United States v. SS Soya Atlantic

• Decision Date: 13 April 1964
• Docket Number: No. 8947.,8947.
• Citation: 330 F.2d 732
• Parties: UNITED STATES of America, owner of the U.S.S. DARBY (DE 218), Helen Hesson Crandell, Administratrix of the Estate of Charles Edward Crandell, deceased, and Bertha Louise Johnson, Administratrix of the Estate of Thomas Edward Johnson, deceased, Appellants, v. S.S. SOYA ATLANTIC, her engines, boilers, tackle, etc., in rem and against Rederi A/B Walltank, Owner of the S.S. Soya Atlantic, in personam, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

330 F.2d 732 (1964)

UNITED STATES of America, owner of the U.S.S. DARBY (DE 218), Helen Hesson Crandell, Administratrix of the Estate of Charles Edward Crandell, deceased, and Bertha Louise Johnson, Administratrix of the Estate of Thomas Edward Johnson, deceased, Appellants, v. S.S. SOYA ATLANTIC, her engines, boilers, tackle, etc., in rem and against Rederi A/B Walltank, Owner of the S.S. Soya Atlantic, in personam, Appellees.

No. 8947.

United States Court of Appeals Fourth Circuit.

Argued September 25, 1963.

Decided April 13, 1964.

Alan Raywid, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., Sherman L. Cohn and Charles D. Ferris, Attorneys, Dept. of Justice, and Joseph D. Tydings, U. S. Atty., on brief), for appellant, the United States.

Calvin E. Cohen, Annapolis, Md. (Wright & Cohen, Annapolis, Md., J. Calvin Carney and J. Calvin Carney, Jr., Baltimore, Md., on brief), for appellants, Crandell and Johnson.

Eugene F. Gilligan, New York City (Ober, Williams, Grimes & Stinson, Baltimore, Md.; Hill, Betts, Yamaoka, Freehill & Longcope; Eli Ellis, New York City, and Southgate L. Morison, Baltimore, Md., on brief), for appellees.

Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges.

HAYNSWORTH, Circuit Judge.

We affirm the District Court's exculpation of the SS Soya Atlantic and its holding that the ship collision was the sole fault of the USS Darby, which miserably failed to heed its obligations as the burdened vessel. The two ships collided in clear, calm weather early one night in March 1960 shortly after the Soya Atlantic had left the mouth of Chesapeake Bay and had started her sea voyage south to Venezuela and as the inbound Darby was returning to her base at Little Creek, Virginia.

The Swedish owned Soya Atlantic is a combined tanker and ore carrier 596 feet long and with a beam of 75 feet. She left Baltimore on the morning of March 19, 1960, and after an uneventful passage down Chesapeake Bay she dropped her pilot at the mouth of the Bay at about 1935, it then being well after sundown and close to the end of twilight. In order to form a lee for the small boat that was to take off the pilot, she came to a heading of 160,° and her headway had been reduced to approximately one knot. When the launch was clear, the Captain ordered a hard left rudder and engines full ahead. Shortly thereafter, he ordered the rudder amidship, and the ship steadied on a heading of 115.° The Captain checked and found that this course would take him too close to Buoy 2A, which he expected to pass on his porthand at a distance of approximately one-half mile. The course was changed to 125.° At 1945, the course was again altered to 134.° That is the bearing of Buoy 2CB from Buoy 2A, and it was the Captain's plan, as was his custom, to run the buoys until he was seaward of the last one. There was testimony that he had sighted an inbound ship in the neighborhood of Buoy 2CB and came to a heading of 134° before he was abeam of Buoy 2A in order to insure a safe port to port passage with the inbound vessel. At 1950, the Soya Atlantic passed abeam of Buoy 2A and the Chief Officer notified the engine room that the sea voyage had begun.

During all of this time the speed of the Soya Atlantic was constantly accelerating from the one knot she was making when she dropped her pilot to ten to twelve knots at 1951 when her engines were stopped because of the imminence of collision with the Darby.

The USS Darby is a destroyer escort 306 feet long, with a beam of 36 feet. Highly maneuverable, she was capable of speeds up to 24 knots. With other Naval vessels, she had been engaged in exercises at sea that day and had served as flagship of the flotilla. Aboard her were a number of dignitaries, including an Assistant Secretary of the Navy, a member of the Congress and an Admiral. At the conclusion of the exercises, the Darby's Captain was instructed to return the vessel to her base at Little Creek, and, as the Darby approached the Soya Atlantic, she was inbound on a heading of 266° making 19 knots.

