In re Steamship Company Norden

• Decision Date: 26 June 1925
• Citation: 6 F.2d 883
• Parties: In re STEAMSHIP COMPANY NORDEN. THE NORDHVALEN.
• Court: U.S. District Court — District of Maryland

6 F.2d 883 (1925)

In re STEAMSHIP COMPANY NORDEN.

THE NORDHVALEN.

District Court, D. Maryland.

June 26, 1925.

George Forbes, of Baltimore, Md., Robert S. Erskine, of New York City, and Henry L. Wortche, of Baltimore, Md., for owners of the Nordhvalen.

George W. P. Whip, of Baltimore, Md., for Fidelity Phœnix Fire Ins. Co.

John Henry Skeen and Lee S. Meyer and Wallis Giffen, all of Baltimore, Md., for African S. S. Co., owner of the Barracoo.

Janney, Ober, Slingluff & Williams and Robert W. Williams, all of Baltimore, Md., for D. L. Flack & Co.

SOPER, District Judge.

On April 6, 1923, shortly before 8 p. m., a calm, clear, starlit night, the steamship Nordhvalen was sunk as the result of a collision with the steamship Barracoo in the Craighill Channel near the mouth of the Patapsco river. The Nordhvalen was bound out, laden with a cargo of coal, and the Barracoo was bound in light to ship a cargo of coal at the port of Baltimore. The Barracoo filed a libel against the Nordhvalen, which filed an answer and a cross-libel against the Barracoo. The Nordhvalen was almost a total loss. Much of her cargo was also lost. There was substantial damage to the Barracoo. Proceedings for limitation of liability for damages arising out of the collision were filed by the owners of the Nordhvalen, who surrendered the wreck and the pending freight. The amount in the hands of the trustee to the credit of the cause is $17,500, the distribution of which fund is the subject of this controversy. Claims are filed by the African steamship Company, owner of the Barracoo, for damage, detention, and loss of charter hire; by D. L. Flack & Co., for demurrage on cars which were held up awaiting the repairs of the Barracoo, and by the Fidelity-Phœnix Fire Insurance Company, insurers of the cargo of the Nordhvalen, who are subrogated to the rights of Gano, Moore & Co., the shippers.

There is no dispute as to the right of the owners of the Nordhvalen to limit liability. Nor are the claims of the African Steamship Company and D. L. Flack & Co., contested. The sole question is the right of the Fidelity-Phœnix Fire Insurance Company, the insurers of the Nordhvalen's cargo, to participate in the limitation fund. In other words, did any liability on the part of the owners of the Nordhvalen for the loss of her cargo arise by reason of the collision? The cargo owners base the right to recover on the charge of unseaworthiness of the Nordhvalen, while the owners of the ship claim to be free of liability by reason of exemptions in the charter party, and of the provisions of section 3 of the Harter Act (27 Stat. 445 Comp. St. § 8031).

The Nordhvalen, having loaded with coal for St. Nazaire, France, left her mooring in Curtis Bay at a quarter before 6. She then proceeded by the Curtis Bay Channel, the Fort McHenry Channel, the Brewerton Channel, and finally the Cut Off Channel, before entering the Craighill Channel. The last named is 600 feet wide, and is dredged to a depth of 35 feet. The ship's course in the Cut Off Channel was in a general southeasterly direction, and, when she turned the buoy at the junction of the channels, and rounded into the Craighill, she proceeded in a southerly direction. At or about the time when she entered the Craighill Channel she observed the Barracoo, which was then between 3 and 4 miles distant, and about to enter the Craighill Channel at the lower end. The Nordhvalen was a steamship 330 feet in length, and 41 feet 6 inches beam. The Barracoo was 425 feet in length. Before the Nordhvalen entered the Craighill Channel, she was showing her green light to the Barracoo, while the latter showed her red light to the Nordhvalen. The vessels exchanged whistles of one blast, indicating that they would pass each other, port to port. After the Nordhvalen entered the Craighill Channel, she showed her red light for a short time, but, when she was about midway of the channel and skirting the western bank, she again showed her green light to the Barracoo, took a rank sheer to port, and crossed the channel directly in the course of the latter vessel. Efforts were then made to avert the collision, but it was too late. According to the weight of the evidence, the vessels were not more than two or three ship lengths apart when the Nordhvalen left her starboard side of the channel and sheered across the path of the Barracoo.

