Gatewood v. Sanders, 5432

• Decision Date: 24 December 1945
• Docket Number: No. 5432,5433.,5432
• Citation: 152 F.2d 379
• Parties: GATEWOOD v. SANDERS et al. THE LILLIAN ANNE. THE FAIRWILL. THE SCOW NO. 72-H. R. C. HUFFMAN CONST. CO. v. SANDERS.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F.2d 379 (1945)

GATEWOOD v. SANDERS et al. THE LILLIAN ANNE. THE FAIRWILL. THE SCOW NO. 72-H. R. C. HUFFMAN CONST. CO. v. SANDERS.

Nos. 5432, 5433.

Circuit Court of Appeals, Fourth Circuit.

December 24, 1945.

Leon T. Seawell, of Norfolk, Va., for Eularia M. Gatewood, owner of the motor vessel Lillian Anne.

R. Arthur Jett, of Norfolk, Va., for R. C. Huffman Construction Co., owner of the scow No. 72-H.

Barron F. Black, of Norfolk, Va., (Vandeventer & Black and Baird, White & Lanning, all of Norfolk, Va., on the brief), for W. S. Sanders, owner of the motor tug Fairwill.

Before DOBIE, Circuit Judge, and CHESNUT and BARKSDALE, District Judges.

DOBIE, Circuit Judge.

These cases involved a libel in admiralty resulting from a collision in Norfolk harbor between the motor vessel "Lillian Anne" and the scow No. 72-H, which was being towed by the tug "Fairwill," lashed to the scow's starboard quarter. The District Court held the "Lillian Anne" to be solely at fault. From this decree the "Lillian Anne" has appealed, while the owner of the scow has appealed from that portion of the decree which absolved the tug "Fairwill" from blame.

As is so frequent in cases of maritime collisions, there are serious conflicts in the evidence as to almost every material feature of these cases. We are here bound by the findings of the District Judge, who saw and heard the witnesses, unless these findings are deemed by us to be clearly erroneous. We cannot so deem the material findings here, so we must affirm the decision below. Hodges v. Standard Oil Co., 4 Cir., 123 F.2d 362; The E. Luckenbach, 4 Cir., 93 F. 841, 842, 843.

The "Lillian Anne" is a motor vessel of 141.5 feet length, 27.1 feet beam, 10.3 feet depth, and a burden of 330 gross tons. The "Fairwill" is a Diesel motor tug of 58.6 feet length, 17.4 feet beam, 8.3 feet depth, a burden of 51 gross tons, with a full Diesel Fairbanks-Morse engine of 210 horsepower. The scow 72-H (light at the time of the collision) is a wooden, flat deck, square end dump scow of 120 feet length, 35.3 feet width and 13.5 feet depth, with a two-foot coaming across each end and down both sides.

The collision occurred about 6:40 A. M. on November 5, 1942. The weather and visibility were then good, the tide was the first of the ebb. The "Lillian Anne" had left the Norfolk Navy Yard, on the Southern Branch of the Elizabeth River, bound for Solomons, Maryland, with 263 officers and enlisted men aboard. Her starting course was almost due North. The "Fairwill," lashed to the scow, left the Craney Island dumping ground bound for a dredge then operating in the Eastern Branch of the Elizabeth River. Her course was generally South, with the necessity of a turn to the East in order to enter the Eastern Branch.

Before the collision, the "Lillian Anne," proceeding under a full speed ahead order, though her engines had not warmed up, was making a speed of at least 4½ miles per hour; Martin, on the "Lillian Anne," admitted a speed of 5 or 6 miles an hour, while the neutral witnesses, Whitehurst and Jones, estimated her speed, the former around 10 or 12 knots, and the latter at 8 miles an hour. Not unimportant here are the force of the impact and the effects of the collision on the scow. The "Fairwill," under one bell, was making about 2 miles per hour. The vessels, we think, were on meeting, not on crossing, courses. Pilot Martin, of the "Lillian Anne," when asked: "What lights did you see on the tugboat when you first saw her?" replied: "Tow lights and red and green." The "Fairwill" appears to have first sighted the "Lillian Anne" off the "Fairwill's" starboard bow, about 400 yards away. The "Fairwill" was seen by the "Lillian Anne" at a much greater distance; pilot Martin estimated the distance at 750 yards.

The "Lillian Anne" gave a one-whistle signal for a port to port passage, to which an assenting signal was given by the "Fairwill." We think this procedure was proper. If, as Captain Gatewood testified, he heard no assenting signal from the "Fairwill," the question immediately arises: Should he have continued at full speed in a crowded harbor? See The City of Chester, 4 Cir., 78 F. 186; Construction Aggregates Co. v. Long Island Railroad Co., 2 Cir., 105 F.2d 1009, 1012. Captain Gatewood admitted that the enlisted men on his boat were "hollerin' and carrying on." This may well have prevented Captain Gatewood from hearing the assenting signal given by the "Fairwill." We find no merit in the contention that the "Fairwill" should have refused assent to the proposed port to port passage and should have immediately given a danger signal. See The Manhasset, D.C., 34 F. 408; The George L. Garlick, D.C., 91 F. 920, 927. We uphold, too, the finding that the "Fairwill" carried proper lights, both on the tug indicating a tow and also on the scow. The testimony of the neutral witnesses, Whitehurst and Jones, was quite clear on this point. Of course, the "Fairwill," with the tow as the encumbered vessel, was much more difficult to maneuver quickly than the "Lillian Anne," of which fact Pilot Martin of the "Lillian Anne" was duly apprised when he saw the tow lights on the tug over 700 yards distant. See The Georgetown, D.C., 135 F. 854, 858; The Howard Reeder, 4 Cir. 207 F. 929, 933.

It was conceded that neither the "Lillian Anne" nor the "Fairwill" had a lookout. There was violent conflict in the testimony as to the place of the collision and the course of these two vessels just before the collision. The "Lillian Anne" contended that...