JOHN R. BROWN, Circuit Judge.
Cargo on the Danish M. V. Argentina sued the American S.S. Antinous, the non-carrying vessel, for cargo losses sustained
Cargo, with the irrepressible optimism, Higgins Inc., v. Hale, 5 Cir., 251 F.2d 91, 1958 A.M.C. 646, of their proctors who remember another day, seeks complete review and revision of nearly all of the critical fact findings, generally indifferent to the requirement of the new dispensation, McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999, that nowadays we can only reverse if the findings are clearly erroneous
Collision occurred at 0200 hours in a dense fog about one-half mile above Scarsdale Light and within 150 feet off of the East (right ascending) bank. The S.S. Antinous, upbound for New Orleans, partially loaded, was a C — 2 vessel, 449 feet in length with 6,000 h.p. steam turbines and whose normal maneuvering speed was 14.2 KTW
Scarsdale Light is about 2½ miles below Shingle Point at English Turn Bend. Coming downstream this is a sharp left bend. As a downbound vessel straightens up below English Turn Bend, she is on a course near 180 degrees. At a point about ¾ mile above Scarsdale Light the River bends slightly to the right (west) so that its axis is about 215° for a distance of over 2 miles which includes the area in which the significant maneuvers of the S.S. Antinous commenced. While the angle of convergence was slight, it may well have been the thing which set the stage for collision. As the M.V. Argentina was steering a compass course approximately 180° T and the S.S. Antinous was threading the stream parallel to the east bank, this could produce on the Argentina's radar screen the picture, if not carefully read, of a vessel approaching well off the Argentina's starboard bow. That is how the Argentina treated it, though mistakenly, for had collision not occurred, she would have shortly run aground on the east bank.
The first she knew of the downbound Argentina was at C — 2 when a 2-blast signal, interpreted as a proposal for a starboard to starboard passage, was heard off the port bow, although the Argentina could not then be seen. All the Antinous' witnesses swore, although her logs do not bear them out, that she then immediately replied with a 4-blast alarm whistle and stopped her engines. Shortly thereafter and at C — 1 she heard whistle alarms from the Argentina again followed by a 2-blast signal. At this moment the Argentina came into view for the first time about two ship lengths away. To this the Antinous responded with the alarm, put her engines on full astern (emergency) and blew the 3-blast reversing signal. Within the minute collision occurred. The angle of collision was about 70° with respect to the center line of the Antinous. The stem and bow of the Antinous penetrated 9 feet into the starboard side of the Argentina from below the waterline to weather deck at a point about 70 feet abaft her stem. Not surprisingly, the Antinous claims she was making sternway so that the collision force came entirely from the forward momentum of the Argentina.
Meanwhile, back on the Argentina, things were occurring. At C — 16½ her engines were put on full ahead. At C — 12 she saw on her radar for the first time an approaching vessel (this turned out to be the Antinous) bearing dead ahead or slightly off her starboard bow. At that time the Argentina was shaping up from 200-190° to her expected course of 180°. At C — 10 fog became heavy and she reduced engine speed to half ahead. However, the bearing of the approaching Antinous had now changed to 2 points off the Argentina's starboard bow. This radar picture was misinterpreted and led the Argentina to assume that a starboard to starboard passage could be made. As fog became more dense, speed was reduced to slow ahead at C — 7. At C — 4½ when the Argentina heard, but ignored, a fog signal from the Antinous, her speed was increased to half ahead and shortly thereafter the masthead lights (but not the side lights) of the Antinous were observed bearing 20 to 25° off the starboard bow. About this time the Argentina blew a 2-blast
On this the Court roundly condemned
Oddly enough in making subsidiary fact findings and these fact-legal conclusions, the Court added to the Argentina's speed through the water the 4 knot current but deducted it from that of the Antinous. This made the Argentina's speed 17.5, 13.5, and 8.5 KTW at full, half and slow ahead in contrast to the Antinous' corrected speed of 10.2 at full ahead and 3.1 at half ahead. It was this latter speed of 3.1 KOG which the Court found moderate.
