British Transport Commission v. United States

• Decision Date: 13 February 1956
• Docket Number: No. 7102.,7102.
• Citation: 230 F.2d 139
• Parties: BRITISH TRANSPORT COMMISSION et al., Appellants, v. UNITED STATES of America, as owner of THE U.S.N.S. HAITI VICTORY, petitioning for exoneration from or limitation of liability in a cause of limitation of liability, civil and maritime, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

230 F.2d 139 (1956)

BRITISH TRANSPORT COMMISSION et al., Appellants, v. UNITED STATES of America, as owner of THE U.S.N.S. HAITI VICTORY, petitioning for exoneration from or limitation of liability in a cause of limitation of liability, civil and maritime, Appellee.

No. 7102.

United States Court of Appeals Fourth Circuit.

Argued January 7, 1956.

Decided February 13, 1956.

Edwin Longcope, New York City (Baird, White & Lanning, Norfolk, Va., McNutt & Nash, New York City, and Edward R. Baird, Norfolk, Va., on the brief), for appellant British Transport Commission.

Wilbur E. Dow, Jr., New York City (John W. Oast, Jr., David H. Batchelder, Jr., Norfolk, Va., Dow & Symmers, New York City, Vandeventer, Black & Meredith, Hughes, Little & Seawell, Jett, Sykes & Howell, C. Lydon Harrell, Jr., and Earl W. White, Norfolk, Va., on the brief), for appellants intervening claimants.

Thomas F. McGovern, Atty., Department of Justice, Washington, D. C. (L. S. Parsons, Jr., U. S. Atty., Norfolk Va., Leavenworth Colby, Atty., Department of Justice, Washington, D. C., and John M. Hollis, Asst. U. S. Atty., Norfolk, Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

On May 6, 1953, in the very early morning, a collision occurred in the North Sea between the overnight ferry Duke of York (hereinafter called the Duke) owned by the British Transport Commission (hereinafter called the Commission), and the transport Haiti Victory (hereinafter called the Haiti), owned by the United States. Terrific damage was done to the Duke, several persons on the Duke were killed, others were injured and many suffered property damage. The Haiti suffered only minor damages to her bow, amounting to some $60,040.48.

A petition was filed in the United States District Court for the Eastern District of Virginia by the United States, as owner of the Haiti, seeking exoneration from and/or limitation of liability for all losses and damages resulting from the collision. The Commission filed in these proceedings a claim of $1,500,000 for the losses and damages sustained by the Duke. Numerous death, personal injury and baggage claimants also filed claims in the limitation proceedings, in varying amounts.

Some of the other claimants also filed petitions in the limitation proceedings, seeking to implead the Commission therein under General Admiralty Rule 56, 28 U.S.C.A. In an unreported memorandum, the District Court held that the other claimants could not implead the Commission, for the reason that a limitation proceeding does not provide a forum for the adjudication of the liability of co-claimants to each other. Accordingly, an order was entered in the District Court dismissing the impleading petitions of these other claimants.

The limitation proceedings were tried in the District Court before Judge Albert V. Bryan. At the trial the right of petitioner, United States, to limit its liability, as well as the limitation fund of $1,039,959.52, was established without contest.

Thereafter, Judge Bryan filed his opinion, Petition of U. S. as owner of U. S. N. S. Haiti Victory, D.C., 131 F.Supp. 712, in which he held that the Duke was solely to blame for the collision. The final decree exonerating the Haiti was filed in accordance with this opinion.

The Commission, and the other claimants, have filed appeals from the final decree exonerating the Haiti. The other claimants have also appealed from the order dismissing their petitions to implead the Commission in the government's limitation proceedings.

Two questions are before us on this appeal: (1) Did the District Court commit error in exonerating the Haiti and holding the Duke solely to blame for the collision; and (2) Did the District Court commit error in dismissing the petitions of the other claimants to implead the Commission in the limitation proceedings instituted by the United States seeking exoneration from, and/or limitation of liability for, losses and damages resulting from the collision.

The fault of the Duke seems quite clear and is not seriously contested. She had left the Hook of Holland bound West for Harwich, England. We quote from the opinion of the District Judge, which finds ample support in the record, 131 F.Supp. 712, 715:

"The Duke was running through a `patchy\' fog — `very thick at times\' and then fairly clear intervals. She was piercing one fog bank after another. * * * From 3 A.M. on, the fog was `very thick\'. * * * In such weather the speed of the Duke of York was too fast for good seamanship; it violated the `moderate speed\' injunction in the fog rules of Article 16, International Rules, 33 U.S.C.A. § 145n. It was an overriding and major fault; collision was a foreseeable result. * * * At 0412 and up to the collision, visibility was ¼ mile, the captain, his mate and lookout have said, and even in this interval the speed was 12 knots, Half Ahead. Not until the Haiti Victory was sighted, the ships ¼ mile apart, and the collision a minute or two off, did the engines go to Slow, 6 knots."

