United States v. Soriano

• Decision Date: 08 November 1966
• Docket Number: No. 20266,20129,20130.,20266
• Citation: 366 F.2d 699
• Parties: UNITED STATES of America, Appellant, v. Dewey SORIANO, Appellee. PETITION of AMERICAN MAIL LINE LTD., a corporation, owner pro hac vice of the AMERICAN OIL SCREW ISLAND MAIL, Official No. 421157, for exoneration of liability et al. UNITED PACIFIC INSURANCE COMPANY et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.2d 699 (1966)

UNITED STATES of America, Appellant, v. Dewey SORIANO, Appellee.

PETITION of AMERICAN MAIL LINE LTD., a corporation, owner pro hac vice of the AMERICAN OIL SCREW ISLAND MAIL, Official No. 421157, for exoneration of liability et al.

UNITED PACIFIC INSURANCE COMPANY et al., Appellants, v. UNITED STATES of America, Appellee.

Nos. 20266, 20129, 20130.

United States Court of Appeals Ninth Circuit.

September 27, 1966.

Rehearing Denied November 8, 1966.

Wm. N. Goodwin, U. S. Atty., Seattle, Wash., John F. Meadows, Atty. in Charge, Henry Haugen, Sp. Atty., Admiralty & Shipping Sec., Dept. of Justice, San Francisco, Cal., for the United States.

Lane, Powell, Moss & Miller, Jones, Grey, Kehoe, Hooper & Olsen, Martin P. Detels, Jr., Harry B. Jones, Jr., Seattle, Wash., Joseph J. Magrath, Bigham, Englar, Jones & Houston, New York City, for appellants United Pacific Ins. Co. and others.

Charles B. Howard, Richard W. Buchanan, Summers, Howard & LeGros, Seattle, Wash., for appellee, Dewey Soriano.

Stanley B. Long, Edward C. Biele, Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for appellee, American Mail Line Ltd.

Before HAMLEY and JERTBERG, Circuit Judges, and THOMPSON, District Judge.

Rehearing Denied in Nos. 20266, 20130, November 8, 1966.

HAMLEY, Circuit Judge:

The above-entitled cases, consolidated for trial and appeal, are part of the extensive litigation spawned by a marine casualty which occurred on May 29, 1961. On the afternoon of that day the cargo vessel M/V ISLAND MAIL was proceeding north through Puget Sound and the eastern portion of the Straits of Juan de Fuca, en route from Seattle to Bellingham, Washington. The vessel struck a submerged and uncharted rock west of Smith Island, in the Straits of Juan de Fuca. Substantial damage to the hull and cargo was sustained.

Certain subrogated cargo underwriters (Private Cargo) filed a libel against the United States, seeking recovery for loss and damage to their cargo. District court jurisdiction was asserted under section 2 of the Suits in Admiralty Act, 41 Stat. 525 (1920), as amended, 46 U.S.C. § 742 (1964), and under the Federal Tort Claims Act, 62 Stat. 933 and 982 (1948), 28 U.S.C. §§ 1346(b), 2671 et seq. (1964). The district court, after trial, dismissed the libel with prejudice and Private Cargo appeals. The case was docketed here as United Pacific Insurance Company, et al. v. United States, No. 20130, and will be referred to herein as the Private Cargo-Government case.

American Mail Line, Ltd., (Mail Line), bareboat charterer of the ISLAND MAIL, filed a petition for exoneration from or limitation of liability under Rev. Stat. 4285 (1875), 46 U.S.C. § 185 (1964). Private Cargo filed claims in that proceeding for loss and damage to their cargo. The aggregate of all claims did not approach the limitation fund. The district court therefore regarded Mail Line's petition for exoneration from or limitation of liability as moot.

The court treated all claims against Mail Line as ordinary libels for cargo damage, and after trial, dismissed the libels with prejudice. Private Cargo appeals. The case was docketed as In the Matter of the Petition of American Mail Line, Ltd., etc., No. 20129, and will be referred to herein as the Private Cargo-Mail Line case.

The United States filed a libel in personam against Dewey Soriano, pilot of the ISLAND MAIL at the time of the casualty, to recover for damage to its cargo on board the ISLAND MAIL. District court jurisdiction was asserted under 28 U.S.C. § 1333(1) (1964). The district court, after trial, dismissed the libel with prejudice and the United States appeals. The case was docketed here as United States v. Soriano, No. 20266, and will be referred to herein as the Government-Soriano case.

While there is some overlapping of issues, the questions raised on these three appeals can be conveniently discussed under the heading of the appeal to which they primarily relate.

