Victorias Milling Co. v. Panama Canal Company, 17393.

• Decision Date: 30 November 1959
• Docket Number: No. 17393.,17393.
• Citation: 272 F.2d 716
• Parties: VICTORIAS MILLING CO., Inc., as Owners of THE M/V NONSUCO, Appellant, v. PANAMA CANAL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

272 F.2d 716 (1959)

VICTORIAS MILLING CO., Inc., as Owners of THE M/V NONSUCO, Appellant, v. PANAMA CANAL COMPANY, Appellee.

No. 17393.

United States Court of Appeals Fifth Circuit.

November 30, 1959.

Woodrow de Castro, Balboa, Canal Zone, Michael E. Hanrahan, New York City, for appellant.

David J. Markun, Balboa Heights, Canal Zone, Paul A. Bentz, Gen. Counsel, Balboa Heights, Canal Zone, Theodore P. Daly, New York City, for appellee.

Before RIVES, JONES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

Before stating his findings and conclusions of law in this case, the trial judge said to the proctors for the Panama Canal Company: "I know this is a question that will haunt you forever until you get this res ipsa out of your way." The question, important to the Panama Canal Company and to users of the Canal, is whether the doctrine of res ipsa loquitur applies based on the mere fact that a live¹ vessel, under the charge of a Panama Canal Company pilot, strikes the banks of the Canal.

The libelant did not plead nor attempt to prove any specific act of negligence on the part of the respondent. Instead, it relied on the doctrine of res ipsa loquitur as set forth in a previous decision of the district court, Louis Dreyfus & Cie v. Panama Canal Co., 1954 A.M.C. 652 (not reported elsewhere). The trial judge reaffirmed the views expressed in Dreyfus. He stated:

"A vessel which meets with an accident while transiting the Panama Canal with a Panama Canal Company Pilot in charge of navigation is sufficiently under the control of the respondent so that when the vessel establishes that it did not cause the accident, the respondent is called upon to explain its conduct. Absent a satisfactory explanation by the respondent, an inference of negligence may be drawn against it."

Although the Court found that the doctrine of res ipsa loquitur applied, "the showing made by the respondent was such that an inference that respondent was negligent would not be warranted under the evidence". Victorias Milling Co., Inc. v. Panama Canal Co., D.C.Canal Zone, 1955, 162 F.Supp. 185, 189.

We affirm the judgment for the respondent on the ground that the evidence shows no negligence on the part of the Canal pilot, but we think that the doctrine of res ipsa loquitur is generally inapplicable to allisions in the Canal and inapplicable in this case.

I.

The libelant, Victorias Milling Company, is a Philippine corporation and is the owner of the M/V Nonsuco. The respondent, Panama Canal Company, is an agency and instrumentality of the United States government.² Its primary function is to maintain and operate the Panama Canal.

Federal regulations require vessels passing through the Canal to have a Panama Canal pilot aboard. 35 C.F.R. § 4.22 (1949). "The pilot assigned to a vessel shall have control of the navigation and movement of the vessel." 35 C.F.R. § 4.27 (1949). The Canal Company is liable for injuries to vessels caused by the negligence or fault of its officers or employees acting within the scope of their employment. 2 Canal Zone Code § 10(b), as amended 64 Stat. 1039.

The Nonsuco is a twin-screw motorcargo vessel of Philippine registry. It has an over-all length of 439 feet, a beam of 56.1 feet, a gross tonnage of 5812, a net tonnage of 3084, and an authorized maximum mean draft of 26 feet, seven inches. It is not equipped with a rudderangle indicator nor a revolution indicator. Thus, a pilot has no way of determining whether his orders to the engines and rudder are promptly and properly carried out.

Captain Fred Weade, the pilot assigned to take the Nonsuco through the Canal, first went to sea in 1929. He is a licensed master of ocean-going vessels. In August, 1954, at the time of the accident, he had been a Panama Canal Company pilot for almost five years and had been a master of tugs in the Panama Canal for almost seven years before becoming a pilot.

