C.G. Willis, Inc. v. The Spica
| Decision Date | 29 September 1993 |
| Docket Number | No. 92-1857,92-1857 |
| Citation | 6 F.3d 193 |
| Parties | C.G. WILLIS, INCORPORATED; CBT Leasing Corporation, a/k/a Insurance Company of North America, Plaintiffs-Appellees, v. THE SPICA, her engines, boilers, etc., Inc.; Spica Corporation, Defendants-Appellants, THE PATRICIA, her engines, boilers, etc., In Rem, Defendant-Appellee, and Lockwood Marine, Incorporated; THE MUD SCOW 2001, her engines, boilers, etc., In Rem; Norfolk Dredging Company, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Kenneth Reed Mayo, Hunton & Williams, Norfolk, VA, argued (A. Jackson Timms, on brief), for appellants.
Robert Scott Magnuson, Lord & Whip, P.A., Baltimore, MD, argued (J. Paul Mullen, on brief), for appellees.
Before PHILLIPS and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
As a result of a collision in the Chesapeake Bay, the district court, sitting in admiralty, entered judgment on the complaint of the owners and insurance carrier of the tug Patricia against the Spica Corporation and the tug Spica for 75% of the Patricia's damages. The court entered judgment on Spica's counterclaim in the amount of 25% of its damages. We affirm.
Because the district court's factual findings and its determinations of credibility are essential to understanding its judgment, we set forth this part of its opinion verbatim:
Initially, the Court notes that the parties present markedly different versions of some portions of the same incident. Therefore, in the Court's recitation of the facts, it will indicate where the parties' positions diverge.
On October 12, 1989, which was a clear night, the Spica and its crew were hauling dredge spoils from the dredge "Virginian" down to a dump spot near Poole's Island. On the same evening, the Patricia was returning with its crew in a westerly direction down the Chesapeake Bay. At the helm of the Patricia at the time of the collision was Stephen Waters, who had some experience navigating in the waters where the collision occurred. At the helm on the Spica was Mark Young, who had limited experience with navigation and piloting a tug.
At about 1 a.m., as the Patricia was moving in a westerly course down the Chesapeake, she left the deep water shipping channel just off Turkey Point at buoys 7 and 8 and began to cut directly across the flats in a straight line toward buoys 43 and 44 off Howell Point. 1 Meanwhile, the Spica was coming up on the red side, or southern side, of the channel just north of Poole's Island, and then cut across the channel to continue its journey parallel to the channel and outside of it on the green side, or northern side. Each pilot spotted the other far in the distance approximately 30 minutes prior to the collision.
According to Waters, as the Patricia proceeded on her course toward a midpoint between buoys 43 and 44, the Spica, which was still a considerable distance away, appeared about 10 degrees off the Patricia's starboard bow. This relative position of the two tugs remained constant until the Patricia reached the channel just off Howell Point. Waters confirmed using his radar equipment that the Spica was outside the green side of the channel, just west of buoys 41 and 42. Waters saw both the red and green lights of the Spica. He anticipated that the two tugs would pass each other on their starboard sides.
When the Patricia was abeam buoys 43 and 44, Waters turned the Patricia slightly to the right in order to stay on the green side of the channel. Waters stated that the turn was a mild right turn of about two degrees. At that point, the Spica was approximately two miles away and about five degrees off the Patricia's starboard bow. Waters believed that the two tugs would pass within one quarter mile of each other, which he indicated was closer than he liked. He noted that the Spica seemed to be edging toward the channel on the green side. Consequently, with the Spica about one and one half miles away, Waters turned the Patricia approximately five degrees to port in order to give the Spica more room on a starboard-to-starboard pass. Waters could see only the green light of the Spica after his turn to port. The Spica continued to be about five degrees off the Patricia's starboard bow.
Suddenly, when the two tugs were between an eighth and a quarter of a mile apart, Waters noticed that the Spica's lights were changing from green to red, which indicated that the Spica was turning into the channel in front of the Patricia. Waters attempted to avoid the collision, but was unable to do so. The Spica hit him on the starboard barge at a ninety degree angle.
