UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
April 22, 1966
AMERICAN EXPORT LINES, INC., as owner of the S.S. EXEMPLAR, Libelant,
DREDGE ADMIRAL, her engines, etc., the BARGE A-244 and the Arundel Corporation, Respondent. The ARUNDEL CORPORATION, as owner of the dredge Admiral and the barge A-244, Cross-Libelant, v. The S.S. EXEMPLAR, her engines, etc., and American Export Lines, Inc., Cross-Respondent
Edelstein, District Judge.
The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge.
FINDINGS OF FACT
1. This is an action by American Export Lines, Inc., owner of the S.S. EXEMPLAR, against the Arundel Corporation, owner of the dredge ADMIRAL and the barge A-244, for damage to the S.S. EXEMPLAR arising out of the collision between the EXEMPLAR and the barge A-244, which took place in the Hog Island Reach Channel of the Cooper River in the harbor of Charleston, South Carolina, on the morning of February 16, 1961. The Arundel Corporation instituted a cross suit against the S.S. EXEMPLAR and the American Export Lines arising out of the same collision. The two suits were subsequently consolidated for the purpose of trial.
2. American Export Lines, Inc., a New York corporation, was at the time of the collision the owner of the S.S. EXEMPLAR. The Arundel Corporation, a Maryland corporation, was at the time of the collision the owner of the dredge ADMIRAL and the barge A-244.
3. The EXEMPLAR, a dry cargo vessel, is 473 feet 1 inch long, 66 feet 5 inches wide, and at all relevant times was laden to a draft of 10 feet 8 inches forward and 19 feet aft. She is powered by two steam turbines geared to a single propeller shaft. The dredge ADMIRAL is a non-self-propelled suction type dredge, 150 feet in length, 40 feet wide, 11 feet deep and was built in 1911.
4. During the early morning hours of February 16, 1961, the dredge ADMIRAL was dredging pursuant to contract with the United States Army Corps of Engineers in the Hog Island Reach Channel of the Cooper River, Charleston Harbor, South Carolina. The dredge, which was facing downstream in a southerly direction, was moored approximately 1000 feet south of the Cooper River (Memorial) Bridge in the middle of the center cut of three dredging cuts, each 200 feet wide. The total width of the channel was approximately 600 feet. A pontoon pipeline, through which dredged material was sucked up and carried to the discharge or spoil area, extended 200 feet aft from the stern of the dredge ADMIRAL and then in an easterly direction to the discharge or spoil area on Hog Island, thereby constricting the easterly half of the channel.
5. The ADMIRAL had been dredging in the same vicinity for approximately one month. On the evening of February 15, 1961, the dredge captain, A. R. Grizzard, by radio-telephone, advised the pilot boat at the entrance to Charleston Harbor as to the exact location of his dredge.
6. Moored along the starboard or westward side of the dredge ADMIRAL, and separated from the dredge by a fender of approximately 14 inches, was the water barge A-244 of 127 tons, 92 feet in length, 26 feet in width, and 6 feet in depth, which was built in 1939. At all relevant times on the morning of February 16, 1961, the dredge ADMIRAL carried all required navigation lights but the water barge A-244 was not lighted as required by the Pilot Rules for Inland Waters, § 80.20(b). The dredge ADMIRAL at all relevant times had an anchor out to starboard, which was marked by an unlighted buoy afloat approximately 200 feet west of the dredge.
7. At 0424 hours on February 16, 1961, the S.S. EXEMPLAR arrived off the Charleston pilot's station to obtain the services of a pilot for the northbound trip in Charleston Harbor to the Columbus Street Terminal. At 0448 hours, on the morning of February 16, 1961, Robert Burdell, a federally licensed pilot, took the "con" while the master of the S.S. EXEMPLAR, Neil W. Christensen, remained on the navigating bridge and in over-all command of his vessel. The second officer and a qualified helmsman were also in attendance on the bridge, a lookout was stationed on the bow and the chief mate was also present on the bow to stand by the anchor in the event it had to be let go. At all relevant times the navigation lights aboard the S.S. EXEMPLAR were burning brightly.
8. At all relevant times on the morning of February 16, 1961, it was totally dark, dawn had not begun to break, but the atmosphere was clear and night visibility was good. The wind was from the northeast at approximately 4 to 6 knots, and the tidal current was flooding in a northerly direction at approximately 2 knots.
9. The S.S. EXEMPLAR passed a beam of Buoy No. 20 at 0520 hrs. and a beam of Buoy No. 25 at 0526 hrs. The distance between Buoys 20 and 25 is approximately 2940 yds. as measured on Coast and Geodetic Survey Chart No. 470, American Export's Exhibit "5" in evidence, and the EXEMPLAR was making good a speed of approximately 14.5 knots over the ground during that period of time. During the same period of time the EXEMPLAR's bell book indicates that her engines were making turns for "full maneuvering speed" (60 revolutions or approximately 12 knots). The combined effect of the flooding current and wind was to increase the EXEMPLAR's speed by approximately 2.5 knots. Shortly thereafter both the pilot and the first mate observed the lights of the dredge ADMIRAL at approximately 3 to 4 miles distance while it was still around the channel bend. There were no obstructions between the EXEMPLAR and the dredge ADMIRAL and the visual sighting was made on a line crossing Hog Island.
