THE SS BELLATRIX

• Decision Date: 03 October 1940
• Docket Number: No. 7304.,7304.
• Parties: THE S. S. BELLATRIX UNITED STATES v. MARTIN et al.
• Court: U.S. Court of Appeals — Third Circuit

114 F.2d 1004 (1940)

THE S. S. BELLATRIX

UNITED STATES v. MARTIN et al.

No. 7304.

Circuit Court of Appeals, Third Circuit.

October 3, 1940.

J. Cullen Ganey, U. S. Atty., and J. Barton Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa., and J. Frank Staley, of Washington, D. C., for appellant.

Howard H. Yocum and Biddle, Paul, Dawson & Yocum, all of Philadelphia, Pa., for appellees.

Before BIGGS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

The United States, as the chartered owner of the steamship Bellatrix, filed a libel in admiralty against P. F. Martin, in personam, and three tug boats, in rem, for damages to The Bellatrix alleged to have been suffered through the negligence of the respondents. The court below, having found against the libellant on the charges of negligence, entered a decree dismissing the libel. The present appeal followed, the libellant assigning for error the trial court's findings, conclusion and decree. A recital of the material facts, therefore, becomes necessary.

An authorized agent of the United States Shipping Board Emergency Fleet Corporation, which operated The Bellatrix, instructed the respondent Martin, who was engaged in the towing business, to send three tug boats to tow The Bellatrix from a shipyard on the Christiana River in Wilmington, Delaware, to a dock in Philadelphia. The work was to be done on an hourly basis. Martin dispatched the tugs which arrived alongside The Bellatrix about 3 o'clock in the afternoon, and Captain Bishop, master of the tug Caspian, became the pilot in charge of the tow. The Bellatrix was "dead", that is, without power of her own. Because of a squally wind at the time, the tow was not commenced immediately. About 5 P. M., the wind having subsided somewhat, Captain Madsen, the master of The Bellatrix, and Captain Bishop concluded that the weather conditions were favorable. Madsen also consulted by telephone with the marine superintendent and representative of the Emergency Fleet Corporation at Philadelphia, whereupon he told Bishop that "it was all right to go ahead" and that "he Madsen thought it was safe". He also asked Bishop for his opinion and Bishop concurred with Madsen. Thereupon the tow was begun.

In proceeding downstream from the shipyard, it was necessary for the tow flotilla to pass through the draws of several bridges in Wilmington. One of these draws was at Third Street Bridge, which first comes in sight after a bend in the river has been rounded about two thousand feet above the bridge. When the tug Bristol, which was leading the flotilla by the length of her twenty-five to thirty fathom towline, attached to the bow of The Bellatrix, had rounded the bend, she blew a signal for the opening of the draw. The bridge tender responded with a signal which indicated that the draw would be opened immediately; and, shortly, the draw began to open. At the time, the tide was flood and the flotilla was proceeding at not more than two knots per hour.

Third Street Bridge was a bascule type, consisting of two leaves which, when in horizontal position, constituted the floor of the bridge for highway traffic. The leaves rested, respectively, upon abutments of the bridge on either side of the river, and were raised simultaneously, or nearly so, by motors operated by the bridge tender. In the lifting of the draw, the leaves rose at the middle of the bridge with the abutments in the relation of fulcrums, so that, when the draw was fully opened, the leaves stood in a vertical position with no part overhanging the waterway beneath. The width of the river between the bridge abutments was one hundred forty-five feet, giving ample clearance, when the draw was open, for a flotilla such as The Bellatrix and her accompanying tugs.

When The Bellatrix was about five hundred feet from the bridge, the master of The Bristol, observing that, while the leaf on the lefthand side of the draw had then reached a vertical position, the other leaf had come to a stop at an angle of from forty-five to sixty-five degrees, blew for a further opening of the halted leaf, which the bridge tender answered by gesticulating in apparent effort to indicate that he was unable to raise that leaf higher. About the same time, a squall struck The Bellatrix broadside on the port. Captain Bishop, perceiving that the righthand leaf continued to overhang the waterway and that, because of the wind, The Bellatrix might come into collision with the leaf, ordered full speed astern and a certain steerage maneuver on the two tugs which, for the purpose of the tow, were warped to either side of the bow of The Bellatrix. Nevertheless, the momentum of The Bellatrix carried her into the open draw, where a yard arm of the mast struck first near the outer end of the partly opened bridge leaf. The smoke-stack then came into contact with the bridge leaf and was bent partly backward before the vessel was brought to a full stop. When stopped, The Bellatrix drifted to leeward, where a portion of her starboard bulwarks was crumpled against the framework of the righthand bridge leaf.

The decree below dismissing the libel was the logical result of the trial court's findings which directly negatived the libellant's allegations of negligence. While we are free in a case such as the present to pass upon the facts de novo (The Piankatank, 4 Cir., 87 F.2d 806; Lillig v. Union Sulphur Co., 9 Cir., 87 F.2d 277), the findings of the trial judge are entitled to great weight. The Gezina, 4 Cir., 89 F.2d 300; The Piankatank, supra; Lillig v. Union Sulphur Co., supra; The James Griffiths, 9 Cir., 84 F.2d 785; Leathem Smith-Putnam Navigation Co. v. Osby, 7 Cir., 79 F.2d 280, certiorari denied 296 U.S. 653, 56 S.Ct. 370, 80 L.Ed. 465. In any event, there could be no...