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Newtown Creek Towing Co. v. Venus

decided: September 11, 1958.

NEWTOWN CREEK TOWING COMPANY AND CHESTER A. POLING, INC., AS COOWNERS, AND RUSSELL POLING & COMPANY, AS CHARTERER OF THE RUSSELL 29 AND AS BAILEES OF THE CARGO LADEN ON BOARD THE RUSSELL 29, LIBELLANTS, APPELLANTS,
v.
THE VENUS, HER ENGINES, TACKLES, APPAREL, FURNITURE, ETC., AND INDEPENDENT TOWING COMPANY, RESPONDENTS.



Author: Staley

Before KALODNER, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

Point Lookout marks the southernmost tip of Maryland on the western shore of the Chesapeake Bay and is located on the northern side of the entrance to the Potomac River. Approximately five miles south of this point, the barge Russell 29 ran aground on the Virginia shore while it was in the tow of the tug Venus on a voyage from Philadelphia to Washington, D.C. The owners and charterers of the barge brought suit in admiralty against the tug Venus for damage to the barge and loss of her cargo. The district court made findings of fact and dismissed appellants' libel, concluding that "the grounding of the barge Russell 29 and the resulting loss were caused solely and exclusively by a sudden and unexpected storm of violent intensity which constituted a peril of the sea."

The principal contention of the appellants is that the master of the tug failed to follow the usual course from the Chesapeake, around Point Lookout, and then up the Potomac; rather, he pursued a course due south of Point Lookout, before making his turn into the entrance of the Potomac. It is argued that under the weather conditions which then prevailed with strong northeast winds, such a course would bring the tug and tow perilously close to the Virginia shore and, in fact, constituted negligence.

The appellants are, of course, required to demonstrate that the findings of fact of the district court are clearly erroneous. They attack especially those findings which describe the intensity of the storm at the various points on the respondent tug's voyage. The essential findings of fact are as follows:

"4. Prior to leaving Philadelphia on November 5, 1953 Captain Rickards received a weather report from a radio broadcast which informed him that the weather would remain clear throughout the intended voyage.

"5. At approximately 6:00 P.M., on November 5, 1953, while the tug and tow were proceeding down Chesapeake Bay, Captain Rickards called the marine operator at the Wilmington Marine Terminal, Wilmington, Delaware, to obtain the weather forecast for that night. He was advised that clear weather was predicted for the remainder of that night and also for the following day.

"6. After receiving the above weather forecast the tug and tow continued down the Chesapeake Bay. The Venus was then towing the Russell 29 astern on a hawser about 450 feet long.

"7. At about midnight on November 5, 1953, the Venus passed Point Lookout on Chesapeake Bay. As the tug and tow approached Point Lookout the weather was clear and the light on Point Lookout was visible. Captain Rickards estimated that he was approximately 3 miles east of this light as he passed by Point Lookout.

"8. Almost immediately after the Venus passed south of Point Lookout a sudden storm arose, with rain, hail and snow and a dense fog and mist which covered the entire area. At this point the tug and barge were north of the mouth of the Potomac River and were out in a completely exposed section of the Chesapeake Bay.

"9. The area immediately south of Point Lookout from Point Lookout to Quick Flashing Bell Buoy No. 4 which is located at the mouth of the channel of the Potomac River is a Naval Restricted Area. This area contains fish traps and probably submerged pilings.

"10. Captain Rickards knew of the fish traps, and probable submerged pilings and other obstructions in this area, from his charts and from having been down in said area as recently as a month prior to this particular voyage, and when the storm and dense fog suddenly broke upon him he decided to continue on a southerly course below Point Lookout, so that he could get well below this dangerous area before he made his turn to cut across to the mouth of the Potomac River which lay on his starboard side.

"11. Accordingly, Captain Rickards proceeded south on a southerly course making about 8 knots per hour for approximately 20 minutes. During this period of time he was completely blinded by the snow and fog and mist which enveloped the entire area except on one occasion when he saw a faint glimmer of light from Point Lookout. He was forced to steer by his compass and his chart for the area, United States Coast and Geodetic Survey Chart No. 557, which he kept before him in the pilot house. He had to judge his traveling distance by his speed and elapsed time. He marked with a '2' on exhibit 'L-1' (United States Coast and Geodetic Survey No. 557), his estimate of his position at the end of his southerly course. At this point he was in 41 feet of water and would not have been in any danger except for the storm.

"12. At approximately 12:30 A.M., on November 6, 1953, Captain Rickards calculated that he had reached a safe distance below the dangerous area referred to above and changed his southerly course to a course that would cut across the bay for the channel of the Potomac River. In checking his chart he noted that there was a seven degree variation in the area for a westerly course and he therefore steered two hundred and seventy-seven degrees by his compass in order to compensate for this variation. Shortly after he changed to his westerly course, the storm which had been raging increased to even more violent proportions. In addition to the rain, snow and hail and fog which reduced visibility to zero, the tug and barge were buffeted by northeast winds hitting broadside on their starboard side at the rate of 50 miles per hour and waves six to eight feet high washed ...


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