Walker v. Harris

• Decision Date: 07 December 1964
• Docket Number: No. 20735.,20735.
• Citation: 335 F.2d 185
• Parties: William F. WALKER, Jr., et al., Claimants-Appellants, v. Arthur E. HARRIS, d/b/a Arthur Harris Marine Towing, Petitioner-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.2d 185 (1964)

William F. WALKER, Jr., et al., Claimants-Appellants, v. Arthur E. HARRIS, d/b/a Arthur Harris Marine Towing, Petitioner-Appellee.

No. 20735.

United States Court of Appeals Fifth Circuit.

June 18, 1964.

Rehearing Denied July 17, 1964.

Certiorari Denied December 7, 1964.

COPYRIGHT MATERIAL OMITTED

Samuel C. Gainsburgh, N. B. Barkley, Jr., John P. Hammond, New Orleans, La., for appellant.

Paul A. Gaudet, New Orleans, La., Deutsch, Kerrigan & Stiles, Cornelius Van Dalen, New Orleans, La., of counsel, for appellee.

Before BROWN and WISDOM, Circuit Judges, and JOHNSON, District Judge.

Certiorari Denied December 7, 1964. See 85 S.Ct. 326.

JOHN R. BROWN, Circuit Judge:

The District Court held that a 52-year-old wooden inland tug which sank at sea in wind and weather which, although rough, she ought to have anticipated, was nonetheless seaworthy. Consequently, the Court granted the vessel owner's right to limit liability, 46 U.S. C.A. §§ 183-189, and, for double measure, held the owner free from negligence. This decision encompassed also the ruling that the lifeboat was sufficient, that is, seaworthy, even though none of the essential gear or supplies was tied down or stowed to prevent accidental loss when the lifeboat capsized in the effort to launch it after the manila fall in a boat davit parted apparently from old age. By this appeal the two survivors and the estates of two who did not complete the harrowing 110 hours in the lifeboat attack these actions. We reverse and remand for computation of damages.

All counsel in briefs and argument seem preoccupied with a question whether the Judge erred in declining to hold that the tug was unseaworthy (with the privity and knowledge of the owner) because of (a) deficient pumps and (b) the inadequacy of the glass in the sash-type windows in the deckhousing. As we approach the case, all of these things are now unessential since on basic principles, the evidence as a matter of law compelled the conclusion of negligent unseaworthiness causing the deaths and injuries. This also greatly simplifies our discussion of the evidence. As a preface we emphasize that while our result is contrary to that of the District Judge, we reach it without rejecting as clearly erroneous fact findings made below. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 AMC 1999; Roberts v. Echternach, 5 Cir., 1962, 302 F.2d 370, 373; Compania Anonima Venezolana De Nav. v. A. J. Perez Exp. Co., 5 Cir., 1962, 303 F.2d 692, 694.

The wooden tug RALPH E. HAVENS was built in 1905. She was 66.6 feet in length with a beam of 18.6 feet, a depth of 5.7 feet, and loaded draft of 7 feet aft with a freeboard of 18 inches. She was owned by petitioner-appellee Harris who, until relieved by Captain Wickizer a couple of days before, doubled in harness as Master. There is thus no real problem about privity and knowledge.

The RALPH E. HAVENS at the time of the casualty was homeward bound after delivering a tow on the East Coast. Crossing Florida inland waters, she came out into the Gulf of Mexico near Fort Myers. From there she planned to parallel the West Coast of Florida until off Seahorse Reef whistle buoy at which time she would lay her course for Carrabelle, Florida, on the south coast of the Florida Peninsula, approximately 40 miles east of Apalachicola where she would return to inside waters. When she sunk about 3:00 a. m. Sunday, December 8, 1957, she was approximately 12 to 15 miles from Carrabelle.

The Tug departed off Fort Myers at 8:00 p. m. Saturday, December 7, 1957. Aboard were Captain Wickizer, Mate Sam Kelly, and deckhands Walker and Whitehead. Everything seemed to be in good order, and the Court was warranted in crediting the testimony that the weather reports were not then unfavorable.¹ She passed off of Edgemont Key the following morning at 6:00 a. m. December 8. This put her substantially abeam Tampa Bay. At 7:00 a. m. Sunday, December 8, she was about three to four miles off shore just above St. Petersburg. Weather changes, notably northwest winds, were predicted.² She passed abeam Seahorse whistle buoy at 5:00 p. m. Sunday, December 8. Northwestern winds were predicted in the noon forecast³ and again in the evening⁴ at which time (7:00 p. m.) the Tug was about 25 miles off the mouth of the Suwannee River. Some time between 10:00 p. m. and midnight of Sunday, December 8, the winds became strong northwesterly. This was verified by the next forecast of 1:30 a. m. December 9, Monday.⁵ At midnight of Sunday, December 8, her position was approximately 30 to 35 miles, and at the time of the 1:30 Advisory approximately 20 miles, southeast of Carrabelle. It is uncontradicted that at the time the wind and sea began kicking up, the closest port was Carrabelle, and no real complaint, as such, was made below or here that she should have turned tail for Tampa then over 100 miles away. The fact that she was yet so near and yet so far from a port of refuge, while not a fault as such, is nevertheless an important factor in evaluating her seaworthiness.