On the morning of August 15, 1954, the Nonsuco began a northbound transit of the Canal. The Nonsuco made the transit from Balboa, through Miraflores Locks, through Pedro Miguel Locks, and through the narrow Gaillard Cut without difficulty. The vessel handled satisfactorily. As the Nonsuco approached the Mamei Curve it was proceeding "full ahead", at seven or eight knots. The channel in Mamei Curve is approximately 700 to 800 feet wide, and the course followed by vessels coincides with the centerline of the channel. A northbound vessel must execute about a fifty degree turn to the right at the Mamei Curve. The pilot began the Nonsuco's turn at the customary point. In the Mamei Curve three small islands are located to the right of a northbound vessel. Some "bank suction" from the islands may be experienced by a vessel like the Nonsuco, but its effect is negligible and is lost as soon as the islands are passed. After the Nonsuco completed the turn from Mamei Curve into San Pablo Reach and was swinging slowly to the right, the pilot ordered the helmsman to check the swing and to steady on the northbound sailing line. The helmsman, in response to this order, applied left rudder. The swing to starboard was checked, but the vessel commenced swinging slowly to port. The pilot ordered "steady" and then "half right" rudder. Ordinarily these rudder movements would have stopped the swing to port. The swing was not checked. The pilot then ordered "full astern" on the starboard engine. At this point the vessel was 1900 to 2000 feet from where it finally struck the side of the Canal. This was an adequate distance in which to stop the swing by use of the rudder. Usually a torque effect is produced on a twin screw vessel when the starboard engine is full astern and the port is full ahead, swinging the vessel's heading to the right. The master of the vessel, who had been in his cabin, appeared on the bridge almost immediately after the order, "full astern starboard engine", was given. The pilot told the master the engines were not responding. The pilot and the master went to the starboard wing of the bridge. There was no turbulence of water from the starboard propeller such as is usually present when an engine is reversed. They did not examine the water condition on the port side of the vessel. The master himself went to the bridge telegraph and rang "full astern" on the starboard engine three times. The sheer to port continued. The pilot then ordered "stop both engines", "drop both anchors", and "full astern on both engines" in rapid sequence. Approximately forty-five seconds to one minute elapsed between the time the pilot ordered "full astern starboard engine" and the time the pilot ordered the anchor dropped. Dropping the anchors checked the speed, but the vessel still struck the west bank at a speed of about two knots. The pilot and the master went to the steering room soon after the ship struck the bank and the rudder was "hard right", a position coinciding with the last rudder order given.

At the time of the accident, wind and current were negligible and visibility was good. Weather conditions did not contribute to the accident. The depth of the water was such that there was no appreciable "bottom-suction" to affect the vessel. The speed of the Nonsuco was well within the maximum allowable speed for this part of the Canal.

II.

If Pollock, C.B.,³ could have foreseen that the felicitous classic phrase, res ipsa loquitur,⁴ would create such uncertainty and confusion,⁵ both in its application and in its procedural effect, he would surely have sacrificed charm for more prosaic legal language. In this case we are concerned directly only with the application of res ipsa loquitur, unless it can be said that the application of the doctrine is inextricably tied in with whether its effect is to create a hard presumption or a soft inference or something in between.

The scope of the rule of res ipsa loquitur is set forth in Sweeney v. Erving, 1913, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, a "decision which cut through the mass of verbiage built up around the doctrine of res ipsa loquitur".⁶ Jesionowski v. Boston & M. R. Co., 1947, 329 U.S. 452, 67 S.Ct. 401, 404, 91 L.Ed. 416. The rule applied in these two cases "means that `the facts of the occurrence warrant the inference of negligence, not that they compel such an inference' * * * The doctrine deals only with permissible inferences from unexplained events". Johnson v. United States, 1948, 333 U.S. 46, 48-49, 68 S.Ct. 391, 393, 92 L.Ed. 468.

Dreyfus & Cie v. Panama Canal Company, 1954 AMC 652 (not reported elsewhere), furnished the rationale for the district court's views in this case. Because of the Dreyfus holding, the libelants in the instant case did not allege any specific act of negligence on the part of the Panama Canal Company. On the respondent's exception of no cause of action in the Dreyfus case the district court held first that the pleadings were insufficient in failing to show that the respondent had exclusive control of the offending instrumentality, the vessel. On rehearing, the district court reversed itself, quoting the oft-quoted rule laid down in Sweeney v. Erving⁷ and relying strongly on Jesionowski⁸ and a note in 33 Cal. L.Rev. 333 (1945).⁹

In Dreyfus the Court reasoned that striking a bank of the Canal was an extraordinary occurrence analogous to the derailment of a railroad car; that res ipsa loquitur is available even though there is divided control, if the libelant can prove itself free of fault; and, that "right of control", not necessarily actual control, allows an "inference of negligence to be created against persons who are responsible for the operation of the instrument". The court stated:

"Hundreds of ships transit the Panama Canal every month without mishap and certainly it cannot be said that the bumping of the bank in the Panama Canal by a ship is `usual\' and it must be held to fit within the definition of `extraordinary.\' The Panama Canal is completely under the control of the respondent

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