Swenson v. The Argonaut the Estelle. The Susan

McLAUGHLIN, Circuit Judge

(dissenting)-

The majority opinion concludes that the district court was clearly wrong in holding that “a case of inevitable accident had been *644 made out”; in its application of the principle of inevitable accident and in.refusing to permit the Argonaut master to be asked, “Do you have any personal knowledge of any other vessels which broke adrift that afternoon of August 15, 1947, in that thunder storm?”

Taking up the last reason briefly, the trial court rightly disallowed the question because so many other elements would enter into this comparison and particularly because whether the captain heard of such occasions “ * * * doesn’t make any difference, there may have been 100 that he didn’t hear about.” In passing it is noted that libellants offered no proof by record or otherwise that no ships did so break adrift. But even more important, this reason is not included in libellants’ points for reversal. It is used, as stated in their main brief, page 21, to “ * * * merely point out * * * ” the failure of appellees to produce evidence of damage to other craft in the storm. That position is fully confirmed on page 4 of appellants’ reply brief.

Was the district court clearly wrong in holding the occurrence to be an inevitable accident?

That court stated the cause to have been “a sudden and terrific increase in the force of the wind which brought an entirely unforeseeable strain and stress on the dolphin and caused it to lay over. The center of the blow was localized in the vicinity of the ship and there was a sudden increase from 20 to 40 then to 60 miles an hour which certainly I do not think should have been foreseen by the master of the vessel because it wasn’t foreseen by the weather observers who put out no storm warning.” The vital testimony on the question of warning of the storm and of its nature was that of Parry, then head 'of the Weather Bureau’s New York City station located at the Battery. His testimony has been inadvertently misconstrued. He never said, directly or in effect, that this particular storm “was a typical summer storm,— common for the locality and that the incidence of a 60 mile-an-hour wind was not extraordinary.” It will be remembered that the Argonaut was berthed at a Jersey City pier. As stated in appellants’ brief it was “moored in a protected slip in New York Harbor.” (Emphasis supplied.) Parry said the storm first appeared to be developing over New Jersey and moving eastward at 5:10 P.M. By 5:30' P.M. it was all over. It was slightly closer to the pier with which we are concerned than to the Battery. At the latter station at 5:00 o’clock the wind was south 17 miles, by 5:10 it was southwest 24 miles, at 5 :11 it dropped to 20 miles. The next minute it jumped to 44 miles an hour and at 5:13, still on the Battery readings, “reached a velocity of 52 miles an hour.” In August, 1947, Parry had had almost 45 years’ Weather Bureau experience. In his opinion the maximum velocity of the wind at that time at the Jersey City piers “ * * * wouldn't be more than 60 miles an hour.” He described the storm as a cyclonic storm with a rotary movement similar to a hurricane. On cross examination the following assumption was put to him. “In other words, this storm you might say was common for this locality in the summer period?” The answer was not in agreement with the assumption but the qualified “storms of this type, yes.” Parry, of' all people, would hardly call that storm a common occurrence for New York Harbor. Summer thunder storms, yes, but not hurricane-like storms of gale velocity. Chief Mate Valentine of the Argonaut who had been on the ship all that day and was actually in the pier shop office when the storm broke said, “It was a very pleasant afternoon. The only indication of anything was the indication of a possible summer thunder shower.”

On the question of notice of the “spot flash storm”, as Captain Donnelly described it, Mr. Parry was asked, “I am not sure I understood; were there any storm warnings at the Battery of this thunder storm that hit New Jersey?” He answered, “There were no signals raised, no.” Cap *645 tain Donnelly on the Argonaut was directly across the harbor from the Battery station and confirmed this, saying, “There were no storm warnings or anything.” The Daily Local Record of the Weather Bureau is in evidence. At the top of it appears the caption “Storm Warning Messages, Friday, August 15, 1947.” There is an advisory warning at 0400 EST of a hurricane approaching the Mexican coast of Tampico and a later warning at 1000 EST. There is no warning whatsoever of the New Jersey storm. Parry did say that “in the regular forecast which the broadcasters over the radio issue to newspapers, and also in part of our daily weather bulletin we issued a forecast of thunder storms on the 14th and said for the 15th thunder storms by even-i ng * * His recollection of the forecast was “Scattered thunder storms indicated.” This, the notice relied upon by the majority, is no notice of a spot flash gale.

