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HOLLAND-AMERICA LINE v. M/V JOHS. STOVE

June 7, 1968

HOLLAND-AMERICA LINE, Plaintiff,
v.
M/V JOHS. STOVE, in rem, and Stove Shipping Company, of Oslo, Norway, her owner and operator, Defendants. LORENTZENS REDERI CO. A/S, as owner of the M/V JOHS. STOVE, Plaintiff, v. The M/V KERKEDYK, her engines, etc., and Nederlandsch - Amerikaansche Stoomvaart Maatschappij, N.V. (Holland-America Line), Defendants


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

These admiralty cases arise out of a collision in fog between an upbound freighter and a downbound tanker on the Mifflin Range of the Delaware River, just below Philadelphia. In 66 Civ. 3661, Holland-America claims in rem against the Johs. Stove and in personam against its owner. Lorentzens Rederi Co. A/S appears as claimant. In 67 Civ. 4753, Lorentzens Rederi Co. A/S claims in rem against the Kerkedyk and in personam against its owner, Holland-America Line. The cases were consolidated and tried before this court without a jury on April 10 and 11, 1968.

 At the time of the accident, which occurred at 8:09 A.M. on October 28, 1966, Mifflin Range was blanketed by a heavy fog. Visibility was extremely low. The tide was ebbing at one to one and one-half knots. There was no appreciable wind.

 The critical factor in these cases is the location of the collision. The Kerkedyk, a freighter, places the collision at the easterly limit of the channel; the Stove, a tanker, places it at the westerly limit. Other factors involed are speeds and courses, lookouts and radar watches.

 The Kerkedyk, after turning onto Mifflin Range, steadied on course 057 degrees. The course is 3.5 degrees to the right of the channel course of 0.53.5 degrees for upbound vessels. The ordered course for the Kerkedyk was never less than 057 degrees and, in the minutes before the collision, was changed further to the right to 059 degrees at 8:00 A.M., *fn1" then to 061 degrees at 8:04 A.M., *fn2" and finally to 065 degrees at 8:07 A.M. *fn3" This testimony is confirmed by the Kerkedyk's course recorder, as corrected. *fn4"

 The courses steered necessarily placed the Kerkedyk on the far easterly limit (New Jersey side) of the channel at the time of the collision, 8:09 A.M. *fn5" That fact is established also by the Kerkedyk's pilot, who estimated that at the time of the collision 900 feet of navigable water stretched between his port side and the closest point on the Pennsylvania shore. *fn6" The Kerkedyk's radar watch officer also fixed the place of collision at more than 900 feet from the nearest point to port. *fn7"

 The Stove, after turning onto Mifflin Range, steadied on course 234 degrees. This course is.5 degrees to the right of the channel course of 233.5 degrees for downbound vessels. The Stove altered its course to the left to 230 degrees at 8:00 A.M. because of the proximity of the shore line on her starboard side, *fn8" and then still further to the left to 225 degrees at 8:04 A.M. *fn9" Clearly, these courses were far to the left of the channel course. Despite this, the Stove's master and pilot fixed the place of collision at the westerly limit of the channel, just off the stern of a moored vessel whose port side was adjacent to the westerly limit of the channel. *fn10" That testimony flies in the face of the physical facts, and we reject it.

 The courses steered by the Stove were too far to the left of the channel course and were steered for too long a time to place the collision at the westerly limit of the channel. Had the collision occurred where the Stove places it, the Kerkedyk would have been proceeding upbound alongside the moored vessel. That vessel was manned and prepared to get underway. *fn11" Yet, no witnesses from that vessel were produced.

 We find that the Stove crossed over the center line of the channel and the collision occurred on the easterly limit of the channel.

 Article 25 of the Inland Rules, 33 U.S.C. § 210, provides that:

 
"In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel."

 The Stove did not show that it was unsafe or impracticable to stay to the right side of the channel. It is true that the westerly limit of the channel runs very close to the Pennsylvania shore, but the channel itself was not obstructed in any way. Had the Stove been navigating on her own side of the channel, the collision would not have occurred.

 We conclude that the Stove violated Article 25 of the Inland Rules, 33 U.S.C. § 210, by failing to stay to the right side of the channel.

 The Stove argues, however, that even if she did cross over, the Kerkedyk was "crowding" her. This contention is based on the geography of the channel. The easterly limit of the channel is flanked by an anchorage, whose width encompasses 1500 feet of navigable water before reaching the New Jersey shore. According to the Stove, the Kerkedyk ...


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