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Whitney Steamship Co. v. United States

October 16, 1984

WHITNEY STEAMSHIP COMPANY, AS OWNER OF THE M/V SAM LAUD, PLAINTIFF-APPELLEE CROSS-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLANT CROSS-APPELLEE



Cross-appeals from a judgment entered March 25, 1983, in an admiralty action in the Western District of New York, Edmund F. Maxwell, Magistrate, holding that, of the $1,204,915.89 damage incurred during two groundings of the M/V SAM LAUD in Lake Erie outside Buffalo Harbor on July 4, 1976, 80% should be apportioned to the vessel and 20% to the United States. Affirmed.

Author: Timbers

Before:

TIMBERS and CARDAMONE, Circuit Judges, and TENNEY, Senior District Judge, Southern District of New York, sitting by designation.

TIMBERS, Circuit Judge:

More than a decade and a half ago, then Chief Judge Aldrich of the First Circuit stated that his Court refused to be a party to adding to the Coast Guard's honored motto, "Semper Paratus" (Always Ready), the words "Interdum Prudens" (Sometimes Careful). United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 197 (1st Cir.), cert. denied, 389 U.S. 836, 19 L. Ed. 2d 98, 88 S. Ct. 48 (1967). That is the touchstone of the instant case so far as the principal appeal is concerned in which the United States seeks total exoneration for the conduct of the Coast Guard in this saga on Lake Erie outside Buffalo Harbor on July 4, 1976.

Before us are cross-appeals from a judgment entered March 25, 1983, in an admiralty action in the Western District of New York, Edmund F. Maxwell, Magistrate. The M/V SAM LAUD twice ran aground on July 4, 1976.The Buffalo Traffic Buoy, maintained by the United States Coast Guard, was not a station at the time of the groundings. Whitney Steamship Company, owner of the SAM LAUD, commenced this action for damages, alleging that the founderings were due to the negligence of the Coast Guard by reason of the absence of the buoy.

The action was tried before Magistrate Maxwell pursuant to 28 U.S.C. ยง 636(c) (1982) and Rule 36(B) of the Rules of the Western District of New York, the parties having waived their right to a trial before a district judge and having consented to a trial before a magistrate. The Magistrate found that, although the vessel's negligence was the primary cause of the groundings and that they could have been avoided even though the buoy was off station, the groundings nevertheless would not have occurred if the buoy had been in place and that the Coast Guard was negligent in failing to discover the buoy's absence. The Magistrate apportioned 80% of the damage to Whitney Steamship and 20% to the United States. The parties thereafter stipulated that the total damage sustained was $1,204,915.89. Judgment was entered on March 25, 1983, awarding $240,908.16, or 20% of the total damage, against the United States.

From that judgment, the United States has appealed and Whitney Steamship has cross-appealed. Finding no error, we affirm.

I.

At the time of the groundings, the SAM LAUD was carrying a load of iron ore pellets from Taconite Harbor, Minnesota, to Buffalo, New York, under the command of Captain Albert Whilhelmy, an experienced lake captain. The Third Mate, Alexander McDonald, although an experienced mariner, was making his first trip as an officer licensed by the Coast Guard. The SAM LAUD was equipped with fully functional gyro and magnetic compasses, with equipment for taking visual bearings on shore objects which then could be plotted on a navigational chart to ascertain the vessel's position, and with two marine radars.

McDonald took over the navigation or "con" of the SAM LAUD at 0745 hours on the morning of July 4, 1976. She was then about 9 miles from Long Point, Ontario, and 60 miles west of Buffalo, running at full speed -- approximately fifteen and a half miles per hour -- in heavy fog. McDonald previously had been instructed by Wilhelmy to pursue a course recommended by the Lake Carriers Association, an organization of lake ship owners. The Association recommends certain courses for the purpose of separating upbound and downbound lake traffic, and the limits of these courses are clearly marked on harbor charts. McDonald was supposed to follow the course from Long Point, Ontario, to the Buffalo Traffic Buoy.

