THE GK WENTWORTH
| Decision Date | 08 December 1933 |
| Docket Number | No. 7164.,7164. |
| Citation | 67 F.2d 965 |
| Parties | THE G. K. WENTWORTH. HOSFORD TRANSP. CO. v. FAIRFIELD S. S. CORPORATION. SAME v. FIREMAN'S FUND INS. CO. et al. SAME v. FAIRFIELD S. S. CORPORATION et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Platt, Platt, Fales, Smith & Black, of Portland, Or., for appellant.
Erskine, Wood and Wood, Montague, Matthiessen & Rankin, all of Portland, Or., for appellees.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
These are appeals from a decree of the lower court denying the petition of the Hosford Transportation Company, appellant, for limitation of liability, according to sections 4283 to 4285 of the Revised Statutes of the United States (46 USCA § 183 et seq.).
The case grows out of a collision between the towboat Wentworth, owned and operated by the appellant, and the Maine, a seagoing vessel, owned and operated by Fairfield Steamship Corporation. The collision occurred about 7:20 a. m., June 5, 1930, in the Columbia river near Coffin Rock in a fog bank. The steamship Maine was traveling down the river with the current, while the Wentworth was going upstream, pushing three barges lashed abreast and loaded with sawdust. Both vessels were blowing the statutory fog signals. Shortly before the collision the Maine had passed through a fog bank about 1,300 yards in width. The bank in which the collision occurred seems to have been narrower but very dense.
The owners of the Maine claimed negligence on the part of the Wentworth and her owner in the following particulars: (1) In having her lookout stationed on the hurricane deck of the Wentworth, instead of some part forward on the sawdust barges; (2) in her failure to stop her engines on hearing fog whistles of the Maine; (3) navigating on the wrong side of the fairway; (4) in attempting to handle a tow too large and heavy for her power and maneuverability.
The owner of the Wentworth charged two principal specifications of negligence against the Maine and her owners, namely: (1) Navigating on the wrong side of the fairway; (2) in proceeding at an excessive speed.
The court found that the point of collision was a little on that side of midchannel which lay on the starboard side of the Maine, the legal conclusion from which fact being that the Wentworth was on the wrong side of the fairway, in violation of article 25 of the Inland Rules (33 USCA § 210). It also found that the Maine was traveling at an excessive rate of speed, contrary to article 16 of the Inland Rules (33 USCA § 192), and that therefore the fault was on the part of both vessels and the case was one for division of damages.
The case was originally referred to a master for a finding upon the facts and his report filed on July 24, 1931. Thereafter, on December 7, 1931, the court made and entered its findings of fact, conclusions of law, and interlocutory decree, based upon the master's findings. The interlocutory decree recited that the fault upon the part of the steamer Wentworth consisted in its failure to stop the engines on hearing the fog whistles of the Maine; in traveling on her own left side of the fairway, which was the wrong side for her, and that the Wentworth did not maintain a sufficient lookout, the lookout, such as it was, being kept by a man on the Wentworth herself in the vicinity of her pilot house, instead of forward upon the foremost barge, where he should have been.
Thereafter notice of appeal was given by the Wentworth and her owner on December 18, 1931, which appeal was voluntarily dismissed on May 16, 1932. On May 21, 1932, appellant petitioned for a limitation of liability, and on June 23, 1932, the owner of the Wentworth transferred said steamboat, her engines, etc., to a trustee. The hearing upon the petition for a limitation of liability was had before a commissioner, who made his report, denying the petition to limit for the reason that the Wentworth was at fault among other reasons for having located her lookout on the hurricane deck, instead of on the front of the foremost barge, and that this particular negligence was not without the privity or knowledge of its owner. This appeal is from the order sustaining this report and denying the petition for limitation of liability.
Appellees confess that in arguing for a denial of the limitation of liability they are pushing the doctrine of privity and knowledge to the extreme limit. It is urged that a shipowner who may be aware of a custom prevailing on his boats, which the court finds has contributed to the collision, and who took no steps to change this custom, has failed in his duty; and the fact he has hired a competent captain and issued him instructions to obey the law at all times will not in the event of an accident permit a limitation of liability. Appellees also concede that according to the many expressions of the Supreme Court the limitation of liability acts should be liberally construed in the interest of shipowners; and they admit that they would not urge the contention here if in this case an ocean-going ship was involved.
It seems to us that the fact that the G. K. Wentworth was a river towboat navigating inland waters does not place it in a different light, and an owner who has appointed a competent shipmaster is entitled to rely on his judgment in the navigation of the ship, and should not hamper the...
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