Petition of Oskar Tiedemann and Company, 1764

Citation179 F. Supp. 227
Decision Date13 November 1959
Docket Number1765.,No. 1764,1764
PartiesPetition of OSKAR TIEDEMANN AND COMPANY for exoneration from or limitation of liability, as owners of THE SS ELNA II. Petition of the UNITED STATES of America and Mathiasen's Tanker Industries, Inc., for exoneration from or limitation of liability as owners of THE USNS MISSION SAN FRANCISCO.
CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)

COPYRIGHT MATERIAL OMITTED

Ernest S. Wilson, Jr., of Morford, Young & Conaway, Wilmington, Del.; Thomas E. Byrne, Jr., and John W. Ennis, of Krusen, Evans & Shaw, Philadelphia, Pa.; Perry A. Beck, New York City, for petitioner Oskar Tiedemann and Co.

Leonard G. Hagner, U. S. Atty., Robert W. Wakefield, Asst. U. S. Atty., Wilmington, Del., Harold G. Wilson and William C. Baker, Washington, D. C., for petitioner United States.

Harold Leshem and Harvey B. Rubenstein, Wilmington, Del., Abraham E. Freedman and Marvin I. Barish, of Freedman, Landy & Lorry, Philadelphia, Pa., for various claimants.

Wilfred J. Smith, Jr., and Frank J. Gentile, Jr., Wilmington, Del., John D. Richardson, Houston, Texas, for Ruth Allen, claimant.

William H. Foulk, Wilmington, Del., and Benjamin F. Stahl, Jr., Philadelphia, Pa., for Captain Henri V. Rice.

Henry A. Wise, Jr., Wilmington, Del., and Marvin Schwartz, New York City, for claimant Healy.

Herbert L. Cobin, Wilmington, Del., for various claimants.

LAYTON, District Judge.

On March 7, 1957, about 12:20 in the morning, the USNS "Mission San Francisco" (Mission), northbound, and the S.S. "Elna II" (Elna), southbound, collided in the close proximity of Buoy 1D on the Deepwater Range of the Delaware River about two miles south of New Castle. The collision was followed by two shattering explosions aboard Mission as the result of which her midship housing collapsed and sank into her hull, she broke in two and sank very swiftly. There were a number of deaths and injuries among Mission's crew.

Mission is an undocumented tanker owned by the United States (Military Sea Transport Service), manned by a civilian crew of 44, and operated by the Mathiasen's Tanker Industries, Inc. She had discharged a cargo of aircraft turbine and jet fuel (grade "JP-4") at Newark, N. J., the day before and was returning to Paulsboro, N. J., to take on a new cargo.

Elna is an old cargo ship operated under the Liberian flag. She had discharged a cargo of wood pulp at Wilmington and about 11:30 P.M., March 6th, left the Marine Terminal and proceeded down river for Baltimore under the command of Captain Kaare, an Estonian, residing in Toronto, Canada.

The United States, Mathiasen's Tanker Industries, Inc., and Oskar Tiedemann & Company have each petitioned for exoneration or limitation of liability pursuant to Sections 181-189, 46 U.S.C.A.

The vicinity of the collision is a sweeping bend in the Delaware River around what is familiarly known as Goose Point on the Jersey side. A northbound vessel navigating the bend leaves New Castle Range by making a 34 degree turn to starboard (about Buoy 2B) on to Bulkhead Bar Range. Bulkhead Bar Range is short, about 1200 yds. in length, and leads into Deepwater Point Range several hundred yards below Buoy 1D, at which point the vessel must make another 34 degree right turn into Deepwater Point Range. The two turns altogether comprise a sharp turn of 68 degrees. Some vessels navigate the bend in two distinct turns. Particularly at flood tide, as at the time of this accident, many navigators prefer to make the bend in one sweeping turn. At flood tide also, it is much better practice to hug the eastern, or Jersey, side of the channel because of the tendency of the following tide to skid the stern of a vessel sharply as she turns right.

The evidence strongly supports the following findings. The night was very clear with a five mile breeze. Mission was proceeding northbound at at least 17 knots (22 M.P.H. over the ground).1 The two vessels had, or could have had, each other under observation for 15 or 20 minutes prior to the accident. Indeed, Elna saw Mission's mast lights across Goose Point when the vessels were perhaps 4 miles apart. After making her turn into Bulkhead Bar Range, Mission proceeded straight up, or slightly to the right of, the center of the channel, and never again substantially changed her course. While a mile apart, Elna blew one blast indicating a port to port passing. Mission failed to respond. Parenthetically, it may be noted here that Mission's bridge twice failed to acknowledge her own bow watch's warnings (one bell) of Elna's approach.

When about one-half mile apart, and at a point where an extremely dangerous situation had developed, Elna again blew one blast which Mission ignored. Almost immediately thereafter, when collision was inevitable, Elna reversed her engines but could not avoid striking the starboard side of Mission which continued across Elna's bow.

