United States v. Smith , 168 F.2d 43 ( 1948 )

McCORD, Circuit Judge.

Charles C. Smith & Company, owner of the Tug, Viva Clare, and the Oil Barges, Joseph W. Smith, and Dave Scruggs, filed this libel in rem against the S. S. Molina Del Rey, and in personam against the United States of America.

The S. S. Molina Del Rey, on June 5, 1943, was involved in a collision with the Libellant’s barges, Joseph W. Smith and Dave Scruggs, while these barges were being towed by the Tug, Viva dare, in the Sabine-Neches Canal near Port Arthur, Texas. Libellant claims both barges were damaged as a result of negligence on the part of the S. S. Molina Del Rey, and those in charge of her, and seeks damages. The Government denies the acts of negligence charged, and in turn charges negligence on the part of the Tug, Viva Clare, and those in charge of her.

The record supports the following conclusions as to the material facts and circumstances surrounding the collision: At approximately 8:25 a. m. on the morning of June 5, 1943, the Molina Del Rey, a 16,-500 ton tanker, was proceeding in a southerly direction down the Sabine-Neches Canal, outward bound to the Gulf. Her master and third mate were on the bridge, and she was being piloted by a licensed local pilot. She was moving under her own power, but was being assisted by the Tug Bertha II, on her starboard hand. The weather was clear, visibility was good, there was little or no wind, and only a slight flow tide.

The Tug, Viva Clare, prior to the collision, was rounding a slight bend to the left in the Canal and proceeding in an easterly direction, towing her two barges tandem style, the Joseph W. Smith being the lead barge of her tow, and the Dave Scruggs trailing in the rear. The overall length of the Viva Clare and her entire tow was approximately 400 feet. Upon sighting the Molina Del Rey, about one-half mile distant near the middle of the Canal, the Tug, Viva Clare, blew a two-blast signal, calling for a starboard to starboard passing. The Molina Del Rey answered shortly thereafter with a four-blast signal, indicating danger, and another one-blast signal, calling for a port to port passing, instead of the starboard to starboard passing, as originally signalled by the Viva Clare. The Tug, however, answered with a one-blast signal, indicating her acceptance of the latter method of passing, as proposed by the Molina Del Rey; she immediately after-wards altered her course sharply to her right, and maintained full speed toward the east or her right bank of the Canal, in an effort to comply with the Molina Del Rey’s last signal. The Tug Viva Clare attempted to get herself and tow over to her right side of the Canal in time for the Molina Del Rey to clear her port side. As she was executing this maneuver, the Molina Del Rey at first proceeded without altering her course, but soon began sheering to her port or left side of the Canal, partially out of control. The failure of the Molina Del Rey to respond properly to her helm at this time was due to the fact that her full load of crude • oil caused her to lay low in the water, and hug the bottom of the Canal. In any event, the Molina Del Rey sheered to her port, directly into the path of the oncoming Viva Clare, in violation of the last signal agreed upon, and at a time when it was impossible for the latter to clear herself and tow. By maintaining full speed, the Viva Clare had managed to reach her right side of the Canal, and get her lead barge, the Joseph W. Smith, lined up behind her, before the bow of the Molina Del Rey, then proceeding toward her left side of the Canal, stove into the Viva Clare’s lead barge, the Joseph W. Smith, which in turn was thrown into collision with the Dave Scruggs, causing extensive damage to both barges. The Molina Del Rey was moving at a speed of approximately 4 or 5 knots at the time of the collision. It is practically without dispute that the Viva Clare had cut loose from her barges, and lodged heself and her lead barge on the east, or her right bank, of the Canal immediately prior to the collision, in an effort to escape damage. The amount of the damage to the barges, as stipulated into evidence by the parties, was $16,200.

We are of opinion abundant! evidence supports the finding of the district court that the collision was proximately caused by the negligence of the Molina Del Rey, and those in charge o.f her, and not by any fault or negligence on the part of the Viva Clare or her tow. The record leads us unerringly to the conclusion that the negligence of the Molina Del Rey in failing to keep to her starboard side of the channel, after having assumed the responsibility of a port to port passing, and failing to reduce her speed and reverse her engines, when the danger of collision first became apparent, proximately caused the collision and damage to the barges. The Mamei, 3 Cir., 152 F.2d 924, 926; Petterson Lighterage & Towing Corporation v. New York Cent. R. Co., 2 Cir., 126 F.2d 992, 994; Giove v. The M. F. Elliott, 5 Cir., 27 F.2d 331.

The Government's contention that libellant’s alleged violation of the Narrow Channel Rule requires an apportionment of the amount of damage is without merit. Title 33 U.S.C.A. § 210; Giove v. The M. F. Elliott, 5 Cir., 27 F.2d 331. Libellant was guilty of no negligence, either by violating any statutory rules of navigation, or otherwise, which would justify or warrant a division of damages. Cf. A. H. Bull S. S. Co. v. Chesapeake, S. S. Co., 4 Cir., 101 F.2d 599; Lie v. San Francisco & Portland S. S. Co., 243 U.S. 291, 37 S.Ct. 270, 61 L.Ed. 726.

In view of the stipulations, pleadings, and admissions by Government counsel in the record, to the effect that jurisdiction and service had been conceded,¹ and that the Libel was properly brought under the suits in Admiralty Act, 46 U.S.C.A. § 741 et seq.,² we do not think the Government is now entitled to raise these issues, especially since they were not properly preserved by assignment of error. It follows that interest was /properly allowed from the date this Libel was filed, on September 1, 1944.

We find no reversible error in the record, and the judgment is therefore affirmed.

1 Tlie District Court, in its findings of fact and conclusions of law, stated: «* * * At the o'utset, questions of jurisdiction were raised by the Government, but it is now conceded that this Court has jurisdiction of the suit in personam against the Government.” Government counsel did not take any exception to this finding of the Court.

2 On the trial, Government counsel in response to Libellant’s proposal for a stipulation concerning the status of the “Molina Del Rey”, stated: “I do not think it is material to this case because we have plead that it came under the Admiralty Act. We admitted that. I do not see that whether it comes under Public Vessels or not is an issue in this case.”