Broughton & Wiggins Nav. Co. v. Hammond Lumber Co.

GARRECHT, Circuit Judge

(dissenting).

Scarcely exaggerated is the statement of counsel for the appellees that the respective parties are in agreement only as to the names of the colliding vessels, the time of the collision, and the existence of fog. The fog that enveloped San Francisco Bay on the late autumn morning in question seems to have been wafted into the record. Not only are all of the material facts in sharp controversy, but added to the welter of dispute are the admitted disappearance of the Meyer’s engineroom bell book, smooth deck log, and rough engine-room log, and the admitted alteration of the Eureka’s engineroom bell hook.

The parties agree that ships’ records are of great importance in a collision case, especially where the question of speed is involved.

In the majority opinion, an attempt is made to reconstruct the admittedly altered logbook of the Eureka. Ingenious and plausible as the reconstruction may be, I cannot bring myself to accept it as a substitute for legal evidence, properly introduced. I do not believe that it is the province of an appellate court, even in admiralty, to perform the task of a handwriting expert, and, scrutinizing a document with a microscope, decide what the original entry may or must have been. To my mind, such a procedure substitutes conjecture for legal evidence.

The majority of the court seems convinced, as I am, that the disappearance and the alteration of the logbooks have not been satisfactorily explained. In such a situation, a court of admiralty, acting as it does according to “the principles of equity rather than the strict rules of common law” (1 C.J. 1252, § 18), should decline to give relief to parties whose records have vanished or have been altered.

I also agree with my brethren that “many collision cases present complete contradictions of the same events, crew against crew.” For this reason, I cannot concur with the majority in its reliance upon oral testimony in order to clarify a situation so unfortunately confused by the disappearance and alteration of records.

I am in complete agreement with Judge Benedict’s classical statement that: “If possible, it ought never to happen that a case sought to be supported by a fabricated log-book should succeed.” The Tillie, 23 Fed.Cas. page 1266, No. 14,048. The majority opinion brushes aside this statement with the comment that it expresses “the extreme view.” Whether extreme or not, this view seems to me less productive of possible injustice than a reliance upon guesswork as to what a ship’s record may, might, or must have been before it was mysteriously altered or destroyed. While I do not impugn the motives of any of the proctors connected with the case, the stubborn fact remains that the parties have placed themselves in so dubious a situation as to disentitle them to relief from a court of admiralty.

*506Aside from the logbooks, which are admittedly of crucial importance, the other evidence relied upon to establish fault is too tenuous and conflicting to provide a substantial basis for a decision.

Accordingly, I am reluctantly compelled to differ with my brethren and to hold the view that neither party should be given relief, and that each side should bear its own costs, here and below.