The two heavy explosions aboard Mission which followed the collision blew huge gaps in her hull and the mid-ship housing collapsed into the hull. Despite these crippling blows, she was carried on by her own momentum and the tide some distance until she finally sank at a spot about 1380 feet north and east of Buoy 1D. The conclusion can only be that there was something terribly wrong on the bridge of the Mission that night; just what will never be known, for all her navigating officers including the pilot were killed in the explosion. As earlier observed, both ships have filed petitions for complete exoneration from liability. I shall first dispose of the petition of the Mission. Enough has already been determined by the general findings of fact to support a summary denial of this petition, but, even at the cost of some repetition, the importance of the case justifies a closer review.

Mission's Petition for Exoneration2

It is, of course, elementary that any negligence on the part of a vessel resulting from imprudent conduct in her navigation generally or from the violation of a statute will defeat a petition for exoneration from liability if such negligence was a contributing cause to the accident. United States v. Woodbury, 1 Cir., 175 F.2d 854; The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148; The Law of Admiralty, Gilmore & Black, Chap. VII, pp. 420-422. Here we find the Mission about 10:30 P.M. on the same night, steaming at full speed at Cross Ledge Light heedless of the presence of other vessels, ignoring whistles required by law and practically crowding the S.S. Gulf Lube onto the shoals on her extreme right side of the channel.3 Next, immediately prior to the accident in suit, we see her approaching a dangerous bend without diminishing her high speed, holding much too close to the center of the fairway rather than hugging her right, or easterly, side in conformity with safe practice, twice ignoring warning bells from her own bow lookout advising of the near approach of Elna, twice ignoring Elna's one blast signals for a port to port passing and, finally, crowding far over into the wrong side of the channel with the result that she collided with Elna which was well on her own side of the channel. In the course of so doing, Mission clearly violated two statutory rules of the road. First, she was in violation of Article 25 (33 U.S.C.A. § 210) of the Inland Rules which provides:

"In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel."

Secondly, she just as clearly violated Article 18, Rule 1 (33 U.S.C.A. § 203) in failing to acknowledge the one-blast signals of Elna. Rule 1 reads:

"When steam vessels are approaching each other head and head, that is, end on, or nearly so, it shall be the duty of each to pass on the port side of the other; and either vessel shall give, as a signal of her intention, one short and distinct blast of her whistle, which the other vessel shall answer promptly by a similar blast of her whistle, and thereupon such vessels shall pass on the port side of each other."

Now, under such circumstances the so-called Pennsylvania rule (The Pennsylvania, above cited) becomes squarely applicable. There the Supreme Court held that the violation of a statute (using a bell instead of a foghorn as required by statute) placed the burden upon the violator to show, not so much that the violation did not contribute to the accident, but rather, that it could not have. In this connection, the Court said at pages 136, 137 of 19 Wall., at pages 136, 137 of 86 U.S.:

"Concluding then, as we must, that the bark was in fault, it still remains to inquire whether the fault contributed to the collision, whether in any degree it was the cause of the vessels coming into a dangerous position. It must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration. The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute."
* * * * *
"Who can say the proximity of the vessels would not have been discovered sooner if the bark had obeyed the navy regulations? If it be said this is speculation, it may be admitted, but it is speculation rendered necessary by a certain fault of the bark. It is equally speculative to conclude that the collision would have taken place if a foghorn had been used instead of a bell, and infer therefrom that the fault of the bark had no
...

To continue reading

Request your trial
14 cases
  • Petition of Oskar Tiedemann and Company
    • United States
    • U.S. District Court — District of Delaware
    • December 8, 1964
    ...that "* * * the explosion of the Mission was perhaps the most violent ever known in the tanker trade * * *." Petition of Oskar Tiedemann & Co., 179 F.Supp. 227, 237 (D.Del.1959), and that "the collision was followed by two shattering explosions aboard Mission as the result of which her mids......
  • Petition of Den Norske Amerikalinje A/S
    • United States
    • U.S. District Court — Northern District of Ohio
    • October 27, 1967
    ...U.S.C. § 291). The requirement to blow the danger signal is of the greatest importance in these collision cases. Petition of Oskar Tiedemann and Company, D.C., 179 F. Supp. 227, affirmed 289 F.2d 237 (3 Cir., 5 "Rule 27. In obeying and construing these rules due regard shall be had to all d......
  • Mapco Petroleum, Inc. v. Memphis Barge Line, Inc.
    • United States
    • Tennessee Supreme Court
    • February 22, 1993
    ...399 F.2d 893, 895 (9th Cir.1968); Zeringue v. Golf Fleet Marine Corp., 666 F.Supp. 860, 863 (E.D.La.1986); Petition of Oskar Tiedemann & Co., 179 F.Supp. 227, 236 (D.Del.1959), aff'd, 289 F.2d 237 (3rd Cir.1961).3 "The vessel owner, within six months after a claimant shall have given to or ......
  • Slaven v. BP America, Inc.
    • United States
    • U.S. District Court — Central District of California
    • February 10, 1992
    ...as part of federal maritime law. See EAC Timberlane v. Pisces, Ltd., 745 F.2d 715, 722 n. 13 (1st Cir.1984); Petition of Oskar Tiedemann and Co., 179 F.Supp. 227, 238 (D.Del.1959); Actiesselskabet Ingrid v. Central R. Co., 216 F. 72, 78 (2nd Yet this doctrine is recognized under California ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT