Appeal from a judgment of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, holding United States not liable in connection with the grounding of a barge on a reef in the Hudson River. McAllister Bros. v. United States, 709 F. Supp. 1237 (S.D.N.Y. 1989).
Oakes, Chief Judge, Pierce and Rubin,*fn* Circuit Judges.
This appeal is by the losing plaintiffs in an action against the United States for $3.5 million in damages resulting from a grounding of their barge on Diamond Reef in the Hudson River, New York. Judge Charles H. Tenney of the United States District Court for the Southern District of New York held that the cause of the grounding was not due to any misrepresentation or omission in navigational publications, to the scale of the charts involved, or to the mislocation of the buoy marking the reef, but rather was due to the inexperience of the mate who was piloting the tug pushing the barge and his fear of running up on the western shore of the river in the shadow of the bluffs in that area. See McAllister Bros. v. United States, 709 F. Supp. 1237 (S.D.N.Y. 1989).
On appeal it is argued that the mate relied -- with disastrous consequences -- on the buoy, its location, its markings, its propriety, and the presumed competence and good faith of the Coast Guard and the United States Government, and that the plan and actions of the Coast Guard and other governmental agencies charged with preserving the safety of navigation in the Hudson River were ill-conceived and "callously indifferent" to the dangers of navigation. Indeed, we are asked to "conduct a trial de novo and decree liability of the United States to plaintiffs" or, alternatively, to reverse and remand. We decline the invitation and affirm the judgment of Judge Tenney.
Judge Tenney made detailed findings of fact, familiarity with which as reported at 709 F. Supp. at 1238-45 will be assumed. For our purposes we need only recount that the Barge McAllister #80 was being pushed by the tug Marjorie McAllister, which was secured snugly into a notch of the barge, making both vessels an integrated tug and barge unit 445 feet long. The barge was loaded with approximately 8,100 barrels of gasoline and drew twenty feet forward and aft; the tug drew twelve feet forward and fourteen feet aft. The mate of the tug in charge of the navigation of the flotilla at all material times was Anthony J. McAllister, III, who had received a license as third mate in 1981 and joined the Marjorie McAllister as mate in July 1982. Prior to the grounding on January 9, 1983, he had participated as mate in only one trip up the Hudson River to Albany. On that trip, he had not been on watch when the flotilla passed the Diamond Reef area, so that this was the first time he himself was navigating a tug-barge flotilla in the area of Diamond Reef.*fn1
The mate had relieved the captain at 1750 hours when the flotilla was in the vicinity of the Tappan Zee bridge. The weather was clear. A seven-inch screen Decca radar with eight scale options at varying distances was operational and in use. After examining the charts for about twenty to thirty minutes, but without plotting courses or computing distances, the mate proceeded at nine knots through the water with a one-knot flood current,*fn2 making good a speed over the ground of ten knots toward Diamond Reef. The Hudson River in the relevant area is about 620 yards wide. On Chart 12347 the Diamond Reef area is shown in the lowest left-hand panel about one mile north of the beginning or lower part of the chart on a scale of 1:40,000. Diamond Reef is a natural obstruction near the center of the river and is charted as being about 100 yards wide with a five-foot sounding inside a three-fathom or eighteen-foot curve. The words "Diamond Reef" are printed on the chart next to the blue tinted area denoting the reef, and the chart shows that between the westerly edge of the reef and the westerly shore of the river there is a channel for a distance of at least 300 yards and another channel approximately 200 yards wide on the easterly side of the reef. A survey of the reef shows that at a twenty-foot curve, it is 250 feet long east to west, with 930 feet in distance from that depth curve to the westerly shore.
The reef, like two others in a six-mile stretch of the river, is, or at the time of the grounding was, marked with a single floating aid to navigation, a buoy to its south. This buoy was attached to a concrete sinker with a chain, the length of which permitted the buoy's ground tackle to withstand the pressures of the current, the wind, and wintertime ice. The Coast Guard Light List informed the mariner that during winter months the Diamond Reef buoy was replaced by an unlighted nun buoy. The Diamond Reef buoy was painted with red and black stripes, the uppermost being red, thereby designating the buoy as a bifurcation or obstruction buoy, signifying a danger to navigation or an obstruction in the channel, with the preferred channel to be passed in accordance with the upper stripe. Judge Tenney found that the buoy sinker was positioned approximately 100 feet to the south of and to the center of the shallower part near the twenty-foot depth curve of Diamond Reef, the sinker being five feet square and three feet thick, made of concrete, and weighing approximately 12,500 pounds. He also found that because the current in the river runs north and south, the buoy would move generally in a north-south direction with a minimal east-west movement of a few yards.
