Federal Insurance Company v. SS ROYALTON, 14745

• Decision Date: 25 January 1963
• Docket Number: 14760.,No. 14745,14745
• Citation: 312 F.2d 671
• Parties: FEDERAL INSURANCE COMPANY, et al., Libelants-Appellants, v. S.S. ROYALTON, her engines, etc., and Scott Misener Steamships, Ltd., Respondents-Appellees. Christoforos MANOPOULOS et al., Libelants-Appellants, v. S.S. ROYALTON, her engines, etc., and Scott Misener Steamships, Ltd., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

312 F.2d 671 (1963)

FEDERAL INSURANCE COMPANY, et al., Libelants-Appellants, v. S.S. ROYALTON, her engines, etc., and Scott Misener Steamships, Ltd., Respondents-Appellees.

Christoforos MANOPOULOS et al., Libelants-Appellants, v. S.S. ROYALTON, her engines, etc., and Scott Misener Steamships, Ltd., Respondents-Appellees.

Nos. 14745, 14760.

United States Court of Appeals Sixth Circuit.

January 25, 1963.

Donald M. Waesche, Jr., New York City (Dickinson, Wright, McKean & Cudlip, Detroit, Mich., Bigham, Englar, Jones & Houston, New York City, on the brief; Fred W. Freeman, Detroit, Mich., and Donald M. Waesche, Jr., New York City, of counsel), for appellants.

Lucian Y. Ray, Cleveland, Ohio (McCreary, Hinslea & Ray, Cleveland, Ohio, McMillan, Binch, Stuart, Berry, Dunn, Corrigan & Howland, Toronto, Canada, on the brief; Lucian Y. Ray, Cleveland, Ohio, and F. O. Gerity, Toronto, Canada, of counsel), for appellees.

Before MILLER and O'SULLIVAN, Circuit Judges, and WILLIAM E. MILLER, District Judge.

WILLIAM E. MILLER, District Judge.

On June 25, 1959 a collision occurred in a dense fog on Lake Huron between the S. S. "Monrovia," registered in Liberia, and the S. S. "Royalton," a Canadian vessel. The Monrovia sank, her cargoes were lost, and a number of her seamen were injured. The cargo owners and underwriters, and the injured seamen, brought libels against the Royalton and her owner, Scott Misener Steamships, Limited, to recover for the lost cargoes and for personal injuries. The District Court, finding that there were no faults in the navigation and operation of the Royalton which contributed to the collision, dismissed the libels. The only question presented on the libelants' appeal is whether there were faults on the part of the Royalton which contributed to the collision. Material facts on this issue are as follows:

The Dominion Marine Association of Canada and the United States Lake Carriers Association have prescribed, for vessels enrolled in the Associations, a separation of routes for upbound and downbound traffic on Lake Huron. The prescribed routes are separated by a safety zone 7 miles in width, with upbound traffic keeping to the west and downbound traffic keeping to the east of the safety zone. These routes are shown on Lake charts.

The Monrovia was a Liberian empire type Liberty vessel 447 feet, 7 inches in length, and 56 feet, 2 inches in width. On the day of the collision, she was proceeding up Lake Huron during her maiden Great Lakes voyage, laden with a cargo of steel. She was not equipped with radar but had a ship-to-ship radio telephone. Her officers and crew were Greek citizens. Apparently only her master and radio operator understood or spoke English. She had taken on a Canadian pilot at Port Weller, Ontario, but dropped him at Lake Huron Lightship at the lower end of the Lake. The Canadian pilot, prior to his departure, advised the master of the Monrovia to use his radio in case of "thick weather," and to follow the up and down recommended courses shown on the Lake charts.

The Royalton is a Great Lakes bulk carrier 536.5 feet in length, 58.25 feet in width, and 31.2 feet in depth. Her net tonnage is 5,194 tons. She was equipped with radar and ship-to-ship radio telephone. On the day of the collision, she was proceeding down Lake Huron, en route from Duluth, Minnesota, to Montreal, Canada, laden with a cargo of grain. At approximately 6:15 a. m., she took her departure from Detour Light at the head of the Lake and set her course for Middle Island off the northeast coast of Michigan. When she was abeam of Middle Island, her course was set at 161 degrees true, and she proceeded down the Lake toward Sarnia at the lower end of the lake. At about 11:45 a. m., after encountering limited visibility, her engine room was put on "standby" and fog signals were sounded. At about 12:45 p. m., she heard a security call from the S. S. "Victorious," to the effect that that vessel had just had a "narrow scrape" with a salt water vessel on the downbound course.

