UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
July 17, 1968
NATIONAL TRANSPORT CORP., as Owner of the TANKER, NATIONAL DEFENDER, Libelant,
The TUG ABQAIQ, her engines, boilers, etc. and Arabian American Oil Company, Inc., Respondents
Cooper, District Judge.
The opinion of the court was delivered by: COOPER
COOPER, District Judge.
This libel is brought to recover damages allegedly sustained by libelant's tanker, the National Defender, as a result of respondent's negligence during docking operations at the Port of Ras Tanura, Saudi Arabia. Jurisdiction of the Court is not disputed.
During the early morning hours of September 3, 1961, the National Defender
was being docked at Ras Tanura, a port operated by respondent Arabian American Oil Company, Inc. (hereinafter Aramco).
Harbor Pilot Smith, employed by Aramco, boarded the tanker at 0030 hours on September 3, 1961. The docking operation was completed and the vessel was secured portside to the dock at 0320 hours. Two tugs, Abqaiq I and Abqaiq II, owned by Aramco and operated by its employees, assisted in the docking. The Abqaiq I was on the starboard bow of the National Defender while the Abqaiq II positioned itself on the starboard side at the stern (Pre-Trial Order, P3(a), May 25, 1965).
The National Defender loaded a full cargo of fuel oil at Ras Tanura and departed near midnight on September 4th for Sasebo, Japan. The tanker arrived there on September 20, 1961, and commenced discharging its cargo later that same day. On September 21st, Virgil Hall, a consulting marine engineer and naval architect, while on inspection in a launch circling the vessel, observed damage to the hull of the vessel on its starboard side forward of the break of the forecastle head.
Libelant contends that the tug Abqaiq I, while assisting in docking operations at Ras Tanura, negligently struck the National Defender causing damage to its starboard side. The evidence adduced at trial before this Court, sitting without a jury, on the sole issue of liability indicates three significant factual areas of controversy.
(a) Position of Abqaiq I
Respondent, relying in the main on the testimony of tugboat Captain Jaber Mohammed, contends that the position of the Abqaiq I was such that it could not possibly have caused damage to the vessel in the area alleged.
Mohammed testified that he made his tug's front lines fast forward of the bridge, "about eight feet from the bridge"
When ordered to push by Aramco's Pilot Smith, he brought the tug forward until its lines were taut and then maneuvered the tug so that it was at a right angle to the vessel.
The distance between the bridge and the forecastle head is approximately 250 feet (Tr. 55). The lines on the tug were 150 feet in length (Tr. 147), and the distance from the water line to the main deck forward of the bridge was approximately 40 feet (Tr. 57). Relying on Mohammed's testimony that the lines were secured to the bitt forward of the bridge, respondent concludes that its "tug could not have gone forward at a greater distance than the midpoint between the bridge and the forecastle head,"
and therefore could not have caused damage to the hull forward of the break of the forecastle head.
The validity of respondent's conclusion depends entirely on where the tug's lines were fastened to the National Defender. For the reasons set forth below, we are convinced that the Abqaiq I positioned itself at a point further forward than that testified to by Mohammed.
Master Maycroft, Third Mate Florence, and Pilot Smith all agree that the tug came alongside the vessel in the vicinity of the break of the forecastle head and tied up through the chock just aft of there.
Smith testified that this was the normal position for the tug to take,
and had it positioned itself anywhere else he would have been informed (Smith depo. pp. 5, 42). It was Smith who determined how many tugs were to be used in docking and where they should be applied with respect to the vessel (Smith depo. p. 39).
There appear to be three chocks between the bridge and the forecastle head. Florence testified that "there is one down just where the forecastle head comes down to the main deck level. There is one just aft of there. Then the next one aft of that would be some distance * * *." (Florence depo. p. 43). The latter appears to be the chock ("C") marked on Exhibits 6 and 11, and alleged by Mohammed and respondent to be the one through which the tug's lines were secured.
We credit the testimony of Maycroft, Florence, and Smith on this particular issue, and in so doing disregard all of Mohammed's testimony which is inconsistent. We find that the tug's lines were fastened through the chock near the break of the forecastle head, and that the tug therefore was in the area of the damaged portion of the hull.
(b) Abqaiq I struck the National Defender
and Third Mate Florence both testified that the tug struck the National Defender. Maycroft says that the tug would push up under the bow,
surge and come away, and then strike again; "it was surging up and down, and it touched the ship with a jar. It struck the vessel hard enough so that you could feel it when it struck * * *" (Maycroft depo. p. 24). Florence recounts that the tug struck the vessel "quite hard," two or three times, from the action of the sea. He could hear the noise when the tug and the side of the vessel made contact; it struck so hard that it set the fogbell on the tug's open bridge ringing (Florence depo. pp. 15, 55-56). Neither Maycroft nor Florence was able to observe, from their respective positions on the bridge, the actual contact between the tug and the vessel (Maycroft depo. p. 52; Florence depo. pp. 44-45).
