Societa Anonima Navigazione Alta I. v. Oil Transport Co.

• Decision Date: 25 April 1956
• Docket Number: No. 15848.,15848.
• Citation: 1956 AMC 1073,232 F.2d 422
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: SOCIETA ANONIMA NAVIGAZIONE ALTA ITALIA, owner and claimant of the Steamship THE MONGIOIA, Appellant, v. OIL TRANSPORT COMPANY, Inc., etc., Appellee. SOCIETA ANONIMA NAVIGAZIONE ALTA ITALIA, Libelant, Appellant, v. OIL TRANSPORT COMPANY, Inc., etc., Appellee. SOCIETA ANONIMA NAVIGAZIONE ALTA ITALIA, Claimant, Appellant, v. A & O TOWING COMPANY and THE Tug RAY, Appellee.

1956 AMC 1073, 232 F.2d 422 (1956)

SOCIETA ANONIMA NAVIGAZIONE ALTA ITALIA, owner and claimant of the Steamship THE MONGIOIA, Appellant, v. OIL TRANSPORT COMPANY, Inc., etc., Appellee.

SOCIETA ANONIMA NAVIGAZIONE ALTA ITALIA, Libelant, Appellant, v. OIL TRANSPORT COMPANY, Inc., etc., Appellee.

SOCIETA ANONIMA NAVIGAZIONE ALTA ITALIA, Claimant, Appellant, v. A & O TOWING COMPANY and THE Tug RAY, Appellee.

No. 15848.

United States Court of Appeals Fifth Circuit.

April 25, 1956.

Walter Carroll, Joseph M. Rault, Jr., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellant.

Brunswick G. Deutsch, Francis Emmett, Deutsch, Kerrigan & Stiles, Eberhard P. Deutsch, New Orleans, La., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

BROWN, Circuit Judge.

The Mongioia, an Italian ex-liberty ship, crashed in to the portside of the Tug Frank B. Durant's tow at 3:29 a. m. in the Mississippi River just below the Forebay entrance to the Industrial Canal. The District Court held her solely at fault. Her claim here, of course, is that she has been wronged by the District Court's action, so much so that she should go free and Durant cast for it all. Though nowhere reflected by written or spoken word, a faint whisper is detected that half a loaf would be better than none, and if not persuaded that she is guiltless, we should at least spread responsibility between the two with a decree for mutual fault.

Either undertaking is, of course, beset with some difficulties for the Mongioia. The first of which is the acceptance by us of fact findings unless clearly erroneous, C. J. Dick Towing Company v. The Leo, 5 Cir., 202 F.2d 850, 1951 AMC 1539; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 AMC 1999, in recognition of the fact finding function of the District Court. The second is the justifiable reluctance of an Appellate Court microscopically to scan a record in search of a complete or partial escape for a vessel whose fault is spectacular and glaring. The Queenston Heights, 5 Cir., 220 F.2d 120, 1955 AMC 797; The Great Republic, 23 Wall 20, 23 L.Ed. 55.

The Industrial Canal comes into the east side of the Mississippi River at a 20 to 30-degree down-river angle. The result is that a tow coming out of the Canal intending to proceed up-river must swing about 120 degrees to her right. As she heads out and comes into the stream, the river current (here 2 to 3 MPH) strikes the starboard side of the tow broadside tending to set her further downstream. The head of the tow, initially downstream, must be swung to starboard against the current through this 120-degree are.

This was the maneuver of the tow made up of three loaded integrated steel oil barges (278 feet × 48 feet) and the twin-screw 1800 HP diesel Tug Durant pushing at the stern. The overall length of the tow was 952 feet. The Tug McCall, spotted in the river as a lookout for oncoming triffic, gave an all clear signal. The Durant, confirming that the river was clear, as it was, blew one blast and proceeded out from the Forebay in to the river. The Tug Ray was stationed with one line from her bow to a bitt about 50 feet aft of the port forward corner of the lead barge to push the head of the tow upstream and thus assist the Durant in swinging the tow.

The tow was properly lighted with red (port) amber (center), and green (starboard) screened barge lights on the forward end of the lead barge. There were no other lights, nor did the Rules require any, on the barges. So, from the bow of the lead barge aft to the Tug Durant, no lights outlined or marked the presence of these barges with their slight one and one-half foot freeboard. But the Durant had two searchlights, one playing on the starboard side of the tow and toward the starboard forward corner of the lead barge, the other aft on the east bank to reveal how far off the bank the stern was as the flotilla was swinging. And, in addition to her red and green running lights, the Durant displayed vertical white towing lights indicating that she was pushing a tow ahead or had one alongside. The Ray had running and towing lights, but as she pushed against the tow's port forward corner, nothing but her stern light (and miscellaneous deck lights) was visible to a vessel approaching from her stern. And it may be that, at her position and as the tow was swinging, she may have, from time to time, blanked out from view the red (port) light of the barge.

