Union Oil Company of California v. Tug Mary Malloy

• Decision Date: 18 July 1969
• Docket Number: No. 27408 Summary Calendar.,27408 Summary Calendar.
• Parties: UNION OIL COMPANY OF CALIFORNIA, Plaintiff-Appellee, v. The TUG MARY MALLOY, her Engines, Tackle, Etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 669 (1969)

UNION OIL COMPANY OF CALIFORNIA, Plaintiff-Appellee, v. The TUG MARY MALLOY, her Engines, Tackle, Etc., et al., Defendants-Appellants.

No. 27408 Summary Calendar.

United States Court of Appeals Fifth Circuit.

July 18, 1969.

George W. Brown, Jr., Beaumont, Tex., for appellants.

Robert M. Julian, Houston, Tex., for appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

This suit in admiralty was brought by the Union Oil Company of California as owner of the tanker PURE OIL against the tug MARY MALLOY for damages sustained by the tanker in a collision on the inland waterways near Port Arthur, Texas. The trial court found that the accident was the sole responsibility of the MARY MALLOY and awarded damages to the plaintiff in the amount of $22,508.47. On this appeal, Levingston Shipbuilding Company, as owner of the MARY MALLOY, attacks the findings of the trial court as clearly erroneous and advances its own theory as to the cause of this unfortunate nautical contretemps. While appellant's theory is not without support in the record, we decline the proffered invitation to substitute our judgment on factual matters for that of the learned trial judge.

We note at the outset that the clearly erroneous rule in civil actions, F.R.Civ.P. 52(a), is applicable to suits in admiralty. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Hart v. Blakemore, 5 Cir.1969, 410 F.2d 218; Lloyd v. Gill, 5 Cir.1969, 406 F.2d 585; Haynes v. Rederi A/S Aladdin, 5 Cir.1966, 362 F.2d 345, 349. Under this rule, "the Court of Appeals may not set aside the judgment below unless it is clearly erroneous." McAllister v. United States, 348 U.S. at 20, 75 S.Ct. at 8. "A finding is clearly erroneous when `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' * * *" Id. We have carefully examined the record in this case and find no error of such magnitude. We therefore affirm.¹

The accident in question occurred at 3:03 a. m. on January 24, 1966, in the Sabine-Neches Canal just below the intersection of the Neches River and the Intracoastal Waterway. The Intracoastal Waterway parallels the northern shore of Sabine Lake, passing between Stewt's Island and Humble Island, and then takes a southerly turn and intersects with the Neches River. The Neches River flows in an easterly direction up to Rainbow Bridge, then makes a large bend to the southward where it joins with the Intracoastal Waterway. The three bodies of water thus meet in a "Y" formation with the Sabine-Neches Canal at the southernmost portion of this juncture.

On the morning of the accident the PURE OIL was proceeding down the Neches River in an easterly direction toward the Canal with a full cargo of refined petroleum products. At the same time, the MARY MALLOY was traveling in the Intracoastal Waterway in a westerly direction pushing before it three loaded barges. As the two vessels approached the intersection with the Canal, each sighted the other across Humble Island. Despite the darkness, visibility was good and both vessels then estimated their distance from the Canal at approximately one mile.

As the PURE OIL rounded the bend in the Neches River preparatory to entering the Canal, the pilot sounded a one blast signal to alert the MARY MALLOY that she was approaching the intersection. No return signal was blown by the MARY MALLOY. Thereafter the two vessels entered the intersection at approximately the same time, and proceeded into the Canal, the PURE OIL on the starboard side of the channel and the MARY MALLOY near the center of the channel on the port side. As the two vessels entered the Canal, they assumed a course parallel to one another at a distance of only one hundred feet. They retained this status for nearly two minutes, during which time the PURE OIL continually gained headway on the MARY MALLOY and her barges. At the end of the two-minute period the lead barge of the MARY MALLOY suddenly veered to starboard and collided with the port quarter of the PURE OIL causing her damage. Evasive action taken by the PURE OIL seconds before the collision was to no avail.

At trial evidence was introduced concerning the customs which controlled the order of entry into the intersection from the Neches River and the Intracoastal Waterway. The evidence established that it was customary for vessels proceeding down the Intracoastal Waterway to hold up behind Stewt's Island and to give the right-of-way to vessels in the Neches River.² Under the circumstances of the present case the trial court found that the MARY MALLOY should have held up behind Stewt's Island until the PURE OIL had cleared the intersection. The court concluded that "The failure of the MARY MALLOY to do so was negligence and such negligence was the proximate cause of the collision and damage to the PURE OIL." It further found that "once the tow of the MARY MALLOY entered the intersection the vessels were in extremis" and that thereafter "no act or omission on the part of the PURE OIL or its crew contributed to or caused the collision or constituted fault or negligence." On the basis of these conclusions the trial court entered judgment for the plaintiff.

