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A/S D/S SVENDBORG v. UNITED STATES

October 15, 1986

A/S D/S SVENDBORG & D/S AF 1912 A/S, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant; UNITED STATES OF AMERICA, Plaintiff, v. A.P. MOLLER, MOLLER STEAMSHIP COMPANY, INC., A/S D/S SVENDBORG & D/S AF 1912 A/S and THE WEST ENGLAND SHIP OWNERS MUTUAL PROTECTION & INDEMNITY ASSOCIATION (LUXEMBOURG), Defendants


Walker, District Judge.


The opinion of the court was delivered by: WALKER

WALKER, District Judge:

INTRODUCTION

 The instant case arises out of a June 28, 1983 incident where the vessel Peter Maersk discharged about 1,000 barrels of oil into the Cape Fear River of North Carolina. Plaintiffs Svendborg, et. al. ("Svendborg") move for summary judgment, seeking to recover from Defendant United States of America ("the government") $58,969.40 in clean-up and repair costs related to the spill. Plaintiffs seek recovery pursuant to the Federal Water Pollution Control Act, which authorizes government payment of such costs where an accident causing injury to a shipowner results from a cause other than the shipowner's negligence. 33 U.S.C. § 1321, et. seq.

 For the reasons set forth below, plaintiffs' motion is granted.

 STATEMENT OF FACTS

 At about 11:30 p.m. on June 28, 1983, the vessel Peter Maersk was proceeding upstream in calm weather on the Cape Fear River, approximately 15 miles from the Atlantic Ocean. The middle of the upper Lilliput Range of the river, where the vessel was traveling, typically would possess a depth of at least 40 feet during the flood tide which occurred during the vessel's passage. The draft of the Peter Maersk was no more than 37 feet, one inch.

 Suddenly, the vessel struck a submerged cement object, not reported on the depth chart for the Cape Fear River prepared by the Army Corps of Engineers, an agency of the United States Government. A subsequent investigation revealed that the object had punctured a hole in the vessel's hull, allowing river to flood the vessel and oil from two tanks to escape into the river. A few minutes later, the sinking vessel came to rest on the channel floor of the Cape Fear River, composed of sand and mud.

 The following evidence supports this description of the events which resulted in the June 28 oil spill on the Cape Fear River. Jorgen Thau, the vessel master, stated in an affidavit that the vessel was proceeding in the center of the river channel when he "noticed the vessel's foremast move slightly as if the vessel had struck something." Shortly thereafter, the vessel grounded on the river channel floor and a crew member discovered the hole resulting in the oil spill. Thau further swears that the draft of the vessel was no greater than 37 feet, one inch, and that the depth of that part of the Cape Fear River where the vessel was proceeding was about 40 feet during the flood tide in progress when the collision occurred,

 An affidavit filed by Esso Clemmons, a Cape Fear State River Pilot who was guiding the Peter Maersk at the time of its collision with the submerged object, corroborates many of the specific facts stated in Thau's affidavit. Clemmons, like Thau, states that the draft of the Peter Maersk was no more than 37 feet, one inch, and the center channel of the Cape Fear River where the collision occurred typically would be at least 40 feet deep during a flood tide. Clemmons' affidavit describes the collision as follows: "The ship was on the center line of the channel and the bow touched an unknown object on the bottom."

 A brief Coast Guard report filed shortly after the collision reported the presence of "a 6 to 8 ft. lump in channel" at the site of the collision. The report suggested that authorities place warning markers around the object and alert vessel pilots of its presence.

 The accounts of Thau and Clemmons receive further support in a more detailed Coast Guard report, dated November 1, 1983. The Coast Guard report verifies the draft and depth measurements appearing in the Thau and Clemmons affidavits, stating that prior to the collision "approximately 3 feet 8 inches of water was under the vessel." The report states the oil spill occured after "there was impact from a submerged object on the vessel's port side underwater hull. . . of sufficient force to puncture the vessel's bottom plate. . . . ." The report described the submerged object as "sharp and hard," and indicated that the vessel's contact with the object "was sudden and without warning. . . . " The report thus found that "there is no actionable misconduct, inattention to duty, or negligent or willful violation of law or regulation on the part of licensed or certificated persons. . . ."

 In addition, plaintiffs received a report prepared by National Testing Laboratories, Inc., a metallurgy-testing facility. The report examined rock fragments removed from the hole through which the oil escaped from the Peter Maersk into the Cape Fear River, concluding that these fragments were composed of cement, a compound not typically found on the floor of the Cape Fear River.

 Defendant presents no eyewitness accounts or empirical evidence inconsistent with the account described above. Defendant's single affidavit, signed by Lawrence B. Brennan, an attorney for defendant, presents only speculations as to possible alternate scenarios under which negligence on the part of the crew or owners of the Peter Maersk resulted in the spill.

 Plaintiffs filed a complaint in the instant action with this Court on June 26, 1985. The government filed a related action seeking recovery from various third-party defendants, which this Court consolidated ...


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