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GETTY OIL CO.

March 5, 1976;

GETTY OIL COMPANY (EASTERN OPERATIONS), INC., Plaintiff,
v.
SS PONCE DE LEON, her engines, tackle, etc., et al., Defendants


Levet, District Judge.


The opinion of the court was delivered by: LEVET

OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW.

LEVET, District Judge.

 This suit is a claim in admiralty brought by Getty Oil Company (Eastern Operations), Inc. ("Getty") against Transamerican Trailer Transport, Inc. ("Transamerican") which grows out of a collision between a vessel owned by plaintiff, known as "Wilmington Getty, with a vessel owned by defendant Transamerican, known as "Ponce De Leon," on May 10, 1973.

 The case was tried to the court without a jury on September 19, 1975.

 After hearing the evidence presented by the parties, examining the exhibits, the pleadings, the briefs and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

 FINDINGS OF FACT

 1. Getty Oil Company (Eastern Operations), Inc. was and still is a corporation organized and existing under the laws of the State of Delaware and having an office and place of business at 660 Madison Avenue, New York, New York and was and still is the owner and operator of the steam tanker Wilmington Getty. The Wilmington Getty is a steam tanker 13,659 gross tons, 583.5 feet in overall length and 74.2 feet in breadth. On May 10, 1973 she was laden with a cargo of about 20,000 tons of heating oil and gasoline and her drafts were 31 feet 9 inches forward and 31 feet 11 inches aft. She was engaged on a voyage from Delaware City, Delaware, bound for Bayonne, New Jersey. (Stipulation # 2.)

 2. Sun Leasing Co. and Transamerican, defendants, were and still are domestic corporations organized and existing under and by virtue of the laws of one of the states of the United States with offices and places of business at 358 St. Marks Place, Staten Island, New York. Sun Leasing Co. is the owner of the Ponce De Leon and Transamerican was the operator of the said vessel.

 The Ponce De Leon is a steamship of 15,134 gross tons, 700 feet in overall length, 92.2 feet in breadth. The distance from her bridge to her bow is approximately 350 feet. Her steam turbine engines are of 32,000 horsepower. At the material times she was laden with a cargo of trailers to drafts of 21 feet 8 inches forward and 24 feet 6 inches aft. Her displacement was thus approximately 19,400 tons. She was engaged on a voyage from San Juan, Puerto Rico to the Transamerican Terminal, Staten Island, New York. (Stipulation # 3.)

 3. During the morning of May 10, 1973, the Wilmington Getty was proceeding up Ambrose Channel. At 0807 hours the Wilmington Getty passed Buoy R "6" in Ambrose Channel and at 0817 hours the Wilmington Getty passed Buoy R "10" in the aforesaid Ambrose Channel. (Ex. 5, May 10, 1973, Ex. 3.)

 4. Dense fog had pervaded Ambrose Channel during the early morning hours of May 10, 1973, resulting in a congestion of vessels seeking ingress to New York Harbor. (See Stipulation # 4.)

 5. As a result of the foggy conditions the Master of the Wilmington Getty decided to anchor while awaiting the fog to clear. As the Wilmington Getty proceeded up the channel, her radar indicated that the various anchorage areas were crowded and her master decided to anchor off Norton's Point, Brooklyn; at approximately 0856 the Wilmington Getty anchored off Norton's Point with three shots (290 feet) of anchor chain in the water. (Ex. 5; Ex. 10, p. 26.)

 6. The site where the Wilmington Getty so anchored was outside the normal anchorage area, known as Anchorage 25, and was located at the head of the customary navigable throughway used by vessels approaching the only safe anchorage after exiting Ambrose Channel at Buoy 18. (Ex. 16, pp. 50, 60.) Such a position, therefore, was not a usual nor customary place of anchorage for vessels awaiting assistance from tugs or for awaiting inclement weather conditions to improve. (Ex. 16, pp. 58, 60; Tr. 47, 48.)

 7. Upon anchoring the vessel the master of the Wilmington Getty put the vessel's engines on "Finished With Engines" ("F.W.E."). The Wilmington Getty takes approximately three to five minutes to get underway when the engine telegraph is on F.W.E. (Ex. 1, pp. 27, 48; Ex. 10, p. 12.)

 8. Had the engines of the Wilmington Getty been placed on "Standby Engines" the vessel would have been capable of immediate movement. (Ex. 1, pp. 27, 48; Ex. 10, p. 12.)

 9. The Wilmington Getty's watch officer, Mr. Farago, was not given any instructions regarding the status of the engines on May 10, 1973, when he relieved the watch. (Ex. 1, p. 26; Ex. 10, p. 23.)

 10. A security call which advised all vessels in the vicinity that the Wilmington Getty was anchored in a position outside the normal anchorage area was transmitted by the Wilmington Getty immediately upon anchoring. (Ex. 10, pp. 20-22.)

 11. However, this security call was never repeated by the Wilmington Getty at any time before the collision. (Ex. 10, pp. 20-22.)

 12. At all times after the Wilmington Getty anchored, a seaman was placed on her bow to ring her bell forward for five seconds at intervals not exceeding one minute. This was the proper fog signal for a vessel at anchor under the United States Inland Rules, Article 15(d), 33 U.S.C.A. § 191(d). A licensed mate was stationed on her bridge to monitor her bridge-to-bridge radio telephone which was set on Channel 13. (Farago, Ex. 1, pp. 14, 15; Brixen, Ex. 10, pp. 11, 22-23.)

