Allied Chemical Corp. v. Hess Tankship Co. of Delaware

• Decision Date: 20 November 1981
• Docket Number: No. 79-3505,79-3505
• Citation: 661 F.2d 1044
• Parties: ALLIED CHEMICAL CORPORATION, Plaintiff-Appellee, v. HESS TANKSHIP COMPANY OF DELAWARE, Amerada Hess Corporation, et al., Defendants-Appellees-Cross Appellants, AMERICAN HULL SYNDICATE, Defendants-Third Party Plaintiff-Appellee, v. ALLIED TOWING CORPORATION as Owner of the Tug Socrates, et al., Third Party Defendants-Appellants-Cross Appellees, v. DeFELICE TOWING COMPANY, et al., Defendants-Appellees. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1044

661 F.2d 1044

ALLIED CHEMICAL CORPORATION, Plaintiff-Appellee, v. HESS TANKSHIP COMPANY OF DELAWARE, Amerada Hess Corporation, et al., Defendants-Appellees-Cross Appellants, AMERICAN HULL SYNDICATE, Defendants-Third Party Plaintiff-Appellee, v. ALLIED TOWING CORPORATION as Owner of the Tug Socrates, et

al., Third Party Defendants-Appellants-Cross Appellees, v. DeFELICE TOWING COMPANY, et al., Defendants-Appellees.

No. 79-3505.

United States Court of Appeals,

Fifth Circuit.

Unit A ^*

Nov. 20, 1981.

Alfred M. Farrell, Jr., New Orleans, La., Hugh S. Meredith, Norfolk, Va., for appellants.

John W. Sims, J. Barbee Winston, New Orleans, La., for Hess Tankship & Amerada Hess.

Arthur J. Blank, Jr., New York City, William J. Larzelere, Jr., Charles E. Lugenbuhl, New Orleans, La., for Allied Chemical & DeFelice Towing.

Robert B. Deane, New Orleans, La., for Great Fortune Navigation.

Michael Kimmel, Appellate Staff, Civil Div., U.S. Dept. of Justice, Washington, D.C., for appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, GEWIN ^** and POLITZ, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Prelude

It was a dark and stormy night. A patchy, low-lying fog covered the murky waters of the river and obscured the banks. Ships, passing in the night, were but phantoms, vague outlines disappearing into the mist. Ships' whistles, echoing across the dark expanse, seemed like mournful cries from another world. Then suddenly, looming out of the darkness, another ship appeared. The distance was too small; time too short; before anyone could do more than cry out, the unthinkable occurred. The ships collided. The tug, helpless, drifted downriver. Floundering like some giant behemoth wounded in battle, the tanker came to ground and impaled itself on some

voracious underwater obstruction. And still the whistles, echoing, seemed like cries from another world

This apparent screenplay for a Grade B film, in fact, came to Southwest Pass of the Mississippi River, about 3 miles below Head of Passes, in Louisiana, on February 1, 1973. The cast of characters included the SS HESS REFINER (REFINER), a jumboized T-2 tanker approximately 605 feet in length and 75 feet in beam and drawing, that fateful night, 32 feet, 1 inch forward and 34 feet, 7 inches aft; the SOCRATES, a 125-foot seagoing tug drawing 14 feet, equipped with twin pilot-house-controlled engines boasting 3200 h. p.; and its tow, the barge ALLIED CHEMICAL NO. 44 (AC-44), which measured some 340 feet in length, 68 feet in beam, drawing approximately 17 feet forward and 18 feet aft. REFINER is owned by Hess Tankship Company and was bareboat chartered to Amerada Hess Corporation (collectively Hess). SOCRATES is owned by Allied Towing Corporation (Allied Towing). AC-44 belongs to Allied Chemical Corporation (Allied Chemical), which, despite the apparent filial connection, bears no relation to Allied Towing.

The drama opens early on the morning of January 31, 1979. ¹ SOCRATES, with AC-44 loaded with liquid fertilizer, departed Allied Chemical's dock at Geismer, Louisiana. It was made up to the stern of the barge, pushing, the flotilla being 455 feet in length. Bound for the Gulf of Mexico, the tug had a full crew and proper equipment. The clear weather and good visibility promised an auspicious voyage.

At some point between Pilottown and Beacon # 26 (located somewhat more than 3 miles below the Head of Passes on the east, or right ascending bank), Captain Robert Scott of SOCRATES spoke to the pilot of the upbound AVAX. AVAX informed him that there were high winds and 10-12 foot seas on the bar beyond the Pass. Preferring to avoid the rough weather, Captain Scott, at 2045 hours, E.S.T. (1945 C.S.T.), ² rounded up his tow and pushed into the west bank of the Pass.

They selected a position approximately one quarter nautical mile below a dike on the west (left ascending) bank, 3.05 statute miles below Head of Passes (dike 3.05) and abeam of Beacon # 26 on the east (right ascending) bank. The tow, having turned around so that it now headed north, was angled in toward the west (left ascending) bank. The vessel's heading as shown on the gyro was 355-359o . Captain Scott believed that the forward port corner of AC-44 was aground. ³ The tug, with its engines at half ahead with 20-30o left rudder, held the barge in to the bank. The flotilla was lighted in accordance with applicable rules governing a tug and tow underway. ⁴

At this spot, the Mississippi is some 2,000 feet wide. The U.S. Corps of Engineers maintains a dredged channel 40 feet deep about mid-way between the banks. The deep channel is approximately 700 feet wide but is unmarked by buoys.

