The Percheron v. Alabama Transit Company, 16587.

• Decision Date: 16 July 1957
• Docket Number: No. 16587.,16587.
• Citation: 246 F.2d 135
• Parties: THE Tug PERCHERON, her engines, furniture, apparel, etc., and Cornelius Kroll & Company, Appellants, v. ALABAMA TRANSIT COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

246 F.2d 135 (1957)

THE Tug PERCHERON, her engines, furniture, apparel, etc., and Cornelius Kroll & Company, Appellants, v. ALABAMA TRANSIT COMPANY, Appellee.

No. 16587.

United States Court of Appeals Fifth Circuit.

July 16, 1957.

Chilton Bryan and E. H. Patton, Jr., Houston, Tex., and Benjamin Yancey, New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellants.

Robert B. Acomb, Jr., Jones, Walker, Waechter, Poitevent & Denegre and A. J. Waechter, Jr., New Orleans, La., for appellee.

Before RIVES and CAMERON, Circuit Judges, and DAWKINS, Sr., District Judge.

DAWKINS, Sr., District Judge.

Appellants were the respondents in a suit in admiralty brought by appellee for damages growing out of a collision in the Intracoastal Canal at approximately Mile Post 45 west of Harvey in the Eastern District of Louisiana, between the lead of a two barge pusher type tow under the control of the Tug Percheron and its crew, and the one barge, similar type tow of the Tug Richard Z, belonging to appellee. Both had been moving in an easterly direction, and the latter tug was sunk by the stern.

The Court below found that "any fault on the part of the Richard Z was of such a minor nature that it would be completely outweighed by the negligence on the part of the Percheron", to the extent that the latter was "solely" responsible for the collision and resultant damages.

Appellant assigns as errors the holdings: (1) There was no actionable fault on the part of the Richard Z "* * * for remaining in a hazardous position in the Intracoastal Canal for an unwarranted length of time, and for failing to give proper signals or warnings to other vessels"; (2) "* * * for failure to keep a proper lookout"; but finding the Percheron at fault: (1) "* * * for failing to have a bow lookout"; (2) that she "* * * was an overtaking vessel and therefore had the burden of proving herself free from fault"; (3) that she "* * * was at fault for proceeding at a speed at which she could not be stopped within one half of the visible distance ahead"; and (4) "* * * in holding the sinking was not the result of inevitable accident."

(1) It is the contention of the appellant that "* * * the undisputed testimony established actionable fault on the part of the Richard Z * * *" even under the findings of the Court below. However, appellant concedes that "* * * on some points involved there are conflicts of testimony", but that the findings thereon "* * * are clearly erroneous." It also claims that because all of "* * * the testimony by the appellee was in the form of written depositions, while two of appellant's witnesses testified in person and one by deposition", the "* * * findings of the Trial Court are subject to modification in the sound judgment of the reviewing Court."

Appellant further asserts that the testimony of Captain Fikes, Master of the Richard Z, "* * * itself established fault", and "* * * in dealing with points involving conflicts in testimony with appellant's witness" it is "so conflicting and illogical as to be not worthy of belief." In support thereof appellant claims that the lower Court found that the position of the Richard Z, where it had been stopped for some twenty minutes, was with its bow, or front end of the barge, (220 feet long) twenty-five feet from the north bank of the canal, and the stern of the pushing tug (55 feet in length) seventy-five feet from that bank; that this finding was in accordance with testimony of the Master of the Richard Z, on direct examination; (the bow of the tug was fastened in a V shaped slot in the center of the stern of the barge for pushing) whereas, appellant points out that on cross-examination, the witness admitted these figures were based upon the positions of the vessels the following morning; and that when shown pictures of the Richard Z and its tow, Fikes stated the barge was "a good fifty feet" and the stern of the tug at least 100 feet from the north bank, or some 25 feet further toward the center of the canal. The evidence showed the canal was 300 feet wide at the point involved, which was some 200 feet from the south bank on the starboard side. (It was shown that somewhere in the vicinity of Mile Post 45 there were anchored to the south bank one or more vessels estimated to extend some 75 feet toward the center of the canal. If the stern of the Richard Z was 100 feet from the north bank, being 15 feet wide, this would still leave 110 feet in approximately the center of the canal for the Percheron to pass. It was 24 feet wide, 81.1 feet long, and its barges 290.1 feet each by 50 feet in width, or a total length of 661 feet. Thus the Percheron's tow, with the maximum width of 50 feet had more than twice that distance to pass between the Richard Z...