MICMAR MOTORSHIP v. Cabaneli Naviera, SA

• Citation: 477 F. Supp. 45
• Decision Date: 31 July 1979
• Docket Number: Civ. A. No. 76-2095.
• Parties: MICMAR MOTORSHIP CORPORATION, Plaintiff, v. CABANELI NAVIERA S.A., in personam, MS THEODEGMON, her engines, tackle, furniture, apparel, etc., in rem, Defendants.
• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)

477 F. Supp. 45

MICMAR MOTORSHIP CORPORATION, Plaintiff, v. CABANELI NAVIERA S.A., in personam, MS THEODEGMON, her engines, tackle, furniture, apparel, etc., in rem, Defendants.

Civ. A. No. 76-2095.

United States District Court, E. D. Louisiana.

July 31, 1979.

COPYRIGHT MATERIAL OMITTED

M. D. Yager, New Orleans, for plaintiff.

Robert B. Fisher, Jr., New Orleans, for defendants.

CASSIBRY, District Judge:

This case was submitted to the court on depositions, exhibits and briefs. After careful consideration of those materials and the applicable rules of law, I have decided in favor of the defendant. My findings and conclusions are set out below.

I.

The M/T THEODEGMON is a motor tanker with an overall length of approximately 201.5 meters and a breadth of 36 meters. It has diesel engines. At all times relevant to this action, it was owned by the defendant Cabaneli Naviera, S.A. The M/V MISTER MICHAEL is a merchant vessel approximately 227 meters long and 28.5 meters wide. At all times relevant to this action, it was owned by the plaintiff Micmar Motorship Corp.

On the night of January 12, 1979, the THEODEGMON was heading upstream in the Mississippi River. It was traveling on the right-hand, or eastern side of the river. The master of the ship was Stavros Samaras (Stavros). Its Mississippi River pilot at the time was Richard McNeely. At about 10:30 P.M., as the THEODEGMON arrived at the vicinity of the New Orleans General Anchorage, it sustained a sudden and complete loss of power that eliminated all its engine, steering, radio, lights, and whistle facilities. The THEODEGMON began to fall off to port, in the direction of the General Anchorage, which is along the western bank of the river. As the vessel continued to fall off in this direction, McNeely ordered the starboard anchor let go in an effort to stop his drifting ship. Subsequently, he ordered the port anchor let go. The THEODEGMON, however, entered the general anchorage and collided with a Swedish vessel called the MALMLAND at approximately 10:38 P.M. Shortly after the collision, several tugboats came to the assistance of the THEODEGMON. They maneuvered the THEODEGMON away from the MALMLAND and for several hours held it parallel to but somewhat behind that vessel, on the starboard side.

The MISTER MICHAEL was anchored immediately astern and slightly starboard of the MALMLAND. It, in turn, had various vessels near it in the general anchorage. Perantinos Stamatios (Perantinos) was the master of the MISTER MICHAEL. No Mississippi River pilot was aboard the vessel at the time the THEODEGMON collided with the MALMLAND. A pilot, Irvin Janssen, came aboard at 1:48 A.M. on January 13, 1979. After conferring with the master of the MISTER MICHAEL about the circumstances surrounding the collision that had taken place immediately in front of the vessel, Janssen recommended that the MISTER MICHAEL not attempt to move from its current position. Perantinos followed that recommendation.¹ This action was based on a belief that the anchor chains of the THEODEGMON had crossed those of the MISTER MICHAEL. Any maneuver that the MISTER MICHAEL might have attempted in order to get out of its position in the general anchorage would have required the lifting of its anchors.² The MISTER MICHAEL remained at the general anchorage until after the THEODEGMON heaved in its anchors and changed its position at about 11:00 A.M. that morning.

In the instant action, the plaintiff complains that the THEODEGMON wrongly prevented the MISTER MICHAEL from being able promptly to steam upriver to take a berth that came available to it at the Bunge Grain Elevator. The MISTER MICHAEL did later take on grain at that elevator. The plaintiff therefore seeks to recover for the delay, plus associated damages.

II.