Captain Scott notified the pilot of the upbound CHRISTRIP ⁵ of his position and requested him to alert other vessels.

Captain Scott and AB seaman Vernie Cossette stood a six-hour watch ending at midnight E.S.T. They verified that the tug and barge were maintaining their position

by making a radar check on the dike ⁶ and by comparing their position to two wooden stakes which stood on or near shore, off the port bow. Both men testified that the position relative to the stakes remained constant throughout the watch, as did the gyro heading of 359o and the ship's relation to Beacon # 26 across the river. ⁷ From midnight until 0600 E.S.T., relief captain-mate Blake and AB Goodwin maintained the watch. They, too, testified that no change in position took place

By the end of the second watch (0600 hours E.S.T.), the weather had deterioriated and patchy fog had arisen. Captain Scott and AB Cossette returned to the pilot house. The fog grew so thick that the stakes, dike and beacon disappeared.

SOCRATES sounded no fog signals, either by whistle or bell, prior to the collision. The pilot house windows were closed, and Scott and Cossette remained inside. They periodically checked the radar for nearby traffic but made no radio calls.

Meanwhile, back at the tank farm, REFINER completed loading a cargo of crude oil at Ostrica, Louisiana, and started its downbound voyage in the Mississippi toward the Gulf. She too was fully manned and equipped. At the conn was James Moore, a pilot of the Associated Federal Coast Pilots of Louisiana.

As the vessel passed Venice, Louisiana it encountered light fog. The further downriver it sailed, the worse the fog became. At 0714 C.S.T., low fog was noted. At 0717, the second mate recorded "dense low fog".

Despite the fog, the tanker proceeded beyond Pilottown, through the Head of Passes, and into Southwest Pass at 0726 (Bell Book Time). On the bridge, together with the pilot and mate Allen, were the ship's master and the helmsman. A lookout was posted on the bow.

Pilot Moore testified that, as REFINER entered the Pass, fog obscured both banks. With engines at half ahead, the ship had a speed-in light of river current-of 12-14 m. p. h. over the ground. ⁸ He made several calls on Channel 13 to ascertain traffic conditions in the Pass, but received no response.

As a part of his navigational duties, Moore also periodically checked the radar screen. He used the ship's radar on a two-mile range to check for traffic ahead, switching occasionally to a one-mile range for navigational purposes. None of the bridge personnel were assigned to monitor the radar screen constantly or to make a radar plot.

REFINER came down off the ranges on the east (right ascending) side of the river on a course of about 200o . She then angled to the other side, where the channel was deeper, on a course of 207o . The pilot noticed a small "blip" on the radar screen, which later proved to be SOCRATES. ⁹ Although he felt it was perpendicular to his bow, he believed he could pass it to port. The engines remained at half ahead. Visibility remained limited.

Back on SOCRATES, AB Cossette too noticed a radar "blip", REFINER, approximately 1/2-3/4 nautical miles upriver. He pointed it out to Captain Scott, who checked the screen and, feeling no concern, sat back down on the couch. He believed the other ship was in the channel, from which his tow was safely removed.

Deus Ex Machina

Suddenly, through the fog, like an apparition, the superstructure of SOCRATES appeared to the crew on board REFINER. It was about 5o off the port bow and not more than 3/4 mile ahead. Simultaneously, the barge, which the low-lying fog had cloaked, appeared, directly in REFINER's path. By then, it was too late.

Moments before impact, Captain Scott and AB Cossette saw the bow of REFINER looming in front of them. Scott ordered full astern, but the tow had not even begun to move when the collision occurred. As the District Court found, such action "would have been utterly fruitless" in any event. --- F.Supp. ---, ---, --- A.M.C. ---, --- (E.D.La.1979).

On seeing SOCRATES, Pilot Moore ordered full astern and hard right rudder. When he perceived the barge in his path, he rescinded his order. Hoping to strike the barge with the collision bulkheads on the bow, thereby minimizing the danger of fire, he ordered the rudder hard left. After checking the swing of the bow to the right, the rudder was put amidships. Seconds later, REFINER struck the starboard quarter of AC-44. The cables linking the tug and barge parted; the ships began to drift downriver.

Following impact at 0740 C.S.T., the engines of REFINER remained full astern for three minutes. ¹⁰ The vessel, with reduced headway, continued moving downriver but flanking toward the west (left ascending) bank, her bow pointing out into the channel and her stern toward the bank. As she drifted an uncharted and perilous course, REFINER struck an underwater projectile, a steel beam which gouged a thirty-foot, nine-inch gash in the side of the hull in the vicinity of the engine room. Act I ends at 0751, when REFINER went aground and the engines were stopped.

I.

FAULT: SEPARATE BUT EQUAL

Act II of the drama opens far from the waters of Southwest Pass, in the...