Petition of United States

• Decision Date: 20 April 1970
• Docket Number: No. 27973 Summary Calendar.,27973 Summary Calendar.
• Citation: 425 F.2d 991
• Parties: Petition of the UNITED STATES of America, as owner of the S/S WINGED ARROW, for exoneration from or limitation of liability. DAMMERS & VAN DER HEIDE SHIPPING & TRADING (ANTILLES), INC., as owner of the M/V SANTA MARIA, Claimant, v. The STEAMSHIP JOSEPH LYKES, her engines, etc., in rem, and Lykes Bros. Steamship Co., Inc., in personam, et als., Defendants. CENTRAL GULF STEAMSHIP CORPORATION, as owner of the S/S GREEN PORT, Claimant-Appellant, v. LYKES BROS. STEAMSHIP COMPANY, Inc., and the S/S JOSEPH LYKES, et al., Defendants-Appellees. MARINE TANKERS, INC., as owner of the MT SAVFUEL, Claimant, v. S/S JOSEPH LYKES, her engines, etc., in rem, and Lykes Bros. Steamship Co., Inc., in personam, Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 991 (1970)

Petition of the UNITED STATES of America, as owner of the S/S WINGED ARROW, for exoneration from or limitation of liability.

DAMMERS & VAN DER HEIDE SHIPPING & TRADING (ANTILLES), INC., as owner of the M/V SANTA MARIA, Claimant, v. The STEAMSHIP JOSEPH LYKES, her engines, etc., in rem, and Lykes Bros. Steamship Co., Inc., in personam, et als., Defendants.

CENTRAL GULF STEAMSHIP CORPORATION, as owner of the S/S GREEN PORT, Claimant-Appellant, v. LYKES BROS. STEAMSHIP COMPANY, Inc., and the S/S JOSEPH LYKES, et al., Defendants-Appellees.

MARINE TANKERS, INC., as owner of the MT SAVFUEL, Claimant, v. S/S JOSEPH LYKES, her engines, etc., in rem, and Lykes Bros. Steamship Co., Inc., in personam, Defendant.

No. 27973 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 20, 1970.

Robert B. Acomb, Jr., Frank C. Allen, Jr., New Orleans, La., for Central Gulf.

John B. Gooch, Jr., New Orleans, La., for National Marine Service.

Edmond C. Salassi, Patrick L. Burke, New Orleans, La., for Dammers & Van Der Heide.

Alfred M. Farrell, Jr., Benjamin W. Yancey, New Orleans, La., for Lykes Bros. Steamship Co.

Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Thomas J. Boyle, Trial Atty., Admiralty & Shipping Section, Robert V. Zener and Robert M. Heier, Attys., U. S. Dept. of Justice, Washington, D. C., for the United States.

George W. Healy, III, New Orleans, La., for Thomas Jordan, Inc.

Before THORNBERRY, CARSWELL and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

The events at issue here were the result of one of nature's turbulent miscarriages, Hurricane Betsy, a wretched wench who lent credence to Voltaire's remark that "nature has always had more force than education."¹ The sultry storm struck the port of New Orleans on the night of September 9 and the early morning of September 10, 1965. Betsy produced winds of unprecedented force and a tidal surge that ran upriver with a velocity of over 20 m. p. h. During the hurricane, the SS Joseph Lykes, a ship without power or regular crew because it was undergoing repairs, and the USS Winged Arrow and certain Army barges broke loose of their moorings and eventually collided with the SS Green Port, a ship owned by Central Gulf Steamship Corporation, appellant here.

Central Gulf brought suit against Lykes Brothers Steamship Company, owner of the Joseph Lykes, and the United States, owner of the Winged Arrow and the Army barges, in the United States District Court for the Eastern District of Louisiana. The cause was tried to the Court. Central Gulf alleged that Lykes and the United States were negligent in preparing for the hurricane and in mooring the vessels, and that the damage done to the Green Port by the collisions with those vessels was partly the result of that negligence. In making this contention, Central Gulf evoked the traditional maritime presumption that fault lies with a moving vessel which collides with a stationary object or moored vessel. Lykes and the United States defended on the theory that the collisions were caused solely by the unprecedented, unexpected force and fury of Hurricane Betsy, an Act of God. The trial judge, filing extensive findings of fact and conclusions of law, held for Lykes and the United States. Petition of United States, E.D.La., 1969, 300 F. Supp. 358.

