Decision Date07 June 1940
Docket NumberNo. 8963.,8963.
Citation112 F.2d 952
CourtU.S. Court of Appeals — Ninth Circuit

T. Catesby Jones, James W. Ryan, and Bigham, Englar, Jones & Houston, all of New York City, and Lane Summers and Hayden, Merritt, Summers & Bucey, all of Seattle, Wash., for appellants Pacific Coast Coal Co. and others.

J. Charles Dennis, U. S. Atty., and Frank A. Pellegrini, Asst. U. S. Atty., both of Seattle, Wash., for appellant United States.

Lawrence Bogle, Edward G. Dobrin, Cassius E. Gates, Stanley B. Long, and Bogle, Bogle & Gates, all of Seattle, Wash., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

The opinion heretofore rendered in favor of the Pacific Coast Coal Company and the United States in this admiralty proceeding for limitation of liability for the wrecking and total loss of the passenger and freight Steamship Denali and the loss of her cargo is reported in The Denali, 9 Cir., 105 F.2d 413. In it we sustained the contentions of the appellants that the limitation of liability should be denied and that they should recover in full for their loss of cargo.

Our findings disagreed with the District Court, The Denali, 23 F.Supp. 145, with regard to the method in which the Denali's owner managed her with respect to the working hours of her navigating mates. We found that the first mate of the Denali, a pilot taking the place of the first mate who did not act as mate on the voyage, had stood 12 hours watch in two 6-hour watches per day on the voyage prior to the strand, instead of but 8 hours per day in watches alternating with the two other mates as required by the three-watch provision for mates of Section 2 of the Act of May 11, 1918, 46 U.S.C. § 223, 46 U.S.C.A. § 223. It matters nothing that an established practice is shown under the three-watch system for sailors that in serving in one of the 2-hour dog watches they have a watch service time of 10 hours one day and 6 the next day. The maximum is 10 hours not 12, and the average is 8 hours per day — not an average of 12.

We held that the vessel was navigated in violation of Section 2 which requires that she "shall have in her service and on board three licensed mates, who shall stand in three watches while such vessels is navigated * * *."

We found that the petitioning corporation owner of the Denali was privy to the navigation of the vessel when wrecked, because it was by its regulation and established practice that the navigating mate in the maneuvers leading to the strand commanded the vessel while he was and had been violating the three-watch requirement of the statute by standing 12 hours per day in navigating during the entire voyage.

The District Court had held that the "sole cause of the stranding of the steamer Denali and the resulting total loss of said steamer Denali and her cargo was due to faults or errors in her navigation which the Denali's owner was without privity or knowledge." 105 F.2d 413, 421. These holdings as to the "sole" cause and absence of privity were based upon the lower court's erroneous decision that the Act requiring the mates to stand three watches had not been violated. With regard to the finding that the wreck was caused by "faults or errors" in navigation, this is not disturbed by a finding that the act had been violated by the owner and hence imposed on the owner the presumption and burden of proof of The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148, that the violation could not have caused or contributed to the fault or error in navigation, which presumption the owner had not overcome. Our holding was that it had not been shown that the violation was not such a direct or such a contributing cause. The situation is entirely unlike that in The Perseverance, 2 Cir., 63 F.2d 788, 790, in which the fault was not held a violation of any statute and the Pennsylvania rule not discussed.

By good luck the Denali, run by the navigating mate at full speed on a chartered reef, held fast. Had she struck on a course slightly more to her right, her port side well might have been torn out by the easterly edge of the reef and the vessel quickly capsized with heavy loss of life to her passengers and crew in the strong cold currents of the Alaskan waters. It was on an Alaskan voyage that The Princess Sophia, 9 Cir., 61 F.2d 339, also ran on a reef, with a total loss of sailors, passengers, cargo and steamer. In our opinion the three-watch provision for mates is for the purposes of minimizing such danger to human beings as well as to prevent loss to cargo. The identical issue of presumption of causation would be presented had the widow of a drowned sailor been the appellant instead of the United States or any other cargo owner.

