Olympia Sauna Compania Naviera, SA v. US

• Decision Date: 14 April 1987
• Docket Number: Civ. No. 80-699 LE.
• Citation: 670 F. Supp. 1498
• Parties: OLYMPIA SAUNA COMPANIA NAVIERA, S.A., as Owner of the M/V YPATIA HALCOUSSI, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Kenneth FLETCHER, in personam and the M/V YPATIA HALCOUSSI, Her Engines, Tackle, Appurtenances, etc., In Rem; Third-Party Defendants.
• Court: U.S. District Court — District of Oregon

670 F. Supp. 1498

OLYMPIA SAUNA COMPANIA NAVIERA, S.A., as Owner of the M/V YPATIA HALCOUSSI, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Kenneth FLETCHER, in personam and the M/V YPATIA HALCOUSSI, Her Engines, Tackle, Appurtenances, etc., In Rem; Third-Party Defendants.

Civ. No. 80-699 LE.

United States District Court, D. Oregon.

April 14, 1987.

Paul N. Wonacott, Robert I. Sanders, Wood Tatum Mosser Brooke & Holden, Portland, Or., for plaintiff.

Paul Gary Sterling, Asst. Atty. in Charge, WCO, U.S. Dept. of Justice, Torts Branch, Civil Div., San Francisco, Cal., for defendant and third-party plaintiff.

John J. Devine, Poles, Tublin, Patestides & Stratakis, New York City, for third-party defendants.

LEAVY, Circuit Judge, Sitting by Designation:

I. Introduction

The plaintiff, Olympia Sauna Compania Naviera, S.A. (Olympia Sauna), as owner of the M/V Ypatia Halcoussi, brought this action against the United States. Olympia Sauna claimed the United States Coast Guard negligently mispositioned Buoy No. 4 marking Warrior Rock Reef in the Columbia River, causing the Ypatia Halcoussi to run aground on the reef.

On September 11, 1984, following a trial to the court, I issued an opinion and order holding that the Coast Guard's negligent maintenance of the buoy was the proximate and sole cause of the Ypatia Halcoussi's grounding. I also held this court had jurisdiction under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52 (SIAA). The United States appealed this decision.

The Ninth Circuit Court of Appeals remanded the case, on grounds the "opinion and order ... does not sufficiently set forth findings of fact to support its conclusion that the Coast Guard's negligence caused the grounding of the Ypatia Halcoussi." (774 F.2d 1174 (9th Cir.1985), as amended by Order of Jan. 2, 1986). Specifically, the Ninth Circuit held that this court failed to identify any acts or omissions by the Coast Guard District Office to support the finding that it negligently positioned Buoy No. 4 or that it was negligent in allowing the buoy to remain off its charted position. Furthermore, the Ninth Circuit held there were no findings that the Coast Guard District Office had actual or constructive notice that Buoy No. 4 was off position, or that it failed to provide adequate notice to mariners of Buoy No. 4's position.

The factual background was described in this court's previous opinion and order, and need not be repeated, except to expand upon the role of the Coast Guard District Office, as described below.

On remand, this court must decide the following issues:

1. Is the Coast Guard District Office protected by the discretionary function exception in carrying out the grid positioning project;

2. If not, what acts or omissions by the Coast Guard District Office, if any, were negligent;

3. If the Coast Guard District Office was negligent in implementing the grid positioning project, was it negligent in allowing Buoy No. 4 to remain off station and failing to warn mariners that the buoy was off station.

II. Relevant Facts on Remand

The Coast Guard maintains a national system of navigational aids which includes Buoy No. 4, marking Warrior Rock Reef in the Columbia River. Buoy No. 4 is among those navigational aids for which the Coast Guard's Thirteenth District Office (the District Office) in Seattle, Washington is responsible. Navigational aids, including buoys, require regular maintenance to insure they are operating properly and positioned correctly. The Coast Guard buoy tender Whitebush was responsible for maintaining Buoy No. 4 at the time concerned here.

Formerly, Coast Guard buoy tender personnel used a three arm protractor to plot a buoy's position as they attempted to place the buoy sinker on the buoy's charted position. However, beginning in 1977, the Coast Guard introduced a new system of positioning navigational aids, termed the grid positioning project. (Clark, Tr. 923-25). The goals and standards of the grid positioning project are described in the Coast Guard manual Aids to Navigation — Positioning, (Manual) issued June 19, 1978. (Exhibit 23). The project's purpose was to develop and implement a more accurate buoy positioning method. (Clark, Tr. 923-25). The parties agree that if proper data is used, the Coast Guard's grid positioning method is highly accurate, and is more accurate than the three arm protractor method. (Crisp, Tr. 605; Clark, Tr. 927-28, 992; Memorandum of United States on Remand, p. 3; Olympia Sauna's Brief on Remand, pp. 7-8).

