Afran Transport Co. v. The Bergechief

• Decision Date: 26 January 1960
• Docket Number: No. 129 and 130,Docket 25600 and 25601.,129 and 130
• Citation: 274 F.2d 469
• Parties: AFRAN TRANSPORT CO., Appellee-Cross-Appellant, v. THE BERGECHIEF, her engines, etc., A/S Sneffon, Appellant-Cross-Appellee. A/S SNEFFON, Appellant-Cross-Appellee, v. THE BURGAN, her engines, etc., and Afran Transport Company, Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

274 F.2d 469 (1960)

AFRAN TRANSPORT CO., Appellee-Cross-Appellant, v. THE BERGECHIEF, her engines, etc., A/S Sneffon, Appellant-Cross-Appellee.

A/S SNEFFON, Appellant-Cross-Appellee, v. THE BURGAN, her engines, etc., and Afran Transport Company, Appellee-Cross-Appellant.

Nos. 129 and 130, Docket 25600 and 25601.

United States Court of Appeals Second Circuit.

Argued November 18, 1959.

Decided January 26, 1960.

COPYRIGHT MATERIAL OMITTED

MacDonald Deming, New York City (Richard G. Ashworth, Terence J. Creighton, and Haight, Gardner, Poor & Havens, New York City, on the brief), for appellant-cross-appellee, A/S Sneffon.

Stanley R. Wright, New York City (H. Barton Williams and Burlingham, Hupper & Kennedy, New York City, on the brief), for appellee-cross-appellant, Afran Transport Company.

Before MAGRUDER, MEDINA and FRIENDLY, Circuit Judges.

MEDINA, Circuit Judge.

At 8:31 a. m. on May 24, 1955, on the tail end of the flood tide going into Portland, Maine, and less than a mile west of the Portland light vessel, two tankers collided in a dense fog, with visibility zero. The trial judge found both vessels to blame and his opinion and findings are reported at 170 F.Supp. 893.

The larger of the two vessels was the single screw Steam Tanker Burgan, 624' 10" long with a beam of 84' 5", of 17,905 gross tons. She was light and outbound for Venezuela in ballast. The Motor Tanker Bergechief, also a single screw vessel, had an overall length of 559' 0", 69' 9" abeam and a gross tonnage of 11,720; she was inbound from the Caribbean with a full load of crude oil, 18,500 tons deadweight. The Bergechief was equipped with a Raytheon Model 1197 "Pathfinder" radar set with a 7" radarscope together with the necessary operating manuals; and this radar was in good operating condition and functioning properly. The Burgan was also equipped with radar and had it in continuous use up to the time of the collision.

At the moment of impact both vessels were going full speed astern. The Burgan still had considerable headway and just managed to scrape by the bow of the Bergechief whose forward motion had almost but not quite stopped. The speed of the Bergechief was found to be one-half knot and it may well have been less. The vessels met at an angle of 80°.

The principal burden of Bergechief's argument, as we understand it, is to convince us that the sole fault found against her was for what she did or did not do in the two or three minute period immediately before the collision. We do not so interpret the findings. In this case, as in most, if not all collision cases, it is necessary to go back and get a clear picture of the vessels as they approached one another. Thus one can see the likelihood of collision as it develops, until the moment when, even though the masters of the two vessels may not realize it, the collision is all but inevitable. In this way faults of navigation may be more accurately determined. Applying this method of analysis, we find there was faulty navigation by the Bergechief from the time she turned off her radar, or shortly thereafter.

Long before the Bergechief arrived abreast the Portland light vessel, and as early as 8:00 she observed the Burgan some miles away in her radarscope. The Burgan did not drop her pilot until 8:19. At 8:22 the Bergechief had the light vessel abeam about a half mile away on a 35° true bearing. Assuming, without the slightest justification for doing so, that the Burgan was at anchor or was inbound awaiting a pilot, the Bergechief stopped her engines and turned off her radar at 8:22. Heavily loaded as she was she glided along running off her way at about five knots on a 307° true course, to await her pilot. The vessels were then a mile to a mile and a quarter apart. No fog signals of the Burgan had yet been heard on the Bergechief. The lookout on the Bergechief's bow was sent aft to take in the log.

In the meantime at 8:20 the Burgan's engines were put at half speed, or something in excess of seven knots and she altered her course to starboard at 172° true for Cape Cod Whistling Buoy. From this moment the danger of collision increased with each passing moment. Both vessels were sounding fog signals but the intervals between those of the respective vessels and the precise duration of each blast are not clear.

In any event, the Burgan first heard the Bergechief's fog signal at 8:22; the Bergechief first heard the Burgan's fog signal at 8:23 or 8:24, and it was estimated to come from about a mile away at three to four points off the Bergechief's starboard bow.

