Greater New Orleans Expressway Com'n v. Tug Claribel

• Decision Date: 30 September 1963
• Docket Number: No. 4274,4277,Civ. A. No. 10795.,4274
• Parties: The GREATER NEW ORLEANS EXPRESSWAY COMMISSION, Libelant, v. The TUG CLARIBEL, Her Engines, etc. and BARGE TJ-55, Her Tackle, etc., Jahncke Service, Inc. and the Home Insurance Company, Respondents. In re JAHNCKE SERVICE, INC., Petitioning for Exoneration from, or Limitation of, Liability. WINN-DIXIE LOUISIANA, INC., Plaintiff, v. The HOME INSURANCE COMPANY and American Employers' Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

222 F. Supp. 521

The GREATER NEW ORLEANS EXPRESSWAY COMMISSION, Libelant, v. The TUG CLARIBEL, Her Engines, etc. and BARGE TJ-55, Her Tackle, etc., Jahncke Service, Inc. and the Home Insurance Company, Respondents.

In re JAHNCKE SERVICE, INC., Petitioning for Exoneration from, or Limitation of, Liability.

WINN-DIXIE LOUISIANA, INC., Plaintiff, v. The HOME INSURANCE COMPANY and American Employers' Insurance Company, Defendants.

Nos. 4274, 4277; Civ. A. No. 10795.

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

September 30, 1963.

Deutsch, Kerrigan & Stiles, Jack G. Carinhas, Jr., Brunswick G. Deutsch, William S. Stone, Cornelius G. Van Dalen, New Orleans, La., for Jahncke Service, Inc. and The Home Ins. Co.

Lemle & Kelleher, N. B. Barkley, Jr., Charles E. Lugenbuhl, Lancaster, King & LeCorgne, William McM. King, Robert E. LeCorgne, Jr., John T. Pender, New Orleans, La., for The Greater New Orleans Expressway Commission.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert B. Acomb, Jr., Donald L. King, New Orleans, La., for Winn-Dixie Louisiana, Inc.

Roger H. Fellom, John T. Mulvehill, New Orleans, La., for Bradford Coleman.

Nos. 4274, 4277; Civ. A. No. 10795, Division D.

AINSWORTH, District Judge.

These cases involve a determination of a petition in admiralty by Jahncke Service, Inc. for exoneration from, or limitation of, liability and the direct actions for damages by The Greater New Orleans Expressway Commission against petitioner and its insurer, The Home Insurance Company, and by Winn-Dixie Louisiana, Inc. against petitioner's insurer and the Expressway Commission's insurer. The Expressway Commission and Winn-Dixie also filed similar claims in the limitation proceeding. On the day trial of these cases began, Bradford Coleman, driver of Winn-Dixie's truck, filed a claim in the limitation proceeding for damages for personal injuries. Motion to dismiss and for summary judgment was filed by The Home Insurance Company against this late-filed claim, and the court reserved its ruling and proceeded with the trial.

On January 25, 1960, in the early morning, the Jahncke tug CLARIBEL, with tow, was in collision with the Causeway of The Greater New Orleans Expressway. The Causeway is a 24-mile-long concrete bridge spanning the center of Lake Pontchartrain at New Orleans. On the date referred to, the tug CLARIBEL received written orders from Jahncke's administrative assistant to its marine superintendent, to-wit: "WEATHER PERMITTING. Take one big TJ barge to Dredge Maurepas to be loaded with reef (oyster shell). Pick up two loads of reef (Alabama and Florida) and take to Slip No. 4. You are to be available at Slip No. 4 no later than 1 PM Tuesday (January 26)." Accordingly, the empty barge TJ-55 was push-towed by the CLARIBEL from Jahncke Slip No. 4 at 11:15 p. m., headed north through the Industrial Canal at New Orleans, which connects with Lake Pontchartrain, on its way to the dredge MAUREPAS located near the north shore of Lake Pontchartrain via the north drawbridge of the Causeway, a distance of about 20 miles.

The CLARIBEL apparently encountered no fog when it left the mouth of the Canal and entered the Lake, although there was a slight haze over the water at the time. Captain John Carver, master of the CLARIBEL, set a course of 355° and at midnight was relieved by the pilot, D. C. Brister.

The captain instructed the pilot to stop the vessel if he ran into fog and to call the captain who would assist him in dropping anchor. Weather conditions remained the same until 1:10 a. m., at which time a dense fog was encountered which limited visibility to less than 200 feet. The pilot, Brister, did not stop but reduced speed from 7 m. p. h. full ahead to about 4 m. p. h. About five minutes after reducing speed, the CLARIBEL and its tow rammed a support piling on the Causeway Bridge at a point 12.6 miles from the south shore and 3.4 miles from the north drawbridge, doing extensive damage to it. A truck owned by the claimant, Winn-Dixie, and driven by Bradford Coleman, was damaged and lost some of its freight when two spans of the Causeway collapsed under it as a result of the collision. Coleman claims he was injured at the time. The pilot did not see the Causeway until he struck it.

