Moran Towing & Transp. Co. v. Empresa Hondurena de Vapores

• Decision Date: 01 April 1952
• Docket Number: No. 13277.,13277.
• Citation: 194 F.2d 629
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: MORAN TOWING & TRANSP. CO., Inc., et al. v. EMPRESA HONDURENA DE VAPORES et al.

194 F.2d 629 (1952)

MORAN TOWING & TRANSP. CO., Inc., et al. v. EMPRESA HONDURENA DE VAPORES et al.

No. 13277.

United States Court of Appeals Fifth Circuit.

February 21, 1952.

Rehearing Denied April 1, 1952.

Selim B. Lemle, New Orleans, La., C. A. L. Johnstone, Jr., Mobile, Ala., for appellants.

Louis E. Greco, Atty., Department of Justice, New York City, Ashton Phelps, New Orleans, La., T. Massey Bedsole, C. B. Arendall, Jr., Francis H. Inge, Mobile, Ala., W. B. Spencer, Jr., New Orleans, La., Percy C. Fountain, U. S. Atty., Mobile, Ala., for appellees.

Before HUTCHESON, Chief Judge, and RUSSELL and RIVES, Circuit Judges.

JOSEPH C. HUTCHESON, Chief Judge.

These are appeals from an interlocutory decree for divided damages entered in a cause of collision in Mobile Bay, involving the "San Benito", an outgoing vessel, and an incoming flotilla made up of the tug "Moran", the tanker "Caloria", and the tug "Ladd". They present a three cornered attack upon the decree which, entered upon full findings,¹ exonerates the "Ladd" entirely, finds the other three vessels at fault, and assesses the damages to the "Caloria" and the "San Benito", one-half against the "San Benito", and the other half against the "Moran" and `Caloria", divided in equal parts. Each of the three condemned, especially each member of the flotilla, finds itself hard put to it, in its attack upon the decree, to disparage the findings adverse to it without weakening those in its favor.

Bent upon obtaining complete exoneration from fault on its part and equally complete condemnation of fault on the part of the others, each, in its brief, draws with firm strokes, each magnifies, the others' faults, each touches with a light brush, indeed completely minimizes, the outlines showing, or tending to show, faults on its own part.

The "Ladd", content with the decree and asking no relief from it, moves warily. Casting no stones at the other flotilla members, it addresses itself to maintaining the innocent role assigned it by the district judge. It departs from it only to make clear that in no event can it be held ultimately liable since if, because of the fault of the "Caloria", under whose orders and directions it was, it must be held technically responsible to the "San Benito", it is entitled to judgment over against the "Caloria" for any sums adjudged against it.

In complete agreement with the "Ladd", that it may not be held to pay, the "Caloria" devotes its brief to attacking primarily the "San Benito" and secondarily the "Moran", which had the flotilla in tow.

The "Moran", in its brief, not to be outdone by the "Caloria", while giving first and preferred attention to the faults of the "San Benito", does not neglect to point out wherein the "Caloria" was to blame.

Encouraged by this division in their ranks, the "San Benito", with apparent impartiality as between the flotilla members, devotes its brief to showing that it was not at all at fault, and that for its damages it should have judgment against some, or all, of the members of the flotilla. In addition, assuming that the findings are sustained and the decree affirmed in principle, the "San Benito", citing The Eugene F. Moran, 212 U.S. 466, 29 S.Ct. 339, 53 L.Ed. 600,² insists that the court, having found it and two members of the flotilla at fault, erred in dividing the damages equally between it and the flotilla members instead of dividing the damages into thirds and assessing one-third against each vessel.

The evidence showing without dispute that the "Ladd" was employed solely as a helper tug to furnish tug power only in obedience to the orders received from those in charge of the "Caloria", and that without any negligence on its part, it carried those orders out,³ we are in no doubt that the district judge was right in fully exonerating the "Ladd" and that the decree should be so far affirmed.

Neither are we in any doubt that the "San Benito" was guilty of fault contributing to cause the collision. The questions, however, whether the "San Benito" should be held wholly at fault, or only partly so, because there was contributing fault on the part of the flotilla, and whether there was fault as between the "Moran" and the "Caloria", may not be so easily answered, for the record presents a picture of conflicts which make it difficult to draw from it the true picture of what occurred.

In these circumstances, the proper, the only safe, course for this court to pursue is, we think, not to seek to reconstruct the scene for ourselves, making our determination of fault as though we were the triers, but instead to adopt as our own the findings of the distinguished and lamented trial judge. Familiar, as he was, from a life time of residence, with the waters of Mobile Bay and with navigation thereon, and endowed by nature and experience with a fine sense of the rusticum jus fitting in cases of this kind where the matter may not be determined with precision, he brought to the hearing of this case, among the last tried by him, and to the study of the record made, a true and tried equipment. The findings and conclusions show a profound and careful study of the record and a thorough and complete mastery of it, and, except as to the division of damages by moieties instead of into thirds, we adopt his findings and affirm his decree. Modifying it by dividing the damages into thirds and assessing a third against each vessel, we affirm it with costs of appeal equally divided among the three.

Modified and affirmed.

1 As pertinent here, they are:

The Mobile Ship Channel has a depth of about 35 feet for a width of 300 feet, with sides sloping up to a depth of 19 feet or less on the outer edge of the channel. This makes the over-all width of the channel, counting the sloping sides of the channel and its bottom, approximately 600 feet. It has a length of approximately 30 miles from the mouth of the channel just below Fort Morgan to the mouth of the Mobile River at Choctaw Pass. Generally speaking, Mobile Ship Channel, as compared to many channels, is a straight one, in that there are no sharp curves or bends. There are, however, at least two points in the channel where its course slightly changes; namely, at Beacon 22, from 175 degrees (true) to 182 degrees, or outward bound, approximately 7 degrees from the southeast to the southwest; and then at Beacon 20, a little over a nautical mile below, there is a variation in the course from 182 degrees to about 187½ degrees, or approximately 5½ degrees more to the southwest, going down the channel.

The channel is dredged through the open Bay, and on dark, clear nights the beacon lights are visible for a long distance. Likewise, the lights on a ship would be visible. The evidence is that the night was dark but visibility was good at the time and place of the...