The opinion of the court was delivered by: TENNEY
It is said that time and tide wait for no man.
This is a case where a ship captain did not wait for the time or the tide and recklessly ran his ship, the M/V QUEENS BAY ("QUEENS BAY"), aground. The owner of that ship alleges that the negligent seamanship of defendant's ship, the CURTIS REINAUER ("CURTIS"), was the cause of the grounding. Specifically, the owner alleges that, in the course of violating provisions of the Navigation Rules for Harbors, Rivers, and Inland Waters Generally, 33 U.S.C. §§ 151 et seq. (1976) (current version at 33 U.S.C. §§ 2001 et seq. (1982)), the CURTIS crowded the QUEENS BAY. Since the Court finds that the pilotage and seamanship of defendant's ship were not causative factors in the grounding, plaintiff cannot prevail.
Based on the testimony and evidence presented at a bench trial held between June 1 and June 22, 1983, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).
Plaintiff A.F.A. Tanker Corp. ("A.F.A."), a New York corporation, was on December 14, 1979 the owner of the QUEENS BAY, a coastal tanker of 418 gross tons, overall length 185.5 feet, breadth 28.4 feet, depth 11.8 feet, with a rated horsepower of 1000. On that date she was laden with approximately 7000 barrels (approximately 291,000 gallons) of No. 2 heating oil and her drafts were approximately 11 feet forward and 11 feet 6 inches aft. Joint Pre-Trial Order, 81 Civ. 1165 (CHT), filed May 31, 1983, P3(a)(2). Her master was Captain Alfred Babich ("Captain Babich"), the crew consisting of a mate, Mike Belic ("Belic"), an engineer, and two deckhands.
At all times pertinent hereto the QUEENS BAY was in the company of the M/V PRINCESS BAY ("PRINCESS BAY"), a coastal tanker, overall length 200 feet, breadth 28 feet, a cargo capacity of 7600 barrels of gasoline or No. 2 fuel oil, and a draft of approximately 11 feet forward and 11 feet 6 inches aft. Her captain was Captain William Gillikin ("Captain Gillikin") and her crew consisted of a mate, an engineer and four deckhands. See Trial Transcript ("Tr.") at 24-29. The PRINCESS BAY was owned by Eastern Transportation which in turn was owned by John Alban, the owner of A.F.A. Thus the QUEENS BAY and PRINCESS BAY were under the same ownership.
The QUEENS BAY on that date was engaged on a voyage from the Exxon refinery at Constable Hook, Bayone, New Jersey, to Gulf Industries Petroleum Facility in Mount Vernon. The PRINCESS BAY was engaged on a voyage from the B. P. Terminal near Staten Island to Power Test in Mount Vernon. Thus, both ships were travelling via Eastchester Bay and the Hutchinson River.
The Location of the Events at Issue: Geography and Hydrography
Eastchester Bay is situated between City Island to the east and Throgs Neck to the west and has general depths of 7 to 10 feet until one reaches a dredged channel about 1/2 mile west of Belden Point, the northernmost part of City Island. This dredged channel leads northward through Eastchester Bay and thence into the Hutchinson River to the head of the river navigation at the City of Pelham, some 4.3 miles above the channel entrance off Belden Point. "The shores of the Bay are fringed with boulders, and there are many shoals; caution is essential, especially where the depths are not more then 3 feet greater than the drafts." Defendant's Exh. C (United States Coast Pilot 2, Fourteenth ed., Jan. 1979), at 201-202; Plaintiff's Exh. 1. The depths of the dredged channel from 1978 to October 1977 were 6 feet from channel entrance to the Hutchinson River Bridge, thence 4-1/2 feet to the Boston Post Road Bridge, and thence 3-1/3 feet to Pelham.
There are numerous rocks and shoals on both sides of the channel near the entrance to the Hutchinson River. Defendant's Exh. C.
Two bridges are encountered on entering the Hutchinson River from Eastchester Bay on an inbound or northerly course: the first is the Pelham Parkway bascule bridge ("Pelham Bridge"), some 1.9 miles from the channel entrance off Belden Point; and the second, the Amtrak lift bridge ("Amtrak Bridge"), one-tenth of a mile north of the Pelham Bridge. These two bridges, together with the New England Thruway Bridge, a bascule bridge just south of Pelham, are equipped with VHF-FM radiotelephone channels for Channels 13 and 16. Id.
Since the Eastchester Bay is a shallow area with mean low water reported in feet rather than fathoms, tide is an extremely important factor in pilotage. Commercial vessels such as the QUEENS BAY attempt to enter the Hutchinson River on a rising tide, unload and exit on a falling tide. Otherwise the ship might be caught upriver by the falling tide and immobilized until the next tide.
On December 14, 1979 high water at Willets Point was at 8:06 P.M. and 8:08 P.M. at Throgs Neck, and the height of the tide in Eastchester Bay was 6.1 feet. See Tr. at 145-146; Plaintiff's Exh. 1; Defendant's Exh. B (U.S. Dep't of Commerce Tide Tables 1979 -- East Coast of North and South America).
It is undisputed that both the QUEENS BAY and PRINCESS BAY had a draft 11 feet forward and 11 feet 6 inches aft. It is also clear that on a 6.1 foot tide traversing areas at hight ide with soundings of 5 feet or less a draft of less than 11.1 feet forward and 11.5 feet aft would be required. Indeed, the United States Coast Pilot 2, Fourteenth Edition, as on issue on December 14, 1979, advises that "caution is essential, especially where the depths are not more than 3 feet greater than the drafts." Defendant's Exh. C, at 201. Tidal currents have a velocity of 1.5 knots at Pelham Bridge, id. at 202; high tide occurs at the bridge one hour ahead of high tide at Mount Vernon. Tr. at 75.