Petitioner concedes at the outset that it is not entitled to exoneration from liability. It avers that the accident was caused through the sole fault of its pilot, Brister, who continued to navigate in heavy fog despite company policy that he stop when such conditions were encountered.

The first question we must determine is whether the CLARIBEL was unseaworthy. More specifically, was the CLARIBEL unseaworthy because of compass error and was her crew incompetent?

The CLARIBEL's magnetic compass was purchased and installed in 1956. The evidence indicates that it has never since been checked or calibrated, though Jahncke's Marine Superintendent Nunez contends it was checked once. Nunez testified (by deposition because of serious illness) that the CLARIBEL's compass had been repaired in June or July 1959, about six months before the accident; that this was the only time it was ever checked. He said he would produce an invoice showing the repair, but apparently it was never found and it is not in evidence. This testimony has no corroboration in the record and is vague and indefinite so that we place little reliance upon it. Captain Carver testified, as did Brister, his pilot, that Nunez told them after the accident that the compass had an error of 17° west. Nunez, however, denied their statements to this effect. Carver and Brister contradicted him, saying they were told about the error after the accident. Repairs and maintenance have been performed on many parts of the vessel from time to time, all of which have an effect on compass heading, but the compass was not properly checked. There was no regular maintenance practice for up-keep of the vessel or its equipment. Arc welding, which also has a definite effect on the compass of a steel-hulled vessel, had been performed on the tug shortly before the accident but the compass was not checked when the welding was completed. Barges in tow of the tug also can affect the compass. The evidence with regard to extent of error in the compass is not entirely clear and is, therefore, in dispute. Petitioner claims the error was 11° west. Petitioner avers that compass error was immaterial; that the CLARIBEL always made the run on a compass heading of 355°. It states that on subsequent runs 355° was found to be the correct course. Captain Carver testified that after the accident he traveled a 358° course in order to reach the north draw of the Causeway. It is impossible to reconcile these conflicts. Reference to the charts of Lake Pontchartrain in evidence proves beyond doubt that 355° either true or magnetic course is not the proper course to the north draw of the Causeway. The correct course is 342½° true, and 336½° magnetic, and is the heading of a properly calibrated compass on a vessel heading into the Lake through the Industrial Canal, the Canal being in alignment with the north draw of the Causeway.

In our opinion the faulty compass was undoubtedly a primary cause of the collision, without which the accident would not have happened.

The captain and pilot of the CLARIBEL testified they did not know the compass was in error prior to the accident. They said that even had they known of the error they did not then or now know how to correct or compensate for deviation. These men were responsible for the navigation of this vessel and tow and though they had worked on Lake Pontchartrain for several years, they were completely lacking in ability to use a compass properly. They had never been instructed in the use of the compass; also they were not licensed by the Coast Guard.

On this trip the vessel was short one crew member. There were six men aboard; one of them the captain considered a "green" deckhand. Though in weather of the kind encountered it is necessary that a lookout be posted at the head of the flotilla, none was provided.

To run blind in a dense fog is culpable negligence. Here the pilot was attempting to steer his vessel with a compass which is in error, though he did not then know it, and with no lookout posted to give warning of impending danger.

Petitioner in limitation, Jahncke, contends that the accident would have occurred no matter what course the pilot followed because they state that the cause of the accident was Brister's failure to stop the vessel when visibility was reduced, despite his instructions and company policy that he do so. It is true that failure to stop was a contributing factor to this accident, but the casualty resulted from a combination of causes which we have detailed. Compare Mid-West Towing Co., Inc. v. Anderson, 7 Cir., 1963, 317 F.2d 270. Had the compass been true or had the captain or the pilot been instructed and capable of correcting for error, the accident would not have occurred.

When the CLARIBEL struck the Causeway it was off course 3.4 miles south of the north draw, the point at which it was to cross the Causeway. The most reasonable explanation for such a difference in course was compass error together with lack of knowledge of the crew and inability to correct for deviation, which were proximate causes of the accident. Of course, as we have pointed out before, neither the captain nor the pilot knew of the compass error before the accident. On the north draw the foghorn was in operation and both bridge lights were functioning. The CLARIBEL with this particular tow could have been stopped within 400 feet. Even without a lookout at the head of the tow the foghorn should have given ample warning if the crew had been alert.

We must next decide whether there was privity or knowledge of Jahncke sufficient to warrant denial of the limitation petition. Limitation of liability is provided for in Title 46,...