United States v. SS WASHINGTON

• Decision Date: 25 January 1957
• Docket Number: No. 7284-7286.,7284-7286.
• Citation: 241 F.2d 819
• Parties: UNITED STATES of America, owner of THE USS RUCHAMKIN, Appellant, v. The SS WASHINGTON, her engines, etc., The Texas Company, etc., Appellee. UNITED STATES of America, owner of THE USS RUCHAMKIN, Appellant, v. The TEXAS COMPANY, owner of the tanker Washington, Appellee. Evelyn ECKERT, as Administratrix of the Estate of Edward James Eckert, Jr., Deceased, et al., Appellants, v. The TEXAS COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

241 F.2d 819 (1957)

UNITED STATES of America, owner of THE USS RUCHAMKIN, Appellant, v. The SS WASHINGTON, her engines, etc., The Texas Company, etc., Appellee.

UNITED STATES of America, owner of THE USS RUCHAMKIN, Appellant, v. The TEXAS COMPANY, owner of the tanker Washington, Appellee.

Evelyn ECKERT, as Administratrix of the Estate of Edward James Eckert, Jr., Deceased, et al., Appellants, v. The TEXAS COMPANY, Appellee.

Nos. 7284-7286.

United States Court of Appeals Fourth Circuit.

Argued November 16, 1956.

Decided January 25, 1957.

COPYRIGHT MATERIAL OMITTED

Marvin Schwartz, New York City (William P. Woolls, Jr., Alexandria, Va., Betty H. Olchin, and James P. O'Connell, New York City, on the brief) for appellants in No. 7286.

Thomas F. McGovern, Atty., Dept. of Justice, Washington, D. C. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., Leavenworth Colby, Edward B. Hayes, Admiralty Counsel, and Charles S. Haight, Jr., Attys., Dept. of Justice, Washington, D. C., on the brief) for appellant in Nos. 7284 and 7285.

Francis N. Crenshaw, Norfolk, Va. (Baird, White & Lanning, Norfolk, Va., and Joseph M. Brush, New York City, on the brief) for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and R. DORSEY WATKINS, District Judge.

PARKER, Chief Judge.

These are appeals in admiralty cases growing out of the collision between the tanker Washington of the Texas Company and the destroyer Ruchamkin, a vessel of the United States Navy, which occurred in the early morning of November 14, 1952, about 55 miles off the Virginia capes. Libels in rem and in personam were filed by the owners of both vessels against each other, and suits asking damages on account of wrongful death were filed against the Texas Company in behalf of the personal representatives of soldiers aboard the Ruchamkin who were killed by the collision. All of these cases were heard together and decrees were entered exonerating the Washington of fault, finding negligence in the operation of the Ruchamkin and entering an interlocutory decree for damages against the United States and in favor of the Texas Company. The libels filed on account of wrongful death were dismissed. See, The Ruchamkin, D.C., 141 F.Supp. 97. The United States and the death claimants have appealed. They do not contest the finding of fault on the part of the Ruchamkin nor the finding of in personam liability on the part of the United States for negligence in her navigation; but they contend that the Washington should also be held in fault in the collision. We think that this contention must be sustained.

As pointed out in the opinion below, the Ruchamkin was one of a number of naval vessels engaged in an operation off the Virginia capes. At the time of the collision, they were proceeding to a prearranged destination off Virginia Beach near Camp Pendleton and were on a course of 257 degrees. The Fremont was the guide ship of the flotilla and around her were grouped five other heavy ships in a circle with a radius of 1,000 yards. Ahead of this formation was a screen of four destroyers, the Corry, the Lloyd, the Hollis and the O'Hare. The Ruchamkin had been on a mission to pick up some soldiers and was returning to take her place in the screen of destroyers when the collision occurred.