10. At 0535 hrs. the EXEMPLAR slowed to "half speed" (40 revolutions or approximately 8 knots).
11. At 0537 the EXEMPLAR exchanged whistle signals with the ADMIRAL whereby the dredge directed the EXEMPLAR to pass to starboard (westward of the dredge). Thereafter, the pilot, not having observed the unlighted barge or the unlighted buoy, aligned the EXEMPLAR to pass equidistant between the lighted dredge ADMIRAL and unidentifiable floating objects just outside the westward edge of the channel.
12. At 0541 the EXEMPLAR reduced speed to slow speed, (20 revolutions or approximately 4 knots), not counting the effect of wind and current.
13. The EXEMPLAR continued ahead and at approximately 0544 hours a kaleidoscope of events occurred with rapidity. The chief mate of the EXEMPLAR, stationed on the bow, reported to the bridge that he had sighted an unlighted anchor buoy just off the port bow; the message was relayed via the second mate on the bridge to the pilot and at approximately the same time a light was sighted thrown out from the dredge in the direction of the anchor buoy; the pilot ordered right rudder to avoid the anchor buoy and at approximately the same time stopped his engines to avoid fouling the propellor in the anchor cable; about the time the bow turned to starboard the unlighted barge was first seen; the pilot ordered left rudder
in order to clear the now visible barge, but one effect of the left rudder, the court infers, was to pivot the EXEMPLAR's stern toward the barge. See Finding 14, infra. The starboard side of the EXEMPLAR in the vicinity of the No. 3 hatch then struck the starboard quarter portion of the barge A-244 at approximately 0545 hours; the EXEMPLAR continued to scrape along the starboard quarter portion of the barge until the aft end of the No. 5 hatch was reached when, as a result of the captain's action described in Finding No. 14, infra, the EXEMPLAR's stern portion swung clear of the A-244.
14. Immediately after contact with the barge the EXEMPLAR's captain ordered hard right rudder which had the effect of swinging the stern of the EXEMPLAR away from the barge, breaking the contact between the two vessels. The EXEMPLAR then proceeded to its destination.
15. The failure to illuminate the anchor buoy in time, and the failure to provide the illumination on the barge required by the rules were proximate causes
of the collision.
16. Although in retrospect it may seem that the pilot may have applied more right rudder than was appropriate to avoid the unlighted buoy, thereby bringing him too close to the dredge, it should be recalled that the anchor buoy was only approximately 200 feet from the dredge and approximately 27 feet of that space was occupied by the water barge and its fender. The failure to provide timely illumination on the anchor buoy compelled the pilot to maneuver quickly in order to avoid hitting the buoy and at the same time bring the EXEMPLAR (which had a width of approximately 66 feet and a length of approximately 473 feet) through the slot of approximately 173 feet separating the anchor buoy and the just detected unlighted water barge. Under these circumstances and given the EXEMPLAR's speed, the pilot's maneuvering of the ship cannot be judged negligent.
17. The EXEMPLAR's speed at the time of the impact, and while it was within 200 feet of the dredge ADMIRAL, however, was approximately 4 knots through the water and approximately 6 to 6.5 knots over the bottom.
18. The speed of the EXEMPLAR was in violation of the Pilot Rules, 33 C.F.R. § 80.27.
19. The EXEMPLAR has failed to persuade the court that its excessive speed could not have contributed to the collision.
CONCLUSIONS OF LAW
The only significant legal issue between the parties relates to the interpretation of the Pilot Rules for Inland Waters, 33 C.F.R. Part 80, which the Arundel Corporation alleges that the EXEMPLAR violated. It urges that the EXEMPLAR's total speed over the ground (speed through the water plus the effect of wind and current) was approximately 6 to 6.5 knots at the time of the collision and therefore the EXEMPLAR was in violation of the relevant part of the Pilot Rules § 80.27; 33 C.F.R. § 80.27, which provides:
"Vessels, with or without tows, passing floating plant when working in channels, shall reduce their speed sufficiently to insure the safety of both the plant and themselves, and when passing within 200 feet of the plant their speed shall not exceed five miles per hour."
