Waterman v. Aakre

122 F.2d 469, 1941 U.S. App. LEXIS 4554, 1941 A.M.C. 1263

• Court: Court of Appeals for the Second Circuit
• Decided: July 28, 1941
• Docket: 344
• Status: Published

Opinions

CLARK, Circuit Judge.

This proceeding arose out of the stranding of the Aakre, a Norwegian motor vessel of 4,138 tons gross and 2,336 tons net, on Cheney Island near Grand Manan Island in the Bay of Fundy on the morning of October 29, 1937. Much of the cargo of potatoes then on board was jettisoned, and most of the remainder was lost through delay and rehandling.

The cargo was carried under bills incorporating the Canadian Water Carriage of Goods Act, 1936, which in all material respects is identical with our own Carriage of Goods by Sea Act, 46 U.S.C.A. §§ 1300-1315. By Art. IV, sub. 1, of the Schedule of Rules of the Canadian Act, “Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied”; and by sub. 2, “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from (a) act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship: * * * (c) perils, danger, and accidents of the sea or other navigable waters.”

The trial court found that the stranding was not caused by unseaworthiness, but by an error in navigation. It consequently rendered a decree exonerating ship and carriers from liability, and dismissing the cargo owners’ libel. From this decree the latter appeals.

The Aakre sailed from St. John at 9:00 P. M., October 28, 1937, intending to traverse the Bay and leave it by way of the gap between Old Proprietor Shoal and Northwest Ledge. The distance from St. John to the gap is about 50 miles, and the width of the gap about 15 miles. The vessel first made good from St. John a course about 211° true, which, if continued, would have carried her just east of Old Proprietor Shoal and safely out of the Bay. When she had proceeded on this course about 26 miles through the water — an estimated 30 miles over the ground — a leak developed from a latent defect in a “telescope pipe,” and the engines were stopped at 11:45 P. M. to permit repairs. The court found, by tracing her course back from the point of stranding, that her drift between 11:45 P. M. and 2:50 A. M., when the engines were again started, was about four miles almost due west, placing her where a new course more southerly than the old would be necessary to pass to the east of Old Proprietor Shoal. Instead, she steered further to the west. From 2:50 A. M. until 4:00 A. M., she ran 221° true, toward the mass of shoals and islands behind Old Proprietor. At 4:00 A. M., she shifted her course still further west to 252° true; and at 4:20 A. M., she ran aground on Cheney Island, about 44 miles from St. John.

The strange courses steered from 2:50 until 4:00 A. M., and from 4:00 until 4:20 A. M., are explained by the captain’s complete misunderstanding of his position. His dead reckoning until the engines were stopped at 11:45 P. M. was at least roughly accurate, although it probably did not allow for the effects of favorable currents on his speed over the ground. At about 1:45 A. M., however, the third officer saw to the east what he believed to be Prim Point Light, which was actually invisible from the position of the ship at the time, and from anywhere except well to the east of her dead-reckoned midnight position. Surprised at this, the captain called on the second officer for a radio bearing, which the latter took from St. John at 2:25 A. M., found to be 216.5° true, but erroneously transcribed on the chart as about 195° true from St. John. By this error the apparent position of the vessel was shown to be far east of its actual position, and the third officer’s mistaken report of having sighted Prim Point Light was confirmed. Hence the captain believed that he was east, instead of west, of his original course, and set the new 2:50 A. M. course accordingly.

A second radio bearing from St. John taken at 3:41 A. M. showed the vessel at 218.5° true; but another error was made, and this bearing was transcribed onto the chart as about 197° true from St. John. Both errors were of 21°, the amount of local variation,¹ and may have been made by marking the chart with reference to the inner or magnetic, rather than the outer or true, rose. When the second St. John bearing was crossed immediately by a correct bearing from Yarmouth, Nova Scotia, the captain was led to believe that he was still to the east of his course and then dangerously near Northwest Ledge. Meaning to avoid this, he veered more sharply westward at 4:00 A. M. and directly onto Cheney Island.

