Dumatrait v. Tug Nick V, Admiralty No. 3033.

• Decision Date: 18 December 1962
• Docket Number: Admiralty No. 3033.
• Citation: 212 F. Supp. 600
• Parties: Henry DUMATRAIT v. TUG NICK V, Her Engines, Furniture, Apparel, etc., Twenty Grand Oil Field Service, Inc., Twenty Grand Oil Company, Inc., and BARGE T.G. 109, Her Engines, Furniture, Apparel, etc.
• Court: U.S. District Court — Eastern District of Louisiana

212 F. Supp. 600

Henry DUMATRAIT v. TUG NICK V, Her Engines, Furniture, Apparel, etc., Twenty Grand Oil Field Service, Inc., Twenty Grand Oil Company, Inc., and BARGE T.G. 109, Her Engines, Furniture, Apparel, etc.

Admiralty No. 3033.

United States District Court E. D. Louisiana, New Orleans Division.

December 18, 1962.

J. Barbee Winston, New Orleans, La., for libellant.

Charles Kohlmeyer, Jr., and Wayne S. Woody, New Orleans, La., for respondents.

CHRISTENBERRY, Chief Judge.

Henry Dumatrait, as owner of the M/V CHAR SAN, and as assignee of the personal injury claim of his companion on the vessel, seeks to recover damages from respondents, the Pushboat NICK V and its tow, Barge TG-109. Proper claims having been filed by the owners of the vessels proceeded against and customary bonds in an amount suitable to libellant having been posted, the cases proceeded to trial to the Court for an interlocutory decree as to liability with all witnesses testifying in person. The Court having heard evidence and the arguments of proctors, and having taken time to consider the matters hereby makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

I.

The collision giving rise to this litigation occurred in the Atchafalaya River a short distance above the Intracoastal Canal. The M/V CHAR SAN is a steel hull cabin cruiser, 34 feet in length, 11 feet in width and powered by two 200 h. p. Chrysler engines. The NICK V is a steel hull push type vessel approximately 47 feet in length by 10½ feet in width. She is powered by a 165 h. p. diesel engine and is pilothouse controlled. The Barge TG-109 is a deck barge approximately 110 feet long by 30 feet in width.

II.

On a bright and clear afternoon in July, 1955, the NICK V was made up to the stern of and pushing the Barge TG-109 down a straight stretch of the Atchafalata River south of Morgan City, approximately 200 feet off the right descending bank. In the area of the collision, the Atchafalaya River is approximately 1200 to 1500 feet wide.

III.

The CHAR SAN, with Dumatrait at the controls and her only passenger, Muse, sleeping in a bunk below deck, was proceeding upriver at approximately 12 to 16 miles an hour.

A short time before entering the river, Dumatrait had moored the CHAR SAN alongside another cabin cruiser, the STELLA MARIS, and had been talking with an acquaintance who was the operator of that vessel, Dr. Crookshank. The two cruisers weighed anchor and started upriver toward Morgan City at approximately the same time. The STELLA MARIS, with Dr. Crookshank at the wheel, crossed the river and was proceeding upriver favoring the left descending bank, and the CHAR SAN with Dumatrait at the wheel, proceeded upriver about 50 feet off the right descending bank. There was ample space for the NICK V and her tow to pass between the two vessels, and likewise, there was ample space for the two cruisers to pass between the NICK V and the respective banks of the river which they were favoring, and if all vessels had held their courses there would have been no danger of collision. For some reason which Dumatrait was unable to explain, whether because he was not observing that which he should have seen, or because of a tendency on the part of the CHAR SAN to fall off to her starboard when one of her engines killed (which might have happened at this time), she suddenly and without warning cut across the bow of the NICK V and her tow and collided with Barge TG-109. The point of impact was on the port forward corner of the Barge TG-109 and the port quarter of the CHAR SAN.

IV.

I find that the CHAR SAN was traveling at a speed of approximately 12 to 16 miles an hour and that at such a speed the vessel tended to plane so that the change in trim and the raising of her bows blocked out the vision of Dumatrait, her operator, other than a side vision to his right. Under these circumstances, he could not see (without changing his position) in front of him or to his left. He was operating his cabin craft, therefore, with his vision completely blocked out insofar as the NICK V and her tow were concerned. I find this action on his part to constitute such gross negligence as to cause full blame for the collision to be visited on him.

V.

The Barge TG-109 had loaded aboard her two Halliburton trucks, the tops of which were higher than the eye level of the master of the NICK V as he was standing at the wheel of the tug. The two trucks, however, were loaded on each side of the barge so that there was a pathway between them approximately five to seven feet wide, and a clear view was afforded the master of the NICK V through the slot between the trucks. He could not, however, see over the tops of the trucks, so that his vision was to that extent impaired. I find, however, that this fact had no connection with the collision for the reasons hereinafter set forth.

VI.

The master of the NICK V had not posted a lookout on the head of the tow, but two Halliburton employees were working on the deck of the barge and were generally in the same position as a lookout would have been had the lookout been posted. One testified that he saw the CHAR SAN from the time that it entered the Atchafalaya River and kept it in view the entire time until the collision. The other employee saw the CHAR SAN but paid no attention to it. The testimony of the Halliburton employee who had the CHAR SAN under observation was to the effect that the CHAR SAN swerved sharply to its right when only a few feet off the bow of the TG-109,...