Moreover, Arundel urges that when the collision occurred the EXEMPLAR was in violation of a regulation designed to prevent collision, and therefore the EXEMPLAR has the burden of showing that its fault could not have contributed to the collision. The Pennsylvania, 19 Wall. 125, 136-138, 86 U.S. 125, 136-138, 22 L. Ed. 148 (1873). See, e.g., Diesel Tanker F. A. Verdon, Inc. v. Stakeboat No. 2, 340 F.2d 465, 467-468 (2d Cir. 1965); Merritt-Chapman & Scott Corp. v. Cornell S.S. Co., 265 F.2d 537, 539 (2d Cir. 1959). The EXEMPLAR, on the other hand, contends that the purpose of the enabling act under which the regulation in question was promulgated was the prevention of damage to improved waterways by excessive wash from passing vessels. Therefore, it reasons, the regulation's requirement of five miles per hour should be construed as referring to speed through the water, not speed over the ground. The EXEMPLAR's speed through the water was only about four knots and therefore, it is argued, not in violation of the Pilot Rules. Moreover, even if a speed violation were found, the statute's purpose of preventing wash damage (rather than preventing collisions) would make inapplicable the rule of The Pennsylvania. The EXEMPLAR urges that the statutory purpose
is apparent in the legislative history appearing in the Congressional Record. * * * [of] [the] enabling legislation of this regulation * * * found in 32 Stats., 374 § 11, 57th Cong., 1st Session, 1902. * * *" Post trial brief for libelants at 21.
Although a statement in the Congressional Record, from which the EXEMPLAR's brief thereafter quotes supports its argument, the brief fails to mention that the statutory provision expressly authorizing the Secretary of War to promulgate speed regulations in harbors to which that statement referred, was in fact omitted when the statute was subsequently amended in 1917. See 40 Stat. 266 § 7, 33 U.S.C. § 1 (1964). More importantly the cited statute, as amended in 1917,
was the authorizing act for the regulation promulgated by the Department of the Army, now contained in 33 C.F.R. § 201.11, which is not applicable in Charleston Harbor.
The regulation that the EXEMPLAR did allegedly violate, is found in the Pilot Rules for Inland Waters, 33 C.F.R. § 80.27, and that regulation is promulgated by the Coast Guard Commandant.
Although identical in language to the regulation promulgated by the Army Corps of Engineers, the statutory authority for this Coast Guard regulation is derived from 30 Stat. 102 § 2, as amended 33 U.S.C. § 157 (1964). See 29 F.R. 18011 (December 18, 1964); Note accompanying 33 C.F.R. Part 80 (Supp. 1965). The introductory section of the relevant enabling act
"That the following regulations for preventing collisions shall be followed by all vessels * * *." 30 Stat. 96.
The legislative history makes it clear that a prime purpose of the act was to integrate, to the greatest extent possible, the Inland Rules with the then recently adopted International Rules of the Road for the Prevention of Collisions on the High Seas. See S.Rep. No. 107, 55th Cong. 1st Sess. 1-3 (1897). The present version of the relevant enabling act contains the language similar to that found in the original statute:
"The following regulations for preventing collisions shall be followed by all vessels * * *." 33 U.S.C. § 154 (1964).
The regulation in question provides in part that vessels passing a floating plant shall reduce speed
"sufficiently to insure the safety of both the plant and themselves. " * * * 33 C.F.R. § 80.27.
The court finds that the regulation violated by the S.S. EXEMPLAR was promulgated for the purpose of preventing collisions pursuant to enabling legislation intended for the prevention of collisions. The rule of The Pennsylvania case is applicable.
If both vessels were in motion, speed through the water would be relevant
to avoiding collision since the current would affect both vessels in a similar manner. Griffin, The American Law of Collision, 582 (1949). See The Bilbster, 6 F.2d 954, 956 (2d Cir. 1925). Nevertheless,
"[If] one of them is at anchor and therefore unaffected by the current, while the other is navigating, the latter's speed over the ground is the important thing." Griffin, op. cit. supra.
The rule in England is precisely the same.
"As regards danger to vessels at anchor, the speed of the other ship over the ground, and not through the water, is that which must be considered; and in such cases the strength and direction of the tide [or current] must be taken into account. * * *" Marsden, Collisions at Sea, P. 772 at 527, (McGuffie 11th ed. 1961) published in 4 British Shipping Laws (Stevens & Sons, Ltd. 1961).
The relevant speed in this case, therefore, is speed over the ground.
Based on its Findings of Fact and its analysis of the law the court draws the following conclusions:
1. This court has jurisdiction over the parties and the subject matter of these actions.
2. The dredge ADMIRAL failed to provide timely illumination of its anchor marker buoy required by the Pilot Rules for Inland Waters § 80.29. This fault was a proximate cause of the collision.
3. The water barge A-244, a form of scow, failed to exhibit the lights required by the Pilot Rules for Inland Waters § 80.20(b). This fault was a proximate cause of the collision.
4. The speed of the S.S. EXEMPLAR was in excess of five miles per hour when it approached within 200 feet of the dredge ADMIRAL. Its speed thereby violated the Pilot Rules for Inland Waters § 80.27. The EXEMPLAR has failed to persuade the court that this excessive speed could not have been a proximate cause of the collision.
5. Both vessels were at fault, therefore the damages must be totaled and each vessel shall bear half the total loss.
Submit decree on ten days notice, but in any event, within twenty days.