It is entirely futile for appellants to question that such apparently simple mistakes of navigation could have been made. The three stated radio bearings were certainly taken, and the ship’s course was certainly laid as described. No other explanation of that course, except the complete uselessness of the compasses, can be imagined. Appellants do not suggest this, or any alternative explanation. The compasses were shown to be accurate and reliable, the court found that they were, and appellants have not even made out a serious case to the contrary.

The two charges of unseaworthiness which appellants make against the Aakre are that it used an inaccurate chart of the Bay, and that it lacked proper compass records.

The gist of the first of these charges is that the Aakre was using an old chart which showed the Fairway Buoy outside St. John Harbor to be 2% miles south by east of its position at that time, and that by taking the buoy as a point of departure she steered a course somewhat west of what she intended.

The vessel had aboard, however, another chart and a catalogue of lights and buoys by which the error might have been corrected, and the captain was personally aware of the error. Under such circumstances, a failure to make the necessary routine correction was possibly bad navigation, but was certainly not a deficiency in the vessel’s equipment. United States Steel Products Co. v. American & Foreign Ins. Co., 2 Cir., 82 F.2d 752; cf. The W. W. Bruce, 2 Cir., 94 F.2d 834, certiorari denied, Pacific-Atlantic Steamship Co. v. Weyerhaeuser Timber Co., 304 U.S. 567, 58 S.Ct. 950, 82 L.Ed. 1533. Although the first mate originally was misled by the erroneous chart, the captain noticed the error and corrected it before midnight. Moreover, navigation after the period of drifting was from a new point of departure, and completely detached from navigation before that period. Even if the course reckoned from the erroneous chart had gone uncorrected, it could never have thrown the vessel more than a negligible distance to the west of its reckoned course, for the east-west difference in the actual and indicated position of the buoy was very slight. Consequently, unseaworthiness with respect to the chart, if it had existed, could not have contributed to the accident.

The second charge of unseaworthiness was directed at the alleged deficiency in the compass book of entries on compass deviations.² The vessel carried deviation records in three different forms: (1) The compass card, kept on the bridge, showing the deviations at each compass interval of ten degrees, as found by a government adjuster at Sandefjord, Norway, on March 9, 1936; (2) the compass book, also kept on the bridge, showing 103 deviation entries made since the Sandefjord adjustment, and also catalogued under compass intervals; (3) the logbooks, showing many more entries, but not catalogued except in the chronological order in which they were taken. Appellants argue that logbook entries are practically useless because not easily accessible, and that good practice requires daily observations and regular entries in the compass book, at least of all observations showing as much as one degree’s difference from the last recorded observation in the same sector. With this, all the expert witnesses and the court itself seemed to agree; and it is evident that the compass book lacked a record of some observations which it would have had if the practice had been strictly observed.

The court found, however, that adequate observations had been made, and, from the logbook entries, that the deviation in the south-west quadrant had never been greater than three degrees. Of this maximum deviation the navigator was apprised by an entry in the compass book September 30, 1937, showing a plus three-degree deviation on a course S 50° W; and if the navigator failed to make proper allowance for it the night of the accident, his error could not be attributed to lack of information. Since the compass book carried the particular entry necessary for this occasion, even a fairly general deficiency in the records could not have been material to the stranding. Furthermore, it is a sufficient answer to this charge, as to the former, that no possible error in the ship’s course before the period of drifting could have affected her navigation afterwards, and that three degrees’ difference in her course after 2:45 A. M. would not have saved her from the effects of the captain’s misconception of his position.

Since we recognize that the compass book did not contain all the entries which good seamanship required, nothing is added to the argument by the proof of a Norwegian statute enjoining regular entries in the compass book. The materiality of its violation is disproved in exactly the same fashion, and as we have just stated.

Appellants’ chief argument, however, is not that a deficiency of the compass records (necessarily entailing a violation of Norwegian law) was directly responsible for the catastrophic navigation of the Aakre. Arguendo, at least, they assume that the careless transcription of the St. John radio bearings was directly to blame. But, they contend, the positions at which those bearings put the ship were so far removed from her actual and dead-reckoned position that they could have been accepted unquestioningly only by one who lacked faith in his dead reckoning, and therefore in his compass data.