Whether the seas and wind became noticeably more severe closer to 10:00 p. m. than midnight, Sunday, December 8, as testified to by Walker does not really matter. It is uncontradicted that at least by midnight, the wind and sea was increasing. Running into the northwesterly winds and sea, the Tug began to pound heavily and Kelly, the mate on watch, awakened Captain Wickizer about 1:30 a. m. When Captain Wickizer took over the wheel, Kelly went to the engine room because difficulty with the discharge pumps was being experienced. Captain Wickizer was faced obviously with a hard choice: To head on? To turn tail? To hold speed? To slow down? His decision was to head on but at reduced speed knowing that there were risks in this course. If speed were reduced too much, the Tug would fall off under wind and sea with danger of capsizing as she broached. On the other hand, increasing speed to offset this contingency presented the possibility that continuous pounding would open up her seams so that she would sink while driving ahead.

All were conscious, of course, of their great peril. With the Tug continuing ahead at reduced speed, efforts were made by others to increase the output of the bilge discharge pumps, the auxiliary pump, and two portable pumps since the water was gaining.⁶ During these efforts, the Tug lost most of her steerage way, her bow fell off to starboard, a sea struck her port bow, she broached and wallowed in the trough of the seas. Efforts to head her up were unsuccessful, and two large waves piled over the port side breaking out the windows of the deckhouse. With the windows out, the Tug took in dangerous quantities of water, and it was evident that she would soon sink. It was plain that they would have to abandon ship. Captain Wickizer stayed at the wheel until the Tug's "waist" was nearly awash. In the meantime, Walker and Kelly had attempted to launch the lifeboat. According to Walker's testimony, while Kelly was letting out one of the falls from a lifeboat davit, it parted. This caused claimed injuries to Kelly and Walker insisted that this made it impossible to launch the boat by the davits. The District Court did not expressly discredit this part of Walker's story, but did find that Captain Wickizer instructed the men to wait "until the water reached their feet" when they were to jump "into the lifeboat" then resting on top of the deckhouse. The Judge found that "as they jumped the HAVENS sank and the afterdavit swung out, caught the gunwale of the lifeboat and capsized it." In any event, whether this manner of launching was due to a decision by the Captain, as the Court impliedly found, or from the parting of the boat fall as claimed by Walker, the lifeboat capsized at launching, and whatever was in it was washed away before the crew could right the boat.

Thus did the four, then scarcely 12 miles from shore, set out in the black of night during a storm without water breaker, food, tiller, sails or bailer. All they had was three oars. Lights visible from ashore and the short distance were beguiling. It was not until nearly four days later that Captain Wickizer brought the lifeboat ashore near Bayport, Florida, at about 5:00 p. m. on Thursday, December 12. The lifeboat had traveled approximately 140 miles to the southeast. The Captain and Walker were able to stagger to a farmhouse. With this help, Wickizer and Walker got to a hospital. But it was too late for Kelly and Whitehead. Each, unable to endure this experience in the open lifeboat, died while still at sea.

From reading this narrative account, one would suppose that the RALPH E. HAVENS had been overcome by tempestuous forces of the cruel sea which defy even the most prudent efforts. But on the testimony most favorable to the shipowner, it was no such case. Captain Wickizer fixed the force of the winds at 33 to 36 miles per hour, and the seas from 5 to 12 feet in height. The holding of the Court is that a vessel incapable of withstanding winds of this relatively low velocity and seas of limited height⁷ is nevertheless seaworthy; that is, fit in the eyes of the law for the life and limb of those who go down to sea in ships. Almost instinctively one would think that this result could be justified on only one of two possibilities. The first would be that while these natural forces were relatively mild in contrast to, say, the North Atlantic in the winter, they were yet so severe and unpredictable for this time and place that the prudent shipowner had no reason to anticipate their occurrence. The second would be that, assuming the duty to anticipate seas and wind of this kind, some new and wholly unpredictable act intervened which made it reasonably impossible for the crew to extricate the ship from her expected peril. Neither of these conditions is established by the record and, when carefully analyzed, we do not think the Judge...