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BARGE POLING BROS. NO. 23 v. NAMSET

April 5, 1977

BARGE POLING BROS. NO. 23, INC., Plaintiff,
v.
Skibs A. S. NAMSET et al., Defendants



The opinion of the court was delivered by: MOTLEY

INTRODUCTION

 MOTLEY, District Judge.

 This is an action arising out of a collision in the East River, New York on May 26, 1973 between the American flag petroleum barge Poling Bros. No. 23, propelled by the American flag tug Phoenix, and the Norwegian flag tanker S.S. Anco Swift. The owner of the barge has brought an action in admiralty against the owner of the S.S. Anco Swift and against the S.S. Anco Swift in rem, and has also sued the owner of the tug Phoenix and the tug Phoenix in rem for damages sustained by the barge in the collision. The owner of the S.S. Anco Swift has cross-claimed against the owner of the Phoenix for damages sustained by the ship and for indemnification for whatever damages it might be found liable to pay to the owner of the barge. The owner of the tug Phoenix, while sustaining no damages for which it seeks recovery here, has cross-claimed against the owner of the ship for indemnification for whatever damages it might be found liable to pay to the owner of the barge.

 The case was tried to the court without a jury on May 11, 12, and 13, 1976.

 FINDINGS OF FACT

 At the times pertinent to the claims herein, plaintiff, barge Poling Bros. No. 23, Inc., was a United States corporation, and the owner and operator of the barge Poling Bros. No. 23 ("the barge"); defendantclaimant Skibs A/S Nanset (sued herein as Skibs A.S. Namset) was a Norwegian corporation and the owner and operator of the steamship Anco Swift ("the ship"); and defendant-claimant Alban & Poling Towing Co., Inc. was a United States corporation and the owner and operator of the tug Phoenix ("the tug").

 The barge Poling Bros. No. 23 is a steel hull tank barge without motive power, with a gross and net tonnage of 1,844 tons, a length of 323.6 feet, a breadth of 43 feet, and a depth of 14.5 feet. The Anco Swift is an ocean-going tanker with a dead weight of 20,550 tons, a length of 556.9 feet, a breadth of 72 feet, a moulded depth of 40.1 feet, and with 9300 brake horsepower. At the pertinent time, her draft was 19 feet 7 inch forward and 30 feet 4 inch aft. The tug Phoenix is a steel hull towboat with a length of 95.2 feet, a breadth of 25.1 feet, a depth of 10.6 feet, and with 1200 horsepower.

 At approximately four o'clock (0400) on the morning of May 26, 1973, the tug Phoenix, with her bow made fast in the towing notch in the stern of the barge by two wire rope cables, was pushing the barge ahead going upstream in the East River of New York in the area of the Williamsburg bridge. The tug and barge, which carried 18,000 barrels of gasoline, had left Port Reading, New Jersey at approximately 0100 that day bound for Glenwood Landing, Long Island via Lower New York harbor, the East River, and Long Island Sound. Aboard the barge were two crewmen, one of whom checked the lights of the barge about 0320 and found them in proper order. The tug was under the command of Captain Carlton B. Cornelius, *fn1" who was standing watch alone on the bridge of his vessel.

 At approximately the same time, the Anco Swift was proceeding downstream on the Manhattan side of the river in the vicinity of 35th Street. Partially laden with a cargo of molasses, the ship had departed from Groton, Connecticut in the early evening of May 25, and was bound for the Nepco Terminal at North 1st Street in Brooklyn. The ship was under the command of Captain Richard A. Chambers, an experienced licensed pilot who had boarded the ship as it was underway in the vicinity of City Island in the East River. With the pilot on the bridge were the ship's captain, Magnar Solberg, *fn2" and a helmsman. The first officer was on the forecastle with the lookout standing by the anchors, the second officer was on deck waiting to meet the docking pilot, and the chief officer had returned home to Norway from Groton due to illness.

 This ship had proceeded down the East River from City Island. At 0352, the pilot had ordered full ahead which, on the Anco Swift, meant a speed of approximately thirteen knots through the water. However, the ship's speed over the ground was reduced to approximately eleven knots by the effect of a two knot flood tide in the river. At 0355, the ship had passed the Queensboro (59th Street) bridge and, by 0400, the ship was in the vicinity of 35th Street with her engines still at full ahead. Visibility was good, estimated at ten miles where unobstructed.

 As he came down the river, the pilot had been in two-way radio communication with several other vessels over his walkie-talkie, which was tuned to Channel 13, the channel used for harbor navigation generally. *fn3" By this means, he arranged starboard to starboard passages with two tugs and tows in the vicinity of 42nd Street in Manhattan.

 At approximately 0400, the Anco Swift was met by two other tugs -- the Jane McAllister and the Helen McAllister -- which were to assist her in docking in Brooklyn. The docking pilot, who was aboard the latter vessel awaiting the opportunity to go alongside and board the Anco Swift, spoke by radio telephone with the pilot on the Anco Swift and asked him to reduce the ship's speed in order that he might come aboard by fixed ladder. *fn4" However, the pilot, who soon was to become concerned with the proximity of the tug Phoenix and her tow, asked the McAllister tugs to stay clear. Accordingly, the tugs remained at some distance off the ship's starboard side and behind her.

 Shortly after 0400, the Anco Swift was nearing a scheduled turning point in her voyage down the East River. Although the river curves somewhat between Roosevelt Island and the Williamsburg bridge, the channel for deep draft vessels bends more sharply because the Manhattan side of the river begins to shoal significantly south of 35th Street. From roughly 24th Street southward, the 30-foot depth curve extends out almost to the middle of the river. Between 24th Street and 17th Street, United States Coast and Geodetic Survey chart no. 745 reveals four spots of 25-foot depth immediately adjacent to the 30-foot depth curve. Accordingly, even making due allowance for the fact that the depth of the river in this area at flood tide may be increased by from four to six feet, there exists a significant hazard to deep draft vessels which requires that they keep to the middle or Brooklyn side of the river, where there is ample water up to the heads of the piers.

 To facilitate safe navigation in this area, the United States government has established a range, known as the Poorhouse Flats Range ("the range"), consisting of two lights located on the Brooklyn shore in such a position that a downbound deep draft vessel navigating with these lights in line will stay clear of the 30-foot depth curve, her course running diagonally from the Manhattan side (at about ...


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