This argument puts directly into issue the captain’s state of mind — his belief in the accuracy of the compass and the sufficiency of the compass data, as well as the fact of the accuracy of the one and the sufficiency of the other. The captain himself testified that the Aakre’s compass was the best he had ever used, and that the compass data were “sufficient for safe navigation”; and the trial court accepted this testimony not only as true in fact, but also as a true statement of what the captain had always believed. This is a complete answer unless other facts are shown which make the captain’s faith absolutely incredible.

The captain explained that he thought his apparent change in position at 2:25 A. M. was owing to currents, on which the vessel had been adrift almost three hours. Actually, his drift was a little south of west, while his supposed drift was a little east of south — a difference in direction of about 90°. The Aakre had aboard information on the direction of currents in the Bay, but the captain did not examine it. He knew the Bay had a reputation for changeable and uncertain currents. His course from 4:00 to 4:20 A. M. conclusively demonstrates that he believed he had run since 2:50 A. M. almost 10 knots faster than the engine speed, although the current was actually not more than 2 knots, and at that time in the opposite direction. If he made any attempt at all to reconcile his supposed 2:50 and 4:00 A. M. positions, he must have thought the Bay currents entirely unpredictable in force and direction; or possibly he knew nothing about them.³ This is perhaps very bad navigation, but is no reflection at all on the quality of the ship’s equipment.

On the contrary, it has already been stated that the compass was shown to be highly accurate, and the compass book was shown to conform to ordinary requirements, at least in respect of the south-west quadrant. In other quadrants it was not radically deficient. Appellants recite at great length a list taken from the Aakre’s logbook of discrepancies between dead-reckoned and observed positions on previous voyages as evidence of inaccurate navigation. Most such discrepancies are no greater than are reasonably to be explained by the incalculable effects of tide, currents, and wind. To some extent they might be attributable to poor steering or inaccurate observation. But the greatest discrepancies shown are all largely along the line of the ship’s course, not transverse to it, and to that extent not relevant to the performance or reading of the compass. Appellants’ reference to two previous occasions on which the Aakre stranded can have little probative effect without more particular evidence of the causes. It affirmatively appears that on at least one of these occasions the Aakre was navigating in narrow Norwegian coastal waters, through strong currents, in a snow storm and a hurricane. Such circumstances as those would certainly support no inference of unseaworthiness.

Much argument has been devoted to the rule in The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148, which declares it to be incumbent upon a vessel shown to have been guilty of violating a statutory rule of navigation to prove that the violation could not have contributed to the ensuing collision. Appellants contend that it is applicable to strandings as well as to collisions, The Denali, 9 Cir., 105 F.2d 413, on rehearing 9 Cir., 112 F.2d 952, certiorari denied, Alaska Steamship Co. v. Pacific Coast Coal Co., 311 U.S. 687, 61 S.Ct. 65, 85 L.Ed. —, and, being a rule of evidence, to proceedings under foreign as well as under domestic law. See Richelieu & Ontario Nav. Co. v. Boston Marine Ins. Co., 136 U.S. 408, 422, 423, 10 S.Ct. 934, 34 L.Ed. 398. Finally, the burden cast upon the vessel is said to be something more than a burden of disproving a causal relationship.

The problems, in so far as they need affect this case, are easily settled. If The Pennsylvania rule prescribes anything more than a shift in the burden of proof with regard to the causal relation of default to injury — if it is an absolute penalty for default — it is much more than a rule of evidence or procedure. It then requires the establishment of facts not otherwise a part of the cause of action, and clearly affects the substantive rights of the parties. In that event, it is not applicable to a cause triable under foreign law. On the other hand, if it does no more than shift the burden of proof, the vessel has met that burden in this case by credible evidence on every point at issue.

