Warren E. Burger: -- next in No. 71-900, Union Oil Company against the Tugboat. Mr. Roberts, I think you may proceed.
Kenneth E. Roberts: Mr. Chief Justice, if it pleases this Honorable Court. This marine ship collision case occurred on Christmas Eve in 1967, 24th of December 1967 at about 8:30 p.m. on the Columbia River, which flows as you know between the States of Oregon and Washington. My client, Union Oil Company was the bareboat charter of the tanker Santa Maria. Santa Maria was approximately 550 feet long and she had a gross ton each of about 11,000. She was loaded with 17,000 gallons of petroleum products and was inbound from the Pacific Coast Ocean to Portland, Oregon. She's an American flag vessel. At Astoria, Oregon, she took aboard a Columbia River pilot, Mr. McDonald Caples who has been going to see on the Columbia River, a tugboat man and so forth since 1928. This was his 3550th ship as a pilot on the Columbia River. He had also piloted the Santa Maria he testified about 11 to 12 times. He proceeded inbound from Astoria to Portland. This is a winding course that takes a number of hours. Some fog was experienced near the town or the inlet of Skamokawa, which is on the Washington side of the Columbia River pretty close to its mouth. The chief mate of the vessel was Mr. Aspland and he testified that you always find a little fog at Skamokawa at that time of the year. The vessel proceeded on mainly on a full bell but from maneuvering speed in the river, which is about 11 to 12 knots and there was a vessel that was inbound called the Teak Wood under the command of Captain (Inaudible) who was also a Columbia River pilot. The pilots at that time were communicating with one another by a walkie-talkie machine. And they just converse about the traffic on the river and the conditions and so forth. And Captain Caples through this walkie-talkie communication was aware that there was a tug and barge bound downstream on the Columbia River from Rainier, Oregon. Now this time, it was the San Jacinto.
Potter Stewart: What was the current of the river?
Kenneth E. Roberts: Pardon?
Potter Stewart: What was the current of the river in knots, do you know?
Kenneth E. Roberts: Just about a knot I think, according to the -- and downstream as I recollect from the evidence, with very little current. I don't think it had really any significance as far as the collision was concerned. The San Jacinto was owned and operated by Star & Crescent, had a completely inexperienced crew aboard. The -- not that the man had any papers or such. The master I think, it was either his first or second trip. And towing and towed by the San Jacinto was this big barge called the Oliver J. Olson 3, which was fully loaded with lumber above the deck about two or three tiers high at which -- and the lumber had been loaded at Rainier. Now, the tugboat was towing on a 250-foot cable. The barge I think was about 300 -- 250 to 300 feet in length. Now, downstream at the same time or about this time was Captain Olson, another Columbia River pilot, who was piloting a Pacific Telstar. He was also in communication with Captain Caples on the Santa Maria by the walkie-talkie and he advised that he had passed the tug and barge. He also advised there was a little, what they call toolie fog on the Columbia River at this time. Now this is a fog that kind of hangs down toward the water and it was mainly on the Washington side, it was patchy. The pilots all had testified it hadn't impeded the traffic on the river as demonstrated by the evidence in any way. And that it was to be expected at this time of the year and the toolie fog, I think the best way to describe it, if you've got a fairly large vessel, you probably could see the top of the mast, but you couldn't see the hull and it was all -- all patchy parts of it were all over on the Washington side of the river. Now, I think it is important to visualize the scene of this particular casualty. This is a narrow channel and one of the exhibits which were introduced into the evidence shows the channel itself and this is just a blowup of the coast in Geodetic Survey chart. And the accident occurred right here at buoy number 70. The bridge channel right at the scene of the collision is 500 feet wide. The actual river at this point which is maneuverable at least as far as big vessels are concerned or vessels with a large draft. And by the way, the Santa Maria was drawing 31 feet at the stern. It is about 800 feet wide although going from the Oregon to the Washington shore or ever to Wallace Island is about 1500 feet but of that amount, there is over 800 feet that's ashore just to the north side there of Wallace Island. Now, there is no doubt in my opinion that the evidence clearly demonstrates that the pilots all know about the tug and barge. Captain Caples had seen her visually and he had seen her on radar. The other pilots had seen the tug and barge visually and on radar. Now, at or about this Cooper Point and water for the area, which are two lights on the Washington side of the river, there was some of this toolie fog and it was a patch.
Potter Stewart: How do you spell toolie?
Kenneth E. Roberts: T-o-o-l-i-e that's phonetically, that's -- I've never heard it before but this is what the natives were saying it was toolie fog. The tugboat was navigating by following the trees on the bank of the Washington side of the river and you will note from the exhibit in the chart that I have shown that the river turns a little and the pilots navigate on range lights and on courses at this particular point in the entire length of the Columbia River.
Warren E. Burger: Does the record show the frequency of tankers of this size, draft and length --?
Kenneth E. Roberts: Nothing at all in the record. The vessel and I think counsel will admit -- opposing counsel. It's not unusual for the Columbia River. In fact, they'd had a lot of bigger vessels and a number of tankers come in on a periodic business all the time from the refineries in the California area and Washington. So it's not an unusual vessel by any means. In fact, as I have indicated, Captain Caples have been on there 11 or 12 times.
John Paul Stevens: Incidentally, what is -- or does the record show what the Santa Maria's bare steerageways?
Kenneth E. Roberts: Pardon Your Honor.
John Paul Stevens: Does the record show what the slowest speed, the Santa Maria must possess in order to maintain their way?
Kenneth E. Roberts: There is nothing in the record although, the chief mate Mr. Aspland testified that as to maneuvering speed in the -- in the river, full speed ahead was 11 to 12 knots and half speed ahead was about 7 to 8 and slow ahead was 5 to 6. Now just prior --
Warren E. Burger: Were there something in the record that they had difficulty maintaining steerage at five or six or below?
