CITIES SERVICE OIL COMPANY v. M/S MELVIN H. BAKER, 16366 and 16367.

• Decision Date: 26 October 1967
• Docket Number: No. 16366 and 16367.,16366 and 16367.
• Parties: CITIES SERVICE OIL COMPANY, Appellee in No. 16366, v. M/S MELVIN H. BAKER, its boilers, engines, equipment, etc. SEAWAYS SHIPPING COMPANY v. S/T CITIES SERVICE MIAMI, her engines, boilers, apparel, etc., and the Cities Service Oil Company, Appellee in No. 16367. Seaways Shipping Company, Owner of the M/S Melvin H. Baker, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

384 F.2d 911 (1967)

CITIES SERVICE OIL COMPANY, Appellee in No. 16366, v. M/S MELVIN H. BAKER, its boilers, engines, equipment, etc.

SEAWAYS SHIPPING COMPANY v. S/T CITIES SERVICE MIAMI, her engines, boilers, apparel, etc., and the Cities Service Oil Company, Appellee in No. 16367.

Seaways Shipping Company, Owner of the M/S Melvin H. Baker, Appellant.

Nos. 16366 and 16367.

United States Court of Appeals Third Circuit.

Argued September 28, 1967.

Decided October 26, 1967.

John R. Sheneman, Zock, Petrie, Sheneman & Reid, New York City, (Benjamin F. Stahl, Jr., Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., James D. Hanlon, New York City, on the brief) for appellant.

Eugene R. Lippman, Krusen, Evans & Byrne, Philadelphia, Pa., (Hill, Betts, Yamoaka, Freehill & Longcope, by Eli Ellis, New York City, on the brief) for appellee.

Before McLAUGHLIN, HASTIE, and FORMAN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

These appeals are from the judgment of the United States District Court for the Eastern District of Pennsylvania declaring Seaways Shipping Company, the appellant, owner of the M/S Melvin H. Baker, solely liable for the collision between that ship and the S/T Cities Service Miami, owned by the appellee, Cities Service Oil Company.¹

The collision occurred in the early morning of November 16, 1961, in the Delaware River on a narrow channel of about 800 feet in width known as "Little Tinicum Island Range" under conditions of dense fog. During the trial the principal issue was: "which ship was in its proper lane at and immediately prior to the time of the collision — thus which ship veered into the wrong lane and thereby caused the accident?" The District Court concluded that the Baker crossed into the wrong side of the channel when the vessels were not more than a half mile apart and thus the collision could not be avoided by the Miami.²

These appeals do not dispute the District Court's holding that the Baker was at fault, but rather challenge the exoneration from liability of the Miami. In particular, the appellant argues that the District Court erred in its conclusion that the Miami at all times complied with Article 16 of the Inland Rules of the Road, 33 U.S.C. § 192, which requires that a vessel in fog must "go at a moderate speed."³

The concept of "moderate speed" is not rigid. Most cases, however, seem to require a vessel in dense fog to reduce its speed to the lowest point consistent with good steerageway. See, e. g., The Martello, 153 U.S. 64, 14 S.Ct. 723, 38 L.Ed. 637 (1894). In The Virginia and Joan, 13 F.Supp. 419, 421 (D.Mass.), aff'd, 86 F.2d 259 (1 Cir. 1936), the court stated:

"A moderate speed means a speed slow enough to enable the vessel to stop upon sighting an approaching ship, supposing the latter also is going at a moderate speed, except that the vessel may maintain sufficient speed to enable her to remain under command."

The District Court, after considering all of the voluminous testimony conclusively found that "the Miami proceeded at a rate of speed which permitted it to stop within the limits of visibility at all times", and that when it entered the dense fog⁴ and visibility suddenly closed in, it "immediately reduced speed to Dead-Slow ahead — to bare steerageway." On these facts, the District Court concluded that the Miami complied with the rule of moderate speed "in every respect."

Appellant urges that the District Court erred in basing its holding that the Miami was going at moderate speed on cases⁵ which determined mutual fault upon speeds generally less than that of the Miami. The difference between the "circumstances and conditions" in the cases to which appellant refers and the case at bar repels the attack. Indeed, the selective use of the cases by the District Court is quite obvious.

The rule is abundantly clear that "in reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous." McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954); Knox v. United States Lines Co., 320 F.2d 247 (3 Cir. 1963); Pennsylvania R.R. Co. v. S.S.Marie Leonhardt, 320 F.2d 262 (3 Cir. 1963). After reviewing the entire record, we have concluded that the District Court had ample evidence on which to base its decision. Certainly, it can not be said that its judgment was clearly erroneous.

The appellant raises several other issues...