accident; that the Jacquet's course and speed were statutory faults, as was its lack of a lookout; that the Barge was properly lighted; that the companies are valid separate corporate entities; and that the petition for limitation of liability will be denied.
Captain Patrick was unfamiliar with the currents in which he permitted his flotilla to drift, a drifting which eventually carried him into the path of the illegally moving Jacquet.
When a vessel in charge of an officer who has not the pilotage required by law is in a collision, the question arises as to whether that fact constitutes a statutory fault within the rule of The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L. Ed. 148 (1873), which holds that the burden is on the vessel violating a statute to show that the violation not only did not, but could not have, contributed to the collision.
While some circuits have considered the lack of a license to be statutory fault, see, e.g., The Eagle Wing, 135 F. 826 (D.C. 1905), it seems clear that the absence of a license does not impose liability per se when the unlicensed officer performs his duties properly, see e.g., The San Juan, 1927 A.M.C. 384, although it is a factor to be considered in determining questions of negligence.
We find fault on the part of the Tug's master, but not fault per se as advanced by Claimant Lexington, citing The Walter D. Noyes, 275 F. 690 (E.D. Va. 1921). Rather, as stated in The Wrestler, 144 F. 334 (2nd Cir. 1906), "[the] mere fact that her pilot was an unlicensed man should not be enough to condemn [the ship]. Although a violation of statutory requirement, it would not be a contributing fault if the navigation of the unlicensed man were correct. The presumption of inexperience and unskillfulness, arising from his holding no license would in such event be rebutted by proof that on the occasion in question he navigated expertly and skillfully." Id. at 337.
Captain Patrick was not an inexperienced pilot. He had towed over the route in question for some time prior to the collision. However, his navigation did not hold him above the Dredge on the north-south holding which he claimed. It could not have. It carried him west and into the path of the illegally advancing Jacquet.
Griffin on Collisions (1949) refers to the lack of a master's certification as a condition, rather than a cause of a collision. Section 254 at 579. Here, Captain Patrick had failed the portion of the examination for this area which dealt with local knowledge. While the Court permitted him to explain at length his reasons for failing,
the fact remains that he did not know the currents of the area, as evidenced by the fact that his tow did drift into the path of the Jacquet.
Counsel for petitioner has informed us that Captain Patrick possessed a master's license at the time of the collision which would have subsequently qualified him as a pilot in the area of collision without the need of an examination due to a later change in the statute; and that he did obtain a pilotage license for these waters subsequent to the collision without a second examination. However, the statute has not been cited as retroactive and, at the risk of overstating the proposition, the fact remains that he had failed the examination on local knowledge, and that this lack of knowledge of tides and currents contributed to the collision.
In The Henry O. Barrett, 161 F. 481 (3rd Cir.); certiorari denied sub nom. James McCaulley v. American Dredging Co., 212 U.S. 573, 29 S. Ct. 683, 53 L. Ed. 656 (1908), it was held that the failure of an officer in charge of navigation to hold a required license is statutory fault. Following this reasoning, it is incumbent upon the vessel to show that this fault neither did not nor could have contributed to the collision. This it clearly has not done.
The Lexington Company has also introduced, in an almost casual manner, the inference that because additional assistance was provided the Tug to tow the Barge through the C and D Canal, that the Tug itself was insufficiently powered. There is nothing in the record to indicate this. The Tug had towed the Barge from Boca Grande, Florida to Philadelphia; was met by another tug only for the journey through the C and D Canal where such assistance is customary, and, after the collision, continued unassisted to Baltimore.
Claimant Lexington asserts that the eerily disembodied voice saying, "it got out of shape", substantiates the claim of insufficient power. See note 2, supra. We find more persuasive the concept that Captain Patrick drifted in unfamiliar currents while in a fatigued condition, a combination of conditions which contributed to his flotilla getting out of shape (a descriptive phrase for what happened, whether or not it was uttered).
We find that a sixteen hour day would fatigue any man, when he was called upon to serve as the only licensed officer of the flotilla. We conclude that the obligation of serving as pilot, master and frequently lookout would induce a state of weariness in the Captain. When coupled with a drifting pattern in waters with whose currents he was unfamiliar, we conclude that this was a substantial factor in the Barge getting in the way of the Jacquet.
Although we discuss the liabilities of the Barge and Tug to one another, infra, it appears best to dispose here of the issue, raised by the Jacquet, of Sheridan Towing's liability for failing to properly man or equip
the towing vessel.
