Opposition Brief — Burns Steamship Co. v. National Bulk Carriers, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1950

No. 289

BURNS STEAMSHIP COMPANY,

Petitioner,

against

NATIONAL BULK CARRIERS, INC., as owner of

STEAMSHIP NASHBULK,

Respondent.

CoNSOLIDATED CAUSE.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

Joun C. Prizer,

Counsel for Respondent.

—

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CONTENTS

PAGE

I. The present case is one in which justice has clearly

been done and which rests basically on issues of

ee cay u ind ines boa eee eed en ese heeres 1

II. Alleged question presented—issue of whistle sig-

Pe eae eer E Ee Cree re tot ee es 3

III. The alleged conflict of decisions ......-...+.++++5 3

IV. The District Court was correct in finding that the

fault, if any, committed by the ‘‘Nashbulk’’, was

a fault im extremis .......cccceccrerccecceccees 6

V. No alerting signal was appropriate ............. 7

VI. Justice has very clearly been done by the lower

courts and the fault, if any, of the ‘‘Nashbulk’’ is

of such a minor nature that it should be disre-

garded under the minor fault rule ............ 8

ConcLusion—The petition for a writ of certiorari

ce Se. enn rrr ret rt ore rr 10

i

Authorities

PAGE

Atland, The, 76 Lloyd’s List L. R. 38 (Adm. Div.) .... 5

Binghamton, The, 271 Fed. 69 (2 C. A.) cert. denied 295

CE ee so Zain kids cick neo a edu eeeenb ss ecaeons 6

City of New York, The, 147 U.S. 72 «1... eee eee eee 8

Comus, The, 19 F. (2d) 774 (2 C. A.) ......- eee eee 4

Corozal, The, 62 F. Supp. 123 (S. D. N. Y.) .....-.--- 4

Crowley Launch & T. Co. v. Wilmington Transp. Co.,

117 F. (2d) 651 (9 C. A.) ...... eee eee e ee eee eee ee 4

Cushing, The, 266 Fed. 570 (S. D. N. Y.), affirmed 292

oe 8, Sa ® errr eer rr rere Trees ces 4,5

Favorita, The, 85 U. S. (18 Wall.) 598 ............-.. 6

Great Republic, The, 90 U. 8. (23 Wall.) 20 ........-- 8,9

Gulfstar, The, 136 F. (2d) 461 (3 C. A.) ........---6-- 6

Hawaiian, The-Larchgrove, 1931 A. M. C. 1987 (S. D.

N. Y.) (not officially reported) ............-+.++: +

Jean Jadot, The, 75 Lloyd’s List L. R. 153 (Adm. Div.) 9

Manitoba, The, 122 U.S. 97 .......- cece eee ee cee eee 4

Oregon, The, 158 U. S. 186 ...... 6. eee eee cece eee 8, 9

Pacific Atlantic Steamship Co. v. United States, 63 F.

(2) 414 (DC. A.) 0c ccc e cece cece eee e eet e eee ees 6

Publicover v. Alcoa S. S. Co., 168 F. (2d) 672 (2C. A.) 6

Queen Elizabeth, The, 122 Fed. 406 (2 C. A.) cert. de-

B: fe |. ire rer rer rr rrr rer “a

Testbank, The, 70 Lloyd’s List L. R. 270 (Adm. Div.),

on appeal 72 Lloyd’s List L. R. 6 (Ct. of Ap.) ...... 4

Victory, The and The Plymothian, 168 U.S. 410 ...... 8, 9

Wilson v. Pacific 8S. S. Co., 276 U.S. 454 ............ 6, 7

iii

Statutes

PAGE

International Rules: :

Article 28 (33 U.S. C. A. 113) ........... 20 eee 8 i

we :

Publications :

‘‘Proceedings of the Merchant Marine Council,

United States Coast Guard”’ ...............-. Ca

ia PN Hb Do en MR mesh

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IN THE q

Supreme Court of the United States

October Term, 1950

No. 289

ae ee

ray

Vv

Burns STEAMSHIP COMPANY,

Petitioner,

against

NationaL Bu_k Carriers, Inc., as owner of

STEAMSHIP NaSHBULK,

Respondent.

CoNsOLIDATED CAUSE.

ray

Vv

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

The present case is one in which justice has clearly

been done and which rests basically on issues of fact.

