Burgess v. M/V Tamano

• Citation: 564 F.2d 964
• Decision Date: 24 August 1977
• Docket Number: No. 76-1020,76-1020
• Parties: Ernest E. BURGESS et al., Plaintiffs, v. M/V TAMANO et al., Defendants, Appellees. Appeal of UNITED STATES of America.
• Court: U.S. Court of Appeals — First Circuit

Page 964

564 F.2d 964

11 ERC 1395

Ernest E. BURGESS et al., Plaintiffs, v. M/V TAMANO et al., Defendants, Appellees Appeal of UNITED STATES of America.

No. 76-1020.

United States Court of Appeals First Circuit.

Argued May 3, 1976.

Decided Aug. 24, 1977.

Allen van Emmerik, Atty., U. S. Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Peter Mills, U. S. Atty., Portland, Me., Leonard Schaitman and Emmett B. Lewis, Attys., U. S. Dept. of Justice, Washington, D. C., were on brief, for appellant.

Joseph C. Smith, New York City, and Benjamin Thompson, with whom David P. Cluchey, Thompson, Willard & McNaboe, Portland, Me., and Burlingham, Underwood & Lord, New York City, were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This appeal is from a finding of the district court for the District of Maine imposing upon the United States sole liability for a supertanker's striking a submerged ledge, and a consequent oil spill. The government denies fault, or, at the least, asserts that the fault was not its alone, and contends that the district court's contrary findings are clearly erroneous.

On July 22, 1972, at 0120 A.M., on a clear night, the Norwegian supertanker M/V TAMANO struck Buoy 6, a lighted buoy marking Soldier Ledge in Hussey Sound, Casco Bay, Maine, and seconds later grazed the ledge, holing her hull, and losing 100,000 gallons of heavy oil into the Bay. The TAMANO is a single screw vessel, 810 feet long, 128 foot beam, and was drawing 44 feet. In the modern style, her bridge is aft; the helmsman stands 650 feet from the bow. Her command was Captain Bjonnes, and she was being piloted by Captain Charles Dunbar, of Portland Pilots, Inc. Although the occurrence resulted in numerous lawsuits, in the present appeal appellees ship, and her owners, and the Pilots, are principally plaintiffs, and will be referred to as such, and appellant United States, charged with having caused the accident by mislocating the buoy, is the defendant. In a counterclaim, to be considered separately, the parties are reversed.

Hussey Sound is the approach to the Portland oil anchorage, and runs essentially northwesterly. It is marked, basically, by three lighted buoys, originally numbered 1, 4 and 5, and numbered at the time of the event, 3, 6 and 7. No. 3 is a green flashing gong buoy at the entrance, marking shoal ground easterly of Peaks Island, which constitutes the westerly side of the Sound. No. 6 is a red flasher marking Soldier Ledge in the middle of the Sound, and No. 7 is a white flashing bell, easterly of Pumpkin Nob, further up. The Sound is a gut, and one could enter just easterly of Buoy 3 and proceed 1700 yards 320o (true) to the same distance easterly of Buoy 7, passing just westerly of Buoy 6, 1250 yards along the way. This description is taken from the charted position of the buoys, and is not exact, if only because the scope of their mooring chains permits the buoys to swing with the tide. This is too tight a procedure for large vessels. Their practice is to enter well easterly of Buoy 3 and proceed on a course less than 320o , and then take a starboard curve around Buoy 6 and thence, approximately 350o , to pass clear of Buoy 7. A swing starting too soon after leaving Buoy 3 could strike Soldier Ledge; too late would fetch the shelving ground making out from Peaks Island and Pumpkin Nob.

The space between the 10 fathom curve on the chart west of Soldier Ledge and the 10 fathom curve east of Peaks Island provides a channel 300 yards wide. In order to permit the maximum room for making the turn, Portland Pilots in 1967 persuaded the Coast Guard to move Buoy 6's station 150 feet easterly towards Soldier Ledge to a position "on the southwest tangent of the Ledge (because) we need every foot of channel room available." This put it so close that the court found that if its mooring, or sinker, was on station on the night in question, a 350o line from the buoy itself would pass only 22 feet clear of the ledge. Under some circumstances, the buoy's floating position might be even closer.