Kenneth E. Roberts: The master -- the helmsman had testified, and I think it's on page 73 of the record. Question - I see is, “What did you do after the slow down?” Answer - “The quarter master, he said it wasn't steering so I went back to half speed, which is 40 revolutions for steering.” That's in the record.
John Paul Stevens: Well are you -- by that statement indicating that half speed is the necessary speed?
Kenneth E. Roberts: Under these circumstances, the -- I think to be perfectly honest and frank about it, the record would indicate that at this draft at 31 feet and fully loaded, the vessel would be what they call smelling the bottom and it's pretty hard for it to steer at a low rate of speed. And so my position is that seven to eight under these circumstances was more than justified and reasonable. Now, there is evidence in the record to the effect that once you're on slow speed and are continuing for any length of time, you do maintain steerageway but I don't think it was in relation to a vessel in these inland borders and secondly, I do not believe that that took into consideration the fact that -- that pilot was changing courses all the time coming up the Columbia River. And therefore, when he was changing course, it was necessary that he'd be on half ahead rather than slow ahead.
Potter Stewart: What was the depth of the channel?
Kenneth E. Roberts: It's a 28 feet bridge I think Your Honor at this particular point, Mr. Justice Stewart. It's not very, very a deep river. The Corps of Engineers dredge it at all times and there is some appropriations to widen the -- deepen the depths of the Columbia River.
Potter Stewart: It's a tidal river, isn't it?
Kenneth E. Roberts: No. I don't think the tide comes all the way up by -- by any means. It's fresh water at Portland and -- and Longview I believe.
Warren E. Burger: What did you say was the depth at the stern --?
Kenneth E. Roberts: That she was 31 feet. I think the -- maybe I mistook myself. It was 31 feet and I think the dredged channel is 36 or 38 feet at this point. The dredge -- and that is shown by the dotted line on the chart. Usually --
Warren E. Burger: We'll resume after lunch break but could you bear in mind that you've got some important legal questions to deal with?
Kenneth E. Roberts: I realize that.
Warren E. Burger: Mr. Roberts you may continue.
Kenneth E. Roberts: Mr. Chief Justice and this Honorable Court.
Warren E. Burger: Now you could win -- you could win on all the facts of this case and not when if you --
Kenneth E. Roberts: I will get to the legal issues, Your Honor.
Warren E. Burger: If you don't --
Kenneth E. Roberts: I will clear up the record. The publications indicate that dredge depth for the channel was from 35 to 40 feet. The army engineers like to maintain it. The issues before this Court arise out of the fact that the trial judge found the tug and barge solely at fault for this collision and said that the evidence was overwhelming to support such as a decision. The case was appealed by the tug and barge to the Ninth Circuit on one ground. And that was that at the time the barge going -- probably, the Santa Maria going at about seven knots constituted a violation of the speed in fog rule which is Rule 16 which requires a vessel to go at a moderate speed when travelling in fog, or rain and so forth. The Ninth Circuit under the ruling in the Silver Palm, a Ninth Circuit decision, interprets the word moderate speed in fog to mean that a vessel apparently must stop within a half the distance that you can see ahead. And in this case, the Ninth Circuit reasoned that the distance was probably about 900 feet. Although, I don't think there is any evidence in the record to substantiate that. And therefore, the tugboat -- the barge, pardon me, the Santa Maria should have stopped within 450 feet and of course this is impossible at the speed of seven knots that it was travelling. We take the position on this appeal that this is in conflict with other Circuit decisions, the Second, Third, Fourth, Fifth and in particular, where the Fifth Circuit's decision in the Hess Voyager where that rule, Article 16, moderate speed was interpreted to mean, taking into consideration all of the circumstances surrounding the location of the collision and the circumstances leading to the collision itself. In this case, we feel that the evidence justifies an adoption of the rule of the majority of the Circuits that moderate speed cannot be interpreted to mean half the distance ahead but that the trier of the facts must determine based on all of the circumstances then prevailing as to whether a vessel was or was not going at moderate speed so to come within Rule 16. In this case, we feel the evidence very clearly showed that in determining that the vessel was going at moderate speed, the trial judge in effect found that there was no probability at all of the tug and barge crossing this narrow channel and making a U-turn in the channel itself and that the Santa Maria was on her own extreme side of the channel. The fog was patchy, it was a toolie type fog, it wasn't fog all the time on the voyage and other vessels were navigating the Columbia River at that particular time. The vessel was in charge of a very, very experienced Columbia River pilot who had knowledge of the river, intimate knowledge of the river and other pilots had indicated at the time that the fog conditions were such that it didn't prevent the vessels navigating the Columbia River.
William J. Brennan, Jr.: Do you think the -- the rule that you're attacking in this case is any different than the rule of sight?
Kenneth E. Roberts: No I don't think it is. The rule of sight, I think, is the same as the half distance rule. The evidence, Your Honor, indicates in this case that we saw the tug and barge on radar and the mate -- the third mate on the bridge saw it the whole time in his binoculars.
William J. Brennan, Jr.: Well anyway, it's against the rule. Do you think -- do you think the rule of the other Circuits are applied and there's a different rule that is applied to the Ninth Circuit?
Kenneth E. Roberts: I do.
William J. Brennan, Jr.: And the other Circuits that are not applying the rule of sight?
Kenneth E. Roberts: No. They are applying a rule of reasonable speed under all of the circumstances as I read.
William J. Brennan, Jr.: How about your opponent's contention that the rule of sight is -- was approved by this Court in the Umbria?
Kenneth E. Roberts: I don't think the Court said that in the Umbria. That's the point. We take the position that the Ninth Circuit in the Silver Palm misconstrued. The Umbria is a very interesting factual case. In that case, you add the contention of speed on the part of the one vessel but the outcome of that case was that the Umbria was held solely at fault even though there was speed in that case because --
William J. Brennan, Jr.: Under what standard they applied in judging the (Inaudible), rule of sight or not?