The case involves a collision on the high seas between

the ‘‘Nashbulk’’ and ‘‘Rutgers Victory’’, which came to-

gether on crossing courses. The ‘‘Rutgers Victory’’, the

burdened vessel, not only made no effort whatever to obey

the navigation rules and keep out of the way of the ‘‘Nash-

bulk’’, but was not even aware of the presence of the ‘‘Nash-

bulk’’, since for a long time preceding the collision she had

been maintaining no lookout of any kind. The ‘‘Nashbulk’’,

on the other hand, maintained an alert lookout and when

the vessels reached a position where, in the judgment of

bo

her master, the burdened vessel could not avoid collision

by her action alone, the ‘‘ Nashbulk’’ took prompt and vigor-

ous action to check her own headway and very nearly suc-

ceeded in preventing the collision. Indeed had not the

‘‘Rutgers Victory’’ imprudently checked her headway, first

by a hard left rudder and then by a hard right rudder in

the last half minute before collision, it is even possible that

no collision would have occurred.

The district judge who, as a Naval officer, had had prac-

tical experience as a navigator, drafted his own findings of

fact and conclusions of law. Those findings and conclusions

(R. pp. 212-15), give an accurate outline of the evidence and

the factual conclusions supported by the ‘evidence.

The trial judge found, and the evidence amply supported

his findings, that the ‘‘Rutgers Victory’’ was guilty of the

grossest negligence, and that the ‘‘Nashbulk’’ was pru-

dently navigated, that she was guilty of no violation of the

rules, and that even if she had been guilty of a violation

such violation would have been excused as committed in

extremis.

The opinions of the Court of Appeals judges, without dis-

cussing the evidence, take the view that the manoeuvre of

slow ahead-hard right rudder, made about a minute and

a half before collision in order to check the headway of the

‘*Nashbulk’’, called for the blowing of a one whistle signal,

since it caused a change of heading. The prevailing opin-

ion held, however, that the failure to blow the one whistle

signal could not have contributed to the collision since the

navigators of the ‘‘Rutgers Victory’’ did not know of her

presence and were not navigating with reference to her

course. The dissenting judge, believing that the swinging

of the ‘‘Nashbulk’s’’ head to starboard called for a one

whistle signal, dissented from the conclusion that the failure

could not have contributed to the collision. He states in

his opinion, however :

al

‘*An equal division of damages in this case would

be plainly unjust; they ought to be divided in some

such proportion as five to one’’ (R. p. 238).

Alleged question presented—issue of whistle

signal.

Petitioner’s brief makes an entirely erroneous presen-

tation of the issue of the failure to blow a one whistle sig-

nal. The issue was not whether a 5° change of course or a

90° change of course calls for the blowing of a whistle sig-

nal. The issue was whether the manoeuvre of slow ahead-

hard right rudder taken solely to check the headway of the

vessel preliminary to and in fact followed within less than

a full minute (R. p. 110; fol. 330; p. 124, fol. 372) by full

speed astern, presented a situation calling for a whistle

signal to indicate ‘‘I am directing my course to starboard’’.

No doubt the vessel’s head fell off to starboard and the

falling off was accentuated by the backing. The forging

ahead of the vessel in a partly sideways position was in-

tended to be and was actually the most effective means of

checking her speed (R. pp. 63-4; fols. 187-90).

IIl.

The alleged conflict of decisions.

According to the view of the majority of the Court of

Appeals, since neither the change of course (Respondent

does not admit there was a change of course) nor the fail-

ure to announce that change of course could have been a

contributing cause to the collision, the fact that the blowing

of a whistle might have served a useful purpose as an

alerting signal, when an alerting signal was not authorized

or required, did not render it a contributing fault. That

view, Petitioner urges, is in conflict with other decisions.

Certainly the majority decision is in accord with the

Ninth Cireuit Court of Appeals decision in Crowley Launch

& T. Co. v. Wilmington Transp. Co., 117 F. (2d) 651, cited

and quoted in the opinion (R. 236).

The decision of this court in The Manitoba, 122 U. 8.

97, referred to on pages 5 and 7 of the petition and brief,

has no bearing upon the question under consideration. In

that case vessels were meeting very nearly head to head

on courses almost parallel. It was necessary for each ves-

sel to announce by whistle the side on which she proposed

to pass the other, and the failure to blow the necessary

passing signals to indicate the courses which the vessels

were taking was the direct cause of the collision.

