Daniels v. Trawler Sea-Rambler

• Decision Date: 19 August 1968
• Docket Number: Civ. A. No. 6426.
• Parties: Kenneth DANIELS, Plaintiff, v. TRAWLER SEA-RAMBLER, her engines, tackle, apparel, etc., in rem, and W. G. Saunders and John R. Lawson, as owners, in personam, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

294 F. Supp. 228

1970 AMC 1449

Kenneth DANIELS, Plaintiff, v. TRAWLER SEA-RAMBLER, her engines, tackle, apparel, etc., in rem, and W. G. Saunders and John R. Lawson, as owners, in personam, Defendants.

Civ. A. No. 6426.

United States District Court E. D. Virginia, Norfolk Division.

August 19, 1968.

Robert M. Hughes, III, Seawell, McCoy, Winston & Dalton, Norfolk, Va., for plaintiff.

R. Arthur Jett, Jr., Jett, Sykes & Berkley, Norfolk, Va., for defendants.

MEMORANDUM ORDER

KELLAM, District Judge.

Plaintiff, the owner of the Trawler HI-WAL, filed this action against the Trawler SEA-RAMBLER, and her owners, to recover damages in the amount of $40,000.00, alleged to have been sustained when the HI-WAL sank as a result of a collision between it and the SEA-RAMBLER, due to the alleged fault of defendants. Defendants answered and filed a counterclaim seeking $25,000.00 damages to the SEA-RAMBLER as a result of the collision aforesaid. Plaintiff answered the counterclaim and filed a plea of limitation of liability.

The two trawlers in question were returning to Norfolk from fishing operations in the New England waters. They were proceeding in the Atlantic Ocean along the East Coast line. The trawlers had been en route two days. Each trawler is about 110 feet long, with a beam of about 16 feet, propelled by caterpillar diesel engines. The wheelhouse on each was about midship. Each was a former Coast Guard sub-chaser, and carried a crew of three, who took turns in standing watch. W. G. Saunders was captain of the SEA-RAMBLER and his son, W. G. Saunders, Jr., was captain of the HI-WAL. As the trawlers left Newport Rhode Island, the SEA-RAMBLER fell in behind the HI-WAL because the SEA-RAMBLER was faster, the HI-WAL had had trouble with taking on water from leaking, the vessels wanted to stay together, and the HI-WAL had an automatic pilot. They proceeded down the coast at a rate of speed of about six miles per hour.

On the morning of October 21, 1967, at about 10:30 a. m., the trawlers had reached a point about 18 miles south of Ocean City, and 7 or 8 miles off the coast. Visibility was good, the sea a little rough with winds southwest (the direction in which they were headed) at between 25 to 30 miles per hour. The trawlers were proceeding with HI-WAL in the lead, SEA-RAMBLER about three boat lengths behind and about three boat lengths to the left (port). This was described as a proper formation for such trawlers. The captain of each trawler was on duty. Captain Saunders was at the wheel of the SEA-RAMBLER and his son on the HI-WAL. The controls, compass and whistle of each boat were in easy reach of the person conning the trawlers. The captains had just been in radio communication with each other. Each boat would vary its course by reason of the wave and wind action. Captain Saunders of the SEA-RAMBLER was standing at the wheel steering, watching the HI-WAL. He noticed the HI-WAL in a part turn to port, but presumed she would go back on course as she "always did." When he realized she was in fact turning and not going back on course, he turned the SEA-RAMBLER hard to starboard. He did not then reduce speed as he was running against the sea and needed the power to turn. When he realized he was not going to clear the HI-WAL, he put engines astern. He was then 50 to 100 feet from the HI-WAL. It was necessary to slow the engines before he could put them astern. This is done by air control, "Mash a button and wait for her to go in neutral and then mash the other button to go astern," then speed up the engines. When the engines were "full astern he was 25 to 50 feet from the HI-WAL. He struck the HI-WAL about 6 to 8 feet from the back end. No signal was given by the HI-WAL of the intended turn or the reason for it. At the time of striking the HI-WAL was in about a 90 degree turn, and was still swinging at the time of the impact. The HI-WAL "started taking on water fast." It sank in a few minutes. The SEA-RAMBLER picked up the three members of the crew and the Coast Guard was immediately notified.

Immediately before the collision Captain W. G. Saunders, Jr. was at the controls of the HI-WAL. It was operating on automatic pilot, "and all of a sudden the HI-WAL started turning to the left." "I figured * * * the boy had told me before that she had flew out of gear with him, you know, automatic pilot * * * I figured the same thing happened. And I jumped down there to turn the wheel to the right and re-engage the automatic pilot. When I started turning her to the right she didn't respond and by that time slam bang."

