Curtis Bay Towing Co. v. The M/V Maryland Clipper, 78-1212

• Decision Date: 01 June 1979
• Docket Number: No. 78-1212,78-1212
• Parties: CURTIS BAY TOWING COMPANY, as owner pro hac vice, of the Motor Tug SANDY POINT, Appellees, v. THE M/V MARYLAND CLIPPER, her engines, tackle, etc., in rem, Defendant. NORFOLK, BALTIMORE AND CAROLINA LINES, INC., in personam, Appellant, v. Motor Tug SANDY POINT, her engines, tackle, etc., in rem, Counter-Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1313

599 F.2d 1313

CURTIS BAY TOWING COMPANY, as owner pro hac vice, of the

Motor Tug SANDY POINT, Appellees,

v.

THE M/V MARYLAND CLIPPER, her engines, tackle, etc., in rem,

Defendant.

NORFOLK, BALTIMORE AND CAROLINA LINES, INC., in personam, Appellant,

v.

Motor Tug SANDY POINT, her engines, tackle, etc., in rem,

Counter-Defendants.

No. 78-1212.

United States Court of Appeals, Fourth Circuit.

Argued March 12, 1979.

Decided June 1, 1979.

Francis J. Gorman, Baltimore, Md. (David R. Owen, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant.

Geoffrey S. Tobias and John T. Ward, Baltimore, Md. (Ober, Grimes & Shriver, Baltimore, Md., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER and HALL, Circuit Judges.

PER CURIAM:

This suit in admiralty arose from a collision between M/V MARYLAND CLIPPER, owned by Norfolk, Baltimore and Carolina Lines, Inc. (NBC Line), and the tug SANDY POINT, owned by Curtis Bay Towing Company (Curtis Bay). By an action and counterclaim In rem and In personam, each owner sought recovery from the other and the other's vessel. The district court found that the negligence of both parties contributed to the collision, and it ordered that each party bear its own damages. NBC Line has appealed.

While we think that the district court correctly found fault on the part of each vessel, we conclude that the district court failed to apply properly the rule of comparative fault as announced in United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975). We therefore vacate the judgment and remand the case to the district court for further proceedings.

I.

Curtis Bay initiated the litigation and NBC Line counterclaimed. In a pretrial order, NBC Line claimed damages of $79,742.87, while Curtis Bay claimed damages of $21,815.96. The district court ordered a bifurcated trial on the issues of liability and damages, with damages "to be settled or tried after the determination of liability."

The collision occurred in Baltimore Harbor shortly after 8 o'clock on a foggy morning, March 5, 1976. The MARYLAND CLIPPER was on a routine voyage from Norfolk to Baltimore, while the SANDY POINT was leaving Baltimore Harbor, followed by another tug about 200 feet directly astern. The MARYLAND CLIPPER was found at fault in a number of respects. First, because its captain ordered the lookout not to call the bridge on his own initiative, the district court held that the MARYLAND CLIPPER failed to post an adequate lookout. Second, the MARYLAND CLIPPER was negligent in that its captain lacked an adequate understanding of its radar system. Finally, the MARYLAND CLIPPER failed to "go at a moderate speed" in the fog, as required by 33 U.S.C. § 192.

The district court also found fault on the part of the SANDY POINT. First, the SANDY POINT was found negligent in failing to post a lookout. The district court added, however, that since the bridge was only about twenty feet from the bow, the SANDY POINT's negligence in this respect was not as serious as the MARYLAND CLIPPER's negligent failure to post an adequate lookout. Second, the SANDY POINT failed to stop engines upon hearing the fog signal of a vessel whose position had not been ascertained, as required by 33 U.S.C. § 192. Finally, the captain of the SANDY POINT was found negligent in failing to break in over channel 13 of his radiotelephone once the MARYLAND CLIPPER was detected on radar. Other allegations of fault attributed by NBC Line to the SANDY POINT were rejected by the district court.

The district court concluded:

In conclusion the Court has found both M/V MARYLAND CLIPPER and Motor Tug SANDY POINT guilty of statutory violations as well as negligence. However, after reviewing all the evidence offered at trial the Court concludes that MARYLAND CLIPPER's faults were more serious in nature than those of SANDY POINT, and therefore she is liable to a greater degree. Although MARYLAND CLIPPER sustained a larger amount of damages than did SANDY POINT, the Court finds the degree of liability to be equivalent to this percentage of higher damages. Accordingly, the Court finds that both parties being liable for the collision are to bear the burden of paying their own damages. . . . It will not now be necessary for a separate trial on the issue of damages.

II.

NBC Line attacks the correctness of some of the district court's findings of fault on the part of the MARYLAND CLIPPER. It argues also that the district court erroneously failed to find fault on the part of the SANDY POINT in certain respects in addition to those found by the district court. ¹

From our review of the record, we do not think that the district court's findings were clearly...