There are several things quite unique about this case and the successful development of it by the Antinous. This includes the rare fact that the Antinous, the prevailing party, succeeded in the face of solemn log entries which either condemn
Next on matters of extreme importance, there was a marked discrepancy, always in favor of the Antinous, between what was sworn to under oath in the extensive Coast Guard investigations held shortly after the occurrence, and that
Of course, with the admitted speed of the Antinous, the exigencies of litigation required all the distance that could honestly be obtained on the issue of the range of visibility. The Pilot, on the trial, swore that this was two ship lengths or more, and the Court so found. At the Coast Guard hearing, he testified that he estimated the visibility to have been "500 feet, maybe." We need not determine whether on his acknowledgment that he had testified to whatever the Coast Guard record showed he had, this made this excerpt something more than prior inconsistent statements and admissible assertively, McCormick on Evidence, § 39, pp. 73-82; Wigmore on Evidence, 3rd ed., §§ 1017, 1018, see note 11, supra, for the Antinous subsequently offered in evidence other excerpts which became proof of the facts stated that visibility was at most a ship length.
Another thing is that in the Antinous' advocacy unavoidably carried forward in many of the findings prepared by her Proctors and adopted
And perhaps strangest of all was the judicial admission by the Argentina that she was solely at fault and the Antinous free from fault. For this admission was spurious, not in the moral sense, but in the legal sense. No disparagement of motive or conduct by parties or counsel is made or intended. On the contrary, settlements are to be encouraged and this one certainly reflects the consummate skill of the Argentina's proctors who, as articulate craftsmen, had much reason to be pessimistic about the case as a whole which included not only Cargo's substantial claim, but extensive claims
Without a doubt the circumstances called for the application of the traditional rule of sight by which the vessel must proceed at a rate of speed which will allow her to come to a stop within one-half limit of visibility. The Tug Percheron, 5 Cir., 246 F.2d 135, 1957 A.M.C. 1941; The Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 34 L.Ed. 687, 690; The Umbria, 166 U.S. 404, 417, 17 S.Ct. 610, 41 L.Ed. 1053, 1060; Griffin on Collision, pp. 288-296. In this area the Mississippi River was a busy artery in which many vessels upbound, downbound and at anchor might be expected. The hazard of proceeding on was demonstrated by the contemporaneous decision of two other ascending vessels to come to anchor near the West bank and the determination by the Antinous Pilot and Master to do the same.
As she continued on, conditions got worse, not better. Notwithstanding this, she persisted in holding her speed at half ahead until within two minutes of the fateful impact. We need not minutely examine the evidence on speed. The Court fixed this at 7.1 KTW.
But she was not proceeding at 3.1 KTW at the time either the stop order was given at C — 2 or full astern at C — 1. She was proceeding through the water at a speed over twice that great when the stop order was executed
The speed through the water as C — 1 commenced was greater than 3 KTW and the minute was half over before the full astern order was effective. The bridge Watch Officer fixed impact time at precisely 0200 and so did the Chief Engineer in the engine room. The Engineer Watch Officer fixed the time between the receipt of the full astern order and the impact at 50 seconds. This means that on her own story put forward most favorably to her, the Antinous had effective emergency full astern on her propeller for 20 seconds.