Three or four times before the accident on the trip down, "it would jump out of gear and go from automatic to manual." This would require the operator to bring the trawler back on course manually and re-engage the automatic pilot. It had happened before on the run down the coast with Captain Saunders, and at that time it took him two to three minutes to get her back on course.

Kenneth Daniels testified that he was familiar with the automatic pilot. He had had trouble with it while he was on board. It had jumped out of gear with him. When it jumped out of gear the HI-WAL had a tendency to turn to port. He had repaired it and replaced parts. A month before the collision in question he had work done on it. Wilson Wescott, one of the crew of the HI-WAL, testified he had trouble with the automatic pilot— with it jumping out of gear, and that in June and July of 1967, when Captain Saunders took over as captain, there was trouble with the automatic pilot; and at the end of the summer after it was serviced, they still had trouble with it jumping out of gear. Sometimes it would lock and you would have to "kick her out of gear." Captain Saunders of the SEA-RAMBLER did not have knowledge of any difficulty with the automatic pilot, until after the collision.

Plaintiff has conceded its fault and "that the collision resulted in part from the fault of the Trawler HI-WAL," but says SEA-RAMBLER was also at fault and negligent in—

(1) Failing to maintain any or a proper lookout;

(2) Failing to sound whistle signals;

(3) Following too close on HI-WAL.

Since fault on the part of HI-WAL is admitted, we need only concern ourselves with whether the SEA-RAMBLER was jointly at fault, and if not, whether plaintiff is entitled to invoke the limitation of liability benefits provided by 46 U.S.C. §§ 183-189. Each of the above matters will be dealt with separately.

LOOKOUT

At the time of the collision the master of the SEA-RAMBLER was in the wheelhouse conning the vessel. He was an experienced captain, and had been going to sea for 40 years, having served as master 25 to 30 years. At the time of the collision, his vessel was "handling perfectly," he had a good view, and could see the HI-WAL clearly. He was at the wheel "steering and of course watching him." He observed the HI-WAL in a part turn but presumed she would "come back on course" as she previously did. When he realized she was not going back on the course, he rolled his wheel to starboard to try to clear him. When he first observed the HI-WAL in a turn, she was 20 to 30 degrees from her course. The SEA-RAMBLER was then 2 to 2½ boat lengths away. There is not the slightest bit of evidence the master of the SEA-RAMBLER did not see the HI-WAL when she started her turn. Each boat would vary its course by wave and wind action. An additional lookout could not have seen anything more than the master saw. Since the wave and wind action varied the course of each boat, if some other person had been on the bow as a lookout, he would have only seen what the master saw. He would not have known there was difficulty with the steering of the HI-WAL, or that when she started the turn, that she was not going to quickly return to the course. What was said by Judge Bryan in the case of Osaka Shosen Kaisha, etc. v. Angelos, Leitch & Co., etc., 301 F.2d 59, 61 (4th Cir. 1962) is particularly applicable here:

Moreover, beyond dispute the navigating officers of Atlas held Elene in eye constantly from the time Atlas was at Fort Carroll, some half hour before collision. All that was fairly observable, they observed. A crewman solely devoted to lookout could not have accomplished more. Neither deck officers nor crew could anticipate irresponsible straying by Elene. Nothing foreshadowed her threat. Even reacting immediately, the tug had barely enough time or space to clear. Atlas surely had no opportunity to escape the jaws of the impending disaster born of Elene's wantonness. Even if a specially assigned lookout was obligatory, the evidence is "clear and convincing", we think, that his absence was not a contributing cause of the collision. Anthony v. International Paper Co., 289 F.2d 574 (4th Cir. 1961). That there was diligence of lookout is confirmed by the State pilot's detection of the menace of Elene at almost the same time as that of the tug deckhand, who was even nearer to her and in more imminent peril, "* * * The question of the sufficiency of the lookout in any instance is one of fact to be realistically resolved under the attendant circumstances, bearing in mind that the performance of lookout duty is an inexorable requirement of prudent navigation". Judge Soper in Anthony v. International Paper Co., supra 289 F.2d at 580.

Again, in Anthony v. International Paper Company, 289 F.2d 574, 580 (4th Cir. 1961), Judge Soper in speaking of the question of necessity of a lookout in addition to the person conning the vessel, and to decisions requiring such a lookout, said:

Examination of these decisions, however, reveals that these rules have been laid down with respect to vessels of considerable size whose navigators are usually occupied with the performance of various other exacting duties, and so it is generally held that an arbitrary rule cannot be applied to every case and that the question of the sufficiency of the lookout in any instance is one of fact to be realistically resolved

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