Bunge Corporation v. MV Furness Bridge

Citation396 F. Supp. 852
Decision Date23 May 1975
Docket NumberCiv. A. No. 74-1656.
CourtU.S. District Court — Eastern District of Louisiana
PartiesBUNGE CORPORATION v. MV FURNESS BRIDGE, her engines, tackle, apparel, etc., in rem, Furness Withy & Co., Ltd., in personam.

COPYRIGHT MATERIAL OMITTED

John Blackwell, New Orleans, La., for plaintiff.

J. Dwight Le Banc, Jr., New Orleans, La., for defendants.

ALVIN B. RUBIN, District Judge:

The Father of Waters had been navigated by Indian canoe and pirogue, log raft and paddle wheel, submarine and cargo ship, but it had never accommodated anything the size of the M/V Furness Bridge. On January 15 and 16, 1974, this 965 foot vessel, largest ever to enter the river,1 attempted to berth at the Bunge docks on the left descending bank of the river near Destrehan. It nudged a mooring dolphin, causing barely perceptible damage to the vessel, leaving a score mark a few feet long. But the massive force caused an alleged $100,000 in damage to the dolphin. Invoking the presumption, long established in admiralty, that, when a vessel strikes a wharf or other fixed object, which stands mute and defenseless, the vessel is at fault,2 the owners of the dock seek to recover the damages. But the vessel's owners say there is more to the story than that, and the case cannot be decided by simplistic presumptions. Here, then, are the other facts.

I.

Bunge owns and operates a grain elevator and dock. The dock consists of a steel piled wharf with five mooring dolphins, two located upstream of the wharf and three located downstream of the wharf. The total distance between the dolphins is 820 feet. The dolphins are recessed about 2 feet from a line that would run along the face of the wharf, do not serve as breasting dolphins, and do not have fenders. There should be no contact between them and a ship entering or leaving the dock. The positions of the mooring dolphins as well as the fact that they do not have fenders is obvious, at least in day light, as they are in plain view.

Bunge's wharf has an area capable of withstanding breasting forces 470 foot long. If the dolphins were capable of withstanding a breasting force, they would add to the frontage against which a vessel might breast; but, as they stand, they do not. In addition, since their maximum span is 820 feet, they afford no facility for putting out lines fore and aft of the vessel itself.

The wharf was designed only to accommodate vessels under a displacement tonnage of 33,750 tons, mooring at a velocity of ¼ of a foot per second (less than one mile per hour), and approaching the wharf at an angle of 10 degrees or less. By contrast, the Furness Bridge displaced 112,000 tons.

The Furness Bridge is more than twice as long as the wharf; its length and bulk make great care necessary in berthing it, for the unprotected dolphins are not designed to take breasting forces. Elementary geometry demonstrates that a vessel twice the length of the wharf may strike one of the dolphins if it approaches at an angle of 3 degrees, while a 400 foot vessel would have to approach at a greater angle or miss the wharf completely before striking the dolphin.

The Furness Bridge was under the exclusive custody and control of employees of Furness Withy; it was operating under a time charter to Seabridge, who voyage subchartered to Bunge. Both charters contained "safe berth" clauses but the Bunge-Seabridge charter did not incorporate the Furness Withy-Seabridge charter nor did Bunge make any independent stipulations in favor of Furness Withy.

During the daylight hours of January 15, 1974, the Furness Bridge was lying upriver from the Bunge dock. Toward the end of the day, Bunge ordered the vessel into berth that night. The master objected and asked that he be permitted to wait until morning. Bunge replied that, if the vessel was not ready to berth at night, it would be taken off hire until it proceeded. The master then undertook to attempt a berth.

What happened during the berthing is much disputed but I am persuaded that a preponderance of the credible evidence indicates that Bunge gave only the rudimentary instruction about berthing procedures; it informed the vessel that the custom was to drop both anchors upriver of the berth, then drop back and dock alongside. The owner's agent sought no instructions as to whether three or four tugs were needed; having docked at New Orleans with three, having no warning that this number would be insufficient, he ordered three. Hindsight demonstrates that using four would have been much safer.

The Furness Bridge was navigated stern first downriver, using the current, and maneuvered in crab-fashion towards the dock, using lines and cables. When it was about fifty feet off the dock it began to move into the berth. A line was put ashore from the bow to the upstream dolphin. A few minutes later the aft line was put ashore. As the vessel moved in the river the fog increased, obscuring visibility at the river level, although the lights atop the docking facility were clear. The vessel was moving forward and upriver toward the dock, at an angle of less than 5°, when the starboard side of the bow struck the upriver dolphin. At the time the vessel was moving at a slow speed, using considerable caution.