Of course the major error in the argument advanced by the Antinous and adopted by the Court was that the relevant speed was over the ground so that the assumed current of 4 knots should be deducted. We think it would be unwise here precisely to chart the circumstances and the extent to which tide or current is or is not to be taken into account in computing moderate speed in fog situations. We have no difficulty though in saying that for these circumstances it was not to be deducted. The Antinous was not then navigating relative to an anchored vessel or a fixed object. She was, or ought to have been, maneuvering with respect to another vessel not only moving, but moving at a speed she and the Court characterized as grossly excessive. That being so, to satisfy the test in terms of ability to stop, the Antinous had to demonstrate that in the common body of water affecting both vessels substantially alike, she could stop before she traversed one-half the distance she could see. A. H. Bull S.S. Co. v. United States, 2 Cir., 34 F.2d 614, 1929 A.M.C. 1175; The Lillian Anne-Pennsylvania, 2 Cir., 1934 A. M.C. 569, certiorari denied Chesapeake & Delaware Steamboat Company v. The Tug Pennsylvania, 293 U.S. 575, 55 S.Ct. 86, 79 L.Ed. 673, 1934 A.M.C. 1410; The Goldshell-White Plains, 2 Cir., 224 F.2d 86, 1955 A.M.C. 1438; Marsden's Collisions at Sea, 10th Ed. 1953, p. 479-480. It has been well put: "That is to say, it is the duty of a vessel to proceed in a fog at a moderate speed, both with respect to moving and to anchored vessels. That she is proceeding at a moderate rate of speed over the ground will not free her from blame, if, proceeding immoderately through the water, she strikes a vessel under way. That she is proceeding moderately through the water will not excuse her, if, proceeding immoderately over the ground, she strikes a vessel properly anchored. * * *" The Yarmouth, D.C. Mass., 100 F. 667, 671. We do not regard The Silvanus, D.C.La., 56 F.2d 257, 1932 A.M.C. 154, affirmed Nederlandsche Indische
On her own most favorable testimony, we do not quite see how the Court could find that the Antinous was stopped and making sternway. But accepting this, there was still no proof that this remarkable feat, achieved in a minute's time and in a way which exceeded her capabilities at a speed half as fast, was accomplished within one-half of the distance between them. To stop or to be able to stop before collision is not enough. That must be done within the vessel's share
Once we reach this conclusion that the District Court on the basis of its own fact findings was wrong in its legal conclusion that the speed of the Antinous was moderate, there is no room for application of the rule of the Alexandre v. Machan (City of New York), 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84. The evidence of the Antinous' fault on this score is clear, indeed, uncontradicted. We may, as did the District Court, call the Argentina's faults glaring. But the statute imposed a positive duty on the Antinous to proceed at a moderate speed. The test of moderate speed is stated in terms of being able to stop within one-half of the distance separating the two vessels assuming the other is likewise proceeding at moderate speed. But this does not mean that the duty is not owed if, as might well be the case here, the approaching Argentina's speed was likewise excessive. Fog rules take into account the uncertainties as this enigma of nature shuts out sound and sight and frequently understanding. The risk of collision in fog is best avoided by complying with all three requirements, blowing and listening for fog signals, proceeding at a moderate speed, and stopping after whistles from unseen vessels are heard forward of the beam. While the law normally concedes that one may act upon the assumption that others are obeying, not violating, the law, the operation of statutory navigational requirements and the heavy sanction which Courts place on violations of them, The Pennsylvania, 86 U.S. 125, 19 Wall. 125, 22 L.Ed. 148, reflect a purpose neither to make an outlaw of one violating the rules, nor excuse the other from the performance of correlative duties. That this is a wise rule is shown here by the slight additional margin which would have prevented this collision.
For 18 minutes the Antinous was proceeding in fog at 7.1 KTW. She was entitled to do that only if she could see twice the distance which that speed required for her to stop in the water. But she could see only that distance which required that her speed be 3.1 KTW if she were to stop within her half. Consequently, she had failed in her duty for nearly 18 minutes. Her speed was not moderate when she first heard the Argentina's two-blast signals. It was not moderate as she speculated for a minute's time and stopped her engines. It was not moderate as the Argentina hove into view.
When a plain statutory command is violated on the uncontradicted story of the vessel's own witnesses stated most favorably to her cause, she cannot escape the consequences because fault of the other may be more glaring, more flagrant, or more shocking. Her last clear chance to extricate herself is to show that the statutory fault not only did not, but could not possibly have, caused collision. The Pennsylvania, supra. That heavy burden cannot be met here.
