National Bulk Carriers v. United States

• Citation: 183 F.2d 405
• Decision Date: 23 June 1950
• Docket Number: No. 219,Docket 21631.,219
• Parties: NATIONAL BULK CARRIERS, Inc., v. UNITED STATES of America et al.
• Court: U.S. Court of Appeals — Second Circuit

183 F.2d 405 (1950)

NATIONAL BULK CARRIERS, Inc., v. UNITED STATES of America et al.

No. 219, Docket 21631.

United States Court of Appeals Second Circuit.

Argued May 4, 1950.

Decided June 23, 1950.

Writ of Certiorari Denied October 23, 1950.

Burlingham, Veeder, Clark & Hupper, New York City, Proctors for Rutgers Victory, Burns Steamship Company and the United States, appellants, Chauncey I. Clark, Adrian J. O'Kane, New York City, Counsel.

Barry, Wainwright, Thacher & Symmers, New York City, Proctors for National Bulk Carriers, Inc., owner of Tank Steamship Nashbulk, John C. Prizer, Carter H. Yates, New York City, Advocates.

Before L. HAND, Chief Judge, and CHASE and CLARK, Circuit Judges.

Writ of Certiorari Denied October 23, 1950. See 71 S.Ct. 89.

CHASE, Circuit Judge.

A collision which occurred on September 27, 1946, between the steamship Nashbulk, owned by National Bulk Carriers, Inc., and the Rutgers Victory, owned by the United States and bare-boat chartered to Burns Steamship Co., led to this suit. It happened on the high seas in mid-afternoon about 225 miles southeast of New York, when the sea was calm, the weather clear, and the visibility good.

The Nashbulk, a tanker 542.6 feet long, of 14164 gross tons, with an 80.2 feet beam, 40.1 feet moulded depth and a 31' 7" draft, was bound from Venezuela to Portland, Maine, with a cargo of petroleum products in bulk. She was built in 1945 and was powered by two Westinghouse double reduction steam turbines geared to a single shaft.

The Rutgers Victory, a steamship 439.1 feet long, of 7607 gross tons, with a 62.1 feet beam, 34.5 feet moulded depth, and a 28' 5¾" draft, was bound from Philadelphia to Antwerp with a cargo of coal. She also was built in 1945 and was powered by two General Electric steam turbines geared to a single shaft.

Just before 4:00 P.M.¹ the Rutgers Victory, proceeding on a course of 80° true at a speed of 14½ knots, was sighted by the Nashbulk, which was on a course 356° true and making 16 knots, about seven or eight miles away, four points on the Nashbulk's port bow. When the bearing of the Rutgers Victory remained constant, the Nashbulk's chief mate at 4:15 P.M., changed from telemotor to manual steering, in accordance with the Nashbulk's master's standing orders to use manual steering when near other vessels or land. At 4:25 P.M., when the ships were about two miles apart, the Nashbulk's chief mate called the master and told him of the approaching vessel, whose bearing continued to be the same, and the master and mate of the Nashbulk kept the Rutgers Victory under observation until after the collision occurred. Until 4:32 P.M., when the vessels were about one-half a mile apart, the Nashbulk kept her course and speed. Then, however, her master, without sounding his whistle, ordered his engines slow ahead and his rudder hard right which caused his vessel to go off three to four points. At about 4:33 P.M., he ordered his engines full speed astern and about ten seconds later blew a three-blast signal.

The Rutgers Victory, meanwhile, had had no lookout; her watch officer had left the bridge and was working at a desk in the rear of the wheelhouse. At no time until immediately before the collision did she sight the Nashbulk but she continued on without change of course or speed until she heard the Nashbulk's three blast signal at about 4:33. Her watch officer then went on the bridge and ordered a hard left rudder. The rudder had just begun to take hold when he ordered it hard right a few seconds before the collision which occurred in about half a minute after 4:33, the Nashbulk's port bow striking the starboard side of the Rutgers Victory about 175 feet from the latter's stern, at about a 45° angle. Both vessels were damaged and some of the Rutgers Victory's cargo was lost. On October 28, 1946, the owner of the Nashbulk sued the owner and charterer of the Rutgers Victory. On November 7, 1946, the charterer filed a cross-libel against the Nashbulk and her owner. The District Court held the Rutgers Victory solely at fault and the United States and the charterer have both appealed.

