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Diamond State Tel. Co. v. Atlantic Refining Co.

decided: June 10, 1953.


Author: Staley

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

These appeals from a final decree in admiralty require us to untangle a nearcollision case in which respondent's tanker, although it managed to miss the three other vessels on the scene, struck and damaged libellant's submarine cable.*fn1

Libellant runs two of its telephone cables over the floor of the Delaware River between Deepwater Point, New Jersey, and Pigeon Point, Delaware. The south cable having failed, libellant began repair operations on April 19, 1949. In order to carry out the repairs, the services of three vessels were engaged: the tug Adriatic, the barge Acco (under bareboat charter), and the derrick barge Contractor. The tug Adriatic was owned by respondent Martug Towing Company, and her services were obtained through respondent P. F. Martin, Inc., her operating agent. She was to perform towage and transportation services, while the Contractor was to lift the cable and lay it across her own and the deck of the Acco so that libellant's repair crew could work on it.

At about 7:30 p.m. on April 20, 1949, the Acco was lying broadside in the middle of the upbound fairway in the Cherry Island Range, with the uplifted cable chained along her deck. From the deck of the Acco, the cable dipped back into the water and touched bottom about one hundred feet to the east. The Contractor was lying out of the channel about six hundred feet east of the Acco, and the cable rose from the bottom and was chained across her deck. From the Acco and the Contractor, the cable sloped to the bottom and exended to the Delaware and New Jersey shores, respectively. Neither the Acco nor the Contractor were anchored because libellant did not allow repair vessels to drop their anchors for fear of fouling the other cable on the bottom, but both vessels were kept fairly stationary by the cable on their decks. The Adriatic was north of, and had her bow against, the Acco and used her engines intermittently in order to counteract the effect of the flooding tide and thus take the tension off the cable.She was not anchored but had a line fast to the Acco.

The district court found that these three vessels were brilliantly illuminated. Finding of Fact No. 6 reads, in part, as follows:

"The 'Acco' had twelve red kerosene lanterns around her guard rail, one red lantern on top of a nine foot cable reel, and two five hundred watt floodlights shining on her deck. The 'Contractor' had three red lights in a vertical line in her rigging, with the lowest approximately twenty-five feet above her deckhouse, two floodlights shining on her deck and deck lights around her house. The 'Adriatic' had one white mast light, her red and green running lights and lights around her deck."

The loaded tanker W. C. Yeager, owned and operated by respondent The Atlantic Refining Company, was proceeding upriver at about 13 1/2 knots. She went to half speed when she ported at the intersection of Deepwater Point and Cherry Island Ranges. At this point she was first sighted by those aboard the Adriatic.*fn2 Naturally, the versions of the witnesses for the vessels differ.Libellant's witnesses and those of respondent P. F. Martin, Inc., testified that shortly after the Yeager was first sighted, the Adriatic blew a combination signal: four short blasts and two long ones, intending to indicate danger on the Adriatic's port side. Hearing no answer from the Yeager, the Adriatic repeated the combination signal six or seven times. The Yeager blew one blast and continued ahead. Those on the Acco, believing a collision to be imminent, scrambled aboard the Adriatic and cast off her line so that she drifted free of the Acco. The Yeager, with the Acco on her port side, cleared the latter with about fifteen to twenty feet of open water, but she struck the cable which sloped off the Acco, and the impact whipped the Acco around so that she scraped along the tanker's side. Substantially, this was the version which the district court accepted.

The captain of the Yeager, on the other hand, testified that he had seen the lights of the repair vessels even before he reached the intersection of the Deepwater Point and Cherry Island Ranges. The Yeager's captain, first mate, and helmsman all testified that the Adriatic was showing white lights in a vertical line and a red running light. Consequently, to them she looked like a tug and tow*fn3 proceeding diagonally across the river from New Jersey to Delaware. They planned, therefore, to go under her stern. To carry out this intention, the Yeager, when she made the Cherry Island Range, steadied on a course of 20 degrees rather than 17 degrees, the correct course for that range. When about one-half mile from the flotilla, the Yeager sounded one blast and went to slow ahead.Those on the Yeager heard no response. Shortly thereafter, the Adriatic sounded a danger signal and turned out her running lights. This was the first indication to the Yeager that the Adriatic was not a moving vessel. Immediately upon the Adriatic's danger signal, the Yeager's engines went to stop and her rudder hard left. Having lost steerageway, however, she did not respond to the helm. Therefore, her engines were put at full astern, she sounded three blasts to indicate that maneuver,*fn4 and she went to hard right rudder. She was unable to break her headway, and she drifted by the Acco and struck the cable, as described above.

The channel at the point of mishap is about eight hundred feet wide. The night was dark but clear.

It is admitted that neither the Acco nor the Adriatic displayed the three red lights in a vertical line, required by the Pilot Rules to be shown on vessels engaged in cable laying.*fn5

On the points where the testimony was conflicting, the district court found that the Adriatic was the first to blow; that the Yeager ignored those signals which were ample warning of danger on the Adriatic's port side; and that the Yeager would have had sufficient time to avoid the cable if she had stopped or passed to starboard of the Adriatic. As to the absence of the three red lights on the Acco and Adriatic, the court concluded that there was already such a multitude of lights on the two vessels that three more could not possibly have changed the result. Finally, the decree dismissed the libel as against P. F. Martin, Inc., and held The Atlantic Refining Company solely liable for the damage to the cable. These appeals followed, Atlantic being the appellant in No. 10,867 and libellant having taken a protective appeal in No. 10,877 from the dismissal as to P. F. Martin, Inc.

Jurisdiction in admiralty is based on the Admiralty Extension Act.*fn6

There are two major phases to the case: The question of Atlantic's liability to libellant and, depending upon the disposition of that problem, the question of the liability of P. F. Martin, Inc. We ...

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