United States v. Los Angeles Soap Co.

• Decision Date: 14 May 1936
• Docket Number: No. 7783.,7783.
• Citation: 83 F.2d 875
• Parties: UNITED STATES v. LOS ANGELES SOAP CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

83 F.2d 875 (1936)

UNITED STATES v. LOS ANGELES SOAP CO. et al.^*

No. 7783.

Circuit Court of Appeals, Ninth Circuit.

May 14, 1936.

COPYRIGHT MATERIAL OMITTED

Peirson M. Hall, U. S. Atty., and Leo V. Silverstein and Jack L. Powell, Asst. U. S. Attys., all of Los Angeles, Cal., and Esther B. Phillips, Asst. U. S. Atty., of San Francisco, Cal. (Myron H. Avery, Office of the Solicitor, Department of Commerce, of Washington, D. C., of counsel), for the United States.

S. Hasket Derby, of San Francisco, Cal., L. K. Vermille, of Los Angeles, Cal., and Douglas D. Crystal, of New York City (Derby, Sharp, Quinby & Tweedt, of San Francisco, Cal., Overton, Lyman & Plumb, of Los Angeles, Cal., and Single & Tyler, of New York City, of counsel), for appellees.

Before WILBUR, GARRECHT, and HANEY, Circuit Judges.

GARRECHT, Circuit Judge.

An original libel and two amended libels were brought by the Los Angeles Soap Company, one of the appellees, to recover for shortage and contamination of a consignment of cocoanut oil shipped, in September, 1927, in the deep tanks of the steamship West Cajoot, owned by the appellant, from Manila to Los Angeles.

The appellant filed two libels to recover general average contribution alleged to have been due from the appellees, as a result of expenditures following the stranding of the West Cajoot off the coast of Japan.

Since most of the testimony was by deposition, the case, as the appellant itself points out, is before this court de novo, "both in theory and in fact."

On September 23, 1927, the West Cajoot left Manila with 1,223,583 pounds of cocoanut oil consigned to the appellee soap company. In the early morning of October 2, 1927, the vessel struck some obstruction in Van Diemen Straits, off the Japanese coast. Her engines were immediately put astern, and the ship floated a few minutes later. The West Cajoot's course was then altered for Kobe, Japan, where the vessel arrived on the evening of October 3, 1927. Repairs to the vessel were made on dry dock.

On October 5 it was discovered that the cocoanut oil in the port deep tank had been contaminated by fuel oil, and that some oil had leaked down into the No. 3 port double bottom fuel tank, which was directly underneath the port deep tank. The cocoanut oil was not removed from the deep tanks while the ship was at Kobe.

The West Cajoot left Kobe early on November 1, 1927. The next morning the vessel reached Yokohama, where she took on 1,984 barrels of fuel oil. The ship left Yokohama on the evening of November 2, arriving at San Francisco on November 22, 1927. She was dry-docked at that port for further examination, and left for Los Angeles on November 29, arriving at her destination on the morning of December 1.

The appellees' suit and the appellant's two suits were consolidated for trial. The court below found that the West Cajoot was in a seaworthy condition when she sailed from Manila, but that she "was unseaworthy on and after her arrival at Kobe by reason of the leak between the tanks above described, and remained so until the discharge of the cargo at the port of Los Angeles." The court also found that all of the cocoanut oil in the port deep tank was contaminated with fuel oil when the cargo arrived at Los Angeles, and that there was, moreover, a shortage of 90,620 pounds. In a memorandum opinion, the court stated that the appellant was liable for the "damage done to the cocoanut oil occurring after the arrival of the ship at Kobe," and added that "this quantity includes all of the oil in the tank affected except about ten tons."

The District Judge also found that the stranding of the vessel was the result either of "errors in navigation or in the management" of the West Cajoot. This finding is assigned as error, but, in our view of the case, it is immaterial.

In an interlocutory decree, the lower court ordered that the appellee soap company recover from the appellant all damages caused by the contamination of the cocoanut oil in the No. 3 port deep tank, except the 10 tons above referred to, together with all damages resulting from the shortage. The court also decreed that the appellant recover from both of the appellees general average contribution for the stranding of the steamship, and referred the cause to the United States commissioner to compute the amounts due to the respective parties.

The appellant is here attacking, first, so much of the interlocutory decree as holds that the appellee soap company is entitled to recover damages for the contamination of the cocoanut oil, except about 10 tons, and for the shortage of 90,620 pounds; and, second, so much of the decree as holds that the appellant should recover on its libels in general average for damage suffered only prior to the vessel's arrival at Kobe.

