Nordanger v. Freeport Sulphur Transp. Co.

U.S. Court of Appeals for the Fifth Circuit
Nordanger v. Freeport Sulphur Transp. Co., 290 F. 945 (5th Cir. 1923)
1923 U.S. App. LEXIS 1894; 1923 A.M.C. 831

Nordanger v. Freeport Sulphur Transp. Co.

Opinion of the Court

KING, Circuit Judge.

The steamship Nordanger, while descending the Mississippi river between New Orleans and Algiers, suffered a temporary derangement of her steering gear; the helmsman being unable to turn the wheel more than six inches in either direction. The tank steamer Freeport Sulphur No. 1 was moored at a pier in Algiers undergoing repairs. The Nordanger, not 'being able to be steered as above stated, let go her anchors. While swinging to the anchors, the starboard anchor chain parted, while the Nordanger was headed towards the tanker, with the result that she ran into the tanker, seriously damaging her. Previous to the collision, an ex*946plosion had occurred on the tanker, the damage resulting from which was being repaired by the Johnson Iron Works, together with certain general repairs. Under the terms of the contract for explosion repairs, they were to be completed by April 7th. Johnson Iron Works was also given the contract by the Freeport Company to repair the damage resulting from said collision. This contract was on a1 cost plus 10 per cent, basis, and specified no time for its completion. All of the repairs were completed simultaneously on April 17th.

This libel is brought to recover from the Nordanger the damages alleged to have been sustained by reason of the collision, in which are included the charge of $1,700 per day for 10 days’ additional time alleged to have been lost by the tanker by reason of the collision, and also certain charges for wages of the crew and similar items, during such 10 days. The cost of the repairs aggregated $21,072.82.

The Nordanger defended the libel, as a whole, upon the ground that the collision was the result of an inevitable accident, that the failure of the steering gear to work was caused by driftwood being jammed in the rudder, and that the collision resulted from the breaking of the anchor chain, which had been duly inspected and was to all appearances seaworthy.

The District Court decided that, the collision having occurred, the burden of showing such inevitable accident was upon the Nordanger, and that the testimony did not satisfactorily show that the collision resulted from such an accident. He further found that the proof was entirely unsatisfactory in showing that the 10 days’ additional time from April 7th to April 17th was due to the work necessitated by said collision, or that it was satisfactorily proven that, but for said collision, the repairs necessitated by said explosion would have been completed on April 7th. He therefore rejected the items claimed for said period of 10 days, and rendered a decree in favor of the Free-port Company for the items of damage, excluding the claim for delay and consequent expenses.

Both parties have appealed. The Nordanger claims that the court erred in holding that the cause of the accident was a failure of the steering gear to work, and that he should have held that the accident was caused by the breaking of said anchor chain. It insists that, but for said 'breaking of said chain, the Nordanger would have drifted down the river, parallel with the bank to which the tanker was moored, and without colliding with her;' that it was the changed direction given to said Nordanger by swinging at her anchors, and the breaking of the anchor chain when she reached the position heading her into the bank, that occasioned the collision, and that this was an accident unmixed with any negligence on her part.

Upon a review of the evidence, we think the court was warranted- in holding that the Nordanger failed to show that the collision resulted from an unavoidable accident, or discharged the burden which rested upon her of satisfactorily accounting for the collision. It would seem that the failure of the steering gear to work was not occasioned by the fouling of her rudder with driftwood, but was caused, more probably, by some improper handling of the valves *947in the engine room. It is significant that the third engineer, who was one of those in charge of this work, left immediately after the occurrence, was not produced as a witness, and could not be found.

We also do not think the evidence sufficiently shows.that the letting go of the anchors was not done originally in order to prevent a possible collision between the Nordanger and the tanker, although they also may have been lowered to prevent possible collisions with other crafts, and upon the whole that the court was justified in deciding that the Nordanger was responsible for the damage proven to have resulted from the collision.

The testimony in the case shows that this damage was at a different place from the damage occasioned by the explosion. There is no evidence indicating that the repairs made necessary by the explosion could not have proceeded without the work upon the repairs occasioned by the collision necessarily interfering therewith, or that it was necessary to put the control of both the works in the hands of the same contractor. This contractor was chosen by libelant.

The testimony was in conflict as to the work occasioned by the collision having delayed the completion of the work occasioned by the explosion, and, as the lower court says, while the collision may have delayed to some extent the completion of the work, it was wholly unsatisfactory as to this and as to the extent of the delay so occasioned. We therefore think there is not that weight of evidence against the finding of the court below which would warrant a reversal of his judgment in declining to allow the damage occasioned by the delay of 10 days claimed, and the decree is therefore affirmed.

Reference

Full Case Name
THE NORDANGER. AKTIESELSKABET NORDANGER v. FREEPORT SULPHUR TRANSP. CO.
Status
Published