Panama Canal Co. v. Sociedad de Transportes Maritimos

• Decision Date: 30 November 1959
• Docket Number: No. 17465.,17465.
• Citation: 272 F.2d 726
• Parties: PANAMA CANAL COMPANY, Appellant, v. SOCIEDAD DE TRANSPORTES MARITIMOS, S.A., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

272 F.2d 726 (1959)

PANAMA CANAL COMPANY, Appellant, v. SOCIEDAD DE TRANSPORTES MARITIMOS, S.A., et al., Appellees.

No. 17465.

United States Court of Appeals Fifth Circuit.

November 30, 1959.

David J. Markun, Balboa Heights, Canal Zone, Paul A. Bentz, Gen. Counsel, Balboa Heights, Canal Zone, Theodore P. Daly, New York City, for appellant.

Edwin Longcope, New York City, Charles E. Ramirez, Balboa, Canal Zone, Hill, Betts & Nash, New York City, Van Siclen & Ramirez, Woodrow de Castro, Balboa, Canal Zone, for libellants-appellees, Edward A. Neiley, Washington, D. C., of counsel.

Before RIVES, JONES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

In this case, as in Victorias Milling Company v. Panama Canal Company, 5 Cir., 272 F.2d 716, a ship going through the Panama Canal and in the charge of a pilot employed by the Panama Canal Company, struck the banks of the Canal. In both cases the libelants contended that the doctrine of res ipsa loquitur applies to allisions in the Canal when the ship is under compulsory pilotage. For the reasons given in Victorias Milling Company v. Panama Canal Company, we hold that the doctrine is not applicable in the instant case. We agree with the district court, however, that in this case the negligent acts of the pilot and of a tugmaster, both employees of the Canal Company, were the proximate cause of the accident.

Two libels were filed, one by Sociedad De Transportes Maritimos, owner of the damaged ship, S.S. Aurora Borealis, and the other by Nozaki Company, owner and consignee of damaged cargo. The parties stipulated that the two cases be consolidated for trial and that the issue of liability, common to both cases, be tried separately and before the trial of the issue of damages.

The respondent, Panama Canal Company, is a corporate agency and instrumentality of the United States.¹ Its primary function is to maintain and operate the Panama Canal. The company is liable for injuries to vessels or cargo caused by the negligence or fault of its officers or employees acting within the scope of their employment.² An executive order requires compulsory pilotage through the Panama Canal. 35 CFR § 4.22 (1949). "The pilot assigned to a vessel shall have control of the navigation and movement of the vessel." 35 CFR § 4.27 (1949). Vessels without motive power, disabled vessels, and vessels that steer badly or that are liable to become unmanageable for any reason must be towed through the Canal. 35 CFR § 4.85 (1949).

July 20, 1951, the S.S. Aurora Borealis, a cargo vessel of 5,000 gross tons and 401 feet overall length, began a southbound transit of the Canal.³ The vessel was powered by a 2500 h.p. steam turbine engine with a right-handed single screw. It was not equipped with a rudder-angle indicator nor an engine-revolution indicator. The Aurora Borealis is a "Hog Islander". Pilots know these ships to be sluggish, slow handling, and slow to respond to the rudder.

Captain Julian Dietz, a probationary pilot,⁴ boarded the Aurora Borealis at 9:15 A.M. to take the ship through the Canal. He soon realized that the ship was sluggish. After leaving the dock of Christobal and before entering Gatun Locks, he observed that the vessel did not respond properly to his order.⁵ Consequently, he requested a tug to assist the vessel through the Gaillard Cut, a narrow part of the Canal.

