THOMSEN, Chief Judge.
This suit arises out of a collision between two tugs in the Northwest Harbor at Baltimore. Claimant-respondent admits negligence on the part of the Gremlin; the only question is whether any negligence on the part of the Mareco contributed to the collision.
In the late afternoon of January 8, 1956, the tugs Gremlin and H. S. Falk, owned and operated by claimant-respondent, were dispatched to Bethlehem Shipyard Pier 1, Key Highway, Baltimore [871]*871Harbor, to assist the S. S. Mission Carmel from her berth. The weather was good, wind fresh from the north. Captain Thomas of the Gremlin went on the bridge of the Carmel to take charge of the maneuvers. The two tugs assisted the Carmel until she was headed down the river (east); the Falk then took down her towing lights, and with her running lights up, headed down the river herself. When she was just beyond Phil-pot Street, the Falk’s engine was cut off and she lay to on the north side of the channel, making very slight headway, waiting for the Gremlin to come and take off Captain Thomas, who had come aboard the Falk.
The Gremlin followed the Carmel down the river on the Carmel’s starboard side expecting to take Captain Thomas off the ship. But when the Gremlin was near the American Sugar Refining plant, on the south side of the harbor, her mate received a telephone message to proceed across the harbor and take Captain Thomas off the Falk. Upon receiving this message, about 6:40 p. m., the Gremlin, in charge of her mate, Sapp, turned around and proceeded at about three knots across the harbor in a northwesterly direction toward the Falk, which was then some 800 feet away. The Gremlin’s running lights and mast head light were burning, her towing lights having been taken down. Sapp was in the pilot house, at the wheel; no other lookout was posted. It is neither required nor customary to have any other lookout under those conditions.
Sapp testified in court that when the Gremlin was about 150 feet from the Falk, he first noticed the Mareco, 25 to 30 feet off his starboard bow. He put the Gremlin full speed astern, but after about three or four seconds collided with the Mareco on her port quarter. Sapp had testified at the Coast Guard hearing two days after the collision that he first saw the Mareco when she was about 150 feet off his starboard bow.
Shortly before the Gremlin turned to cross from the south to the north side of the harbor, the Mareco rounded Fells Point and headed westerly toward the Bethlehem Key Highway Yard. The Mareco was making about six knots, and was about twice as far from the Falk as the Gremlin was. The Mareco is a single screw diesel driven tug, 49 feet long, with a 12 foot beam. The only one aboard was James J. Sadowski, libellant’s son, aged 24, who has no license, but is familiar with the Inland Rules, and has taught a seamanship class for the Coast Guard Reserve. No license is required for the operation of such a tug unless cargo or passengers are being carried. The Ruth Conway, D.C.Md., 75 F.Supp. 514, affirmed sub. nom. Harbor Towing Corp. v. Parker, 4 Cir., 171 F.2d 416.
The Mareco carried the same running lights as the Gremlin; they were all burning and in good order. Her course led her toward the bow of the Falk; and since the Falk was near the piers on the north side of the harbor, Sadowski properly decided to pass the Falk to her south, and steered a southwest course to clear the Falk’s bow. As between the Falk and the Mareco, the Falk was the privileged vessel; she was not anchored, but was making slight headway on a southeast course. Sadowski therefore watched her closely, and did not see the Gremlin until they were too close to avoid a collision. When the Mareco was 50 to 100 feet off the Falk’s bow, the Falk threw her searchlight in front of the Mareco and then in front of the Gremlin, which was then about 150 feet from the Falk. The Mareco held her course and speed until just before the collision, when Sadowski gave her a hard left rudder and full ahead. The impact, on the Mareco’s port quarter, was sufficient to crush a 3-inch oak beam.
The parties have agreed that libellant’s damages were $10,287, of which $7,087 was for repairs. The Gremlin was not damaged.
The several witnesses disagreed where the tugs were at different times, but it appears that the Mareco passed within about 50 feet of the Falk’s bow, which was headed in a southeasterly direction, and that the collision occurred about 125 [872]*872feet south or southwest of the Falk. The. witnesses also disagreed to what extent the Gremlin had slowed down before her mate saw the Mareco, but the damage to the Mareco indicates that the Gremlin must have been making about two knots at the time of the collision.