The primary issue on this appeal is whether the evidence in the record is sufficient to sustain the trial court's finding that the MARY MALOY's failure to yield the right-of-way to the PURE OIL was the proximate cause of the collision.³ Appellant, Levingston Shipbuilding Company, contends that even if the failure to hold up behind Stewt's Island was negligence, such failure did not contribute to the accident. According to Levingston, the collision was caused by suction created when the PURE OIL overtook and passed the MARY MALLOY at the unsafe distance of one hundred feet. Since it is well established that the duty to avoid the effects of suction between two passing vessels is placed upon the overtaking vessel, Potomac River Line, Inc. v. Monroe, 1939, 70 App.D.C. 215, 105 F.2d 94; Northern Nav. Co. v. Minnesota Atlantic Transit Co., 8 Cir.1931, 49 F.2d 203; The Fontana, 6 Cir.1903, 119 F. 853; The Atlantis, 6 Cir.1903, 119 F. 568; The Aureole, 3 Cir.1902, 113 F. 224; Sun Oil Co. v. M/V Wartenfels, E.D. Pa.1966, 250 F.Supp. 244, Griffin, Collision § 257 (1949), appellant contends that the sole responsibility for the accident rests with the PURE OIL. Cf. Ellis Towing & Transportation Co. v. Socony Mobil Oil Co., Inc., 5 Cir.1961, 292 F.2d 91.

The facts of the collision as found by the trial court and as indicated by our examination of the record do not substantiate appellant's theory. To begin with, the PURE OIL does not seem to have been an "overtaking vessel" as that term is defined by the Inland Rules, 33 U.S.C.A. § 209.⁴ The Captain of the PURE OIL testified at trial that he had no difficulty in observing the side lights of the tug and her barges as the ships entered the Canal. Since the invisibility of side lights is made the statutory test of an overtaking vessel, when such lights would otherwise be visible except for the relative positions of the vessels, the Captain's testimony clearly negatives the inference that the PURE OIL was overtaking the MARY MALLOY. See Petition of Val Marine Corporation, S.D.N.Y. 1956, 145 F.Supp. 551, 553, modified on other grounds, Val Marine Corp. v. Costas, 2 Cir., 256 F.2d 911.

Appellant's allegation of an overtaking situation is also refuted by testimony from a member of the PURE OIL's crew. This witness testified that the PURE OIL entered the Canal intersection at the same time, or even slightly ahead of the MARY MALLOY. While such testimony and like statements from the Captain of the PURE OIL are challenged by observers aboard the tug, it is not our function to reassess the credibility of witnesses. It is clear from the record before us that the trial court had ample grounds for concluding that the vessels entered the intersection at approximately the same time and that no overtaking situation ever existed.

A further weakness in appellant's suction theory is evidenced by the circumstances surrounding the accident itself. We note principally the existence of a strong flood tide which the trial court found had the tendency to push the MARY MALLOY across the channel towards the PURE OIL. While suction from the PURE OIL undoubtedly aided these tidal forces in the seconds just prior to the collision,⁵ this fact affords no sound basis for describing suction as an independent and proximate cause of the accident. The mere fact that suction may have contributed to the accident and made its influence felt subsequent to the MARY MALLOY's negligent act does not dissipate the effects of the initial error. "* * * causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, although they may be nearer in time to the result * * *." Tidewater Associated Oil Co. v. United States, S.D.Calif.1945, 60 F.Supp. 376, 385.

The real question is whether the MARY MALLOY's failure to yield the right-of-way can properly be described as that cause which "necessarily sets the other cause or causes in operation" in "a natural and continuous sequence," Tidewater Associated Oil Co. v. United States, supra, at 385, or whether the accident might otherwise have been avoided except for the intervention of a force "started and working actively from a new and independent source." Id. We think that the facts more nearly conform to the first proposition.

The initial act of negligence on the part of the MARY MALLOY was directly responsible for bringing the vessels within one hundred feet of each other. Under the prevailing conditions of the tide, such proximity was bound to be highly dangerous, and the events which followed can reasonably be called the natural consequences of the precarious...