Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 70 C 1837 & No. 70 C 2259 Thomas R. McMillen, Judge.
Hastings, Senior Circuit Judge, Cummings and Pell, Circuit Judges.
HASTINGS, Senior Circuit Judge.
These actions arose out of a collision on July 13, 1970, between the Japanese Motorship Buko Maru (Ship), owned by Sanko Steamship Co., Ltd. (Sanko), a Japanese corporation, and a single leaf Strauss Bascule Drawbridge owned and operated by the Chicago and Western Indiana Railroad Company (Western Indiana) while the Ship was being assisted up the Calumet River from Lake Michigan to Lake Calumet by two tugs of the Great Lakes Towing Company (Towing Company). Western Indiana was in turn owned by five other railroads each of which owned 20 per cent of the stock of Western Indiana. The railroads brought a civil action within the admiralty and maritime jurisdiction of the district court against the Ship, Sanko, each of the tugs and the Towing Company for damages consisting of the cost of temporary and permanent repairs to the bridge, of constructing a connecting track to other railroad facilities, and of routing rail traffic over the connecting lines. Motions to intervene by three other railroads having rights as tenants to use the bridge under agreements with Western Indiana were continued pending trial of the liability issues.
The Towing Company brought an action under the maritime and admiralty jurisdiction seeking exoneration from liability or, in the alternative, for limitation of liability pursuant to various statutes. The district court ordered the actions of the railroads and the Towing Company consolidated for trial of the liability issues arising out of the collision.
The liability issues were tried to the court, Honorable Thomas R. McMillen, Judge, presiding, between January 3 and 23, 1972, and on March 2, 1972, the court issued a decision exonerating the Towing Company and finding the Ship at fault and responsible in damages to the plaintiff railroads. In re Great Lakes Towing Co., 348 F. Supp. 549 (N.D. Ill. 1972).
On June 25, 1973, the petitions to intervene of the tenant railroads were granted and the district court issued a judgment order adopting the March 2, 1972, decision as the court's findings of fact and conclusions of law. It held the Ship and Sanko liable to Western Indiana and the proprietor and tenant railroads for damages in the aggregate amount of $873,826.98, exclusive of interest and costs. The Ship and Sanko appeal from that judgment. We affirm.
Appellants raise the following issues: (1) whether the court's findings with respect to the navigation and seaworthiness of the Ship were clearly erroneous; (2) whether the district court erred in exonerating the tugs and Towing Company from liability; (3) whether the district court's finding of a 75 degree angle of opening of the bridge at the time of the collision was clearly erroneous; and (4) whether the district court erred in failing to apply the Pennsylvania rule to find that Western Indiana was a cause of the collision.
A heading in appellants' brief claims that the findings and conclusions of the district court concerning the seaworthiness and navigation of the Buko Maru were clearly erroneous, yet the text of the brief makes no supporting argument or reference to the record. Rule 28 (a)(4) of the Federal Rules of Appellate Procedure, 28 U.S.C., requires that appellant's brief include an argument which "shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Where an appellant fails to comply with this rule, we are not required to search the record for error. Holt v. Sarver, 8 Cir., 442 F.2d 304, 307 (1971). Nevertheless, we find that these findings and conclusions of the district court were amply supported by the evidence.
The district court concluded that the Buko Maru, although suitable for the open sea and wide harbors, "was not well constructed for traversing a twisting and comparatively narrow waterway," and that the navigation of the ship was faulty. In re Great Lakes Towing Co., supra, 348 F. Supp. at 552.
The district court reached its conclusion regarding seaworthiness after reviewing the construction and operating mechanisms of the Ship. She was approximately 549 feet long and 74 feet wide and weighed about 17,500 tons as she was loaded at the time of the collision, with a cargo of steel products. The trial court found that "she was a clumsy ship with a rudder too small to do the job without help from the propellor, and she consequently lost steerage under 3 m.p.h. Although the engine therefore was needed for steerage, it could not run slower than 5-7 m.p.h., too fast for the Calumet River." In re Great Lakes Towing Co., supra, 348 F. Supp. at 552.
The findings were well supported by the deposition of Great Lakes Captain Melvin Leslie Nobes who had piloted the vessel through the Welland Canal. Captain Nobes detailed the mechanical problems of the Ship and told how, just a week prior to the collision in this case, he had run the vessel aground when he was unable to get a response from the rudder. Glenn V. Dawson, captain of the tug Arizona, testified that he had had difficulty in handling the Buko Maru throughout the trip on the Calumet River prior to the collision because of the performance of the Ship's rudder and engine. The trial court's findings and conclusions concerning the seaworthiness of the Buko Maru were supported by substantial evidence and were not clearly erroneous.
A simple recitation of the uncontested facts about the conduct of the crew of the Ship in its approach to the bridge demonstrates the validity of the trial court's ...