Hess Shipping Corp. v. SS Charles Lykes

417 F.2d 346, 1969 A.M.C. 1787
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 10, 1969
DocketNo. 26703
StatusPublished
Cited by3 cases

This text of 417 F.2d 346 (Hess Shipping Corp. v. SS Charles Lykes) 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
Hess Shipping Corp. v. SS Charles Lykes, 417 F.2d 346, 1969 A.M.C. 1787 (5th Cir. 1969).

Opinions

CABOT, District Judge:

This is an appeal from an interlocutory decree holding Lykes Bros. Steam[348]*348ship Co., the appellant, solely at fault for the collision between its ship, the SS Charles Lykes, and the ST Hess Voyager owned by the Hess Shipping Corp., the appellee. Each party had sued the other and its vessel. The actions were consolidated for a non-jury trial limited to the issue of liability. The appellant Lykes asserts that the findings of fact and the conclusions of law, insofar as the latter relate to Hess’s freedom from fault, are clearly erroneous.

The facts indicate that on the night of March 3, 1966, in the Upper Reach of Mobile Bay Channel, the outward-bound SS Charles Lykes and the inward-bound Hess Voyager collided at a point adjacent to buoy #42 and, as the lower court found, in the eastern portion of the channel.

The channel runs nearly due north and south and is 40 feet in depth for a width of 400 feet. Because the sides of the channel are sloped, it is possible for vessels drawing less than 40 feet to navigate outside the channel boundaries.

The collision occurred in a heavy fog which restricted the vessels from visual sightings of each other until they were approximately 300 feet apart. Two buoys are relevant to this discussion. Both are on the eastern side of the channel approximately 150 feet east of the channel boundary line, with buoy #44 being about one nautical mile to the north of buoy #42.

On the day of the collision, the Charles Lykes, (a C-2 type cargo vessel, 441 feet long and 63 feet wide, gross tonnage 8,178) departed the Alabama State Dock at about 9:00 P.M. under the control of her master, Capt. Beasley, and pilot, Capt. Walsh. The vessel steamed a course of 154 degrees through the inner harbor of Mobile Bay, also known as Pinto Reach, to its juncture with the Upper Reach which is marked by buoy #44. At this point the vessel was to turn to 182 degrees, the necessary coordinate for an outward-bound vessel. At the time, the pilot of the Charles Lykes was trying to follow the Claiborne, a vessel which had preceded it out of the harbor and which successfully executed the customary port to port pass with the Hess Voyager. However, upon negotiating the turn a problem developed. Although the Charles Lykes was equipped with radar, its unit did not" indicate the existence of objects off either the port bow or dead ahead of the vessel. The lower court determined that this failure was caused by the negligent rigging and fixing of cargo booms at a height in excess of and thus in interference with the radar equipment. This interference prevented the Charles Lykes from picking up buoy #44 which resulted in a delay of its turn into the Upper Reach Channel and further prevented it, upon its turn, from either tracking the course of the Claiborne or from picking up the Hess Voyager on its radar. The lower court concluded that because of these difficulties the Charles Lykes ended up in the eastern side of the channel.

The Hess Voyager, under her master, Capt. Castro, took on a pilot, Capt. Raley, about 30 miles from the site of the collision. At that point visibility was about four miles. However, fog was encountered when the Voyager reached a point about half way up the channel. Capt. Raley notified the Charles Lykes’s pilot of the weather conditions and reduced speed to slow ahead.

Throughout this period the radar unit on the Hess Voyager was operating properly and was providing a view of all channel markers and other vessels. The Hess Voyager on at least one subsequent occasion warned the Charles Lykes by radio that the Charles Lykes was too far to the east and would have to move over to effect a safe passing. As the Hess Voyager approached buoy #42 prior to the collision, she was making approximately six knots an hour while stemming an ebb tide of 1% knots, the wind blowing from the southwest at eight to twelve miles per hour. The Voyager maintained a course on the ex[349]*349treme eastern side of the channel, as the lower court found.

By the time both vessels reached buoy #42 and made visual sightings of each other, it was too late to avoid collision. The Charles Lykes went to full ahead and hard right rudder and the Hess Voyager to full astern and hard right. The Hess Voyager went aground just at or immediately after the collision. The vessels collided port to port and the Charles Lykes let out its anchors, finally stopping afloat with her bow facing northwest.

The lower court concluded that the Charles Lykes was guilty of gross negligence in rigging her booms in such a way as to greatly impair the effective use of her radar and was grossly at fault in failing to maintain a course on her own starboard side of the channel in violation of Article 25 of the Inland Rules, 33 U.S.C. § 210. It also concluded that any violations on the part of the Hess Voyager of Article 16 of the Inland Rules, 33 U.S.C. § 192, were technical in nature and could not be construed as a contributing cause of the collision.

Rule 52(a), Fed.R.Civ.P., applies in admiralty cases and the trial court’s findings must be affirmed unless clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. A finding is “clearly erroneous” when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). This is not such a case.

Appellant argues that the court erred in failing to conclude that the Hess Voyager was at fault for operating at excessive speed in dense fog, for failing to stop her engines on hearing the fog signal of the Charles Lykes, and for failing to take any steps to avoid the collision. Article 16 of the Inland Rules, 33 U.S.C. § 192, states:

Every vessel shall in a fog * * * go at a moderate speed, having careful regard to the existing circumstances and conditions.
A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over. [Emphasis added.]

The standard of moderate speed as set forth in the statute is necessarily vague. Moderate speed, while less than full speed, is a relative term which depends upon the particular circumstances of each case. Polarus S/S. Co. v. T/S Sandefjord, 236 F.2d 270 (2 Cir. 1956). This court long ago recognized that:

“Moderate speed” is purely a relative term, which means no more than that the vessel must run at a prudent rate of speed. Time, place, and circumstance, rather than the swiftness of the vessel over her course, determine whether the actual speed was immoderate, in that it was imprudent. Quinette v. Bisso, 136 F. 825, 830, 5 L.R.A.,N.S., 303 (5 Cir. 1905).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
417 F.2d 346, 1969 A.M.C. 1787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hess-shipping-corp-v-ss-charles-lykes-ca5-1969.