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November 14, 1972

RICHMOND MARINE PANAMA, S.A., in personam, and the SS OLYMPIC PIONEER, her engines, boilers, tackle, etc., in rem, Plaintiff,
UNITED STATES of America, Delships Inc., and the S.T. GULFSPRAY, her engines, boilers, etc., Defendants

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This is an action by the plaintiff, Richmond Marine Panama, S.A., to recover damage to its vessel, Olympic Pioneer when she touched bottom on February 12, 1967 in the vicinity of the junction of the Chester Range and the Marcus Hook Range of the Delaware River. There is a buoy 1C maintained by the United States Coast Guard in that vicinity. The suit against the United States is based on the theory that the United States was negligent in placing and maintaining buoy 1C in that the buoy was beyond the channel rather than at its outer edge as shown on the chart customarily used by mariners. Such a suit against the United States is properly brought in admiralty for which a remedy is provided under the Suits in Admiralty Act, as amended in 1960, 46 U.S.C. § 741 et seq. Afran Transport Company v. United States, 309 F. Supp. 650 (S.D.N.Y.1969), aff'd 435 F.2d 213 (2 Cir. 1970), cert. denied, 404 U.S. 872, 92 S. Ct. 72, 30 L. Ed. 2d 116 (1971) or under the Public Vessels Act, 46 U.S.C.§§ 781-790, on the theory that the Coast Guard buoy tender was negligent.

 Delships Inc. (Delships) the owner of the S.T. Gulfspray was thereafter joined as a defendant and the vessel was sued in rem. The United States then cross-claimed against these additional defendants and joined the Olympic Pioneer. There is jurisdiction under the admiralty and maritime jurisdiction of the Court, 28 U.S.C. § 1333(1).

 Delships and Gulfspray were sued on the theory that Gulfspray crowded Olympic Pioneer contrary to the Inland Rules of Navigation and caused her to come too close to buoy 1C. At the trial witnesses testified for the respective parties and depositions of others were received in evidence.


 Olympic Pioneer, a Liberian flag vessel, owned by the plaintiff Richmond Marine Panama, S.A., having a length of 576 feet and a beam of 75 feet departed Philadelphia for sea the morning of February 12, 1967, laden with a cargo of 24,240 tons of scrap metal to a mean draft of 34 feet 8 inches. *fn1" She took on bunkers at the Mantua Creek Anchorage. She left the anchorage and headed for sea at 1139 hours. Soon after noon she turned onto the Chester Range of the Delaware River, proceeding outbound. The weather was clear. *fn2" Pilot James L. Miller, Jr., a duly licensed Delaware River pilot, was at the conn. *fn3" Her second officer was standing by the engine room telegraph and a helmsman was at her wheel. The master, Captain Katravas was somewhere on the bridge but apparently not in communication with the pilot.

 The Chester Range channel is 800 feet wide and is marked by a fixed range on the center line of the channel. There is a buoy 4C on the eastern channel line about midway on the range, which is about 1.82 miles long. Where the channel changes direction onto the Marcus Hook Range there are two buoys marking the change in direction, buoy 1C on the westerly side of the channel and buoy 2C on the easterly side and slightly to the north. The project channel has a depth of 40 feet at mean low water. *fn4" The tide at the time was flooding toward the west at about 1.5 knots in the vicinity of buoy 1C. *fn5"

 As Olympic Pioneer proceeded down the Chester Range, Pilot Miller noticed congestion ahead on the next range, the Marcus Hook Range inbound. One of the vessels was defendant Delships' Gulfspray, a fully loaded oil tanker which was being navigated by Captain R.C. Foster, also a duly licensed pilot for the Delaware River. *fn6" Gulfspray's master and second mate were also on the bridge. *fn7"

 At the time Gulfspray was sighted, Olympic Pioneer was close to mid-channel or slightly favoring the Pennsylvania side or western side. *fn8" Her pilot, upon sighting Gulfspray, slowed the vessel to dead slow ahead and her course was changed by a rudder order to "come right." There was a subsequent order of "steady" but no check was made of the gyro course. It was believed that the changed course would make her pass 75 to 100 feet off buoy 1C. There was no further alteration of her course until Olympic Pioneer grounded in the vicinity of buoy 1C about thirteen minutes later. *fn9"