Indeed, however The Pennsylvania rule was originally stated, the history of its application shows that it has done no more than shift the burden of proof with regard to causality. That was all that was necessary to the decision of The Pennsylvania case itself, to the Richelieu case, supra, and to The Martello, 153 U.S. 64, 74, 14 S.Ct. 723, 38 L.Ed. 637, and Lie v. San Francisco & P. S. S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726. It seems to have been disregarded altogether in White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U.S. 341, 344, 42 S.Ct. 338, 66 L.Ed. 649, and was assumed to have done no more than shift the burden in Henry DuBois Sons Co. v. A/S Ivarans Rederi, 2 Cir., 116 F.2d 492, certiorari denied The Ariosa v. A/S Ivarans Rederi, 61 S.Ct. 942, 85 L.Ed. -.⁴ Still, if it were applied in the strongest sense conceivable, requiring the defaulting vessel to show that the inference of non sequitur was not only the most probable, but even the only possible, inference from the facts in evidence, appellants still could not succeed; for every point at issue in the case, including the captain’s faith in his compass, was established by direct testimony.

The questions involved in this proceeding were questions of fact which the court below resolved in an opinion which demonstrates the care and consideration which he gave to the matter. D.C.S. D.N.Y., 31 F.Supp. 8-23. In view of this, criticisms made of it that he was confused as to the navigator of the ship, because he did not always distinguish between the master and the second mate, seem rather captious. His material findings are clear and definite. We have recently emphasized that admiralty findings should be accepted on appeal unless clearly erroneous. United States Gypsum Co. v. Conners Marine Co., 2 Cir., 119 F.2d 689; Johnson v. Andrus, 2 Cir., 119 F.2d 287; McAllister Bros. v. Pennsylvania R. Co., 2 Cir., 118 F.2d 45. Here they seem quite the most natural and rational under the circumstances; indeed, cargo’s real complaint is with the policy of Canada and ourselves as to the merchant marine, which accords the water carrier full protection against the negligent navigation of its own servants. Robinson on Admiralty, 1939, 495-503.

The owner of the vessel cross-assigns error in the limitation of its recovery of costs in the proceeding for exoneration to one docket fee, although there were twenty-six different claimants therein. Since each of the twenty-six claimants, if successful, might have charged a docket fee against this petitioner, we think it only fair that he be allowed to charge the same number against them. The Salvore, 1931 A.M.C. 1526; cf. The Horaisan Maru, 1935 A.M.C. 982.

The decree granting the ship and each of the carriers exoneration from liability and dismissing the libel is affirmed. The order as to costs is modified to allow the petitioner a docket fee from each of the claimants.

1 “Variation” is the difference in degrees between the direction of the true pole and the magnetic pole: It is comparatively fixed for any one locality, but is not the same in different localities.

2 “Deviation” is the difference in degrees between the direction of the mag-netie pole and the compass. needle. As parts of a ship will influence a magnetic needle, its susceptibility must be ascertained and recorded for every course which the ship might make. Deviation may also be affected by repairs, age of the vessel, and cargo.

3 That he did not know the currents or try to determine their nature is borne out by his explanation of why he allowed on his chart for a slight drift between 2 :25 and 2:50 A. M. in a south-by-west direction. He said that he “just assumed it.” It is true that his assumption of a south-by-west current is inconsistent with the belief that he drifted from his dead-reckoned midnight position to his supposed 2:25 A. M. position on a south-by-east current. But on the trial there was no attempt to elicit a rationalization, of which he may have had several; and the matter, therefore, stood on his quite erroneous assumption.

4 We have regularly considered a violation of navigation rules from the standpoint of cause in collision cases, and not as a rule of absolute liability. See, among recent cases, Construction Aggregates Co. v. Long Island R. Co., 2 Cir., 105 F.2d 1009; The Richard J. Barnes, 2 Cir., 111 F.2d 294, 296; The Cornelius Vanderbilt (The Watuppa), 2 Cir., 120 F.2d 766; The Sunday, 2 Cir., 122 F.2d 325.