The Cargo was entitled to a decree, and the cause is accordingly reversed and remanded for other and not inconsistent proceedings.
Reversed and remanded.
Antinous Argentina Synchronized Bell Book and Time Bridge Time Bell Book Time Collision Time *0142 Vis. becoming 0141+ Slow Ahead C — 18 limited Fog Signals started Slow Ahead C — 16 ½ 0147 ½ Full Ahead C — 12 0152 SS Antinous first seen on radar Antinous passed C — 10 0154 Half Ahead descending vessel abeam Scarsdale Light SS Antinous 2 pts. off Stb bow on radar C — 7 0157 Visibility reduced Heard fog signal from Antinous C — 4 ½ 0159 ½ Sighted Antinous on radar 2 blast blown Half Ahead Heard 2-blast 0158 + Stop C — 2 0202 Blew second signal off port 2-blast bow. Replied Full Astern with danger signal Stop C — 1 ½ 0202½ Full Astern emergency Danger signal heard 0159 + Full Astern C — 1 0203 from Argentina and second 2-blast. Replied danger signal and 3-blast reversing signal Full Astern First saw Argentina *0200 Stop Full Astern 0200 At 0200 felt C 0204 Stop Hit Tanker ship jar Full Astern slightly Hit by Antinous *0201 Slow Ahead 0201 Stop C + 1 Stop Slow Ahead Stop *0201.5 Stop C + 1 ½ 0204 ½ Half Ahead Stop
* Entries as appear in Bridge Bell Book
"0158 A vessel sounded passing signal `two blasts' and was answered immediately with danger signal. Approaching vessel answered danger signal and repeated `two blasts'. This vessel sounded danger signal again. "0200 Vessel stopped and rung full astern `and given extra jingle' Vessel proceeded to come without altering course and fell against this vessel's bow. * * *"
Bridge Bell Book Engine Bell Book 0201 Slow Ahead 0201+ Slow Ahead 0201.5 Stop 0201+ Stop 0207 Slow Ahead 0207 Slow Ahead 0208 Half Ahead 0208 — ½ Half Ahead 0208 — ½ Full Ahead 0209.5 Full Ahead 0209 — ½ Stop Full Ahead 0209 — ½ Full Ahead 0210 Stop 0210 Stop 0210 — ½ Full Astern 0211.5 Full Astern & Stop 0211 Stop 0211 Half Astern 0211 — ½ Full Astern 0212 Full Astern 0213 Stop & let go 0213 Stop 0219 Slow Ahead 0219 Slow Ahead 0220 Stop 0220 Stop
"If a case arises in which B, [Antinous] the minor fault vessel, is held liable to A's [Argentina's] cargo, but where, as between the vessels, A [Argentina] is held solely liable, one may wonder whether, in the resulting offsets between A and B, the rule of the Chattahoochee, 173 U.S. 540, [19 S.Ct. 491, 43 L.Ed. 801] will permit B [Antinous] to throw the entire cargo damage on A [Argentina], in spite of the latter's immunity from direct suit under the Harter Act, [46 U.S.C.A. § 190 et seq.] and the Carriage of Goods by Sea Act."
We have seen substantially such results occur in the now prevalent third party longshoreman death and injury cases: Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 349 U.S. 901, 75 S.Ct. 575, 99 L.Ed. 1239, 1955 A.M.C. 1422; Weyerhauser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491; cf. American Stevedores, Inc., v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011, 1947 A.M.C. 349; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., supra; Czaplicki v. S.S. Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387, 1956 A.M.C. 1465.
"Q. Captain, you evidently considered that it was not safe to proceed under the conditions you encountered or you would not have considered anchoring. Isn't that correct? A. That's correct. Yes, sir."
The Court found that the Master and Pilot correctly "reasoned that it would be unsafe to anchor there in fog where other vessels might be encountered * * *", and in the Conclusions of Law held that the Antinous was not obligated to then anchor since "* * * In that area of the River she was * * * navigating after entering fog, river and traffic conditions rendered anchorage unsafe."