 At the time Olympic Pioneer changed her course, while abeam of buoy 4C, Gulfspray was at least partially out of the eastern line of the channel and in the quarantine anchorage adjacent to the Marcus Hook Range. *fn10" She had altered her course to starboard approximately three degrees to pass astern of the Spencer which was maneuvering away from the Sinclair dock and obstructing Gulfspray's passage. *fn11" Gulfspray, after clearing the Spencer, altered her course to port and proceeded inbound on her own starboard side of the channel. Olympic Pioneer and Gulfspray passed port to port in the vicinity of buoys 1C and 2C. *fn12" The plaintiff contends that Gulfspray was either in mid-channel or west of the center line of the channel, contrary to the Inland Rules of Navigation *fn13" and that she crowded Olympic Pioneer.

 The plaintiff's contention that Gulfspray was near mid-channel and west of it when passing Olympic Pioneer has not been established by a preponderance of the evidence. The plaintiff contends that the statutory violation of the Inland Rules of Navigation by Gulfspray places upon her the burden of proving that her fault did not contribute to the grounding of Olympic Pioneer. But that assumes the basis for establishing the burden of proof -- that Gulfspray was, in fact, over the center line of the channel.

 Pilot Miller who was at the conn of Olympic Pioneer, testified at the Coast Guard hearing soon after the accident. At that time he made no charge against Gulfspray for crowding Olympic Pioneer. He there testified that he did not think Gulfspray hindered his navigation. *fn14" At the trial the plaintiff did not call him as a witness. Nor at the time of the incident did he signal Gulfspray by danger signal or telephone asking her to change her course to starboard to avoid crowding him. The rudder order to the helmsman of Olympic Pioneer to "come right" was given when Gulfspray was coming out of the quarantine anchorage, thirteen minutes away. And that heading, after steadying, was never changed. This hardly lends plausibility to the contention that the alleged crowding actually affected the course of Olympic Pioneer.

 The plaintiff attempted to bolster its position by calling a hydrodynamics expert, Mr. Suarez. There was objection to his testimony on the ground that specific facts to support any theoretical conclusion of the trajectory of Gulfspray's passage which he had plotted were not proved. Decision was reserved. I will allow it in evidence. I have considered the testimony and graphs of Mr. Suarez which put Gulfspray in mid-channel or slightly to the west abeam of buoy 1C at 1234 hours. *fn15" The first assumption of Mr. Suarez was that Gulfspray, while passing buoys 1M and 6M, south of the Sun Oil dock and the Sinclair dock, was in mid-channel. There is no recorded observation to support this, and the testimony of second mate Lootz of Gulfspray was based on what was normally the lateral position of the vessel abeam 1M, "on the ranges," rather than her position on that particular day. The assumption appears contrary, moreover, to Gulfspray's testimony that she was at the outer eastern edge of the channel and into the quarantine anchorage when she passed astern of the Spencer, a fact confirmed by the observation of Katravas, the master of Olympic Pioneer, and Pilot Miller. *fn16" Mr. Suarez conceded (and actually marked a trajectory accordingly), that if Gulfspray was in the anchorage she would have been in the starboard channel at buoy 1C at 1234 hours when the vessels allegedly passed each other. *fn17"

 Another weakness in Mr. Suarez's testimony was his assumption that Gulfspray was opposite buoy 1C precisely at 1234 hours. There is evidence that she commenced her change of course for the Chester Range at 1232 hours and that she would normally change course at about that point in the river in order to stay on the proper side of the channel. *fn18" In that event she could not have been opposite buoy 1C at 1234. And her position at 1234 hours would not be meaningful.

 The plaintiff has a further argument. The channel is 800 feet wide. Olympic Pioneer grounded within 50 to 100 feet from the buoy (which was 80 feet outside the channel). Captain Foster, pilot of Gulfspray, estimated that he passed Olympic Pioneer at a distance of 300 feet. Each vessel had a beam of about 75 feet. Hence, it is argued that by Foster's own admission he had to be either in mid center of the 800 foot channel or on the westerly side. The difficulty with this reasoning is that distances on water are, as is well known, deceptive and imprecise and no record was made at the time. Since Captain Foster knew the width of the channel, his testimony can hardly be contrived and tends to support my impression that he was a credible witness. Captain Foster testified that he took no note because it had seemed like a normal passing and he did not know that the passing vessel had grounded. ...

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