Kenneth E. Roberts: In the Umbria case, I don't think it was the rule of sight. At least I don't read it that way, Your Honor. We are of the opinion that the Silver Palm, in -- in effect straightjackets the master or the pilot, the man conning the vessel. He has to take out a slide rule, in effect. Now under these circumstances, the vessel of the tug and barge disappear into the fog. It's just a small patch of fog and suddenly that barge and the tug make a U-turn directly in front of the tanker in this -- this narrow channel. The only way, in my opinion, the fact show that this particular incident could have been avoided was for the vessel to a bunker that any sign of fog or whatsoever. And I really believe that the decisions of the other circuits where they take into consideration all of the circumstances in determining a -- a reasonable or moderate speed. Judge Wright in the Ninth Circuit just went on speed alone in reversing and holding mutual fault in this case and the -- the history of the Rule 16 and the -- why it has been interpreted by other circuits is to the effect that you cannot just say such and such a speed is not moderate. You've got to take into consideration all of the circumstances prevailing at or at the -- at or at the time of the collision. And also, in this case where the evidences that the tugboat can see, the barge and tug came out of the fog and the Santa Maria could actually see ahead a mile and a half to two miles, where do the distances run from? Did they run from the edge of the fog bank or from immediately ahead of the vessel? Judge Wright says from the edge of the fog bank. I feel and under these circumstances the master is put into a straightjacket. The pilot under these circumstances he'd have no alternative. He has no judgment to exercise or discretion to exercise. As soon as he sees anything like fog or reduced visibility, he must anchor the vessel. And I don't think that this is a reasonable inference to be taken from that particular language in Rule 16. It is, obviously, if this case had gone up in the Fifth Circuit, it would have been affirmed in my opinion based on the Hess Voyager case and their interpretation of Rule 16.
Warren E. Burger: What you're saying really is that in all the circumstances shown here, the master and the pilot of the tanker had a virtually an absolute right to assume that there wasn't going to be a U-turn by this tugboat and its tow.
Kenneth E. Roberts: That's exactly what I'm saying Mr. Chief Justice. It's -- it's -- the analogy on the other -- it sounds may be not a too good analogy. You're driving down a highway, at a reasonable rate of speed and somebody turns in front of you. The courts in the maritime case says that we have the right to rely that this vessel, the tug and barge will obey the law and not make this abrupt U-turn.
Warren E. Burger: But in the -- but in the analogy you give if the automobile not engaged in any turn is going 60 miles an hour in a 30-mile zone, where would you be?
Kenneth E. Roberts: When -- that's a -- and then there is under automobile law a prima facie case of negligence per se but under these circumstances, I think where you take into consideration, the steerage rate of the vessel, the testimony of the helmsman and also the quartermaster and the pilot, I think and the visibility that was prevailing other vessels traversing this Columbia River that under all of these circumstances, six to seven knots is not sufficient to show fault on the part of the -- the Santa Maria. I just think that the mathematical rule of half the distance ahead is just unworkable. In fact, in any sort of a speed situation case, you're going to have fault on the part of the other vessel because he can't come along under the Pennsylvania Rule and show that the speed could not possibly have had anything to do with it. It just -- it seems to be inequitable and the justice of this situation, in my opinion, cries out for some remedy to avoid the consequences of this Ninth Circuit, Silver Palm half-ahead distance rule. Now, if the Court gets to the question that we've raised secondly in this case as to the division of damages. Again, Judge Wright in reversing this said, “This is mutual fault and therefore, both vessels share the damage on a 50-50 basis.” This --
Potter Stewart: Did you raise this -- did you raise this second question in the Court of Appeals?
Kenneth E. Roberts: No, there was no reason to raise it Mr. Justice Potter. We won the case in the Trial Court and we never anticipated this. So we raised it for the first time --
Potter Stewart: Well you might have, I suppose you anticipated the possibility of a reversal and I just wanted -- if you said and if -- if the judgment is reversed in any -- in any event, the 50-50 rule should not be applied. Of course, that's the rule of this until that rule is changed by this Court. I suppose the Court of Appeals would have not listened to that argument.
Kenneth E. Roberts: No, they would not have listened to the argument I -- in my opinion. We feel that this 50-50 mutual fault is an anachronism on the present authorities. We're the only maritime nation in the world that I know of that actually adheres to it. I -- I feel that is a very, very unfair rule as demonstrated by the facts in this case. Even Judge Wright in his opinion finding a mutual fault said that the fault of the tug and barge was flagrant and it was shocking to -- to some extent. I'd say that this case very aptly demonstrates the inequities of the mutual fault doctrine. There seems to be no doubt that most of the shipping industry, the lawyers, the Maritime Law Association, Congress to some extent, or at least, some of the committees of Congress feel that the rule should be changed and that the vessel should be charged proportionately -- proportionately with its degree of fault.
Warren E. Burger: But where do we stand -- or if we put it in the form of question -- another question, do we stand in the same posture here as failure of Congress to alter legislation when they have failed to adopt the Brussels Convention?
Kenneth E. Roberts: No, I don't think so. The mutual fault doctrine as I understand it and read the cases came out of the Catherine v. Dickinson case. It's a judge-made law and if it's a judge-made law then the judges and members of this Court can very easily change it as very definitely demonstrated in the Hawn versus Pope & Talbot where this Court said the contributory negligence was not at bar in a maritime tort situation where this Court in the (Inaudible) case said that there is a cause of action in inland waters for wrongful death based on unseaworthiness. There is no statutory prohibition in any way preventing this Court from changing that archaic rule of mutual fault under the circumstances or any of the circumstances of any maritime collision as we have -- demonstrated by the terms of our brief.
William H. Rehnquist: Mr. -- we had a case here last spring involving the Erie Railroad Company where we were asked to overrule the Halcyon Lines case which I think was equally a judge-made law and as I recall, we declined to do it. How do you feel your basic proposal is differs from that made by the petitioners there?