Mongioia was downstream bound for New Orleans, although at this time neither was aware of, nor navigating with respect to, the other. Durant soon became aware of Mongioia and when she was, by the tug's estimate, about 7 minutes and ¾ of a mile off from collision, the tug, considering that the upbound vessel was headed apparently on a course into the tow, blew the danger alarm of four blasts which was not, however, heard. The flotilla was then athwart the river, the swing having progressed to the stage where the tug's stern, angling down-river, was about 150 feet off the east bank, and the head of the tow, angling up-river, was about midway of the 2300 foot stream. About the same time and as a part of this precautionary action, the Durant's Pilot ordered and obtained extra, full power astern on the tug's engines to quicken the swing.

As Mongioia sketched the story, when about ½ to ¾ of a mile below collision, Mongioia saw two sets of lights of vessels not identified until after collision — those of the Tug Durant, 4 points off her starboard bow and near the east bank of the river — and those of the Ray, a stern light and miscellaneous deck lights indicating apparently a tug bound upstream, about two points off her starboard bow. She first blew two blasts to overtake on the Ray's portside.

No answer or reply was received, and Mongioia proceeded on under half-a-head making 6½ knots over the ground. When she was, her local Pilot judged, ¼ of a mile off, he had a change of heart, blew one blast to indicate he now desired to overtake the vessel (Ray) on her starboard side, put the engines on slow ahead and the rudder right to swing to starboard. The Pilot and the Italian Master were apparently unsure as to just what was ahead, for by use of the ship's powerful glasses, each scanned the area of the lights and at least one thought that there was a dark line on the water — which there was, of course, as it was Durant's barges. Within a few moments, Mongioia found herself 200 feet off the barges and her belated actions of dropping anchor and going astern were ineffectual. Her stem hit the portside of the middle barge about 100 feet aft of the bow end which meant that the tow was struck approximately 400 feet aft of the head of the tow.

Mongioia cannot divert the focus on her inexcusable conduct through any suggestion that it was fault for the tow to be where she was. Navigable waters are for little as well as for big vessels, for tows and nondescript floats, tugs or barges, as well as ocean liners. There was nothing about Mongioia or her mission which, from her position downstream, gave her the right to preempt the river ahead or demand that tows either await her pleasure, remake the tow, or undertake the swing into the river in such a way as to avoid impeding her voyage as she desired to make it. Complaint cannot be made of the tow's lights. Mongioia read them wrong, but this was not due to any act of the tow or the deficiency of the rules which affirmatively prescribe lighting requirements and forbid improvised lighting layouts which might confuse or mislead, 33 U.S.C.A. §§ 171, 181; Coast Guard Regulations, Rule 36, 33 CFR 80.36.

Nor, as she urges, does compressing this into the category of Special Circumstances, Old Time Molasses Co. v. United States (The Barranca), 5 Cir., 31 F.2d 963; Id., 20 F.2d 192, 1927 AMC 1208; The Invader (B. B. No. 21), 2 Cir., 54 F.2d 347, 1931 AMC 1854; The Arfeld (The Lacuna), D.C.E.D.La., 42 F.2d 745, 1930 AMC 1703; The Socony No. 19 (Helene No. 2), 2 Cir., 24 F.2d 653, 1928 AMC 602; The Dorset, 4 Cir., 260 F. 32, transfer all of the duties onto the tow or excuse Mongioia from the consequences of her flagrant errors. Actually, this offers a poor escape from the charge and holding that she violated the Crossing or Overtaking Rule. We would doubt that it was a case of crossing; see e. g., Inland Rule 19, 33 U.S.C.A. § 204; The Salutation (Delivery No. 5), 2 Cir., 79 F.2d 609, 1936 AMC 227; Clyde-Mallory Lines v. New York Central Railroad Co., 2 Cir., 83 F.2d 158, 160, 1935 AMC 1107; The Boston Socony, 2 Cir., 63 F.2d 246, 1933 AMC 330; Commonwealth & Dominion Line v. United States, 2 Cir., 20 F.2d 729, 1927 AMC 1690; for while the vessels lay at near perpendiculars, it was not the tow's purpose or intent to proceed on a course across the river to the west. Ordinarily, the giving-way vessel would pass under the stern of the privileged one but had Mongioia done this, it would have put her ultimately into the stern of the Durant, or at least into an unauthorized overtaking on Durant's starboard side, as the tow successfully swung into the thread of the stream. This indicates, we think, that while the tow was athwart the intended course of Mongioia and thus had to be avoided, she was not being navigated on an intersecting course.

As a specific situation, it came closer to being one of overtaking; see, e. g., Inland Rule 24, 33 U.S.C.A. § 209; Coast Guard Regulations 33 CFR 80.6; Socony Vacuum Oil Co. v. Smith, 5 Cir., 179 F.2d 672, 1950 AMC 445, 451; Northern Navigation Company v. Minnesota Atlantic Transit Co., 8 Cir., 49 F.2d 203, 1931 AMC 1001; The City of Baltimore, 4 Cir., 282 F. 490; The Socony No. 115, 58 F.2d 392; D.C.S.D.N.Y., 1932 AMC 441; Dalzell v. United States, D.C.E.D.N.Y., 60 F.2d 1068, 1932 AMC 816; The Monterey, D.C.S.D.N.Y., 171 F. 442; since at this stage of the swing, had Mongioia navigated prudently she could easily have passed between the...