None of the Second Circuit Court cases presents a con-

flict. In The Comus, 19 F. (2d) 774 (Brief, p. 10), the

holding-on vessel in a crossing course situation failed in

her duty to hold her course and speed, making a premature

unannounced course change.

The case of The Cushing, 266 Fed. 570 (Petitioner’s

Brief, pp. 10-11) was a substantially head and head situa-

tion under blacked-out war conditions, in which an unneces-

sary and unannounced change of course by one of the ves-

sels was the direct cause of the collision.

The Corozel, 62 F. Supp. 123 (Petitioner’s Brief, p. 11)

and The Hawaiian-Larchgrove, 1931 A. M. C. 1987 (Peti-

tioner’s Brief, p. 12) both likewise involved cases of vessels

meeting substantially head and head, where the unan-

nounced alteration of course contributed directly to the col-

lision.

The English cases cited in Petitioner’s brief (p. 12) in-

volved facts bearing no relation to the present case. The

case of The Testbank, 70 Lloyd’s List L. R. 270, like the

Sic teed

case of The Cushing, supra, involved vessels approach-

ing head and head under blacked-out war conditions in

which an unnecessary and unannounced change of course

by one of the vessels was a direct cause of the collision. The

cases of The Atland, 76 Lloyd’s List L. R. 38 and The Jean

Jadot, 75 Lloyd’s List L. R. 153, cited in the Court of

Appeals decision in the present case, were both lower court

decisions and were decided by the same judge. They in-

volved vessels proceeding in substantially the same direc-

tion in blacked-out convoys where even small changes of

course made in close quarters for the purpose of reducing

the danger of collision, were of extreme importance. The

language of Mr. Justice Bucknill in those two cases must be

considered in the light of the facts which the court had

under consideration.

In both The Atland and The Jean Jadot cases supra,

Mr. Justice Bucknill regarded the vessels which were criti-

cized for omitting to blow a whistle signal, as bemg guilty of

a minor fault only, and under the English rule of apportion-

ment held those vessels responsible in each case for only

one-fifth of the damages resulting from the collision. Had

the English rule of unequal apportionment not been avail-

able to him and had he been applying the American rule

of major and minor faults it is highly improbable that any

liability would have been predicated upon the minor fault.

IV.

The District Court was correct in finding that the

fault, if any, committed by the “Nashbulk’”, was a fault

in extremis.

The District Court found both as a Finding of Fact and

a Conclusion of Law that the ‘‘Nashbulk’’ was placed in a

position in extremis when she was called upon to take emer-

gency action to avoid the collision (Finding 15, R. 214;

Conclusion 3, R. 215). That Finding and Conclusion were

amply supported by the evidence and were entirely consist-

ent with previous judicial decisions.

Wilson v. Pacific 8S. 8S. Co., 276 U. 8. 404;

The Gulfstar, 136 F. (2d) 461 (3 C. A.);

The Pacific-Atlantic Steamship Co. v. U nited

States, 63 F. (2d) 414 (9 C. A.) ;

The Binghamton, 271 Fed. 69 (2 C. A.) cert. de-

nied 255 U. S. 575.

The Court of Appeals majority opinion contains a dic-

tum that the ‘‘Nashbulk’’ could not be regarded as im

extremis since for a long time her navigators had known

that if the burdened vessel failed to take proper avoiding

action they might be required to act, apparently overlooking

the fact that what action they might be required to take

could not be determined until at the very last moment they

learned what action the burdened vessel was then taking

or failing to take. The cases cited in the Court of Appeals

opinion do not support that court’s view.

Two of the cases cited by the court, namely, The

Favorita, 85 U. S. 598 and Publicover v. Alcoa S. S. Co.,

168 F. (2d) 672, are examples of the principle that a vessel

which, by its own negligent navigation has created a situa-

tion of peril, cannot rely upon the defense of in extremis

altnough the other vessel can. In the third case cited,

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PSEC TERS

namely, The Queen Elizabeth, 122 Fed. 406 (cert. denied

190 U. S. 560), the holding-on vessel, the ‘‘Queen Eliza-

beth’’, was held to have been placed in a position in extremis

by the burdened vessel, the ‘‘Birdsall’’, notwithstanding the

fact that the navigators of the ‘‘Queen Elizabeth’’ had been

carefully observing the ‘‘Birdsall’s’’ light from a distance

of several miles (see p. 409, middle).