While the claim for negligent failure to supply an adequate crew under the Jones Act is not synonymous with a claim of unseaworthiness, even though each may overlap the other, Michalic v. Cleveland Tankers, 364 U.S. 325, 81 S. Ct. 6, 5 L. Ed. 2d 20 (1960), we assume that counsel for the Jacquet are asserting either one or the other or both, although their specific allegation is not spelled out. In Avera v. Florida Towing Corporation, 322 F.2d 155 (5th Cir. 1963), the authority cited by Claimant Lexington, an inexperienced minor lost a limb when assigned to do work which everyone, including the owner and the ship's master, admitted he was unable to do. The court in Avera refused to permit limitation of liability, although the boy had been hired without the owner's consent, to do work necessitated by a side trip which the owner had forbidden the master to undertake. Unlike corporate entities involved here, however, in Avera the owner was "* * * the whole show. * * * He was the president, treasurer, one of its three directors and the sole person who could utter a single authoritative word on its behalf. Others normally holding corporate executive offices or serving as directors frankly acknowledged their complete corporate impotence." Id. at 160-161. While we discuss the corporate questions, infra, we fail to see the applicability of the Avera facts to the instant case.
The course and speed of the Jacquet were in violation of applicable statutes, and contributed materially to the collision, as did its lack of a lookout.
As we found above, the Jacquet changed its course to port to pass inside the dredging area, the entire operation of which was visible to Captain Carter on the bridge of the Jacquet.
A vessel altering its course to port is guilty of serious fault if a collision should result, absent serious reason for doing so. This alteration of 21 degrees to port violated both 33 C.F.R. § 80.10, the Narrow Channel Rule, and 33 C.F.R. § 80.28. The first regulation provides that,
"In narrow channels every steam vessel shall, when it is safe and practicable, keep to the side of the fairway or mid-channel which lies on the starboard side of such vessel."
In The Hokendauqua, 270 F. 270 (D.C.N.Y. 1919), aff'd. 270 F. 273 (2nd Cir. 1920), the court said that it was not "the mere physical dimensions of a strait or passage of water that determines whether it shall be called a narrow channel or not. It is the kind or character of navigating use to which that water is put." Id. at 271.
While dredging operations were taking place in the area, it is not necessary that this be so for the rule to apply. "Indeed, the authorities are to the effect that [the rule] may be applied in [waters] where the area is confined and water traffic passes in substantially opposite directions." Harbor Towing Corp. v. Tug Reliance, 211 F. Supp. 896, 899 (E.D. Va. 1963). And, as is stated in Griffin on Collisions, supra, "The rule shall apply * * * to places where there is a definite lane of navigation or current of traffic moving in substantially opposite directions, up and down confined waters limited by banks, buoys, anchorage grounds, etc." Id. at § 6, p. 91. (Emphasis supplied).
Here the channel conforms to the requirements of the rule as to width, see, e.g., The Albert Dumois, 177 U.S. 240, 20 S. Ct. 595, 44 L. Ed. 751 (1900); operations taking place within the area; the type of traffic plying these waters; and the conditions under which it did so.
The Jacquet swung hard to port
without justification. We have above found that there was sufficient water to the starboard side of the channel for the Jacquet to have maintained its original heading.
Violation of the narrow channel rule is a statutory fault to which the rule of The Pennsylvania, supra, applies, and it is, therefore, incumbent upon the Jacquet to show that the violation neither could have nor did contribute to the collision. This it has failed to do, because while there is under the Rule a presumption that it is safe and practicable to keep to starboard, with the burden on the violator to prove otherwise, see, e.g., Moore-McCormack Lines, Inc. v. S.S. Portmar, 249 F. Supp. 464 (S.D.N.Y. 1966); Red Star Towing and Transportation Co. v. Tug Catherine, 305 F. Supp. 639 (S.D.N.Y. 1969), here there is more than a presumption: there is ample evidence that sufficient five-fathom water lay to the starboard of the Jacquet, as well as Captain Carter's admission that the water might have run as much as ten feet more than what was required by the vessel, and that he had available both recent charts and a depth-recorder, neither of which he used. Finally, while counsel for the Jacquet have correctly cited Griffin, supra, for the proposition that the rule is waived where there is excuse, they have neither proved, nor have we found the existence of, any such excuse.
The Jacquet also committed statutory fault by passing between the Dredge and her buoys. 33 C.F.R. § 80.28 provides:
Vessels whose draft permits shall keep outside the buoys marking the end of mooring line of floating plant working in channels.
Without further discussion of the available safe water outside the buoys we note that the Jacquet has not only failed to meet the burden of the rule of The Pennsylvania, supra, it has also failed to indicate how passage inside the buoys was in any way necessary. Captain Carter himself stated that if the Dredge had not been there he would have steered to east of where the buoys were. His assertion that the buoys marked the limit of safe water is completely contradicted by the fact that dredge buoys are not navigational, but rather mark the limit of dredging operations. We do not feel it necessary to discuss once again the charts and recorder available to the captain.
The speed with which the Jacquet passed the Dredge was in violation of 33 C.F.R. § 80.27, which provides:
Vessels, with or without tows, passing floating plant working in channels, shall reduce their speed sufficiently to insure the safety of both the plant and themselves, and when passing within two hundred feet of the plant their speed shall not exceed five miles per hour. While passing over lines of the plant, propelling machinery shall be stopped.