CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation152 F.2d 916
Docket NumberNo. 5389.,5389.
Decision Date27 December 1945

Thomas H. Middleton, of New York City (Hill, Rivkins & Middleton, of New York City, and Louis J. Poisson, of Wilmington, N. C., on the brief), for appellant Texas Gulf Sulphur Company, Inc.

George Rountree, Jr., of Wilmington, N. C., and Gerald J. McKernan, of New York City (Rountree & Rountree, of Wilmington, N. C., and Macklin, Brown, Lenahan & Speer of New York City, on the brief), for appellant Diamond Steamship Transportation Corporation, Inc.

John W. Oast, Jr., of Norfolk, Va. (Carr, James & Carr and Murray G. James, all of Wilmington, N. C., on the brief), for appellees.

Before SOPER and DOBIE, Circuit Judges, and HARRY E. WATKINS, District Judge.

DOBIE, Circuit Judge.

Texas Gulf Sulphur Company, Inc. (hereinafter called Texas), owner of a cargo of sulphur lately laden on board the steamship "Severance," and Diamond Steamship Transportation Corporation (hereinafter called Diamond), owner of the Steamship "Severance," filed a libel in admiralty in personam, in the United States District Court for the Eastern District of North Carolina, against R. R. Stone, trading as Stone Towing Line. The Peoples Savings Bank and Trust Company, Guardian of Thomas H. Stone, an incompetent, as owner of the gas screw tug "Stone 6" intervened on a petition for limitation of liability. From a decree of the District Court adjudging that the loss suffered by the libellants was not caused by the neglect of the respondents, the libellants, Texas and Diamond, have duly appealed.

The "Severance" was a turret type vessel with a registered tonnage of 4,993 tons gross and 3,373 tons net, with a length of 366 feet, a beam of 53 feet and a depth of 24.9 feet. She is a single screw vessel, built in England in 1909, with her air pump activated by the movement of her propeller shaft.

The "Stone 6" was a gas screw tug with a length of 94.3 feet, a beam of 20.5 feet and a depth of 6.3 feet. Her engine was of 200 horsepower, capable of being gagged up to 300 horsepower.

Under a contract between the libellants and respondent, R. R. Stone, the "Severance," under tow of the "Stone 6," was proceeding from Wilmington, North Carolina, up the northwestern branch of the Cape Fear River to Navassa. The "Severance" collided with the fender piling of the highway bridge across the river near Point Peter, sank soon after the collision, and her cargo of sulphur was severely damaged.

No opinion was filed by the District Judge, who wrote to the proctor for respondents that the District Judge found the respondents without fault and therefore relieved of liability. In this letter the District Judge requested the proctor for respondents to present findings of fact and conclusions of law. The District Judge then, practically in toto, adopted these findings and conclusions.

This practice is not to be commended. It has been condemned by many courts as not living up to the provision of Admiralty Rule 46½, 28 U.S.C.A. following section 723: "In deciding cases of admiralty and maritime jurisdiction the court of first instance shall find the facts specially and state separately its conclusions of law thereon." See Irvine v. The Hesper, 122 U.S. 256, 7 S.Ct. 1177, 30 L.Ed. 1175; Petterson v. New York Central R. Co., 2 Cir., 126 F.2d 992; Schilling v. Schwitzer, 79 U.S.App.D.C. 20, 142 F.2d 82; City of New York v. McLain Lines, 2 Cir., 147 F.2d 393; Chicago, D. & G. B. Transit Co. v. Moore, 6 Cir., 259 F. 490. We do not hold that the practice affords a ground for reversing the decree of the District Court. We content ourselves by observing that these findings of fact and conclusions of law are not, at our hands, entitled to the same weight and dignity which they would have possessed had they represented the unfettered and independent judgment of the trial judge.

The contract here, we think, was not a mere contract of towage, it was also a contract of pilotage. All the surrounding circumstances clearly indicate this.

The record abounds with evidence to prove that, just before the "Severance" reached the highway bridge, she took a sudden sheer to port and collided with the piling. On the fateful morning, Dosher boarded the "Severance," went up on her bridge, and the tug "Stone 6," in pursuance of his orders, was made fast with a hawser to the steamer's bow. Dosher informed Captain Hardy of the "Severance" that he (Dosher) delayed his arrival somewhat to move the "Severance" at the proper stage of the tide. At Dosher's command, the anchor of the "Severance" was raised, her engines were started and the trip up the river began. The weather was clear, a slight wind prevailed, the tide was the last of the ebb.

