The Ulrik Holm , 298 F. 849 ( 1924 )

BINGHAM, Circuit Judge.

No. 1655 is an appeal in admiralty from a decree of the District Court for Massachusetts dismissing a libel brought by the Reading Company, a Pennsylvania corporation, alleged to be the sole owner of the steam tug Catawissa, against the steamship Ulrik Holm, its tackle, apparel, furniture, engines, and boats, and against its owners and all other persons interested or intervening therein, to recover damages for a collision between the steam tug Catawissa and the steamship Ulrik Holm on the morning of September 18, 1918, and praying that process in due form issue against the steamship, her boats, engines, etc., and that all persons having or claiming any interest in said steamship may be cited to appear and answer. Marius Nielsen & Son, Inc., owner of the Holm, appeared as claimant and filed an answer and stipulations for costs and to the action.

No. 1656 is an appeal from a decree of the District Court for Massachusetts on a cross-libel brought by Marius Nielsen & Son, Inc., a Danish corporation, alleged to be the owner of the steamship Ulrik Holm, against the steam túg Catawissa, her boats, tackle, and furniture, and against all persons lawfully intervening or interested therein, praying that process in due form of law may issue against said steam tug Catawissa, her boats, engines, etc., and that all persons having any interest therein may be cited to appear and answer, and also for a stay of all further proceedings in the action of the Reading Company against the steamship Ulrik Holm “until security be given by said Reading Company pursuant to the rules in admiralty and the practice of this honorable court to respond in damages in this cross-libel.” After the filing of the cross-libel the Reading Company filed a motion in the proceedings, setting out that it was the sole owner of the steam tug Catawissa; that prior to August 26, 1916, it had perpetually chartered said steam tug to the Philadelphia & Reading Railroad, a common carrier; and that said steam tug on the day of the collision was and still is being operated by said railroad, but subject tp the direction and control of the United States Railroad Administration; and praying that Walker D. Hines, Director General of Railroads of the United States, be made party respondent, and the steam tug Catawissa dismissed from the proceeding.' A similar mo- ' tion was also filed by Walker D. Hines, Director General of Railroads of the United States, containing a like prayer, and a further motion that no bond or other security should be required of him as a condition precedent to the maintenance of the further prosecution of the libel of. the Reading Company against the steamship Ulrick Holm, as prayed for in the cross-libel. The court denied both motions, ruling that the Catawissa, notwithstanding she had been taken over on December 28, 1917, as a part of the property of the Philadelphia & Reading Railroad Company by the United States under the federal control proclamation, was subject to arrest on the cross-libel, and that the libel should not be dismissed as to her; that the Reading Company, the original libelant, be required to give security under rule 53, on the cross-libel, as a condition of being permitted to proceed with the original libel, and denied the motions tp make Mr. Plines respondent in the cross-libel. Thereupon Walker D. Hines, as Director General, appeared as claimant, entitled to the possession of the steam tug Catawissa and filed stipulations for costs and to the action, and answered.

In the cross-libel it was decreed that the libelant recover against the claimant and stipulator the sum of $23,120.91, and that:

“Unless this decree he satisfied or proceedings thereon he stayed by appeal within the time and in the manner prescribed by law and the rules and practice of this court, the stipulator for the claimant cause the engagement of its stipulation to be performed, and in default thereof execution to issue accordingly.”

January 4, 1923, and prior to entering the decrees here in question, James C. Davis, then Director General of Railroads, filed a motion asking that he be substituted for said Walker D. Hines as claimant in the cross-libel, and that he be made party respondent therein, which motion was allowed. Neither Walker D. Hines nor James C. Davig, as Director General of Railroads, was ever made a party libelant in the original libel, although they respectively appear to have been so regarded and to have acted as such.

By these appeals the appellant seeks to raise two questions: The first relates wholly to the cross-libel and.concerns the validity of the decree entered thereon. The second is common to both appeals. By it the appellant questions the finding of the District Court that the tug Catawissa was solely at fault and that the steamer was without fault.

As to the first question, the appellant’s contention is that, inasmuch as it appears that, on the date of the collision and at the time when the cross-libel was filed, the Catawissa was in the possession, use, and control of tire United States through the Director General of Railroads, she was immune from arrest on admiralty process, and the Director General should not have been required to furnish security as a condition precedent to the further prosecution of the libel of the Reading Company against the Ulrik Holm; that the right of action of Nielsen & Son, Inc., if any, on its cross-libel,'was against the Director General of Railroads in personam; that the stipulation for security, which formed the basis of the final decree in the cross-libel, was a mere substitute for the Catawissa, and the decree, being issued against the stipulation, is as erroneous as it would be had it issued against the Catawissa.