The Coast Pilot, a Coast Guard publication, describes Diamond Reef and states that the west side of the river should be favored. Judge Tenney found that all navigators who had been on the river and testified referred to the use of the westerly shore of the river as the guide for the safe passage between the reef and the shore, and that to build an ice-resistant warning structure on Diamond Reef would cost about $600,000.
Traffic statistics for the years 1971-74 that were before the Southern District in the case of Tug Ocean Prince v. United States, 436 F. Supp. 907, 915 (S.D.N.Y. 1977), rev'd in part, aff'd in part, 584 F.2d 1151 (2d Cir. 1978), cert. denied, 440 U.S. 959, 99 S. Ct. 1499, 59 L. Ed. 2d 772 (1979), showed approximately 246,000 upbound and 250,000 downbound transits of the river during that four-year period. In the thirteen years prior to 1983 over 1.2 million vessels and tug/barge flotillas passed the Diamond Reef area during which time the only marking of the reef was with one buoy to the south of the reef as marked on January 9, 1983.
It must be pointed out, however, that before the date of this grounding the Coast Guard had considered marking Diamond Reef differently. On November 16, 1979, the commanding officer of the Coast Guard Marine Safety Office in Albany, New York, sent a communication to the commander of the Third Coast Guard district in which he referred to three recent vessel casualties in the vicinity of Diamond Reef. The communication stated that the incidents revealed "a disturbing pattern of navigation on the part of operators of uninspected towing vessels," since in two of the three casualties the operators passed the buoy "within fifty feet." He suggested that the marking of Diamond Reef be reevaluated. Only one of the three casualties, however, involved a northbound vessel leaving the Diamond Reef buoy to starboard -- the case of the tugboat Katherine Tilton, which grounded on the reef, having passed the buoy within fifty feet of her starboard side. The second casualty involved a loss of steering, and the other involved a ship forced off course to the east of the buoy by another vessel. In December 1979, the commander of the Third Coast Guard district wrote to the commanding officer of the Coast Guard cutter Red Beech to suggest the possibility of establishing another lighted buoy directly to the north of the present buoy on the opposite side of the reef to alert vessels approaching from the north, relocating the present buoy to a point at the west end of the reef, changing the color of the present buoy to solid red with a flashing red light, and finally installing an orange-and-white horizontally banded, special purpose buoy at the location of the present buoy. Another suggestion involved stationing a red radar reflective nun buoy on the western extremity of the reef, a black radar reflective can buoy on the eastern extremity, and an unlighted junction buoy at the northern, upstream end. In February 1980, however, the commander of the Third Coast Guard District wrote the Coast Guard Marine Safety Office that he and his staff had reached agreement that "the present system is the most logical one" and that the addition of any other buoys in the area would tend to confuse mariners, confine traffic to one side or the other of the reef, and possibly set a precedent for other areas being similarly marked. From 1975 to 1982 the only reported grounding on Diamond Reef due to navigational error was that previously stated of the tugboat Katherine Tilton.
On January 9, 1983, Mate McAllister observed the Diamond Reef buoy by radar from a distance of one-and-one-half miles and saw it visually from a distance of one-half mile. The radar scope also showed both shorelines of the river from a distance of one-and-a-half miles, so he had ample opportunity to gauge the distance between the buoy and the shore. At the speed he was going through the water, he had six minutes to gauge the distance between the westerly shore and the buoy when he was one mile away. He had ascertained that there was no other traffic in the area. The mate testified that he had intended to pass the obstruction buoy by two or three times the width of the barge, i.e., by 140 to 210 feet. He also testified that the distance between the buoy and the western shore was approximately 400 yards and that he was trying to split the distance and stay 200 yards off the western shore. Unfortunately, he did not do so. He himself determined by radar after the grounding that he was 300 to 400 yards off the westerly shore. At the time of the grounding, he said, the buoy was about 150 feet off the starboard bow.
At the time of the accident, McAllister Brothers, Inc., had little doubt about who was to blame. The manager of seagoing personnel and loss prevention stated in a letter of admonition to the mate dated January 21, 1983, that the striking of the reef was due solely to the mate's negligence. The mate was suspended from duty until March 1983. Indeed, at the Coast Guard license hearing the mate admitted a certain degree of culpability by saying that he had let down his peers, his fellow employees, ...