C. J. DICK TOWING CO. v. THE LEO

RIVES, Circuit Judge.

This appeal is in admiralty from a final decree holding appellant, C. J. Dick Towing Company, solely liable for damages resulting from a collision in the Bayou Boeuf section of the Gulf Intra-Coastal canal near Morgan City, Louisiana, between the tow of appellant's Tug Dispatch and the tow of the Tug Leo, owned by appellee, Commercial Petroleum and Transport Company.

On the morning of November 28, 1947, at about 7 a. m., the Tug Dispatch was under way in an easterly direction from Port Neches, Texas, to Mount Vernon, Indiana, via the Intra-Coastal Canal. She was pushing ahead of her three loaded gasoline barges, with the Bascom W. Smith in the lead, the Barge NBC 486 in the middle and the Barrett J. Woods next to the tug.

The Tug Leo was then proceeding in a westerly direction on Bayou Boeuf enroute from Baton Rouge, La., to Mermentau, La., towing astern the three unloaded oil barges BA-24, BA-22 and BA-23, in that order. When the two tows approached each other, signals were exchanged for a starboard to starboard passing, and in executing the passage agreed upon, the lead barge, Bascom W. Smith, of the Dispatch tow, collided with the stern barge, BA-23, of the Leo tow, causing the barge Bascom W. Smith to explode and catch on fire and the barge Barrett J. Woods to catch afire, seriously damaging both barges and their cargo. The barge BA-23 was also damaged, along with the derrick barge 444 belonging to Bozeman & Gray, owners of a nearby shipyard.

At the time of the collision, the weather was clear, visibility was good, and there was a westerly current of about 2½ to 4 miles per hour. The wind was blowing from the north at about 15 to 20 miles per hour. The collision occurred along a bend or turn where the channel of Bayou Boeuf was about 300 feet wide.

Four suits were filed as a result of the collision and were by agreement consolidated and tried together.1 In the main suit involving fault for the collision, the district court found that the Tug Leo had "faithfully and fully performed" her duty of maintaining the south bank of the canal so that the starboard to starboard passing could be safely executed;2 that the Tug Dispatch and her tow were solely at fault in permitting the two "to sag across the canal in the direction of the Tug Leo and her tow", and in failing to maintain an attentive lookout or stop and blow the danger signal when danger of collision became apparent. With reference to the claim of The Texas Company for the value of its gasoline cargo being transported in two of the barges in the Dispatch tow at the time of the collision, the district court concluded that the unseaworthy condition of the Dispatch and her tow entitled The Texas Company under its Transportation Agreement3 to recover from the Tug Dispatch, her barges, and C. J. Dick Towing Company, her owner, all damages to the cargo caused by the collision, fire and explosion.4

Appellant, C. J. Dick Towing Company, in urging us to review the facts de novo, argues that the testimony fairly establishes that the collision and resulting damage was caused by the negligence of the Tug Leo and its tow; that as the Leo proceeded to her left around the bend of the canal her barges astern naturally swung to starboard toward the north bank and across the path of the Bascom W. Smith, the lead barge of the Dispatch tow, while the Dispatch and its tow were only some 40 or 50 feet from the north bank and on their proper side of the channel.

Appellee, Commercial Petroleum and Transport Company, contends that the testimony reveals, and the district court correctly found, that the collision resulted from the failure of the Dispatch and her tow, through negligent navigation and the inattention of its lookout, to carry out the starboard to starboard passing agreed upon; that such passing was the only safe passing which could have been effected under the circumstances because the Leo's empty barges were being blown toward the south bank of the canal by the north wind; that prior to and at the time of the collision the Leo and its tow were well over on their south side of the channel to effect such passing and their barges were hugging the south bank; that at the time the signals for passing were exchanged and on up until the time of the collision, the forward tow of the Tug Dispatch was being pushed at an angle toward the south side of the channel, with its lead barge, the Bascom W. Smith, extending over on the Leo's south side of the channel; that the passing would have been executed safely but for this failure of the Dispatch to keep its barges over on the north side of the channel and clear of the stern barge of the Leo.

Appellee, The Texas Company, assigns error principally in the failure of the district court to hold the Tug Leo and her tow equally at fault for the collision, and asserts that its damages should have been equally divided between the two tugs and their tows; alternatively, it is argued that since the fault of the Dispatch "is palpable and obvious" and the unseaworthy condition of its tow conclusively shown, the district court correctly held The Texas Company entitled to recover from appellant, C. J. Dick Towing Company, the value of its damaged cargo.

The cross-appeal of Commercial Petroleum and Transport Company and its trustee assigns error only as to the assessment of costs against that company by the district court, as petitioner in the limitation proceeding below.

