L. Boxers Sons Co. v. United States

LACOMBE, Circuit Judge (after stating the facts as above). We find no merit in the assignments of error which refer to the navigation of the two vessels. The finding of the District Judge that the Climax blew a single whistle, which was not answered, and thereafter a second single whistlé, which the Cactus answered with two whistles, is clearly supported by the testimony, including the disinterested witnesses. The contradictory testimony of the Cactus as to the signals, that she gave the first signal (a two-blast one) is overwhelmingly controverted. But even the Cactus concedes that at no time did the Climax assent with a two-whistle signal to the Cactus’ two-whistle signal. Upon the story of the master of the Cactus it is manifest that the collision happened because of his entire disregard of the starboard hand rule, a disregard which resulted, as his testimony shows, from his ignorance of its requirements. [1] Appellant's counsel, however, contends that the Climax was also in fault: .First. Because she did not hear and answer the first signal of the Cactus. The evidence of the disinterested witnesses corroborates that of the Climax that the latter blew the first whistle, which the Cactus crossed. Second. Because the Climax did not starboard when she saw that the Cactus intended to keep on. But as we pointed out in The Chicago and City of Augusta, 125 Fed. 712, 60 C. C. A. 480, and in The George S. Schultz, 84 Fed. 508, 28 C. C. A. 476, the privileged vessel is entitled to assume that, although the burdened vessel may at first propose to exchange rights of way, it will, if such proposal be rejected, conform to the rules of navigation. [2] The only other assignment of error is that libelant was not entitled to recover damages for the lost cargo, because the same, had been insured and insurance collected. In our opinion the provision in the act that the owners of vessel and cargo respectively should be reimbursed for losses and damages sustained does not preclude recovery for such a loss, which has been covered by insurance through some [492] collateral contract. What Congress had in mind was merely the foreclosing of any argument that unusual extraordinary claims—súch as expected profits or consequential losses should be allowed. Claims of such a character had been excluded by somewhat different language in other relief acts, which were considered in the authorities cited on appellant’s brief. The construction contended for would prohibit the recovery of damages by the cargo owners, if it appeared that the shipowner, who was liable as bailee of the cargo, were solvent. Such certainly could not have been the intention of Congress. The decree is affirmed.