As the Bergechief was losing steerageway her engines were given a kick ahead at dead slow for what the master describes as a very brief period of time, perhaps five or ten seconds. This was at 8:26. About the same time the Bergechief heard a short signal blast, followed by a normal fog signal from the Burgan. The trial judge was unable to determine whether the kick ahead came before or after the short blast. At 8:27 the Burgan altered her course hard right to starboard under dead slow. Thus from a course more or less head to head the Burgan started to cross the Bergechief's bow.

The exchange of fog signals soon made it apparent that a collision was imminent and at 8:29 Bergechief went full speed astern. Bergan went half speed astern at 8:29½ and full speed astern at 8:30. The collision occurred at 8:31. Further details appear in the findings and opinion below.

We agree with Judge Levet that the faults of the Burgan are "sufficiently patent to require no discussion." 170 F.Supp. at page 898. Her speed was grossly excessive. Upon hearing the signal of an approaching vessel ahead, whose position, course and speed were not precisely known, she should have stopped her engines and navigated with caution. Art. 16, 33 U.S.C.A. § 192, applicable to Inland Waters; Anglo-Saxon Petroleum Co. v. United States, 2 Cir., 1955, 224 F.2d 86; Johnston-Warren Lines v. United States, 2 Cir., 1952, 196 F.2d 689. The conceded erasures and changes in her ship's records are most damaging, especially on the issue of her speed. Her blind alteration of course hard right to starboard, on a mere guess that she might thus avoid collision was clearly a fault, and it was also a fault to give a port to port passing signal, if that is what she did, as Art. 18, Rule IX, 33 U.S.C.A. § 203, applicable to Inland Waters, prohibits the sounding of any signal other than a fog signal when vessels are not in sight of each other. Such a breach of the rules is bound to cause confusion and increase the probability of a collision. Moreover, if her radar was being properly operated by a competent man, it is difficult to understand how she was permitted to barge ahead into such a dangerous situation. In any event, we hold that the mere use of radar does not justify a failure to obey the rules of navigation generally applicable. Radar is an additional safeguard, and a failure to use it may constitute negligence, as we shall see, but a master who relies on radar alone and disregards any or all other precautions and requirements, statutory or otherwise, does so at his own risk. The Miguel de Larrinaga 1956 2 Lloyd's List L.R. 530, 538; The Chusan 1955 2 Lloyd's List L.R. 685, 695; The Prins Alexander 1954 1 Lloyd's List L.R. 281, 290, aff'd 1955 2 Lloyd's List L.R. 1; Gratsos v. The Baranof 1953 Can.Exch. 74, 81, 1953 A.M.C. 393, 400. See also International Convention for the Safety of Life at Sea, 1948, reprinted in 1953 A.M.C. 1, 83; H.R.Rep.No. 2969, 84th Cong., 2d Sess. 10 (1957). Indeed, it is surprising how many collisions continue to occur despite the fact that both vessels are equipped with and are operating radar. We have already had occasion to comment on the fact that by giving a false sense of security radar, when not properly used may "increase the chances of collision." Polarus Steamship Co. v. The T/S Sandefjord, 2 Cir., 1956, 236 F.2d 270, 271.

The faults attributed to the Bergechief by the trial judge are the following:

(1) In kicking her engines ahead at or about 8:26;

(2) In failing to navigate with caution after hearing the signal of the Burgan;

(3) In failing to reverse engines prior to 8:29;

(4) In failing to keep a lookout;

(5) In failing to make use of radar from shortly after 8:22 until the time of the collision.

We agree that the brief kick ahead at 8:26 constituted negligence and it contributed to the collision. It was apparent that the vessels were in close proximity. This kick ahead certainly did not diminish the Bergechief's headway, and we believe it necessarily somewhat increased her speed. In a dense fog such as we have in this case and in open water a vessel is not entitled to maintain steerageway, particularly in the absence of current of substantial force. Anglo-Saxon Petroleum Co. v. United States, 2 Cir., 1955, 224 F.2d 86; The Southern Cross, 2 Cir., 1937, 93 F.2d 297, 299; The Youngstown, 2 Cir., 1930, 40 F.2d 420, 421.

The second specification of fault against the Bergechief seems to be based, at least partly, upon her "failure to recognize or act upon Burgan's short signal at 8:26 or 8:27." We cannot agree with this as no such signal is permitted under the Rules, as we have already noted. Moreover, we are not persuaded that the so-called short blast by the Burgan was intended to indicate a change of course to starboard. It may well have been just another fog signal. But if it was intended to indicate a change of course this was an improper signal and we cannot charge the Bergechief with fault for misinterpreting it.

We agree that the failure to reverse her engines prior to 8:29 was negligence. Both vessels were aware of each other's presence and neither of them had more than a general knowledge of the course of the other. Neither knew, so far as we can make out from this record, the speed at which the other was proceeding. Clearly it was the duty of each to reverse her engines and take off her headway sooner than she did.

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