Under Rule 52(a) of the Federal Rules of Civil Procedure, a trial judge's findings are not to be set aside unless clearly erroneous. It is settled that the clearly erroneous standard of review applies in admiralty cases. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Compania Anonima Venezolana de Navegacion v. Perez Export Company, 5th Cir. 1962, 303 F.2d 692, 694. This Court does not sit in de novo review of the facts presented to the trial court, and we must give due deference to the opportunity of the trial judge to determine the credibility of the witnesses. A reading of the record convinces us that the findings of fact of the district court were reasonable and thus we accept those findings.

I.

After lashing southern Florida with peak wind gusts of 105 m. p. h. in the Miami area and 140 m. p. h. in the Upper Keys, Hurricane Betsy entered the Gulf of Mexico rushing toward an uncertain destination. On the morning of September 8, she was moving generally in a west-northwesterly direction. On the afternoon of that same day, security preparations went forward in the port of New Orleans, the storm then being 450 miles away.

The Joseph Lykes, undergoing extensive repairs in the port of New Orleans, was without power and without a crew. Her deck machinery, cargo winches, and anchor windlass had all been removed ashore for sand blasting. Her anchors were unusable and she was moored starboard side to, bow upriver, at a wharf along the left descending bank of the river. Third Officer McCormick was aboard each working day beginning September 1; on September 8, her master, Captain Madison, rejoined the ship. On the afternoon of the 8th, at the direction of the owner's port captains, regular members of the Lykes shoregang reported to the Joseph Lykes to put out additional mooring lines. By 4 p. m., when the shoregang departed, the Joseph Lykes, had out five headlines, two forward breast lines, one forward spring line, four back spring lines, and four stern lines, some broken out of the gear locker and used for the first time.

By the afternoon of September 9, Betsy's rate of advance up the Gulf had increased to 12 m. p. h. The storm was intensifying and took a northwesterly tract. Lykes again sent members of the shoregang to the Joseph Lykes. They put out additional lines, ultimately filling each of the ship's bitts and bollards with the maximum load of 8-inch mooring lines. Counting bights and leads of the double lines, there were 30 leads to the steel cleats and bollards on the wharf. During the late afternoon, five members of the shoregang were ordered to assist Captain Madison and Mr. McCormick as security watch aboard ship. The weather worsened continually and by 9:30 p. m., peak gusts reached an estimated 100 m. p. h. Thereafter the wind was constant, and increasing in velocity. Captain Madison and a seaman patrolled the main deck and the wharf in checking the moorings. The lines were holding well and under an even strain.

When it became apparent that the Winged Arrow would have to ride out the hurricane, the Government's Maritime Administration ordered additional moorings for the vessel. By 3 p. m. of the afternoon of September 9, the ship's crew had completed the additional moorings. The Winged Arrow's mooring arrangement consisted of two one and one-quarter inch wire cables, one forward and one aft, and between fourteen and twenty manila and synthetic lines to each available bollard on the wharf. On the evening of September 9, the captain of the Winged Arrow periodically inspected his ship's lines and was satisfied that they had an even strain and were sufficient for the impending hurricane.

The moorings of the Army barges had also been strengthened by additional lines put out that morning. When the barge mooring arrangement had been completed, it consisted of at least six parts of six-inch manila line at each end of each barge running on each side to either the wharf or the next adjacent barge in the tier, each tier containing no more than four barges. This arrangement was periodically inspected by Navy officers on duty on the night of September 9 and found to be sufficient for the impending hurricane.

During the evening, the river rose rapidly. A rise of 3.6 feet was recorded between 9 and 10 p. m. in the harbor, the river...