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Utility Service Corp. v. Hillman Transportation Co.

decided.: May 8, 1957.


Author: Staley

Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.

STALEY, Circuit Judge.

The Ohio River is formed by the confluence of the Allegheny and Monongahela Rivers below the downtown area of the city of Pittsburgh. A maritime collision occurring in the Ohio River at a point 2.2 miles below this junction provides the basis for these appeals in admiralty.

The Utility Service Corporation, one of the libellants, contracted with the Duquesne Light Company to lay a cable in a trench which it was to excavate in the bed of the Ohio River. At the area of this work, the river flows generally from east to west and is divided by Brunots Island into two channels approximately equal in width. The cable was to extend from the north shore of the Ohio River in a southerly direction to Brunots Island. The events important to this appeal are concerned primarily with that part of the river which flows to the north of Brunots Island since that is the sailing line for most of the river's navigation.

The Utility Service Corporation leased certain equipment, including a sand barge and a derrick boat, from Harry C. Zubik, a general river contractor and the other libellant here.

The collision in question occurred on December 30, 1954, at 12:10 a.m. The equipment used by Utility in the excavation was located at this time approximately in the middle of the river between Brunots Island and the north shore. The tow boat M/V Mary Lee Hillman, under the exclusive control of the respondent-appellant Hillman Transportation Company, was proceeding downriver with a tow of six loaded coal barges. Because of a bend in the river, the equipment, although adequately lighted, was not visible to the Mary Lee Hillman beyond a distance of approximately a half mile. When the Hillman vessel had reached this point the tow boat Vulcan, owned by the Jones and Laughlin Steel Corporation, was proceeding with its tow upriver, and although somewhat below the equipment, it was obvious that she had committed herself to that part of the channel between the equipment and the north shore. She blew one blast, indicating a port-to-port passage. The pilot of the Mary Lee Hillman perceived danger in such a course and immediately nullified the Vulcan's signal with the accustomed four short blasts. Then the Hillman boat blew two blasts, indicating a starboard-to-starboard passage; this was to be effected by passing between the equipment and the island.

As she passed beyond the eastern end of the island and to a point 1,000 feet above the equipment, she was caught in a crosscurrent moving from the island toward the equipment. She then reversed her engines, preventing a head-on collision, but the current was strong enough to ease her into the sand barge and derrick boat, causing damage to both pieces of equipment.

The district court concluded that the sole cause of the collision was the negligent navigation of the Mary Lee Hillman and entered judgments in favor of Utility in the sum of $639.13, with interest from December 30, 1954, and in favor of Zubik in the sum of $13,951, also with interest from December 30, 1954. %.d.c.w.d.p/a.1956, 142 F.Supp. 473. It is from these judgments that the present appeals are taken.

The appellant's principal contentions are: (1) The crosscurrent which caused the collision was unprecedented, and therefore appellant's pilot was not negligent in failing to foresee its effects; (2) Zubik was negligent in not removing the derrick boat and sand barge from the middle of the channel; (3) evidence as to the damages was vague and indefinite; and (4) in any event, interest should not have been allowed on the Zubik judgment as he had not actually expended money to repair the damages.

Under the rule of McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20, we may not set aside the judgments of the district court unless they are clearly erroneous, that is, unless a review of the entire record leaves us with the firm conviction that a mistake has been committed.

The current in the Ohio River at the point of collision is normally one-half to one and one-half miles per hour, but on the night in question it was increased to five or six miles per hour by the opening of the gates at the Emsworth Dam, which was situated below the excavating equipment. From the testimony in the record, the trial court could very well have concluded that when the current of the river is normal, it is deflected slightly both to the north and to the south as it strikes Brunots Island. When the current is increased these deflections become noticeable crosscurrents. They increase in velocity and force as the rate of flow of the river increases. The opening of the dam, which is not an unusual occurrence, naturally increases the rate of flow, and this effect is readily noticeable to experienced mariners.

The pilot of the Mary Lee Hillman testified that he had extensive navigating experience, having been a river pilot for twenty-three years. He was aware of crosscurrents caused by Brunots Island when the main current of the river increased. He testified, however, that the crosscurrent which caused the collision was unknown to him:

"* * * I knew it was safe to go down on the left side, because of previously I had been down there, to the left side of the derrick boat. So I intended to go down there, and I overcame the current at the head of the island. But a peculiar situation exists there, that I did not know existed, because ...

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