Bangor & AR Co. v. Ship Fernview
| Decision Date | 10 August 1978 |
| Docket Number | Civ. No. 74-46-ND,76-77-ND. |
| Citation | 455 F. Supp. 1043 |
| Court | U.S. District Court — District of Maine |
| Parties | BANGOR & AROOSTOOK RAILROAD COMPANY, Plaintiff, v. The SHIP FERNVIEW et al., Defendant and Third-Party Plaintiff, v. I.T.O. CORP. OF NEW ENGLAND, Third-Party Defendant. DELTA CHEMICAL, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. William E. ABBOTT, Fourth-Party Defendant. BANGOR & AROOSTOOK RAILROAD COMPANY, Plaintiff, v. FEARNLEE & EGER, Defendant. |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
William M. Houston, V. P. & Gen. Counsel, Bangor & Aroostook R. Co., Bangor, Maine, Howard H. Dana, Verrill & Dana, Portland, Maine, for Bangor & Aroostook R. Co.
Benjamin Thompson, Thomas R. McNaboe, Paul Vielmetti, Alan S. Polackwich, Portland, Maine, for Fernview and Fearnlee.
Gene Carter, Rudman, Winchell, Carter & Buckley, John M. Wallach, Bangor, Maine, Norman & Hanson, Portland, Maine, for Delta.
Harrison L. Richardson, S. Peter Mills, III, Portland, Maine, for I.T.O.
Richard W. Glass, Belfast, Maine, and John W. Ballou, Bangor, Maine, for Wm. Abbott.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DIRECTION FOR ENTRY OF JUDGMENT
These two consolidated actions arise out of a collision which occurred at 0735 on the morning of August 21, 1974, when the dry cargo vessel FERNVIEW while attempting to dock at the Bangor & Aroostook Railroad Company ("BAR") pier at Searsport, Maine collided with the south end of the pier causing considerable damage to the pier. The collision occurred under conditions of reduced visibility and heavy fog. BAR has brought an action in rem against the FERNVIEW (Civil No. 74-46-ND) and an action in personam against the owner of the vessel, Fearnlee & Eger (Civil No. 76-77-ND). The ship and her owner have, in turn, impleaded as third-party defendants Delta Chemical, Inc. ("Delta"), the owner and operator of a sulfuric acid manufacturing plant which is situated approximately 1.3 statute miles northeast of the pier, and I.T.O. Corp. of New England ("I.T.O."), the stevedoring company whose employees were to unload the FERNVIEW after the ship was tied up at the pier. Delta has impleaded as fourth-party defendant William E. Abbott ("Abbott"),1 the FERNVIEW's pilot on the morning in question. In each instance, the third- and fourth-party plaintiffs seek contribution from the impleaded party and also demand judgment against the impleaded party in favor of the plaintiff. See Fed.R.Civ.P. 14(c). Jurisdiction of the actions is predicated upon 28 U.S.C. § 1333(1) () and 28 U.S.C. § 1332 (diversity jurisdiction).
By agreement of the parties, the issues of liability have been severed from the damage issues, and tried to the Court without a jury. Having received and considered the evidence and the written and oral arguments of counsel, the Court now makes its Findings of Fact and Conclusions of Law on the issues of liability for the collision, and directs entry of its judgment as follows:
FINDINGS OF FACT
The Court's Findings of Fact are:
Introduction
1. The Pier. The Bangor & Aroostook Railroad Company was and is a Maine corporation and the owner of the pier at Searsport, Maine, which was damaged by the FERNVIEW on the morning of August 21, 1974.
The BAR pier is a wooden structure approximately 800 feet long and 100 feet wide, set on pilings. It is situated in a dredged basin roughly one mile to the east of Searsport Harbor and extends in a southerly direction from a point of land at the entrance to Long Cove.2 Sears Island and Buoys # 4 and # 6 limit the right-hand side of the approach channel.
On top of the pier, beginning at a point 139 feet from the southerly end and extending northward all the way to land, is a long rectangular warehouse constructed of steel girders and framing, with asbestos siding. The warehouse is 25 feet high and occupies more than half the width of the dock. On the western side of the warehouse are two railroad tracks extending the length of the pier. On the day of the collision, these tracks were occupied by two lines of railroad freight cars which ended at a point approximately adjacent to the southerly end of the warehouse.
2. The Ship. Fearnlee & Eger was and is a foreign corporation, partnership or unincorporated association, having a place of business in Oslo, Norway, and was the owner and operator of the M/V FERNVIEW on August 21, 1974.
The FERNVIEW is a Norwegian cargo vessel built in 1962, with an overall length of 577 feet and a deadweight tonnage (fully loaded) of approximately 11,000 tons. On August 21, 1974 she was en route from Boston to Searsport only partially loaded with a cargo of tapioca. Her draft was approximately 15' 8" forward and 23' 6" aft. The FERNVIEW has a single rudder, a single propeller and a single direct drive diesel engine, of approximately 11,300 horsepower, which is capable of driving the ship at a maximum speed of 18 knots. The ship's pilothouse is located amidships approximately 290 feet from the bow. The pilothouse is approximately 65 feet above the water, and the bow is approximately 30 feet above the water.
