Board of Commissioners v. M/V Farmsum

574 F.2d 289, 1978 U.S. App. LEXIS 10873
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 5, 1978
DocketNo. 75-3008
StatusPublished
Cited by15 cases

This text of 574 F.2d 289 (Board of Commissioners v. M/V Farmsum) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Commissioners v. M/V Farmsum, 574 F.2d 289, 1978 U.S. App. LEXIS 10873 (5th Cir. 1978).

Opinion

JOHN R. BROWN, Chief Judge:

On the night of July 20, 1973, at 10:50 p. m., M/V FARMSUM, on a course up the Mississippi River, collided with the Governor Nicholls Street Wharf in the Port of New Orleans and caused $35,000 in damages to the wharf. The owner of the wharf, the Board of Commissioners, brought suit in rem against M/V FARM-SUM and in personam against the vessel’s owner and operator, N. V. Stoomvaart-Maatschaapij “Oostzee.”1 The owners of M/V FARMSUM filed a third-party complaint against the Ingram Barge Company, owner and operator of the tug M/V O. H. INGRAM, alleging that INGRAM had so embarrassed M/V FARMSUM’s navigation as to cause the collision.2 Although the District Court found M/V FARMSUM guilty of numerous faults, it also found that INGRAM had contributed to the collision through a single act of negligence. The Court ordered the damages divided equally between the vessels. On appeal, INGRAM contends that the District Court erred in finding fault on INGRAM’s part or, alter[291]*291natively, in failing to divide the damages according to the comparative degree of fault of the two vessels. Agreeing with appellant that the collision was due to the sole fault of M/V FARMSUM, we reverse the District Court without reaching any measurement of comparative fault under United States v. Reliable Transfer Co., 1975, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251, 1975 A.M.C. 541. With this falls not only M/V FARMSUM’s natural and legitimate effort to sustain its divided damage victory, but the sometime tongue-in-cheek supplication that we overturn the finding of any fault against M/V FARMSUM or, on the bakery theory of half a loaf is better than none, increase beyond 50% the fault of INGRAM.

This admiralty case comes to us after trial on the issue of liability to the District Court without a jury. Several months after the conclusion of the trial the District Court entered a lengthy and detailed unpublished opinion which served as the Court’s findings of fact and conclusions of law. Except for minor editorial changes, our recital of the facts comes from that opinion.

The Collision

On the evening of July 20, 1973, M/V FARMSUM, a diesel propelled, single screw bulk carrier 680 feet long and 90 feet of beam of Dutch registry, was proceeding upriver on the Mississippi on a voyage from Surinam to Burnside, Louisiana. She carried a cargo of bauxite and had a mean draft of 24 feet. Captain Eldert Dobbenga commanded M/V FARMSUM and the chief officer was Cornelius Guijt. Both men were experienced seamen and held masters licenses.

The tug O. H. INGRAM was proceeding downriver on the Mississippi to the Murphy Oil facility near Meraux, Louisiana. The twin screw, 5,000 horsepower tug measured 144 feet by 40 feet with a 9 foot draft, and pushed four empty gasoline barges which had not been gas-freed. Three barges were lined up directly in front of the tug. Those barges, from bow to stern, were STC 2016 (240 feet in length), Red Wing (142.4 feet and Vicksburg (155 feet). The fourth barge, Tampa (145 feet), was made up along the port side of STC 2016, the lead barge. The entire tow measured 681.4 feet in length. There was a red light on the bow of Tampa and a green light on the forward starboard corner of STC 2016. The tug and tow carried a crew of 11 persons, including 7 deckhands, a cook, 2 engineers and the pilot. The pilot, Captain Oliver Altman, held an operator’s license from the Coast Guard for uninspected vessels, Western Rivers and Inland Waters, and had worked on tugboats since 1966. The engineer was Louis E. McGrew and the first mate was Edward Tapp.

The collision with the wharf occurred on the Mississippi at New Orleans where the river, viewed from upstream, makes a right turn at about a 90° angle. The left descending bank3 forms the bend. The Governor Nicholls Street Wharf is located in the bend on the left descending bank opposite Algiers Point on the right descending bank. The collision occurred on a clear night. Visibility was good and there was no appreciable wind.

As INGRAM approached Algiers Point, Captain Altman monitored channels 13 and 16 on his radio for maritime traffic. Broadcasting on these frequencies, he checked three times for upbound traffic in the vicin-* ity, once one-quarter mile above the Greater New Orleans Mississippi River Bridge (about one and one-quarter miles above Algiers Point), once one-quarter mile below the bridge (about three-quarters of a mile above the point), and once one-quarter mile above the Point. Altman received no response. Lewis McGrew, engineer on the INGRAM, was in the pilot house with Altman and could hear Altman’s calls. He was in a position to hear any responses and he testified there were none.

[292]*292The tug and tow traveled at approximately 12 miles per hour over the ground and was located near the center of the river as it passed under the bridge. One-quarter mile from the Point, Captain Altman sounded what he said was a bend signal, which he described as one distinct blast of two to three seconds. Having received no response to his radio calls for upbound traffic below the Point, and no response to the whistle signal, he assumed there was no traffic. Accordingly, he prepared to navigate around the Point by slowing to 6-8 miles per hour and steering toward the right descending bank. Altman testified that he did not post a lookout.

Meanwhile, M/V FARMSUM was also approaching Algiers Point from downriver.

At the U.S. Quarantine Station, about two and one-half miles downstream from Algiers Point, M/V FARMSUM stopped its engines and exchanged pilots. Roy L. Nance, a member of the New Orleans-Baton Rouge Steamship Pilots Association, came on board about 10:30 p. m. Nance held a Coast Guard first class pilot’s license since 1963 and a master’s license for five years at the time of trial.

When Nance boarded M/V FARMSUM, he ordered the engines full ahead. As M/V FARMSUM approached Algiers Point, Nance ordered the engines reduced to half-speed. Several minutes after M/V FARM-SUM’s speed had been reduced, Nance sighted the INGRAM’s lead barge emerging from around the Point, close to the right descending bank, and showing its green light. At this time M/V FARMSUM was upbound in the center of the river.

Shortly after the sighting, the vessels established radio contact and agreed to pass port to port.4 All witnesses were in agreement, and the District Court found, that at the time of the sighting a port to port passing could be safely made.

After Altman agreed to pass port to port, he cut his starboard engine, went full ahead on his port engine and turned his rudder hard to starboard.5 The tug’s speed was increased to 10 miles per hour and the current caused the tug and tow to slide to port about 100 feet.

Nance testified that he steered to starboard to bring M/V FARMSUM into the bend. However, neither Guijt nor Dobben-ga, who were in the pilot house with Nance, mentioned him doing so. Nance also testified that as the tug was steering around the Point, it “fell off the Point” into the bend in a sideward fashion and was off M/V FARMSUM’s port bow coming toward her course line. Guijt testified that the tow continued to show only her green light. McGrew testified that the tow was never more than 500 feet from the right descending bank.

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Bluebook (online)
574 F.2d 289, 1978 U.S. App. LEXIS 10873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-commissioners-v-mv-farmsum-ca5-1978.