At 1:05 p. m., when the Royalton was abeam of Thunder Bay Island Light, her mate determined from radar observations that she was 9.6 miles east of the Light. This position was 1.9 miles inside the safety zone. Her course was then altered 2 degrees to port, or left.

At 1:20 p. m., a pip, or target, appeared on the Royalton's radarscope. The master and mate determined that the target was 2 degrees on the Royalton's starboard bow and approximately 13 miles away. A 5-degree alteration to port was then made and the radarscope was kept under constant observation.

At about 1:32 p. m., when the target's distance had closed to about 10 miles and its bearing had widened to 12 degrees on the Royalton's starboard bow, her course was again altered 5 degrees to port.

At about 1:40 p. m., when the target was approximately 5 miles distant and its bearing had further widened to 30 degrees, the Royalton heard a fog signal 30-35 degrees on her starboard bow. A security call on her radio to the other ship, later identified as the Monrovia, was unanswered. Her course was again altered to port, this time by 12 degrees, and her engines reduced to "slow speed." A two-blast signal was sounded by the Royalton to indicate a starboard-to-starboard passing and fog signals were placed on automatic. Not receiving a reply to the passing signal, her master again attempted to reach the Monrovia on the radio, but without success. A second two-blast passing signal was sounded by the Royalton a few minutes after the first. This time the Monrovia answered with one blast, which, under the existing conditions, indicated a crossing rather than a passing. The Royalton's engines were then ordered full speed astern and danger signals were sounded. About 4 minutes later her engines were ordered double full astern. According to her deck log, the orders for "full speed astern" and "double full astern" were given at 1:50 p. m., and 1:54 p. m., respectively. At about the time of the order for "double full astern," the Monrovia suddenly executed a radical alteration in course to her right. The Royalton's second mate, who was in charge of the radar, saw the bearing of the Monrovia rapidly closing, and informed the master that "he is heading right on us," or words to that effect.¹ The Monrovia then emerged from the fog about 45 degrees on the Royalton's starboard bow. She was swinging on a hard right rudder at what appeared to be full speed ahead. The ships collided at an angle of 90 degrees, the time being recorded in the Royalton's deck log as 1:57 p. m. The point of contact was the stem of the Royalton and the port side of the Monrovia between the number 1 and number 2 holds. At the time of contact, the Royalton was either stopped or was making some sternway and her bow was canting to the right from the effects of her reversed propeller. The place of the collision was .9 mile west of the downbound course and 6.1 miles east of the upbound course.

While the parties are in sharp disagreement in their analyses of the evidence concerning times, distances, and the speed of the Royalton, we believe that the facts set out above, which are, with some implementations, substantially the facts as found by the District Court, are established by a preponderance of the evidence. Furthermore, we are governed by the well established rule that in an admiralty case in which the testimony is contradictory and the exact facts difficult to ascertain, the findings of the District Judge who saw and heard the witnesses will not be set aside unless clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; West Tennessee Limestone Co. v. Federal Barge Lines, 288 F.2d 663 (C.A.6, 1961); City of Cleveland v. Bridget McIver et al., 109 F.2d 69, 71 (C.A.6, 1940); The William A. Paine, 39 F.2d 586, 588 (C. A.6, 1930).

Although we accept the District Court's findings of fact, we are nevertheless of the opinion that the Royalton was guilty on the facts found by the District Court, as implemented herein, of two contributory faults: first, in failing to utilize all available means to reduce speed to bare steerageway at once when, at 1:40 p. m., she heard the Monrovia's fog whistle 30-35 degrees on her starboard bow; and second, in failing to reverse engines when her first two-blast passing signal was not answered.

Rule 15 of the Rules of the Road for the Great Lakes, 33 U.S.C. § 272, provides:

"Every vessel shall, in thick weather, by reason of fog, mist, falling snow, heavy rain storms, or other causes, go at moderate speed. A steam vessel hearing, apparently not more than four points from right ahead, the fog signal of another vessel shall at once reduce her speed to bar steerageway, and navigate with caution until the vessels shall have passed each other." (Emphasis added.)

The District Court held that since the Royalton, upon hearing the Monrovia's fog signal, took action at once by checking engines to slow speed ahead while the vessels were still 5 miles apart, Rule 15 was not violated. We believe this was error.

Under normal conditions, the reduction in engine revolutions to slow speed ahead and the 12-degree alteration to port might have satisfied minimum requirements of the statutory Rules of the Road and dictates of good...