The grid positioning project involves measuring the incremental changes in the angle between various surveyed objects using intersecting lines, called lines of position (LOP). (Exhibit 23; Crisp Tr. pp. 590-93). The navigational aid's charted position, which a buoy tender tries to achieve when positioning a buoy, is suppose to be the center of the grid formed by the LOPs.

The Positioning Manual instructs those implementing the grid project to use surveyed objects which produce the "strongest available fixes" and "at least 3 LOPs" to minimize error in buoy positioning. (Exhibit 23, pp. 1-3 and 1-2). The strongest fixes are those having small gradients and crossing angles between 30° and 90°. (Plaintiff's Exhibit 23, pp. 1-6 and C-1; Crisp, Tr. 666). To obtain strong fixes, the Manual directs that surveyed and charted objects be used, as well as surveyed but uncharted objects that are shown on documents from the National Ocean Survey (NOS) and National Geodetic Survey (NGS), both components of the National Oceanic and Atmospheric Administration (NOAA). (Exhibit 23, pp. 1-5 and 1-6).

The Coast Guard District Offices are responsible for developing grids to position the individual buoys within their jurisdiction. To produce a grid, the District Office accumulates information concerning objects in the vicinity of the buoy's charted position. This includes "shots" made by the buoy tender personnel of the landmarks observable in the field and information on surveyed objects from the NOS and NGS. (Clark, Tr. 1000-07; Crisp, Tr. 593, 636, 667-68). From this list of "shot" and surveyed objects, the District Office chooses which ones to use in calculating a particular buoy's grid, depending on the accuracy of the information. (Clark, Tr. 1006). The chosen information is fed into a computer at the District Office, which generates the positioning grid. (Clark, Tr. 1004-07). The District Office gives this grid to the buoy tenders in the field, which instructs them as to what objects and angles to use in positioning the buoy. (Clark, Tr. 1001, 1006-07). The goal is to set the buoy within the "target circle" surrounding the charted position at the grid's center. (Crisp, Tr. p. 616).

This procedure was followed in producing the grid for positioning Buoy No. 4 on March 6, 1980. (Crisp, Tr. pp. 590, 640). The District Office received information concerning surveyed objects near the charted position of Buoy No. 4 from the field and NOS documents. It then selected those objects on which to base the grid and its computer generated a grid for the Whitebush's use in positioning Buoy No. 4.

The Coast Guard District Office relied on four objects to produce the Buoy No. 4 grid: 1. Warrior Rock Range Front Light; 2. Light 2; 3. Light 4A; and 4. Duck Club Light 6. (Exhibit 35). The District Office generated three LOPs from these objects: between objects 1 and 2, 3 and 4, and 2 and 4.

The Whitebush visited Buoy No. 4 on March 5, 1980, and finding the buoy off its charted position, attempted to reposition it. However, it was unsuccessful in doing so, and returned the next day. (Crisp, Tr. 615-16). On March 6 the Whitebush repositioned Buoy No. 4, using the grid supplied to it by the District Office. The Whitebush also performed additional checks by taking bearings to the designated objects and measuring the water depth. The measured water depth where Buoy No. 4 was repositioned to was 30 feet. (Crisp, Tr. 628-29). Chief Crisp, of the Whitebush, believes they left the buoy on its charted position on March 6. (Crisp, Tr. 631). On March 8, 1980, the M/V Ypatia Halcoussi ran aground on Warrior Rock Reef.

The data gathered by the Whitebush when it repositioned Buoy No. 4 on March 6 was sent to the District Office, but not received until after the grounding. On March 31, 1980, the District Office determined from this data that the Whitebush had placed the sinker of Buoy No. 4 slightly outside and downstream from the target circle, though generally along the channel line from the charted position. This is "Position C." (Clark, Tr. 967; Exhibits MM and MM-1). Two days after the grounding, on March 10, the Corps of Engineers (the Corps) found the buoy portion of Buoy No. 4 further downstream than both sinker position C and the charted position. This is "Position 14." (Exhibit MM and MM-1; Lubin, Tr. 392; Clark Tr. 967).

III. Contentions on Remand

Olympia Sauna contends that the District Office was negligent in the placement of Buoy No. 4 because in developing the buoy grid, it did not use those surveyed objects which produce the strongest fix. It alleges that the objects used by the Coast Guard instead produced an inaccurate fix because the resulting angle gradients were too large. There were at least three surveyed objects which the Coast Guard did not use, but had they been used, a stronger fix allegedly would have resulted. In its Brief on Remand, Olympia Sauna describes these objects as Shore Cap (also known as Dolphin), Warrior Rock Range Rear Light, and a Stack in Scappoose. (Brief on Remand, p. 10). In its Reply Brief, Olympia Sauna omits Warrior Rock Range Rear Light and adds Lake Cap. (Reply Brief, p. 9).

Olympia Sauna contends these objects were surveyed before the accident, and therefore were available to the Coast Guard. These objects are shown on Corps of Engineers condition survey charts. Also, the Stack is labelled, and the Shore Cap and Lake Cap are...