Appeal from a judgment of the United States District Court for the Southern District of New York, Hon. Lawrence W. Pierce, Judge, based on an opinion by Hon. Richard H. Levet, awarding plaintiff damages in this admiralty action arising out of a collision of the parties' vessels, reduced by reason of plaintiff's contributory fault. Affirmed.
Tom C. Clark, Associate Justice,*fn* Moore and Mulligan, Circuit Judges.
On the early afternoon of May 10, 1973 in a dense fog in New York harbor there was a collision between the "Wilmington Getty", a vessel owned by the plaintiff Getty Oil Company (Eastern Operations), Inc. (Getty) and the "Ponce De Leon", a vessel owned by the defendant Sun Leasing Co. and operated by the defendant Transamerican Trailer Transport, Inc. Both vessels were damaged. The ensuing admiralty claim was brought by Getty in the United States District Court for the Southern District of New York and was tried before Judge Richard H. Levet on September 19, 1975 without a jury. The court's 29-page opinion, findings of fact and conclusions of law dated March 5, 1976 reported at 409 F. Supp. 909, held that both vessels were at fault. The court determined that the Ponce De Leon was liable for 80% and the Wilmington Getty for 20% of the damages.*fn1 Getty has appealed, urging that the Ponce De Leon was solely at fault or, in the alternative, that it was 95% at fault. Sun Leasing Co. and Transamerican Trailer Transport, Inc. have cross-appealed, submitting that a finding of 70% to 75% responsibility as against Ponce De Leon would be appropriate under the circumstances. We affirm the judgment below and dismiss the cross-appeal.
The salient facts found by the district court follow: The Wilmington Getty is a steam tanker 13,659 gross tons, 583.5 feet in length and 74.2 feet in breadth. On the morning of May 10, 1973 she was on a voyage from Delaware City, Delaware to Bayonne, New Jersey laden with a cargo of 20,000 tons of heating oil and gasoline. The Ponce De Leon is a steamship of 15,134 gross tons, 700 feet in length and 92.2 feet in breadth. On the morning of May 10, 1973 she was laden with a cargo of trailers and was on a voyage from San Juan, Puerto Rico to the Transamerican Terminal at Staten Island, New York.
On that morning the Wilmington Getty was proceeding up Ambrose Channel in a dense fog which had caused a congestion of vessels seeking ingress to the harbor. In view of the crowded anchorage areas, her master decided to anchor outside the normal location and at 0856 anchored the vessel at Norton's Point, Brooklyn with three shots (290 feet) of anchor chain in the water. The court found this position to be hazardous since it was not a usual or customary place of anchorage for vessels awaiting inclement weather conditions to improve. The normal location, known as Anchorage 25, 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. Upon anchoring the master of the Wilmington placed the vessel's engines at the position "Finished With Engines" (F.W.E.) which would require about three to five minutes to get the vessel underway. Had the engines been placed on "Standby Engines" she would have been capable of immediate movement. The Wilmington Getty's watch officer was not advised of the status of the engines when he relieved the watch. A security call advising all vessels in the vicinity of the Wilmington Getty's anchorage position was transmitted immediately upon anchoring, but was not repeated by that vessel at any time before the collision.
At about 1146 on May 10, 1973, the Ponce De Leon arrived at the Ambrose Light Tower and proceeded up the channel sounding its fog horn at less than one minute intervals. By approximately 1300 hours the Wilmington Getty had swung with the tide to a position which was different than that initially signalled and in close proximity to the outer perimeter of Ambrose Channel. The master of the Ponce De Leon, learning that his tugs were fogbound at about 1300, decided to leave the channel and anchor in Anchorage Area 25 until weather conditions improved. Just prior to coming abeam of Buoy 18 the master of the Ponce De Leon observed a target (the Wilmington Getty) at the extreme edge of his radar which was set at a two mile scale. At this point the Ponce De Leon was travelling at 10.5 to 11 knots which the court found to be excessive under the weather and traffic conditions which prevailed. The court further found that the master of the Ponce De Leon should have known that the Wilmington Getty was located outside the main shipping channel.
At about 1308-09 the Ponce De Leon had reached Buoy 18 and changed her course to permit her to leave the channel for anchorage. At the same time she was observed on radar by the watch officer of the Wilmington Getty who considered her to be a "threat" to his vessel. He continued to observe the Ponce De Leon on radar until the time of the collision but he made no manual plot of her movements. After the Ponce De Leon turned out of Ambrose Channel there was a radio conversation between the two vessels at about 1311. The watch officer of the Wilmington Getty informed the Ponce De Leon that his vessel was at anchor off Norton Point. The master of the Ponce De Leon replied that his vessel would pass between the Wilmington Getty and Norton Point. At that time the vessels were.5 to.6 miles apart. The district court found that in travelling from Buoy 18 to the point of collision, the Ponce De Leon was proceeding at an excessive rate of speed averaging 12 knots.
The Wilmington Getty was anchored with her port anchor and the anchor chain was secured by a pawl and wheel brake. The anchor could have been "let go" by lifting the pawl and turning the wheel brake which could have been accomplished in about two minutes and would have permitted the Wilmington Getty to drift astern with the current and away from the ultimate point of collision. There was no proof at trial to show that the crew of the Wilmington Getty made any effort to release the anchor brake before the collision.
The master of the Ponce De Leon visually sighted the Wilmington Getty "just seconds" before the collision at a distance of between 25 to 100 feet. He ordered a hard left in an effort to swing the stern of the Ponce De Leon away from the anchored vessel. Had the Ponce De Leon's engines been backed full speed astern, it would not have been able to stop before the collision by reason of its excessive speed. At about 1314 hours the Ponce De Leon collided with the Wilmington Getty causing damage to the Wilmington Getty's bow and the Ponce De Leon's port side.
The court made the following findings as to liability, 409 F. Supp. at 914-15:
39. In the opinion of the court, the Ponce De Leon contributed to the collision ...