Bradshaw v. The Virginia, 5905.
| Decision Date | 10 August 1949 |
| Docket Number | No. 5905.,5905. |
| Citation | 176 F.2d 526 |
| Parties | BRADSHAW v. THE VIRGINIA et al. THE NETTIE B. GREENWELL. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Henry E. Howell, Jr., and R. Arthur Jett, both of Norfolk, Va., for appellant.
Edward R. Baird, of Norfolk, Va., and Charles W. Hagen, New York City (Baird, White & Lanning, of Norfolk, Va., and Hagen & Eidenbach, New York City, on the brief), for appellees.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal in admiralty by Linwood L. Bradshaw, owner and master of the motor vessel Nettie B. Greenwell, original libellant, from a decree of the United States District Court for the Eastern District of Virginia holding the Greenwell solely at fault for a collision which occurred on the night of March 11, 1947, between the Greenwell and the steamer Virginia, and dismissing appellant's libel against the Virginia. A cross-libel by the Chesapeake and Ohio Railway Company for damages sustained by the Virginia in the collision was sustained by the District Court.
This case is of the same general pattern from which most admiralty cases unfortunately are cut. There is virtually no agreement between the parties as to certain of the crucial facts which must be decided in order to place the fault for the collision. We summarize, initially, the general facts about which there is comparatively little dispute, as found by the District Judge.
The Greenwell was a vessel of the burden of 41 gross tons, 28 net tons, 72 feet long, 19.3 feet beam, 5.3 feet deep and was owned and operated by Linwood L. Bradshaw as an oyster boat. Her hull was painted gray and her pilothouse was painted white. The Virginia is a twin screw, steel-hull passenger and freight vessel of the burden of 426 gross tons, 260 net tons, 191 feet long, 32 feet beam, 12 feet deep and at the time of the collision here involved was operated by the Chesapeake and Ohio Railway Company for the transportation of passengers and freight between Norfolk and Newport News, Virginia. Her pilothouse is about forty feet abaft her stem.
On the late afternoon of March 11, 1947, the Greenwell, under the command of appellant, who was at the wheel and acting as lookout, left the mouth of the Warwick River, partly loaded with approximately 1,600 bushels of seed oysters, bound for Hampton, Virginia.
The lights on the Greenwell were supplied by batteries which were charged by a generator operated separately and apart from the engine. Prior to the collision, the Greenwell experienced difficulty with her lighting equipment, and immediately prior to and at the time of the collision the only light she was showing was a single white light furnished by an oil lantern on her stern abaft the pilot house. This light, obscured by the pilot house, was not visible to anyone dead ahead of the Greenwell, as was the Virginia at all times prior to the collision.
At approximately 6:45 P.M. on the same afternoon, the Virginia left her dock in Norfolk on her regularly scheduled run to Newport News, under the command of Captain Wiley, a master of many years experience, who at the time of the collision was in the pilothouse directing navigation. The regular quartermaster was at the wheel and a member of the crew, Chelsea Lawrence, was stationed as lookout on the bow just abaft the jackstaff, which carried the Virginia's forward light. The Virginia was showing proper lights at the time of the collision.
At the time of the collision the weather was good. There was no moon but the stars were out. A light haze or frost on the water somewhat obscured the shoreline, although lights could be seen at a normal distance. The tide was at the last of the ebb and neither the tide nor the wind had any appreciable effect upon the movements of the vessels.
Captain Bradshaw, on behalf of the Greenwell, testified that at about 7:25 P.M. the Greenwell was approaching C. & O. Pier No. 9, one of a number of piers jutting out into the Newport News waterfront. Although Captain Bradshaw did not testify in terms of degrees as to the Greenwell's course, it was apparantly the channel course of approximately southeast. The Greenwell's speed was about 6 knots.
When Captain Bradshaw had passed Pier No. 9, he saw the lights of a moving vessel (the Virginia) approaching Buoys Nos. 7 and 8 marking the entrance to the Newport News Channel. After clearing the buoys on a course due west, the Virginia altered course to approximately northwest by west so as to head up the James River. This course change put the Virginia and the Greenwell on virtually opposite headings. If we add, then, the Virginia's speed of 14 knots to the Greenwell's speed of 6 knots, it is clear that the vessels were approaching headon at a relative speed of about 20 knots.
Captain Bradshaw testified that after the Virginia had settled on her new course, her port light could be observed by him, and that she bore slightly to port of the Greenwell. Thinking the situation appropriate for a port to port passage, Captain Bradshaw, according to his testimony, blew a one-blast signal when the vessels were approximately 500 yards apart, at which time he also rolled his wheel a couple of spokes to starboard to increase the passage distance. He stated, next, that, a minute having elapsed during which he received no reply to his one-blast signal, he repeated the one-blast signal and that, immediately thereafter, the Virginia altered course to her port to bear towards the Greenwell. Captain Bradshaw then sounded the danger signal and threw his wheel hard right; but, almost simultaneously with that action, the Virginia struck the Greenwell on the latter's port side at a point about 15 feet abaft her stem at an angle of about 45 degrees, cutting the Greenwell in two and rendering her a total loss.
The evidence on behalf of the Virginia, on the other hand, was that as she cleared Buoys Nos. 7 and 8 and made her customary course change, the waters ahead were apparently clear and there was no visible traffic ahead.
Upon completion of the course change, the master and the helmsman of the Virginia, both in the Virginia's pilothouse, at about the same time observed a dark object or spot on the water ahead which they first thought to be coal dust. Almost immediately thereafter the Greenwell showed up under the Virginia's bow light, and was first revealed as a vessel to those on the Virginia. At that time, those on the Virginia heard the Greenwell's danger signal. Captain Wiley, of the Virginia, instantly ordered hard right rudder and placed the engine order telegraph at full speed astern on both engines. These orders were immediately carried out but had not time to take appreciable effect before the collision occurred.
No one on the Virginia heard the Greenwell's two one-blast signals. Despite testimony from other personnel on the Greenwell corroborating Captain Bradshaw in this respect, the District Judge specifically found against the Greenwell on this issue. He stated ( of Fact No. 8) that although the Greenwell was turned slightly to starboard when about 500 yards from the Virginia, "no other action was taken until a few seconds before the collision, when her wheel was thrown hard right and several short blasts were sounded on her horn." We certainly cannot hold that this finding "was clearly erroneous," and must therefore accept it. The conclusion seems comparatively evident either that the one-blast signals by the Greenwell were not given or that they were of insufficient volume to be heard by those on the Virginia.
A second disputed issue arises in connection with Captain Bradshaw's testimony (already noted) that the Virginia altered course to port to bear towards the Greenwell. Captain Wiley testified that from the time the Virginia completed her course change upon clearance of the Buoys Nos. 7 and 8 she maintained a steady course until almost the moment of collision, when her wheel was put hard right, and that she at no time prior to the collision turned to the left. Although the District Judge made no explicit finding on this point, implicit in his findings is the adoption of this evidence on behalf of the Virginia.
We discuss first the faults of those on the Greenwell as set forth in the District Judge's Conclusion of Law No. 1:
(d) Failure to obtain the assent of the Virginia to a port to port passing before undertaking such a passing, and
(e) Failure to realize the danger of collision, requiring her to reverse and stop.
It is quite clear that the lookout maintained aboard the Greenwell was inadequate. Captain Bradshaw was in the pilothouse acting, at the same time, as navigating officer, helmsman and lookout. Although there...
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