In reviewing the factual issues presented by this voluminous seven-volume record, we are urged by appellant, C. J. Dick Towing Company, to invoke the rule that where the testimony, or a substantial portion thereof, is by deposition, and the trial court had no better opportunity than this court to observe many of the witnesses and pass upon their credibility, it is our duty to review the entire record de novo without considering ourselves "bound to any extent by the findings of the District Court". See The Foundation Aranmore, 5 Cir., 165 F.2d 426, 428; Waterman S. S. Corp. v. United States S. R. & M. Co., 5 Cir., 155 F.2d 687; The Lapwing, 5 Cir., 150 F.2d 214, 215. However, we think the rule of review contended for here is too broad. The trial lasted for more than two weeks, and while the testimony of some eight witnesses was by deposition, the findings of the district court are also based in large measure upon substantial and convincing oral testimony.5 See Escandon v. Pan American Foreign Corp., 5 Cir., 88 F.2d 276. Admittedly, there is other testimony which, if believed, might have supported a contrary determination by the trial court.6 But where, as here, the oral testimony relied upon to support the findings is in sharp dispute, we are no more authorized, merely because the case is in admiralty, to substitute our findings for those of the trial court under Admiralty Rule 46½ 28 U.S.C.A., than we would have been to substitute them for findings made under Rule 52(a), Fed.Rules Civ. Proc. 28 U.S.C.A., had this been a civil case tried without a jury. Colvin v. Kokusai Kisen Kabushiki Kaisha, 5 Cir., 72 F.2d 44, 46; Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., 126 F.2d 992, 995. Under such circumstances, since we cannot say that the findings of the trial court are "clearly erroneous", we accept them as binding upon this Court. Colvin v. Kokusai Kisen Kabushiki Kaisha, supra; Petterson Lighterage & Towing Corp. v. New York Central R. Co., supra; Ore Steamship Corp. v. D/S A/S Hassel, 2 Cir., 137 F.2d 326, 329; P. Dougherty Co. v. S. S. Manchester Exporter, 2 Cir., 140 F.2d 572, 573; The C. W. Crane, 2 Cir., 155 F.2d 940, 941; Merritt-Chapman & Scott Corp. v. United States, 2 Cir., 174 F.2d 205, 206; see also Gatewood v. Sanders, 4 Cir., 152 F.2d 379; Lucayan Transports, Ltd. v. McCormick Shipping Corp., 5 Cir., 188 F.2d 202, 205; Hutchinson v. Dickie, 6 Cir., 162 F.2d 103, 106; Bornhurst v. United States, 9 Cir., 164 F.2d 789; Cappelen v. United States, 88 U.S.App.D.C. 11, 185 F.2d 754, 755; Cf. Johnson v. Cooper, 8 Cir., 172 F.2d 937, 940; 1 Am.Jur.Admiralty, Sec. 135, p. 613; 2 C.J.S.Admiralty, §§ 188, 192a, pages 321, 326; cf. Annotation in 103 A.L.R. 791, et seq.

Furthermore, we think the weight of the credible testimony supports, and we agree with, the findings of the district court as to the sole fault of the Tug Dispatch and her tow in the collision. Without undertaking to review all of the testimony, we refer to some evidence that leads us to that opinion.

The undisputed fact that at the time of the collision a north wind of 15 to 20 miles per hour was blowing the Leo's light barges toward the south bank of the canal lends strong support and credence to the testimony of the Tug Leo witnesses that the collision actually occurred in the Leo's waters.7 This conclusion is further reinforced by the practically undisputed testimony that after the collision all navigable craft, including the damaged barge, BA-23, and the loaded barges of the Tug Dispatch, were carried by the wind and current over to the south bank of the canal. There is further convincing testimony that Manning, the deck hand on the Tug Dispatch, was playing music on the radio and in the pilot house with Captain Duncan until almost the moment of the collision, and was not paying proper attention to the position of the tow.8 The direct inference from Manning's testimony is that neither he nor Duncan, Captain of the Dispatch, were properly mindful of their navigation and in all probability failed to change the course they had set to round the gradual bend or turn in the canal, or to blow the danger signal, stop, and reverse engines when danger of collision should have been apparent. Under such circumstances, the trial court was amply justified in holding the Tug Dispatch and her tow solely at fault for negligent navigation and failing to maintain a proper lookout. Belden v. Chase, 150 U.S. 674, 702, 14 S.Ct. 264, 37 L.Ed. 1218; Petterson Lighterage & Towing Corp. v. New York Central R. Co., supra; Smith v. Bacon, 5 Cir., 194 F.2d 203, 206.

