Harris v. Newman
| Decision Date | 08 December 1975 |
| Docket Number | Civ. A. No. S74-209(C). |
| Citation | 404 F. Supp. 947 |
| Parties | Walter F. HARRIS, Plaintiff, v. W. A. NEWMAN and Steve Marinovich, jointly and severally, in personam and F/V the VICTORY, her engines, tackles, nets, etc., in rem, Defendants. |
| Court | U.S. District Court — Southern District of Mississippi |
Kelly McKoin, Biloxi, Miss., for plaintiff.
Carl J. Barbier, New Orleans, La., for defendants.
The above-styled cause was heard by the Court without a jury and taken under submission on the 1st day of October 1975. The Court, after examining the pleadings and the evidence presented at the trial makes the following Findings of Fact and Conclusions of Law involved in the collision of the vessel F/V MISS JEAN, owned by the plaintiff, Walter F. Harris, and the vessel F/V THE VICTORY, owned by the defendant, W. A. Newman.
1. Plaintiff, Harris, is and was, at all material times, an individual resident of the State of Mississippi and the owner and operator of the F/V MISS JEAN.
2. Defendant, Newman, is and was, at all material times, an individual resident of the State of Mississippi and the owner and operator of the F/V THE VICTORY.
3. Steve Marinovich, a named defendant in the complaint, was the former owner of the F/V THE VICTORY (VICTORY) and at the time of the collision had no ownership or other interest in the vessel or in its fishing activities and therefore, is not a party to this action.
4. The F/V MISS JEAN (MISS JEAN) and the VICTORY were involved in a marine collision in the early morning hours of August 28, 1973, before dawn. The collision occurred in the Mississippi Sound area of the Gulf of Mexico, approximately four miles south of the Biloxi Beacon, (Joint Ex. 1)1 resulting in the sinking of the MISS JEAN (Pl.Ex. 1a, 1b, 1c, 1d).
5. It is stipulated by the parties that at the time of the collision, the weather was fair, visibility was good and the skies were generally clear, although it had become somewhat cloudy or overcast prior to the collision.
6. At the time of the collision the MISS JEAN was pulling a trawl while in the process of shrimping and traveling at approximately four or five miles per hour. The plaintiff was alone aboard the vessel.
7. The VICTORY had completed its trawling activities for the night and was proceeding into the Port of Biloxi. The defendant, Newman, who was alone on his vessel, testified that he had his vessel on "automatic pilot" to maintain course. The defendant further testified that he had his compass bearing on 45° proceeding in a generally northeasterly direction toward the Biloxi Beacon at approximately seven miles per hour. It is undisputed that at the time of the collision the defendant had a floodlight on his forward deck where he was "picking shrimp". According to the defendant, he was stationed in the "wing of the boat, two feet in front of my wheel-house." Newman testified that he would bend over for approximately 25 seconds at a time to pick shrimp and then look up into the waters to see if his course was clear. The defendant admitted in filling out and filing the Coast Guard report on September 4, 1973, that he did not see the MISS JEAN at any time as he was approaching the vessel. (Pl.Ex. 3)2:
(Emphasis Added) (Spelling and punctuation as in the original)
8. There was conflicting testimony as to whether the MISS JEAN had proper running and trawling lights at the time of the collision. Harris testified that all of his lights were in operation. The defendant asserts that the MISS JEAN did not have on her green and red running lights. The defendant further asserts that the vessel did not have her red light over the white light required by Inland Rules of the Road, Art. 9(c), for vessels engaged in fishing.3 Notwithstanding the disputed testimony, the Court is of the opinion that it is not necessary to determine this controverted subject in that the defendant was not keeping a proper lookout. Therefore, the Court finds that the presence or absence of lights is immaterial in that even if the MISS JEAN was fully lighted as Harris said the vessel was, Newman could not have seen her so as to avoid the collision. It is common knowledge of all mariners that it takes a certain amount of time to accustom one's eyes to the darkness before one can maintain a proper lookout.
9. The defendant asserts that the MISS JEAN was approaching his vessel from the port side in a crossing situation and under Article 19 of the Inland Rules of the Road, the MISS JEAN was the "burden" vessel with the obligation to keep clear of the VICTORY.4 Based on the testimony presented at trial, the Court is of the opinion that it is the local, if not universal, custom that where boats are trawling for shrimp, the vessel pulling the trawl has the right of way over a vessel running free. The facts clearly establish that the MISS JEAN was trawling and it is much easier for the free running vessel to maneuver than for a trawling vessel. The Court finds that the defendant knew, or should have known, that other shrimp trawlers were in the general area and therefore, Newman had a mandatory duty to keep a careful and proper lookout at all times.
