UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
October 21, 1942
THE BOHEMIAN CLUB; THE LAURA MAERSK; ATLANTIC REFINING CO.
THE LAURA MAERSK ET AL.; MOLLER V. THE BOHEMIAN CLUB ET AL.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Guy K. Bard, Judge.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
JONES, Circuit Judge.
This appeal grows out of a suit in admiralty for the damages to each of two vessels resulting from their collision. The Atlantic Refining Company, as owner of the one vessel, a tanker (the "Bohemian Club"), filed a libel against the other, a motor ship (the "Laura Maersk"). A. P. Moller, as the managing owner of the "Laura Maersk", filed a cross-libel. The District Court, finding that the "Laura Maersk" was at fault in the manner of her navigation and that the fault so found was the sole cause of the collision, awarded the Atlantic Refining Company damages against the "Laura Maersk", with costs, for the injuries suffered by the "Bohemian Club" and dismissed the cross-libel of Moller with costs to the cross-libellee. Moller and the "Laura Maersk" appeal.
The facts as found by the learned trial judge are as follows:
On the morning of December 20, 1939, the "Bohemian Club" (the tanker) was proceeding up the Delaware River on its way to Philadelphia. From place to place, the navigable channel course veers in order to follow the deeper water. The ranges for the various courses are well identified and plainly marked. At about 7:30 A.M. the tanker entered upon the course indicated by the Bulkhead Bar Range. Shortly thereafter she encountered a dense fog. After proceeding a short distance she dropped anchor at 7:41 A.M. because of the fog. At this time and place no buoys were then visible on account of the weather condition and no ordinary anchorages were available within five miles. Shortly after 10:00 A.M. the fog lifted a little and buoy 2-D on the easterly side of the channel, opposite the intersection of the northerly end of the Bulkhead Bar Range and the southerly end of the Deepwater Point Range, became visible. When sighted, it lay about one hundred fifty feet distant at an angle of forty-five degrees off the tanker's starboard bow. At that time the heading of the tanker was approximately thirty degrees. The tide was ebb but was due to change in about two hours. The channel at this point is about twelve hundred feet wide, eight hundred feet thereof lying to the west of the range line. Actually the position of the tanker, as anchored, was on the easterly side of the channel, and although the fact was not specifically found by the trial court, the evidence shows that, while the tanker was thus anchored, it was passed safely by three vessels proceeding down the river and that the master of the tanker knew that. Where the courses as indicated by the Bulkhead Bar Range and the Deepwater Point Range intersect opposite buoy 2-D, a vessel in order to change from the one course to the other has to make a 34 degrees turn.
When buoy 2-D became visible about 10:00 A.M., the master of the tanker, fearing that his vessel might foul the buoy when she swung with the tide upon the change to flood, decided to drop his vessel back away from the buoy when the fog had cleared sufficiently for the maneuver. Accordingly, for this purpose, at 10:13 A.M. the tanker's anchor was lifted and her engines were put slow ahead. At 10:15 A.M. her engines were stopped and at 10:18 A.M. her anchor was dropped, as the fog had again set in to the extent of obscuring buoy 2-D entirely. After this brief maneuver, the master of the tanker did not then know the exact position of his ship. Actually, the result had been to carry the tanker toward the west and thus farther out into the channel. At the time of the collision (to be described) the tanker was located in the channel with her bow approximately on the Bulkhead Bar Range course near the intersection of that course with the Deepwater Point Range course, her stern tailing to the west at her heading was still about thirty degrees. According to the fact as found by the court below, the tanker as finally anchored presented an obstruction to the free passage of other vessels on the Bulkhead Bar range course, especially those approaching downstream from the Deepwater Point Range course. There was evidence, and the court found, that the tanker sounded her bell all of the time she was anchored in the fog, as required by the Inland Rules of Navigation (Article 15(d), June 7, 1897, c. 4, § 1, 30 Stat. 99, 33 U.S.C.A. § 191(d).
