Baltimore, Crisfield & Onancock Line v. United States, 5166.

• Decision Date: 17 January 1944
• Docket Number: No. 5166.,5166.
• Citation: 140 F.2d 230
• Parties: BALTIMORE, CRISFIELD & ONANCOCK LINE, Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

140 F.2d 230 (1944)

BALTIMORE, CRISFIELD & ONANCOCK LINE, Inc., v. UNITED STATES.

No. 5166.

Circuit Court of Appeals, Fourth Circuit.

January 17, 1944.

Leon T. Seawell, of Norfolk, Va., and Theodore R. Dankmeyer, of Baltimore, Md., for appellant.

Arnold W. Knauth, Atty., Department of Justice, of Washington, D. C. (Francis M. Shea, Asst. Atty. Gen., and Sterling Hutcheson, U. S. Atty., and Russell T. Bradford, Asst. U. S. Atty., both of Norfolk, Va., on the brief), for appellee.

Before PARKER and DOBIE, Circuit Judges, and WARING, District Judge.

WARING, District Judge.

The U. S. S. Texas, a Spanish American War battleship, having become obsolete, it was determined by the government to use her as a target for the purpose of ascertaining the effect of gun fire and other destructive methods of war. The ship's name was changed to San Marcos. She was of course a public vessel owned and operated by the United States of America. On March 10, 1911, the San Marcos was deliberately used as a target by the United States Navy and sunk in the Chesapeake Bay near the lower entrance to Tangier Sound about 6½ miles from Tangier Sound lighthouse in about 30 feet of water. After settling to the bottom a considerable portion of the vessel still projected above the water and as late as 1940 some 200 linear feet of the former vessel still projected from two to six feet above the surface of the water. No light or other marking was placed upon the wreck, but the location was regularly marked by a nearby lighted buoy. The location of this wreck was shown on government charts. In the year 1921 the government again used this wreck as a target in tests of air plane bombing. In 1924 the Navy Department advertised certain wrecks in Tangier Sound, including the San Marcos and two other old battleships, namely, the Indiana and the Alabama, which had been used for similar purposes. The wrecks of the Indiana and the Alabama were sold and the material of which they were made subsequently removed by the purchasers. The San Marcos was not sold and continued to lie in the same location. The buoy situated near the wreck was from time to time moved and located at varying distances, at times 500 to 1500 feet, and at other times as much as two miles from the wreck. In the year 1940 its location was about 500 feet in a southerly direction from the wreck.

On January 28, 1940, this locality suffered a severe spell of cold weather and many buoys became encrusted with ice, some of them capsized and they were in danger of being dragged under water and damaged. On account of this condition the buoy near the wreck of the San Marcos was removed and an unlighted buoy was dropped in its place to indicate the location. The regular "Notice to Mariners" was issued when the lighted buoy was replaced by the unlighted buoy. This was the usual public notice, but there is nothing in the evidence to show that such notice ever came to the attention of either the Master of the Lexington or the libellant, the owner of said vessel, although it was publicly exhibited and available to all Masters of vessels or others interested in navigation. The removal of buoys under these conditions was not unusual and a large number of other buoys, as shown by the notice, had been removed. It was in evidence that similar conditions had prevailed in other years causing extensive temporary removal of buoys.

In January and February 1940, due to this severe cold spell, a large portion of the Chesapeake Bay was frozen over and navigation seriously impaired and in great part halted. About February 26, 1940, the ice condition having improved, the libellant, Baltimore, Crisfield & Onancock Line, Inc., resumed operation of its freight vessel, the Lexington; its Master and Captain being R. C. Edwards. The Lexington was a diesel motored freighter of 200 horse power, about 120 feet long and 40 foot beam, of 230 tons, and her draught was about 11 feet. She had a deck house all over the hull and the pilot house was located on top of the deck house, the same being about 18 feet above the water and about 15 feet from the stem. The boat carried an electric search light, but at the time of the collision hereinafter described this was not in working order. The route on which this vessel operated was a run by night from Baltimore to Crisfield, then by day from Crisfield to Onancock, and then by night some times via Crisfield and some times direct to Baltimore. The vessel made three of these round trips a week and all of them were made through Tangier Sound until the trip on which the Lexington was lost.

On March 27, 1940, the Lexington proceeded southerly through Tangier Sound from Crisfield to Onancock during the day and there took aboard a cargo of canned goods and other articles and sailed direct for Baltimore at about 6:15 p.m. The Lexington proceeded down Onancock Creek on the ebb tide in charge of her Mate, I. W. Scott, and reached the buoys at the entrance of the creek at approximately 7 p.m. The Mate then turned the vessel over to Captain Edwards, who continued in charge of its navigation. The Captain and a helmsman were in the pilot house and the ship's engineer was on duty in the engine room. It is in evidence that the engines were stepped up a bit because the boat was heavily loaded and it was desired to reach Baltimore in time to make connections. The Captain set his course expecting to pass about 500 yards southerly of the San Marcos wreck. The sky was overcast and visibility poor. The Tangier light was seen for a time and then lost to view and no other lights to the west were visible. The Captain testified that he expected to see a light on the buoy at the San Marcos wreck and was not aware that the buoy was unlighted. After going about 65 minutes, which he considered placed him past the wreck, he was preparing to alter his course when the Lexington ran at full speed upon the San Marcos wreck and stuck there. The hull was badly damaged and taking in water. The crew lowered the life boat and transferred themselves dry shod to the San Marcos wreck. In about thirty minutes the Lexington sank entirely below the water and the next morning the Captain and crew were picked up by a passing vessel and taken ashore.

It appears that after the ice condition on the Chesapeake Bay had improved in the latter part of February 1940, the Coast Guard commenced the work of repairing and replacing buoys. The work of course took some time as only a limited number of buoys could be handled by the tenders and careful calculations had to be made for replacing and relocation of buoys in proper positions. The entire work of replacing buoys and other aids to navigation took several months and the lighted buoy near the San Marcos wreck was replaced on April 4, 1940.

The vessel Lexington with all of its cargo was a total loss. The owner of the vessel, the libellant in this cause, filed a libel against the United States alleging that the United States as the owner of the vessel San Marcos failed to maintain a lighted buoy at the time of the collision and that the United States was further negligent in that its Light House Department and Coast Guard Department did not replace the lighted buoy within a reasonable time after the weather conditions had cleared up. The libel prays for damages of $35,000 for the vessel and $6,000 for the cargo. Suit was brought under the Act of 1925, commonly known as the "Public Vessels Act". 46 U.S.C.A. § 781.

Libellant's case is based upon the claim that the San Marcos was a public vessel of the United States and therefore, within the purview of the Public Vessels Act, and that, although this vessel was sunk many years before, it still remained a public vessel since it had never been abandoned or disposed of by the United States and the United States was,...