Kenneth E. Roberts: I'm familiar with that particular case. That was a maritime personal injury case arising out of a maritime personal injury case and it was indemnity by one side against the other after the original judgements have been played off. In that particular case though, as to the merits of the case in chief that supported the action for indemnity comparative rule of principles where in fact applied. The longshoreman or the railroad worker working on the barge in that case, if he was contributory or negligent -- or if he was negligent, his damages were reduced to the degree of his negligence, so comparative negligence, and in this case, we've got original parties. This is not a case for indemnity and that's the only way I can distinguish this particular case Mr. Justice Rehnquist. The -- the Atlantic Railroad case certainly and all maritime cases that I know of, the Jones Act, the Longshore and Harbor Workers Act cases and so forth, comparative negligence has been applied by this Court and by other court state and federal in determining degree of fault in the personal injury field. The only difference that we are asking you to do at this time is to make it uniform and apply it in a property damage case. That's all we've got here --
William J. Brennan, Jr.: Now how does the share equally rule work now if there's --? If the barge suffers $10,000 damage and the tanker $50,000, the barge pays $25,000 of your damage and you pay $5000.
Kenneth E. Roberts: That's exactly --
William J. Brennan, Jr.: That's the way it works.
Kenneth E. Roberts: And -- and I think that type of a situation leads to litigation because you get a situation and I think lawyers, when they get amongst themselves and litigation and attend to be fair with one another and can be determined based on the facts, the relative degrees of fault of their two vessels. However, where -- you get a situation where you got one, obviously 90% at fault and another -- a vessel may be only 10% at fault and may be it was a statutory fault and there's nothing to do with contributory -- approximate course elements in the case in any way then the other lawyers are going to ask for mutual fault -- mutual fault all the time whereas, if we had a comparative fault doctrine and a gain on that hypothetical, maybe they'd settle the case on the basis of 8515 or even 8020. No one is outraged by that type of negotiation and settlement and I think it's very, very proper that that type of the settlement can go on but I think, it cannot go on in this particular field where you have this archaic, what I consider to be archaic, outmoded doctrine of mutual fault. And I don't see any reason at all from a legislative, political, or social purpose why the United States should be the only maritime nation that adopts this particular mutual fault.
William J. Brennan, Jr.: What were the relative damages here?
Kenneth E. Roberts: Pardon?
William J. Brennan, Jr.: What were the relative damages to the barge?
Kenneth E. Roberts: They were fairly equal in this case. The barge was the only one that sustained collision damage because the tugboat had made the U-turn and the tank has sustained damage on its port bow and the starboard side of the barge sustained damages. There was a little more, I believe, damage on the barge itself that which would mean that the vessel, my client, the Santa Maria under the mutual fault doctrine will be (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) --
Kenneth E. Roberts: -- to the other side.
William J. Brennan, Jr.: Yes.
Kenneth E. Roberts: And that's what -- so I think unfortunate about such a doctrine. There is also some indication that it leads to foreign shopping. That's where you get -- in inland waters or a vessel in collision with another they will try and get it to the United States Court for the simple reason that the court would basically apply the law of the forum or the United States which is the mutual fault of doctrine and everything went down like middle 50-50. Also, from a human nature viewpoint, I think this type of a doctrine tends to make the trial judge take the easy way out in all sincerity instead of really looking at all the facts that Judge Kilkenny did in this case and he made his own opinion and adopted it as his findings there is some inclination to say, “Well, under the mutual fault doctrine, all I've got to do is to find a little,” and that's the end of the case, and I believe that the doctrine is not usable anymore and that this Court should overrule it. Thank you very much.
Byron R. White: Mr. Roberts, does the absence of any amici briefs here by insurance companies indicate that they're quite content with the existing rule?
Kenneth E. Roberts: I don't think that does. The -- it's not all insurance companies, some of these vessels as the Court knows has brought very large deductibles on collision liabilities and things to this nature. And I don't think the absence of anyone from industry or from the Maritime Law Association, the congressional records which we have sighted in our brief, would certainly indicate that the great majority of the people concerned in this field would likely proportionate fault rule. Thank you.
Warren E. Burger: Thank you Mr. Roberts. Mr. Wood.
Erskine B. Wood: Mr. Chief Justice, may it please the Court. We have two points to argue here. The first one being the rule of navigation and I agree with Mr. Roberts. I think there's no difference. We're just applying different labels to the same rule if we call it the half-distance rule or the rule of sight. And that rule was really first evolve by decisions of this Court in the Nacoochee and the Umbria and the Chattahoochee and the rule laid down was that in a fog a restricted visibility, a ship should proceed as such a speed as would enable her to stop in time to avoid collision with another vessel which she sees emerge from the fog.
John Paul Stevens: Well, does that mean that it must come to a complete stop as it approaches a fog bank? Literally it might, might have not?
Erskine B. Wood: No, because it would depend upon the standard visibility in the fog. If he's about to enter a fog bank, you can still see some distance into the fog. I mean, the line of the fog bank is not a -- a solid curtain and once in that, you should certainly slow down to that speed as you approach that fog.
John Paul Stevens: Some fogs are pretty dense.
Erskine B. Wood: They're pretty dense and then you got to go pretty slowly.
Warren E. Burger: Well, isn't the record here that these were patches?
Erskine B. Wood: It was patchy fog, but the tug and its tow for a time were completely concealed from the view of the tanker and that was find -- found by the Trial Court and the Ninth Circuit.
Warren E. Burger: But the experience of the pilot knowing the distance would not only be able to estimate the speed movement of the tug even unseen, would he not?
Erskine B. Wood: If he could be certain that the tug was going to stay where it was or maintain the same course and speed and not make any turns, that's the difficulty.
Warren E. Burger: But isn't -- now, why is that not a fair assumption on the record of this case? Isn't that a reasonable assumption?
Erskine B. Wood: It might be, but you never -- you never can be sure what you -- what's going to happen when you can't see the vessel and that's why radar is such an imperfection and why we have so many collisions despite radar that the courts had turn the coin radar assisted collisions because they see only the spot on the radar but they can't tell the course and speed and it gives a misleading sense of security. And as in the Andrea Doria, Stockholm case and then many others, the ships tend to steer into each other when they think they're steering away from each other.
