United Geophysical Company v. Vela

• Decision Date: 04 June 1956
• Docket Number: No. 15723.,15723.
• Citation: 231 F.2d 816,1956 AMC 745
• Parties: UNITED GEOPHYSICAL COMPANY, Inc., and Firemen's Fund Insurance Company, Appellants, v. John VELA, Appellee. John VELA, Appellant, v. UNITED GEOPHYSICAL COMPANY, Inc., and Firemen's Fund Insurance Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

1956 AMC 745, 231 F.2d 816 (1956)

UNITED GEOPHYSICAL COMPANY, Inc., and Firemen's Fund Insurance Company, Appellants, v. John VELA, Appellee.

John VELA, Appellant, v. UNITED GEOPHYSICAL COMPANY, Inc., and Firemen's Fund Insurance Company, Appellees.

No. 15723.

United States Court of Appeals Fifth Circuit.

April 12, 1956.

Rehearing Denied June 4, 1956.

Wm. E. Wright, Andrew R. Martinez, New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellants.

Albert Sidney Cain, John J. Finnorn, New Orleans, La., for appellees.

Before BORAH, TUTTLE and BROWN, Circuit Judges.

BROWN, Circuit Judge.

On September 18, 1947, the three luggers, King Bell, Lola Sara and Nellie L, each about 50 feet long, 17 foot in beam, 20 gross tons, were located in Breton Sound, off the southeast coast of Louisiana for the purpose of performing geophysical exploration work for their chartered owner, United Geophysical Company, Inc. A tropical hurricane had been brewing in the East Gulf for a few days, but all of the United States Weather Bureau Advisories prior to 12:15 noon September 18 limited Hurricane Warnings to the Florida Coast and the Warning that Small Craft should remain in port extended as far West as Mobile, Alabama, only. All of this was suddenly changed by the Advisory¹ of 12:15 noon September 18 predicting that the center of the Hurricane would strike the southeast Louisiana Coast and ordering Hurricane Warnings as far west as Morgan City, Louisiana. Breton Sound was in the middle of the predicted target area.

The Masters of these little vessels, consulting together in the light of the Advisory as well as recommendation broadcast by the Harbor Master of Gulfport directing all craft to leave the Gulf area for shelter inshore, concluded that they should seek haven at Fort St. Phillip, an old military post on the east bank of the Mississippi River and accessible from Breton Sound by Fort Bayou. By about 5:00 p. m. they reached their sanctuary. And well they did, for true to the Advisory, the hurricane of devastating force passed over Breton Sound about 5:30 in the morning of September 19 heading inland on a northwesterly course wreaking great havoc² in its path.

In determining whether the District Court's finding of fault against United Geophysical for damage to Vela's dock and adjacent structure at Fort St. Phillip is supported, it narrows our field considerably to eliminate altogether any suggestion of fault for having sought this haven. Vela did produce a practical boatman, having some familiarity with this area of swamps and interlaced bayous, who asserted, as a claimed expert, that it was a mistake to seek shelter in port, and that safety suggested that little boats ride out the storm in open water. If we thought that, through some sort of nautical rear view mirror, it was for us, not these Masters, to make this decision, the wisdom of seeking shelter was, by striking coincidence, amply demonstrated. United had another boat, Supreme Food No. Ten, which, because of draft, could not make the channel where the other three were made fast. When the blow was over, the Supreme Food No. Ten was high and dry on or near the main levee of the Mississippi River after having dragged her anchor an estimated one-fourth to as much as one and one-half to nearly six miles.

But navigation in these circumstances is left neither to Judges nor the Elder Brethren of Trinity House nor those who, in the garb of experts, from the security of a swivel chair now lay out the course with great conviction. "The master is the commander of the ship — lord of his little world. He is master in every sense of the word * * *". The Balsa, 3 Cir., 10 F.2d 408, 409. Whether he has bridge or quarterdeck to stalk, as long as he commands, he is master. It is the Master, then, who must make these decisions and who, clothed with great responsibility, enjoys the greatest and widest of good faith latitude in professional judgment. "The fundamental principle in navigating a merchantman, whether in times of peace or of war, is that the commanding officer must be left free to exercise his own judgment. Safe navigation denies the proposition that the judgment and sound discretion of a captain of a vessel must be confined in a mental strait-jacket. * * *" The Lusitania, D.C.S.D.N.Y., 251 F. 715, 728.