The buoy in question is designated in the 1976 U.S. Coast Guard List as the "Buffalo Harbor Traffic Lighted Bell Buoy" No. 400 and is identified in the charts as "(BW) Bell Mo (A) W". We shall refer to it as the "Buffalo Traffic Buoy" or "the buoy" in this opinion. The buoy is black and white vertically striped, 6 feet in diameter and 20 feet in height. It extends 10 feet above the water. It is equipped with a light and radar reflector. It is moored in approximately 40 feet of water and marks the point at which downbound vessels must change their course depending on which entrance to Buffalo Harbor they wish to use. It is removed from its station during the winter months, but had been returned to its station on April 26, 1976.

Using the vessel's radar, McDonald took bearings on Long Point at 0756 hours which indicated that the vessel was "roughly a half mile wide" of the recommended lake course line. He changed course from 71 to 62 degrees, the recommended course line from Long Point to the Buffalo Traffic Buoy.

The SAM LAUD broke out of fog just west of Point Abino. Thereafter visibility was excellent, the winds were light and fixed landmarks were readily visible. Under the prevailing weather conditions, the buoy should have been visible to the pilot of the SAM LAUD from a distance of at least four miles. This is in accordance with the Coast Guard Light List which states that a buoy extending 10 feet above the water should be visible to an observer at water level for a distance of approximately 4 miles. Since the pilot house is significantly above water level, the buoy should have been visible from more than four miles. There was testimony that the buoy should have been visible for seven to eight miles.

McDonald and the wheelsman tried to locate the buoy with binoculars and radar, but the buoy was not sighted. McDonald called Wilhelmy and told him that he had been unable to locate the buoy. Wilhelmy came to the pilot house briefly and instructed McDonald "to head on the buoy when he saw the buoy." No plots of the vessel's location were made on any chart from the time she passed Point Abino. There is no legal requirement that vessels plot their positions on navigational charts, but it is considered good navigation practice to do so.

At 1120 hours, McDonald logged the SAM LAUD's position as 3.2 miles off Point Abino, proceeding at full speed. To steer on the charted position of the Buffalo Traffic Buoy, a starboard turn was necessary at this time. But the log shows that the course was changed to 60 degrees, thus turning the vessel to port. McDonald and the wheelsman continued to search for the buoy, but without success. They continued these efforts until relieved.

At approximately 1140 hours, Wilhelmy returned to the pilot house and assumed control. McDonald informed him that the Buffalo Traffic Buoy had not been sighted. No change was made in the vessel's course or speed. By this time, the vessel was far off the limits of the recommended downbound course that Wilhelmy had intended to follow and in dangerously shallow water. At 1150 hours, the Second Assistant Engineer made a notation in the engine room log of a grounding. This grounding was not noticed in the pilot house. An inspection disclosed that the vessel was holed and was taking on water in the forepeak.

Wilhelmy decided that the vessel was too far to the north; so he changed course to starboard and checked the engines to one-half speed shortly after the first grounding. The pilot house log reflects that speed was checked at 1148 hours (the course changed was not recorded), but there is some inaccuracy in at lease one of the log entries. Although the pilot house log shows that speed was checked at 1148 and the engine room noted the grounding at 1150, uncontradicted testimony showed that the first grounding occurred prior to checking the speed. A second grounding occurred which was felt in both the pilot house and the engine room. The pilot house log recorded this grounding at 1200; the engineer's log recorded it at 1201. Thereafter the vessel entered the harbor and docked.

The Coast Guard conducted a search for the Buffalo Traffic Buoy after the groundings. Neither the buoy nor its mooring chains were found.

There of course was a great deal of other evidence, but that summarized above is believed sufficient to an understanding of the legal issues upon which we rule below in this opinion.

The case was tried from May 12-15, 1981, and on June 10, 1981. The Magistrate filed his decision on September 1, 1982, concluding as we have stated above. He found, among other things, that the vessel had ample time to take corrective action after it would have become obvious to a reasonable person that the buoy was missing. Navigational landmarks other than the Buffalo Traffic Buoy were visible to persons on the vessel's bridge for at least half an hour prior to the groundings. If the vessel's position had been plotted on the navigational chart at any time until immediately before the accident, the course misdirection would have been obvious and the groundings could have been avoided. Nevertheless, the vessel continued to proceed at full speed while a search continued for the buoy. Accordingly, the Magistrate apportioned 80% of the fault to the vessel. He apportioned the remaining 20% of the fault to the Coast Guard. While he found that the ...


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