Coyle Lines v. United States, 13777.
| Decision Date | 15 May 1952 |
| Docket Number | No. 13777.,13777. |
| Citation | 195 F.2d 737 |
| Parties | COYLE LINES, Inc. v. UNITED STATES. UNITED STATES v. COYLE LINES, Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Selim B. Lemle, New Orleans, La., for appellant.
Joseph V. Ferguson, II, Dist. Counsel, U. S. Maritime Administration, Lansing L. Mitchell, Asst. U. S. Atty., New Orleans, La., for appellee.
Before SIBLEY, RUSSELL, and RIVES, Circuit Judges.
Both parties have appealed from a final decree of the district court finding mutual fault on the part of the United States, owner of the Douglas Victory, and Coyle Lines, owner of the barge, D.B. 1845, for a collision which occurred between the vessels in Mobile Harbor on May 11th, 1947, at about 8:00 p. m. The decree awarded Coyle Lines a judgment against the United States in the sum of $10,830.67, together with interest and costs. The opinion of the district court is reported in 96 F.Supp. 821 et seq.
The night was dark and clear. A light southerly wind was blowing up the Mobile river which at this point runs due south and a strong ebb tide was flowing down the river.
The wharves of Alabama State Docks are constructed on the west bank of the river and the piers on which the wharves had been built run in a northwest-southeast direction. Pier A is the lower or more southernmost and Pier B is just north of Pier A. A dredged slip several hundred feet in width separates Pier A from Pier B.
Two barges, the D.B. 1845, here involved, and a Sherman barge were moored to the east or river end of Pier A, the D. B. 1845 being the lower or downstream barge and the Sherman barge being the upstream barge. Both barges were unlighted. A tug, the Mary E, was moored outboard of the Sherman barge.
The Douglas Victory had been moored to the south side of Pier B in the dredged slip between Pier A and Pier B. It was a seagoing merchant vessel of the United States, an old Victory ship 439 feet long.
When the Douglas Victory departed south Pier B on the evening of May 11th, 1947, two vessels were at anchor on the east side of the Mobile river opposite the slip separating Pier A from Pier B. This was not an unusual circumstance and it appears that there was about 800 feet of navigable water between the anchored vessels and the river end of Pier A and Pier B.
The description of the accident as contained in the rough bridge log book of the Douglas Victory is here quoted not with the intention of approving all that is said in that description but because it helps to a clear understanding of the case:
The district judge found, and with this finding we agree, that the D.B. 1845 at the time of the collision was violating the provisions of Section 332.18 of the Pilot Rules for Western Rivers in that she was moored in or near the channel of the Mobile river after dark with no lights burning. The presumption follows that such violation of a statutory rule, if not the sole cause, was at least a contributory cause of the collision, and the burden rests upon Coyle Lines of showing not merely that such fault might not have been one of the causes, or that it probably was not, but that it could not have been. It was under that rule, established in the case of The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148, that the district court held that the failure of the D.B. 1845 to carry a light was at least a contributing cause of the collision and found mutual fault. The United States insists that the collision was caused by the sole fault of the D.B. 1845.
The Stand-By Act, 33 U.S.C.A. § 367, provides that a vessel failing to stand by after a collision shall "in the absence of proof to the contrary" be deemed to have caused the collision. The Douglas Victory, after maneuvering herself free of the barge, did not stop to identify herself or to ascertain what damage the barge had sustained, or to offer any assistance, nor did she send her attending tug to the assistance of the barge. The Douglas Victory proceeded on down the Mobile river toward the Gulf of Mexico en route to New Orleans. In addition, the district court found, and with this finding we agree, that "the evidence taken as a whole shows that the S. S. Douglas Victory was being maneuvered in an unseamanlike manner".
In this case we are confronted with conflicting presumptions because of the statutory fault of the D.B.1845 in failing to carry a light as required by the Pilot Rules of Western Rivers, and because of the violation by the Douglas Victory of the Stand-By Act. Coyle Lines claims the benefit against the United States of still further presumptions, viz.: that the moving vessel, the Douglas Victory, is presumed to be at fault, The Victor, 5 Cir., 153 F.2d 200; and that the failure of the United States to produce the Douglas Victory's deck bell book and to produce witnesses with knowledge of the collision raises the inference that their production would disclose information unfavorable to the Government. All of these presumptions, in the final analysis, are mere aids to the court in getting at the right of the matter, and their relative weight must depend upon the circumstances of the particular case.
"On an appeal in admiralty the hearing is de novo, and it is our duty to review the whole case and make such decree as ought to have been made." Pavlis v. Jackson, 5 Cir., 131 F.2d 362, 363. In this case all of the testimony of the witnesses to the collision was taken by deposition and no opportunity was afforded the district court to see and hear those witnesses. We have no reason therefore to give weight to the district court's findings of fact. Waterman S. S. Corp. v. U. S. S. R. & M. Co., 5 Cir., 155 F.2d 687, 690; The Lapwing, 5 Cir., 150 F.2d 214, 215. A careful consideration of the record leaves us with the conviction that the sole fault for the collision rests on the Douglas Victory.
H. V. Taylor and W. P. Long at the time of the collision were employees of Alabama State Docks. Taylor was Chief of the Police Department of the Docks and had driven up in his automobile just a few minutes before the collision occurred. He testified that there were lights burning across the face of the warehouse on the end of the Pier A, that he could see the barges, and that the light from his automobile was shining on the barges; that the barge which was struck was standing above the deck of the wharf, that the tugboat outside of the barges was lit up, and that from where he was sitting there was sufficient light for him to see the barge which was struck. Long testified that prior to the collision he turned on the lights on the warehouse on the face of the wharf and that there were five lights burning, two in a group on the north end, one a 200 watt and the other a 150 watt, and three in a group on the other end which were either 100 or 150 watt lights. All of the lights were on the river end of the warehouse. They carried shade reflectors which the photographs show were not turned directly downward but would cast part of the beam of the lights beyond the river end of the pier. However, it must be borne in mind that the crew of the Douglas Victory on the bow of the vessel were approximately 30 feet above the water and that their perspective was not at all the same as that of the witnesses who were on the pier.
The Government called only three witnesses on the actual happening of the collision, all officers of the Douglas Victory: her master Captain Ernest E. Green, her second officer, Donald R. McMunn, and her pilot, Captain N. Borden. Captain Borden testified that the Douglas Victory was scheduled to sail at 7:31 on this Sunday evening, and that a short while before that time he went out to the end of Pier B where the Douglas Victory was lying for the purpose of looking at the vessel's draft and he saw a small tug lighted lying at the north or river end of Pier A and that was the only thing he saw there. McMunn, the second mate, testified that as the Douglas Victory cleared the slip he saw the tug and a barge astern of the tug. The master, Captain Green, testified that he saw the tug but that the first he knew of either barge was when the second mate, McMunn, sang out first that he saw one barge and then that he saw the other.
The pilot, Captain Borden, went on to testify:
that while they were maneuvering, he...
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