The opinion of the court was delivered by: SWEET
The GTS ADMIRAL WILLIAM CALLAGHAN (the "CALLAGHAN"), her owner and underwriter seek damages by way of a third-party claim against the third party defendant McAllister Bros., Inc. ("McAllister") arising out of an allision on May 13, 1979 when the CALLAGHAN struck the east bulkhead of the Military Ocean Terminal (the "Terminal"). On the findings and conclusions set forth below, the third-party claim will be denied, and judgment will be entered dismissing the third party complaint with costs and disbursements.
The complaint of the United States against the CALLAGHAN was filed on November 1, 1983, asserting damages to the Terminal in the amount of $ 359,000 resulting from the allision. This claim was settled on December 13, 1985 for $50,000 to be paid on behalf of the CALLAGHAN by her owner and underwriter, a settlement which was approved by the United States on March 21, 1986.
The third party complaint by the CALLAGHAN against McAllister, which had provided docking and piloting services, was filed on February 2, 1984. Discovery was had and a bench trial was held on March 31 and April 1, 1986, with final submissions made on April 28, 1986.
The United States owns the Terminal, a shoreside installation in Bayonne, New Jersey, in the Port of New York.
CALLAGHAN, an ocean-going vessel, was built in the mid 1960's by Sun Shipbuilding and Dry Dock Company ("Sun") pursuant to a construction contract with Sunexport Holdings Corporation ("Sunexport Holdings"). She is 550' in length, powered by gas turbines, producing 63,000 horsepower per shaft, greater than that of a World War II heavy cruiser. She was bareboat chartered by Sunexport Holdings to Sunexport, a joint venture, which in turn time chartered the ship to the United States pursuant to a charter party dated October 29, 1965. The time charter states that the CALLAGHAN was built specifically for the performance of the October 29, 1965 charter party and provides that Military Sea Transportation Service ("MSTS") pay for all tug and pilotage services and that the charterer shall indemnify MSTS for any claims. The CALLAGHAN has been trading regularly with the Port of New York since her construction and has been in and out of the Port since 1979.
McAllister, a New York corporation having an office and principal place of business in the City and State of New York, is engaged in the business of towage and transportation.
On May 13, 1979, in reduced visibility due to fog, McAllister's tug, ERIC McALLISTER, (the "ERIC") with Captain Leslie W. Harris ("Harris") aboard, was awaiting the arrival of the CALLAGHAN in the upper bay of New York harbor in the vicinity of the Nos. 22 and 24 buoys, located on the Brooklyn side of the main ship channel across from the Staten Island ferry slips. Also waiting was McAllister's tug MARK McALLISTER (the "MARK"). Harris testified that it was customary for tugs to wait for vessels bound for the Government's Military Ocean Terminal in the vicinity of the Nos. 22 and 24 buoys. Harris was employed by McAllister as a tug captain and also was a docking pilot duly licensed by the United States Coast Guard.
ERIC received a VHF radio call from CALLAGHAN informing the tug that the ship was off the Military Ocean Terminal, past the location where the tug had been waiting. Both tugs then got underway and came up to the CALLAGHAN, which had already turned out of the main ship channel and into the approach channel to the Terminal, in the area bound by the Nos. 1, 2, 3 and 4 buoys. Harris boarded the CALLAGHAN from the ERIC and proceeded to the bridge. The tide was flooding at the time, and visibility was reduced due to fog. The MARK proceeded to CALLAGHAN's port bow and placed a head line up on the vessel and the ERIC lay off the vessel awaiting orders, as was requested by Harris before he boarded the vessel.
When Harris entered through the starboard door of the navigation bridge of the CALLAGHAN, which was at the after end of the ship, he was met at the door by the harbor pilot, Lyn Vanderwater, who informed Harris that the vessel was dead in the water and asked Harris to be relieved. The CALLAGHAN's watch officer logged Harris' arrival on the bridge at 0708. On the bridge with Vanderwater when Harris arrived was the quartermaster located at the helm and the watch officer located at the engine order telegraph. The master was outside on the port wing of the bridge. Harris responded to Vanderwater to "wait a minute" until he could check things out, and he walked to the port wing where he greeted the master. Before Harris relieved Vanderwater, Vanderwater apparently ordered the port engine half astern and full astern at 0710, with the starboard engine stopped until 0711 when the port engine was stopped. Harris was not given this information by Vanderwater.
From the port wing, Harris observed the No. 3 buoy off the vessel's port beam and Robbin's Reef Light and looking forward saw the outline of the shore. Harris then proceeded from the port wing to the radar located on the starboard side of the bridge where Vanderwater was located and observed on radar the land mass ahead with the vessel generally head on to it. He asked Vanderwater if he would remain on the radar. Harris then relieved him of the conn and returned to the port wing to rejoin the master where they remained side by side. At this time, the fog closed in, apparently rolling in from the port side, and visibility reduced to no more than a ship length. Harris was able to see the outline of the bow of the CALLAGHAN and MARK on the vessel's port bow, but nothing else.
The CALLAGHAN's chief mate, John Dorozynski, was at the bow and was in radio contact with the master. Dorozynski was asked by the master to report any sightings. The MARK was in handheld radio contact with Harris on a different frequency. Meanwhile the MARK, positioned on the vessel's port bow, was ordered to come half-ahead on her engines, to bring the CALLAGHAN's bow to starboard to enter the north channel at the Terminal. The MARK was observed complying with this command.
Harris fixed the CALLAGHAN's position only visually, did not request or obtain any radar ranges or bearing, did not note the ship's heading, and neither observed or directed a plot of the ship's position and course speed. Harris' first engine command was dead slow ahead, logged in the deck bell book at 0712 hours. Under the CALLAGHAN's acceleration tables she would travel 600' at this speed in three minutes and require two minutes at full astern to stop. About two and one-half minutes later, the engines were stopped. The chief officer on the bow still was not able to see land due to the severely restricted visibility nor did the MARK. Approximately one-half minute later, the chief officer reported sighting land ahead and told the bridge to go full astern. Harris immediately ordered full astern, logged by the watch officer at 0715, one-half minute after having stopped both engines. The engine room executed first a slow astern, then half astern, and finally full astern which was logged at 0714 in the ...