Just before the collision, Captain Hardy asked Dosher's permission to go below for lunch, and, on Dosher's assent, Captain Hardy left the bridge. At the time of the collision, Cooper, third mate of the "Severance," was on the bridge, standing by the engine room telegraph to relay Dosher's commands to the engine room, and a seaman was at the wheel. Dosher was thus in complete command.

When the sheer to port by the "Severance" occurred, Dosher ordered the engines full speed astern and the helm hard right. These commands, which seemed proper, were promptly obeyed. The sheer to port, however, continued, the hull struck rocks on the bottom of the river and the steamer soon sank. Then arise the apposite inquiries: What caused this sheer to port? Who, if anyone, was responsible therefor? The answers are not absolutely forthright and clear.

We start with the rule that when the "Severance," in complete control of Dosher, in waters with which he was familiar, on a clear day with a light wind, ran into a readily visible stationary object, the piling of the bridge, this raises a presumption of negligence on Dosher's part that at least calls for some reasonable explanation of the collision. As far back as 1877, Mr. Justice Clifford said in The Virginia Ehrman, 97 U.S. 309, 315, 24 L.Ed. 890.

"Vessels in motion are required to keep out of the way of a vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precautions."

See, also, The Louisiana, 3 Wall. 164, 70 U.S. 164, 173, 18 L.Ed. 85; The Bertha F. Walker, 2 Cir., 220 F. 667, 668; Savannah & New York Transportation Co. v. Klaren Bridge Co., 4 Cir., 252 F. 499, 504; United States v. Norfolk-Berkley Bridge Corporation, D.C., 29 F.2d 115, 126; Louis Dreyfus v. Paterson Steamships, 2 Cir., 43 F.2d 824, 825, 72 A.L.R. 242.

Appellees attempt to explain the collision on the grounds that the "Severance" was a cranky vessel and difficult to handle, that her engine response was faulty and her steering gear defective. We are not impressed by these contentions. Appellees knew what nature of ship she was before the contract was made or the voyage up the river was started. The testimony of Captains Dosher, Peders and Cudworth is far from convincing. This was more than offset by the testimony of the officers and crew of the "Severance." And it is particularly noteworthy that Captain Dosher made no complaint on this score before the collision. Much more important is the fact that his testimony before the Marine Investigation Board, given four days after the accident, is at complete variance with his testimony given at the trial. Before this Board, Captain Dosher, when directly asked: "Was the steering gear in good condition?", replied: "Seemed to be." Again, before the Board, to the question: "You had full cooperation from everybody on board: engine-room signals answered, various orders carried out?" his reply was: "Yes, sir." See, The Mercury, 1 Cir., 2 F.2d 325, 326; The Perseverance, 2 Cir., 11 F.2d 527. And, in The President Polk, 2 Cir., 43 F.2d 695, 696, Circuit Judge Learned Hand pointedly said:

"The master's own report, made the very day of the accident, completely disposes of his testimony."

As to the cause of the sudden sheer of the "Severance," the testimony of Captain Dosher before the Marine Investigation Board is very revealing:

"Q. How do you account for the vessel taking the sheer? A. Captain, I couldn't figure that out. Usually if a vessel is going to sheer going through there they will sheer when they first strike the point. She was going so steady until she got right in the draw and what took that notion unless on the last of the freshet from back current on the bottom or got a suction from the bank." (Italics ours.)

And, again:

"Q. Did you think there was anything unusual about the current at that time? A. No, nothing that I could discern from the surface of the water at that time. It was the last stage of a freshet and there would be a kind of back current underneath, not noticeable from the top." This is strengthened by the testimony at the trial given by Mate Cooper of the "Severance," who was on the bridge before, and at the time of, the collision.

"* * * in the river itself there wasn't any indication of much current at the time we got under way, because it was slack water as near as I can recall, but when we got around this Point Peter why the tide there was running like a mill race. It was all the difference in the world. * * *"

"I noticed all kinds of whirlpools when we rounded Point Peter."

And, also:

"Q. At the time or very shortly after the time of the vessel running into those whirlpools is when it took that sheer to port? A. After we got in those whirlpools."

And under cross-examination by Mr. Oast:

"Q. Captain, these tide whirls that you have referred to in your answers to questions by Mr. Wright, those were located almost in the draw of the...

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