 13. At approximately 1146, on May 10, 1973, the Ponce De Leon arrived at Ambrose Light Tower. (Ex. 16, pp. 17, 54.) At that time the master of the Ponce De Leon decided to follow the SS Sealand Boston up Ambrose Channel and maintained a distance of approximately one mile astern of the Sealand Boston. Three or four other vessels proceeded astern of the Ponce De Leon at the same speed and kept a fixed relative position behind the Ponce De Leon. (Ex. 16, pp. 55-57.)

 14. During all material times herein the Ponce De Leon sounded a prolonged blast on her fog horn at intervals of less than one minute, which was the proper fog signal for vessels underway pursuant to the United States Inland Rules, Article 15(a), 33 U.S.C.A. § 191(a). The Ponce De Leon's bridge-to-bridge radio telephone was set on Channel 13 and was being monitored as required by the Bridge to Bridge Telephone Act, 33 U.S.C.A. § 1201 et seq. (Ex. 16, pp. 19, 20, 33, 48, 59; Ex. 26.)

 15. The current in Ambrose Channel was flooding with a velocity of approximately.5 knots at material times herein. (Brixon, Ex. 10, pp. 16, 17; Meade, Ex. 16, p. 40.)

 16. At approximately 1300 hours on May 10, 1973 the Wilmington Getty completed swinging with the tide and the vessel was then headed approximately 160 degrees - 168 degrees, parallel to Ambrose Channel, a different position than the position at which the Wilmington Getty originally anchored at 0856 hours. (Ex. 1, pp. 12-14; Ex. 10, pp. 16, 26, 27.) At such a locale, the Wilmington Getty was in close proximity to the outer perimeter of Ambrose Channel.

 17. At approximately 1300 hours on May 10, 1973 the Ponce De Leon was proceeding up Ambrose Channel. She was equipped with two radars, both of which were functioning at all material times. (Ex. 16, p. 20; Ex. 26.)

 18. The master of the Ponce De Leon, Captain Meade, learned by radio that his tugs were then fogbound. Unable to proceed further without the help of tugs, the master of the Ponce De Leon decided to leave the channel and anchor in Anchorage Area 25 while awaiting more favorable weather conditions and the assistance of tugs to continue toward his destination. (Exs. 2, 21.)

 19. Just prior to coming abeam of Buoy 18, the master of the Ponce De Leon observed a target at the extreme edge of his radar, which was set at a two mile scale. This target was later identified as the Wilmington Getty. (Meade, Ex. 16, pp. 22-23, 46.)

 20. At the time of this first radar sighting, the Sealand Boston was in close proximity to the Wilmington Getty. This was because the stern of the Wilmington Getty had swung with the tide and had relocated near the perimeter of Ambrose Channel. The propinquity of the Wilmington Getty to the Sealand Boston gave the illusion of only one target as observed on the radar of the Ponce De Leon. (Ex. 16, pp. 22, 24.)

 21. At the time of this first radar sighting, the Ponce De Leon was traveling at 10.5 to 11 knots. (Ex. 16, pp. 27-29.) This figure is computed by calculating speed based on the Ponce De Leon's arrival time at certain fixed locations. The Ponce De Leon passed Buoy 14 at 1302 hours. (Ex. 16, p. 27; Ex. 18; Ex. 20, pages for May 10, 1973.) Buoy 18 was passed at 1309 hours. The distance between Buoy 14 and Buoy 18 was 1.25 miles on May 10, 1973.

 22. Under the weather and traffic conditions in the area of Ambrose Channel on May 10, 1973, the Ponce De Leon was traveling at an excessive rate of speed in traveling the distance between Buoy 14 and Buoy 18.

 23. Prior to passing Buoy 18, the master of the Ponce De Leon, Captain Meade, estimated that the target observed on radar, later identified as the Wilmington Getty, was approximately.5-.7 miles off Norton's Point, which was at a point to the east of the buoys which marked Ambrose Channel. Thus, Captain Meade should have known that the Wilmington Getty was located outside the main shipping channel with respect to vessels proceeding through Ambrose Channel and the Narrows. (Ex. 16, pp. 24, 46.)

 24. Captain Meade continued to observe the Wilmington Getty on radar but made no manual plot of its relative positions. (Meade, Ex. 16, pp. 25, 26.)

 25. At approximately 1308-1309, the Ponce De Leon reached Buoy 18, and her course was changed to the right to permit her to leave Ambrose Channel and proceed to a safe anchorage. (Ex. 20, May 10, 1973.)

 26. At the same time (1308-1309 hours), the Ponce De Leon was observed on radar by the watch officer of the Wlimington Getty. (Ex. 1, p. 18.) At that time the watch officer of the Wilmington Getty, Mr. Farago, considered the Ponce De Leon a "threat" to the Wilmington Getty when the Ponce De Leon began to turn right just after passing Buoy 18. (Ex. 1, pp. 41, 55.)

 27. The watch officer of the Wilmington Getty continued to observe the Ponce De Leon on radar until the time of the collision. At no time, however, did the watch officer of the Wilmington Getty make a manual plot of the ...


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