Thurgood Marshall: But in this particular case, even if there were no fog and this tug made that u-turn, what would have happened?
Erskine B. Wood: If there had been no fog and the Santa Maria could see that tug at all times with the visible eye, and the tug made a U-turn in front of her in such a close distance that the Santa Maria could not avoid collision, I would think that it would be the tug's fault and not the Santa Maria's fault. But what we have Mr. --
Potter Stewart: But probably -- probably and their dealing in ease, the tug would not have made the U-turn because I get --
Erskine B. Wood: Absolutely.
Potter Stewart: I get it from the record that it was confusion as to where the Santa Maria was. The tug is up, the lights around its starboard bow.
Erskine B. Wood: That's --
Potter Stewart: And actually, they had to be on the port bow, didn't they?
Erskine B. Wood: Not necessarily, there was a slight bend in the channel, which further confused --
Potter Stewart: There was a confusion caused by the fog.
Erskine B. Wood: Caused by the fog.
Potter Stewart: That caused the tug to make the turn.
Erskine B. Wood: The tug in fact was taking an in extremis action because of the fear of eminent collision.
Warren E. Burger: Does the -- does the capacity and experience of the tug crew and master enter in to that somewhat?
Erskine B. Wood: I don't think this really has anything to do with it. We are not contesting fault of the tug. We did in the Trial Court level, but when we got to the Court of Appeals, we were only trying to mutual fault on the sole of issue. The sole issue before the Court of Appeals and the sole issue here on this matter of navigation is why is that Santa Maria going in excessive speed when she was going in a speed of seven to eight knots? She knew that there was a vessel coming down meeting her, some place in that fog which she couldn't see at that time and she was going in such a speed, not only she couldn't stop in half the distance, she couldn't stop in the full distance because when she first sighted that tug it wasn't right angles to her course. And of course, with the tug ran at right angles to her course, she occupied the whole distance to the point where she first saw it and she was still going from four to seven knots at the point of collision. She was going way over the speed allowed by the rule of sight. And I want to point out that the rule of sight is a rule of safety. It's a rule that was first announced by this Court. And fog as Gilmore & Black says, “Fog is the ancient terror of mariners.” Probably fog is one of the greatest causes of ship collisions and speed in the fog is one of the greatest causes of ship collisions and my colleague here would argue that we shouldn't have any standards that we should leave everything to the judgment of the master. I think that's a dangerous --
William J. Brennan, Jr.: Why should the Santa Maria be --? Would it be justified and assuming on a clear day that the tug is going stay on its side of the river? And hence the Santa Maria maintained its speed and to then -- not be entitled to assume that if there's a fact -- if the tug is in a patch of fog. And what -- what's the difference there?
Erskine B. Wood: Well --
William J. Brennan, Jr.: You wouldn't say that --
Erskine B. Wood: The difference is --
William J. Brennan, Jr.: -- Santa Maria would have been negligent at all -- if -- if on a clear day, she maintained her full speed 12 knots.
Erskine B. Wood: Well, I think the differences Justice -- Mr. Justice Stewart has pointed out, the very fog itself lends uncertainty to the whole situation. The very fact that there is fog creates uncertainty of the whole situation. If you have a bright clear day and you see the tug coming down, why of course you realize that the tug can see you and you're both going to stay on your own side. But when you have fog, you don't know what that tug is likely to do when she suddenly sights you --
William J. Brennan, Jr.: Well, it's rather unlikely to assume the tug is going to make a U-turn though?
Erskine B. Wood: I don't think you can be certain that it won't.
William J. Brennan, Jr.: So this case proves that?
Erskine B. Wood: No. You have to -- one thing that's a little different with the tug than other ships, a tug can't just handle the situation by going full astern because it's got its barge comes down behind it and that produces a collision with its own barge. The tug here acted in extremis because of the confusion of the fog. I think the fog creates much greater danger than vessels meeting on a clear day and therefore, I don't think anyone really has a right to assume anything. There are certain sanctions you can make but above all, you've got keep your speed within what the Law of a statute is, the Statute, Article 16 says moderate speed and that as Learned Hand said that command is imperative, how the courts for years have in applying that statute applied an interpretation that you must go at such a speed that you can stop within the rule of sight.
Thurgood Marshall: Mr. Wood, the tugboat not as in this case, but if he followed at that sight of rule and stop the barge would hit it, wouldn't it?
Erskine B. Wood: If the tug followed the rule of sight?
Thurgood Marshall: Yes and stopped, would the barge have hit it? Is not in this case I don't that the rule of --
Erskine B. Wood: That the rule of sight does not require coming to a complete stop. The rule of sight would require that you slow down enough so that you can stop.
Byron R. White: What is something that you have to stop to? If you see something as (Inaudible) you're supposed to stop? That's the purpose of the rule.
Erskine B. Wood: Well, then the tug ought to be going pretty slowly.
William J. Brennan, Jr.: And the question is how is it going to slow down, people are running toward the rear end of the tug?
Potter Stewart: In practical fact, if the -- if the rule of sight does sometimes have strictly applied, it would sometimes require you stop an anchor.
Erskine B. Wood: Yes, yes it would.
Potter Stewart: Because the speed at which the rule of sight would require you to go and be too slow to maintain steerage way.
Erskine B. Wood: It could. That brings us in to steerage way,
William H. Rehnquist: Mr. Wood, before -- before you get this, let me ask you one more thing about the rule of sight. That does the Law of Admiralty couple with this concept that the rule of sight some concept of foreseeable risk as you had in the Cardozo's opinion in the Palsgraf case or proximate cause so that you're only liable even if you've breached it to something that might reasonably have been foreseen to result from your breach?
