Diesel Tanker FA Verdon, Inc. v. Stakeboat No. 2
| Decision Date | 19 January 1965 |
| Docket Number | Docket 28549.,No. 220,220 |
| Parties | DIESEL TANKER F. A. VERDON, INC., as owner of the tank vessel F. A. Verdon, Libellant-Appellant, v. STAKEBOAT NO. 2 and Bronx Towing Line, Inc., Claimant-Respondent-Appellee. BRONX TOWING LINE, INC., as owner of the Stakeboat No. 2, Libellant-Appellee, v. TANK VESSEL F. A. VERDON and Diesel Tanker F. A. Verdon, Inc., Claimant-Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen J. Buckley, New York City (Christopher E. Heckman, Foley & Martin, New York City, on the brief), for appellant.
Herbert B. Halberg, New York City (Maurice A. Krisel and Krisel & Beck, New York City, on the brief), for appellee.
Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.*
These two appeals briefed and argued together present a problem of applying the same principles of admiralty law to opposing sides of the same controversy. The owners of two ships each brought a libel against the other and the two actions were consolidated for trial below. The owners of the tanker F. A. Verdon and the Stakeboat No. 2 each contended that the other's vessel was solely responsible for a collision which occurred in Red Hook Flats, New York Harbor, during the night of June 15, 1960.
The District Judge concluded that the collision was caused by negligent operation of the Verdon. He was unable to determine whether or not the Stakeboat No. 2 was unlighted, as the Verdon claimed. He dismissed the Verdon's libel and awarded Stakeboat No. 2 full damages against her. We affirm the dismissal of the Verdon's libel and the conclusion that she was at fault and thus liable to Stakeboat No. 2, but disagree with the allowance of full damages to the latter.
The significant facts as found by the court below are not complicated. A collision took place in a Federal Anchorage in Red Hook Flats between anchored Stakeboat No. 2 and the tanker F. A. Verdon on the night of June 15, 1960. The collision occurred at 11:35 p. m. At that time, no one was aboard the stakeboat.
Visibility was limited by haze, intermittent fog and smoke; but navigation and shore lights, a mile and a half away, could readily be seen. The Verdon's captain and the deck hand, an able seaman, were in the wheelhouse. About 3 or 4 minutes before the collision, the wheel had been turned over to the deck hand with orders to hold the ship "steady as she goes." Meanwhile, the captain was watching for traffic in the main ship channel, off his port side. There was no lookout on the tanker's bow. The Verdon is a tank vessel 204.5 feet long with her wheelhouse located approximately 180 feet back from her bow. The Verdon was in a light condition and proceeding at a full speed of 8 to 9 knots, well in excess of the permissible speed of 6 knots. This raised the bow higher above the surface of the water than the stern and produced a "blind area" for 30 or 40 yards ahead of the bow for one in the wheelhouse. The radar was on, but the captain did not look at it. The stakeboat, 92 feet in length and constructed of steel, would have made a good radar target. Neither the captain nor the deck hand saw the stakeboat until after the collision.
One of the strongly contested factual issues was whether the stakeboat carried forward a white light visible all around the horizon at the distance of at least one mile as she was required to do. 33 U.S.C. § 180. After a careful consideration of conflicting oral testimony in which credibility was, in some measure, a factor for the trier to weigh, and of circumstantial evidence from which the reasonableness of inferences to be drawn were also within the power of the trial judge to resolve, he found, "I cannot affirmatively find that, on the night of the collision, the white light was burning." On the other hand, he stated, "I am not persuaded that the white light was not burning." To leave no room for doubt as to what he found on this issue, he continued, "I freely confess my inability to make a definite finding one way, or the other."
When the owner of the Verdon brought its case into court it assumed the affirmative. With respect to the factual issue of whether the stakeboat was lighted, the burden of proof rested upon it. The general principle was stated in Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 112, 113, 62 S.Ct. 156, 161, 162, 86 L.Ed. 89 (1941): "Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of facts is unable to resolve * * * `If the determination of this question is left in doubt, that doubt must be resolved against' the shipowner." Since the Verdon did not carry the burden of establishing fault on the part of the stakeboat, her libel was properly dismissed. "Where the fault is wholly on one side, the party in fault must bear his own loss, and compensate the other party, if such party have sustained any damage." The Clara, 102 U.S. 200, 202, 26 L.Ed. 145 (1880).
A somewhat more troublesome question is presented on the appeal from the judgment awarding full damages to the owner of the stakeboat. The court's conclusions and findings that the tanker was grossly at fault in proceeding through the anchorage in excess of the speed limit with no lookout forward and no one paying any attention to the radar were amply supported.
But its fault alone was not sufficient to support the award of full damages to the stakeboat. "In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant." The Clara, supra, 102 U.S. at 203. Bruce v. Debuse Barras Co., 169 F.Supp. 90, 92 (E.D. La.1958).
Although the negligent navigation of the Verdon was clearly established, Stakeboat No. 2 did not affirmatively satisfy its burden of persuading the trier that it was lighted. Article 11 of the Inland Rules of the Road, 33 U.S.C. § 180, in force at the time of the collision, reads in part as follows:1
"A vessel under one hundred and fifty feet in length when at anchor shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile:"
Despite the stakeboat's failure to prove its compliance with the duty to display a light, the opinion below, after holding that there was no excuse for the Verdon's faults, continued: ...
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