We find no merit in the contention of The Texas Company that the Tug Leo was guilty of mutual fault requiring a division of damages. The testimony fairly establishes that the Leo was maintaining a proper lookout and was on her south side of the channel on up until the time of collision. The argument that the Leo should have given a warning signal and taken other steps to avoid the collision when it became imminent is based upon the erroneous assumptions that the Leo was not entitled to rely upon the Dispatch's apparent ability to carry out the starboard passing to which she had assented, and further, that the Leo could have materially altered her course in time to avoid the impact. The testimony compels the inference that the same considerations as to wind and current, which caused both tugs to agree to the starboard to starboard passing, were operating to handicap the maneuverability of the Tug Leo and its tow in effecting any abrupt change of course after it had once attained its proper position on the south side of the channel. In such a situation the Leo was not bound to stop and lay up against the south bank of the canal in order to avoid the collision, but was justified in assuming, because of the greater maneuverability of the Dispatch and her tow, that they would effect a left rudder movement in time to execute the passing safely.9 Wilson v. Pacific Mail Steamship Company, 276 U.S. 454, 462, 48 S.Ct. 369, 72 L.Ed. 651; The Delaware, 161 U.S. 459, 469. The testimony further effectively refutes the contention that the Leo was guilty of statutory fault in failing to render stand-by assistance after the collision.10

The district court also properly concluded that appellee, The Texas Company, was entitled to recover from appellant, C. J. Dick Towing Company, the value of its damaged gasoline cargo. Under the plain language of the release of liability clause of the Transportation Agreement, Footnote 3, supra, the exercise of due diligence to make the barges seaworthy, and freedom from negligence in "the handling, care and custody of the cargo" were conditions precedent to Dick Towing Company's exemption from liability. Here, there is evidence that the Barge Bascom W. Smith, involved in the collision, had not been dry docked since 1945, and at the beginning of the voyage did not undergo more than a superficial examination of its forward rake tank to determine if it was water tight; that about seven hours before the collision here involved, the Dispatch ran her tow aground at another place in the Canal and the Bascom W. Smith was damaged; that the Dispatch and her tow thereafter proceeded with only a casual test and examination to determine whether the Smith barge was still seaworthy and fit for transporting appellee's gasoline cargo, and without removing this barge from its dangerous position at the head of the tow; that the Smith barge contained highly explosive gasoline vapor in its forward rake at the time of the collision and explosion and that, as the district court found, "the explosion caused by the condition of such rake tank started the fire that caused the major portion of the damage to everyone concerned."

It is true that when the "Release" clause of the Transportation Agreement is construed in connection with the "Jason" and "Force Majeure" clauses, also set out in footnote (3), supra, it appears ambiguous, and does not clearly define the extent of Dick Towing Company's liability for loss of or damage to cargo. However, construing the agreement most favorably to appellant, C. J. Dick Towing Company, and assuming it is protected under the Transportation Agreement as permitted by the Harter Act, 46 U.S.C.A. §§ 190-192, the above facts and circumstances can hardly constitute mere errors in navigation or in the management of the Dispatch and her tow, but furnish a substantial basis for the district court's finding of negligence both as to the custody and care of the cargo and lack of seaworthiness at the inception and during the voyage. See The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed 65; The Leerdam, D. C., 8 F.2d 295, affirmed Nederlandsche Amerikaansche Stoomvaart Maatschappij v. Mediteranian & General Traders, 5 Cir., 17 F.2d 586; Warner Sugar Ref. Co. v. Munson S. S. Line, D. C., 23 F.2d 194; The Framlington Court, 5 Cir., 69 F.2d 300; Cf. The Monarch of Nassau, 5 Cir., 155 F.2d 48.

On the issue of proper taxation of costs in the limitation proceeding, Commercial Petroleum and Transport Company contends that it was entitled to recover all its costs, including those in the limitation suit as well as those allowed.11 The question presented is not without difficulty, as an examination of the authorities will reveal, but we think that the district court properly followed the rationale of Martin Marine Transp. Company v. Jakobson & Peterson, Inc., 2 Cir., 135 F.2d 325, and held with the Second Circuit that the expenses of initiating the limitation proceeding must be borne by its petitioner, Commercial Petroleum and Transport Company, who sought the benefit of it, rather than by appellant, C. J. Dick Towing Company. Cf. The W. A. Sherman, 2 Cir., 167 F. 976; The Walter A. Luckenbach, 9 Cir., 14 F.2d 100; The Stifinder, 2 Cir., 275 F. 271; Admiralty Rule 7, 28 U.S.C.A.; 46 U.S. C.A. § 185.

The judgment is affirmed throughout, both on the main and the cross-appeal.

Affirmed.