Erskine B. Wood: Well, this touches on -- on this. I think that as a matter of common sense with radar now, we don't apply the rule of sight in mid ocean where you have no radar indication of another ship to any other place.
Warren E. Burger: Would you raise your voice a little bit counsel?
Erskine B. Wood: Yes.
Warren E. Burger: I am not sure we can all hear you.
Erskine B. Wood: I do not push this rule of sight to the extreme that in the middle of the ocean where you have an effective radar and you are sure that there are no other vessels in the area, in the vicinity at all that you have to at all times hold down to a rule of sight speed but this get -- I'm trying to answer Justice -- Mr. Justice Rehnquist's question. When you are in harbor waters, inland waters, in a channel such as the (Inaudible) River, there you are expected to meet other vessels and your radar has already told you that you are meeting an approaching vessel. Therefore, you are required to go with the rule of sight and the very vessels that you are meeting are within the ambit of the protection of that duty to go at moderate speed. I think very much so particularly because of the fog which creates a cloud and an uncertainty over the entire navigation as the very reason for the rule of sight.
William H. Rehnquist: Would it be unreasonable to say here from the point of view of those expressed down (Inaudible) that whereas a collision on a port to port passing might have been anticipated in a fog, a collision that type that took place here really couldn't have been anticipated at all?
Erskine B. Wood: I think it would be a little unreasonable to say it couldn't be anticipated at all. Bear in mind the ships are meeting at a band in the channel so that where the first sighting -- when the tug first sighted the lights of the ship they were dead ahead and you might have an election of which way to go. I think it's going to be dangerous to try to pend this rule of sight to make it nonapplicable in fog situations where the other vessels hidden from the fog to say, “Well, we had the right to assume that she would stay on her side or something.” I think you're leading to hazards. Now bear in mind that this -- this is a rule of safety and we're talking about a rule that may affect life. I mean we're talking about a rule where ships maybe carrying passengers and we may not have just a little collision like this. You have life and death at stake in here, in this case. I think that's the reason that courts have quite uniformly been quite strict on this rule of sight. Now, it just amazes me that Counsel says the Ninth Circuit is the only one to adhere to the rule of sight. Gilmore and Black say a rule of thumb often applied is that the vessel can come to a dead stop in half a distance. Judge Learned Hand, because of a rule that everybody knows in the Anglo-Saxon Petroleum Company case. The Second Circuit has applied it over and over again. He says -- Judge Learned Hand says on Article 16, “Only requires a vessel in a fog to "go at a moderate speed," as everybody knows, the courts have imposed a gloss upon this that "moderate speed is that at which, if the other vessel also does her duty, the vessel will be able to stop her way before they collide.”
Byron R. White: Are the other courts that -- why there are some courts who do not follow it?
Erskine B. Wood: No, they all follow it.
Potter Stewart: But Hess Shipping in the Fifth Circuit.
Erskine B. Wood: Oh, I'd like to talk about that.
Potter Stewart: That's a -- because we denied certiorari in that case --
Erskine B. Wood: Yes. Yes Your Honor it did. And the Hess Shipping allowed an exemption of bare steerageway. I mean that's -- that's all it did. The Fifth Circuit recognizes the rule of sight. Their prior decision was a -- and I think a unanimous decision written by Judge John Brown, an experience admiralty practitioner, and that was the Antinous case, Finlayson-Forssa against Pan Atlantic and I cited these cases on the brief and there the Fifth Circuit said, “The Antinous have to demonstrate she could stop in one half of distant she could see.” Now, that was the rule on the Fifth Circuit. Hess Shipping came along and they had a very large tanker going at only five knots, not seven or eight. And the testimony was if she couldn't possibly gone any slower without being a hazard to navigation, it was -- it ended up to 7 to 7 decision and you denied certiorari and the exception allowed was bare steerageway that she couldn't have slow down anymore.
Potter Stewart: But she could have dropped her anchor.
Erskine B. Wood: She could have dropped her anchor.
Potter Stewart: Which -- which is a strict application of the rule of sight would have required in that case, wouldn't it?
Erskine B. Wood: Under -- under some decisions, yes. I think the Pennsylvania had an early decision by this Court so said. In the Hess Shipping, I say the -- I think it is recognized as an allowance of an exception of bare steerageway. Now, they cannot petition or cannot escape under that umbrella in this case. They were going well and excessive bare steerageway. The Santa Maria had three basic speeds, full, half, and slow. And as the Court of Appeals opinion says, “She didn't show that she could have gone slower.” And my brief on page 23 specifically covers this, approach the testimony that her helmsman, the man -- the very man steering the ship who got 22 years experience. He said it steered good and steered just as well at slow speed as in half or full. Question, “Is it more difficult to hold an exact course when you're going a slow speed?” Answer, “I don't find it, so no, if you give it enough wheel, she will hold her course real good.” Later on question, “Does it make any difference whether you're going full speed, half speed, or slow speed and fully loaded?” Answer, “Not if you give it enough wheel, it does make any difference.”
Warren E. Burger: At five knots, would this collision have been avoided?
Erskine B. Wood: I think so.
Warren E. Burger: When at seven, at running full distance between them, is there any evidence on that?
Erskine B. Wood: Of course the burden is on her under the Pennsylvania Rule but they pretty nearly missed and there is quite a difference in momentum between five and seven. I'm not an expert on ballistics but her momentum, but it seems to me there's something about weight times speed and so forth and I think it goes up pretty rapidly. I think at five knots, you can come to a slower speed or a reduced speed a lot quicker than you can at seven or eight knots. And I think at five knots when she went -- if she had gone full astern immediately, she would have checked her head way enough that the barge would have swam clear. In any way, in any event, the burden is on her to establish that under the Pennsylvania Rule because she has committed a statutory violation. Her burden has to show not only that her fault did not cause the collision but could not have caused the collision.
Lewis F. Powell, Jr.: Do any of these cases treat the rule of sight as a presumption shifting the burden of proof perhaps and then leaving it to the Court to determine from the evidence whether or not the presumption has been overruled or outweighed the -- by the evidence in this particular case?
