Hess Tankship Company v. SSML GOSNEY

• Decision Date: 24 November 1963
• Docket Number: No. 8185.,8185.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: HESS TANKSHIP COMPANY, Libelant, v. S.S. M. L. GOSNEY, etc., in rem, and Petroleum Tankers, Inc., etc., in personam, Respondents.

230 F. Supp. 1

HESS TANKSHIP COMPANY, Libelant, v. S.S. M. L. GOSNEY, etc., in rem, and Petroleum Tankers, Inc., etc., in personam, Respondents.

No. 8185.

United States District Court E. D. Virginia, Norfolk Division.

November 24, 1963.

Seawell, McCoy, Winston & Dalton, Norfolk, Va., for libelant.

Baird, Crenshaw & Ware, Norfolk, Va., for respondents.

WALTER E. HOFFMAN, Chief Judge.

In cross-libels the HESS DIESEL, owned by libelant and cross-respondent, and the M. L. GOSNEY, owned by respondent and cross-libelant, seek damages for a collision between the two vessels which occurred during the early morning hours of February 9, 1961.

At 0458 hours on the morning in question the HESS DIESEL got underway from Sewells Point anchorage bound for the Phillips 66 terminal on the southern branch of the Elizabeth River. The tanker was fully loaded and drawing approximately 30 feet of water.

At approximately the same time the M. L. GOSNEY, a tanker operated by Sinclair Refining Company, backed out into the Elizabeth River channel from the Portsmouth terminal of Sinclair Refining Company. The vessel was in ballast, bound for Houston, Texas.

The courses of the two vessels required them to pass in the channel. Both ships had licensed pilots aboard for the purpose of directing navigation. At the time of departure each vessel was exhibiting regulation navigation lights which were properly set and burning brightly. As will be hereafter noted, there is a conflict as to whether the lights on the M. L. GOSNEY were burning a few minutes prior to the collision. The weather was clear and dark; the tide was ebbing; there was a northwest wind blowing about 15 knots.

In the vicinity of Craney Island, while inbound, the HESS DIESEL overtook and passed on the port side the M/V NUMERIAN, after first giving and receiving proper signals. This movement brought the HESS DIESEL to the center of the channel in the vicinity of Buoy #23, notwithstanding her pilot's general practice to "stay far to the right." At the time the passage of the NUMERIAN was effected the channel was apparently clear of traffic ahead but in this connection it should be noted that the channel course bends rather sharply to the left at Buoy #27 and again at Buoy #29. Thus an inbound vessel in mid-channel opposite Buoy #23 could not see the navigation lights of an outbound vessel adhering to her proper place in the channel approaching Buoy #29.

Both vessels proceeded until they neared the Lamberts Point Coal Piers, located on the eastern side of the Elizabeth River channel in the vicinity of Buoys #29 and #27, and extending somewhat northwardly from Buoy #27 in the direction of Can Buoy #25. Apparently each vessel decided to give a passing signal at exactly the same moment. The M. L. GOSNEY gave a one blast signal indicating a port to port passing. At that precise moment the HESS DIESEL gave the first of two blasts which, if heard and coupled with the second blast, indicated a starboard to starboard passing. For those aboard the M. L. GOSNEY the noise created by her one blast made it impossible to hear the first of the two blasts from the HESS DIESEL. Thus, those aboard the M. L. GOSNEY heard only one blast from the HESS DIESEL, and those aboard the latter vessel heard nothing from the M. L. GOSNEY. The M. L. GOSNEY, assuming that the second blast from the HESS DIESEL was an answer to her signal, continued in contemplation of a port to port passage. The HESS DIESEL, acting under the assumption that the other vessel had heard the starboard to starboard passing signal, commenced a turn to her left from her previous position favoring the port side of the channel. As the vessels approached each other the HESS DIESEL gave another two blast signal which was immediately followed by a four blast signal from the M. L. GOSNEY. It is significant to note that the HESS DIESEL did not await any assent from the M. L. GOSNEY to the first suggested starboard to starboard passing before veering further to port.

At the time of the initial signal the M. L. GOSNEY had started, and continued to make, a right turn to her starboard to accomplish the contemplated port to port passing and also to navigate the bend in the river commencing at Buoy #29.

The collision took place on the extreme eastern side of the channel between Buoys #29 and #27, somewhat nearer to Bouy #27. The eastern side of the channel was, as noted, the M. L. GOSNEY's starboard side and the HESS DIESEL's port side. The starboard bow of the M. L. GOSNEY struck the starboard side of the HESS DIESEL at an approximate 45° angle near amidships. The time of collision was 0556 hours.

Three principal issues are necessary to determine. The HESS DIESEL argues vigorously that the M. L. GOSNEY did not show her navigation lights until just prior to the collision and, before that time, the lights were not burning. Such a failure, if in fact it existed, would be a statutory fault, thereby placing the burden upon the M. L. GOSNEY to show that such fault could not have, with reasonable possibility, contributed to the collision.

Reviewing the testimony of the four witnesses aboard the HESS DIESEL who may tend to support the claim of statutory fault with respect to lights as to the M. L. GOSNEY, the chief mate, Goolsbe, stated that the lights on the approaching vessel "came on suddenly" when the M. L. GOSNEY was 2½ to 3 ship lengths away, and that prior to that time there were no lights in the channel indicating any approaching vessel. The bow lookout on the HESS DIESEL likewise asserted that the lights appeared suddenly and that the coal piers did not block his view although he could not swear to it. The master, Brandstrom, also said that the lights of the M. L. GOSNEY "came on all of a sudden." The pilot, Hudgins, testified that when he was abeam of Buoy #27, he could see at least two miles down the river; he claims to have seen the light on the construction buoy, a considerable distance inbound of Buoy #29, but did not see any large vessels in the channel; he further stated that the lights on the M. L. GOSNEY suddenly came on and, in his opinion, were not on prior to that time.

Testimony from witnesses produced by the M. L. GOSNEY tends to disprove the foregoing and, in addition, supports the contention that the lights had been on since the vessel left the Sinclair terminal at Portsmouth. The master stated that he checked the navigation lights before leaving the dock and they were burning. The vessel was equipped with a warning device which flashes a red light and a buzzer sounds on a switchboard in the wheelhouse whenever one of the navigation lights burns out. The captain said that no such warning signal was seen or heard prior to the collision. Moreover, he claims, when proceeding at night there is a reflection of the range lights on the two white kingposts and if the lights are out, the absence of such reflection would be apparent. The second mate, Graves, stated that he checked the running lights on the M. L. GOSNEY at 0400 hours on the morning of February 9, 1961, and they were in perfect condition. Heath, the pilot on the M. L. GOSNEY, testified that the absence of...