Bethlehem Steel Corporation v. Yates, 30550 Summary Calendar.

• Decision Date: 08 February 1971
• Docket Number: No. 30550 Summary Calendar.,30550 Summary Calendar.
• Citation: 438 F.2d 798
• Parties: BETHLEHEM STEEL CORPORATION, Plaintiff-Appellee, v. Captain Elmer S. YATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

438 F.2d 798 (1971)

BETHLEHEM STEEL CORPORATION, Plaintiff-Appellee, v. Captain Elmer S. YATES, Defendant-Appellant.

No. 30550 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 8, 1971.

James O. Davis, Jr., William E. Henson, Jr., Tampa, Fla., Edward R. Downing, Miami, Fla., for defendant-appellant.

Brendan P. O'Sullivan, Tampa, Fla., for plaintiff-appellee; Fowler, White, Gillen, Humkey & Kinney, P. A., Tampa, Fla., of counsel.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

PER CURIAM:

This suit in admiralty was brought by the appellee Bethlehem Steel Corporation to recover damages resulting from the allegedly negligent operation of its vessel "SS BETHFLOR" and breach of warranty of workmanlike service by Captain Elmer S. Yates, a Tampa Bay Harbor Pilot. In a trial limited to the question of liability, the district court found that appellant Yates was responsible for the collision of the "BETHFLOR" with the Florida Portland Cement dock in Tampa "because he Captain Yates negligently failed to exercise the degree of care required of a harbor pilot in such circumstances, proximately causing the collision." Appellant appeals from that determination and argues that as a matter of law the proximate cause of the collision was not his negligence but was instead the failure of the "BETHFLOR" to respond to his orders. Finding the district court's opinion supported by the evidence and not "clearly erroneous," Fed.R.Civ.P. 52; Tidewater Marine Activities, Inc. v. American Towing Co., Inc., 5 Cir. 1970, 437 F.2d 124; Gray v. Johansson, 5 Cir. 1961, 287 F.2d 852, cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36; City of Long Beach v. American President Lines, 9 Cir. 1955, 223 F.2d 853; see McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, we append it herein and adopt it as the opinion of this court.

The judgment is affirmed.

APPENDIX

United States District Court Middle District of Florida Tampa Division

Bethlehem Steel Corporation versus

No. 68-345 Civ-T

Captain Elmer S. Yates

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court, having considered the pleadings, the testimony of the witnesses, the other evidence admitted at the trial, and being otherwise advised in the premises, makes these:

FINDINGS OF FACT

1. Plaintiff Bethlehem Steel Corporation was at all relevant times the owner and operator of the SS BETHFLOR.

2. Defendant Captain Elmer S. Yates, a resident of Hillsborough County, Florida, served as harbor pilot on board the SS BETHFLOR on departing Tampa on the afternoon of January 14, 1968; Captain Yates holds an unlimited master's license and has been a Tampa Bay Harbor Pilot since 1957.

3. The SS BETHFLOR is a seagoing vessel, 583 feet in length, 83 feet in breadth, with thirteen thousand shaft horsepower; she has a right handed screw and backs to port; at the time defendant boarded her on the afternoon of January 14, 1968, at Tampa her draft was 19 feet, 2 inches forward and 24 feet 4 inches aft.

4. The SS BETHFLOR was docked portside to Southport Terminal Pier No. 2 prior to departing Tampa on the afternoon of January 14, 1968.

5. Adjacent to the Southport Terminal Pier No. 2 is the Ybor turning basin, one of the larger maneuvering areas in the inner harbor of Tampa; this turning basin is in the shape of a triangle of about 1600 feet at its longest legs and inscribes a circle of about 900 feet in the center; there are no obstructions or geographical features in that part of Tampa harbor preventing a ship from getting well out into the turning basin when leaving Southport Terminal Pier No. 2 and there is deep water all the way across the basin.

6. At all relevant times up to and including the time of the collision on the afternoon of January 14, 1968, the SS BETHFLOR was properly and competently manned, properly supplied and equipped; all her machinery was in good repair and she was in seaworthy condition.

7. At all relevant times there was a northeast wind of Force 2 to 3, or approximately 4 to 10 knots, tending to hold the SS BETHFLOR off Southport Terminal Pier No. 2 and away from her port side of Sparkman Channel, down which channel the SS BETHFLOR proceeded in a generally southerly direction after leaving her berth that afternoon prior to the collision.

8. Sparkman Channel in Tampa Harbor, down which the SS BETHFLOR was proceeding at the time of the collision, is 400 feet wide and 34 feet deep. The Sparkman Channel Course, in departing Tampa, is a more or less straight line for a vessel undocking which has been moored portside to at Southport, Terminal Pier No. 2.

9. Captain Elmer S. Yates was familiar with the handling of the SS BETHFLOR, having undocked that vessel from Southport Terminal Pier No. 2 about 9 times generally without tugboats assisting, prior to January 14, 1968.

10. The SS BETHFLOR always employed a pilot while entering or leaving Tampa Harbor; on leaving Tampa when berthed portside to at Southport Terminal Pier No. 2, her usual berth and manner of berthing, she customarily did not use tugboats unless weather conditions required.

11. Up to January 14, 1968, the SS BETHFLOR has called at Tampa on an average of 18 times per year over a 10 year period, regularly docking portside to at Southport Terminal Pier No. 2. She has used tugboats to assist her in undocking, when moored portside to, on only 2 or 3 occasions over this 10 year period.

12. From the time the SS BETHFLOR left Southport Terminal Pier No. 2 in Tampa on the afternoon of January 14, 1968, to the time of the collision there existed good visibility and fair weather, and the tide in the area involved was negligible.

13. At the time the SS BETHFLOR got underway from Southport Terminal Pier No. 2 on the afternoon of January 14, 1968, there were no vessels moored nearby nor maneuvering in the harbor nearby that would interfere with the maneuvering of the SS BETHFLOR.

14. From the time Captain Elmer S. Yates boarded the SS BETHFLOR on the afternoon of January 14, 1968, up until the time of the collision, Captain Yates handled the maneuvering and navigation of the ship, issuing all line handling, helm orders and engine orders.

15. In undocking the SS BETHFLOR from Southport Terminal Pier No. 2 on the afternoon of January 14, 1968, a single forward spring line (a wire) was held on the dock and all other vessel lines were taken in. Dead slow ahead engine speed was ordered with a hard left rudder to swing the bow in to the pier and "spring" the stern out into the channel; the spring line was then released and the ship given half astern speed with the rudder placed midships; the engines were placed on astern speed to move the ship sternfirst away from the dock and out toward midstream; when Captain Elmer S. Yates determined the ship was properly positioned in the channel the rudder was shifted to hard right and half ahead engine speed given. At that point, the stem of the ship was approximately one hundred feet off of the dock. The stern was 250-300 feet off the dock.

16. In undocking from the Southport Terminal Pier No. 2 on the afternoon of January 14, 1968, the SS BETHFLOR's stern was not "sprung" as far out into the channel and, more importantly, the vessel was not backed as great a distance out into the channel as it usually was in performing this operation, with the result that as the SS BETHFLOR came ahead after backing away from the pier the port side of the vessel came within ten feet of the pier and the SS BETHFLOR nearly collided with the same Southport Terminal Pier from which it had just undocked.

17. As the SS BETHFLOR...