Managua Nav. Co. v. Aktieselskabet Borgestad

• Decision Date: 22 July 1925
• Docket Number: No. 4415.,4415.
• Parties: MANAGUA NAV. CO. et al. v. AKTIESELSKABET BORGESTAD.
• Court: U.S. Court of Appeals — Fifth Circuit

7 F.2d 990 (1925)

MANAGUA NAV. CO. et al. v. AKTIESELSKABET BORGESTAD.

No. 4415.

Circuit Court of Appeals, Fifth Circuit.

July 22, 1925.

Geo. H. Terriberry, Frazer L. Rice, Jos. M. Rault, and Walter Carroll, all of New Orleans, La., for appellants.

John D. Grace and M. A. Grace, both of New Orleans, La. (Edwin H. Grace, of New Orleans, La., on the brief), for appellee.

Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.

BRYAN, Circuit Judge.

This case arises out of a collision between the steamships Managua and Borgestad. Both ships were damaged. Appellant, owner of the Managua, filed a libel against the Borgestad, and in turn the owner of the Borgestad filed a libel against the Managua. In each libel the ship proceeded against is alleged to have been solely at fault.

The collision occurred on the Mississippi river, near Belle Chasse Point, about 15 miles below New Orleans. Each ship was in charge of a licensed pilot. The Managua left her dock at New Orleans about 10 o'clock in the morning and proceeded down the river. An hour later she ran into a fog and exchanged fog signals with the Borgestad, which had left McCall's Flat, some 8 miles down the river, that morning at 8:30, after having been anchored during the preceding night because of a fog, and was proceeding up the river. The Managua crossed the Borgestad's bow at a distance of 200 or 300 feet and ran into the right or western bank of the river, sheered off, and then struck the Borgestad, which was within 100 feet of the bank, on the port side, just aft of amidships.

According to witnesses for the Managua, that vessel, after encountering the fog, proceeded at slow speed, which, with the current of about 3 miles per hour, was at the rate of approximately 4 miles per hour. There was no lookout except for 5 minutes when the vessel first encountered the fog. The Managua's pilot testified that he heard the fog signals of another vessel, which proved to be the Borgestad, about two points to port, but that, receiving no passing signal, he had one sounded by the Managua consisting of one long blast, by which he intended to call for a passage port to port, which was not answered; that, after waiting for about a minute, the Managua, at his direction, sounded a second signal of one blast, and in reply to that there was received a signal of two blasts, which he recognized as crossing his signal and indicating a starboard to starboard passage; and that, fearing a collision, he caused the helm of the Managua to be ported and her engines reversed, as a result of which the Managua was sent to starboard, and the collision resulted as above stated.

The pilot of the Borgestad testified that, after leaving McCall's Flat and up to the time of the collision, he occupied a position on the top of the pilot house and had been proceeding, with a lookout on the bow, at slow speed along the western bank of the river, where the fog did not much interfere with his vision; that just as his vessel passed Belle Chasse Point, and while she was within 100 feet of the western bank, he sighted the masts and smokestack of the Managua, apparently in the middle of the river, at a distance which he variously estimated at from a half to one and a half miles; that the Borgestad then gave a signal of two blasts calling for a starboard to starboard passage, which the Managua accepted by responding with a like signal of two blasts; that, after the passing signals were exchanged, the Managua became hidden from view in the fog, and he did not see her again until she crossed his bow 200 or 300 feet away; that the Borgestad's helm was immediately ported, and she was ordered full speed ahead, but, seeing that a collision was inevitable, the engine was at once stopped and the Borgestad sent to port in an effort to diminish the force of the impact. The Borgestad's chief engineer testified that he was in the engine room from 8 o'clock until the collision occurred. Referring to the log kept by him, he testified in chief that he started the engine at 8:30 and proceeded "with different kinds of speed, slow, half speed, and stop, until 11:03 in the forenoon. Then there was just for a moment a little full speed, a couple of turns, and then stop, and then when the collision happened at 11:13 the engines were stopped." His log contains the following entry:

"The engine was made ready at 8:30 a. m. to proceed. Different speed in the engine, full speed, slow, and stop until at 11:03 a. m. Full speed at 11:10 a. m. then stop. Collision happened at 11:13 a. m. Then the engine was stopped."

After considerable cross-examination, and after testifying that the engine was put full speed ahead between 11:03 and 11:10, this witness, who was a Norwegian, finally stated that the engine was run full speed ahead during the entire 7 minutes from 11:03 to 11:10.

The draft of the Managua was 14 feet forward and 14.8 feet aft, and of the Borgestad 24 feet forward and 22.06 feet aft. The pilot of the Borgestad testified that the Managua, when she ran into the bank of the river, was going at a speed in excess of 6 miles per hour, and was lifted up 5 or 6 feet; and it is admitted that mud from the bank was forced into and choked up the intake of the Managua's starboard circulating pump. The officers and crew of each ship corroborated in the main the testimony of her pilot. The collision occurred on January 4, 1921. One of the libels was filed on January 5 and the other on January 7. Testimony as to liability was taken by deposition, and upon consideration of it the District Judge filed an opinion finding the Managua solely at fault and exonerating the Borgestad. Thereafter the parties agreed by stipulation that the damages to the Borgestad, consisting of repairs and demurrage, amounted to $61,000,...