Anthony v. International Paper Company

• Decision Date: 18 April 1961
• Docket Number: No. 8213.,8213.
• Citation: 289 F.2d 574
• Parties: E. A. ANTHONY, Administrator of the Estate of Madelene Nelson, deceased; E. A. Anthony, Administrator of the Estate of Robert Elliott, deceased; E. A. Anthony, Administrator of the Estate of Connie Nelson, deceased; and E. A. Anthony, Administrator of the Estate of John Collins, deceased, Appellant, v. INTERNATIONAL PAPER COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

289 F.2d 574 (1961)

E. A. ANTHONY, Administrator of the Estate of Madelene Nelson, deceased; E. A. Anthony, Administrator of the Estate of Robert Elliott, deceased; E. A. Anthony, Administrator of the Estate of Connie Nelson, deceased; and E. A. Anthony, Administrator of the Estate of John Collins, deceased, Appellant, v. INTERNATIONAL PAPER COMPANY, a corporation, Appellee.

No. 8213.

United States Court of Appeals Fourth Circuit.

Argued January 13, 1961.

Decided April 18, 1961.

John L. Nettles, Florence, S. C. (James P. Mozingo, III, Darlington, S. C., and Arthur W. Holler, Jr., Myrtle Beach, S. C., on brief), for appellant.

Harold A. Mouzon, Charleston, S. C. (B. Allston Moore and Moore & Mouzon, Charleston, S. C., on brief), for appellee.

Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.

SOPER, Circuit Judge.

This is an appeal taken from judgments in favor of International Paper Company, the defendant, in four consolidated suits brought by the administrator of the estate of each of four colored persons who were drowned in the Waccamaw River in South Carolina when a small motorboat in which they were embarked was capsized by the swell from the tug boat Southern Craft No. 7, owned and operated by the defendant.

The deceased were Robert Elliott, 17 years of age, the operator of the motorboat, and three passengers, to wit: Madelene Nelson and Connie Nelson, 9 and 10 years of age, respectively, and John Collins, an adult, 37 years of age. The suits are based on the wrongful death statute of South Carolina, Title 10, Chapter 23, Article 2, Sec. 10-1951 of the South Carolina Code. Jurisdiction is based on diversity of citizenship, since in each case the plaintiff administrator is a citizen of South Carolina and the defendant is a corporation of the State of New York. The cases were submitted to a jury, who found a verdict in each case for the owner of the tug. Reversal of the judgments is sought primarily on the ground of alleged errors in the charge of the District Judge.

The accident happened between 5:30 and 5:45 P.M. on December 22, 1955, on the west side of the Waccamaw River near the shore of Sandy Island. The river is within the territorial limits of South Carolina and is part of the Inland or Intracoastal Waterways. Sandy Island has about 300 inhabitants, many of whom cross the river in small boats, morning and evening, to and from their places of employment on the east side of the river. The captain of the tug was aware of this fact. About 5:10 P.M. the motorboat in charge of Elliott, an experienced operator of such craft, left a landing on Brookgreen Creek, one and a half miles east of the river, for a twenty minute trip to a landing on Sandy Island on the west side of the river. The motorboat was 13½ to 14 feet in length, 36 to 42 inches in width, and 13 to 18 inches in height. It was propelled by a 7-HP outboard motor. It proceeded on this occasion a distance of one and half miles westerly on Brookgreen Creek to its junction with the river and then crossed the river to the western side and proceeded southerly toward the Sandy Island landing, one and a quarter miles distant on the western bank. The boat carried no lights.

At the same time, the tugboat was proceeding northwardly on the river from the town of Georgetown, some twenty-five miles to the south, where it had been sent for repairs. The vessel is a blunt-nosed push type tug, 70 feet in length, with a 20 foot beam, and is propelled by two caterpillar engines which produce an aggregate of 430-HP. Its superstructure covers two-thirds of the length of the vessel and consists of an enclosed house on the deck, on top of which are staterooms and an enclosed pilothouse near the bow furnished with windows at the front, sides and back. The crew normally consists of seven men but on this occasion five men were aboard — the captain, a mate, an assistant engineer, and two deck hands. One or two other men who had accompanied the vessel when it went south from Wilmington to Georgetown were returning to Wilmington by automobile.