The "Laura Maersk", which was proceeding down the river from Philadelphia, had successively passed Deepwater Point at 11:15 A.M., the light buoy at New Castle Flats at 11:20 A.M., buoy 4-D at 11:31 A.M., and buoy 1-D (on the westerly side of the channel just above buoy 2-D) at 11:35 A.M. While the learned trial judge made no specific finding, it appears from the testimony of the master of the "Laura Maersk" that she had been making speeds varying from thirteen to eighteeen knots an hour between the points above mentioned. At 11:33 A.M. the engines of the "Laura Maersk" had been reduced to half-speed and then to slow ahead, because of the fog which she was entering. At 11:34 A.M. her engines were stopped, as the fog had become denser, and when the vessel was abreast the buoy 1-D the rudder was put hard to port in order to bring the ship around the 34 degrees turn onto the Bulkhead Bar Range course at buoy 2-D. While this maneuver was being executed the vessel's engines were put full speed astern because of the fog enveloping the ship; and then the engines were stopped in order to listen for signals from other craft. The fog bell of the tanker was not heard at any time by those aboard the "Laura Maersk". At this moment the fog was pierced sufficiently to disclose to the "Laura Maersk" a view of the tanker lying about four hundred feet ahead. The engines of the "Laura Maersk" were put full speed astern and she so signalled, but despite her effort, she collided head-on with the tanker at about 11:37 A.M., from which both ships suffered the damages claimed. The tanker had also put her engines full speed astern, when the "Laura Maersk" hove in sight, but as there was no time to pay out her anchor chain, she had remained more or less stationary.
It is the appellants' contention that the position of the "Bohemian Club" at the time of the collision was unlawful and cannot be justified; and that she may not shift the blame for the collision under the "major and minor fault" rule since her fault was sufficient of itself to account for the collision, while the alleged fault of the "Laura Maersk" is at most no more than a suspicion as to the care exercised in her navigation.The appellee insists that the "Bohemian Club" was free from fault; that the collision was due solely to the fault of the "Laura Maersk" in proceeding in thick weather at an excessive rate of speed; and that under the doctrine of "major and minor fault" any doubt as to the propriety of the "Bohemian Club's" navigation must be resolved in her favor.
This matter is before us de novo. See The S. S. Bellatrix, 3 Cir., 114 F.2d 1004, 1006, and cases there cited. The trial court found, inter alia, that the "Laura Maersk" was navigated, as she approached the change of course opposite buoy 2-D, at what amounted to an excessive rate of speed under the prevailing weather conditions and that the fault in such regard was, "a cause of the collision". [40 F.Supp. 641, 645.] We choose to adopt those findings. Independently, we should have found to like effect from the evidence. The liability of the "Laura Maersk" follows as a matter of law.
Art. 16 of the Inland Rules of Navigation (June 7, 1897, c. 4, § 1, 30 Stat. 99, 33 U.S.C.A. § 192) provides in part that "Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions." What is a moderate speed in a given situation must, of course, depend upon the facts of the particular case if regard is to be had for "the existing circumstances and conditions". In The Chattahoochee, 173 U.S. 540, 548, 19 S. Ct. 491, 43 L. Ed. 801, the Supreme Court laid down the rule that a vessel should proceed at such a rate of speed as to be able, upon sighting another vessel, to stop in time to avoid a collision. In the earlier case of The Umbria, 166 U.S. 404, 412, 17 S. Ct. 610, 41 L. Ed. 1053, it had been intimated that what was demanded of a vessel under the "moderate speed rule" was a slackening of speed to the lowest rate consistent with good steerage. Obviously, this rule calls for discriminating application as, otherwise, the requirement of its spirit might be obviated by the intentional design of ship construction. In short, a ship so constructed that she cannot be navigated at a moderate rate of speed, according to the requirements of the particular situation, navigates at her own risk. The Sagamore, 1 Cir., 247 F. 743, 749. In any event, excessive speed in a fog had been held to impose liability. See The Ernest H. Meyer, 9 Cir., 84 F.2d 496, 504; The Cherokee, 2 Cir., 45 F.2d 150, 151; New York & Cuba Mail S.S. Co. v. United States, 2 Cir., 16 F.2d 945, 947. It seems clear to us that those in command of the "Laura Maersk" navigated her in disregard of the requirements of the above rule under the prevailing weather conditions and that the court below properly assigned that fault as "a cause of the collision".
