Stevens v. United States Lines Co.

• Decision Date: 06 April 1951
• Docket Number: No. 4531.,4531.
• Citation: 187 F.2d 670
• Parties: STEVENS v. UNITED STATES LINES CO. et al.
• Court: U.S. Court of Appeals — First Circuit

187 F.2d 670 (1951)

STEVENS v. UNITED STATES LINES CO. et al.

No. 4531.

United States Court of Appeals First Circuit.

March 16, 1951.

Rehearing Denied April 6, 1951.

Daniel J. Dempsey of Boston, Mass., for appellant.

Robert S. Erskine, New York City (Charles S. Bolster and Bingham, Dana & Gould, all of Boston, Mass., and Kirlin, Campbell, Hickox & Keating of New York City on the brief), for appellees.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge.

WOODBURY, Circuit Judge.

These are appeals by Charles E. Stevens, master and owner of the 38-foot wooden cabin cruiser Marie S., from interlocutory decrees in admiralty adjudging that he and his boat on the one hand, and the 10,000-ton freighter American Veteran and her owner, United States Lines Company, on the other, were jointly at fault for a collision between the two vessels in Boston Harbor on July 24, 1949, and referring the cause to a Commissioner to ascertain, compute and report damages. The jurisdiction of this court under Title 28 U.S.C.A. § 1292 (3) is clear.

Stevens, a carpenter by trade, operated his boat, as he was licensed by the Coast Guard to do, in the carriage of paying passengers on all-day fishing trips out of Boston Harbor. On Sunday, July 24, 1949, he went on such a trip taking three non-paying guests, one of whom acted as engineer, and sixteen paying passengers. On his return up Boston Harbor at about 4:50 in the afternoon the Marie S. was in collision with the American Veteran, as a result of which the Marie S. was cut in two and all on board were thrown into the water. All suffered from shock and immersion, some in addition were more seriously injured, and one paying passenger lost her life by drowning.

As a result of the catastrophe three libels in admiralty, in rem and in personam, were brought against the American Veteran and her owner and claimant, United States Lines Company. One libel was brought by the Administrator of the deceased passenger, another was brought by the fifteen surviving passengers, and the third by Stevens and his three guests. The United States Lines impleaded Stevens as a respondent under General Admiralty Rule 56, 28 U.S. C.A. in the first two libels, answers were filed in all of them, and the three libels were heard together by the court below and disposed of in a single opinion consisting of findings of fact and conclusions of law.

From the findings of fact and the undisputed testimony it appears that Stevens first noticed the American Veteran about 4:30 o'clock when she was coming up the channel a mile or so astern. At that time the Marie S. was doing about 6 knots and the Veteran about 12½, which was soon reduced to 8, as she came into more crowded waters. Both vessels were on the same generally westerly course up the right hand or northerly side of the channel. The weather was clear and sunny and the sea calm, and there were many other vessels, some large commercial ones and some small pleasure boats, both sail and power, using the channel in and out of the harbor at the time.

When Stevens first noticed the Veteran he took no note of her speed and he did not thereafter keep her under observation. In fact he did not see her again until his guest engineer called his attention to her a matter of seconds before the collision when she was almost on top of the Marie S. Stevens then attempted to get clear by putting his rudder hard right, but the maneuver failed, and the stem of the Veteran struck the Marie S. on her starboard quarter.

Those in charge of the American Veteran first observed the Marie S. particularly when she was about half a mile ahead. At that time the captain of the Veteran was on the left or port wing of the bridge, and the pilot on the right or starboard wing, keeping the buoys marking that side of the channel under observation. As they approached buoy No. 2, at which point the channel turns 20° north westerly, or to the right facing up channel in the direction in which the vessels were travelling, the captain of the Veteran said the Marie S. was on a parallel course off his port bow about 150 feet ahead and about 120 feet to port. The pilot at that point ordered a right rudder on the Veteran to take it around the angle in the channel, and the captain of the Veteran stepped across the bridge to the wheelhouse to see that the helmsman obeyed the pilot's order. When the captain returned to his post on the port wing of the bridge 10 seconds or a little more later, the Marie S. was not in sight. Assuming that she must be under his bow, the captain at once ordered his engines "full astern", but the crash of collision occurred almost immediately. No passing signal had been given by the Veteran.

On these facts the District Court found both vessels at fault for the collision, and in consequence concluded that the rule of divided damages must be applied as between them. With respect to the Marie S. it specifically found "that Stevens was at fault in not being aware of the proximity of the freighter until it was too late. He knew the freighter was approaching him, his speed was slow, and he should have occasionally glanced through the rear windows of his pilothouse. Such action on his part would have readily enabled him to sight the approach of the freighter in sufficient time to have blown a warning signal, if he thought the freighter did not see him, or even to have taken some action to avoid the freighter. Any of these alternatives would have prevented the collision and cared for his own safety and that of his passengers." 90 F.Supp. 898, 899.

The District Court rested its conclusion of fault on the part of the American Veteran largely on the failure of the captain of that vessel to sound any overtaking signal before he turned aside to check his quartermaster's obedience of the pilot's command of right rudder. It said: "A speed of 8 knots per hour in the heavy Sunday traffic which existed on the afternoon of the collision could only be justified by every possible precaution. He the captain was bound under the circumstances, if not by the rules of the road, to warn craft of his approach at such a speed. In addition to his failure to sound a warning which under the circumstances I find was needed, he chose to leave the bridge to check on the quartermaster. Even if the negligence of Stevens contributed to the collision, the collision might have been avoided had Stevens been signaled that a passing was about to occur."

By cross assignments of error, a practice in admiralty tacitly sanctioned by this court in Rugo Construction Co. v. New England Foundation Co., 1 Cir., 1949, 172 F.2d 964¹ the appellee, United States Lines, presents the contention that the court below erred in law in holding the American Veteran guilty of any fault whatever contributing to the collision. The...