The Washington was proceeding on a course of 7½ degrees. Although she had seen to starboard the lights of the naval flotilla which was on a course of 257 degrees, she entered the screen of destroyers passing between the Lloyd and the Hollis and avoiding collision only because the ships of the flotilla, other than the Ruchamkin, had been slowed down from 14 to 8 and then to 5 knots per hour. The Ruchamkin was not ordered to slow down and was not told of the presence of the Washington within the screen but was ordered to "expedite" to her place in the formation and was proceeding at a speed of 22 knots per hour to her place in the screen on a course 1200 to 1500 yards north of and practically parallel with (265 degrees), the course of the northernmost of the heavy ships, the Capricornus. We think, as did the judge below, that it was negligence on the part of those in charge of the naval operation not to advise the Ruchamkin of the presence of the Washington within the screen and to bring the Ruchamkin forward at such a high rate of speed, in view of the dangerous situation existing; but we think that the Washington was in fault in failing to observe the starboard hand rule both in entering the screen and after it was entered, and was in fault, also, in failing to keep a proper lookout and in failing to take proper precautions to avoid the collision, when by the exercise of proper care it might have been avoided.

We are not impressed by the contention that those on the Washington did not know that they were approaching a naval formation at a time when they might have passed around it and avoided all danger. The lights of the flotilla were seen to starboard and were recognized by two men on lookout as naval vessels. Their number and their signalling to each other with blinker lights should have put the Washington on notice, apart from the fact that the Navy had published notice of the operation in such way that it is hardly reasonable to suppose that ships of the Texas Company were not advised of it.^* The explanation that those on the Washington thought the flotilla to be a fleet of fishing vessels is not convincing, as the evidence shows that they were not displaying the sort of lights that fishing vessels would display. Very illuminating, in this connection, is the fact that on the morning after the collision, the captain, who had been asleep at the time of the collision, gave a statement to the press that the cause of the collision was that the flotilla was navigating without lights. When asked about this at the Coast Guard investigation of the collision, he said, "but had they been carrying lights, we would have seen them; they wouldn't have enveloped up that quickly without any forewarning to us." The evidence shows that all of the ships were fully lighted, that the night was clear and that there was nothing to prevent the lights being seen.

If it be assumed that those on the Washington did not recognize the naval flotilla for what it was and that the vessel was without fault in entering the screen, she would, nevertheless, not be absolved from the duty of observing the starboard hand rule with respect to the vessels that she met. In The Oregon, 4 Cir., 175 F.2d 632, 638, we held that the rule was applicable in the case of a merchant vessel crossing the course of the vessels in a naval formation, even though the latter had been "blacked out" until shortly before the collision. If that rule had been properly observed by the Washington, it seems clear the collision here would have been avoided, notwithstanding the negligence in the navigation of the Ruchamkin. "The International Rules for Navigation at Sea" as they were at that time, are as follows:

Article 19, 33 U.S.C.A. § 104. "When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other."

Article 21, 33 U.S.C.A. § 106. "Where, by any of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed.

"Note. — When, in consequence of thick weather or other causes, such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision."

Article 22, 33 U.S.C.A. § 107. "Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other."

Article 23, 33 U.S.C.A. § 108. "Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse."

Article 27, 33 U.S.C.A. § 112. "In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger."

Article 29, 33 U.S.C.A. § 121. "Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."

Notwithstanding that the second mate in charge of navigating the Washington knew that there were a number of vessels to his starboard, whose lights he could see, and that it was his duty to keep out of the way of any such vessels as might attempt to cross his course, we think it clear from the evidence that he made no proper effort to discharge his duty in this respect. The Washington was equipped with radar and he admits that he did not look at it after 2 A. M., which was fifteen minutes prior to the collision. The radar of the Fremont showed the Washington to be on a collision course with the Capricornus of the flotilla and collision was avoided only by the slowing down of the flotilla. If proper attention had been paid to the radar on the Washington, the danger of collision, not only with the Capricornus but also with the Ruchamkin, should have been seen. Furthermore, the second mate was keeping no adequate lookout. If a proper lookout had been kept, he should at least have seen the approaching lights of the Lloyd, the Newport News, the Glynn and the Capricornus, and yet he passed these vessels without observing them, although so near to them that collision with the Capricornus was averted only by the slowing of the flotilla.

If a proper lookout had been maintained, there is no reason why the approaching lights of...