The Denali's brief on the first hearing conceded that it did not urge "that the act in question regulating as it does the minimum number of licensed deck personnel on certain vessels is not a safety measure." In holding the prior Act of April 2, 1908, 35 Stat. 55, 46 U.S.C.A. § 222, to be safety legislation to prevent loss of life and property from fatigue, Judge Hough, in the cases of United States v. Union and United States v. Dalzelline, D.C.S.D.N.Y., Feb. 16, 1914, 1932 A.M.C. 1331, 1336, aptly stated our own view of what Congress had in mind in enacting the three-watch requirement for mates: "It is matter of common knowledge that safety in anything which requires human effort depends, in the last analysis, on the human being. A weary man is infinitely more dangerous than a defective pipe or an obscured light, because he is unfit to discover the unfitness of the inanimate object."

We further found that the owner consciously sent the vessel to sea in an "unseaworthy" condition with respect to the safe carriage of sailors, passengers and cargo because of the violation of this statute for safety against fatigue in navigation. We held this defeated the Denali's claimed defense under the Harter Act, 46 U.S.C.A. §§ 190-195.

On the rehearing we reiterated these findings. Reargument was had on two questions of law, (A) Whether the Pennsylvania rule and presumption applies where the violation of a navigating statute occurs at the moment the vessel is navigated onto a reef; and, assuming it so to apply, (B) Whether an owner affirmatively found to be privy to the violation can escape the application of the rule and presumption by compelling the injured persons to litigate their claims in a limitation proceeding.

A. The rule and presumption established in The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148, control in libels for injury to sailors or cargo where the vessel has violated the positive command of a safety statute to prevent fatigue in the navigating officer controlling her navigation at the time that navigation caused the injury, whether by colliding with another vessel or with a reef on which she strands.

The presumption and rule regarding such a violation established by the Supreme Court in The Pennsylvania is: "Concluding then, as we must, that the bark was in fault, it still remains to inquire whether the fault contributed to the collision, whether in any degree it was the cause of the vessels coming into a dangerous position. It must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration. The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, 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. * * *"

It has been restated with a review of the cases enforcing it in other leading Supreme Court cases. In Belden v. Chase, 150 U.S. 674, 699, 14 S.Ct. 264, 272, 37 L.Ed. 1218, the Supreme Court reversed because of the refusal in an action at law to instruct the jury with obligatory force as to the rules of navigation as stated in the Pennsylvania case: "* * * and it is the settled rule in this court that, when a vessel has committed a positive breach of statute, she must show, not only that probably her fault did not contribute to the disaster, but that it could not have done so. The Pennsylvania, 19 Wall. 125, 136 22 L.Ed. 148; Richelieu Navigation Co. v. Boston Ins. Co., 136 U.S. 408, 422, 10 S.Ct. 934 34 L. Ed. 398."

It will be noted that while Belden v. Chase is a collision case it speaks of the "disaster", which as well could have resulted from running on a reef, and that it relies upon the case of Richelieu Navigation Co. v. Boston Ins. Co., 136 U.S. 408, 10 S.Ct. 934, 34 L.Ed. 398, where the disaster arose from a stranding and the Pennsylvania rule was applied.

In the same term, in the case of The Martello v. The Willey, 153 U.S. 64, 74, 14 S.Ct. 723, 726, 38 L.Ed. 637, the Supreme Court said: "There can be no doubt that the Willey was guilty of a statutory fault in the failure to provide herself with the fog horn prescribed by the international regulations, and the presumption is that this fault contributed to the collision. This is a presumption which attends every fault connected with the management of the vessel, and every omission to comply with a statutory requirement or with any regulation deemed essential to good seamanship. In The Pennsylvania, 19 Wall. 125 136, 22 L.Ed. 148, it was said that `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.' * *...

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