Counsel for appellant apparently overlooks the fact that, prior to entering the decree here complained of, James C. Davis, as Director General of Railroads, was, on his own motion, made party respondent in the cross-libel, thereby converting it in substance into a libel in personam as well as in rem, so that the court had jurisdiction to enter a personal judgment against James C. Davis as Director General of Railroads. The objection, therefore, that the decree here in question, which runs against the stipulator, is a decree in rem rather than in personam, is highly technical, for, whether it be in rem or in person-am, it results in the United States, through its Railroad Administration, being required to pay the damages determined by the decree. A further discussion of its validity is unnecessary, for the decree may be amended in the District Court, so that it shall be in form and in substance one in personam against the Director General.

The collision out of which this suit arose occurred about 1:35 a. m. September 18, 1918; the Ulrik Holm at the time being on her way into Boston Harbor by way of the North Channel, and the tug Catawissa on her way out-of the harbor. The Ulrik Holm carried a cargo of coal; the Catawissa was empty. As the Holm came in from the sea, she took on Capt. Nelson, a Boston Harbor pilot, about 1 a. m., who took charge of her navigation. She proceeded westerly toward Finn’s Bedge Buoy, and when about half a mile from the buoy was put at half speed, having Finn’s Bedge Buoy on her starboard bow. At this time the green light of the tug Catawissa was seen about points off the port bow of the Ulrik Holm, some two miles away. The Holm then blew one passing whistle, to indicate that the vessels should pass port to port. The Catawissa did not answer this signal, and the Holm, when off Finn’s Ledge Buoy, gave a second signal of one blast, which the Catawissa answered with one blast, agreeing to pass port to port. When abreast of Finn’s Ledge Buoy the Ulrik Holm reduced her speed to slow. Some 1,200 feet inside of Finn’s Ledge Buoy, and on the northwesterly edge of the North Channel, the government had stationed a small tugboat, called a guard boat, which vessels going in and out by that channel had to speak and obtain permission to proceed; and the Holm, which had to speak the guard boat, on leaving Finn’s Ledge Buoy steered directly for the guard boat and continued on that course about half way, when she starboarded her wheel about a quarter of a point, so as to pass the guard boat on her starboard side.

The Catawissa, on leaving what is termed the net on the southeast side of the channel, which was located about a mile southwesterly of the guard boat, proceeded directly for the guard - boat, with Finn’s Ledge Buoy about a half a point on the tug’s starboard bow. Immediately after leaving the net, the Catawissa saw the red light of the Holm about a point on her starboard bow, and heard the steamer’s second passing signal, which she at once answered with one blast, and then kept on down to the guard boat at half speed, or about 5 or 6 miles an hour. When the Catawissa was within 500 or 600 feet of the guard boat she stopped her engines with a view to hailing the guard boat, having the red light of the steamer about a half a point on her starboard bow, but she continued to forge ahead by force of the tide and her momentum. After forging ahead for about a minute with her engines stopped, both of the steamer’s lights were seen directly ahead. The Catawissa then blew a signal of one blast and immediately started at full speed ahead under a hard aport helm. Immediately on hearing that blast the Holm blew a danger signal and reversed her engines full speed astern. The Catawissa then blew a danger signal and reversed her engines, but the boats collided; the bow of the Holm striking the stem of the Catawissa at about a right angle.

The appellant contends that the accident was due to the fault of the Holm; that, instead of keeping her agreement to pass port to port, she swung southwesterly, cutting off the Catawissa and causing the accident. >

But the District Court found that the Holm did not change her course in any substantial degree; that the accident was due to the fact that the Catawissa had crossed the bow of the Holm and then suddenly undertook to cross back again at a time when it was practically inevitable that an accident would ensue.

We do not find it necessary to restate the evidence bearing upon the disputed question. We have examined it, and are satisfied that, the conclusion reached by the District Court was right.

In No. 1655 the decree of the District Court is affirmed, with costs to the appellee.

In No. 1656 the appellee has leave to apply for an amendment of the decree as above suggested, and, as amended, it is affirmed, with costs to the appellee.