Bernert Towboat Co. v. USS CHANDLER (DDG 996)

• Decision Date: 29 June 1987
• Docket Number: Civ. No. 86-547-RCB.
• Citation: 666 F. Supp. 1454
• Parties: BERNERT TOWBOAT COMPANY, Plaintiff, v. USS CHANDLER (DDG 996), in rem, and United States of America, in personam, Defendants.
• Court: U.S. District Court — District of Oregon

666 F. Supp. 1454

BERNERT TOWBOAT COMPANY, Plaintiff, v. USS CHANDLER (DDG 996), in rem, and United States of America, in personam, Defendants.

Civ. No. 86-547-RCB.

United States District Court, D. Oregon.

June 29, 1987.

COPYRIGHT MATERIAL OMITTED

David F. Bartz, Jr., Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for plaintiff.

Charles H. Turner, U.S. Atty., Jack G. Collins, First Asst. U.S. Atty., Chief, Civ. Div., Portland, Or., Philip A. Berns, Atty. in Charge, West Coast Office, Torts Branch, Civ. Div., Warren A. Schneider, Asst. Atty. in Charge, WCO, Torts Branch, Civ. Div., U.S. Dept. of Justice, San Francisco, Cal., for defendants.

BELLONI, District Judge.

The plaintiff, Bernert Towboat Company, brings this suit for damage to its barge, the B-1, caused by the swell of the USS CHANDLER as the two vessels passed in the Columbia River. Plaintiff asserts that the ship traveled too fast up the river and negligently created a dangerous swell. The government contends that the B-1's unseaworthy condition caused the damage. The principal disputed issues at trial were the situs of the collision, the CHANDLER's speed, whether it is possible for the CHANDLER to produce a dangerous swell, and whether the B-1 is seaworthy.

BACKGROUND

On June 6, 1985 the USS CHANDLER a United States guided missile destroyer (563 feet long, with a beam of 55 feet, twin propellers, and 80,000 horsepower), steamed up the Columbia River from Astoria to Portland, Oregon, for the annual Rose Festival. At the same time the tug MARY B was pushing the barges B-1 and B-22 down river. The barges were loaded with wood chips and lashed together in tandem. The MARY B was tied to the B-1. The plaintiff built the B-1 for hauling wood chips on the Columbia River; its entire business consists of transporting chips on the river. Prior to the encounter with the CHANDLER the plaintiff's vessels made this same round trip voyage 2100 times without serious incident.

Captain Jim Easley has 27 years of experience on the Columbia River. He piloted the MARY B at the time of the accident and is the only eye witness. I find his testimony credible. He testified that the MARY B and the two barges passed four navy ships that day with no problems. Then he met the CHANDLER. Watching the CHANDLER travel up the river he noticed that its swell created a good deal of white water on the Northern end of Martin Island. When the CHANDLER was nearly abeam he saw an unusually large swell coming toward the MARY B. Quickly slowing the engines he shifted the MARY B into neutral and rode over the swell. Captain Easley knew that the swell caused some damage so he called the crew out of the forecastle to attend to the barges. He also called the USS BRONSTEIN, the vessel following the CHANDLER, and asked it to slow because he was having problems.

The crew resecured the two barges and the MARY B continued down river. However the B-1, holed by the swell, filled with water and soon began to list. This list caused much of the B-1's cargo to spill. The crew beached the B-1 on Sandy Island to prevent it from completely sinking. The plaintiff salvaged the remaining cargo, pumped out and patched the B-1, and took it to a shipyard for repair.

I. LIABILITY

The Public Vessels Act provides for in personam admiralty jurisdiction over the United States for damage caused by a public vessel of the United States. 46 U.S.C. § 781 et seq. The USS CHANDLER is a public vessel. This action is within the court's admiralty jurisdiction. 28 U.S.C. § 1333.

Although jurisdiction is in personam, the Public Vessels Act allows recovery on admiralty principals of in rem as well as in personam liability. Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 228, 65 S.Ct. 639, 646, 89 L.Ed. 901 (1945). The Act allows the court to grant judgment on in rem as well as in personam principles, except that the public vessel is not subject to seizure or arrest. Id.

1. Liability is Based on Fault

Collision Liability is based on fault. Therefore negligence must be shown before liability is imposed. Complaint of McLinn, 744 F.2d 677, 680 (9th Cir.1984). The term "collision" is used in its broadest sense so that it applies to a tug striking a ships wake. See Peoples Natural Gas Co. v. Ashland Oil, Inc., 604 F.Supp. 1517, 1523 (W.D.Pa.1985). The standard of care in collision cases is provided by specific statutory provisions, the concept of reasonable care, and the requirements of good seamanship. Arabian American Oil Co. v. Hellenic Lines, Ltd., 633 F.Supp. 659, 665 (S.D.N.Y.1986). The CHANDLER violated a statutory rule and failed to exercise reasonable care when it created a dangerous swell.