Private Cargo-Government Case

The submerged rock which the ISLAND MAIL struck on May 29, 1961, was not shown on any Government chart, nor had the Government taken any other means of advising mariners that a rock was located at the place where the ISLAND MAIL casualty occurred. The theory of Private Cargo's case against the Government is that the Government should have charted this rock previous to the ISLAND MAIL casuality and otherwise warned mariners of its presence. Private Cargo asserts that, instead, the Government made inaccurate notations on its charts, and otherwise inaccurately warned mariners that wreckage had been encountered some distance away from the rock which the ISLAND MAIL struck.

Private Cargo's theory is predicated on the fact, stipulated by it and the Government, that the ISLAND MAIL struck a rock at approximately 48° 19.35' North Latitude, 122° 53.3' West Longitude. The trial court so found on the basis of that stipulation, describing this obstruction as the 3.5 rock.¹

According to Private Cargo, the Government had long known, or in the exercise of reasonable care should have known, that another vessel, the SS CHARLES CROCKER, struck this same submerged rock on June 18, 1952. Private Cargo asserts that the Government failed to give mariners prompt notice of this fact by chart notations and otherwise. Instead, the Government published a notice that "sunken wreckage has been reported in 48° 19' 32" N., 122° 53.40" W.," and placed a symbol, "Wreckage Rep. 1952," on Coast and Geodetic Survey Charts of the Smith Island area, together with a small circle, tinted on some charts.

Private Cargo contends that the circle on the charts indicating a danger area was centered over seven hundred feet from the reported position of the CROCKER at the time of its casualty, and an accurate representation of the reported position would have centered the wreckage notation only eight hundred feet west of the 3.5 rock. In addition, Private Cargo states that had the Government made a reasonable search after receiving the report of the CROCKER casualty it would have found that the rock struck by the CROCKER was the 3.5 rock and could have reported its exact location. Moreover, the Government gave no warning that the reported object was a danger to surface navigation or that it had been struck by a vessel having a mean draft of twenty-one feet eleven inches.

The trial court did not find that the Government had been negligent in all the particulars contended for by Private Cargo. It did, however, find that the Government had been negligent in failing to disseminate information obtained from Captain Dexter Flint of the CROCKER, conveyed by his letter of July 7, 1952. In that letter statements were made concerning the location of the submerged object which the CROCKER struck, and the depth of the water in that vicinity. The trial court also found that the Government had been negligent in failing to disseminate approved conclusions reached by a Coast Guard investigating officer.

The trial court further found, however, that the Government's negligence was not a proximate cause of the ISLAND MAIL casualty. The court therefore dismissed Private Cargo's libel against the Government.

The court gave two reasons for finding that the Government's negligence was not a proximate cause of the ISLAND MAIL casualty. One reason was that the CROCKER did not strike the 3.5 rock, and therefore the charting of the rock which the CROCKER struck could not have saved the ISLAND MAIL from striking the 3.5 rock. In support of this reason the trial court expressed the view that: (1) there was too much water over the 3.5 rock at the time of the CROCKER casualty to make such a collision possible; and (2) the rock which the CROCKER struck was in the general area .27 miles east of the 3.5 rock.

The second reason relied upon by the trial court in finding that the Government's negligence was not a proximate cause of the ISLAND MAIL casualty was that the sole proximate cause was the negligence of Pilot Soriano in permitting the ISLAND MAIL to penetrate the so-called ten-fathom curve around Smith Island within which the 3.5 rock was located.² The area within this curve, tinted blue on Government charts, has a depth of less than ten fathoms. The trial court found that the ten-fathom curve in that particular area is "* * * a definite warning of danger." The court found that Soriano was negligent in permitting the ISLAND MAIL to penetrate the ten-fathom curve because he failed to make a proper check of the vessel's position and allow for the current.

Private Cargo challenges these findings as to proximate cause, and the lack of findings which would have led to the conclusion that negligence on the part of the Government was a proximate cause of the casualty.

We discuss first the finding that the CROCKER could not have struck that obstruction because of the depth of the water over the 3.5 rock. Private Cargo contends that this finding is based upon the erroneous finding that the 3.5 rock had a height of only eighteen feet at the time of the CROCKER casualty. Private Cargo does not question the report of the Navy divers that the 3.5 rock was only eighteen feet high on July 13, 1961. Private Cargo points out, however, that the Navy divers also reported that this rock was twenty feet wide and twenty-five feet long, as it rested on that date. Private Cargo argues that the court should have found that the 3.5 rock stood twenty-five feet high at the time of both the CROCKER and ISLAND MAIL casualties, but that the rock was pushed over to its present position when it was struck by the ISLAND MAIL.

In support of this contention, Private Cargo argues that had the 3.5 rock stood only eighteen feet high at the time of the ISLAND MAIL casualty, it would have been physically impossible for that rock to have come in contact with the actual point of impact on that vessel. The Government tried to explain how that impact could have occurred, by producing evidence...