It is our further opinion, however, that the circumstances which attended the collision are incapable of absolving the "Bohemian Club" of liability for contributing to the cause of the collision. As the trial court justifiably found, she anchored in the channel "in such a manner as to present an obstruction to the free passage of other vessels, particularly ones approaching from the other range". Her action was a positive violation of a statutory rule which is not to be justified by a necessity resulting from her own deliberate choice of a change of position in foggy weather, unless it be shown that her changed position did not contribute to the collision. That, the evidence fails to disclose.
The Act of March 3, 1899, c. 425, § 15, 30 Stat. 1152, 33 U.S.C.A. § 409, provides in material part that "It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; * * * ." The words "prevent or obstruct" have been held to connote limited restraint rather than absolute or complete prohibition. The Europe, 9 Cir., 190 F. 475, 479; The caldy, 4 Cir., 153 F. 837, 840. In The City of Norfolk, 4 Cir., 266 F. 641, 645, certiorari denied 253 U.S. 491, 40 S. Ct. 584, 64 L. Ed. 1028, the court did say that if a fog becomes so dense that a vessel cannot move safely then she should anchor and give the statutory signals and that, "Even if he [the master] thus obstructs the channel, he is not responsible, because it is done under necessity." Actually, the latter observation was a dictum, for the court had found that The Norfolk, ththeoving vessel, would have passed in safety had she been navigated with due care. That finding clearly implied that the anchored vessel did not prevent or obstruct the passage of other vessels. Moreover, that the court did not intend to suggest, in the case of The City of Norfolk, that all anchorages in channels because of fog excuse violations of the statute is clearly indicated by the further statement (page 644 of 266 F.) that the dominant use of channels is for passage of vessels and not anchorage therein and that the excuse because of necessity does not admit of a vessel's anchoring voluntarily in a channel when her presence there imperils other vessels or requires more than ordinary care or skill in their navigation.
The case of The Socony No. 9, 2 Cir., 74 F.2d 233, 234, is distinguishable from the present. While the tanker as anchored in the Socony case did obstruct ferries coming into the rack, it did not constitute an obstruction to the tug which actually collided with her in the fog. Moreover, in that case the anchored vessel would have had to venture into waters crowded with ferries in order to try to find another anchorage. Under the circumstances it was held that she was justified in anchoring where she did.That case would have been of present bearing had the "Bohemian Club" remained at the anchorage which she first made because of the fog. In The Providence, 2 Cir., 67 F.2d 865, 867, the anchored steamer was held not to be obstructing the course of the ferry boat which had made three trips in safety, while the steamer lay at the anchorage, and then collided with her on the fourth trip. Likewise, in The Bailey Gatzert, 9 Cir., 179 F. 44, 50, it was held that the dredge as anchored did not prevent or obstruct the passage of other vessels or craft. In The Northern Queen, D.C.W.D.N.Y., 117 F. 906, 913-915 the vessels had anchored in a fairway at a point where it was one-half mile wide and where the navigable channel was four miles wide. In such circumstances, it could be and was held that the anchorage did not obstruct or prevent the passage of other vessels. Such, however, was not the situation in the instant case according to the finding of the trial judge with respect to the tanker's obstruction of the channel with which we fully agree. Where vessels have been anchored so as to obstruct or prevent the passage of other vessels, it has been held that such anchorages constitute culpable fault. See City of Birmingham, 2 Cir., 138 F. 555, certiorari denied 199 U.S. 607, 26 S. Ct. 747, 50 L. Ed. 331; The Lehigh, D.C.E.D.N.Y., 15 F.Supp. 425, affirmed 2 Cir., 84 F.2d 1002.
