Movible Offshore, Inc. v. M/V WILKEN A. FALGOUT

• Citation: 471 F.2d 268
• Decision Date: 04 January 1973
• Docket Number: No. 72-1979.,72-1979.
• Parties: MOVIBLE OFFSHORE, INC., Plaintiff-Appellee, v. The M/V WILKEN A. FALGOUT, her engines, tackle, etc., et al., Defendants-Appellees, Gulf and South American Steamship Co., Inc., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

471 F.2d 268 (1973)

MOVIBLE OFFSHORE, INC., Plaintiff-Appellee, v. The M/V WILKEN A. FALGOUT, her engines, tackle, etc., et al., Defendants-Appellees, Gulf and South American Steamship Co., Inc., Defendant-Appellant.

No. 72-1979.

United States Court of Appeals, Fifth Circuit.

January 4, 1973.

Alfred M. Farrell, Jr., New Orleans, La., for Gulf & South American Steamship Co., Inc.

John Poitevent, New Orleans, La., for Movible Offshore, Inc.

George B. Matthews, James H. Daigle, New Orleans, La., for The M/V Wilken A. Falgout.

Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

This admiralty case arises from a late night collision on the Mississippi River below New Orleans in the proximity of Bolivar Point, Mile 22. The damage claims of all interested parties were presented in a single action filed in the United States District Court for the Eastern District of Louisiana. That court, sitting without a jury, entered findings of fact and conclusions of law and rendered a judgment disposing of all the damage claims.¹ Only one of the parties, Gulf & South American Steamship Company, Inc., appeals from that judgment. We find that its allegations of error are without legal merit and we affirm.

On the night of November 16, 1969 the M/V WILKEN A. FALGOUT, which is owned by W. A. Falgout & Sons Boat Rentals, Inc., was towing the unmanned steel barge MOVIBLE C.B. 7 down the river. The barge, which is owned by Movible Offshore, Inc., was laden with a four-pile offshore steel platform owned by Chevron Oil Company. Ascending the river was the S. S. GULF BANKER, which is owned by appellant, Gulf & South American Steamship Company, Inc. Due to circumstances more fully discussed infra, a collision occurred in which the barge MOVIBLE, C.B. 7, its cargo, and the S. S. GULF BANKER were damaged.

Chevron assigned its damage claim to Movible Offshore, Inc., which brought this action against all of the following: the M/V WILKEN A. FALGOUT, in rem; S. S. GULF BANKER, in rem; W. A. Falgout & Sons Boat Rentals, Inc.; Gulf & South American Steamship Company, Inc.; and named, John Doe, and Richard Roe insurance companies. Gulf & South American Steamship cross-claimed against the interest of the M/V WILKEN A. FALGOUT.

The decree entered below held in part:

"The S. S. GULF BANKER and the M/V WILKEN A. FALGOUT were both to blame and mutually at fault for the collision . . .

". . . Movible Offshore, Inc. . . . is entitled to recover its provable damages jointly severally and in solido against the S. S. GULF BANKER and the M/V WILKEN A. FALGOUT, in rem; and against Gulf & South American Steamship Co., Inc.; W. A. Falgout & Sons Boat Rentals, Inc.; and the Hartford Fire Insurance Company, in personam.

". . . Gulf & South American Steamship Co., Inc. is entitled to recover one-half of its provable damages from the M/V WILKEN A. FALGOUT, in rem, and W. A. Falgout & Sons Boat Rentals, Inc. . . ."

Appellant, Gulf & South American Steamship Company, Inc., seeks to cast all legal blame for the accident on the M/V WILKEN A. FALGOUT and urges reversal on three separate grounds. First, it argues that the district court's findings of fact are both clearly erroneous and too ambiguous to support the judgment entered. Secondly, appellant argues that the trial court erred in several specific instances in applying the law to the facts. Finally, citing United Geophysical Co. v. Vela, 5 Cir. 1956, 231 F.2d 816, 822, appellant asks that we conclude, "The finding of negligence on appellant's part produces a result which leaves us with a feeling that an injustice has occurred, and, as such, being clearly erroneous . . . it must be set aside . . .".

