THE WALTER A. LUCKENBACH

• Decision Date: 12 July 1926
• Docket Number: No. 4825.,4825.
• Parties: THE WALTER A. LUCKENBACH. UNION OIL CO. OF CALIFORNIA et al. v. LUCKENBACH S. S. CO. Inc. LUCKENBACH S. S. CO. Inc., v. UNION OIL CO. OF CALIFORNIA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

14 F.2d 100 (1926)

THE WALTER A. LUCKENBACH.

UNION OIL CO. OF CALIFORNIA et al. v. LUCKENBACH S. S. CO. Inc.

LUCKENBACH S. S. CO. Inc., v. UNION OIL CO. OF CALIFORNIA et al.

No. 4825.

Circuit Court of Appeals, Ninth Circuit.

July 12, 1926.

Farnham P. Griffiths, Russell A. Mackey, and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for appellants and cross-appellees Union Oil Co., Olai Olsen and others.

S. Hasket Derby, Carroll Single, and Joseph C. Sharp, all of San Francisco, Cal., for appellant and cross-appellee Shell Co. of California.

William Denman and William B. Action, both of San Francisco, Cal., for appellants and cross-appellees Insurance Co. of North America and other insurers.

Louis T. Hengstler and Frederick W. Dorr, both of San Francisco, Cal., for appellee and cross-appellant Luckenbach S. S. Co.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge.

On the afternoon of October 7, 1922, the steamship Walter A. Luckenbach came into collision with the oil tanker Lyman Stewart, off Fort Point in the Golden Gate, in a dense fog. At the time of the collision the Luckenbach was entering the harbor of San Francisco on a voyage from New York and Philadelphia to San Francisco, Portland, and Seattle. She passed the lightship off the Golden Gate at 2:25 p. m. that afternoon, and proceeded full speed ahead until she reached Mile Rock, about two miles from the place of the collision. She arrived at Mile Rock at 3:06 p. m., and proceeded thence at half speed until 3:19 p. m., when she encountered a strong eddy or rip tide near Fort Point. There the port engine was given full speed ahead and the starboard engine full speed astern, to straighten her on her course. This movement had scarcely been accomplished when the Luckenbach sighted the Stewart coming almost head on, going out to sea, not more than 300 or 400 feet away. The collision followed immediately thereafter. After the collision the two vessels remained together until 3:29 p. m., when they drifted apart. Both vessels were considerably damaged by the collision, but by far the greater damage was suffered by the Stewart. The Luckenbach struck her on the port bow abaft the stem and plowed in as far as the windlass, the gash extending both above and below the water line. The Stewart began to fill very rapidly.

After separating, the two vessels drifted back toward Mile Rock until 3:46 p. m., when the master of the Luckenbach received a message from the master of the Stewart asking for a line. As the master of the Luckenbach was reading the message, the steamship F. S. Loop came alongside and asked if he needed any assistance. The master of the Luckenbach replied that he did not, but directed him to stand by the Stewart, as he thought she was sinking. The Luckenbach then left the scene of the accident and proceeded into port. The Stewart drifted down toward Mile Rock, with the Loop hovering in the vicinity. At 4 p. m. the engines of the Stewart were started slow astern, at 4:05 they were stopped, and at 4:10 the vessel settled down on the rocks and became to all intents and purposes a total loss.

Thereafter the owner of the Luckenbach filed a petition for limitation of liability, and a libel for damages against the Union Oil Company, as owner of the Stewart. We deem it unnecessary to set forth in detail the different answers filed and claims made, further than to say that all proceedings affecting the two vessels were consolidated for the purpose of trial, and that by its final decree the court below adjudged: First, that both vessels were in fault and that the damages should be divided; second, that the damages recoverable by the Stewart and her cargo should be based on the condition of the vessel and her cargo immediately following the collision, and should not include damages caused by the subsequent stranding, and loss of vessel and cargo; third, that the value of the fuel oil, deck, engine room, and other stores on board the Luckenbach should be included in the appraised value of the vessel, for purposes of limitation of liability; and, fourth, that the owner of the Luckenbach was not entitled to recover certain costs, the principal item of which was a premium of $8,000 paid for the bond given by it in order to obtain a release of the vessel in the limitation proceedings.

The Luckenbach Steamship Company, as owner of the Luckenbach, has appealed from that part of the decree adjudging both vessels in fault and dividing the damages; from that part of the decree including the value of the fuel oil, deck, engine room, and other stores in the appraised value of the vessel for purposes of limitation of liability; and from that part of the decree denying a recovery of the costs claimed by it. The Union Oil Company, as owner of the Stewart, the Shell Company of California, as owner of part of her cargo, and certain insurance companies, subrogated to the rights of another cargo owner, have appealed from that part of the decree limiting the recovery by the Stewart and her cargo to the damages sustained by the Stewart in the collision, and denying a recovery for damages caused by the subsequent stranding and for loss of vessel and cargo.

We will take up these several questions in the order named. At the time and place of the collision the two vessels were in a narrow channel leading into a busy harbor; the fog was so dense that in the opinion of the court below visibility did not exceed two ship lengths, and in our opinion the finding is more favorable to the vessels than the testimony will warrant, for we doubt very much whether either vessel saw or could see the other for a greater distance than from 300 to 500 feet. The Luckenbach was proceeding against an ebb tide at a speed of from 9 to 10 knots through the water, and from 5 to 6 knots over the ground, while the speed of the Stewart with the ebb tide was from 5 to 6 knots through the water and from 9 to 10 knots over the ground. The lookout on the Luckenbach was stationed 100 feet back of the bow, 30 feet above deck, and approximately 55 feet above the water. Such are the findings of the court below, and these findings are amply supported by the testimony.

We are not now concerned with the fault of the Stewart, nor is it very material whether she was on the right or wrong side of the channel, because at the rate of speed at which the vessels were traveling in a dense fog a collision was inevitable, if they attempted to cross the same course at the same time; and, under the circumstances, it is very apparent that the Luckenbach did not maintain a proper lookout. A lookout stationed 100 feet back of the bow, while the vessel was passing in a dense fog through a narrow channel leading to a busy harbor, did not satisfy the requirements of the law. Perhaps, as stated by the court below, the result would have been the same if the lookout had been advantageously placed; but it always comes with ill grace for a vessel charged with failure to maintain a proper lookout to answer that her rate of speed was such that a lookout properly stationed would be powerless to protect her against a disaster such as this. The decree as to mutual fault and division of damages is affirmed.

In the original opinion filed in the case, the court below expressed a strong conviction that the ultimate loss of the Stewart and her cargo was attributable, not to the collision, but to the failure of the master to take proper steps for their preservation after the collision occurred; but, notwithstanding his personal convictions, the court divided all damages, in deference to the views of counsel, believing that the proctors for the Luckenbach had by their silence abandoned any claim that the loss of the ship and cargo was caused...