THE SILVER PALM

• Decision Date: 31 January 1938
• Docket Number: No. 8146.,8146.
• Citation: 94 F.2d 754
• Parties: THE SILVER PALM. THE CHICAGO. SILVER LINE, Limited, v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F.2d 754 (1937)

THE SILVER PALM.

THE CHICAGO.

SILVER LINE, Limited, v. UNITED STATES et al.

No. 8146.

Circuit Court of Appeals, Ninth Circuit.

October 28, 1937.

Rehearing Denied January 31, 1938.

Lillick, Olson, Levy & Geary, Ira S. Lillick, and Joseph J. Geary, all of San Francisco, Cal., for appellants.

H. H. McPike, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for appellees.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal by the owner of the British motorship Silver Palm against the United States, the owner of the naval cruiser Chicago, and other libelants suffering injury or seeking recovery for wrongful death resulting from a collision in fog conditions between the Chicago and the Silver Palm, in a three-vessel maneuver in the coastal traffic lane pursued in the fog by merchant ships between San Francisco and San Pedro. The collision occurred on October 24, 1933, at or about 8:07 o'clock in the morning.

We accept the testimony (Tr. 125) of the Senior Admiral on board the Chicago that, from shortly before 8 o'clock until the collision, the Chicago was steaming along the "edge" of a fog "patch" on her left. Whatever the density of the so-called fog patch was at 8 o'clock, at 8:05, shortly before the collision, it had become "thick" (Tr. 1295), and the Admiral says the Silver Palm emerged from it clear cut to the eye as to her bow, but indistinct as to her stern, still in the bank (Tr. 114).

The cruiser, on a northerly course, 350 degrees true, sought, by turning to her left, to avoid a merchant ship, the Albion Star, bound for San Francisco, emerging on a northerly but converging course from a fog bank on her right. In this maneuver she met and collided with another merchant ship, the Silver Palm, bound for San Pedro, suddenly emerging from an opposite fog bank along the "edge" of which the Chicago had been steaming for at least 8 or 9 minutes. Three of the Chicago's officers were killed.

The appeal concerns the responsibility for the collision, the amount of damages to be awarded not having been considered. The Silver Palm, emerging from the fog at a speed estimated by the cruiser's captain at 10 knots (Ap. 165, 255, 256), does not question her causative fault. The sole question here is the validity of the Silver Palm's claim of fault on the part of the cruiser Chicago, in proceeding between the two fog banks at so much in excess of the moderate speed required by article 16 of the International Rules (33 U.S.C.A. § 92), that on sighting the Silver Palm emerging from the fog bank ahead on her port and being blown across her course, she could not have stopped dead in the water in the Chicago's share of the distance between the two vessels.

The District Court found the visibility between the two vessels when the Silver Palm was sighted at 1,000 yards, that the Chicago was stopped or almost stopped before the collision, and had then proceeded less than 300 yards of the 1,000 yards of visibility. Certain of the theoretical opinions of the cruiser's officers tend to support this finding of her stopping power. There is some evidence to support the finding of visibility.

At the threshold of the case arises the question of the strength of the presumption of these findings of the lower court. Although the record is a long one, some 1,727 pages, the trial court has not favored us with the opinion customarily given in admiralty cases. This is particularly desirable in a case involving complicated maneuvers, as here, of the three vessels, logs with condemning orders omitted and entries for the period of the maneuvers so altered as to make permissible a claim of purpose, the presenting to the court of a "measuring rod" test run based upon engine maneuvers favoringly different from those of the Chicago, and heavy conflict in the evidence both between the witnesses heard by the court and between some of them and the larger unheard number through deposition.

An admiralty appeal is a trial denovo, in which the Supreme Court has reversed on the fact against the findings of two lower courts. The Ariadne, 13 Wall. 475, 479, 20 L.Ed. 542; Langnes v. Green, 282 U.S. 531, 537, 51 S.Ct. 243, 245, 75 L. Ed. 520. There is a presumption in favor of the findings below varying, with other factors, with the number of witnesses to the event in issue testifying on deposition or before the trial judge, the probative importance of logs and other documents, photographs and physical exhibits of evidentiary value, equal in the appellate and in the trial court, etc. The Ernest H. Meyer (C.C.A.9) 84 F.(2d) 496, 501.

