O/Y FINLAYSON-FORSSA A/B v. Pan-Atlantic SS Corp.

• Decision Date: 01 August 1958
• Docket Number: No. 17042.,17042.
• Citation: 259 F.2d 11
• Parties: O/Y FINLAYSON-FORSSA A/B, Finska Sjoforsakrings Aktiebolaget et al., Appellants, v. PAN ATLANTIC STEAMSHIP CORPORATION, claimant of THE S.S. ANTINOUS, and Det Forenede Dampskibselskab A/S, claimant of THE M/V ARGENTINA, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

259 F.2d 11 (1958)

O/Y FINLAYSON-FORSSA A/B, Finska Sjoforsakrings Aktiebolaget et al., Appellants, v. PAN ATLANTIC STEAMSHIP CORPORATION, claimant of THE S.S. ANTINOUS, and Det Forenede Dampskibselskab A/S, claimant of THE M/V ARGENTINA, Appellees.

No. 17042.

United States Court of Appeals Fifth Circuit.

August 1, 1958.

Henry J. Read, New Orleans, La., Bigham, Englar, Jones & Houston, Richard F. Shaw, Donald Waesche, Jr., New York City, for appellants.

John W. Sims, New Orleans, La., T. K. Jackson, Jr., Mobile, Ala., George W. Healy, III, New Orleans, for Pan-Atlantic S.S. Corp.

Jas. Hy. Bruns, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., Armbrecht, Jackson, McConnell & DeMouy, Mobile, Ala., of counsel.

Joseph M. Rault, Alfred M. Farrell, Jr., New Orleans, La., for Det Forenede, Dampskibselskab A/S. Terriberry, Rault, Carroll, Martinez & Yancey, New Orleans, La., of counsel.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Cargo on the Danish M. V. Argentina sued the American S.S. Antinous, the non-carrying vessel, for cargo losses sustained in the collision between the two vessels in the Mississippi River at about 0200 hours on April 10, 1952. After an extended trial and full arguments, the Court, on findings adopting almost altogether those physically prepared by the prevailing party in accordance with the local admiralty rules, held the carrying vessel solely at fault, the non-carrying S.S. Antinous not at fault, and accordingly dismissed Cargo's libel. Cargo, the only party both aggrieved and free to do something about it, alone appeals from this decree. The Antinous is satisfied, and if the Argentina is unhappy about the implications, not the precise holding which likewise frees her of indirect cargo liability, she has foreclosed her right to complain and makes no effort to do so here.

Cargo, with the irrepressible optimism, Higgins Inc., v. Hale, 5 Cir., 251 F.2d 91, 1958 A.M.C. 646, of their proctors who remember another day, seeks complete review and revision of nearly all of the critical fact findings, generally indifferent to the requirement of the new dispensation, McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999, that nowadays we can only reverse if the findings are clearly erroneous¹ under the concept of F.R.Civ.P. 52 (a), 28 U.S.C.A. judicially engrafted onto the admiralty procedure. We resist these importunities for in our disposition of the case we may accept the fact findings although we confess that were we unable to place our decision on the one principal point we would be hard put to accept several of them. Here and there, as we point out, the most favorable construction of the evidence considered most favorably to the decree nevertheless requires that we read the findings of estimates on speed, distance and time on the minimum, not the maximum, side.

Collision occurred at 0200 hours in a dense fog about one-half mile above Scarsdale Light and within 150 feet off of the East (right ascending) bank. The S.S. Antinous, upbound for New Orleans, partially loaded, was a C — 2 vessel, 449 feet in length with 6,000 h.p. steam turbines and whose normal maneuvering speed was 14.2 KTW² at full ahead and 7.1 KTW at half ahead. The current of the river was running downstream at not less than 4 knots. The M.V. Argentina downbound from New Orleans substantially but not fully loaded and trimmed approximately two feet by the head, was a Danish cargo motor ship 350 feet in length with 3200 h.p. diesel motor and whose normal maneuvering speed was 13.5 KTW at full ahead, 9.5 KTW at half and 4.5 KTW at slow ahead. She was equipped with radar.

Scarsdale Light is about 2½ miles below Shingle Point at English Turn Bend. Coming downstream this is a sharp left bend. As a downbound vessel straightens up below English Turn Bend, she is on a course near 180 degrees. At a point about ¾ mile above Scarsdale Light the River bends slightly to the right (west) so that its axis is about 215° for a distance of over 2 miles which includes the area in which the significant maneuvers of the S.S. Antinous commenced. While the angle of convergence was slight, it may well have been the thing which set the stage for collision. As the M.V. Argentina was steering a compass course approximately 180° T and the S.S. Antinous was threading the stream parallel to the east bank, this could produce on the Argentina's radar screen the picture, if not carefully read, of a vessel approaching well off the Argentina's starboard bow. That is how the Argentina treated it, though mistakenly, for had collision not occurred, she would have shortly run aground on the east bank.

