Opinion
No. 151, Docket 21203.
January 31, 1949.
Appeal from the United States District Court for the Southern District of New York.
Proceeding in the matter of the petition of the United States, as owner of the steam tanker Spring Hill, her engines, boilers, etc., and of the Barber Asphalt Corporation, as general agent of the United States acting by and through the administrator, War Shipping Administration, in connection with the steam tanker Spring Hill, her engines, boilers, etc., for exemption from or limitation of liability. The Panama Transport Company, owner and operator of the motor ship Clio, also filed a petition for exoneration from or limitation of liability, and both it and the United States filed a claim in the proceedings started by the other. In addition the Norwegian government, owner of the Vivi, and numerous personal injury and death claimants filed claims in both proceedings. From the judgment the Panama Transport Company appealed.
Affirmed.
See also 172 F.2d 355.
This is a consolidated proceeding to fix liability for damages from a collision occurring in New York Harbor on February 5, 1945, between the motor tanker, Clio (owned by the appellant, Panama Transport Company) and the steam tanker Spring Hill (owned by the United States) which resulted not only in damages to the ships involved, but also in a fire that caused many deaths and personal injuries aboard the Spring Hill and aboard the Vivi, a Norwegian tanker anchored nearby.
The United States and the Panama Transport Company each instituted a proceeding for limitation of liability; each filed a claim in the proceeding started by the other. In addition, the Norwegian government, owner of the Vivi, and numerous personal injury and death claimants, filed claims in both proceedings.
The trial court found the following facts: On the morning of the collision, a bright clear day, at 8.27 A.M., the Clio, under sea water ballast, left Pier 6, Constable Hook, Bayonne, New Jersey, on a voyage to Venezuela. The undocking, assisted by several tugs, was directed by the captain of one of the attending tugs who was aboard the Clio. She proceeded out of the Kill Van Kull, and at 8.38 the tugs and the undocking master left her. She then proceeded slowly eastward. At 8.42 her engines were put half speed ahead and at 8.44, northeast of the St. George ferry slips, full speed ahead.
The anchorage area ahead of her, off Staten Island, was crowded with anchored vessels, all stemming the ebb tide and heading in a northerly direction. On observing this, the pilot of the Clio decided not to follow the usual course of proceeding out on the range from the Kill Van Kull to the channel between Staten Island and Brooklyn. This course would have required the Clio, with the ebb current bearing on her port side, to cross the bows of many vessels, and then to make a sharp turn to the right into the channel. Instead of going to the channel, therefore, she turned right and headed southeasterly between two lines of anchored ships, planning to turn left into an opening of about 1,000 feet in the outside line of ships, between the stern of the U.S.S. Alamance (a naval attack transport, AKA-75) and the bow of the Spring Hill. The Clio entered the passage between the two lines of vessels at 8.49, and her engines were brought down to slow ahead. About that time the pilot of the Clio observed a large tug, the U.S.S. Cocopa, a short distance west of the opening between the Alamance and the Spring Hill. The Cocopa was heading easterly and was then about 2,000 feet away from the Clio.
The Cocopa had been heading for the same opening between the Alamance and the Spring Hill. As she approached, the Cocopa encountered a number of small military landing craft in the opening. As these obstructed her passage, she was obliged to stop her engines at 8.49 A.M. (Clio time; this was 8.48 Cocopa time). The Cocopa sounded two danger signals and the landing craft dispersed in all directions, clearing the opening. The Cocopa then passed between the vessels and turned right, to the south.
At about 8.52, the Clio blew a single blast to the Cocopa; this was repeated; receiving no response, the Clio went full ahead on a hard right wheel at 8.52½, intending to pass the Cocopa. The Cocopa then went ahead through the opening. At 8.54, turning left into the opening, the Clio's pilot stopped her engines and blew a danger signal. To avoid collision with the Spring Hill, at 8.55 the pilot of the Clio had both anchors dropped, both engines put full astern, the danger signal sounded, and the helm put hard right. The Clio's pilot claims that just before 8.55 and as he was about to proceed across the bow of the Spring Hill, he observed landing craft proceeding north from behind the Spring Hill. At 8.56 the bow of the Clio struck the forward port side of the Spring Hill. The plating of the Spring Hill was broken, and high octane gasoline, with which the Spring Hill was loaded, was ignited by sparks. Fire enveloped the Spring Hill and the flames were carried to the Vivi, anchored astern of the Spring Hill.
The Spring Hill lay at anchor on the morning of February 5, 1945. Her degaussing system was energized, as required by the Navy. Her third mate, boatswain and several crew members were on watch on deck, and the chief officer was walking from side to side on the after part of the lower bridge. Sufficient steam was up to operate the main engines and all the necessary machinery. Full speed ahead or astern could have been obtained in two or three minutes after the engine-room received the proper signals from the bridge. Shortly before the collision, a general alarm was sounded on board the Spring Hill but the collision occurred so suddenly and the fire spread so rapidly that it was impossible for those on the Spring Hill to take precautions to prevent the collision or to check the spread of the fire.
