Avondale Marine Ways, Inc. v. The Crescent Cities

• Decision Date: 07 June 1960
• Docket Number: No. 3776.,3776.
• Parties: AVONDALE MARINE WAYS, INC. and Louis C. Dorr, Sr., Libelant v. THE CRESCENT CITIES, her engines, etc., and National Marine Service, Inc., Respondent.
• Court: U.S. District Court — Eastern District of Louisiana

184 F. Supp. 773

AVONDALE MARINE WAYS, INC. and Louis C. Dorr, Sr., Libelant v. THE CRESCENT CITIES, her engines, etc., and National Marine Service, Inc., Respondent.

No. 3776.

United States District Court E. D. Louisiana, New Orleans Division.

June 7, 1960.

Deutsch, Kerrigan & Stiles, Cornelius G. Van Dalen, Christopher Tompkins, New Orleans, La., for libelant.

Terriberry, Rault, Carroll, Martinez & Yancey, Edward S. Bagley, New Orleans, La., for respondent.

J. SKELLY WRIGHT, District Judge.

In the early morning of April 26, 1958, in the harbor of New Orleans, the lead barge in the tow of the tug Crescent Cities struck the starboard quarter of the M/V Big Louie, causing her to capsize and sink. The owner and bareboat charterer have libeled the Crescent Cities and her owner for the loss of the tug, and the owner of the Crescent Cities, National Marine Service, Inc., has cross-libeled for damage to the barge.

Shortly before 1:00 A.M., April 26, 1958, the Big Louie¹ departed the fleet landing of Federal Barge Lines, Inc., on the west bank of the Mississippi River just below Nine Mile Point, and proceeded downstream, bound for the Federal Barge Lines lower fleet landing above Six Mile Point at the foot of Audubon Street on the east bank of the river. She was pushing a tow of four barges made up in two tiers, two abreast, and was faced up to the after barge in the starboard string.² The weather was fair, there was little or no wind, and the current in the river was about three MPH.

As the Big Louie proceeded downriver about two thirds of a mile above her destination, she ran into light patches of fog. She reduced her speed from about seven MPH to approximately four MPH and began sounding fog signals. When she reached a point nearly opposite the fleet landing at Audubon Street, she rounded to and headed upstream preparatory to landing her barges starboard side to the fleet. This maneuver was completed in the western half of the river.³ As the Big Louie steadied on an upstream heading, she was about mid-river just above the point of Greenville Bend,⁴ also known as Six Mile Point. The fog in the bend was thicker and visibility was reduced to between 200 and 300 feet. The Federal Barge Lines mate in charge of the barges, Nickelotte, and two members of the tug crew had gone out on the tow and stationed themselves on the lead barge.

While in this mid-river upstream position preparatory to proceeding toward the east bank and the fleet landing, the Big Louie received a radio telephone call from the Crescent Cities,⁵ then upbound in the river a mile below Greenville Bend, holding close to the east bank. Fontenot, captain of the Big Louie, and Terrell, pilot of the Crescent Cities, advised each other by radio of the relative positions of their tows in the river and agreed on a one-whistle passing, it being understood that the Big Louie would heave to approximately midstream to await the passage of the Crescent Cities on her starboard side.

The Crescent Cities, with only her pilot above deck and with no lookout on her tandem tow of two loaded oil barges, was proceeding full ahead in dense fog, making good seven MPH through the water and relying wholly on her radar for guidance. After the telephone conversation with the Big Louie, she widened out in the river in order to run her tow under the point at Greenville Bend. In so doing she allowed the current to bear down on the starboard side of the tow, driving it out farther in the river than intended and into the starboard quarter of the Big Louie. During this maneuver, the Crescent Cities was proceeding blind. Her pilot not only did not see the Big Louie, he could not see the head of his own tow. On collision the Big Louie capsized, broke away from her barge, was swept down the river, and sank.

The faults of the Crescent Cities are so gross that her counsel concede that she must be condemned, the effort here being merely to saddle some fault on the Big Louie in order to divide damage. But even where fault is admitted, unless it is sole fault, it must nevertheless be assayed. The application of the major-minor fault rule has become a popular pastime in this circuit, so that proof of mutual fault does not automatically lead to divided damage.⁶ Here the faults of the Crescent Cities are so gross, as compared to those of the Big Louie, that she must be found wholly to blame for this collision.

To begin with, the Crescent Cities' failure to have a lookout⁷ on the head of her 600-foot tow defies explanation. Her pilot's visibility, by his own statement, was limited by fog to 220 feet, and her radarscope would not reflect objects within a half mile of the vessel. Yet the Crescent Cities pushed on. Here is an instance where the use of radar precipitated a collision.⁸ Without radar, the Crescent Cities would never have been proceeding upriver full speed ahead in a dense fog. Moreover, the attempt of the pilot to navigate the vessel and watch the radarscope at the same time should also be condemned. The use of radar is actually a menace to navigation where the same navigator is expected to use both the radar and his visual acuity because an immediate eye adjustment cannot be made from radar to visual.

The speed of the Crescent Cities in the circumstances is also to be condemned.⁹ The Crescent Cities was at full speed, making good four knots against the three-knot current. Actually, having heard a fog signal forward of her beam, she should have been stopped as required by Rule 16, for she was totally unaware of the position of the Big Louie except that the Big Louie was upstream in the Mississippi River. The explanation that the Crescent Cities had to proceed at full speed in order to maintain steerageway against the current will not do. Where the...