Mariblanca Navegacion, SA v. Panama Canal Company, 18625.

• Decision Date: 18 January 1962
• Docket Number: No. 18625.,18625.
• Parties: MARIBLANCA NAVEGACION, S. A., as owner of THE Steamship MARIPOSA, her engines, boilers, etc., Appellant, v. PANAMA CANAL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F.2d 729 (1962)

MARIBLANCA NAVEGACION, S. A., as owner of THE Steamship MARIPOSA, her engines, boilers, etc., Appellant, v. PANAMA CANAL COMPANY, Appellee.

No. 18625.

United States Court of Appeals Fifth Circuit.

January 18, 1962.

Edwin Longcope, Hill, Betts, Yamaoka, Freehill & Longcope, New York City, for appellant.

David J. Markun, Gen. Counsel, Theodore P. Daly, Asst. Gen. Counsel, Paul T. Dunn, Atty., Panama Canal Co., Balboa Heights, Canal Zone, for appellee.

Before HUTCHESON, RIVES, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is the second of three appeals, argued the same day, involving an allision in the Panama Canal.¹

The Mariblanca Navegacion, S. A., a Panamanian corporation, appeals from a final decree of the United States District Court for the District of the Canal Zone dismissing its libel against the Panama Canal Company. The damages were sustained when the steamer, Mariposa, struck the east bank of the Gaillard Cut, during a northbound transit of the canal while under compulsory pilotage of a Panama Canal Company pilot.² Here, as in the two companion cases, to prevail the appellant must show that the district court's finding of no pilot negligence was "clearly erroneous". McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. We hold that it has failed to sustain this burden and affirm the decision below.

I.

The Mariposa is a single screw, steam turbine cargo vessel of Liberian registry, 6,113 gross tons, 3,524 net tons, 476 feet overall length, 60.7 feet beam, with an authorized fresh water draft of 26 feet, 5½ inches. The ship is powered by a main propulsion engine of the steam reciprocating type, capable of producing a speed of ten knots. It is fitted with a low pressure turbine unit able to increase the speed to twelve and a half knots by utilizing the exhaust of the reciprocating unit. The turbine unit is detachable and was not connected during the trip through the canal. The Mariposa is equipped with an electric steering gear, operated by a wheel on the bridge. At the time of the accident the ship was traveling from Vancouver, British Columbia to Durban, Africa with a full cargo of timber.

Julius F. Dietz,³ a licensed Panama Canal pilot for four years, was assigned to take the Mariposa through the canal. He boarded the ship at Balboa Roads about 9:30 in the morning of June 19, 1955, and began the transit which proceeded uneventfully to the Gaillard Cut. Shortly after entering the Cut, the Mariposa passed the Yaque port to port without difficulty at a point where the channel is 300 feet wide. However, in Culebra Reach, while awaiting the approach of the Eleni D., the pilot remarked to the master that the Mariposa was not handling then as well as she had been handling. Several ship lengths before the 20-degree left turn from the Culebra Reach into the Empire Reach the Mariposa passed the southbound Eleni D., a vessel slightly larger than the Yaque. The ships passed port to port near Coal Hoist Bend, the most advantageous point for passing in the Gaillard Cut, for there the channel is 500 feet wide, its greatest width in the Cut. The trial judge found that the meeting and passing "was in all respects normal". Shortly after the bow of the Mariposa passed the stern of the Eleni D., Dietz had difficulty in turning the Mariposa to the left to make the bend in the channel. He had expected that the natural hydrodynamic forces created by the passing and by the position of the Mariposa to the right of the channel's center would swing the vessel to port, but instead the ship continued to move directly ahead toward the right bank. The pilot put the rudder gradually to the left without results. He then ordered the rudder to full left and increased the engine speed to half ahead. The ship broke to the left. Dietz shifted the rudder to full right, anticipating the heavy movement that would develop to the left, and further increased the speed of the engine. When the sheer to the left was broken, Dietz ordered the rudder shifted back to hard left to guard against the anticipated counter-sheer to the right and jingled to the engine room for emergency full ahead to increase the rudder's effectiveness. The ship headed toward the right bank, however, unaffected by the preventive efforts. Pilot Dietz realized that he could not break the ship's heading in time to prevent striking the bank. He ordered the port anchor to be dropped and the engine cut off. The port anchor hung in the hawse pipe, however. Dietz then ordered the starboard anchor dropped and the engine put in reverse. Moments later the vessel hit the bank at a speed of four to five knots.

The district court absolved the pilot of negligence and, going further than was necessary to the decision, ruled: "The evidence adduced at trial establishes that the accident was probably caused by a failure of the vessel's steering mechanism and a failure of the vessel's personnel to execute promptly the orders of the Pilot to the engines and anchors. In the circumstances, the doctrine of res ipsa loquitur could not aid libelant's case even if it be assumed that it might otherwise be applicable."

II.

The appellant makes two specific contentions of pilot negligence: (1) that Pilot Dietz was negligent in exposing the Mariposa to the dangerous hydrodynamic forces of bank suction and ship interaction by attempting to pass the Eleni D. on a bend;⁴ (2) that the pilot not only needlessly subjected the vessel to bank suction, but "recklessly" attempted to employ bank suction and intership action to swing the ship to the left so as to make the bend in the channel, thereby unleashing natural forces the vessel was powerless to overcome.

To support its first contention Mariblanca Navegacion relies solely on the fact that Dietz, as a Panama Canal pilot, knew that potentially dangerous forces of bank suction and ship interaction would affect the course of the ship if he moved it out of the channel center to pass another ship. The mere existence of this danger does not by itself, however, demonstrate that it was negligent for Dietz...