No excuse is or could be offered for the failure of the Gremlin to see the Mareco and to take proper steps tó avoid the collision. The issue is whether the Mareco was also negligent and, if so, whether such negligence contributed to the happening of the collision. This issue must be considered in the light of the well-established rule that where the fault of one party is obvious and inexcusable, the evidence to support fault on the part of the other must be clear and convincing, in order to make a case for apportionment. The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84; The Victory (The Plymothian), 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519; The Bright, 4 Cir., 124 F.2d 45; Compania de Navegacion Cebaco, S. A. v. The Steel Flyer, 4 Cir., 200 F.2d 643, certiorari denied Isthmian S. S. Co. v. Compania, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356.
The Inland Rules, 33 U.S.C.A. § 151 et seq., provide:
“§ 204. Steam, vessels crossing. Art. 19. When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.”
“§ 206. Vessel having right of way to keep course. Art. 21. Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed.”
“§ 221. Usual additional precautions required generally. Art. 29. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”
There was no statutory or customary obligation on either the Mareco or the Gremlin to maintain a lookout in addition to the man at the helm. But that man, of course, was bound to keep a proper lookout, under all the circumstances, which included darkness and a busy harbor. Libellant argues that since, as between the Mareco and the Falk, the Mareco was the burdened vessel, Sadowski was required to keep a close watch on the Falk, and should not be blamed for failing to see the Gremlin, approaching off his port bow. The Mareco’s situation vis-a-vis the Falk is certainly a circumstance or condition which must be considered in assessing the blame. The Pocomoke, D.C.E.D.Va., 150 F. 193, Waddell, D. J. Nevertheless, Sadowski should have kept a sharper lookout ahead than he did.
Free access — add to your briefcase to read the full text and ask questions with AI
THOMSEN, Chief Judge.
This suit arises out of a collision between two tugs in the Northwest Harbor at Baltimore. Claimant-respondent admits negligence on the part of the Gremlin; the only question is whether any negligence on the part of the Mareco contributed to the collision.
In the late afternoon of January 8, 1956, the tugs Gremlin and H. S. Falk, owned and operated by claimant-respondent, were dispatched to Bethlehem Shipyard Pier 1, Key Highway, Baltimore [871]*871Harbor, to assist the S. S. Mission Carmel from her berth. The weather was good, wind fresh from the north. Captain Thomas of the Gremlin went on the bridge of the Carmel to take charge of the maneuvers. The two tugs assisted the Carmel until she was headed down the river (east); the Falk then took down her towing lights, and with her running lights up, headed down the river herself. When she was just beyond Phil-pot Street, the Falk’s engine was cut off and she lay to on the north side of the channel, making very slight headway, waiting for the Gremlin to come and take off Captain Thomas, who had come aboard the Falk.
The Gremlin followed the Carmel down the river on the Carmel’s starboard side expecting to take Captain Thomas off the ship. But when the Gremlin was near the American Sugar Refining plant, on the south side of the harbor, her mate received a telephone message to proceed across the harbor and take Captain Thomas off the Falk. Upon receiving this message, about 6:40 p. m., the Gremlin, in charge of her mate, Sapp, turned around and proceeded at about three knots across the harbor in a northwesterly direction toward the Falk, which was then some 800 feet away. The Gremlin’s running lights and mast head light were burning, her towing lights having been taken down. Sapp was in the pilot house, at the wheel; no other lookout was posted. It is neither required nor customary to have any other lookout under those conditions.
Sapp testified in court that when the Gremlin was about 150 feet from the Falk, he first noticed the Mareco, 25 to 30 feet off his starboard bow. He put the Gremlin full speed astern, but after about three or four seconds collided with the Mareco on her port quarter. Sapp had testified at the Coast Guard hearing two days after the collision that he first saw the Mareco when she was about 150 feet off his starboard bow.
Shortly before the Gremlin turned to cross from the south to the north side of the harbor, the Mareco rounded Fells Point and headed westerly toward the Bethlehem Key Highway Yard. The Mareco was making about six knots, and was about twice as far from the Falk as the Gremlin was. The Mareco is a single screw diesel driven tug, 49 feet long, with a 12 foot beam. The only one aboard was James J. Sadowski, libellant’s son, aged 24, who has no license, but is familiar with the Inland Rules, and has taught a seamanship class for the Coast Guard Reserve. No license is required for the operation of such a tug unless cargo or passengers are being carried. The Ruth Conway, D.C.Md., 75 F.Supp. 514, affirmed sub. nom. Harbor Towing Corp. v. Parker, 4 Cir., 171 F.2d 416.
