298 F.2d 733 (5th Cir. 1962), 18545, Louis Dreyfus & Cie. v. Panama Canal Co.

Docket Nº:18545.
Citation:298 F.2d 733
Party Name:LOUIS DREYFUS & CIE., Appellant, v. PANAMA CANAL COMPANY, Appellee.
Case Date:January 18, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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298 F.2d 733 (5th Cir. 1962)

LOUIS DREYFUS & CIE., Appellant,

v.

PANAMA CANAL COMPANY, Appellee.

No. 18545.

United States Court of Appeals, Fifth Circuit.

January 18, 1962

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Edwin Longcope, Hill, Betts, Yamaoka, Freehill & Longcope, New York City, DeCastro & Robles, Balboa, Canal Zone, for appellant.

David J. Markun, Gen. Counsel, Theodore P. Daly, Asst. Gen. Counsel, Paul T. Dunn, Atty., Panama Canal Co., Balboa Heights, Canal Zone, for appellee.

Before HUTCHESON, RIVES, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is the third of three appeals, argued the same day, involving an allision in the Panama Canal. 1

Louis Dreyfus et Cie. a French partnership, filed a libel against the Panama Canal Company for damages sustained when its ship, the Charles L. D., struck the banks of the Canal during a transit under compulsory of a Canal Company pilot. 2 The trial judge found that the pilot exercised his responsibility for the navigation of the Charles L. D. with due care and entered judgment against the libelant. We hold that Dreyfus has failed on appeal to demonstrate that the finding was 'clearly erroneous.'

I.

The Charles L. D. is a single-screw motor ship of French registry, 6480 gross tons, 3502 net tons, an overall length of 502 feet and a 59-foot beam. It arrived at the Pacific entrance of the Panama Canal December 27, 1951 to make a northbound transit en route from Vancouver, British Columbia to London carrying a full cargo of wheat. Its actual draft was 24'7' forward and 24'11' aft, somewhat less than its authorized tropical fresh water mean draft of 25 feet. Captain Robert G. Rennie, a pilot with fifteen years service on the Canal behind him, was assigned to conn the vessel during its transit. When Captain Piquet, the master of the Charles L. D., informed him that the anchors would not fall free on release of the brakes but would have to be 'walked out' (lowered by unwinding the windlasses), Captain Rennie decided to employ a tug to assist in case the ship should encounter steering difficulties. The tug Trinidad, skippered by Captain Robert L. Jordan, an experienced and properly licensed towboat master, joined the Charles L. D. before it entered the first set of locks. The passage proceeded smoothly. At one point the ship was required to stop temporarily in the Gailard Cut. Before continuing, Captain Rennie ordered the tug to pay out a 250-foot hawser, in compliance with Panama Canal Company Regulations against tying a tug directly to a ship while passing through the Gaillard Cut, a narrow portion of the canal, six miles long, where the channel's width ranges from 300 to 500 feet. The ship traveled the first five miles through the Cut without incident. Then in making one of the turns it experienced a bit of difficulty in steering. Captain Rennie was forced to speed up the engine to increase the rudder's effectivenss. For a short while the vessel proceeded normally, but unexpectedly it 'took a quick dive to port.' Captain Rennie testified that when the ship started the sheer it was 'dead on the ranges,' a statement not contradicted by any other witness. As the sheer to port began, the pilot ordered a hard starboard rudder and called to the towboat master to use full force to attempt to break the sheer. The ship grazed the west bank lightly, however, and rebounded toward the opposite bank. Captain Rennie then ordered a hard port rudder to counter the suction

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created by the ship's movement. Flashing his light on the wheel indicator, he noted that it showed only fifteen degrees left rudder. He ordered the engines stepped up to half ahead in an attempt to break the sheer to starboard, but within less than a minute realized that the ship could not avoid striking the east bank. In an effort to cushion the blow he ordered 'emergency full astern' and 'let go the anchors'. Since no one was on the bow manning the anchors they were not dropped until thirty seconds before the ship rammed into the bank. Just before the first sheer, the helmsman encountered difficulty steering the vessel, which he attributed to the pull exerted on the ship by the tug. The master took the steering wheel briefly, then turned it over to the second mate. Jean-Baptiste Bechec, a sailor on watch in the engine room, stated that the master took the wheel to 'test its free movement,' from which the trial judge inferred that the master moved the wheel to unknown positions; the appellant sharply contests this finding.

On several points the facts are hotly disputed. The trial judge found that the sheers were caused either by a temporary steering gear failure or by the master's unauthorized movement of the rudder. Dreyfus contends that these findings are sheer speculation unsupported by testimony, and it attributes the accident to the negligence of pilot Rennie in exposing the ship to bank suction and in failing to utilize the tugboat properly. The trial judge also found that during the first sheer to port the pilot issued an order to drop the starboard anchor that was never carried out; the appellant denies that the pilot ever gave such a command. Dreyfus asserts that the trial judge erred in attaching importance to the pilot's testimony that the wheel indicator did not show the 'hard left rudder' which he had ordered, since that reflected only the normal sixty-second lag of the instrument in recording the change. The district judge found that the Chief Engineer was absent from the engine room when the order for emergency full astern was given and that his absence caused a lack of supervision over the subordinates who became confused and for a moment put the engines at full ahead. The appellant contends that the Chief Engineer was back on the engine room when the emergency order was given, that the pilot jingled the telegraph so rapidly that his orders could not be understood, and that there was no basis for finding that the engines had been run full ahead after the full astern order.

II.

The appellant's first contention is that Captain Rennie was negligent in exposing the vessel to bank suction. We agree with the Panama Canal Company that under the facts of this case this argument is little more than an attempt to reinstate res ipsa loquitur under a slightly altered title. Every ship that passes through the Gaillard Cut will be exposed to bank suction, at least to a limited extent; the phenomenon is ever present in a restricted channel and will affect ships whenever they stray from its center. 3 Safety requires certain precautions against the danger, and a pilot could be negligent in exposing a ship to the forces of bank suction by carelessly allowing it to run close to one bank or the other. But in this case the uncontradicted testimony is that the ship was 'dead on the ranges' when the initial sheer began. Rennie was doing just what his job required, and by keeping the ship in the center of the channel he was doing it in the safest way possible.

Dreyfus asserts that Rennie was negligent in placing the tug ahead of the Charles L. D. on a hawser rather than tying it directly to the stem of the ship. It acknowledges that Rennie's action was in conformity with the regulations of the Panama Canal Company, but challenges the soundness of these regulations. There is testimony in the record that

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a tug attached at the bow is more effective in controlling the ship's movement, but that evidence is not conclusive. There is testimony too that in a narrow channel there is danger in tying a tug to the side of a ship, for if the ship moves out of control the tug may be crushed against the banks. The evidence is conflicting and, on the record, we cannot say that Captain Rennie was negligent in adhering to the established practice of Canal pilots.

Dreyfus asserts that Captain Rennie should have taken the Charles L. D. through the Canal as a dumb vessel drawn by two tugs, citing this Court's decision in Panama Canal Company v. Sociedad de Transportes Maritimos, 5 Cir., 1959, 272 F.2d 726. In that case we affirmed that district court's finding that the pilot had been negligent in not employing two tugs to take the Aurora Borealis through the Canal. But the facts of that case were substantially different from those of the case at bar, as is reflected by the Court's statement:

'This is not a case where there was one sudden, uncontrollable, unexpected sheer that forced the vessel into the bank. The whole transit of the Aurora through the Cut consisted of sheering,...

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