The Norne
This is an appeal from a decree in admiralty adjudging the tank steamer Norne solely at fault, and exonerating the tug De Bardeleben and its tow, the barge Oriole, from blame, for a collision in which all three vessels were involved. The original libel filed on behalf of the Norne was dismissed, and the cause retained for award of damages sustained by the tug and barge on whose behalf cross-libels were filed.
The collision occurred off Algiers Point in the harbor of New Orleans, shortly after midnight on a dark but clear night in April, 1927, while the river was at flood stage, with an unusually rapid current of 5 or 6 knots аn hour. At Algiers Point, which is on the west bank across the harbor from the city proper, the river takes a right angle turn; and just above there is an eddy which causes the current to run upstream along the western shore. The river at this point is 1,600 feet wide. Probably because of its great depth and conflicting currents, especially at very high stages of water, numerous boils appear and
The principal disputed question of fact is where in the river the collision occurred; whether on the New Orleans side as is contended on behalf of the Norne, or on the Algiers side as was held by the District Judge. There is also some controversy about the length of hawser that was used in towing, and the sufficiency of the side lights on the Oriole. On the admitted facts the Norne finds fault: With the De Bardeleben, because it was using a towline instead of towing alongside; because it had out too much towline; had no appliance for instantly releasing it; was not running fast enough to maintain steerageway or to keep the Oriole from sheering; did not have a lookout stationed on the rear to warn the Oriole of the dangerous sheer; and because, when the collision was imminent, its maneuvers in backing full speed astern and then going full speed ahead resulted first in the Oriole getting out of control and being swept out across the middle of the river, and then being dragged by the towline into the side of the Norne. With the Oriole, on the grounds that her side lights were so improperly located and held in position that they were not visible to an approaching vessel, that she was undermanned, had no lookout on the bow, did not follow in the wake of the tug, and failed to cut the manila line by which the hawser was made fast to her bow.
The master, and three other officers or members of her crew, testified that the Norne, after passing signals were exchanged, shaped her course so as to remain in the bend of the river as close to the New Orleans side as it was safe to navigate; that they passed within about a ship‘s length or 400 feet of the De Bardeleben; that they did not see any lights on the Oriole, or seе the Oriole herself until she loomed up on their port side, 100 to 150 feet away. These witnesses were foreigners, and unacquainted with the harbor. The pilot on the Norne, who was thoroughly familiar with the harbor, testified that the De Bardeleben was only about 300 feet out from the Algiers shore, and that the Oriole was a little less than one-third the width of the river out from the New Orleans shore. He аdmitted that after he had passed her bow he saw a red light which appeared to be the proper, ordinary kind of side light usually carried to give warning to approaching vessels, but was unable to say whether it was on the Oriole or on shore. In other particulars he corroborated the testimony of the Norne‘s officers and crew. According to the testimony of thе master, chief officer, and chief engineer of the De Bardeleben, and the master of the Oriole, the De Bardeleben was within 300 feet and the Oriole within 450 feet of the Algiers side, rounding Algiers Point, at the time of the collision. The distance between the Norne and the De Bardeleben, as they passed each other, was not over 150 feet. The length of the towline in use was variously estimated at from 300 to 400 feet. The red and green lights on the Oriole, which
There is a custom on the Lower Mississippi river, of such long standing that it has the force of law, that descending vessels should run the bends and take advantage of the current, and ascending vessels should come up under the points and get the benefit of slack water. Managua Nav. Co. v. Aktieselskabet Borgestad (C. C. A.) 7 F.(2d) 990; The Stephen R. Jones (C. C. A.) 27 F.(2d) 208. The passing signal, initiated by the De Bardeleben and accepted by the Norne, complied with this custom. Therefore, the Norne was doubly placed under the duty of remaining in the bend on the New Orleans side. The great preponderance of the evidence, in our opinion, shows that insteаd the Norne cut across close to Algiers Point where the De Bardeleben and the Oriole properly were, under both the local rule of navigation and the passing agreement. Three officers and members of her crew testified, it is true, that the Norne remained in the bend where she ought to have been, but they were in a harbor that was strange to them, and could eаsily have been mistaken. The pilot, with his more intimate knowledge of the harbor, concedes that the De Bardeleben was in her proper position on the Algiers side. He undertakes to say that the Oriole was over toward the New Orleans shore almost abreast of the De Bardeleben. The witnesses for the Norne are flatly contradicted by those who were on the tug and the tow; and also by several disinterested witnesses, namely the pilot of the Canal Street ferry and the three men who were operating the car ferry. If the collision had occurred as far out as the middle of the river or in the bend on the New Orleans side, the view of the pilot on the Canal Street ferry could not have been obstructed by the dock on the Point, but he сould easily have seen the Oriole. Moreover, in that event, the testimony of the witnesses on the car ferry would have to be rejected on the ground that they were honestly mistaken or had not testified truthfully when they said that the place of collision was close up to the Algiers shore. The testimony of these disinterested witnesses cannot well be rejected on the grоund of honest mistake, as they were intelligent witnesses and knew intimately, from long observation and daily experience, that part of the river and the location of objects along its banks. Nor is there anything in their testimony which is unreasonable or contradictory, or which forms the basis for an inference that they were unreliable witnesses. If the
As to the faults claimed against the De Bardeleben and the Oriole. A tug is not absolutely required to tow alongside in the Mississippi river, or even in the harbor of New Orleans. We are not prepared to say that the presence of driftwood in the swift current of the river was not sufficient justification for using a hawser; for, as explained by the master of the tug, and not denied, in time of high water and swift current driftwood frequently gets caught between tug and tow traveling side by side, and there is danger involved as well as time lost in separating them in order to set the driftwood free. The only evidence as to the length of the towline in use was that given by witnesses who were on the tug or the tow to the effect that it was not over 400 feet long. The three towing lights did not indicate a towline of 600 feet or more, as was erroneously supposed by the Norne‘s pilot, or that only one vessel was being towed, as the tug‘s pilot and master seems to have thought; at most, they gave information that the combined length of the hawser in use and the tow exсeeded 600 feet.
In our opinion it cannot be said with any show of reason that any fault either of the tug or the bargе proximately contributed to the collision. The case for the Norne, aside from the contention that she remained in the bend upon the New Orleans side, depends upon theories conceived after the event, as to place of collision, length of towline, failure to maintain steerageway, sheering, absence or insufficiency of side lights on the Oriolе. Upon these theories the collision is sought to be explained in such manner as to exculpate the Norne, or at least to make out a case for apportionment of damages. Our conclusion is that the Norne has wholly failed to support its theories by proof, and that it has been shown by competent and trustworthy evidence to have been solely at fault.
The decree is affirmed.