10. The defendant avers in its counter-claim that the aforesaid collision was due to the negligence and fault of the plaintiff. It is the defendant's theory that Harris was operating the MISS JEAN in a negligent and careless manner in that Harris was on the stern of the vessel working on the tiller and as a result, Harris was unable to give any warning signals to the VICTORY prior to the collision. The plaintiff testified that he was maintaining a proper lookout and was standing outside of his pilot house within reach of the vessel's wheel. The plaintiff further stated that the reason that he did not see the VICTORY any sooner was that his vessel was being overtaken by the VICTORY from the rear and due to the VICTORY's extreme high bow any lights that she was showing were difficult to observe. (Pl.Ex. 2a, 2b) The Court does not find that the plaintiff was operating his vessel in a negligent and careless manner.
11. Although there is agreement between the parties as to the approximate location of the collision (Joint Ex. 1) there is dispute as to the direction that the vessels were traveling prior to the collision. (Def.Ex. 1, 2, 5) The plaintiff testified that he was heading in a Northeast or East Northeast direction at approximately 60° and when he first saw the VICTORY it was some fifty feet from his starboard stern traveling in a northeasterly direction close to 50°. The defendant admitted that his automatic pilot plotted his course at 45°. The only testimony as to the direction of the vessel MISS JEAN prior to the collision is that of the plaintiff. The defendant admits that he did not see the vessel, however, Newman testified that the MISS JEAN was headed in a Southeast direction. The Court is of the opinion that a logical explanation for the defendant's assumption that the MISS JEAN was headed in a Southeast direction was that the weight and speed of the VICTORY coupled with its collision with the MISS JEAN changed the direction of the plaintiff's vessel. This theory is corroborated by the fact that the VICTORY's weight is estimated at 19 tons whereas, the weight of the MISS JEAN was under 5 tons. (Pl.Ex. 3) Moreover, the superior speed of the VICTORY is an additional factor to be considered in determining whether the VICTORY could have altered the direction of the MISS JEAN. Based on the evidence, the Court finds that the VICTORY was traveling at 7 miles per hour and was some 14 gross tons heavier than the MISS JEAN. The Court further finds that when the VICTORY struck the trawling vessel mid-ship "aft the house" on the starboard side the impact of the collision caused the bow of the struck vessel to turn direction.
12. After the sinking of the MISS JEAN the defendant rendered assistance to the plaintiff and was primarily responsible in helping the plaintiff raise and tow the MISS JEAN to Deer Island. It is undisputed that Newman contacted a marine diver and several local fisherman in an attempt to assist Harris in salvaging the vessel. The plaintiff attempted to show at trial that Newman's actions in attempting to raise and salvage the MISS JEAN and certain oral statements allegedly made by the defendant after the collision are to be considered as admissions of liability. The Court finds that the efforts made by Newman to assist the plaintiff in salvaging the MISS JEAN are not to be interpreted as any type of admission of liability by the defendant. The Court further finds that the evidence clearly shows that it is the local custom among fishermen in this area to render assistance in time of need. Newman had an obligation to furnish assistance and the Court is of the opinion that the defendant acted in a proper manner following this maritime collision.
13. In sum, the Court finds that the sole proximate cause of this collision was the negligence and fault of the defendant, in that Newman failed to maintain a proper lookout.
1. The Court has jurisdiction over this matter based upon its admiralty and maritime jurisdiction, 28 U.S.C.A. § 1333.
2. The plaintiff herein asserts that the defendant in not keeping a proper lookout was the sole cause of the collision between the MISS JEAN and the VICTORY. Without a lengthy discussion of the statutory rules of navigation and the standard of care that governs the conduct of vessels, suffice it to say that the Inland Rules of the Road (Inland Rules) are the...
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Chute v. United States
... ... Bay State Dredging & Contracting Co., 26 F.2d 603, 605 (1st Cir. 1928); Harris v. Newman, 404 F.Supp. 947, 951 (S.D.Miss.1975), 33 U.S.C. § 221. However, the evidence does not support the conclusion that such a lookout was not ... ...