The Soya Atlantic had sighted the Darby when she was some four to six miles away. Indeed, when the Captain came on the bridge shortly before the Soya Atlantic dropped her pilot, the pilot pointed out the Darby as one of the ships in the vicinity. Because of the lowness of her masthead lights, the Soya Atlantic's Captain mistakenly assumed that she was a fishing vessel. On other voyages he had encountered inbound fishing vessels in the area, and he expected the Darby to come up to Buoy 2A, as he had seen other fishing vessels do, and to pass astern of the Soya Atlantic, as was the Darby's obligation as the burdened or giving-way vessel. He had observed the Darby from time to time after the pilot was dropped. He did not take precise bearings or undertake to compute the Darby's course and speed, but shortly after Buoy 2A was passed the Captain and First Officer of the Soya Atlantic became concerned about the Darby, which appeared to be holding to a crossing course and had not come to starboard to pass astern of the Soya Atlantic. Within a minute after 1950, the Soya Atlantic sounded four whistle blasts, the danger signal, and her Captain telegraphed all engines stopped.

There were some twenty men on the bridge of the Darby and there was a lookout forward, though the lookout was clearly incompetent, as the District Judge found, and communicated no information to the bridge. The Soya Atlantic was seen from the bridge, but it was assumed she was a ferry. This assumption was made despite the fact that no ferry operated within a number of miles of the location of the Soya Atlantic. The fact that the Soya Atlantic swung to drop her pilot and thereafter swung back to the East and was constantly accelerating her speed may have confused those aboard the Darby, but outbound vessels regularly maneuvered as the Soya Atlantic did in dropping their pilots at the Virginia or Baltimore Pilot Boats, and thereafter, at accelerating speed, those headed south would take the approximate courses of the Soya Atlantic. The Darby's crew were not unfamiliar with the waters or with the patterns of the very heavy maritime traffic in the area, but, apparently, until about the time the Soya Atlantic sounded the danger signal, it never occurred to anyone on the Darby's bridge that the Soya Atlantic was an outbound vessel on a crossing course traveled by many outbound vessels. Just after the Soya Atlantic's signal, the Darby sounded the danger signal. Left rudder, not right rudder, was ordered and the Darby's engines were reversed.

Meanwhile, after telegraphing her engines stopped, the Master of the Soya Atlantic ordered hard right rudder and sounded a one-blast signal. The signal would have been appropriate under the International Rules to indicate a turn to the right, but the ships were just within the boundary where the Inland Rules applied, and, under the Inland Rules, the one blast indicated that she was holding her course and speed. The signal was not heard aboard the Darby, however, so the fact that the wrong signal was given played no part in the collision. After the Soya Atlantic's bow had begun to swing to the right, her Captain decided he could not possibly pass in front of the Darby so he ordered hard left rudder. In response, the Soya Atlantic had returned to a heading of approximately 134° when her bow cut into the Darby which was then lying virtually dead in the water, her beam squarely presented to the Soya Atlantic as a result of the Darby's reversal of her engines and her turn to the left. Shortly before impact the Darby's engines were ordered stopped and then ahead, but the latter order was not executed.

The Soya Atlantic's engines had been ordered stopped at 1950. When her Captain ordered hard left rudder, he ordered the engines half astern and almost immediately thereafter full astern. At the time of impact, however, the Soya Atlantic was still making approximately eight knots. Her bow cut deeply into the starboard side of the Darby some 75 feet forward of the Darby's stern, killing two of the Darby's crew.

Personal representatives of the two members of the Darby's crew and the United States are the appellants here. They do not here contest the District Court's finding of fault on the part of the Darby. They do contend that the District Court should have found the Soya Atlantic jointly responsible.

Much of the effort of the appellants in this Court is an attempt to retry factual issues resolved by the District Court. Despite substantial evidence that the navigation lights of the Soya Atlantic were on long before her pilot was dropped, they reassert the Darby's contention that the Soya Atlantic's navigation lights were not on until she was abeam of Buoy 2A. They find fault with the Soya Atlantic on the ground that her lookout, engaged in securing the ladder which had been used by the pilot to go over her side, had not returned to his post, while the Soya Atlantic's Master, her first Officer and her helmsman, alone on her bridge, had navigational duties as well as duties of lookout. The District Court found, however, that the Darby was not unobserved from the Soya Atlantic and that everything was done which would have been done if the lookout had been at his post adding his observation to that of the Captain and the First Officer.¹ The appellants assert that the Soya Atlantic did not come to a heading of 134° until she was abeam of Buoy 2A, though the only direct evidence on the point is that of the Soya Atlantic that she came to that heading earlier, as the District Court found. They charge the Soya Atlantic with negligence in authorizing the engine room to secure for the sea voyage when the Soya Atlantic was passing Buoy 2A and before she was clear of the congested traffic in the approaches to Chesapeake Bay, though the evidence showed no delay in the engine room's execution of the successive signals from the bridge to stop...