In their cross-appeal, the appellees assign as errors, inter alia, the lower court's failure to find that the West Cajoot was unseaworthy upon sailing from Manila and the court's allowance to the appellant of recovery in general average for such damages as were directly attributable to the stranding.

The cross-assignments of error assailing the seaworthiness of the West Cajoot are bottomed upon the alleged incompetency of the second assistant engineer, M. P. Appel. It is also asserted that the lower court erred in failing to find that, by permitting the West Cajoot to sail from Manila with Appel as an officer, the appellant, knowing Appel's incompetency, failed to exercise due diligence to make the vessel seaworthy in all respects.

The principal testimony as to Appel's alleged incompetency is found in the deposition of Paul Frazier Blinn, who was chief engineer of the West Cajoot on the voyage in question.

On cross-examination, Blinn's testimony as to Appel's mentality was as follows:

"A. I asked my second assistant where he was pumping his oil from, to burn in the ship, and he told me, `Number three.' I says, `No, there's no oil in number three; how can you pump from number three?' He said, `Yes, the port tank is full.'

"Q. Hadn't you already instructed him to discontinue pumping from number three? A. Yes.

"Q. How did he happen to be pumping from number three if you had instructed him not to? A. Well, he found there was oil in there. I always told the engineers to drag and get all the oil out of the tank they can — after they are empty there is a certain amount that will run down. And this particular man I had, he was a man that wasn't of sound mind, and a man that couldn't remember anything.

"Q. What was his name? A. Martin Appel.

"Q. Was he the man that you had to promote to the job of assistant engineer because of one of the engineers leaving you at Manila? A. No. No, I wouldn't promote him, because he was not a responsible man for the position.

"Q. Did you know he was of unsound mind when you departed from Manila? A. Yes.

"Q. And you think that was why he didn't obey your orders? Yes."

During the same cross-examination, the proctor for the appellee read the following excerpt from the engineer's log for September 21, 1927, entered while the vessel was still at Manila: "M. J. Peralta, Junior, First Assistant Engineer, paid off to transfer to S. S. Crissfield as chief engineer. W. Parke refused to be raised to second assistant engineer. All engine gang threatened to walk off ship if M. P. Appel was raised to first assistant. Unable to get engineers on shore. Under these conditions I was forced to raise J. L. Mone, water tender, to first assistant engineer, Mr. Mone having in his possession discharges to certify that he has held a chief engineer's position on foreign ships." (Italics our own.)

Blinn stated that the foregoing entries were correct. His testimony then continued:

"Q. Who were the vessel's agents at Manila? A. Swayne & Hoyt."

"Q. Did you report to them this trouble with Mr. Appel? A. Yes.

"Q. Did you tell them that he was of unsound mind? A. Yes.

"Q. What did they have to say to that? A. Well, they didn't say anything — to get along with him until we got back to 'Frisco. * * *

"Q. Did you get rid of Mr. Appel as soon as you arrived in San Francisco? A. Yes. Just the minute we paid off I got rid of him."

On recross-examination Blinn stead-fastly adhered to his testimony regarding Appel's incompetency:

"Q. Do you think Mr. Appel was a man of intelligence? A. No."

"Q. Do you think he was a competent man? A. No, he wasn't competent at all."

The appellant seeks to avoid the effect of the foregoing evidence by adducing a lengthy stipulation as to certain matters to which Chief Engineer Blinn would have testified had he been recalled to the stand. The substance of the stipulation is that: "In filling the settling tanks from No. 3 double bottom tanks, Second Assistant Engineer Appel was acting in accordance with the regulations of the vessel and did not disobey any instructions of the Chief Engineer when he filled the settling tanks from No. 3 double bottom tank at any time prior to the discovery of the leakage from the deep tanks into the double bottom tanks." The stipulation sets forth that Blinn would explain his change of testimony as to the filling of the settling tanks by the fact that at the time he gave his original deposition there were available to him only the "smooth engine room log books" instead of the "rough log."

The appellant also seeks to explain away Blinn's testimony by referring to the deposition of Henry F. Gelhaus, the marine superintendent of Swayne & Hoyt, of San Francisco, a firm that operated the West Cajoot for the appellant, and were the vessel's agents at Manila. Gelhaus thus testified as to the "temperamental qualities of Mr. Appel" which might have given Chief Engineer Blinn the "impression" that "there was anything wrong with Mr. Appel mentally": "Men aboard ship are something like a family. They get quarrelsome over nothing, and it is very easy for a junior officer to criticize a senior officer, and also a senior officer to criticize a junior...