Chief Mate Baum, who was stationed on the forecastle head, called the bridge to report that the tug was "banging against the bow and he was afraid she was going to do damage" (Florence depo. pp. 15-16).
When the tug backed away from the vessel,
Baum, using a flashlight, checked the bow over the side and reported back to the bridge that he could see no apparent damage (Maycroft depo. p. 25; Florence depo. p. 16). No inspection was made of the starboard bow in the daylight of September 3rd (Maycroft depo. p. 57).
We are convinced that the Abqaiq I struck the National Defender during docking operations notwithstanding Mohammed's testimony to the contrary.
(c) The striking caused the damage alleged
The draft of the National Defender on its arrival at Ras Tanura was 19'-00" forward and 25'-00" aft. The vessel, while secured port side to the dock, loaded a full cargo of fuel oil and departed at 2340 hours on September 4, 1961 with its draft 44'-05" forward and 45'-05" aft. It arrived at Yokose Terminal, Sasebo, Japan, on September 20, 1961, bearing draft of 43'-03" forward and 44'-07" aft, and commenced discharging part of its cargo. At completion of discharge, the vessel's draft was 20'-06" forward and 26'-09" aft (Ex. 2).
On September 21st,
Virgil Hall, while in a launch circling the vessel to inspect the condition of the paint, observed damage to the vessel's hull.
"I saw an indentation in the hull of the vessel on the starboard side forward four strakes below the sheer strake, four plates aft of the bow. This plate was heavily indented and the plate below, the fourth strake below the sheer and the fifth strake below the sheer, were damaged. They were indented approximately four inches at the center and the damage extended over an area of possibly 25 or 30 foot long and 6 or 8 foot vertically (Tr. 27)."
Upon detecting the damage, Hall went aboard the vessel to discuss it with Maycroft (Tr. 22). Maycroft immediately went with Hall in the launch to examine the starboard side of the bow and there observed the damage here in question. Prior to Hall's coming aboard, Captain Maycroft was not aware of any damage to the vessel (Maycroft depo. pp. 29, 34). On September 21st, Maycroft made an entry in the logbook relating to the damage; he put it on the September 3rd page without indicating that the entry was in fact made on September 21st (Maycroft depo. p. 34).
Hall placed the area of damage above the twenty five foot water line (Tr. 33).
Maycroft testified that at the time he observed the indentations
they were five or six feet above the water when the draft was about 20'-06" forward (Maycroft depo. p. 30).
The evidence shows that when the National Defender left Ras Tanura on September 4th, after loading a full cargo of fuel oil, the area of the hull in which the damage was later observed was under water and remained there until some time on September 21st when after sufficient discharge that portion of the hull once again surfaced.
We must determine whether the blows struck by the Abqaiq I
during docking operations at Ras Tanura caused the damage to the National Defender which was observed for the first time at Sasebo on September 21st.
Maycroft and Florence were both of the opinion that the indentations were caused by the tug. Maycroft based his opinion on the following:
[The] type of the indentation. It showed that something had raised up under the bow, and the fact that I knew the tug had been surging up and down that we used in Ras Tanura; also the size and indentations on the bow were the size of the tug at Ras Tanura.
* * *
[At] that area there is a slight angle [in the ship's plating] and it appeared like the tug had been pushing and had surged up while she was pushing, causing this indentation.
* * *
The indentations were definitely indentations that had been done previous to our arrival at Sasebo. There was rust stains where the paint had been scraped off. However, there was no large amount of scale. It was something that had been done recently, but not too recently (Maycroft depo. pp. 30-38).
Florence was "reasonably sure" that the indentations were caused during the docking operation at Ras Tanura basing his conclusion on the following observations: the indentations were "the general shape of the bow of a tug. The construction of these tugs in Ras Tanura there which are rather blunt around the upper guardrail;" the damage would have been "detected prior to this [apparently referring to September 3, 1961] if it had occurred prior to it;" if it had been done "on arrival at Sasebo * * * the scars would have shown bright metal. In other words there would have been no rust formation or any indications of rusting;"
the location of the tug during docking and the location of the indentations were the same -- "forward of the break of the forecastle head;" and, in terms of the vessel's draft, the two locations also "compare favorably"
(Florence depo. pp. 20-22, 52-53).
Virgil Hall, a consulting marine engineer and naval architect, testified that the damage he observed was "consistent with damage that would be caused by a tug ramming the vessel" (Tr. 46).