According to Young, at the time of the collision, the Spica was returning to the dredge Virginian to load up more dredge spoils for dumping. He stated that the standard course was for the Spica to proceed up the bay outside of the green side of the channel and then either to cut back across the channel toward the dredge, or to continue past the dredge outside the channel and cut back. When the Spica was within one mile of the dredge, Young intended to awaken the captain, James Widgeon, before docking with the dredge. The mud scow was lashed to the port side of the Spica and caused a blind spot in Young's forward view.
Young steered the Spica outside of the green side of the channel within 50 to 100 feet of the channel markers. He noted that both the Spica and Patricia were running outside the green. He did not alert Widgeon to any problem and stated that he believed the tugs were set for a port-to-port pass.
Finally, to assess the Patricia's position, Young used his spotlight. At this time he states that the Patricia was turning in front of him, showing the port side of its barge. 2 Thus, his testimony was that the Patricia was still outside the green side of the channel and turning to port in front of him across his bow. Young then immediately reversed his engines but was unable to avoid the collision. The Spica's mud scow hit the Patricia's starboard barge at a ninety degree angle.
Widgeon testified that Young stated to him two or three days after the accident that he had thought the Patricia was off to his port and moving across the flats and that Young had lost sight of the Patricia. He told Widgeon that the next thing he became aware of was that the Patricia was turning across his bow.
The two versions of the facts presented by the parties are sharply at odds in regard to the relative positions of the tugs just before the collision, and the Court cannot reconcile the two versions. According to Waters, the Patricia was operating in the channel and to the starboard of the Spica; whereas, according to Young, the Patricia was outside the channel and to the port of the Spica. Based on the trial testimony of Waters and Widgeon, as well as the deposition testimony of Young and Waters submitted by the parties, the Court finds that Waters' testimony is credible and represents accurately the events leading up to the collision.
C.G. Willis, Inc. v. Spica Corp., No. B-90-889, slip op. at 2-6 (D.Md. June 17, 1992).
Admitting its own negligence, Spica nevertheless contends that the district court erred by not attributing the majority of fault to the Patricia. It insists that Patricia's violation of the Inland Navigational Rules and its failure to avoid the risk of collision were the principal causes of the collision. Spica's primary contention is that the Patricia did not maneuver according to rule 14, 33 U.S.C. Sec. 2014, which governs situations where there is a risk of a head-on collision and which states that when such a situation exists a vessel "shall alter her course to starboard so that each shall pass on the port side of the other." Spica contends that Waters' decision to turn the Patricia slightly to port when the two tugs were one and one half miles apart violated this rule. Spica also contends that the failure of the Patricia to post a lookout, to use its radar, and to signal by whistle that it contemplated a starboard-to-starboard passage contributed to the cause of the collision.
The Patricia contends that no head-on meeting occurred, and, therefore, it was not required to turn to starboard. It also asserts that the absence of a lookout and failure to use radar could not be the cause of the collision. The cause of the collision, it insists, was the act of the Spica in blindly turning to starboard after it lost sight of the Patricia due to the obstruction on its barge.
We review for clear error under Fed.R.Civ.P. 52(a) the district court's finding of negligence, its partial exoneration of the Patricia, and its apportionment of liability. McAllister v. United States, 348 U.S. 19, 20-21, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954); United States Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 823 (4th Cir.1992). We review de novo the district court's interpretation of statutes. McDermott International, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991).
Both the Spica and the Patricia were under a duty to avoid a risk of collision. If there is any doubt, a risk of collision shall be deemed to exist. Furthermore, a risk should be deemed to exist if the compass bearing of an approaching vessel does not appreciably change. A risk also may exist when approaching a vessel at close range. Rule 7, 33 U.S.C. Sec. 2007. "[I]t is the risk of collision, not the collision itself, that masters must avoid." Ocean S.S. Co. v. United States, 38 F.2d 782, 784 (2d Cir.1930).
Rule 14 requires vessels meeting head-on to alter their course to starboard for port-to-port passage. A head-on situation shall be deemed to exist when at night a vessel sees both side lights of an approaching vessel.
On Spica's charge that the Patricia violated rule 14, the district court's findings are specific:
The Court notes that neither Waters nor Young ever believed that a head-on collision was imminent. On...
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