The Mareco carried the same running lights as the Gremlin; they were all burning and in good order. Her course led her toward the bow of the Falk; and since the Falk was near the piers on the north side of the harbor, Sadowski properly decided to pass the Falk to her south, and steered a southwest course to clear the Falk’s bow. As between the Falk and the Mareco, the Falk was the privileged vessel; she was not anchored, but was making slight headway on a southeast course. Sadowski therefore watched her closely, and did not see the Gremlin until they were too close to avoid a collision. When the Mareco was 50 to 100 feet off the Falk’s bow, the Falk threw her searchlight in front of the Mareco and then in front of the Gremlin, which was then about 150 feet from the Falk. The Mareco held her course and speed until just before the collision, when Sadowski gave her a hard left rudder and full ahead. The impact, on the Mareco’s port quarter, was sufficient to crush a 3-inch oak beam.
The parties have agreed that libellant’s damages were $10,287, of which $7,087 was for repairs. The Gremlin was not damaged.
The several witnesses disagreed where the tugs were at different times, but it appears that the Mareco passed within about 50 feet of the Falk’s bow, which was headed in a southeasterly direction, and that the collision occurred about 125 [872]*872feet south or southwest of the Falk. The. witnesses also disagreed to what extent the Gremlin had slowed down before her mate saw the Mareco, but the damage to the Mareco indicates that the Gremlin must have been making about two knots at the time of the collision.
No excuse is or could be offered for the failure of the Gremlin to see the Mareco and to take proper steps tó avoid the collision. The issue is whether the Mareco was also negligent and, if so, whether such negligence contributed to the happening of the collision. This issue must be considered in the light of the well-established rule that where the fault of one party is obvious and inexcusable, the evidence to support fault on the part of the other must be clear and convincing, in order to make a case for apportionment. The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84; The Victory (The Plymothian), 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519; The Bright, 4 Cir., 124 F.2d 45; Compania de Navegacion Cebaco, S. A. v. The Steel Flyer, 4 Cir., 200 F.2d 643, certiorari denied Isthmian S. S. Co. v. Compania, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356.
The Inland Rules, 33 U.S.C.A. § 151 et seq., provide:
“§ 204. Steam, vessels crossing. Art. 19. When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.”
“§ 206. Vessel having right of way to keep course. Art. 21. Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed.”
“§ 221. Usual additional precautions required generally. Art. 29. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”
There was no statutory or customary obligation on either the Mareco or the Gremlin to maintain a lookout in addition to the man at the helm. But that man, of course, was bound to keep a proper lookout, under all the circumstances, which included darkness and a busy harbor. Libellant argues that since, as between the Mareco and the Falk, the Mareco was the burdened vessel, Sadowski was required to keep a close watch on the Falk, and should not be blamed for failing to see the Gremlin, approaching off his port bow. The Mareco’s situation vis-a-vis the Falk is certainly a circumstance or condition which must be considered in assessing the blame. The Pocomoke, D.C.E.D.Va., 150 F. 193, Waddell, D. J. Nevertheless, Sadowski should have kept a sharper lookout ahead than he did.
This conclusion, however, does not settle the issue. It must appear that his failure was a fault contributing to the collision. “The provision * * * is that a vessel is not to be exonerated from the consequences of any neglect to keep a proper lookout. It does not say that a vessel shall, because of not keeping a proper lookout, be visited with the consequences of a collision. If the collision does not result as a consequence of neglecting to keep a proper lookout, the vessel is not thereby made responsible for the consequences of the collision.” The Blue Jacket, 144 U.S. 371, 390, 12 S.Ct. 711, 718, 36 L.Ed. 469. “If a vessel, therefore, fails ‘to see or hear what would not have been followed by any change of course,’ she is not guilty of contributory fault (the Victory, [1897] 168 U.S. 410, 425 [18 S.Ct. 149, 42 L.Ed. 519]).” Griffin on Collision, sec. 114, p. 284.