I base my opinion on the fact that the indentations must have been caused by a very heavy blow, by a blunt instrument. Heavy plating, it was heavily reinforced. I can conceive of a tugboat striking with enough force to cause such an indentation. There are possibly other things that could cause such an indentation, but I can conceive of that and I have had similar damages that I have observed and repaired that there was no question about how they were caused. So I base it on past experience (Tr. 47-48).
* * *
It is consistent because I can visualize a tug striking in this area and causing this type of damage (Tr. 49).
Exhibits D-1 and E convince us that the tug's bow, covered as it was with a massive rope fender, was relatively blunt. The fender weighed between three and four tons (Tr. 111), and was in an "oval shape" (Tr. 117). A heavily woven rope mat called a moustache was placed over the fender and adopted its form (Tr. 106-07). "When the tug approached and touched a vessel, the outermost point of the oval would automatically touch the vessel first. As pressure was applied and the resiliency of the fender permitted the fender and moustache to become compressed, then progressively a larger area of the fender and moustache would become involved." When working heavily against the vessel, a six by six foot area of the tug's moustache would be pressed against the vessel's side with the major pressure area increasing toward the center (Tr. 114-18).
Hall stated that the tug would not require a high rate of speed to cause such damage since it could strike very hard on the action of the waves alone (Tr. 66).
It is noted, however, that while pushing the National Defender, the Abqaiq I's engines were "full ahead" (Tr. 144).
Relying on the preceding testimony, we are satisfied by a fair preponderance of the credible evidence that the Abqaiq I caused the damage here in question. The fact that Chief Mate Baum did not observe any damage to the hull when he made his cursory inspection over the vessel's side does not alter our determination. Baum's check was made during darkness with only the aid of a flashlight. Additionally, his position on the bow would make it difficult, although not physically impossible, for him to observe the damaged area (Tr. 52).
In reaching our determination, we have given due consideration to Captain Maycroft's failure to register a complaint at the time of the alleged collision and the lengthy delay occasioned between the date when the damage was first observed in Sasebo and the date when Aramco was given notice of it. Compare Russell, Poling & Co. v. Tug Alice M. Moran, 205 F. Supp. 874 (S.D.N.Y.1962); Henry F. Will-Lester C. Clark, 1930 A.M.C. 540 (S.D.N.Y.). Although Maycroft's letter to Aramco (Ex. A) is dated September 20, 1961,
it was not received until November 18, 1961 (Tr. 91-94).
We would be less than candid if we did not state that the resolution of the factual issues was quite burdensome: some issues presented very close questions of fact; the heavy reliance on deposition testimony made our task all the more difficult, for as the parties themselves recognized, much turned on the credibility of the witnesses. We are satisfied, however, by a fair preponderance of the credible evidence that the Abqaiq I did strike and damage the National Defender during docking operations.
While respondent was not an insurer, it did owe to libelant "the duty to exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service." Stevens v. The White City, 285 U.S. 195, 202, 52 S. Ct. 347, 350, 76 L. Ed. 699 (1932); see South, Inc. v. Moran Towing & Transportation Co., 252 F. Supp. 500 (S.D.N.Y.1965), aff'd, 360 F.2d 1002 (2d Cir. 1966); Grace Line, Inc. v. The C. Hayward Meseck, 150 F. Supp. 425 (S.D.N.Y.), aff'd, 248 F.2d 736 (2d Cir. 1957).
"When an accident occurs to the tow the action is ex delicto and the burden is on the tow to show negligence on the part of the tug." Simkins v. R. L. Morrison & Sons, 107 F.2d 121, 122 (5th Cir. 1939); Geo. W. Rogers Construction Corp. v. Tug Ocean King, 252 F. Supp. 657 (S.D.N.Y.1965). However, where a collision occurs "without any fault on the part of the tow, under circumstances in which if proper care is exercised in performing a similar service, such misfortune does not ordinarily occur there is a presumption of negligence. In other words, the situation calls for an explanation, and there is a duty on the part of the tug to offer evidence to meet the presumption." The Clarence P. Howland, 16 F.2d 25, 26 (2d Cir. 1926); The Anaconda, 164 F.2d 224 (4th Cir. 1947); Geo. W. Rogers Construction Corp. v. Tug Ocean King, supra; Simkins v. R. L. Morrison & Sons, supra.
While libelant has not been able to specify with any degree of certainty in what (respects) respondent was negligent, we are satisfied that the Abqaiq I struck the National Defender under such circumstances
that it would not ordinarily have occurred had those in charge of the tug exercised proper care.
Respondent has not rebutted the presumption of negligence arising out of this collision, nor has it offered any credible explanation of the collision consistent with the exercise of due care on the part of the tug. Accordingly, we find that respondent's negligence was the proximate cause of the damage to the National Defender.
As to liability only, the foregoing shall constitute this Court's Findings of Fact and Conclusions of Law.
The time and place for the presentation of evidence with respect to damages will be discussed with counsel at an early date.