The vessel thereafter completed berthing and was moored alongside fore and aft at 0025 hours on January 16, 1974. However, she had to keep one tug in attendance at all times to keep her bow next to the wharf. In spite of these efforts, she broke away from the wharf at approximately 2020 on January 16. During the time the vessel was alongside, she pulled 4 bollards or cleats off the Bunge facility.

The M/V Furness Bridge redocked a day later in daylight using 4 tugs. This time the docking was without incident.

II.

It is evident that larger vessels require more space and time to turn or to stop, and the exercise of more care in berthing than smaller vessels. But the difference in size creates differences of vast degree. The kinetic energy of a vessel increases proportionally with its displacement multiplied by the square of the speed.3 Hence the force of impact from the larger vessel becomes massively larger.

Angles and distances perfectly safe when a vessel relatively small in relationship to a dock is coming alongside threaten damage when the size of the vessel substantially exceeds the size of the dock. In such instances, if the vessel is ordered to berth at a dock in a certain manner, and damage either to the vessel or dock results, this may be caused by negligence on the part of the vessel or on the part of the berthing master, or both.

Negligence by the vessel in berthing invaribly involves approach speed and angle. Traditionally the vessel encounters an insurmountable handicap: When the mishap occurred the berth was at rest—the vessel was in motion. In the U.S.A. this simple fact has led to a legal presumption of negligence against the vessel, but that does not really solve all problems.4

In order that a tanker may berth with a minimum risk of damage to ship and shore installations, four criteria must be met:

1. The berth must have a sufficiently solid construction, and must be adequately dimensioned to receive a large vessel under defined approach conditions.
2. The berth must not have defects, weaknesses, or previous damages that render the applicable berthing criteria untenable.
3. The berthing instructions and procedures for the particular vessel, established on the basis of the shock absorbing ability of the berth structure, must have been clearly and correctly defined, and the vessel must have been properly notified about the relevant factors.
4. The vessel must receive the necessary assistance and cooperation from the shore that will enable her to meet the berthing requirements.5

Hence, under English law, a quay owner, inviting a vessel to use his quay, must exercise due diligence to ascertain whether it can berth safely without suffering damage.6

III.

A considerable part of the preceding discussion cites as authority a single paper delivered at a Scandinavian maritime law seminar. If this were relied upon as legal authority, its value might well be questioned. But the forces of physics are as universal with respect to matter as logic is with respect to reasoning.

Ships and wharves are old. The legal concepts that govern their relationships, taking into account their respective sizes, are traditional and also ancient. But the concepts must be adjusted to meet the new technology of vessel construction. Supertankers may call for super precautions on the part of those who invite them to berth at facilities designed for lesser vessels. The owners of structures available for public use have a duty to act prudently. The owner knows the design features and shock absorbing capacity of the berth. The owner knows hazards not fully perceived by the mariner even though the physical objects creating them may be in plain sight. A fortiori, the owner knows the hazards not clear at night or in fog.

Bunge asserts that the only relevant issue is whether the size of the vessel compared with the size of the wharf made damage to the wharf the logical outcome of a proper docking. It is impossible to accept this dogmatic statement. The issue is whether the berth owner was negligent under...

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5 cases
  • United States v. Citgo Asphalt Ref. Co. (In re Petition of Frescati Shipping Co.)
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 12 Julio 2013
    ...that the sub-charterer had “violated a legal duty [in tort] whether or not it also had a contractual one.” Bunge Corp. v. MV Furness Bridge, 396 F.Supp. 852, 858 (E.D.La.1975), rev'd,558 F.2d 790 (5th Cir.1977). On appeal, the Court of Appeals for the Fifth Circuit agreed that the issue of ......
  • United States v. Citgo Asphalt Ref. Co. (In re Frescati Shipping Co.), 11-2576
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 16 Mayo 2013
    ...that the sub-charterer had "violated a legal duty [in tort] whether or not it also had a contractual one." Bunge Corp. v. MV Furness Bridge, 396 F. Supp. 852, 858 (E.D. La. 1975), rev'd, 558 F.2d 790 (5th Cir. 1977). On appeal, the Court of Appeals for the Fifth Circuit agreed that the issu......
  • Delta Transload, Inc. v. Motor Vessel, Navios Commander, 86-3296
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Junio 1987
    ...by the James majority, was tried before the July 1975 effective date of the Federal Rules of Evidence. See Bunge Corp. v. M/V Furness Bridge, 396 F.Supp. 852 (E.D.La.1975). 1 The in rem suit against the M/V NAVIOS COMMANDER was dismissed for lack of jurisdiction.2 If the W-701 was attached,......
  • Bunge Corp. v. M/V Furness Bridge
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 2 Septiembre 1977
    ...super precautions on the part of those who invite them to berth at facilities designed for lesser vessels." Bunge Corp. v. MV Furness Bridge, 396 F.Supp. 852, 856 (E.D.La.1975). Taking into account the relative sizes of the ship and the wharf, the district court held Bunge to a stricter sta......
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