558 F.2d 790 (5th Cir. 1977), 75-2695, Bunge Corp. v. M/V Furness Bridge
|Citation:||558 F.2d 790|
|Party Name:||BUNGE CORPORATION, Plaintiff-Appellant Cross-Appellee, v. M/V FURNESS BRIDGE, her engines, tackle, apparel, etc., in rem, Defendant, Furness Withy & Co., Ltd., in personam, Defendant-Appellee Cross-Appellant.|
|Case Date:||September 02, 1977|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
[Copyrighted Material Omitted]
Nigel E. Rafferty, John F. Blackwell, New Orleans, La., for plaintiff-appellant cross-appellee.
Cornelius G. Van Dalen, Leonard A. Radlauer, New Orleans, La., amicus curiae, for Board of Comm. of the Port of New Orleans.
J. Dwight LeBlanc, Jr., New Orleans, La., for defendant-appellee cross-appellant.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
SIMPSON, Circuit Judge:
Bunge Corporation, a wharf owner, brought suit in rem against the M/V Furness Bridge and in personam against her owner, Furness Withy and Co., for damage which the vessel inflicted upon a mooring
dolphin while attempting to berth at the wharf. [*]
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The district court held that the negligence of both plaintiff and defendant caused the accident and equally divided the damages. In reaching this conclusion, the district court emphasized the special characteristics of the Furness Bridge, which was more than twice the length of the Bunge dock and then the largest ship ever to navigate the Mississippi river: "Supertankers may call for 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 standard of care than has ever previously been required of wharfingers. While we agree that the standard of care must be measured in the context of specific situations, we feel that the district court imposed too stringent a standard on Bunge and reverse on that ground.
I. THE FACTS
The district court has concisely set out the facts of this case:
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 1/4 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. 1 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 5o , 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. 2 This time the docking was without incident.
396 F.Supp. at 854-55.
II. THE APPLICABLE STANDARD OF CARE
" It is well established that there is a presumption of fault against a moving vessel that strikes a stationary object, such as a dock or navigational aid." Freeport Sulphur Co. v. S/S Hermosa, 368 F.Supp. 952, 953 (E.D.La.1973); Brown & Root Marine Operators, Inc. v. Zapata Off-Shore
Co., 377 F.2d 724 (5th Cir. 1967). "In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by fault of the stationary object or was the result of inevitable accident". 3 Patterson Terminals, Inc. v. S/S Johannes Frans, 209 F.Supp. 705, 707 (E.D.Pa.1962), citing Carr v. Hermosa Amusement Corp., Ltd., 137 F.2d 983, 985 (9th Cir. 1943). We have held that "(t)he burden is heavily upon the vessel asserting (the inevitable accident) defense. 'Such vessels "must exhaust every reasonable possibility which the circumstances admit and show that in each they did all that reasonable care required." ' " Brown & Root Marine Operators, Inc., supra, 377 F.2d at 726. Furthermore, the presumption of negligence is amply supported by logic and experience:
The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is not sufficient for the respondent to produce witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident. The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur.
Patterson Oil Terminals v. The Port Covington, 109 F.Supp. 953, 954 (E.D.Pa.1952).
Where a berthing facility has been damaged, the shipowner may rebut the presumption of negligence by proving that the wharfinger violated the standard of care to which he is held and that this violation was the proximate cause of the damage claimed. Regarding the wharfinger's duty, we have stated the prevailing view as follows:
It is well settled that a wharfinger is not the guarantor of the safety of a ship coming to his wharf. He is, however, under a duty to exercise reasonable diligence to furnish a safe berth and to avoid damage to the vessel. This includes the duty to ascertain the condition of the berth, to make it safe or warn the ship of any hidden hazard or deficiency known to the wharfinger or which, in the exercise of reasonable care and inspection, should be known to him and not reasonably known to the shipowner.
Trade Banner Line, Inc. v. Caribbean Steamship Co., S.A., 521 F.2d 229, 230 (5th Cir. 1975). The wharfinger's duty to warn applies only to "any hidden hazard or deficiency . . . not reasonably known to the shipowner". Id. Thus, no warning is required "where the alleged obstruction...
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