Before GOODRICH, McLAUGHLIN andKALODNER, Circuit Judges.
Three questions are presented in the instant appeal: (1) did the District Court err in its fact finding and conclusions of law with respect to the liabilities of the parties to the litigation; (2) can respective liabilities of respondents with adverse interests be adjudicated in an admiralty action in the absence of a cross-claim or cross-libel setting up the issue of such cross-liabilities; and (3) did the specific averments in the answer to the libel filed by the complaining respondents constitute a "cross-claim" or "cross-libel" within the requirements of applicable pleading principles in admiralty.
The facts are set forth in detail in the opinion of the District Court E.D.Pa.1952, 109 F.Supp. 953. They may be summarized as follows:
Patterson Oil Terminals, Inc. owned a mooring dolphin adjacent to its dock in the Delaware River at Billingsport, New Jersey. The dolphin was struck and damaged by the S.S. "Creighton Victory", operated under bareboat charter by the Black Diamond Steamship Corporation ("Black Diamond"). The collision occurred on February 14, 1948, while the "Creighton Victory" was being docked under her own power with the assistance of the tugs "Port Covington" and "Girard Point", owned and operated by the Curtis Bay Towing Company of Pennsylvania ("Curtis Bay").
At the time of the collision the captain of the "Creighton Victory" was present on its bridge as was the captain of the tug "Girard Point", who was acting in the capacity of docking pilot. The weather was clear but windy with heavy gusts of 40 miles per hour force. When the "Creighton Victory" was about 150 feet from the dock a sudden gust of wind sent her into a sheer which those in control of the vessel could not break before she struck the dolphin.
The District Court found that the collision was not the result of inevitable accident; that when the "Creighton Victory" and the tugs hove anchors at the start of the berthing operation about 20 minutes before the accident, the wind was 24 miles per hour and as the vessels moved down the river the wind increased in force; that the accident could have been avoided if three tugs had been used instead of two and that before the "Creighton Victory" left her anchorage she or Curtis Bay "could have insisted upon an additional tug" instead of proceeding with but two tugs.
In consonance with these fact findings the District Court held that Black Diamond and Curtis Bay had not met the burden of rebutting the presumption of negligence which arises when a vessel comes into collision with a stationary object and accordingly both were liable to the owner of the dolphin for the damages it sustained. It may be noted that the District Court further held that the presumption aforementioned operates against all parties participating in the management of the vessel and in doing so stated that "During the maneuvering of the vessel (the 'Creighton Victory') in the effort to break the sheer, the captain was present on the bridge and if what the pilot did appeared to be insufficient or wrong he could have corrected or countermanded the pilot's orders."
In making its determination as to liability, the District Court declined to consider the effect of the provisions of a "pilotage clause" in a towing contract between Curtis Bay and Black Diamond which Curtis Bay contended made its docking pilot the servant of Black Diamond and accordingly relieved it of any liability to the owner of the damaged dolphin, or in the alternative entitled it to an indemnity judgment against Black Diamond. In doing so the District Court said, 109 F.Supp. at page 955:
"The pilotage clause by which the docking pilot became the servant of the vessel and her owners does not affect the tort liability of the parties to the libellant, whatever its effect may be as between the two parties to the contract."
Following the filing of the District Court's opinion, Curtis Bay, acting on its theory that it had sufficiently cross-claimed or cross-libelled in its answer to the libel (as subsequently set forth) filed a petition for review requesting additional findings of fact and conclusions of law and determination of the respective liabilities of Black Diamond and Curtis Bay to the owner of the damaged dolphin under the pilotage clause, and/or an adjudication of indemnity against Black Diamond.
The District Court in an "Opinion Sur Petition for Review and For Additional Findings"*fn1 denied the petition on the ground that "In the absence of a cross-libel, the findings requested by the petitioner would have no effect upon the decree*fn2 nor would they necessarily obviate further litigation."
Pursuant to this opinion the District Court entered a "Final Decree in re Determination of Liability Between Respondents" denying the petition for review. This appeal is from that decree and it raises the questions earlier stated.
With respect to the contention that the District Court erred in its determination that Black Diamond and Curtis Bay were negligent, we are of the opinion that the finding of negligence was amply ...