Union Oil Co. of California v. The San Jacinto/Dissent Stewart

by Potter Stewart

[p147] MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.

On a misty Christmas Eve the petitioner's oil tanker—the Santa Maria—was moving upstream along the Oregon side of the channel of the Columbia River. The vessel was proceeding at half speed with forward visibility of one and a half to two miles. Both visually and by radar, the tanker's pilot sighted the respondent tug, the San Jacinto, which was moving downstream along the Washington side of the channel more than a mile ahead. The tug, with a heavily laden barge in tow, disappeared from sight into a patch of fog. The inexperienced crew of the tug became disoriented in the fog and mistakenly thought the tanker had veered to the Washington side of the channel. To avoid what he believed would be a collision, the master of the tug executed a sharp leftward U-turn directly into the path of the oncoming tanker. While the tug successfully completed its turn, the barge swung around and smashed into the tanker, damaging her forward left side and driving her aground.

In a complaint and cross-complaint the owners of both vessels sued, each charging the other with sole blame. The District Court found that the collision was entirely the fault of the tug—in navigating at an unreasonable speed in fog, in failing to maintain a proper lookout, in failing to sound fog signals, in failing to ascertain the risk of collision and sound the danger signal, in failing to reduce speed or take any evasive action, in failing to keep the tow in control, and in turning directly into the path of the tanker. 304 F.Supp. 519. Finding that the tanker was also at fault in proceeding at a rate in excess of that which would have allowed her to stop in one-half the visibility before her, the Court of Appeals for the Ninth Circuit modified the judgment of the District Court. 451 F.2d 1369. Though the tug's fault was [p148] "more flagrant and shocking," id., at 1374, the tanker was held liable for half the damages, since she was unable to prove that her fault could not possibly have contributed to the collision.^[1]

I would reaffirm the continued vitality of the "half-distance" rule and approve its application in this case. I cannot concur in the Court's decision, which, while apparently approving the "salutary purpose" of the rule, guts its certainty by making its application turn on elusive concepts such as the reasonable possibility of collision, or the particular bearing that a vessel might be expected to take on emerging from a fog bank. In short, the Court today allows a vessel to proceed at an immoderate speed, provided that its crew does not expect a collision. I cannot agree.

The half-distance rule is a rational interpretation of the command of Art. 16 of the Inland Rules that vessels shall proceed at a "moderate speed" in fog with a "careful regard to the existing circumstances and conditions." 33 U.S.C. § 192. The rule does not simply require a vessel to be able to stop in one-half the distance of her forward visibility, but rather "to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog." The Nacoochee, 137 U.S. 330, 339.^[2] As one scholar phrased the rule: "the vessels must be able to stop, not within the distance of visibility, but [p149] before they collide." J. Griffin, The American Law of Collision 295 (1949).

In this case, the crew of the Santa Maria knew that the San Jacinto had disappeared into a fog bank over a mile ahead on the Washington side of the narrow channel. The tanker nevertheless steamed ahead at half-speed as it approached the edge of the fog bank. When the Santa Maria sighed the tug emerging from the fog and cutting directly across her course, no more than 900 feet separated the vessels. The Court of Appeals found a violation of the half-distance rule in that the tanker could not stop within 450 feet.^[3] Indeed, since the tug had turned back upstream at the time of the tanker's collision with the barge, the Santa Maria covered considerably more than half the distance that initially separated the vessels.

I agree with the Court of Appeals that the half-distance rule correctly applies to the facts of this case. Not only was the Santa Maria navigating near a fog bank in a narrow, heavily traveled shipping channel, but she actually knew that a tug was in the fog bank off the port bow; the tug might become disoriented in the fog and emerge on a collision course. And for that reason the Santa Maria should not have been proceeding at a rate in excess of the speed which would have allowed her to stop in half the distance ahead. The tug emerged from the fog and cut directly across the path of the tanker, approximately 900 feet ahead. But surely the half-distance rule does not apply only to head-on collisions. See The Silver Palm, 94 F.2d 754. Moreover, the tanker here should not be any less at fault because the tug emerged tangentially to her course rather than on a [p150] head-on collision course. If the tug had altered her course in the fog and emerged steaming head on into the tanker rather than across her course—which would have been quite possible since the channel was only 500 feet wide at this point—the Santa Maria would still have had to stop within 450 feet. Since the tug was not closing the distance between the vessels, the tanker actually had more distance within which to stop than she would have had if the tug had followed a more orthodox collision course. The half-distance rule cannot mean that a ship can travel in the direction of a fog bank, oblivious to the possibility that another vessel might become lost there and steam out across or into the first vessel's path.

Concepts such as "reasonable expectancy," "anticipated possibility," and "reasonable possibility," do little service to the half-distance rule. "[T]he genius of the Rules for Prevention of Collision is their certainty." Hess Shipping Corp. v. S.S. Charles Lykes, 417 F.2d 346, 351 (Brown, J., dissenting). The half-distance rule is effective precisely because it is a measurable rule of thumb, a nautical speed limit. Speed limits would serve no useful purpose if they applied only when there was a foreseeable probability that an accident might occur.

Since I cannot say that the Court of Appeals for the Ninth Circuit incorrectly concluded that the Santa Maria had violated the half-distance rule, and that she was unable to prove that her fault could not have contributed to the collision, I would reach the question that we granted certiorari in this case to consider—the continued validity of the divided-damages rule. The Court, however, does not address that question, and I therefore refrain from expressing my views upon it.

Notes

1. See The Pennsylvania, 19 Wall. 125, 136; O/Y Finlayson-Forssa A/B v. Pan Atlantic S.S. Corp., 259 F.2d 11, 22.
2. "The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law." The Umbria, 166 U.S. 404, 417.
3. The District Court appears to have assumed as much:

   "It is my view that any possible violation of Article 16 of the Inland Rules by the SS Santa Maria, or those in charge of her navigation, were technical in nature and were not a contributing cause of the collision." 304 F.Supp. 519, 522.