Erskine B. Wood: Yes, Mr. Justice Powell, I think that's perhaps another way of stating the Pennsylvania Rule. When she violates the rule of sight, she is considered to have committed the statutory violation which puts on her the burden of proving not only that this violation didn't cause the accident but couldn't have caused it and therefore, if she fails to prove that, she's held condemned on that ground. I think it's just another way of stating the Pennsylvania Rule. In other words, it's a presumption that she has caused the -- contributed to the collision and in this case, she didn't put on any evidence to it that the collision still would have occurred and really couldn't. I think this -- I just merely want to say that we have no conflict here with the fact that you consider the circumstances because of course when you're determining whether your speed is -- you can stop in half a distance. All of the circumstances come into play whether you're fully loaded and have more momentum because of your weight or whether you're light, whether you have a headwind, whether you've got quick reversing engines or slower reversing engines, whether you've got a headwind or a tailwind, everything -- all those circumstances come into play and it doesn't take any slide rule of calculation as my Brother would say anymore than when you're driving a car down a highway in a thick fog, it's probably a pretty prudent thing to do to not go at such speed that you can't stop within the rule of sight because there might be a broken down automobile in the middle of road ahead on you. Now when you're driving down the highway in a dense fog is probably a pretty good thing to not exceed the speed that you can see ahead in the fog, at least I normally, if I'm not to go or in that at least to which I can see lights. So, I think it's a rule of common sense. I think the Court of Appeals' decision on this point when read carefully is probably the best brief that one could write for upholding the rule of sight. This brings me the point of damages and division of damages and I would less likely -- I'll very briefly sketch the history on this. Some 120 years ago, of course this Court announced that in mutual fault cases damages are divided equally and that is continued to be the rule. The same rule was applied in England for years and years and years and then it was actually made statutory, this I do not have all this in mind. I didn't put in the brief but the English -- I can't say it -- act of some 1873, the 50/50 rule is made statutory. Then in 1910, we had the Brussels Convention which adapted proportional fault but also did a lot of other things and governed the relations with cargo, the obligations toward cargo. Now, we come with the legislative history in the United States and Brussels Convention was submitted to the Senate in 1937 and it sat here for 10 years and there wasn't much action during the war but it remained here after the war but after a 10-year period when no action was taken -- taken on it, it was withdrawn. Then in 1962 in the 87th Congress, they put in a Senate Bill 2313 and H.R. in the House 7911 and those finally died on the floor. They were reported on a committee but they died on the floor. Then the next year in 1963, I do not include this in my brief unfortunately. I didn't have all the legislative history research facilities in Portland and I check this out with the Congressional Library here. But in the 88th Congress, again two bills were introduced, S.555 and H.R. 1070 but those bills again were to provide for proportional fault and to really enact the substance of Brussels and they never got out of committee, never got out of subcommittee. Now, so much for the past history, this Court although was a personal injury case that reiterated in Halcyon, the rule that the collision cases that's 50/50 and as recently as 1963 in Weyerhaeuser versus United States, a unanimous decision opinion written by Mr. Justice Potter again, referred to the rule that we have here a rule which is work with the -- I don't want to miss quote it. It's in my brief but anyway, recondition was paid to the rule in 1963 that in collision case, it's always 50/50. Now, briefly on the merits of this rule versus proportional fault, it -- contrary to what my colleague says, I'm sure that it promotes settlements. I think from my experience --
Warren E. Burger: Will it eliminates one issue from the case, doesn't it?
Erskine B. Wood: It certainly eliminates one issue. I think experienced lawyers sitting across the table will recognize -- well, there were some fault here and there are some fault there and we settle 50/50. In my own experience of 30 years, I have never tried a major -- you know a big half million, million or two million dollar collision case. I settled many of them and I don't know one in which I didn't say, “Your ship was a lot more at fault than ours,” and the other fellow was saying, “Your ship was a lot more at fault.” But when you get all through arguing, you have to admit that there was some fault on both sides and you settle at 50/50. Now, the Andrea Doria, Stockholm which was probably one of the major collisions with most money involved never -- I don't believe it was ever tried in the District Court. It was an ultimate settlement. These cases have uniformly been settled and it's a pretty practical rule because as my colleague's brief points out, you've got mostly whole insurance companies on both sides of these things and maybe they lose a little here but they evens up with the next case. Maybe in one case, they thought they should have come two thirds, one-third but next case is the other way and they're all settled 50/50. Now, for just for a moment on the burden that this might place on the courts, not only do I think that if you have a proportional fault rule, each side is going to say, “Your ship is more at fault.” “No, yours is more at fault,” that you're going to litigate but you're going make the trials much longer because it's going to get to be a game of points. Now, if I can just prove that you violated the rule of sight, you were going too fast in fog, that's all I have to prove. But if we get to proportional fault, I want to prove that he was not keeping a proper look out on the bow, that he wasn't lowering his danger signals, he wasn't lowering his fog signals. They turn port when it should have gone starboard. His radar watch was inadequate and I am going to try to build that about 10 points so that if he proves a couple of good points against me, I've still got an 8020. I think you're going to have your trials to get to be sort of a game of points and trials are going to be a lot long. Now, Brussels Convention, very frankly, I handily with the Court, I favor Brussels Convention in toto but I don't think -- I think it would be a great mistake to try to change -- to adapt what rule of proportional fault which is kind of a piece meal adaption of Brussels Convention. Remember that Brussels Convention also regulates the obligations toward cargo, and this is very important to this case to understand the ship owner's obligations toward cargo because every major collision case or almost everyone, you have inextricably involved with the cross liabilities between two ship owners. You have their obligations toward cargo. Now, historically --
John Paul Stevens: What I suppose Brussels Convention could be resubmitted in the Senate, could it not -- could not?
Erskine B. Wood: We can do it tomorrow.
John Paul Stevens: We can do it tomorrow?
