Andros Shipping Co. v. Panama Canal Company

• Decision Date: 18 January 1962
• Docket Number: No. 18688.,18688.
• Citation: 298 F.2d 720
• Parties: The ANDROS SHIPPING CO., Ltd., Appellant, v. PANAMA CANAL COMPANY, and Empresa Nacional Del Petroleo, Appellees. EMPRESA NACIONAL DEL PETROLEO, Appellant, v. PANAMA CANAL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F.2d 720 (1962)

The ANDROS SHIPPING CO., Ltd., Appellant, v. PANAMA CANAL COMPANY, and Empresa Nacional Del Petroleo, Appellees.

EMPRESA NACIONAL DEL PETROLEO, Appellant, v. PANAMA CANAL COMPANY, Appellee.

No. 18688.

United States Court of Appeals Fifth Circuit.

January 18, 1962.

Raymond T. Greene, Allen A. Baillie, Nicholas J. Healy, III, New York City, L. S. Carrington, Balboa, Canal Zone, Healy, Baillie & Burke, New York City, Thomas L. Rohrer, New York City, Walter G. McNeill, Mount Vernon, N. Y., on the brief, for Andros Shipping Co., Ltd.

Theodore P. Daly, Asst. Gen. Counsel, David J. Markun, Gen. Counsel, Paul T. Dunn, Atty., Panama Canal Co., Balboa Heights, Canal Zone, for Panama Canal Co.

Roy Phillipps, Balboa Heights, Canal Zone, Raymond T. Greene, New York City, Kirlin, Campbell & Keating, New York City, of counsel, for Empresa Nacional Del Petroleo.

Before HUTCHESON, RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This appeal is one of three appeals,¹ argued the same day, in which this Court is asked to reverse judgment for the Panama Canal Company in an action by a shipowner for damages to a vessel caused by its striking a bank of the Canal while it was under the compulsory pilotage² of pilots employed by the Canal Company.

In the instant case the S./T. Andros Venture, a Canadian flag vessel, struck the banks of the Canal in the narrow Gaillard Cut damaging its hull and cargo. Andros Shipping Co., Ltd., owner of the vessel, filed a libel against the Canal Company for hull damage. The Empresa Nacional Del Petroleo, the Chilean cargo owner, sued both Andros Shipping and The Canal Company for cargo damage. The suits were consolidated for trial below and on appeal. The district judge held that uncontrollable hydrodynamic forces, bank suction, caused the accident, and rejected the claims against the Canal Company based on the pilot's alleged negligence. As for the cargo damage, the district court applied the Pennsylvania doctrine in holding the Andros Shipping Company liable. 184 F.Supp. 246. We affirm.

I.

The Andros Venture arrived at the Atlantic entrance to the Panama Canal at noon December 22, 1955, to make a southbound transit of the Canal. Esso Export Corporation had chartered the vessel to carry a cargo of crude oil from Puerto La Cruz, Venezuela to Valparaiso, Chile. The vessel carried 27,794 tons of oil and had an observed mean draft of 33 feet 11½ inches, although the calculated draft based on the weight of the cargo was 34 feet 5½ inches. The ship is a single-screw, steam turbine tanker built in Quebec in 1953. Its overall length is 624.8 feet, its beam 84.2 feet, and its mean authorized salt water draft 33 feet 11 7/8 inches. It weighs 17,845 gross tons and 13,280 net tons.

Pilots Hector Grant and William Calcutt boarded the Andros Venture in Limon Bay at five in the morning to take the ship through the Canal. Grant had been a Canal pilot for fifteen years, Calcutt for twenty-two years. The master did not inform either pilot that the vessel was overdraft, had a sag, and had sustained hull damage some time before arriving at the Canal. Calcutt took the conn of the vessel for the first leg of the trip from Limon Bay to Gamboa. He encountered some difficulty controlling the vessel, and on its approach to the north end of Gatun Locks the engines were stopped and a tug placed alongside the port bow. Traveling at four knots, the vessel took several sheers when Calcutt attempted to reduce speed. By use of the engine and rudder, and with the help of the tug, he was able to obtain control in the channel, which at that point is 500 feet wide. During this part of the transit it appeared that the ship was acting sluggishly. Calcutt testified that when he cut off the engines in Gamboa Reach "she just wouldn't answer the rudder" although she was still moving forward. In the Gatun Locks the Canal Company personnel reported an overdraft of several inches, and Pilot Grant requested the ship's master to give the vessel a six-inch drag. At Gamboa Reach Grant assumed the conn. He placed the tug San Pablo ahead of the Andros Venture on a 300-foot howser to assist it through Gaillard Cut. The vessel passed La Pita Signal Station at 1310 hours traveling at slightly under six knots toward the 300-foot channel of Cucaracha Reach, where serious trouble was lying in wait. The vessel sheered and struck the east bank then the west bank in the narrow Gaillard Cut, causing extensive damage to its hull and cargo. There is no satisfactory explanation for the vessel's sheers. The Court put them in the category of "those unexplainable incidents which frequently occur in the navigation of vessels". Grant died before the trial. At the hearing conducted by the Board of Local Inspectors the day after the accident, Grant testified that the cause of the accident was insufficient rudder power and the unusually slow response of the vessel's engines.³ The district court found:

"There are, of course, many possible explanations for a sheer. The irregularities of the Canal result in unbalanced forces requiring continuous corrective rudder action. Should the rudder, in the course of taking corrective action, happen to be tending to direct the vessel\'s head in the same direction as the bottom and bank suction forces created by such irregularities, a moderate sheer could develop. In this case, the possibly poor trim, the vessel\'s indented hull, her overdraft, would constitute aggravating and complicating factors. In brief, sheers will occur — the real problem of shiphandlers is to determine the appropriate corrective action, and then obtain its prompt and proper execution by ship personnel."

The court ruled that the actions of the pilot before and after the striking were proper.

II.

The appellant's principal contention is that the pilot, Grant, took radical and unnecessary action to break the initial sheer to starboard and failed to act quickly enough to prevent the second sheer to port that was the foreseeable consequence of his efforts to break the starboard sheer. Ensnarled in this question is the hydrodynamic phenomenon of bank suction and its tendency to throw a ship off course by causing sheer. Bank suction occurs when a large ship passing through a narrow channel with vertical sides veers from the centerline. The asymmetrical flow of water past the ship builds up the water level between the bow and the near bank with the result that the bow is forced away from that bank. At the same time the water level between the stern and the near bank falls below the normal water level, sucking the stern toward the bank. The net result is to cause the ship to sheer toward the opposite bank. The phenomenon is well known and is discussed in "The Panama Canal Pilots' Handbook".⁴ To counteract bank suction it is necessary to use a rudder setting that tends to turn the ship toward the near bank; this will tend to turn the bow in and hold the stern out from the bank. The correction requires a delicate hand, since overcorrection may head the ship toward the near bank, while undercorrection may cause the ship to swing rapidly toward the far bank.⁵

The initial sheer was to the right. Grant ordered a hard, left rudder. The appellant argues that this order was wrong; the rudder should have been set to the right. Its expert witness, however, Anthony Suarez, testified that the proper corrective rudder setting would be to the left. A right rudder would have accentuated the sheer and driven the ship into the west bank. Andros Shipping also asserts that it was negligent for the pilot to hold the hard left rudder for two minutes while increasing the engine speed to half speed and while the tug was also pulling the bow away from the west bank, since he should have known that this would bring on the secondary sheer toward the east bank. The appellant has not shown, however, that these measures were not reasonable measures to prevent a bank striking after the first sheer. Grant had learned earlier in the trip that the ship maneuvered sluggishly. Guiding an eighty-four-foot-wide ship through a three hundred-foot-wide channel, Grant's judgment was that a more moderate correction would not suffice. He stated that even at the hard-left rudder setting the ship did not respond until he stepped up the speed. Pilot Calcutt corroborated Grant, testifying that holding the hard-left rudder setting for two minutes was "perfectly normal; nothing the matter with that."

When the ship broke out of the sheer to the right Pilot Grant set the rudder amidships and went back to a dead slow speed. As to this, Pilot Calcutt said: "Now, you can have a full left rudder on the ship and the ship starts to respond and he puts his wheel amidships, that doesn't mean the ship is going to steady out and go down the channel. She is going to carry that swing. I was, however, satisfied at that time. I never would have left the bridge if there was any doubt in my mind that she was not going to straighten out." He returned to the bridge ninety seconds later. At that time the ship was sheering to the left, Grant had changed the rudder to full right, the stern of the ship was then still to the west of the centerline, and the tug was pulling the bow to the right. This testimony supports the Canal Company's assertions that Grant was not negligent. Calcutt's judgment that the ship was straightening out backs up Grant's decision to put the wheel amidships after the sheer to the right was broken rather than to take immediate steps to prevent a sheer to the left. Calcutt's statement of facts, which is not contradicted by other testimony, indicates that little if any time elapsed after the ship began to sheer to the left before Grant acted to try to break that sheer.

In an appellate inquiry into a factual question of this nature it is not enough for the appellant to raise a doubt as to the accuracy of the trial judge's findings; the appellant must show that the findings...