Empire Transport, Inc. v. U.S., 344
| Citation | 524 F.2d 1 |
| Decision Date | 02 July 1975 |
| Docket Number | No. 344,D,344 |
| Parties | EMPIRE TRANSPORT, INC., owner of the STEAMSHIP POTOMAC, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 74-1735. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Joseph C. Smith, New York City (Burlingham Underwood & Lord, New York City, on the brief), for plaintiff-appellant.
Janis G. Schulmeisters, Atty., Admir. & Ship. Section, Dept. of Justice, New York City , for defendant-appellee.
Before SMITH, OAKES and TIMBERS, Circuit Judges.
Empire Transport, Inc., owner of the SS Potomac, appeals from a judgment entered March 26, 1974 after a four day bench trial in the Southern District of New York before Harold R. Tyler, Jr., District Judge. The judgment dismissed Empire's complaint which invoked the admiralty and maritime jurisdiction of the district court pursuant to the Suits in Admiralty Act, 46 U.S.C. §§ 741-52 (1970), and sought to recover $1.5 million damages from the United States resulting from the stranding of the Potomac on two large, submerged concrete blocks in Casablanca Harbor, Morocco, on February 26, 1972.
The essential issue on appeal is whether the district court was correct in holding that the stranding of the Potomac resulted from the negligence of her master and watch officer in approaching the harbor and not from the failure of the government's Defense Mapping Agency (DMA) to indicate on its chart of Casablanca Harbor and on other navigational aids the extent of the submerged portion of a jetty and the presence of underwater obstructions where the Potomac stranded. We affirm.
On the date of the stranding, the Potomac, a bulk cargo vessel 572 feet long with a 75 foot beam, was loaded with a full cargo of wheat to a draft of 33 feet, 5 inches, forward and aft as she approached Casablanca Harbor. The weather was clear. The seas were calm. The wind was out of the southwest at about two knots. There was a slight southwesterly swell at about three to four feet. High tide was at 1244 hours. The Potomac had sent to her agent at Casablanca a marine telegram stating her estimated time of arrival. She was notified in return that a harbor pilot would board the vessel at buoy CA5 to guide her into the harbor. The vessel was advised to stay in contact with the pilot station by radio telephone. She did not do so. As she approached buoy CA5, she changed course and headed to her starboard to avoid colliding with an outbound vessel and local sailboats. The Potomac's watch officer checked the harbor chart which had been prepared by the DMA. He reported that the water was of sufficient depth to leave the buoy to port. As the vessel passed between the buoy to its port and a jetty to its starboard, she stranded on two large, submerged concrete blocks two-tenths of a mile off the visible end of the jetty. The jetty was known as the Jetee DeLure.
The DMA harbor chart which the watch officer had checked had been revised in 1966 and was corrected to December 11, 1971 through a Notice to Mariners. The Potomac also had aboard Sailing Directions for Morocco which had been published by the DMA and were updated as of March 14, 1970 with the latest available corrections. These Sailing Directions were designed to supplement the harbor chart and had been read by the watch officer. Also aboard was the well-known handbook for mariners, Bowditch, American Practical Navigator (1958 ed.), and a DMA approach chart.
We turn first to the district court's findings of fact upon which it concluded that the Potomac was negligent. Findings in this type of case " involve mixed questions of fact and law and are subject to more stringent appellate review than findings of fact covered by the 'clearly erroneous' test." Nye v. A/S D/S Svendborg, 501 F.2d 376, 380 (2 Cir. 1974), cert. denied, 421 U.S. 972 (1975). See Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776-78 (2 Cir.), Cert. denied, 385 U.S. 835 (1966); Falletta v. Costa Armatori, 476 F.2d 316, 318 (2 Cir. 1973). Such findings, however, are entitled to great weight and will not be set aside unless they reflect a manifestly incorrect conception of the law on the part of the district court. In re Marine Sulphur Queen, 460 F.2d 89, 97-98 (2 Cir.), Cert. denied, 409 U.S. 982 (1972); Cleary V. United States Lines Co.,411 F.2d 1009, 1010 (2 Cir. 1969). Measured by this standard, we shall consider the district court's essential findings with respect to the vessel's alleged negligence.
