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June 22, 1976

HUDSON WATERWAYS CORPORATION and Seatrain Lines, Inc., Plaintiffs,
UNITED STATES of America, Defendant and Third-Party Plaintiff, v. S.S. SEATRAIN OHIO, her engines, boilers, etc., Third-Party Defendant

Robert J. Ward, District Judge.

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

Plaintiffs, Hudson Waterways Corporation ("Hudson") and Seatrain Lines, Inc. ("Seatrain"), seek to recover $340,000 for damages sustained by the S.S. Seatrain Ohio ("Ohio"), while the vessel was operating under a time charter with defendant, United States of America, through the Department of the Navy, Military Sealift Command. Defendant has waived its sovereign immunity and consented to be sued, for the claims here asserted, under the suits in Admiralty Act, 46 U.S.C. §§ 741-752, and the Public Vessels Act, 46 U.S.C. §§ 781-790.

 The action was commenced by Hudson, a New York corporation, which was the owner of the vessel at the time the injury was sustained. *fn1" Hudson claims that defendant was negligent in failing to properly place and maintain the aids to navigation in the area where the incident occurred which resulted in the damage to its vessel. Additionally, Hudson asserts that defendant breached certain charter party warranties. However, Hudson had not been a party to the charter. Therefore, Seatrain, Hudson's parent corporation and the owner party to the charter, was added as a plaintiff in order that the warranty claims could be asserted. Both the tort and warranty claims are presently before this Court for determination. *fn2"

 The vessel was impleaded as a third-party defendant by the Government in order that all aspects of in rem and in personam liability could be adjudicated.

 A. Stipulated Facts

 Certain facts are not in dispute. On February 3, 1972, the Ohio suffered bottom damage while operating in Vietnamese waters in the Vung Tau area. The parties have agreed that at all relevant times this area was part of a war zone and that at the time of the incident the vessel was operating under a time charter party entered into between the Department of the Navy, Military Sealift Command, and Seatrain. The Ohio, a freighter with a gross tonnage of 8,047, and an overall length of 559 feet 11 inches, had, at the time of the incident, a draft of 19 feet 6 inches forward and 21 feet 4 inches aft. The Vung Tau channel, through which the vessel had to pass, had a charted depth at its center of 24 feet.

 Prior to the incident on February 3rd, the Ohio had made eight successful transits through Vung Tau channel during 1971 and 1972. Subsequently, during March 1972, the Ohio made two additional transits, both without incident. The parties have additionally stipulated that located on the northerly side of the Vung Tau Inner Channel was a nun-type aid to navigation buoy, designated as buoy number 4.

 B. The Evidence

 1. The Touching

 On the morning of February 3, 1972, the Ohio was berthed at the De Long pier in Vung Tau, Republic of Viet Nam. Cargo operations on the Ohio were completed at approximately 7:00 A.M. that morning. Originally, the vessel had been scheduled to sail for Taiwan at 4:00 P.M.

 At approximately 8:00 or 9:00 A.M. on the third, Lieutenant Junior Grade Tappan Jennings, United States Navy, the Officer-in-Charge of the Military Sealift Command Unit in Vung Tau, approached the Master of the Ohio, Captain Nicholas Ghiz, and requested that the vessel sail at 11:00 A.M. in order that another ship could be berthed at the pier. Captain Ghiz informed Lieutenant Jennings that a union contract required that the crew be given eight hours notice before all departures and that an 11:00 A.M. departure was, therefore, not possible. It was, however, agreed that the ship would sail at noon, provided that the entire crew was aboard. Apparently, the union contract requirement was Captain Ghiz's prime consideration and the factor that led to the compromised departure schedule.

 A noon departure involved a transit through the channel during slack low tide, whereas a 4:00 P.M. transit would have occurred during a high water phase. *fn3" It should be noted that Lieutenant Jennings testified that he was aware of and considered the tide conditions when he made the request for the change in sailing time, but that he could not recall being questioned by Captain Ghiz about the low water condition. On the other hand, Captain Ghiz testified that he complained to the Lieutenant of the low water condition as well as the union contract requirement.

 At noon on February 3rd, the entire crew was aboard and the ship prepared for departure. Captain Ghiz testified that the weather conditions were ideal, the wind was easterly at four miles per hour, visibility was unlimited, and the sea was smooth. At 12:19 the Ohio was clear of the DeLong pier, with the master, the mate on watch, the quartermaster, and a Vietnamese local pilot on the bridge. In addition, the chief mate was stationed on the bow and the second mate on the stern.

 Captain Ghiz was an experienced Merchant Marine officer and had been the Ohio's master for approximately five and one half years, during which time he had occasion to transit the Vung Tau Channel "at least a dozen times." The Captain testified that, upon the vessel's departure from Vung Tau, she was in possession of the latest charts of the area and that the pilot had assured him that there was at least 24 feet of water in the Channel at low tide. With the Ohio's draft of ...

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