Even if Sadowski had seen the Gremlin approaching on his left at three knots, he had a right to assume that she would obey the rules and yield the right of way to the Mareco, especially since the Gremlin was or should have been [873]*873slowing down as she approached the Falk. Belden v. Chase, 150 U.S. 674, 699, 14 S.Ct. 264, 272; 37 L.Ed. 1218; Buckeye S. S. Co. v. Union Towing & Wrecking Co., D.C.N.D.Ohio, 68 F.Supp. 749. In Pacific-Atlantic S. S. Co. v. United States, 4 Cir., 175 F.2d 632, 639, Judge Parker quoted from The Piankatank, 4 Cir., 87 F.2d 806, as follows:
“ Where two courses are open to a vessel, and particularly to the privileged vessel, one to follow the prescribed rules and the other to depart from them, the duty is imperative to observe the rules, and to assume that an approaching vessel will do likewise, until after the danger has become so manifest as to show that there is no proper choice of judgment other than that of departing from the rules. Any other course would lead to confusion and be a most prolific source of accidents. Indeed the rule is so imperative that it does not give a navigating officer any general latitude as to obeying the rules, and permits a departure only when necessary to avoid immediate, and not remote or problematical, danger, and then only to the extent required to accomplish that object.’ ”
The Mareco was required, as the holding-on or privileged vessel under Art. 19, to keep her course and speed until Sadowski saw or should have seen that a collision was imminent. That is just what he did. Under those circumstances, the failure of the Mareco to keep a better lookout was a non-contributory fault. Griffin, op. cit., pp. 284-285, states:
“Cases where the vessel is not required to take action. Where a sailing vessel required to hold course and speed as against a steamer, or a steamer which is the holding-on vessel under the crossing rule, has actually performed her duty and navigated as she should have done if her navigator had had full knowledge of the situation, the fact that her lookout was defective has frequently been held a non-contributory fault.”
The leading case is The Fannie, 11 Wall. 238, at page 243, 20 L.Ed. 114, where the court said: “If the schooner held her course, it was all that the steamer had a right to require and, whether she had a proper lookout or not, it was her duty to do precisely what she did.” This rule has been applied by leading admiralty courts over the years. The Bermuda, D.C.S.D.N.Y., 17 F. 397; The Fannie Hayden, D.C.Me., 137 F. 280; The Norfolk, D.C.Md., 297 F. 251, modified on other grounds, Phillips v. Clyde S. S. Co., 4 Cir., 17 F.2d 250; The Piankatank, 4 Cir., 87 F.2d 806; Lind v. United States, 2 Cir., 156 F.2d 231; Pacific-Atlantic S. S. Co. v. United States, 4 Cir., 175 F.2d 632.
In The Bermuda, supra, a steamer struck the port quarter of a tug in the Hudson River, op converging courses. The tug did not see The Bermuda “approaching until she was close upon them.” 17 F. at page 398. Judge Addison Brown held that the tug as the holding-on, privileged vessel had the bounden duty to keep her course and speed until collision was imminent, and said, 17 F. at page 398:
“The tug was at the time in' charge of her captain, who acted as pilot, and there was no other lookout either forward or aft. No whistles from The Bermuda were heard; nor were those on board aware even that The Bermuda was approaching until she was-close upon them; and the captain, after seeing the Bermuda, had barely time to escape from the pilot-house, and went down with the vessel. There was plainly gross negligence on the tug in regard to keeping any proper lookout for other vessels; and upon this ground the tug must have been held jointly liable for the loss, were I not satisfied from the evidence that, there was nothing which. the tug-ought to have done, or could properly have done, to avoid the collision had a lookout been properly kept and the [874]*874motions of the Bermuda promptly-reported. If the course of the Bermuda had been closely watched from the first, the tug would still have been bound to keep her course precisely as she did. She was bound to keep her course and not to change it, either to the right or to the left, whereby the measures which the Bermuda might take, and was bound to take, to avoid her might be thwarted. * * * ”
In The Norfolk, supra [297 F. 254], Judge Soper said:
“There is more in [her] claim that her lookout was ineffective. No reason was or could be given to explain the failure of her navigator to see the Cynthia sooner, or hear her signals when they were given. Such inattention justifies the charge. It cannot be said, however, that this neglect contributed to the accident. Had the Cynthia been seen and heard, the Norfolk would have been justified in declining to yield the right of way, and in proceeding upon her course.”
The rule applied in the cases cited produces a just result in this case. I hold that the Mareco is not chargeable with any negligence which contributed to the happening of the collision. Libellant is entitled to his full damages.