The Barracoo struck the Nordhvalen's bow at a point on the starboard side of the Nordhvalen, somewhat abaft of the fore rigging. Both vessels backed away from the collision, and the Nordhvalen then proceeded eastward of the channel, taking a semicircular course to port, and sank in shoal water, with her bow toward the north.

It is obvious under the circumstances that the Barracoo was entirely free from blame. The only inquiry is the cause of the sheer which put the Nordhvalen into the position named. On the part of the cargo owner it is claimed that the Nordhvalen was unseaworthy, because her steering apparatus failed to work; and on the part of the owners of the Nordhvalen and of the Barracoo that the accident was caused by errors or faults of navigation of the Nordhvalen's crew.

The testimony of the crew shows that at or about the time the sheer of the Nordhvalen began her pilot directed the helmsman to port the helm so as to keep her on her own starboard side of the channel. The vessel failed to respond, and a second order of more port was given, and, when this had no effect, the helmsman was ordered to place the wheel hard aport. These orders were executed, but the vessel did not answer her helm, with the result already described. There is some testimony that the sheer was quite gradual, and that the vessel proceeded from one-half mile to a mile from the time it began to sheer until the collision took place, but the weight of the testimony is to the effect that the sheer was rather sudden and pronounced, and that the vessels were not more than three ship lengths apart when it began.

Testimony was also given by the crew of the City of Norfolk, a bay steamer which was proceeding from Baltimore somewhat astern of the Nordhvalen. The Norfolk's officers indicate that the Nordhvalen was steering a little badly when she rounded into the Craighill Channel, and, since the Barracoo was seen inbound, the faster bay steamer decided not to pass the Nordhvalen until the latter had safely passed the Barracoo. From their testimony it is argued that the steering apparatus of the Nordhvalen was working badly before the sudden sheer took place, but the testimony hardly justifies such a finding. The City of Norfolk, proceeding at the rate of 13½ knots, was overtaking the slower Nordhvalen, which was making less than 6 knots per hour. The channel was only 600 feet wide, and the three vessels were likely to come together in passing, unless the Norfolk's speed was checked. It was the desire to avoid this hazard rather than the bad steering of the Nordhvalen which caused the Norfolk to slow down her engines before the collision. Furthermore, it is conceded that the Nordhvalen had left her dock and had successfully negotiated the several channels above mentioned before reaching the Craighill, and had experienced no greater difficulty in steering than is usual with a loaded vessel in a narrow channel. In short, the testimony to support the conclusion of unseaworthiness rests almost entirely upon the admitted fact that the Nordhvalen did not answer her helm for a few minutes before the collision, and it is suggested, therefore, that the vessel must have been unseaworthy at the beginning of the voyage which had so shortly theretofore begun.

The circumstance is certainly undoubtedly entitled to careful consideration as one of the possible explanations of the accident. On the other hand, it is suggested that the sheer of the Nordhvalen was caused by the negligence of her pilot in carrying the heavily laden ship so near to the bank of a narrow channel that she became unmanageable. Similar accidents were discussed in The Howard Reeder, 207 F. 929, 125 C. C. A. 377; The Hamilton (D. C.) 212 F. 1016; The Monroe C. Smith (D. C.) 201 F. 569; Nicholas Transit Co. v. Pittsburgh S. S. Co., 209 F. 348, 126 C. C. A. 274, and there are circumstances in the case at bar which render it not improbable that such was the cause of the accident in this case. The ship was proceeding at 6 miles per hour — her best speed when heavily loaded. She was sailing close to the bank, according to the testimony of her own pilot, being not more than 40 to 60 feet therefrom. It is not perfectly clear why the first order to port the helm was given, unless it was that the pilot noticed some movement to port. The ship was already close to her own starboard side of the channel. According to the pilot's testimony, the light on the buoy midway on this side of the channel was out. In the nighttime the vessel may very easily have been even nearer to the bank than he realized, so that she was thrown sharply to port from no apparent cause.

This seems the more probable in view of the many changes in the course which had necessarily taken place in the progress of the vessel from her pier at Curtis Bay to the point of collision. Only a few minutes before the collision she had answered her port helm by rounding the turning buoy at the junction of the two channels. A very short time before the collision, when the vessel would not answer the port helm, the helm was put hard astarboard, and the vessel promptly...