In the present instance, when the fog had lifted somewhat around 10 A.M., the master of the "Bohemian Club" found that his vessel was anchored on the easterly side of the channel near the bend as determined by the intersecting range courses. That was plain from her position with relation to buoy 2-D which had become visible. The master also knew that, while the tanker had been so anchored for more than two hours, three vessels proceeding downstream around the turn opposite buoy 2-D has passed in safety. Yet, merely to avoid the possibility of fouling the buoy, when his vessel would swing round on the turn of the tide, he lifted anchor and maneuvered his boat in weather so unsettled that within five minutes after lifting anchor and when, because of the density of the redescending fog, he no longer knew whether he was, he found it necessary again to drop anchor. As a consequence, the tanker was farther out in the channel with her bow on the Bulkhead Bar Range course and her stern tailing off to the west of the course, - a position particularly obstructive to vessels proceeding downstream and required to make the swing to the left in turning from the Deepwater Point Range. The master having deliberately laid his vessel open to the peril which caused him to violate a statutory rule, may not then point to the fog for legal justification of his conduct and particularly not, when he is unable to show that his vessel's position neither prevented nor obstructed the passage of other boats in the channel.
In view of the tanker's particular fault (unjustifiable violation of a statute) little need be said as to its contribution to the collision.In The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 136, 22 L. Ed. 148, the Supreme Court said that, " * * * when, * * * a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster.In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been." See, also, Belden v. Chase, 150 U.S. 674, 699, 14 S. Ct. 264, 37 L. Ed. 1218; General Seafoods Corporation v. J. S. Packard D. Co., 1 Cir., 120 F.2d 117, 120. That burden, the owner of the tanker failed to meet. Indeed, in the light of the circumstances, it was impossible for the libellant to show that the anchorage of the tanker on the range course could not have been a cause of the collision. As found both below and here, the tanker's anchorage prevented and obstructed the free passage of other vessels on the course.
Where fault on the part of both vessels contributes to a collision, the rule of divided damages is applicable. The Schooner Catharine v. Dickinson, 17 How. 170, 58 U.S. 170, 177, 178, 15 L. Ed. 233. And, where a case for divided damages is presented in one suit, as here, a single decree is entered in favor of the vessel which suffered the greater loss for one-half of the difference between the respective damages to both vessels, or, stated otherwise, for the amount by which the greater loss exceeds one-half of the total damages to both vessels. See The North Star, 106 U.S. 17, 20, 1 S. Ct. 41, 27 L. Ed. 91; 3 Benedict on Admiralty, 6th Ed., § 417a, p. 186. The costs, as well, are evenly divided. The America, 92 U.S. 432, 438, 23 L. Ed. 724; 3 Benedict supra § 439, p. 233.
The decree of the District Court is reversed and the cause remanded for further proceedings in accordance with this opinion.
BIGGS, Circuit Judge (dissenting).
The conclusion of the majority puts far too heavy a burden upon the master of any vessel situated as was the "Bohemian Club" fog-bound upon the Delaware on the morning of December 20, 1939. She was compelled to drop anchor on the short Bulkhead Bar Range in a narrow channel. About two hours later, the fog lifted sufficiently for her master to see a buoy so close at hand that upon the turn of the tide the vessel might be reasonably expected to foul it. The master thereupon took up the tanker's anchor, put her rudden hard to right and put the engines at slow speed ahead for about two minutes. A few minutes later the fog closed down again obscuring even the buoy. The master thereupon put the "Bohemian Club" at anchor again.
As a result of this maneuver the "Bohemian Club" was carried toward the west and farther out into the channel. Here, a short time later she was struck by the "Laura Maersk". This vessel was proceeding down the River at a rate of speed which was certainly excessive under the prevailing conditions of alternate fog and reasonably clear visibility. A heavy fog bank to the eastward side of the Deepwater Point Range was clearly visible to the "Laura Maersk". When the "Bohemian Club" finally was sighted by the "Laura Maersk" in this very fog bank it was too late for the latter vessel to avoid the collision.
The master of the "Bohemian Club" in moving the tanker to avoid the buoy acted prudently. He took his vessel out of a position of positive danger while he could do so. He had a right to assume that any vessel moving up or down the channel was proceeding with prudence. The "Laura Maersk" was not so proceeding and the collision was caused by her imprudent conduct.
The opinion of the majority seems to me to require the master of the "bohemian Club" to exercise prescience, or in lieu of prescience, to guess that a negligently operated vessel proceeding down the river would collide with the "Bohemian Club" if that vessel moved to escape the buoy. This seems to me to be an unreasonable rule. I must respectfully dissent.
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