States Steamship Co. v. Permanente Steamship Corp.

• Decision Date: 06 March 1956
• Docket Number: No. 14736.,14736.
• Parties: STATES STEAMSHIP COMPANY, a corporation, Appellant, v. PERMANENTE STEAMSHIP CORPORATION, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

231 F.2d 82 (1956)

STATES STEAMSHIP COMPANY, a corporation, Appellant, v. PERMANENTE STEAMSHIP CORPORATION, a corporation, Appellee.

No. 14736.

United States Court of Appeals Ninth Circuit.

March 6, 1956.

Lillick, Geary, Olson, Adams & Charles, Gilbert C. Wheat, Willard G. Gilson, San Francisco, Cal., for appellant.

Thelen, Marrin, Johnson & Bridges, Gordon Johnson, A. Barlow Ferguson; Derby, Sharp, Quinby & Tweedt, James A. Quinby, San Francisco, Cal., for appellee.

Before HEALY and FEE, Circuit Judges, and MATHES, District Judge.

MATHES, District Judge.

This appeal is from an interlocutory decree in admiralty, 28 U.S.C. § 1292, adjudging appellant's SS Colorado the sole fault of a collision between the Colorado and appellee's SS Permanente Silverbow.

The evidence is analyzed and the facts set forth in clear detail in the opinion written by the learned district judge. Permanente S. S. Corp. v. The Colorado, D.C.N.D.Cal.1955, 129 F.Supp. 65.

It will suffice here to repeat appellee's version of the incident:

"Shortly before nine o\'clock on the evening of January 1st, 1954, the Permanente Silverbow was proceeding in a southerly direction in the Pacific Ocean off the coast of California in the vicinity of Fort Bragg. The weather was clear, the sea calm, the wind negligible, and visibility practically unlimited. The vessel, bound from Portland, Oregon, to San Francisco, without cargo, was proceeding at her normal cruising speed on a compass course of 160 degrees true.

"Shortly before nine o\'clock, the mate of the Permanente Silverbow sighted the white masthead light of a north bound vessel, which later proved to be the Colorado, directly ahead at an estimated distance of five miles. The vessels proceeded directly toward each other until the mate of the Permanente Silverbow could see both colored sidelights of the Colorado. Observing the masthead and range light of the Colorado to `open\' or draw apart, in such manner as to indicate a change of that vessel\'s course to her own right, the mate of the Permanente Silverbow also gave way slightly to the right to a compass course of 175 degrees true, after which each vessel had a relative bearing off the port bow of the other.

"Instead of maintaining its course and thus effecting a routine port to port meeting, in which each vessel shows its left side to the other, the Colorado then altered its course to its own left and crossed the bow of the Permanente Silverbow about one mile ahead of that vessel. As soon as the mate of the Permanente Silverbow saw the green, or right-hand, side light of the Colorado cross his bow from left to right, and appear off his starboard bow, he gave way slightly to the left and returned to a compass heading of 160 degrees true, after which the two vessels were situated to pass safely starboard to starboard, each presenting its right side to the other.

"Instead of carrying out and completing this simple maneuver the Colorado, when almost abreast of the Permanente Silverbow, turned sharply to its own right, and its bow struck the starboard or right side of the Permanente Silverbow at approximately a right angle at a point about ninety feet from the stern. A few seconds before the collision, which occurred about 9:05 p. m., the wheel of the Permanente Silverbow was ordered hard left in an effort to avoid the Colorado, but the maneuver had little or no chance to take effect, swinging the vessel a mere five degrees to the left to a compass heading of 155 degrees true at the time of impact." Id., 129 F.Supp. at page 66.

Appellee thereupon libeled the Colorado alleging collision damages of $475,000; and appellant in turn libeled the Permanente Silverbow alleging collision damages of $275,000. Cross-libels were filed in each case and, pursuant to stipulation of the parties, the two causes were consolidated and tried together.

The District Court, upon hearing the evidence, accepted appellee's version of events preceding the collision. The District Court's findings are in turn accepted in this Court unless clearly erroneous, since "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." McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20.

It is beyond dispute that when the vessels first observed each other, they were approaching end on or nearly so, in the situation of meeting vessels. And International Rule 18 provides in part that: "When two power-driven vessels are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other." 33 U.S.C.A. § 146b(a).

In altering course to starboard preparatory to a port-to-port passing, each vessel at the outset obeyed the rule just quoted; but in later altering course to port when the ships were about one mile apart, the Colorado inexcusably violated the mandate of International Rule 18.

