Opinion
C. E. H. Maloy, of Seattle, Wash., for libelants.
Jones & Bronson, of Seattle, Wash., for respondents.
BOWEN, District Judge.
On October 3, 1938, the fishing vessels 'Sonia' and 'Admiralty' were in collision in Alaska waters. It is stipulated that the collision resulted from the mutual fault of the vessels. Certain repairs to the 'Sonia' were made at Ketchikan, Alaska, which enabled her to finish the few remaining days work of the fishing season, but the 'Sonia's' owners for the benefit of her underwriters have in this action sued the 'Admiralty' and her owners for the cost of permanent repairs to the 'Sonia' amounting to $2,967.80 made at Tacoma after the close of the fishing season, and for $172.50 surveyor's fee, contending that the Ketchikan repairs were insufficient and worthless, and the 'Sonia's' charterer joins in this action against the 'Admiralty' and her owners with the charterer's claim of $250 for loss of charter hire during the 'Sonia's' lay up for the Ketchikan repairs. The 'Admiralty's' owners have answered denying the insufficiency and worthlessness of such Ketchikan repairs and admitting loss of $200 worth of charter hire (for four work days admittedly lost), but denying the loss of more charter hire, and respondents also have crosslibeled the 'Sonia' and her owners for the cost of the 'Admiralty's' repairs in the sum of $1,222.81.
As both sides admit, the admiralty rule of division of damages applies, since both vessels were at fault. The amount of the 'Admiralty's' necessary repairs in the sum of $1,222.81 is not questioned, and respondents admit liability 'for their share of the actual damage to the 'Sonia' on the basis of mutual fault ' (Respondents' Brief, page 9, lines 6-8), but contend that the Ketchikan repairs put the 'Sonia' in as good condition as she was in immediately prior to the collision.
The only question for decision is whether the 'Sonia's' alleged permanent repairs were made necessary by the collision. The law applicable to the case is not in dispute.
From a preponderance of the evidence it appears that the 'Sonia' was inspected in May, 1938, preparatory to beginning that year's fishing season and the vessel and her equipment were then in good condition; that thereafter during the fishing season and before the collision the 'Sonia' operated properly and efficiently, her engine did not vibrate, heat up, or throw oil from the clutch bearings, the vessel did not leak and in all respects her condition continued to be in proper order up to the time of the collision.
The evidence further discloses that at the time of the collision the 'Sonia' was fully loaded with fish, was traveling at full speed ahead at about 8 m.p.h. and struck the 'Admiralty' broadside on the port quarter, the 'Sonia's' stem iron was bent, fractured and torn away from the stem and her 'stem was badly shattered and splintered from the forefoot to topside and back to the rabbit line' (McKinstry Survey Report attached to McKinstry Deposition). The 'Sonia's' gross weight was 55 tons and the gross weight of the 'Admiralty' was 62 tons.
The only substantial repairs made at Ketchikan were confined to the 'Sonia's' stem and stem iron and were accomplished in 4 days at a cost of $418. Prior to the collision the stem and its apron were in one piece, which by the Ketchikan repair job was replaced in two pieces.
Although the 'Sonia' after the Ketchikan repairs were made returned to the fishing grounds and completed the few days' work remaining of the fishing season, her engine experienced excessive vibration, noticeable laboring, heating and smoking, and the clutch was throwing oil. These conditions were not prevalent before the collision, but they persisted and impeded navigation of the vessel during the homeward voyage from Alaska to Puget Sound immediately after the close of the fishing season. No thorough inspection of the engine fittings was made at Ketchikan, but at Tacoma after such homeward voyage a thorough inspection made on behalf of and at the request of the 'Sonia's' underwriters disclosed that the engine's holding down bolts were loose allowing the engine to get out of alignment, damaging the clutch, and that the thrust, thrust shaft, babbit and shaft bearings were worn and slack, due to the slack in the holding down bolts and resultant working of the engine on its bed. In the Tacoma inspection it was also found that a leak had developed around the lower part of the stem's apron through a split in the apron where it joined the deadwood, a condition which had been caused by the collision but which had not been successfully repaired at Ketchikan.
The evidence and reasonable inferences therefrom establish the facts that the charterer desired to have the 'Sonia' resume her fishing work as quickly as possible during the remaining few days of the fishing season and to avoid the delay which a more thorough inspection and more complete repair would have occasioned at Ketchikan. The conclusion is inescapable that the Ketchikan repairs were not complete, but were in reality of a temporary nature.
The court finds from a preponderance of the evidence that the inspection made at Tacoma after the close of the season was reasonable and thorough and that the damages to the 'Sonia' in the sum of $2,967.80 found by that inspection were caused by her collision with the 'Admiralty', and that the 'Admiralty' and her owners are liable for such damages, as well as for the surveyor's fee of $172.50 and four days' lost charter hire amounting to $200, upon the basis of mutual fault of and division of damages between the two vessels.
The court would like, if convenient to counsel, to settle order on Monday, April 28, 1941, at 10 o'clock in the forenoon.