Tidewater Associated Oil Co. v. United States

• Decision Date: 20 March 1945
• Docket Number: No. 2628 Civil.,2628 Civil.
• Parties: TIDEWATER ASSOCIATED OIL CO. v. UNITED STATES.
• Court: U.S. District Court — Southern District of California

60 F. Supp. 376

TIDEWATER ASSOCIATED OIL CO. v. UNITED STATES.

No. 2628 Civil.

District Court, S. D. California, Central Division.

March 20, 1945.

COPYRIGHT MATERIAL OMITTED

McCutchen, Thomas, Matthew, Griffiths & Greene, Farnham P. Griffiths, Harold A. Black, Charles E. Finney, and Russell A. Mackey, all of Los Angeles, Cal., for libellant and cross-respondent.

Arnold W. Knauth, Atty., Claims Division, Department of Justice, of Washington, D. C., and Charles H. Carr, U. S. Atty., and Robert E. Wright, Asst. U. S. Atty., both of Los Angeles, Cal., for respondent and cross-libellant.

J. F. T. O'CONNOR, District Judge.

Statutes under which the libel was brought:

This suit in admiralty was instituted by the filing of a libel on December 14, 1942, by the libellant, Tidewater Associated Oil Company, a corporation, as owner of the American tank steamship, hereinafter referred to for military security as libellant's vessel "A", against the respondent, United States of America, as owner and operator of the steamship, hereinafter referred to for like military security, as respondent's vessel "B", in a cause of collision, civil and maritime, pursuant to and by virtue of the authority given in the Suits in Admiralty (Public Vessels) Act of March 3, 1925, c. 428, 43 Statutes at Large 1112, 46 U.S.C.A. §§ 781-790, as well as pursuant to, and by virtue of, the authority given in the Suits in Admiralty (Merchants Vessels) Act of March 9, 1920, c. 95, 41 Statutes at Large, 525, 46 U.S.C.A. §§ 741-752, as a result of a collision between these two vessels which occurred in the early morning hours of December 5th, 1942, on the Pacific Ocean off Point Conception, California, in which, according to the libellant's pleading, the libellant claims damages amounting to approximately $125,000. Respondent, in addition to its answer, has filed a cross-libel for damages approximating $56,767.72 to respondent's vessel "B", alleging negligence on the part of the libellant. Hereafter, for brevity, the libellant and cross-respondent will be referred to as the libellant, and the respondent and cross-libellant will be referred to as the respondent.

At this point, in order to more clearly elucidate the court's opinion, there is inserted herewith a short sketch which, although it has no military value because it is not drawn to scale, very clearly and quickly illustrates the points of origin and the designated courses the two vessels were instructed to take to reach their destinations safely, and the approximate point of contact between the two vessels. It will be seen from an examination thereof that the libellant's vessel "A" was en route from Ventura to San Francisco, Calif., and the respondent's vessel "B" was en route from San Francisco to Hueneme.

As to the facts of the collision itself, both sides have stipulated that the collision occurred in the early morning hours of December 5th, 1942, off Point Conception on the California coast, at about 4:37 A. M., and that both vessels were sailing blacked-out under instructions from the Navy Department. Necessarily their sailing blacked-out cannot be imputed as an act of negligence on the part of either vessel. The respondent admits that the United States Navy was and is a competent military authority to issue such instructions under war conditions and admits that the libellant's vessel "A", at the time of the said collision and prior thereto, proceeded in conformity with said instructions, and upon the routes and courses designated for her by the said instructions.

Knowledge of instructions of Port Director's Office at San Francisco, by respondent:

Prior to departure of respondent's vessel "B" from San Francisco to Hueneme, the Court finds that respondent's vessel "B" was given a certain designated course to follow at the Port Director's Office in San Francisco; and, as to these instructions, the master in charge of respondent's vessel "B" stated in his deposition, as follows:

"Q. By Mr. Mackey (proctor for the libellant): Captain, you received instructions at San Francisco concerning your navigation from San Francisco to Hueneme, didn't you? A. Yes.

"Q. And those instructions came from the Port Director's Office at San Francisco? A. Yes.

"Q. That is the Port Director's Office of the Navy, isn't it? A. Yes.

"Q. And were those instructions written or verbal? A. Well, they were written.

"Q. And you were given three points to pass through from the point of departure at the Farallones to your arrival at Hueneme? A. Yes.

"Q. And those points you say were designated `B', `C' and `D', that is correct, isn't it? A. Yes.

"Court's note: Points `B' and `C' are not designated on the sketch (supra) post because these points were to be passed prior to point `D'.

"Q. Were you told or informed in writing or otherwise when you left San Francisco that the `A' would be coming up northbound? A. No, sir.