Erskine B. Wood: Of course.
John Paul Stevens: Any suggestion that maybe done or --?
Erskine B. Wood: Let's talk about it from time-to-time. There is nothing to prevent it. I -- I am sure that if there was enough interest and enough push in this thing that if people really wanted the 50/50 rule of change --
John Paul Stevens: By people, you mean insurance companies?
Erskine B. Wood: Insurance companies, steamship owners, cargo owners, people if they wanted to get a law pass, there wouldn't be any great problem about it.
Byron R. White: Lawyers would love it, wouldn't they?
Erskine B. Wood: Sure, I'd love it.
Warren E. Burger: We did it more than a half century now, hasn't it? That's slower than usual along these things.
Erskine B. Wood: You say it's been before Congress, yes --
Warren E. Burger: 1910?
Erskine B. Wood: -- since 1937.
Warren E. Burger: Well, but 1910 is when the Convention. Was it first -- wasn't it first presented right after it was -- agreement was reached?
Erskine B. Wood: I believe not, Mr. Chief Justice. The first that I have found that it was presented was 1937 which all it was originally adapted 1910 but I think it -- we have to allow 25 years in order to be adapted by a lot of the other maritime nations and then when they got to be pretty uniformly adapted by the other maritime nations, they made to push to have it done here. They never took hold of them. Now, I want to explain this matter of cargo. You see the cargo on the carrier. It's important to distinguish between the carrying vessel which carries the cargo and a non-carrying vessel. For many years under Acts of Congress, the Harter Act, Carriage of Goods by Sea Act, we call it COGSA. Cargo has not right to recover against its own ship, the carrying ship, for negligent navigation which is involved in collisions but cargo has always had the right to recover a 100% against the non-carrying vessel. Now -- so that's what happens. Cargo gets 100% of its recovery against the non-carrying vessel and under the 50/50 rule a non-carrying vessel then includes its payment to cargo in its damages and gets them back from the -- and gets 50% back from the carrying vessels. So indirectly, the carrying vessel ends up paying 50% of the damage to its own cargo but no more. They used to try to devise bill of lading clauses to get around that but in the United States against the Atlantic Mutual, this Court held those bill of lading clauses void as against public policy. So the law is well settled that the innocent cargo recovers a 100% against the non-carrying vessel which in turn gets 50% back from the carrying vessel. But now, if you were to adapt piecemeal, an extract out of Brussels Convention, a rule of proportional fault, look at the result. He would create innocent cargo on the carrying vessel. And let's assume the carrying vessel is 90% to blame and non-carrying vessel is 10%. The innocent cargo gets a 100% of its damages against that 10% to blame non-carrying ship. That ship in turn, under proportional fault, we get 90% of the damages back from the carrying vessel. So you have the carrying vessel which Congress under Harter Act in COGSA says it's not responsible for damage to the cargo due to negligent navigation as being indirectly held for 90% of the damage. Now this does two things. Number one, it pushes us a lot further away from the law of other nations. If is -- If we're trying to achieve uniformity, let's try to get some uniformity on maritime law with England and Japan and Italy and Germany. But here, we'd be pushing to think further from uniformity because here you create situations where cargo would end up with a 90% recovery from its own vessel and under the law of all other maritime nations, cargo cannot recover from its own vessel and its recovery against the non-carrying ship is not a 100% but it is such percentage is that non-carrying vessel is at fault. Not only the -- create habit with uniformity but you open the door at least you create an atmosphere where -- which is an invitation to collision. A ship carrying a valuable cargo, we say a million dollars of cargo damage and maybe there's only 100,000 scattered damage to the wholes of the two ships, like she is going to come, if she is pretty much to blame, she is going to come in and try to admit sole blame and say, “I'm 100% at fault. That other ship was free and clear,” and shape a witness's testimony that way because if she is a 100% to blame, she doesn't have to pay any cargo damage. The cargo can't recover against the other ship -- excuse me. Yeah, if she is a 100 -- if a carrying vessel is a 100% to blame that presupposes that the non-carrying vessel has no fault so cargo gets nothing. And so, with the million dollar cargo damage and ships, maybe 100,000 whole of damage, why -- the ship is going to throw the case if it can do so gracefully and escape that million dollar liability even though it might pick up the $100,000 tab. I think it opens the door to collision that leads to ridiculous results as far as the forum shopping. I'd never seen any great -- amount of forum shopping on this. I don't think it exists and when the collisions are on -- in the waters, of course they're controlled by the law of the place and forum shopping doesn't do you any good. I submit that the rule shouldn't conclude by saying that the rule is a workable rule. We've had it for 100 years. We don't have the reason for change here that you had in (Inaudible) In (Inaudible), that involving death on inland waters, we had utter chaos in the maritime field and substantive right of recovery for death because you relegated the suitor to the state death statute which varied from state to state, in some places there was a bar in other places which proportionately -- in all kinds of nonuniform results. We don't have the reason for trying to make new law or changing the law that you had in (Inaudible) And in view of the legislative history, I think this thing should be straightened up by Congress and I agree with -- I believe it was Mr. Justice Rehnquist's absence of briefs amicus here and the absence of any recent efforts in Congress shows that everybody is pretty well satisfied with this 50/50 rule. It's a good work for a rule.
Warren E. Burger: Thank you Mr. Wood. Mr Roberts, we allowed Mr. Wood ago a few minutes if you have anything by way of rebuttal, we'll give you three minutes.
Kenneth E. Roberts: I just have a couple of remarks, sir. Under the comparative fault doctrine, Mr. Wood has already said that under the mutual fault doctrine, the non-carrying vessel puts up if it's 10% of fault now it still gets 50% back from the carrying vessel. It seems to me that if it gets 90% back from the carrying vessel based on comparative fault that is more equitable and just under all of the circumstances and I can't see any difference or validity to his argument between the 50% which he gets back now and the 90% which he'd get back on if this Court has decided to -- to adapt the comparative fault rule. That's all I have. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.