The Colorado then placed herself further at fault by disobeying also International Rule 28(a), which directs that: "When vessels are in sight of one another, a power-driven vessel under way, in taking any course authorized or required * * *, shall indicate that course by the following signals on her whistle, namely: — One short blast to mean `I am altering my course to starboard.' Two short blasts to mean `I am altering my course to port.' Three short blasts to mean `My engines are going astern.'" 33 U.S.C.A. § 147(a).

As stated in the District Court's opinion: "Both the Colorado and the Silverbow have stipulated that neither ship sounded whistles the night of the collision." Permanente S. S. Corp. v. The Colorado, supra, 129 F.Supp. at page 71. But the trial court additionally found that "neither vessel's failure to sound signals was or could have been a cause of the collision."

The opinion explains: "It was the Colorado's inattentiveness, and inappropriate maneuvering that caused the two vessels to assume the positions that they did, and under the circumstances, the blowing of whistles would not have, in the court's view, prevented the ensuing collision." Ibid.

The gist of appellant's argument here is that the findings of the District Court as to fault and causation are clearly erroneous, and require reversal of the interlocutory decree adjudging sole fault in the Colorado.

It is settled that a finding is clearly erroneous "when `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" McAllister v. United States, supra, 348 U.S. at page 20, 75 S.Ct. at page 8, 99 L.Ed. 20; United States v. Oregon State Medical Society, 1952, 343 U.S. 326, 339, 72 S.Ct. 690, 96 L.Ed. 978; United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.

Appellant concedes that there was no causal connection between the collision and failure of the Permanente Silverbow to sound one short blast to mean "`I am altering my course to starboard'", International Rule 28, 33 U.S. C.A. § 147(a), when, upon sighting the Colorado directly ahead at an estimated distance of five miles, the Permanente Silverbow altered her course 15° to starboard in compliance with International Rule 18. 33 U.S.C.A. § 146b(a).

And appellant does not seriously urge as a proximate cause the failure of the Permanente Silverbow to signal the hard turn to port which she took "a few seconds before the collision." This was but an incident to the in extremis navigation imposed upon the Permanente Silverbow by the unsignaled sharp turn to starboard just made by the Colorado. Cf. The Knoxville City, 9 Cir., 1940, 112 F.2d 223, 229.

What appellant contends is that when, after allegedly observing the Colorado alter course to port "about one mile ahead", the Permanente Silverbow also altered course to port, this maneuver, coupled with failure of the Permanente Silverbow then to sound two short blasts on her whistle as required by International Rule 28, must be held to have been one of the proximate causes of the collision.

In support of this contention appellant relies upon the rule of The Pennsylvania, 1873, 19 Wall. 125, 86 U.S. 125, 136, 22 L.Ed. 148, that where "a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute."

This rule has been reiterated by the Supreme Court. Lie v. San Francisco & Portland S. S. Co., 1917, 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726; The Martello, 1894, 153 U.S. 64, 74, 14 S.Ct. 723, 38 L.Ed. 637; Belden v. Chase, 1893, 150 U.S. 674, 699, 14 S.Ct. 264, 37 L.Ed. 1218; Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 1890, 136 U.S. 408, 422, 10 S.Ct. 934, 34 L.Ed. 398. And it has been consistently followed in this circuit. Matson Nav. Co. v. Pope & Talbot, 9 Cir., 149 F.2d 295, 299, certiorari denied, 1945, 326 U.S. 737, 66 S.Ct. 46, 90 L.Ed. 439; Carr v. Hermosa Amusement Corp., 9 Cir., 137 F.2d 983, 987-988, certiorari denied, 1944, 321 U. S. 764, 64 S.Ct. 520, 88 L.Ed. 1060; Kaseroff v. Petersen, 9 Cir., 1943, 136 F.2d 184, 186; The Silver Palm, 9 Cir., 94 F.2d 754, 759, certiorari denied United States v. Silver Line, 1938, 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1539; The Beaver, 9 Cir., 1915, 219 F. 134, 138, affirmed sub nom.; Lie v. San Francisco & Portland S. S. Co., supra, 243 U.S. 291, 37 S. Ct. 270, 61 L.Ed. 726; cf. Crowley Launch & Tugboat Co. v. Wilmington Transp. Co., 9 Cir., 1941, 117 F.2d 651.

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