SRO BANE

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<i Mp ESHA AMEN OTH?

This court in its opinion in the crossing course case of

Wilson v. Pacific S. 8S. Co., 276 U. S. 454, upheld the con-

tention of counsel for the ‘‘Svea’’ that the ‘‘Svea’’ found

herself in a position in extremis when collision was immi-

nent, notwithstanding the fact that she had had the bur-

dened vessel under observation for a long time. This court

said :

‘‘Tf in the difficult circumstances forced upon him

her navigator, whose qualifications are not ques-

tioned, exercised his best judgment in not departing

therefrom, the burdened vessel must accept the con-

sequences. Having driven him into a perplexing

situation, the Newport cannot complain because he

failed to make the most judicious choice between the

hazards presented’’ (276 U. S. pp. 461-2).

V.

No alerting signal was appropriate.

Petitioner’s brief apparently suggests (pp. 17-18) that

the ‘‘Nashbulk’’ was under some indefinite duty to alert the

“Rutgers Victory’’ even during the time when the latter

vessel continued to have an opportunity to obey the rules

and avoid the collision by her own action alone. No sup-

port for that contention was given by either of the lower

courts and it is without foundation. The International

Rules place a rigid duty upon the holding-on vessel to main-

tain her course and speed and upon the giving-way vessel

to keep out of the way. The only whistle signals authorized

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by the International Rules (as distinguished from the In-

land Rules) are those provided in Article 28 to indicate

course changes or the backing of the engines.

The point of view of the practical navigator is well ex-

pressed in an article appearing in the June 1947 issue of

the publication entitled ‘‘Proceedings of the Merchant

Marine Council, United States Coast Guard”’ (published

monthly at Coast Guard Headquarters, Washington 25,

D. C.) in which the following statement is made with re-

spect to the instant situation at page 104:

‘Tn eases of this sort and there have been a num-

ber of them, very little sympathy can be given to the

officer in charge of the burdened vessel. The officer

who is in real need of sympathy is the master of the

privileged vessel as he must hold his course and

speed and trust to the grace of God and good luck

that the other fellow is maintaining a proper look-

out as required by the law.”’

VI.

Justice has very clearly been done by the lower

courts and the fault, if any, of the “Nashbulk” is of

such a minor nature that it should be disregarded under

the minor fault rule.

The City of New York, 147 U.S. 72;

The Victory and The Plymothian, 168 U. S. 410;

The Oregon, 158 U. S. 185;

The Great Republic, 23 Wall. 20.

In the oft-quoted language of this court in ‘*The City

of New York’’, supra:

‘‘Where fault on the part of one vessel is estab-

lished by uncontradicted testimony and such fault

is, of itself, sufficient to account for the disaster, it is

LEE LRP IEEE LL LG LIME IS IGN ION POR IR 2 gh PF

not enough for such vessel to raise a doubt with re- °

gard to the management of the other vessel’’ (147

U.S. at p. 85).

More emphatic still is the following statement of this

court appearing in The Victory and The Plymothian,

supra:

In

‘‘The recognized doctrine is thus stated by Mr.

Justice Brown in The Umbria, 166 U. S. 404, 409:

‘Indeed so gross was the fault of the Umbria in this

connection that we should unhesitatingly apply the

rule laid down in The City of New York, 147 U.S. 72,

85, and The Ludvig Holberg, 157 U.S. 60, 71, that any

doubts regarding the management of the other ves-

sel, or the contribution of her faults,* if any, to the

collision, should be resolved in her favor’ ’’ (168 U.S.

at p. 423).

The Oregon, supra, a technical violation of the rule

applicable to the height of the ‘‘Oregon’s’’ anchor light

above

her hull was held not to have been a contributing

cause to the collision even though her light was mistaken for

the Coffin Rock Light (158 U. S. at p. 198).

In

The Great Republic, supra, this court said:

‘‘It is pretty clear that the Cleona did not blow her

whistle for each boat to keep to the right, as soon as he

started for the opposite shore. This omission was a

fault, but this fault bears so little proportion to

the many faults of the Republic, that we do not think,

under the circumstances, the Cleona should share the

consequences of this collision with the Kepublic’’

(p. 35).

* Italics ours.

10

CONCLUSION

The petition for a writ of certiorari should be

denied.

Joun C. Prizer,

Counsel for Respondent.

Dated New York, October 9, 1950.

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