The uncontradicted evidence is that a freakish flash gale of about 60 miles per hour hit the Argonaut at approximately 5 :13 P.M. August 15, 1947, with such force that the dock midship wire line snapped, the metal dock bollard, to which lines were attached, was broken in two and the cluster of piles, also bearing lines, pulled over almost to water level, with most substantial evidence present in the trial to the effect that the storm was extraordinary and unforeseeable. If the rule in the Albatross and Read cases means anything it means that the district court’s finding of inevitable accident should not be disturbed.

The second proposition advanced by the majority is that the principle of inevitable accident was wrongly applied.

The district judge was alert to the governing law involved. He stated it at length in his oral decision at the conclusion of the trial. He squarely recognized that the Argonaut was presumptively at fault. He found, however, that she “ * * * was moored under the circumstances in a sea-manlike manner and * * * that the dolphin to which its stern lines were attached was properly constructed * * (Emphasis supplied.)

Again, unless the trial court was clearly wrong in those findings they cannot properly be reversed.

True, Hercules used two experts who said the Argonaut was not moored in a seamanlike manner. One of these, Pickering, never saw the ship or the pier. The examination of Ransome, the other, was based on what he would do “on the approach of heavy weather” and he answered he would put out extra moorings “so that it will withstand unusual wind” His whole testimony was founded on a premise nonexistent in the facts of this matter — the forewarning of an “unusual wind.”

As to the Argonaut defense, Captain Donnelly described the atmospheric conditions as an extraordinary storm; he had not seen such a storm aboard ship before. He had had a dock trial of the ship’s engines that morning. All of the ship’s lines had been doubled for that test and had remained that way. He had used the only available dock bollard. He was not told of, had not seen and never knew of a second supposed breast dock wire. He had no alternative but to put lines on the pile cluster. As to the question of whether there were too many lines on the pile cluster he said, “That depends on the condition of the pile cluster too.” He knew nothing of the condition of the pilings under the water. He made no pretense of having had them examined by a diver or otherwise closely prior to the storm. 36 He said the ropes on the cluster were at the proper angle. Fie said it was not possible to have made the ship more fast. Without warning of the gale Donnelly was satisfied that it was safely moored. Had he known that the storm would be other than scattered thunder showers, unquestionably he and the owner would have had the opportunity of protecting the ship against an oncoming gale by changing its berth, by tug assistance, etc. Valentine, the first officer, corroborated *646 Captain Donnelly’s testimony, particularly that there was no indication of an unusual storm that afternoon.

Regarding the Hercules pile cluster, the dock builder who erected it two years previously and the Jersey City engineer who had approved of its installation both testified to its sound, strong construction.

With the above evidence in the record the majority holds that the district judge was clearly wrong in finding that the Argonaut was moored in a seamanlike manner. To a large extent the majority conclusion is founded on the non-use by the Argonaut of a second breast line. That line is accepted as having been present and Captain Donnelly is blamed for not knowing of it. Hercules’ chief fact witness, Sheehan, that company’s pier foreman, said as to that second wire, "It was anchored to underneath the dock, to the framework of the dock; it came up through the dock when you know the opening.” And though he knew only one wire was out he made no mention of the second wire to anybody on the Argonaut even when he saw the storm coming up. Donnelly, as has already been stated, never knew of its existence.

In the second reason the majority continues to state the Albatross, Read rule, then promptly casts it aside and sits as the nisi prius court. On this point also the district court judgment should be affirmed.

. Captain Modave, the Farrell Lines port captain, said it was not the custom for the vessel operator to send for experts to see whether or not the berth is safe and strong in every way.