE, which resulted in damage to both vessels.

The owners of the OTELLO filed a libel for negligence against the GRAND GRACE and the JANE STOVE in the district court. The owners of the GRAND GRACE filed a cross libel for negligent damage to that vessel. The court found against the OTELLO on its libel and for the GRAND GRACE on its cross libel. The court awarded damages, interest, taxable costs and "litigation expenses" to the GRAND GRACE. The JANE STOVE received only "litigation expenses." The owners of the OTELLO have appealed.

I. Scope of Review

Before we approach the merits of the controversy, we must settle the dispute between the parties as to the scope of our review. Findings of fact are not to be overturned unless clearly erroneous. Rule 52(a) of the Federal Rules of Civil Procedure. This rule applies in admiralty. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954). But appellant contends, in effect, that a determination on the question of negligence, however labeled, is not a finding of fact, but is a conclusion of law and so is not to be tested by the clearly erroneous rule.

No decision has been called to our attention in which it was held that a determination on the question of negligence is exclusively one of law. However, the Second Circuit has adopted the view that because the determination of that question involves first the formulation and then the application of a standard of conduct to evidentiary facts found to be established, a judge's determination on the question of negligence is not entitled to the benefit of the clearly erroneous rule in admiralty or any other type of action in which Rule 52(a) is generally applicable. See Romero v. Garcia & Diaz, Inc., 286 F.2d 347, 355-356 (2d Cir. 1961). The Second Circuit has recently held that its view in this regard is not in conflict with McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6. Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776-778 (2d Cir. 1966).

See, also, Socash v. Addison Crane Company, 120 U.S.App.D.C. 308, 346 F.2d 420, 422 (D.C.Cir. 1965), concurring opinion of Judge Bazelon.

Apparently, most if not all of the other courts of appeals deal with the question of negligence as if it were one of fact, subject to the clearly erroneous rule. See the decisions handed down in the District of Columbia, First, Fourth, Fifth, Sixth, Eighth and Tenth Circuits, collected in 5 Moore's Federal Practice, 2d ed., § 52.03, pages 2616, 2624 and 1965 supplement thereto.

This court so dealt with the question of negligence in Molitor v. American President Lines, Ltd., 343 F.2d 217, 219-220 (9th Cir. 1965). And in Pacific Tow Boat Co. v. States Marine Corp. of Delaware, 276 F.2d 745 (9th Cir. 1960), we specifically rejected the argument that a determination on the question of negligence is not subject to the clearly erroneous rule, pointing out, however, that a conclusion of law may also be involved. We there said, at page 752:

"In the McAllister case the Supreme Court dealt specifically with a `finding of fact\' that the master of the ship was negligent. It was with respect to this finding that the court there held that `no greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.\' Since that decision this court has uniformly regarded determinations as to negligence made in admiralty cases as findings of fact which are not to be overturned unless clearly erroneous.12 (12 Albina Engine & Machine Works, Inc. v. American Mail Line, Ltd., 9 Cir., 263 F.2d 311, 314; Amerocean Steamship Co. v. Copp, 9 Cir., 245 F.2d 291, 293; City of Long Beach v. American President Lines, Ltd., 9 Cir., 223 F.2d 853, 855. The Sixth Circuit has followed the same practice. Imperial Oil, Limited v. Drlik, 6 Cir., 234 F.2d 4.)

"It is true that any determination as to negligence requires the testing of particular facts against a predetermined standard of conduct. The fixing of that standard is a jural act. To this extent a question of law is involved, and hence a conclusion of law is required, in any determination as to negligence. Nothing said in McAllister or in any of our previous decisions was intended to limit the scope of review in so far as the fixing of the applicable standard of conduct is concerned.

"The standards of conduct here applied by the trial court, as we understand them, comport fully with accepted legal principles. The findings of fact whereby those standards were given application in this case are not clearly erroneous."

In the case before us we encounter little, if any, argument to the effect that the trial court applied an impermissible standard of conduct in determining the question of negligence. The contentions and counter contentions are concerned almost exclusively with the findings concerning the movement of the vessels, the steps taken to meet the emergency which developed, the force of the wind, and like facts. Thus for all practical purposes, only questions of fact were involved in deciding whether there was negligence. As to those facts, the clearly erroneous rule has full application.

In admiralty, as in other types of cases, that rule precludes an appellate court from upsetting a trial court's factual findings unless the appellate court is left with the definite and firm conviction that a mistake has been committed. Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962).

Appellant also argues, in effect, that, because counsel for the prevailing parties prepared the findings of fact for the court's approval, there was a violation of Supreme Court Admiralty Rule 46½. Because of this violation, appellant asserts, serious doubts are raised as to the soundness of the district court decision and that, for this reason, we should scrutinize the decision with more care than would otherwise be required.

The courts of appeals are divided on this question. There are some decisions holding that trial court adoption of proposed...