Ellis Towing & Transportation Co. v. Socony Mobil Oil Co.

• Decision Date: 19 July 1961
• Docket Number: No. 18705.,18705.
• Citation: 292 F.2d 91
• Parties: ELLIS TOWING & TRANSPORTATION CO., Appellant, v. SOCONY MOBIL OIL COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

292 F.2d 91 (1961)

ELLIS TOWING & TRANSPORTATION CO., Appellant, v. SOCONY MOBIL OIL COMPANY, Inc., Appellee.

No. 18705.

United States Court of Appeals Fifth Circuit.

June 23, 1961.

Rehearing Denied July 19, 1961.

George W. Brown, Jr., Beaumont, Tex., for appellant, Brown & Fulbright, Beaumont, Tex., of counsel.

Samuel C. Lipscomb, Beaumont, Tex., for appellee.

Before CAMERON, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The overtaken vessel is appealing from a decree holding her guilty of mutual fault with the overtaking ship. The overtaking vessel, perhaps still unconvinced and undoubtedly unhappy, nonetheless acquiesced and no longer challenges the finding of fault against her. The sole controversy, then, is whether the overtaken vessel was guilty of any fault proximately causing the sinking. We conclude that the District Court erred and reverse. But in doing so, we do not credit that which the Judge discarded or reject that which he accepted. Disdaining any claim that we may, or should, retry the variables and nuances of this extended evidence, we give full range to the clearly erroneous concept formally promulgated under F.R.Civ.P. 52(a), 28 U. S.C.A. which, like some marine life, is now incrusted on the admiralty. McAllister v. United States, 1954, 348 U.S. 19, at pages 20-21, 75 S.Ct. 6, at pages 7-8, 99 L.Ed. 20, 1954 A.M.C. 1999; Bisso v. Waterways Transportation Co., 5 Cir., 1956, 235 F.2d 741, at page 743, 1956 A.M.C. 1760; Societa Anonima Navigazione Alta Italia v. Oil Transport Co., 5 Cir., 1956, 232 F.2d 422, at pages 423-424, 1956 A.M.C. 1073.

This simplifies greatly the brief review of the facts. The overtaken vessel is the Tug Lu Ann, a small 300-H.P. tug 45 feet long, 14 feet abeam of shallow draft and a one-foot freeboard aft. On the occasion of the sinking, she was towing on a 65-foot bridle and tow line three barges in tandem. The barges were light and riding high out of the water. The barges varied in width from 35 feet for the lead barge down to 28 feet. The lead barge was a chemical carrier with tanks on her deck. The tow had an overall length of about 650 feet. With the barges light, and the tug small and low in the water, it was impossible for the man at the wheel of the tug to see the tail end or alongside the tow. As occasion required, the tug would swing out slightly to her port or starboard to afford a view of the after end of the tow.

While the tow was westbound in the Sabine-Neches Waterway about 2:50 a.m. on November 16, the SS Saconnet was also westbound at a speed which would overtake the tow. The Saconnet is a T-3 tanker 501 feet in length. She was heavily laden with a draft of nearly 30 feet. The night was dark, cold, and there was a light drizzle. Visibility, however, seemed to be good. The Tanker had no difficulty in making out the lights of the Lu Ann which indicated that it was a tug pulling a tow. A brisk north wind of approximately 20 mph was blowing. It was known, therefore, that the wind would push the light barges toward the south bank so that the Saconnet would have to overtake the tow on the starboard side. About five minutes before the sinking the Saconnet blew a one-blast signal. She was then approximately three to four ship lengths from the stern of the tail barge. The channel in this area is quite wide, but to avoid some anticipated shoaling on the starboard (north) side, the Saconnet held to the middle or just to the left of the center of the deep water channel.

The Tug in the meantime became aware of the overtaking vessel. Those on the Saconnet insist that the Lu Ann replied shortly by a one-blast signal. The mate on the Tug denies hearing the Saconnet's one-blast request but admits that since he knew the ship was overtaking and it appeared to be safe, he sounded a one-blast signal on the Tug. Presumably he meant this as an invitation. As the Saconnet made her way along the side of the tow the overtaking continued to look safe even though it was evident that the wind was holding the light barges toward the south bank. The Tanker continued on, and when those on her bridge were abeam the forward end of the tow and could make out the Tug, the Tug was angling to her starboard on a heading toward the center of the canal. While in this heading, the Tug Lu Ann rolled way over to her port side and within moments sunk.

The Saconnet's theory below — to which she tenaciously adheres before us despite the contrary finding of the District Judge — was that the action of the Tanker had nothing to do with this capsizing and sinking. According to the Saconnet the Tug, either from trying to put herself in a position where her mate could see how the tow was trailing, or out of difficulty in holding the tow off the south bank, found herself in a position where the forward movement of the barges putting stress on the short bridle caused the Tug to jack. On this theory, it did not matter whether the lead barge actually hit the Tug before she went down. Under this explanation the presence of the Saconnet was purely coincidental.

The trouble with that as a legal defense is that the Court would not accept it in fact. On the contrary, the Court expressly found that the Saconnet had been guilty of a double fault: she had run too fast and too close by the overtaken tow and Tug. No challenge of such conclusions may now be asserted by the acquiescent Saconnet. Nor could it be done on the evidence were she not bound by a decree from which no appeal has been taken. The speed made good over the preceding 2.3 miles averaged 7.3 knots. And despite some shoaling expected on the north side of the channel, there was some 370-380 feet of 30-foot deep water between the point where the Tug sank and the north edge of the deep water channel. There was thus no need to shave by at 75 to 100 feet.

It is important to bear in mind that it has been judicially and irrevocably determined that the speed and position of the Tanker contributed to cause the sinking. It was not, as the Saconnet asserted, the tripping of the Tug by the on-moving barges close-coupled by a short bridle. And it is against that situation that the findings of fault on the Tug's part must be assayed. The Judge found that the Tug Lu Ann was at fault because she was insufficiently manned, the person at the wheel was unable to see the after end of the tow without changing the direction of the Tug, and she failed to keep a proper lookout toward her stern. In one way or the other these all revolved around the undisputed fact that with but a three-man crew, two of whom were off watch asleep, the mate at the wheel could not do either of the things the Saconnet contended were then required. First, he could not keep a lookout astern for this Tanker then known to be overtaking the tow, and second, at the moment preceding the capsizing he could not cast off the tow line.

On the latter point of action taken in extremis, there is nothing to support a causal relation between the failure to cast off the tow line and the sinking...