At Collision Time³ minus 18 minutes (C — 18) the S.S. Antinous, when in the vicinity of the Seatrain loading docks and after running for some time at full ahead, reduced her engine speed to half ahead on account of fog closing in. She was then near the East (right ascending) bank and the Pilot,⁴ after consulting with the Master who had been called to the bridge because of the fog, decided that the vessel should anchor but that it would be imprudent to do so until the vessel reached an anchorage just below Shingle Point approximately two miles above Scarsdale Light. She continued on at this speed and course blowing customary fog signals.

The first she knew of the downbound Argentina was at C — 2 when a 2-blast signal, interpreted as a proposal for a starboard to starboard passage, was heard off the port bow, although the Argentina could not then be seen. All the Antinous' witnesses swore, although her logs do not bear them out, that she then immediately replied with a 4-blast alarm whistle and stopped her engines. Shortly thereafter and at C — 1 she heard whistle alarms from the Argentina again followed by a 2-blast signal. At this moment the Argentina came into view for the first time about two ship lengths away. To this the Antinous responded with the alarm, put her engines on full astern (emergency) and blew the 3-blast reversing signal. Within the minute collision occurred. The angle of collision was about 70° with respect to the center line of the Antinous. The stem and bow of the Antinous penetrated 9 feet into the starboard side of the Argentina from below the waterline to weather deck at a point about 70 feet abaft her stem. Not surprisingly, the Antinous claims she was making sternway so that the collision force came entirely from the forward momentum of the Argentina.

Meanwhile, back on the Argentina, things were occurring. At C — 16½ her engines were put on full ahead. At C — 12 she saw on her radar for the first time an approaching vessel (this turned out to be the Antinous) bearing dead ahead or slightly off her starboard bow. At that time the Argentina was shaping up from 200-190° to her expected course of 180°. At C — 10 fog became heavy and she reduced engine speed to half ahead. However, the bearing of the approaching Antinous had now changed to 2 points off the Argentina's starboard bow. This radar picture was misinterpreted and led the Argentina to assume that a starboard to starboard passage could be made. As fog became more dense, speed was reduced to slow ahead at C — 7. At C — 4½ when the Argentina heard, but ignored, a fog signal from the Antinous, her speed was increased to half ahead and shortly thereafter the masthead lights (but not the side lights) of the Antinous were observed bearing 20 to 25° off the starboard bow. About this time the Argentina blew a 2-blast⁵ passing signal, not heard on the Antinous, and her course was probably altered a little more to the east by an easy left rudder order. Shortly before C — 2 the Argentina again blew a 2-blast signal and on hearing the danger alarm from the Antinous at C — 1½ the engines of the Argentina were put on full astern and held there until the collision moment.

On this the Court roundly condemned⁶ the Argentina on several scores, all of which we accept as none are here challenged or open to review. At the same time the Antinous was exonerated of the several charges of fault⁷ still asserted by Cargo.

Oddly enough in making subsidiary fact findings and these fact-legal conclusions, the Court added to the Argentina's speed through the water the 4 knot current but deducted it from that of the Antinous. This made the Argentina's speed 17.5, 13.5, and 8.5 KTW at full, half and slow ahead in contrast to the Antinous' corrected speed of 10.2 at full ahead and 3.1 at half ahead. It was this latter speed of 3.1 KOG which the Court found moderate.

There are several things quite unique about this case and the successful development of it by the Antinous. This includes the rare fact that the Antinous, the prevailing party, succeeded in the face of solemn log entries which either condemn⁸ her if accepted or cast considerable doubt on the integrity of her story if rejected on the basis of the explanation offered. Indeed, the rejection of the log entries has implications even more disturbing than acceptance of their truth, as damaging as that would be. For the story was that the Mate on watch, unable to record bridge bell orders because he dropped his flashlight, made up the bell book record⁹ an hour later from his estimate¹⁰ of the time of the orders and, based upon these inaccuracies made up, still another hour later, the deck log, note 8, supra. He swore that he knew the deck log entry, note 8, supra, was wrong, and the Pilot-Chief Officer and Master, each of whom had subscribed to the log some hours thereafter, likewise acknowledged that at the time the log was tendered to the United States Coast Guard Investigating Officers later that very day, it was known to be wrong. Accepting the Master's explanation as to the source of the errors (dropping the flashlight) such subsequent action hardly squares with our notions of the importance of the vessel's logs or the necessity that they speak, or at least are thought...