An initial issue to be settled is whether the anchor chains of the MISTER MICHAEL and the THEODEGMON were in fact crossed. The plaintiff has failed to prove such entanglement. The only direct evidence on this point is the fact that when the THEODEGMON heaved in its anchors prior to its change of position at 11:00 A.M. on January 13, 1976, it did not disturb the anchor chains of the MISTER MICHAEL. Although not conclusive, this evidence strongly suggests that the chains were not in fact crossed, and plaintiff has not come forward with any evidence to induce me to find otherwise.

Plaintiff's case, however, does not depend solely upon the anchor chains having been in fact crossed. I conclude that, under the circumstances presented by the instant case, if the THEODEGMON, through its negligence, created a situation in which the MISTER MICHAEL, exercising reasonable judgment, considered itself prevented from proceeding upriver, the THEODEGMON will be liable for the damages the MISTER MICHAEL suffered from this apparent obstruction.

There is ample basis for such a rule of law in the instant case. Maintaining and protecting the free flow of commerce over navigable channels is a fundamental goal of the maritime law. See generally 33 U.S.C. § 409. Most often, courts are asked to decide whether one vessel obstructed a channel and should therefore be liable for the damage resulting from another vessel's collision with it. However, under some circumstances a vessel creating an obstruction will be held liable not because another vessel collided with it, but because the other vessel could not pass and suffered damages as a result. In Re Lyra Shipping Co., Ltd., 360 F.Supp. 1188 (E.D.La.1972); In Re China Union Lines, Ltd., 285 F.Supp. 426 (S.D.Tex.1967). The existence of an obstruction may be a physical fact, as when an entire channel is completely and actually clogged. However, an obstruction may also be said to exist when passage reasonably appears to be blocked. Thus, in The Caldy, 153 F. 837 (4th Cir. 1907), the vessel NEW ORLEANS attempted to pass the anchored vessel CALDY on the southern side of a particular channel, and a collision occurred. The court held the CALDY liable for having obstructed the channel. In its decision, the court concluded that the northern side of the channel reasonably appeared to be obstructed by the anchor chains of the CALDY. It specifically found "no fault" in the NEW ORLEANS' belief that this was so. 153 F. at 840.

I find no negligence in pilot McNeely's handling of the THEODEGMON after the power failure. However, I consider that failure itself to be the result of negligence. The applicable law has been clearly stated in Oil Transfer Corp. v. Atlantic Tankers, Ltd., 194 F.Supp. 920, 925 (S.D.N.Y.1961), aff'd 297 F.2d 367 (2d Cir. 1962):

There is a presumption of negligence on the part of a drifting vessel. She must be held responsible for the resulting damage unless she can show affirmatively that the drifting was the result of inevitable accident or a vis major which human skill and precaution and a proper display of nautical skill could have prevented. Citations omitted.

If a collision results from the failure of a ship's engine, the defense of inevitable accident is upheld only if the proof is convincing that the defect was really latent, and that it could not have been discovered by the exercise of due diligence. The mere fact of failure, unexplained, does not warrant a finding of inevitable accident. Citations omitted.

Accord Cranberry Creek Coal Co. v. Red Star Towing & Transp. Co., 33 F.2d 272, 274 (2d Cir. 1929). In the instant case, the defendant has not overcome this presumption of negligence. It has established simply that a certain generator failed, and that this generator had been installed, new, in the THEODEGMON fifteen months prior to the casualty. Defendant has put on no proof, however, of the cause of the failure of the generator, and has therefore not relieved itself of the presumption that its negligence was the cause of the ship's loss of power.

One foreseeable consequence of negligence with regard to a ship's generator is that it will lose power, collide with another vessel, and thereby block other ships' passage. Accordingly, if the MISTER MICHAEL reasonably believed itself prevented by the THEODEGMON from proceeding, it can recover damages for the obstruction thus caused by the THEODEGMON's negligence.

III.

Pilot Janssen testified unequivocally at his deposition that, because of the likelihood that the anchor chains of the THEODEGMON and the MISTER MICHAEL were crossed, the only safe course of action on the part of the MISTER MICHAEL was to maintain its position. However, Janssen did not explain any of the facts upon which his conclusion was based. Indeed, he recalled extremely few specific...