Procedures Followed by Inbound and Outbound Vessels
Despite the fact that the dredged channel appears on official government charts, see, e.g., Plaintiff's Exh. 1, it was not used in 1979 or for many years prior thereto by commercial vessels of the size involved herein. The channel is only 150 feet wide which makes passage or overtaking by inbound and outbound vessels difficult and maneuvering a problem. More important, there had been bad shoaling which had made the channel impassable in certain places.
In lieu of the dredged channel, pilotage for many years had been effected by both inbound and outbound vessels through a "back-door" course. The inbound course in Eastchester Bay ran north from Buoy No. 46A to Buoy No. 2 (Cuban Ledge), to Buoy No. 4, and then to Buoy No. 5, a black can buoy situated off the southwest corner of a large garbage dump area which dump rose some 300 feet above the water level. Plaintiff's Exh. 1, marked "Dump". At Buoy No. 5, a course was laid on Buoy No. 11, some 700 yarda away. Buoy No. 11 is a green-flashing buoy marking the west wide of the dredged channel. Inbound ships would turn to part at Buoy No. 11 and pass black can Buoys No. 13 and 15 to port to reach the Pelham Bridge. Outbound vessels would turn to starboard at Buoy No. 11 and head for Buoy No. 5 or at night would steer for the flashing red lights on the tower of the Whitestone Bridge on Old Ferry Point which were on range with Buoy No. 5.
With the abandonment of the "dredged" channel as a means of ingress and egress, the topography and hydrography of Eastchester Bay and the Hutchinson River dictated certain procedures to be followed by inbound and outbound vessels. The factors which dictated these procedures were (1) the narrow breadth and depth of the river itself, (2) the two bridges which had to be raised to permit the passage of ships, and (3) the depth and bottom conditions of the approaches to the river.
Since the river was narrow there were only two places where ships could pass one another, both of which were north of the Amtrak Bridge at Goose Island and at Conner Street. See Plaintiff's Exh. 1. Further, it was impossible to pass south of the Amtrak and Pelham Bridges in the dredged channel. Indeed, the channel itself was not passable for outbound ships beyond light Buoy No. 11. As noted supra, the customary course for outbound ships was from Buoy No. 11 to Buoy No. 5 and from Buoy No. 5 to Buoy No. 4. Due to the shallow conditions existing it was not customary for outbound ships to overtake and pass another ship until after passing Buoy No. 4. That the same course was followed in reverse order by inbound ships is supported by the weight of the evidence, notwithstanding the fact that the captain of the PRINCESS BAY suggests an alternative inbound course between Buoys No. 4 and No. 11 to the west of the outbound course described above. See Plaintiff's Exh. 2.
Outbound and inbound traffic was also restricted by the necessity of bridge openings. The opening of the Amtrak Bridge was tied in with railroad operations; the Pelham Bridge was affected only by vehicular traffic. Accordingly, the Amtrak Bridge controlled the openings of both bridges which were only one-tenth of a mile apart and they normally operated in tandem.
Before commencing the outbound voyage, a ship upriver in the Hutchinson River must make a "security" call to the Amtrak Bridge on Channel 13 (which is monitored by both bridges and by inbound and outbound ships) identifying the ship (and tow, if any) and whether light or loaded. The Amtrak Bridge will respond and advise the outbound bessel the time when the bridge will open for passage. This notice permits the vessel to adjust her speed accordingly.If more then one vessel is outbound at or about the same time, they will transit the bridges as a unit. Because of the conditions in the river and approaches already described, outbound vessels are given priority over inbound vessels. Tr. at 382-387. This priority extends beyond the bridges and through the approaches to the bridges to a point at least beyond Buoy No. 5 and between that buoy and Buoy No. 4.There is substantial evidence in the record that the appropriate area to pass is between Buoys No. 4 and No. 2.
The procedures to be followed by inbound ships have been clearly established. The initial holding area is between Buoy No. 2 and Buoy No. 4 which are approximately 1.15 and .75 nautical miles respectively from Buoy No. 11. In this area ships will, depending on their draft, wait for indication from watermarks in the area that the tide is sufficient to permit proceeding ahead or, once the tide is sufficient, will call the Pelham Bridge on Channel 13 to secure permission to proceed upstream. The bridge will respond and advise whether they are any outbound vessels, in which event the inbound vessels must hold or, absent such outbound vessels, the bridge will advise the inbound vessels of the time the bridge will be open for inbound traffic and for how long. See generally 33 C.F.R. §§ 117.1b(d), 117.155 (1983).
An overview of the area of the Bay where the alleged "crowding" occurred is found in Defendant's Exhibit A which shows Buoys No. 2, No. 4 and No. 5 leading into the northernmost section of the Bay, together with Buoys No. 9 and No. 11 which are situated along with west or southwest border of the dredged channel. Just to the west of Buoy No. 5 and extending to the north is a huge area constituting the city dump hereinbefore referred to.See Plaintiff's Exh. 1. The increasing weight of this dump has pressed the soil beneath out under the bulkheading and caused filling and a raising of the bottom in the area to the east of the line of the bulkhead. Thus the area 25 feet or more to the west of a line drawn from Buoy No. 5 to Buoy No. 11 is, despite the charted depths, not navigable by vessels such as those involved herein. Buoy No. 9, to the northeast of Buoy No. 5 and between the dump and Turtle Cove, ...