I. THE FINDINGS OF FACT

Immediately following the introduction of depositions and various documentary evidence and the taking of testimony from witnesses, the learned judge below announced his decision from the bench. We note at the outset that we can discern no impropriety in a trial judge's choosing to render his decision speedily. Modern commentators repeatedly voice vociferous complaints regarding delay in the administration of justice, and we are reluctant to criticize reasonable efforts to hasten the turning of the wheels of the law. Of course, we can conjure circumstances that would cause a prudent judge to postpone his decision until he has had greater time to study the case. But where, as here, the trial judge states that he has given the matter careful consideration and has diligently studied the law and all briefs submitted to him, choosing not to delay his decision may well be the more desirable course. Indeed, Judge Rubin stated that he saw no purpose to be served here by postponing judgment other than the entry of more polished findings that might

"read better than these dictated remarks will read. . . . I am aware, having tried a few lawsuits myself, that sometimes it seems the judge is more learned if he waits longer and gives his opinion, but as I have said in a number of cases, as I here repeat, in a situation where the primary issue is a factual one, all I would do by waiting is give you a better literary effort."

Judge Rubin further felt that there was a danger in putting off until tomorrow that which he felt fully qualified to do today: "I have equally no doubt that the decision would then be colored not by what I really conclude are the facts but by a memory of facts that becomes distorted as I hear other cases and turn my attention to other problems." In any event, deciding when to render judgment is a matter resting all but exclusively within the sound discretion of the trial court. In the light of Judge Rubin's recitations of diligent consideration, we can detect not even a hint of an abuse of that discretion here.

Reproducing Judge Rubin's fact findings verbatim would serve little purpose. We deem it sufficient merely to summarize his detailed findings regarding the behavior of the M/V WILKEN A. FALGOUT W.A.F., the S.S. GULF BANKER G.B., and their respective crews:

"The night of November 16, 1969 was clear. There was no fog on the river and there were no impediments to vision. The point at Bolivar Point is low lying and clear of obstructions to vision. Thus, as the W.A.F. and the G.B. approached the site of the collision, it was possible for both their navigators to see across the point and observe each other while the vessels were still two to three miles apart.

"The navigator at the wheel of the W.A.F. was Captain R. A. Falgout. He had been on watch seventeen hours and ten minutes prior to the collision and had been at the wheel ten hours and forty minutes consecutively. The W.A.F.\'s crew consisted of but two other men, neither of whom was serving as a lookout. The W.A.F. was not equipped with VHF radio and she was maintaining a speed of six to seven miles per hour.

"The G.B. was making about sixteen miles per hour as she proceeded up the river at full speed. She was being navigated by an experienced river pilot, Leonard C. Diket, and was equipped with both VHF radio and radar.

"Bolivar Point is a turn to port for vessels descending the river and the `point-bend custom\' is in effect for this area of the river. A descending vessel would thus customarily favor the bend and the right descending bank. An ascending vessel would ordinarily run the point and favor the left descending bank. Vessels meeting in proximity to Bolivar Point would therefore pass port to port unless some other type of passing had been arranged by signal between the vessels. The proper whistle signal for a port to port passing is one blast and the signal for starboard to starboard passing is two blasts.

"As the vessels approached the point, the W.A.F. was favoring the left descending bank. After the pilot aboard the G.B. first noticed the descending tow and studied her position by radar, he attempted to raise the W.A.F. on the VHF radio. Receiving no response the G.B. reduced her speed from full ahead to half ahead but proceeded on her course.

"Captain Diket was uncertain of the W.A.F.\'s course but assumed that she would continue hugging the left descending bank. After the G.B. had begun her approach to the point by turning to port, she gave the first signal — a two-blast whistle for starboard to starboard passing. The W.A.F. responded with an illicit one-blast cross signal, which signalled an intent to pass port to port. The G.B. immediately sounded the danger signal and went to emergency full astern. At that point, however, there was nothing either vessel could do safely that would have averted the collision that ensued.

"The actions of both vessels contributed to the causation of the collision. Both acted negligently."

As a matter of factual conclusion in the trial court, the W.A.F. breached several navigational rules and standards and was, without a doubt, negligent and a cause of the collision. Indeed, there is no serious dispute that the W.A.F. is liable. The only question is whether the G.B. must share the blame. But also as a matter of factual conclusion in the trial court, the G.B. was negligent and at fault. The G.B.'s principal error was her failure to signal earlier than she did. After sighting the W.A.F. and concluding that her course was uncertain, the pilot on the G.B. waited some time before sounding the first signal. The G.B. could have and should have appreciated the passing problem before she did, and she could have and should have taken action before she did to avert what happened:

"Captain Diket knew before he sounded a signal that he was meeting a tow, while he didn\'t appreciate the fact that he first saw its lights, he knew before he sounded the signal it was a tow on a hawser; he was an experienced pilot, this should have meant something to him; he was in a big vessel, ocean-going vessel, because the lights towered above the other vessel, he should have known that he created a hazard, but he chose, for reasons that I think are part of the human

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