Hess Shipping Corp. v. SS Charles Lykes

JOHN R. BROWN, Chief Judge

(dissenting) :

To express strong disagreement with the Court’s decision I need not consider the record as I might perhaps read it. I just use the Court’s characterization of the facts to demonstrate that Rule 161 *is now dead in the Fifth Circuit except perhaps those portions which refer to “existing circumstances” or "so far as the circumstances of the case admit.” Magnifying these qualifiers the decision obliterates the two mandatory imperatives of Rule 16 — (1) moderate speed and (2) stopping engines. The Court treats it as just a floating intersectional automobile collision in which the fact finder can look back and see what prudent people would have done.

But the genius of the Rules for Prevention of Collision is their certainty. Thus, a red light means for .one vessel to hold course and speed, the other to give way. In an overtaking the overtaken vessel must hold course and not cross or crowd upon the course of the overtaking ship. In crossing, the vessel having the other vessel on her starboard shall keep out of the way of the privileged ship.

But on this opinion navigators will know that breaching the moderate speed Rule-of-sight is a mere technical violation.2

But it is hardly a technical violation when not only the risk of collision, but collision itself occurred because both vessels continued on ahead, continuously closing the interval between them. A result so plain in fact cannot be glossed over by the metaphysical dialectic of proximate cause.

More than that, this was a collision which should never have occurred. Although with defective radar she could not “see” S/T Hess Voyager, the descending S/S Charles Lykes knew of her presence. Worse, as the judge-approved *352justification for ignoring the second mandate of Rule 16 — stopping engines on hearing fog signal — the Court gives its blessing to a vessel ploughing right on in the fog toward a ship known to be in its path. This is what we say: “The second condition requires that the position of the signaling vessel be unknown. Here the evidence clearly indicates that the Hess Voyager at all times knew the position of the Charles Lykes. In fact, as previously stated, the Hess Voyager on at least two occasions informed the Charles Lykes of her position and requested her to move over to starboard, requests which she acknowledged.” p. 350.

Earlier, the court phrased it this way: “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.” p. 348.

In a restricted channel of 400 feet3 in “a heavy fog which restricted the vessels from visual sightings of each other until they were approximately 300 feet apart.” p. 348, S/T Hess Voyager “was making approximately six knots an hour while stemming an ebb tide of 1 ½ knots.”4 p. 348.

At this speed she was making 600 feet per minute, a distance double that of her visibility and four times the half of visible distance. So gross was this immoderate speed that her knowledgeable counsel did not even undertake to prove, by experiments, tests, expert witnesses, or otherwise just what time it would take from 6 knots ahead to dead stop or the distance S/T Hess Voyager would run in that maneuver. It is plain to everyone who knows anything of vessel operation that she could not stop in one-half a minute — 300 feet —and certainly not in one half the visibility, a quarter of a minute in 150 feet.

Considering the size of this vessel, one of the contemporary huge tankers of ever increasing size,5 to allow such speed, which does not even begin to pay even a deferential bow toward Rule 16, the Court’s action is more than to write out Rule 16. It is to give judicial license to bigness, as though the ungainly, awkward nature of these floating boxes relieves them of compliance with any part of the rules except the qualifiers of “special circumstances”, “existing circumstances”, and the like. And, since on this Court’s analysis S/T Hess Voyager could never safely navigate in channels or harbors at a speed less than 6 knots, it means that for her life, she need not pay heed to Rule 16 and its demand for moderate speed which, until today, has always meant capacity to stop in half the distance of visibility. O/Y Finlayson-Forssa A/B v. Pan Atlantic S/S Corp., 5 Cir. 1958, 259 F.2d 11, 20, 1958 A.M.C. 2070, cert. denied, 1959, 361 U.S. 882, 80 S.Ct. 153, 4 L.Ed.2d 119. Nor will she suffer the burden imposed on smaller craft of the rule of The Pennsylvania, 1873, 86 U.S. 125, 19 Wall. 125, 22 L.Ed. 148, that a violator must establish not only that the breach did not, but could not, have caused the collision. Tempered occasionally by notions of major-minor fault, last clear chance, etc., this stringent demand still prevails, especially, until today, in fog *353eases. Finlayson-Forssa A/B v. Pan Atlantic S/S Corp., 259 F.2d at 22.

It will be interesting- to see what we will do with the next fog case in which two ocean going vessels capable from smaller size of reducing speed safely to the Rule-of-sight seek absolution for flagrant breach by incanting our S/T Hess Voyager.6

. Article 16 of the Inland Rules, 33 U.S.C. § 192:

“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.”

. With obvious approval the Court paraphrases the trial court’s conclusion:

“It also concluded that any violation 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.” p. 349.

. “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.” p. 348.

. With each vessel floating and under-weigh the tide is irrelevant with respect to the positions of the vessels relative to each other, not fixed objects.

. The Hess Voyager is a large tanker built in 1964, with a length of 708.2 feet, a beam of 102.4 feet, and gross tonnage of 27,015 tons.

. It is incongruous tliat Congress, in its then technical ignorance of all modern scientific marvels such as radar and ship-to-ship radio, did not put sole store on signals, ability to see and peremptory commands. The fact is that neither ship was navigating by the Rules. These were junked for radar. And one, with full knowledge of the other’s position, charged headlong into certain collision. Compliance with the Rule would have avoided it.