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Mamei. Montrose. Caspian. Martug Towing Co. v. Eastern Transp. Co.

decided: December 28, 1945.


Author: O'connell

Before BIGGS, McLAUGHLIN, and O'CONNELL, Circuit Judges.

O'CONNELL, Circuit Judge.

This an an appeal from a District Court decree in the Admiralty which placed sole responsibility for collisional damages to the barge "Mamei" upon the tug "Montrose" and her owner, Eastern Transportation Company. The same decree held free from any liability for the collision the tug "Caspian" and her owner, Martug Towing Company.

The locus in quo is the Chesapeake and Delaware Canal, at a point just east of Guthrie's Run Spillway. There is a slight bend in the canal to the right at the point where the collision occurred. The width of the channel there is about two hundred and fifty feet.

On the night of May 5, 1943, "Mamei," a "dumb barge" (without motive power) was being towed by two tugs eastward through the canal. The tug "Caspian" was on her port quarter. "Hudson" was on her starboard quarter. This towing arrangement resulted in putting about 265 feet of "Mamei's" overall length of 355 feet forward of the two tugs. Evidently because "Mamei" was heavily laden with 6500 tons of coal, both tugs were required. In command of the so-called "Mamei" flotilla was Captain Middleton of "Caspian" who, stationed on the bridge of "Mamei", issued orders to "Caspian" and "Hudson" as the three vessels proceeded eastward. With him on the bridge was Captain Paulsen of "Mamei." In the wheelhouse was the "Mamei" helmsman.

Tide was nearly high, current flowing eastward with "Mamei" and against "Montrose" at about one mile per hour. It was a clear night. Visibility was very good.

Proceeding westward was the tug "Montrose," in command of Captain White, and without tow. At approximately 11:10 p.m., just east of Guthrie's Run Spillway, "Montrose" collided with "Mamei," at a forty-five degree angle. "Montrose's" stem crashed into "Mamei's" port bow at the anchor, just under the port bow light. The facts thus far are undisputed.

We have reviewed the record de novo*fn1 as required, Brooklyn Eastern Terminal v. United States, 1932, 287 U.S. 170, 53 S. Ct. 103, 77 L. Ed. 240; The Denny, 3 Cir., 1942, 127 F.2d 404, bearing in mind that fact findings of the District Court, when supported by competent evidence, are entitled to great weight and should not be set aside except under a showing that they are clearly wrong: The S.C.L. No. 9, 3 Cir., 1940, 114 F.2d 964, 966, where Judge Jones remarked, "This rule appropriately recognizes that the trial judge has a peculiar opportunity for appraising the worth of oral testimony by observing the witness' demeanor which the cold print of a record fails to disclose."*fn2

The question we have to decide is whether "Montrose" should alone suffer for the damages caused to "Mamei" or whether "Caspian" and "Mamei" ought to contribute under the "major and minor" fault doctrine of divided responsibility: The Schooner Catharine v. Dickinson, 1854, 58 U.S. 170, 15 L. Ed. 233; Atlantic Refining Co. v. Moller, 1943, 320 U.S. 462, 64 S. Ct. 225, 88 L. Ed. 168.

That "Montrose" was free from fault can hardly be contended. As we view the circumstances leading to the collision, "Montrose" was improperly navigated in many respects.

As "Montrose" proceeded westward, leaving Reedy Point at the eastern end of the canal, Captain White heard, via radio message sent out by the canal dispatcher, the word that the "Mamei" flotilla was in the canal proceeding eastward. "Montrose" did not continuously remain on her own starboard side of the narrow channel of the Chesapeake and Delaware Canal. Immediately prior to the impact she made an abrupt change of course to port. Under Art. 25 of the Inland Rules*fn3 this was a serious breach of navigational duty, particularly so since Captain White was put on notice that the "Mamei" flotilla was in the canal proceeding eastward and was familiar with the character, type and dimensions of the "Mamei."

Moreover, "Montrose," proceeding against the current and free of tow, was bound to yield to the "Mamei" flotilla the right of way under Regulation 11 prescribed by the Secretary of War for the Administration and Navigation of the Chesapeake and Delaware Canal.*fn4 See also The Edward Chilton, D.C.W.D.N.Y.1928, 27 F.2d 624, 625. Under no view of the facts is it possible to conclude that "Montrose" yielded to "Mamei" and her tugs the right of way.

Prior to reaching the slight bend in the canal and at a point just west of Guthrie's Run Spillway, Captain Middleton, from the bridge of "Mamei," sighted "Montrose's" port running light and single white all horizon light. He estimated "Montrose" as being approximately a half mile away. This indicated that an unburdened vessel to the east of the slight bend was on "Memei's" port. Captain Middleton ordered "Caspian" to blow a signal of one blast, indicating an intention to make a port to port passing. "Montrose" never answered this signal or made any other passing signals of her own which was a violation of Art. 18, Rule I, of the Inland Rules.*fn5

Captain Middleton testified that, at that point, there was no action on the part of the "Montrose" to cast doubt on her course or intentions, and he proceeded eastward without answer to his one blast signal. He ordered a right rudder, bringing "Hudson's" starboard side close to the south bank of the canal. When the vessels were from eight hundred to nine hundred feet apart, they were making the bend. Captain Middleton observed the "Montrose" crossing "Mamei's" bow, taking her to the port side of the flotilla. When the approaching vessels were about two hundred to two hundred fifty feet away, "Montrose" suddenly showed both her running lights, indicating that "Montrose" was changing her direction to port. Captain Middleton ordered "Caspian's" engines in reverse and the sounding of a four-blast danger signal, ...

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