On August 21, 1974 the FERNVIEW was equipped with a Model D 202 Decca radar and a Model RM 426 Decca radar, together with a VHF radio, all of which were installed in the pilothouse and were in good operating condition.3 The FERNVIEW carried navigational charts, including one of the Searsport Harbor area, and a speed log, but the charts and speed log dial were located in the chart room and were not used during the approach to the BAR pier. The ship's clock in the pilothouse did not have a second hand, jumped forward every half minute, and could only be read to the nearest minute.
3. The Pilot. William E. Abbott, a Penobscot Bay pilot, was the pilot of the FERNVIEW on the morning of August 21, 1974, having joined the ship in Boston the previous evening. Captain Abbott, a native of the Penobscot Bay area, attended the University of Maine at Orono and is a graduate of the Maine Maritime Academy. After serving in the Merchant Marine for a short period, Abbott returned to Belfast in 1946 and apprenticed as a Penobscot Bay and River pilot under his father. He earned his pilot license for Searsport Harbor and the BAR dock in 1952. Between 1952 and August 21, 1974, he had piloted approximately 4,000 ships in or out of Penobscot Bay, including approximately 1,000 into Searsport Harbor. Of the 1,000 ships piloted into Searsport, about half were diesel-powered cargo vessels similar to the FERNVIEW. Approximately 100 of the dockings at the BAR pier had been under reduced visibility conditions.
4. The Ship's Personnel. On the bridge of the FERNVIEW during the approach to the BAR pier were, in addition to Captain Abbott, the ship's master, Captain Vage, First Officer Thorvaldsen and the quartermaster-helmsman. During the docking maneuvers, Chief Officer Wikeroy was forward on the bow, acting as lookout. Wikeroy maintained communication by walkietalkie radio with Thorvaldsen. Captain Vage had been to sea since before 1938, had served as master on ships since 1954 and held a master mariner's license. Prior to August 21, 1974, he had made several trips into Searsport Harbor. Wikeroy and Thorvaldsen were both experienced and duly licensed.
5. I.T.O. I.T.O. Corp. of New England, a stevedoring corporation with a place of business at Searsport, Maine, as the terminal operator under contract with BAR, was to unload the FERNVIEW once it had docked at the BAR pier on the morning of August 21, 1974. Four longshoremen had been ordered to report to the pier at approximately 0600 to handle the lines as the FERNVIEW landed. Four gangs of longshoremen were to report to the pier shortly before 0800 to unload the vessel. The FERNVIEW's estimated time of arrival was 0800. I.T.O.'s general manager at Searsport was Hartley Fraser, since deceased.
6. Delta. Delta Chemical, Inc. was and is the owner and operator of a chemical sulfuric acid manufacturing plant located on the shore of Penobscot Bay in Searsport approximately 1.3 miles northeasterly of the BAR pier.
7. Captain Abbott joined the FERNVIEW in Boston at 1500 on August 20. The ship was scheduled to depart Boston at 1700, but because of a delay in loading did not leave until about 1930. Abbott had never piloted the FERNVIEW, nor had he ever met Captain Vage or any other of the ship's officers. Abbott slept until shortly before he assumed his pilotage at approximately 0410 on August 21 at Buoy # 14-M, two miles west of Monhegan Island. Shortly after he took over, Abbott learned that the ship had been running at reduced speed, because of poor visibility, during the night. He knew that on mornings when a ship was due at the BAR pier, it was customary to have linesmen standing by at 0600 and to have the cargo handlers ready by 0800. Abbott was anxious to dock the vessel between 0730 and 0800, both to avoid "detention" charges levied by the stevedoring company when a ship is late and to take advantage of the slack tide, which would occur at 0715. At Monhegan the visibility was what Abbott categorized as "open and shut" (ranging from 3-4 miles to 5-6 miles). The radar was running and tuned.
8. From Monhegan to Islesboro the FERNVIEW made full sea speed of 15-16 knots. At 07064 the ship passed Buoy I-I (Islesboro), 4.5 miles from the BAR pier, on a course of 017-018°. Although Abbott's practice was to begin reducing speed at Buoy I-I, on this occasion he did not do so until "approaching Sears Island" eight minutes later at 0714, when he order "half ahead." Almost immediately thereafter he ordered "dead slow ahead." From Buoy I-I to the pier there was no wind, the sea was calm, and the tide was almost dead low.
At Buoy I-I Abbott explained to Captain Vage the two methods of docking a ship at the BAR pier. One method is to approach the end of the pier on a northeasterly course on a...
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