CIA. Maritima San Basillio SA v. Shell Canada, Ltd.

• Decision Date: 10 January 1974
• Docket Number: No. 73-1291,73-1292.,73-1291
• Citation: 490 F.2d 173
• Parties: CIA. MARITIMA SAN BASILLIO S.A. as owners of the S.S. EURYMEDON, Plaintiff-Appellant, v. SHELL CANADA LTD. et al., Defendants-Appellees. SHELL CANADA LIMITED as owner pro hac vice of the S.T. EMERILLON, Plaintiff-Appellee, v. CIA. MARITIMA SAN BASILLIO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

490 F.2d 173 (1974)

CIA. MARITIMA SAN BASILLIO S.A. as owners of the S.S. EURYMEDON, Plaintiff-Appellant, v. SHELL CANADA LTD. et al., Defendants-Appellees.

SHELL CANADA LIMITED as owner pro hac vice of the S.T. EMERILLON, Plaintiff-Appellee, v. CIA. MARITIMA SAN BASILLIO et al., Defendants-Appellants.

Nos. 73-1291, 73-1292.

United States Court of Appeals, First Circuit.

Argued December 3, 1973.

Decided January 10, 1974.

Kenneth H. Volk, New York City, with whom Preti & Flaherty, Portland, Maine, Burlingham Underwood & Lord, New York City, and Martin R. Johnson, Portland, Maine, were on brief, for appellants.

Benjamin Thompson, Portland, Maine, with whom Thompson, Willard, Smith & McNaboe, Portland, Maine, Haight, Gardner, Poor & Havens, Gordon W. Paulson, New York City, James P. Lansing, and David P. Cluchey, Portland, Maine, were on brief, for appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

In these cross libels arising out of a crossing collision in Maracaibo channel, Venezuela, on the night of March 2-3, 1970, the appeals present a single question, whether the court erred in finding appellant's vessel the only one at fault. This requires a detailed consideration of the evidence, having in mind the heavy burden that is upon appellant that we be firmly convinced that a mistake has been made, McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; O'Connor v. Venore Transp. Co., 1 Cir., 1965, 353 F.2d 324, 326. Appellant's vessel was the freighter EURYMEDON, 480 feet long, 61 foot beam, bound in; appellee's the tanker EMERILLON, 710 feet long, 96 foot beam, bound out. The vessels collided at approximately right angles. It is undisputed that had EMERILLON arrived at the point of collision only a matter of seconds later, no collision would have occurred.

Relevant facts found by the court (verbatim, or summarized) are as follows.

"5. The Maracaibo channel is a dredged channel approximately 1,000 feet in width, which extends out about twelve miles from the coast of Venezuela from Lake Maracaibo into the Gulf of Venezuela. The channel axis is 009° for outbound vessels and 189° for inbound vessels. The entrance to the channel is marked by Buoy `EM,\' a fairway buoy situated directly on the center axis of the channel one and one-half miles beyond Buoys B1 and B2 at the outer end of the dredged channel. EM Buoy has a flashing white light. The dredged channel is marked by buoys at one-mile intervals on either side of the channel, all the way in to the shore. The buoys are equipped with flashing lights, white for the odd numbered buoys on the easterly side, and red for the even numbered buoys on the westerly side. . . ."

On the night of March 2-3, 1970, B2 was in place and its light was functioning, but several of the other channel buoys were absent, or extinguished. It was dark, but the weather was clear and the visibility good. The wind was east by north, force 4. EMERILLON was being navigated by her relief master, Captain Lough, well experienced in this particular route. He was assisted by third officer Wilkins, less, but adequately, familiar therewith. EMERILLON proceeded at 12 knots, continually checking her position in the channel by the buoys. She first saw what proved to be EURYMEDON'S lights about 8 miles away to the northeast, apparently heading for the EM fairway buoy. EURYMEDON, proceeding at 12 knots, reached that buoy just as EMERILLON was passing B6. That is, EMERILLON was 2 miles short of B2, and EURYMEDON, at EM, was 1½ miles beyond. See Finding 5, ante. Because EM's light was briefly eclipsed, it was apparent to EMERILLON that EURYMEDON had passed close to and in front of it.¹ At this point EURYMEDON turned, but, because she was light, the combined weather conditions (the court found) slowed her turn and she proceeded to the west of the channel entrance. "In an effort to regain the channel, she executed a sweeping port turn and eventually was heading back in an easterly direction toward the channel entrance." viz., toward B2.

"12. At about 0109-0110, when the master of EMERILLON observed that EURYMEDON was heading back toward the east about to cross the channel across EMERILLON\'S bow, and when EURYMEDON was on the port bow of EMERILLON, distant about a mile, showing her green light, EMERILLON sounded five short blasts on her whistle, the danger signal,12 and seconds later heard two faint blasts from EURYMEDON.