The Silver Palm contends that the findings should have but slight, if any, weight in view of the facts (1) that all three of the witnesses making the only contemporaneous entries showing her speed, the paramount question in the case, as well as a lookout and four other eyewitnesses from the Chicago, and the disinterested witnesses of the third vessel, the Albion Star, testified by deposition and were not heard by the court below; (2) that the logs of the Chicago, of the greatest importance in a collision case, contradict in important matters the viva voce testimony of certain of the Chicago's officers; (3) that the logs were altered in their statement of the acts of the Chicago and her officers in the crucial moments leading to the collision, and the alterations unexplained, creating presumptions adverse to her; (4) and the inexcused failure to produce another witness on watch in the engine room, directly in control of one of the engines producing the speed of the Chicago as she approached the two merchant ships, and who made entries, now altered, upon which that speed was calculated, one of the two questions upon which the decision depends.

It is further urged that (5) the lower court failed to consider the reckless disregard by the Chicago's commander and his squadron of four cruisers of human life and property in the heavily traveled steamship lane off the California coast between San Francisco and San Pedro, the port of Los Angeles; (6) the Chicago's continued violation of the rules of navigation, right into the jaws of the collision, including (7) an almost incredibly wrongful use of signals to an opposing vessel in the fog, given by the cruiser's captain, and understood and interpreted by the crew and by the two Admirals on the Chicago as conveying to the opposing vessel a meaning entirely contrary to the International Rules.

Finally (8) it is charged that a test run to determine the stopping distance of the Chicago when the Silver Palm was sighted, based upon engine movements entirely different from her engine room logs, and untruthfully more favorable to the Chicago, was offered to the court as the "measuring rod" for the court's determination of this controlling issue of fact in the case.

These are serious charges to be made against a United States naval vessel and its personnel. However, since we are agreed that, in evaluating the conduct of those in charge of the navigation of a vessel accused of fault, the state of mind in which they enter into and conduct a maneuver resulting in the loss of life and heavy damage here incurred may be vitally material, the charges of appellants and what we find incontrovertible in the evidence must receive our analysis and determination. If the claimed navigational animus exist, for hours before and continuing up to the fatal maneuvers of the three vessels, and then, in the midst of these maneuvers, a reckless disregard by the Chicago of the merchant vessels she was certain to meet, the testimony of those seeking to exculpate her from responsibility for the death of three fellow officers and the $365,000 damage to the Chicago is certainly subject to inferences of exculpating motive.

A. The Chicago, from midnight until sighting the Silver Palm at 8.05 a. m., was proceeding in the traffic lane between San Pedro and San Francisco as a reckless menace to merchant shipping.

During all of these 8 hours she was violating one or another of the International Rules, culminating in the execution of orders up to 2 minutes before the collision, to reach an 18-knot speed when steaming on the "edge" of the left fog bank.

The following is clearly established by the undisputed evidence offered by the Chicago. The Chicago was the leading vessel in a column of four cruisers steaming from the harbor of San Pedro to the harbor of San Francisco. The Vice Admiral, commanding the column from the Chicago, testifies in detail as to how they proceeded. The deck log of the Chicago shows that from midnight to 7 o'clock in the morning prior to the collision, the visibility was the lowest recorded under the naval system. For each hour it shows the visibility at zero; that is, a visibility of less than 50 yards. This figure, as explained by the table printed in the logbook, means: "0. Prominent objects not visible at 50 yards." (Resp.Ex.No. 24.) The speed then maintained by the cruisers, the Vice Admiral testifies and the log shows, was over 12 knots through the water.

The fog was so dense that, as the Admiral testifies, the distances between the succeeding and the preceding invisible members of the squadron had to be maintained by observing a spar towed by the vessel ahead which throws up a spray in the water. (Ap. 127). An experiment with a sister ship of the Chicago, conducted by the Navy a few days before the trial below, shows that at a 12 knot speed, even if promptly exerting the use in reversing of all the steam of her two boilers, capable of sending her ahead at 18 knots, the Chicago cannot be brought to a standstill until she has proceeded at least 475 yards through the water.

One of the very long-established principles of law in maritime navigation is that a vessel shall not proceed in a fog at a speed at which she cannot be stopped dead in the water in one-half the visibility before her. The Chat...