2. The CHANDLER's Duty not to Create a Dangerous Swell

Both the tug and the ship have a right to navigate the Columbia River. The tug has the duty to meet the ordinary risks of navigation and the ship must not injure a seaworthy tow with its swell. The ROBERT FULTON, 187 F. 107, 108 (2nd Cir. 1911). The ship's officers must take all reasonable precautions to insure that the tug and its tow are not injured by the ship's swell. The CHESTER W. CHAPIN, 155 F. 854, 859 (D.C.N.Y.1907). If properly constituted the tug need not warn the ship it may presume the ship will make a safe passing. Id. Ordinary prudence demands that the ship slow down to avoid endangering a seaworthy tow. The COLUMBIA, 61 F. 220 (3rd Cir.1894)¹.

However when the tow is improperly made up or is otherwise unseaworthy there is no liability for swell damage. Alice E. Conway v. United States, 1930 A.M.C. 2013 (E.D.N.Y.1930). The CHANDLER had a duty not to create a dangerous swell.

3. The Inland Rules of the Road Provide a Statutory Standard

The Inland Rules apply to navigation in the Columbia River. 33 U.S.C. § 2001(a). Rule 6, the Safe Speed Rule, is of primary importance here. Rule 6 provides in pertinent part:

Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.

33 U.S.C. § 2006. In determining a safe speed the vessel must consider: (1) visibility, (2) traffic density, (3) maneuverability of the vessel including stopping distance and turning ability, (4) the state of the wind, sea and current and the proximity of navigational hazards, and (5) the draft in relation to the available depth of water. Id. The CHANDLER was required to travel at a safe speed in order to avoid a collision. Violation of the safe speed rule imposes severe procedural sanctions.

4. The Pennsylvania Rule

When, at the time of a collision, a vessel is in violation of a statutory rule intended to prevent collisions, the burden shifts to the vessel to prove that its fault could not have been a cause of the accident. The Steamship Pennsylvania v. Troop, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1873). The Pennsylvania rule shifts the burden of proof as to causation to the statutory offender, but it does not by itself impose liability. United Overseas Exp. Lines v. Medluck Compania Maviera, 785 F.2d 1320, 1325 (5th Cir.1986). The violator may rebut this presumption by showing that the violation could not have been a contributing cause of the accident. Id. This burden is difficult for the statutory offender to carry and the court of appeals requires strict adherence to the rule. Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 736 (9th Cir.1969).

A violation of the safe speed rule invokes the Pennsylvania rule. See Hercules Carriers, Inc. v. Claimant State of Fla., 768 F.2d 1558, 1567-68 (11th Cir.1985); Complaint of Magnolia Towing Co., Inc., 764 F.2d 1134, 1136-38 (5th Cir.1985).

DISCUSSION

5. The Situs of the Collision

The location of the collision is important because the CHANDLER kept excellent navigation records, and its speed can be calculated with precision for any segment of its course up the Columbia River.

Commander Natter, the CHANDLER's captain, placed the point of meeting North of Goat Island and South of Sandy Island. But Commander Natter's testimony at trial was vague. In addition he admitted that he had never before transited the Columbia River, and that he had no independent recollection of the meeting point. He relied on the CHANDLER's navigation chart and the engine room log to determine the meeting point. I find that his testimony on the collision location is not credible.

Captain James Easley testified that the collision occurred between light number 62, and buoy number 60. I find his testimony credible. Captain Lloyd Beeler, the MARY B's master, also placed the collision near light number 62. On cross examination Captain Showalter, the Columbia River Pilot aboard the CHANDLER, stated that he did not disagree with Captain Easley's testimony on the location. Captains Easley, Showalter, and Beeler all agreed to the location of the collision and they are all very familiar with the Columbia River. I find that the collision occurred near light number 62 near 45° 57' 30" N, 122° 49' W, and that the collision happened at approximately 1355 hours.

6. The CHANDLER's Speed

The CHANDLER took frequent and accurate position fixes on its trip up the river. These fixes were recorded on the CHANDLER's navigation chart and the time noted by each fix. In addition the engine room keeps a "bell log" that records each engine speed order and the time of the order. Plaintiff's expert, Lieutenant Commander Dietz, USNR, using the CHANDLER's chart and the bell log, calculated the CHANDLER's speed at the time of collision. He conservatively placed the CHANDLER's speed at 20.1 knots over the ground. Plaintiff's other expert, Dr. Bruce Adee, estimated the CHANDLER's speed to be higher.

Pilot Showalter and Commander Natter both placed the CHANDLER's speed when it met the MARY B at between 10 and 15 knots. I reject Pilot Showalter's testimony because it conflicts with the engine room bell log and the...