With the lives of their crew, and their own, hanging in the balance as their decision was wise or unwise, with the possibility of some character of property damage or loss bearing largely as one of the alternatives in the paramount concern for safety or life, the decision of whether to leave or ride it out, seek shelter and if so where, was by the necessities of a well-named cruel sea committed irrevocably to these Masters. Their decision was prudent. Indeed, it is not shown to have been wrong at all.

For sanctuary the vessels tied up in the stream which paralleled the general course of a concrete seawall surrounding the main installations of Fort³ St. Phillip. This waterway thus ran through Vela's property which he had acquired through his purchase of the Fort in 1936 from the United States. The channel connected imperceptibly with Fort Bayou (sometimes called Plaquemine Bayou and by some thought to have been called Bayou Mardi Gras by Iberville). In all likelihood the channel was originally formed by the removal of earth to build up the levee immediately in front of the concrete seawall. But whatever its origin, it is certain that during governmental ownership it was dredged out to afford a channel depth of around 10 feet. It could and did sustain navigation and small commercial vessels, largely in the fish and oyster trade, or those seeking refuge from the weather, used it from time to time. The earthen levee, from the base of the seawall, declined to the water's edge, the vertical interval, as near as this record fixes it, being about 8 to 10 feet.

About 20 years before, Vela had built a structure made up of a small, light dock resting on a few small pilings on the water's edge approximately 4 feet in width and about 4 feet above mean low water; and just inshore of this and some 4 feet above it, a raised apron approximately 6 feet wide; and just inshore of this and on the same level, an oyster-picking shed. The covered shed was about 73 feet long, 23 feet wide, and it, and its 8 inch concrete floor, rested on pilings. It was separate from the docks. During oyster operations (which apparently had not been carried on for several years) the boats would land at the small dock, the oysters would be lifted by a hoisting boom to the upper dock apron and then moved into the shed. The southern end of the shed paralleled⁴ the channel just below the point where channel and seawall made a 90-degree turn to the left. The channel in front of the dock ran northeast-southwest.

This corner was chosen because trees on the shore provided a means for fastening mooring lines, and the higher banks of the levee and the nearby buildings afforded considerable protection, not available elsewhere, from expected high winds and seas. To best be able to cope with predicted northeasterly winds, the vessels were turned around with their bows headed northeast. The King Bell was starboard side to the southern end of the small dock. On her port side was the Lola Sara, and next to her the Nellie L. Bow lines from each of the three vessels were put out ahead and to the levee. An anchor was thrown into the stream off the port quarter of the Nellie L. Stern lines ran from the Nellie L to the Lola Sara and to the King Bell, and two stern lines ran from the starboard quarter of the King Bell, one onto the ends of the piling of the small dock, the other to willow trees ashore.

The bow lines held securely and never parted, nor did those from the King Bell's stern to the shore. During the night, however, with mounting wind and water, stern lines between the Nellie L, Lola Sara and King Bell kept parting and were renewed as quickly and as often as the crew could. In a further effort to hold the vessels up, the engines on one or more of them were kept ahead from time to time. On the Nellie L, the engines were drowned out as water from rain, sea, and wind came in. Near four or five o'clock in the morning of September 19, the water gained close to 9 or 10 feet which put it then well over the small and apron dock. Somewhere near this time, a stern line from the Lola Sara to the King Bell parted, and since the Nellie L's port quarter anchor could no longer hold her off, the King Bell was carried to her starboard. When the blow was over, she was sitting upright with her bottom partly on the levee and partly on the piling of the apron dock or picking shed.

Perched as the King Bell was on his very pins, Vela claimed that this circumstantial evidence — too big to hide — was proof enough that the King Bell, not the hurricane, made his dock and shed collapse. United Geophysical insisted that, except possibly for slight damage to the flimsy small dock, physically the damage was actually...