"Q. Isn't it a fact that the instructions given to ship masters navigating coastwise, are designed so as to provide a lane of traffic going north and a lane of traffic going south so as to keep the two lanes separate? A. Yes.

"Q. And that is the purpose of giving you points to pass through? A. Yes, sir.

"Q. And your instructions called for you to proceed directly from point `B' to point `C' and then from point `C' to point `D'? A. Yes, sir.

"Q. That is correct? A. Yes, sir.

"Q. You are supposed to make the transit between those points in the shortest and straightest line, aren't you? A. Well, they do say that you can go to either side of them.

"Q. But the idea is to have you go directly from one point to another in a straight line, isn't it? A. Yes.

"Q. And upon leaving point `C' your instructions would call for your going in the nearest straight line from point `C' to Hueneme. A. Yes.

"Q. Weren't you supposed to head from that point `C' for Hueneme?

"Miss Phillips (proctor for the respondent): Point `D'.

"Mr. Mackey: I beg your pardon, I mean point `D'.

"Q. By Mr. Mackey: Supposed to head from point `D' to Hueneme? A. Yes, sir." (Resp. Ex. No. "A", pp. 75-77.)

Instructions of the Navy Department had the effect of a statute:

The primary legal question for the court to determine is this: Did these instructions received from the Port Director's office at San Francisco by the captain of respondent's vessel "B", prior to his departure from San Francisco for Port Hueneme, have the force and effect of a statute; and, if the court so decides, can a violation thereof be construed to be the proximate cause of the accident, or a statutory fault, and prohibit the respondent vessel "B" from availing itself of the doctrine of in extremis. The court sequentially will take up at this point the construction to be placed upon these instructions of the Navy Department.

In accordance with the powers granted by the First War Powers Act, December 18, 1941, c. 593, 55 Stat. 838, 50 U.S.C.A. Appendix, § 601 et seq., the President, by Executive Order No. 9083, on February 28, 1942, 7 Fed.Reg. 1609, 50 U.S.C.A.Appendix, § 601 note, made the commandant of the Coast Guard, under the Supervision of the Secretary of the Navy, supreme in the matter of the regulation of the navigation of vessels. Under the Second War Powers Act, 1942, 50 U.S.C.A.Appendix, § 631 et seq., the heads of each department responsible for the administration of the navigation laws were directed to waive compliance therewith upon request of the Secretary of the Navy. The Secretary of the Navy took over the full responsibility for the administration of the navigation laws.

Did these instructions which respondent's vessel "B" was instructed to follow have the force and effect of a statute, and what are the necessary implications in admiralty law from a violation thereof?

In The H. F. Dimock, 1 Cir., 77 F. 226, 229 (decided 1896), which was a collision case, the court states the law where a statutory rule has been violated as follows:

"We are aware that the master of the Dimock (the vessel held solely at fault) appears to have been competent for his position, and to have exercised an honest judgment, and, indeed, to have proceeded even more carefully than other steamers navigating practically in company with him. Where the questions are merely those of prudential rules of navigation and of maritime usages, a vessel should not ordinarily be held in fault simply because the courts, with cool deliberation, after all the facts, determine that what was done was mistaken. * * * but here we are dealing with an injunction of the statute, from which the court cannot excuse the Dimock. In Belden v. Chase, 150 U.S. 674, 698, 14 S.Ct. 264, 272 37 L.Ed. 1218, it is said that the statutory rules, and also those made by the supervising inspectors by authority of the statute, are not merely prudential regulations, but are obligatory. To such an extent is this enforced that the supreme court, in The Pennsylvania, 19 Wall. 125, 136 22 L.Ed. 148, apparently adopted the English rule, that the burden rests on a ship to show, whenever she disregards the statutory regulations, not merely that such disregard might not have been one of the causes of the collision, or even that it probably was not, but that `it could not have been.' This was apparently restated in Belden v. Chase, at page 699, 150 U.S., and page 272, 14 S.Ct. 37 L.Ed. 1218, in The Martello, 153 U.S. 64, 74, 14 S.Ct. 723, 726 38 L.Ed. 637, and in The Britannia, 153 U.S. 130, 143, 14 S.Ct. 795, 799 38 L.Ed. 660. To understand this strictness, it is necessary to observe that, where it appears that a vessel has only neglected the usual and proper measures of precaution, but has not violated any statutory regulation, the burden resting on her to show that the collision was not owing to her neglect as the efficient cause is only the ordinary one. The Great Republic, 23 Wall. 20, 34 23 L.Ed. 55. If there were any doubt that the fault of the Dimock led to the collision, the authorities to which we have...