The tug San Pablo met the Aurora Borealis near the Chagres crossing. The engines of the Aurora were stopped for several minutes while a single towing hawser was attached to the tug. The Aurora was then not making over three knots headway — bare steerageway. The Aurora sheered off course while the hawser was being made fast.⁶ As the vessel proceeded under tow, at a hawser length of approximately 200 feet, the customary length used in towing vessels through the Canal, it veered to port. The pilot corrected this port sheer by ordering the vessel's engines full astern. The vessel then sheered to starboard. To the pilot the tug appeared to be "in irons", a condition dangerous to both vessels.⁷ Alarmed, the pilot called by radio for a second tug. He felt that the single tug would not be sufficient to make the La Pita turn they were approaching, but he was forced to continue ahead in order to prevent the vessel from landing broadside on the west bank. The vessel recovered from the starboard sheer. The pilot then ordered the tug to the starboard bow to prevent a port sheer and to hold the vessel in the center of the channel. The tug did not respond to this order. The tug master told the pilot to "let the ship alone and they would get through the Cut all right".⁸ The vessel's sheer to port could not be stopped although the pilot dropped the starboard anchor and backed the engines full. The ship struck the east bank. Pilot Dietz ordered the San Pablo to stop towing immediately. The tug continued to tow, however, and the pilot found it necessary to come ahead on the engine with a hard left rudder in order to prevent further damage. The tug's continued pulling on the bow made it impossible for the pilot to stop the ship. The ship came off the bank and he ordered the tug across the bow to break a sheer to starboard. The ship continued down the Cut. It was "down by the head" and yawing from side to side. In vain attempts to break the sheer, the San Pablo crossed and recrossed the bow of the Aurora Borealis. Despite these attempts, the ship struck the west bank. Somewhat later a second tug came alongside and fastened to the port quarter of the vessel. The Aurora Borealis then proceeded through the Canal without further mishap.

The district court found (1) that the pilot was negligent in not using two tugs and (2) that the failure of the tug master to cooperate with the pilot and to obey the pilot's commands contributed to and was the proximate cause of the accident.

The Canal Company argues that finding negligence in the pilot's decision to use a single tug is second-guessing — a mere error of judgment. In a sense it is. But if the error was so bad that Pilot Dietz failed to exercise the degree of skill and competency prudent pilots generally would exercise in the circumstances of this case, Pilot Dietz' mistake is not cured by calling it an "error of judgment". There is an occupational standard of skill for Panama Canal pilots as well as for doctors and dentists. General Petroleum Corp. of Calif. v. City of Los Angeles, 1941, 42 Cal.App.2d 591, 109 P.2d 754, 1941 AMC 510; The Dora Alison, D.C.Ala.1914, 213 F. 645; 48 Am.Jur. Shipping, § 194, p. 134; 2 Rest. Torts § 249; 2 Harper and James, Law of Torts, § 16.6, p. 917; Prosser on Torts, p. 236.

Here, Dietz testified that he had prepared himself for a hard day because he knew about Hog Islanders. He testified that before the Aurora reached Gatun Locks he noted the ship's sluggishness, the excessive amount of rudder needed, and the incorrect responses to his orders. He did nothing about securing tug assistance until the Aurora was in Gatun Locks. He asked for one tug. Instead of tying up the vessel to await the tug, he attempted to have the tug tie up to the Aurora while the ship was still in motion. When the tug arrived, it was placed ahead of the ship on a hawser. Two former Canal pilots testified as to the placement of the tug. One would have placed the tug on the port bow and the other on the port quarter, but both would have required the tug to be placed on a quarter for the transit of the Canal with the Aurora as a live ship. Two pilots then employed by the Canal Company also testified. One pilot testified that he would have placed the assisting tug ahead on a 200-300 foot hawser, but he agreed that if the vessel were taken through as a dead ship, two tugs should be used, one lashed up to a quarter. The other pilot testified that after the vessel struck the east bank he would have brought her to a stop at the first opportunity and sent for another tug. The evidence is clear that with two tugs the Aurora could have been taken through the Canal as a dead ship without any difficulty.

The striking took place at 4:10 p. m. on a day when the wind was negligible and the visibility was good. The bank struck was a rock bank. At that point the channel was about 300 feet...