Empire claims that the district court erred in finding that the Potomac was negligent in leaving buoy CA5 to port, i. e. in proceeding between the buoy and the visible end of the Jetee DeLure. 1 More specifically, the owner of the vessel argues that her navigators were correct upon entering Casablanca Harbor in leaving to port a black buoy 2 depicted as such on an American chart.
Under the American buoyage system, it would have been proper upon entering the harbor to leave a black buoy to port. But the Moroccan buoyage system in 1972 was just the opposite: it required that a black buoy be left to starboard upon entering a harbor.
Charts show the colors of buoys, but not the applicable buoyage system. It is common knowledge among mariners that different buoyage systems are used around the world. Bowditch states that "(The American buoyage system) does not always apply to foreign waters".
Captain Hansen, the Potomac's master, knew that in most European countries, including France, the applicable buoyage system called for leaving a black buoy to starboard upon entering a harbor. He knew that Morocco had been a French colony. But although he and his watch officer, Hunziker, had never put in to Casablanca Harbor before the day of the stranding, neither attempted to find out what buoyage system applied.
There was evidence that the Potomac's course originally had been shaped up with CA5 fine on the starboard bow. Hunziker testified that initially they intended to leave CA5 to starboard. And there was evidence that Hansen had erased and rewritten certain of the ship's records which had indicated the course originally intended with respect to CA5. This and other matters of credibility of course were peculiarly within the province of the trial court. Interocean Shipping Co. v. National Shipping and Trading Corp., 523 F.2d 527 (2 Cir. 1975); In the Matter of Grace Line Inc., 517 F.2d 404 (2 Cir. 1975); Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 980 (2 Cir. 1942).
Hansen and Hunziker, moreover, readily could have ascertained the buoyage system for Casablanca Harbor by consulting the pilot charts which showed the buoyage systems for various countries, including France and Morocco. Such charts were aboard the Potomac. All else aside, the applicable buoyage system could have been determined very easily by contacting the pilot station by radio telephone. But the Potomac failed to do so.
We hold that the district court clearly was correct in finding that the Potomac's master and watch officer were negligent in failing to ascertain and to heed the buoyage system for Casablanca Harbor, and that such negligence was a proximate cause of the stranding.
The Potomac also was negligent in failing to take aboard a harbor pilot to guide her into the harbor.
Such pilotage was compulsory in the area where the stranding occurred. The Potomac was proceeding generally on a southerly course in entering the harbor. The DMA's Sailing Directions which had been read by Hunziker state that pilotage is compulsory south of 33o 37' 40 north latitude. 3
Moreover, the Potomac ignored specific instructions by cable and radio telephone to keep in contact with the pilot station and to await a pilot before entering the harbor. Such instructions were sent on the day of the stranding at 1103 hours, at 1310 hours and at 1515 hours. The stranding occurred at 1550 hours. Particularly in view of the fact that both the master and the watch officer of the Potomac were unfamiliar with the harbor, such pilotage directions and specific instructions should have been strictly observed. The Potomac should not have continued south of the parallel into the harbor without a pilot. 4
We hold that the district court correctly found that the Potomac was negligent in failing to have a harbor pilot aboard to guide her into the harbor, and that such negligence was a proximate cause of the stranding.
The Potomac also was negligent in the manner in which her master and watch officer used or disregarded the charts and Sailing Directions which were aboard.
There were three charts aboard of varying degrees of relevance in approaching Casablanca Harbor:
(1) Approach chart (No. 51220).
(2) Harbor chart (No. 51222).
(3) Ocean depth curve chart (No. 51013).
The approach chart showed among other things the approach to Casablanca Harbor along the line of buoys CA1 (3 miles out from the inner harbor), CA3 (1.5 miles out), and CA5 (at the entrance to the harbor). This chart showed the entrance range course starting north and to the east at 228 degrees true, and then entering the harbor south and east of buoy CA5.
The harbor chart, which was on a larger scale than the approach chart, did not show buoys CA1 and CA3. It showed only buoy CA5 and the entrance range course of 228 degrees true.
The ocean depth curve chart was on a much smaller scale than either the approach chart or the harbor chart. It showed the northwest coast of Africa in general, but nothing about the approaches to Casablanca Harbor. It did not show any of the approach buoys, nor the entrance range.
Of these three charts, only the harbor chart and the ocean depth...
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