The trial judge found that the military landing-craft did not contribute to the collision; rather, because of their maneuverability there was no substantial danger of collision between any of them and the Clio. He also found that the Spring Hill maintained an adequate lookout for an anchored vessel, and that the collision happened so quickly that the Spring Hill had no chance to avoid it or minimize its consequences. The Cocopa, the trial judge found, was out of the way before the dangerous situation arose, and never interfered with, or embarrassed, the navigation of the Clio in any way. Finally, he found that the Clio proceeded at an excessive speed over the crowded anchorage ground; that those in charge of her failed to maintain control of her movements; that she was not sufficiently alert and attentive; and that she failed to blow the proper signals. He concluded that the Clio was solely responsible for the collision and the resultant damage.
The trial judge referred the case to a Commissioner to ascertain and report on the amount, validity, and priority of the claims filed.
The Norwegian government, as owner of the Vivi, asserted claims against the United States and the Panama Transport Company, for the physical damage to the Vivi and the loss of time in repairing her. After the collision, on May 29, 1945, an Agreement between the United States and Norway, referred to as the "Knock for Knock Agreement," came into force. It is not disputed that it retroactively applied to claims such as that asserted by the Norwegian government here, and that by the terms of the Agreement, the claim of the Norwegian government is required to be waived. This case, however, comes within Article 2 of the Agreement, which provides: "Where in any case claims arise which are not required to be waived by this Agreement in addition to, or in conjunction with, claims which are so required to be waived and it is necessary in any proceedings for the limitation of liability that claims be marshalled or for the proper assessment of any salvage or general average that values should be estimated, the provisions of this Agreement shall not apply but claims which would otherwise be required to be waived under this Agreement shall be asserted. Any recoveries, however, shall be waived by the Government entitled to such recoveries or at the option of such Government shall be dealt with in such other way as to give effect to the purposes of this Agreement."
The Trial judge concluded that the Royal Norwegian Government was entitled to a decree in its favor, for all of its damages, against the Panama Transport Company.
Haight, Deming, Gardner, Poor Havens, of New York City (Charles S. Haight and MacDonald Deming, both of New York City, of counsel), for appellees the Royal Norwegian Government, Ansgar Danielsen, Olaf Tollefsen, and Ottar Fjortoft.
Kirlin Campbell Hickox Keating, of New York City (Edwin S. Murphy and Raymond T. Greene, both of New York City, of counsel), for Panama Transport Co.
John F.X. McGohey, of New York City (Edward L. Smith and Max Taylor, both of New York City, of counsel), for The United States.
Bigham, Englar, Jones Houston, of New York City (Andrew J. McElhinney, of New York City, of counsel), for Barber Asphalt Corporation, general agent of Tanker Spring Hill.
Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.
In Erie R. Co. v. The Cornell No. 20, 2 Cir., 164 F.2d 763, 765, we said: "Determination of the facts of a lawsuit, when the witnesses disagree about them, always presents difficulties. As the facts necessarily occurred in the past, and not in the trial judge's presence, he must undertake an historical reconstruction; and the wiser historians tell us that any such reconstruction is inherently guessy. For the likelihood is small that any mere mortal can acquire absolutely certain knowledge of bygone events. The probability is less that such knowledge will be approximated by upper-court judges, reading but a printed record, than by a trial judge who sees and hears the witnesses testify. For that reason, pursuant to the Rules, we have repeatedly refused to retry the facts of a case when the evidence was oral. Here we are again asked to do so, and must again refuse." In the case at bar, once more such a request is made. No one should be surprised that once more we refuse. It is urged that this case is unusual because the trial judge, Judge Bright, having orally announced his conclusions, filed no written opinion and died not long after he filed his findings of fact. From this, the inference is sought to be drawn that he merely rubber-stamped findings drafted by the lawyers for the successful parties. We think such an inference unjustified, especially as we knew Judge Bright to be unusually able and conscientious. As we consider that his findings are supported by the evidence, we accept them. And we think the findings sustain his legal conclusions.
The "Knock-for-Knock Agreement," Article 2, expressly provides that claims such as that of the Norwegian government shall be asserted, but that recovery should be waived or otherwise dealt with "as to give effect to the purposes of this Agreement." The recovery, not the decree, is barred. The Norwegian government is entitled to a decree in its favor for the amount of its claim as fixed by the Commissioner, subject to the provision that, in accordance with the terms of the Agreement, the recovery "shall be waived by the Government * * * or at the option of such Government shall be dealt with in such other way as will give effect to the purposes of this Agreement."
Affirmed.