THE ESSO ANNAPOLIS, 882.

• Decision Date: 21 January 1942
• Docket Number: No. 882.,882.
• Citation: 42 F. Supp. 930
• Parties: THE ESSO ANNAPOLIS. DENCH & HARDY CO. v. THE ESSO ANNAPOLIS.
• Court: U.S. District Court — District of Massachusetts

42 F. Supp. 930

THE ESSO ANNAPOLIS DENCH & HARDY CO. v. THE ESSO ANNAPOLIS.

No. 882.

District Court, D. Massachusetts.

January 21, 1942.

G. Philip Wardner, of Boston, Mass., for libelant.

Fitz-Henry Smith, Jr., of Boston, Mass., and Eugene F. Gilligan, and Kirlin, Campbell, Hickox, Keating & McGrann, all of New York City, for claimant.

SWEENEY, District Judge.

In this proceeding in admiralty the owner of the Motor Fishing Vessel Angie & Vence seeks to recover damages for the sinking of its vessel which occurred in a collision with the Tank Steamship Esso Annapolis, hereinafter referred to as the Esso.

Findings of Fact.

The collision occurred on the high seas off Chesapeake Lightship, latitude 36° 55' north, and longitude 74° 38' west, on February 7, 1940, at about 9:45 p. m. It was a clear night with a fresh northwest wind blowing. The proper navigating lights of both ships were burning brightly. The Angie & Vence was a 32 net ton fishing vessel, 80 feet in length over all, with a top speed of approximately 8½ knots. The Esso is a 6,613.7 net ton oil tanker, 553 feet over all, with a top speed of approximately 18 knots.

Just prior to the collision, the Esso was pursuing a course on 15° true at a speed of 16 knots. The Angie & Vence was pursuing a southwesterly course at 8 knots. There can be no serious contention that the Angie & Vence was without fault. At approximately 9 o'clock on the evening of the accident, the captain of the Angie & Vence turned the wheel over to one of the fishermen, Rosario Russo, with directions to maintain a southwest course until the vessel reached shallow water suitable for fishing. Another fisherman, Orlando, was placed on watch on the forward part of the vessel. Orlando saw the lights of the Esso about ten minutes before the collision, but, instead of remaining on watch, as was his duty, went below for a cup of coffee, and did not come up on deck again until after the collision had occurred. So that from the time he went below, which was just after sighting the Esso, the wheelman, Russo, was the only person above deck. This alone is sufficient to charge the Angie & Vence with fault. See The Ottawa, 3 Wall. 268, 18 L.Ed. 165.

The Angie & Vence has further been charged with fault in making a sudden turn to port towards the Esso just before the collision. This maneuver was partly due to the fact that the wheelman, Russo, had not observed the approaching Esso until he saw her bearing directly towards him when she was only a very short distance away. As a result, he became confused, and, misjudging the speed of the oncoming tanker, tried to dodge her by turning to port, which caused him to steer directly into the Esso. This faulty move on Russo's part, made as it was in extremis. would not relieve the Esso from fault if she were responsible for creating the emergency situation. Nevertheless, it might not have been made had there been a proper lookout on the Angie & Vence who had given Russo timely warning of the tanker's approach. I find that the Angie & Vence was at fault for not maintaining a proper lookout.

The next question is whether the action of the Esso and her crew contributed to the collision. The Angie & Vence, being clearly at fault, must maintain the burden of proving that the Esso was also at fault. See The Eagle, 9 Cir., 289 F. 661, 663, and cases cited therein.

From the mass of conflicting testimony, I find that the Esso first sighted the Angie & Vence about two points off her starboard bow. At that time only...