Had the weather been clear and the visibility good all around, under the Starboard Hand Rule, the Duke would have been the privileged, the Haiti the burdened, vessel. This rule, though, did not apply here by virtue of the fog surrounding the Duke.

This brings us to the District Court's exoneration of the Haiti, a discussion involving at least three points: (a) Actual or constructive knowledge on the part of the Haiti that she was running into, or alongside, a fog bank; (2) The conduct of the Haiti after the Haiti heard the whistle of the Duke; (3) The negligent use, or failure to use its radar by the Haiti. A careful study of the record convinces us that we cannot reverse the District Court's exoneration of the Haiti.

Visibility was excellent as the Haiti, with a Trinity House pilot, left Dover, bound for Bremerhaven, Germany. Lights were distinct on both sides of the English Channel. Around 0400 Galloper Lightship was easily picked up by the Haiti, about one point on the port bow. A very short while before the Haiti came abeam of Galloper, a crossing vessel was seen by the Haiti, about 4 miles away. The Haiti altered her course to 050°, went around this vessel's stern and then resumed her plotted course of 036°. This happened about 0414, approximately 3 minutes before the collision, and this crossing vessel came from the East, the direction from which the Duke was coming.

A trawler, about 1½ miles North of the Duke, and on a course practically parallel to the Duke, gave nothing to indicate the presence of fog. Galloper gave no fog signals until 0445, and then signalled only "Cloudy wet dew." The collision occurred about two miles East of Galloper. The mate of the S. S. American, which left Dover 17 minutes after the Haiti, testified that his log contained no notation of fog until 0441.

Confirmatory testimony to the effect that there was no fog and no signs of impaired visibility apparent to those on the Haiti was given by her bow lookout, her helmsman and her mate. We must, therefore, affirm the holding of the District Court that the Haiti never knew, nor should have known, of the fog which enveloped the Duke.

This brings us to the conduct of the Haiti just prior to the collision. The first notice those on the Haiti had of the presence of the Duke was a single blast whistle from the Duke. The bow lookout of the Haiti promptly reported to the bridge by telephone that he had heard what he thought was a ship's whistle off the Haiti's starboard bow. This whistle was also heard by the helmsman and pilot of the Haiti. The time, then, was apparently about 0414.

The pilot dashed out on the starboard side of the wheelhouse, looked around, saw nothing and went to the radar which disclosed an echo off the starboard bow. He again went out, saw nothing and stopped the engines, around 0415. Those on the Haiti thought the single blast they heard was a fog signal, but they were not sure of this.

Apparently in about a minute, the Haiti pilot saw the Duke crossing from starboard to port, gave the order hard right, blew one short blast and went full speed astern. The full speed astern was logged on the Haiti at 0415½, the collision at 0416. The Haiti changed course from 036° to 079° before striking the Duke. The pilot of the Haiti testified that when he first saw the Duke looming out of the fog, there was nothing that could be done by the Haiti beyond the hard right and full speed astern. A survey of the deformation of the plates, which is the resultant of the velocities of the ships, showed the speed of the Duke, at the moment of impact, to be from 2 to 4 times the speed of the Haiti.

Under these facts, we must affirm the holding of the District Court exonerating the Haiti from blame in its conduct just before the collision. This includes the contention of the Duke that the Haiti violated article 16, 33 U.S.C.A. § 92:

"* * * A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over."

See The Umbria, 166 U.S. 404, 17 S.Ct. 610, 41 L.Ed. 1053; Johnston-Warren Lines v. United States, 2 Cir., 196 F.2d 689; Steffens v. United States, 2 Cir., 32 F.2d 206; The Anna M. Fahy, 2 Cir., 153 F. 866.

This brings us to the radar question. Since the visibility was good, the radar on the Haiti was switched off to stand by about two hours after the pilot boarded the Haiti. At stand by, no images are visible on the radar screen, but the radar is kept heated and, as the pilot testified, "When you do switch it, it comes on immediately." It was proved that the delicate cavity magnetron of the Haiti radar has a short life, so that the actual use of the radar must be carefully rationed.

Counsel for the Duke make much of the failure of those on the...