Ohio Barge Line, Inc. v. Oil Transport Company

• Decision Date: 06 July 1960
• Docket Number: No. 18230.,18230.
• Parties: OHIO BARGE LINE, INC., Claimant, Appellant, v. OIL TRANSPORT COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

1961 AMC 375, 280 F.2d 448 (1960)

OHIO BARGE LINE, INC., Claimant, Appellant, v. OIL TRANSPORT COMPANY, Inc., Appellee.

No. 18230.

United States Court of Appeals Fifth Circuit.

July 6, 1960.

Geo. B. Matthews, Lemle & Kelleher, New Orleans, La., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for Ohio Barge Line, Inc., appellant.

Cornelius G. Van Dalen, New Orleans, La., for appellee, Deutsch, Kerrigan & Stiles, Christopher Tompkins, New Orleans, La., of counsel.

Before HUTCHESON, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Indigenous to the Mississippi-Ohio River system, the parties inject a note of romance into this otherwise run-of-the-mill collision case. The appellant, carrying the heavy burden of overturning fact findings and a decree of sole fault sets the stage by its opening line. "On a cool, clear night in April of 1956 the Steamer Lunga Point was bound down the Ohio River with a tow of seventeen (17) barges." With great earnestness, but with an acknowledged realism befitting its skilled advocates, it then asserts that a review of the record and particularly the testimony of appellee's own witnesses and certain physical facts should convince us that the disposition of the case was clearly erroneous. To this main theme appellee rejoins even at the possible risk of mixing up the figuratives, that this is just "another fact appeal in admiralty in which the losing party" is "softly whistling in the shadow of McAllister vs. United States 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20."

In viewing this as one in which fact findings are crucial both are right. Not a single, important or novel law point exists or is scarcely worthy of mention once the fact is found. And in concluding that the appellant fails in its valiant effort, we do this not because we regard McAllister as paralyzing us from our "eventual responsibility for the facts as well as for the law," River Terminals Corp. v. Southwestern Sugar & Molasses Co., 5 Cir., 1960, 274 F.2d 36, 37. Rather, we are satisfied that in this kind of controversy functions of the courts in the judicial hierarchy are distinct and different, and we undermine the vitality of the system by a too-quick meddling in the principal business of a trial court. A trial of a hotly contested, sharply disputed case is the task of a trial court. Whether formulated in the mold of "clearly erroneous" or followed intuitively as a measure, reviewing courts, even in admiralty where the opinions often spoke of trials de novo, should be slow to overturn fact decisions made by the judge before whom the facts are annealed through the hammering, heating process of vigorous, running advocacy. If we were to approach it as simply a question — how should this case be decided? — we would effectually bypass a trial court. The problem faced is more nearly that of determining whether the trial judge, faced with the choice — often hard choices between competing versions of simple or complex occurrences — has fairly weighed the matter and has reached a conclusion which seems substantial and reasonable even though another result might have been achieved either by him or others. In this approach it is our view that the District Court's findings neither should, nor may, be disturbed in this case.

The vessel held solely at fault was the downbound steam tug Lunga Point. Her tow collided with that of the up-bound diesel tug Bayou Plaquemine in the Ohio River below Broadway Hollow Light (Mile 559.0) at approximately Mile 559.7. The River, at this place, runs substantially east-west and below Broadway Hollow Light it has an easy bend to the south. The Lunga Point, downbound, therefore had a left bend, the Bayou Plaquemine, upbound, a right bend. The River is approximately 1600 to 2000 feet wide. Located upstream, and of importance here, is the Madison Highway Bridge (Mile 557.3) crossing the River from Meridian, Indiana, on the north bank to Milton, Kentucky, on the south.

The Lunga Point, a large DPC steam tug, was pushing a tow of 16 cargo barges, 4 abreast, in 4 tiers. The flotilla was close to 900 feet in length with a beam of 104 feet. The Bayou Plaquemine, smaller but still amply powered, was pushing a tow of 4 oil barges with the flotilla having an overall length of 660 feet. Against a 3 mph current, she was making 3 to 4 miles per hour over the ground. The Lunga Point with a current underfoot at full ahead was running about 10 mph through the water. The sailing line on the U.S. Engineers' chart follows this course. It passes under the highway bridge approximately 200-300 feet off the Indiana shore. It then angles toward the Kentucky side in the direction of Broadway Hollow Light at which point it is approximately 500-600 feet off the Kentucky shore. It then broadens out somewhat in the bend so that in the southerly reach it is substantially in the center of the river.

There are a number of things virtually uncontradicted. The collision occurred about 200 to 300 feet off the Kentucky shore. The starboard forward corner of the Lunga Point's lead barge on the starboard forward end of the tow struck the port forward corner of the lead barge of the Bayou Plaquemine causing substantial damage and the sinking of this oil barge. The forward rake end of the lead barge immediately next to the starboard forward barge of the Lunga Point also sustained damage undoubtedly from the oil barge scraping along after initial impact. Each tug and tow was angled in toward the Kentucky shore thus presenting the port forward corner of the Bayou Plaquemine's tow to the starboard forward corner of that of the Lunga Point. The physical damage, contrary to Lunga Point's contention, does not establish anything more.

Except for a more abrupt swing toward the Kentucky shore in the jaws of collision, the Lunga Point was in that position close to the Kentucky shore as a matter of deliberate action. She was angling from the bridge to the point with the intention of passing the point close at hand. She was trying to stay out of the bend. What caused the collision, she asserts, was that the Bayou Plaquemine suddenly changed course from close by the Indiana shore to cross Lunga Point's intended path, and also failed to carry out an agreed starboard to starboard passing agreement. The trial court, in a variety of specific findings, rejected this to hold the Lunga Point at fault for persisting in a starboard to starboard passage without proper concurrence and in crowding down on the Bayou Plaquemine then well on her own (Kentucky) side of the river.

The key to this case as the trial judge saw it, and as we too see it, was the position and course of the Bayou Plaquemine. According to the Lunga Point, some time after she had passed under the bridge, she noticed an upbound tug with tow deep in the bend over near the Indiana shore. As there is risk in a large downbound tow falling off onto the Indiana shore if she gets too far into the bend, her purpose was to hug the point to pass 300 feet or so off the Kentucky shore. The position of the upbound Bayou Plaquemine made this easy and safe. No passing signals had been exchanged either by the ascending vessel required to initiate them or by the descending vessel required to assent or otherwise indicate dissent. Rule 18, Western Rivers Rules, 33 U.S.C.A. § 343. After proceeding on her angular course toward the point, the Lunga Point when 1 to 1¼ mile away from the Bayou Plaquemine saw the Bayou Plaquemine suddenly change her course to one substantially at a 45 degree angle across the river toward the Kentucky shore and across the head of the Lunga Point's tow. When she saw this, the Lunga Point immediately blew a danger signal of several short blasts followed by two blasts proposing a starboard to starboard passing which, she said, was immediately assented to by the Bayou Plaquemine. In addition, she put her engine on full astern and attemped to throw her head further in toward the Kentucky shore to effectuate the starboard to starboard passing.

Except for the continuous course of the Lunga Point angling across toward the Kentucky shore, this story is hotly disputed by the Bayou Plaquemine. She insists that she was near the center or...