12 Rule 28(b), International Regulations for Preventing Collisions at Sea, 33 U.S.C. § 1090(b).

In the meantime EURYMEDON, whose officers had not been to Maracaibo before, and were apparently misled by the absence of a number of the channel buoys, had become seriously confused on her port turn, to the extent of thinking EMERILLON was out of the channel. She sounded a 2-blast signal to EMERILLON, indicating a further port turn, Rule 28(a), 33 U.S.C. § 1090(a), and stopped her engines at 0109. Upon hearing EMERILLON'S 5-blast signal, which she mistakenly thought was two blasts, she "resumed speed in steps going from slow ahead to half ahead to full ahead at 0111² and altered her course further to port."

"14. At this time, about 0111, the master of EMERILLON, observing EURYMEDON continuing to swing in an easterly direction, sounded a second danger signal of five short blasts, put his engine on standby and in rapid succession ordered slow ahead, full astern and emergency full astern, and gave hard starboard rudder. It was at this time that EMERILLON first realized that EURYMEDON was not going to enter the channel on the channel course and that there was a risk of collision.

"15. When the starboard bow of EURYMEDON was approaching Buoy B2, with her watch officer attempting to identify the Buoy by Aldis lamp, and when the two vessels were about one-third of a mile apart, EURYMEDON\'S master again sounded a two-blast signal and immediately thereafter heard what he again erroneously thought was a two-blast reply from EMERILLON.15 He then put EURYMEDON\'S rudder at hard port, and in rapid succession ordered half ahead, full ahead and emergency full ahead. The time was approximately 0111. When the master observed the stem of EMERILLON approaching amidships of EURYMEDON, he ordered hard starboard rudder, the order was executed, and EURYMEDON started to turn to starboard.

"16. The bow of EMERILLON came into contact with the starboard quarter of EURYMEDON at 0113 at an angle of approximately 88° between the starboard sides of both vessels. . . . The place of collision was northerly of a line between Buoys B1 and B2.

15 The confusion with respect to sound signals can only be explained by the fact that the two vessels sounded them almost simultaneously and the sound of EURYMEDON\'S whistle partially blanketed the sound of EMERILLON\'S whistle for those aboard EURYMEDON. See, e. g., Hess Tankship Co. v. S.S. M.L. Gosney, 230 F.Supp. 1, 2-3 (E.D. Va.1963)."

By deposition on April 3, 1970, Captain Lough testified, inter alia, that when he first saw the lights of what proved to be the EURYMEDON she bore NE, about eight miles away; that he concluded she was "heading towards EM buoy to enter the channel"; that under local rules "an inbound vessel is supposed to keep clear of the outbound vessel and not to enter the channel until . . . the outbound vessel is clear of the channel,"³ and that both inbound and outbound vessels are supposed to leave the EM buoy to port; that EURYMEDON passed the EM buoy when EMERILLON was at B6, and instead of turning into the channel she continued westerly, making a sweeping U-turn to port, "and came back heading in an easterly direction somewhere between B2 and EM buoys"; that when EURYMEDON "approached what he considered was going to be a dangerous" (section or situation) he gave her a 5-blast danger signal; that he was then between B4 and B2; that in a matter of seconds he heard two blasts from EURYMEDON; that he gave another five short blasts and ordered emergency full astern and the helm put to starboard; that EURYMEDON "carried straight on across the channel and across EMERILLON'S bow in an easterly direction."

On cross examination the witness stated that at the point of contact he was slightly to his side of the channel; that EURYMEDON had initially gone to the west; that when "he appeared to be trying to come in here . . . I gave him the first five to warn him away. But he continued on. . . . He was trying to come this way." "Q. To the north of B2 and then to starboard; is that right? A. Yes." He testified that he had been conning at the center window; that he ordered the third officer to sound the first danger signal; that he walked over and sounded the second one himself while the officer was telegraphing full astern and the helmsman was putting the helm over; that he ordered the first danger signal three or four minutes before the collision, when EURYMEDON was "pretty close to a mile . . . on the port bow," her green light showing; that the second danger signal was about two minutes before the collision when she was "close to half a mile . . . coming ahead just fine on my port"; that her range lights were open; that her course was roughly easterly, speed about 12 knots; that the only signal he heard from her was a 2-blast signal between his two danger signals; that he did not hear a second 2-blast.

EMERILLON'S third officer Wilkins testified by deposition on May 13, 1970. Pertinent portions of his testimony will be referred to later.

Discussion—The Issue

Appellant makes an extensive argument to the effect that EURYMEDON was not the burdened vessel, initiating with the circumstance that as she originally approached the EM buoy EMERILLON was on her port hand. Rule 19, 33 U.S.C. § 1081. There are too many reasons why EURYMEDON was the burdened vessel for us to pause over this. However, we hold to the view, irrespective of which is the privileged vessel, that there is a burden of...