There is not the slightest doubt that the Rutgers Victory was glaringly at fault. She had no lookout, in violation of Article 29, 33 U.S.C.A. § 121. In a crossing situation, she had the Nashbulk on her starboard hand and thus was bound to keep out of the way, Article 9, 33 U.S.C.A. § 104; to avoid crossing ahead of the Nashbulk, Article 22, 33 U.S.C.A. § 107; and to slacken her speed or stop or reverse, Article 23, 33 U.S.C.A. § 108. She did none of these things, but maintained her course and speed until collision was unavoidable.

The appellants claim, however, that the Nashbulk also was at fault, both for her navigation and for her failure to blow a one-blast signal upon going hard right at 4:32, a minute and one-half before the collision and when the ships were about one half mile apart.

We agree with the court below that, the Nashbulk's failure to sound her whistle aside, her navigation was not faulty. As the privileged vessel on a crossing course which had no reason to believe that the burdened vessel would fail in her duty, she was bound to keep her course and speed until such time as she found herself so close that collision could not be avoided by the action of the Rutgers Victory alone. The Delaware, 161 U.S. 459, 16 S.Ct. 516, 40 L.Ed. 771. See Article 21, 33 U.S.C.A. § 106; Article 27, 33 U.S.C.A. § 112, Article 29, 33 U.S.C.A. § 121. Though it was when the vessels were still about one half a mile apart that the Nashbulk went hard right and reduced her speed to half forward, appellants introduced expert testimony to the effect that she should have acted more promptly, i. e., when the vessels were between 3500 and 4000 feet apart, and insist that she also should have gone full speed astern instead of reducing her speed only one-half when she did first take action. But such criticism, based largely upon hindsight, seems to presuppose that the Rutgers Victory could not then have been expected to navigate as the situation required. In order to make good their argument with respect to the Nashbulk's failure to sound her whistle upon going hard right, they necessarily take the position that at that time the Rutgers Victory could have successfully taken action to prevent collision and we agree. In view of the extremely difficult circumstances forced upon him by the Rutgers Victory's blind sailing, no good reason has been shown why the district judge's finding that the master exercised good judgment in navigating as he did should be disturbed. Wilson v. Pacific Mail S. S. Co., 276 U.S. 454, 461-462, 48 S.Ct. 369, 72 L.Ed. 651.

Whether the Nashbulk should be held for her failure to sound a one-blast signal when she went hard right at 4:32 P.M. is another matter. Article 28, 33 U.S.C.A. Sec. 113 provides that "When vessels are in sight of one another, a steam vessel under way, in taking any course authorized or required by these rules, shall indicate that course by the following signals on her whistle or siren, namely: One short blast to mean, `I am directing my course to starboard' * * *"

Appellee argues, and the court below held, that the Nashbulk's turn to the right was not a change of "course" within the rule, but was merely a change of "heading." Cf. Clyde-Mallory Lines v. New York Cent. R. Co., 2 Cir., 83 F.2d 158, 159; Commonwealth & Dominion Line v. United States, 2 Cir., 20 F.2d 729, reversed on other grounds 278 U.S. 427, 49 S.Ct. 183, 73 L.Ed. 439. The cases relied upon, however, are winding channel cases, not applicable here. On the high seas, a change of heading of eight degrees has been held a change of course. Socony Vacuum Transp. Co. v. Gypsum Packet Co., 2 Cir., 153 F.2d 773. We hold that in going off three to four points the Nashbulk was "directing" her "course to starboard" within the rule.

Appellee does not now seriously, nor could it plausibly, press upon us, as justification for the master's failure to sound a one-blast signal, his explanation made at the trial that he did not do so for fear of giving rise to confusion and starting the Rutgers Victory "on some unprudent course which would make the situation more serious." The Rules do not admit of violation for fear of causing confusion. Cf. A. H. Bull Steamship Co. v. United States, 2 Cir., 34 F.2d 614. Nor can we agree with the contention, which the district judge upheld, that the Nashbulk...