The vessel had left Georgetown about 4:00 P.M. and a short time before the accident had reached a point in the river designated as Marker 67, about three quarters of a mile south of the scene of the accident. Shortly before it had passed Marker 73, some two miles to the south of Marker 67 at a short bend in the river, but had not sounded its whistle in accordance with Rule 5, article 18 of the Rules of Navigation for Inland Waters, 33 U.S.C.A. § 203. The captain of the tug admitted that the whistle should have been sounded at this point.

There is conflict in the evidence as to the speed at which the tug was traveling at the time. It had a maximum speed of approximately ten miles per hour and according to its master it was proceeding at the time, without a tow, at about seven miles per hour. On the other hand, witnesses for the plaintiff, who arrived at the scene of the accident shortly after it occurred, testified that the captain told them that he was running full speed ahead when he first saw the motorboat, since he was trying to reach Wilmington to tie up for the holidays.

On the day of the accident the sun set at 5:17 P.M. The captain of the tug testified that at the time of the accident it was between sunset and dark and that there was fair visibility straight ahead. Witnesses for the plaintiff, who were on the river in this area about the time of the accident, testified that the landing on Sandy Island could be seen from the mouth of Brookgreen Creek, one and a quarter miles away.

The water was calm as the vessels approached one another. The captain was in the pilothouse and was the only person engaged in the operation of the vessel. The rest of the crew were at supper inside the main house on the deck. Three or four minutes after passing Marker 67 the captain first heard the engine of the motorboat and then saw it a little bit ahead of him at a distance of about 250 feet off his port bow and about 100 feet from the western shore. It seemed to him that the boat was overloaded and was traveling too fast, and he was alarmed when it headed towards the western shore and exposed its side to the waves from the wake of the tug. Looking back through the rear window of the pilothouse, which was larger than the front window and gave a better view, the captain saw that the motorboat had capsized and its occupants thrown into the water. He reversed his engines, swung the tug around and headed for the boat, and got within 15 feet of the occupants in the water and threw them life preservers, but they made no attempt to take hold of them. A skiff was lowered from the tug — but the occupants of the boat went down before they were reached. The members of the crew of the tug testified that they gave no thought to jumping into the water to save the drowning persons.

The principal contention of the plaintiff is that the judge erred in failing to give an instruction to the jury in the following terms: "The master of a vessel cannot, as a matter of law, act both as helmsman and lookout and if you find that the failure of the SK-7 to have a lookout was a proximate cause of the sinking of the small boat, it would be your duty to find for the plaintiff." Originally an instruction to this effect was incorporated in a copy of the charge which the judge gave to the attorney for the plaintiff the day before the argument took place. On the next morning, however, before the argument, the judge informed the plaintiff's attorney that he would not give the instruction in this form. The charge to the jury after the argument included the following passages as to the necessity of a lookout. It set out Rule 29 of the Inland Rules of Navigation, 33 U.S.C.A. § 221 as follows:

"Article 29. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."

In addition, the judge gave the following instruction as to a lookout:

"Now something has been said about a proper lookout. Of course, as one of the rules states, a proper lookout must always be maintained by all water boats.

"If you find that the SK-7 was operating in a river frequented by vessels and where small craft would naturally be afloat without a proper lookout, then defendant would be liable, provided a lack of proper lookout is the proximate cause of the accident."

A misunderstanding arose between the judge and the attorney for the plaintiff as to the instruction which the judge intended to give to the jury on the matter of lookout. The plaintiff's attorney states that the judge informed him before the argument that he would not give the instruction first set out above "as a matter of law" but did not inform him that the instruction would be omitted altogether. Accordingly, in his address to the jury, he stressed the fact that the master of the tug was acting illegally when he served both as helmsman and lookout of the vessel, and consequently was put in a bad light when the judge omitted any reference in his charge to the fact that the master acted in both capacities. On the other hand, the judge, in an opinion refusing plaintiff's motion for new trial, stated that he could not accurately remember just what occurred in chambers on the morning of the argument but seemed to recall that he then informed plaintiff's attorney that he would not charge that a helmsman cannot act as a lookout. The judge added that even if his recollection was incorrect the error was harmless, since the charge as originally drawn was not a correct statement of the law. During the course of the charge the judge expressly directed the attention of the jury to the rule that the plaintiff could not recover unless he showed by a preponderance...