Two days before, on July 20, 1972, the Coast Guard COWSLIP, a 180-foot buoytender, placed two additional buoys at the outer approaches to the Sound, and serviced and renumbered the existing buoys as 3, 6 and 7. The following day the Coast Guard notified Portland Pilots of the new buoys and the renumbering of the old ones, and the fact that it had verified their positions. That night the TAMANO, with Captain Dunbar aboard, left the vicinity of Portland Lightship at 2335 and headed for the Sound. The sea was calm, there was no wind, and upon the quick disappearance of a light fog, it was dark and clear. After passing easterly of Buoy 3 at 0113 at a distance of 450 to 600 feet, Captain Dunbar steadied on a 310o course and then watched the relative motion of Buoys 6 and 7 as he approached to determine when to begin his starboard turn around Buoy 6. It was then about two hours before low water and the current was ebbing out the Sound at 3/4 to 1 knot, about 154o . About four minutes after passing Buoy 3, Captain Dunbar got a "funny feeling" that Buoys 6 and 7 were opening sooner than he had expected. Fearing that he would run too far to the west and run aground off Peaks Island, he began his starboard turn, keeping Buoy 6 "fine off the bow," intending to pass close to it. About three minutes later, although unaware of doing so, he struck the buoy, which had been lost sight of by the bridge complement because of the flare of the ship's bow. The buoy was brushed aside and passed along the starboard side of the ship, where it was then seen. Captain Dunbar stopped the engines to avoid fouling the buoy's chain, and as the buoy passed astern put the engines back full ahead and proceeded on a 350o course up and out of the Sound. It was not until they reached the anchorage that it was discovered that oil was leaking from the No. 1 starboard wing tank. Even then they did not realize they had grazed the ledge. The boatswain, who was standing in the bow, had reported the striking of the buoy, and the officers accordingly assumed that the buoy had holed the vessel. In point of fact, little appreciable damage was caused by, or to, the buoy. A long, straight gash was made by the ledge.

Government Fault The Evidence

To commence with historical facts, when the COWSLIP serviced the Hussey Sound buoys on July 20, it believed Buoys 3 and 7 to be wrongly positioned, and moved them. In so doing it left Buoy 3's sinker about 130 feet northeast, and Buoy 7's about 175 feet northwest, of their charted stations. It did not move Buoy 6, believing it to be on station. The ultimate question upon which government liability depends is whether Buoy 6's sinker was in fact in its charted position ("C"), or was some 215 feet southeasterly thereof, in the position found by Wright ("W"), a professional surveyor, shortly after the casualty. We may say, in anticipation, that because of the demonstrated incompetence of the COWSLIP's new officers, no weight can be attached to their July 20 verification. ¹

By a singular circumstance, but based upon an elaborate reconstruction which the court warrantably accepted, if the TAMANO merely grazed the buoy, as the court found, the fact that she struck Soldier Ledge where it was found to be "coppered" meant that the buoy was in position "W," but if the buoy's initial contact was 39 feet inboard by the anchor, where the boatswain testified, this corresponded with its being at "C." In a sense, therefore, the case turns entirely upon the acceptance, or rejection, of the boatswain's testimony.

After the ship entered the Sound, Bos'n Hanssen, whose duty would be to let down the anchor, proceeded to a platform at the starboard side of the forward end of the forecastle. He was not a bow watch, and all he did initially, as the court found, was to "relax" while "awaiting orders." ² He suddenly observed the flash of Buoy 6, 30-40 meters ahead, in a position he thought at first would escape collision. However, it did not, but came, he said, in contact with the ship's bow just below the starboard anchor, then tilted part way over and proceeded down the side. He thought he heard it strike twice again, but this was out of his sight. ³ The court believed Hanssen that the buoy was struck and disbelieved Captain Dunbar that "we never came within, I would judge, 5 feet of it" ⁴ but concluded that Hanssen, although the only witness, was wrong as to the location, and that instead of striking inboard by the anchor the buoy merely "grazed" the ship. ⁵ In so discrediting him it found as follows.

"Hanssen's testimony . . . was substantially shaken on cross-examination. ²⁴

24 Hanssen did not testify in person at the trial, but his deposition was made part of the record. On cross-examination he admitted that he did not actually see the buoy strike the Tamano's bow. His cross-examination further developed that he was alleged to be drunk, had numerous axes to grind, and was considered unreliable. He was also unable to explain why he had failed promptly to report to the bridge that the vessel had hit the buoy and did not mention this fact until ten minutes later when Storheil came forward to supervise the anchoring."

The source for most of this, however, was only counsel. In his closing argument one of plaintiffs' counsel, whose anxiety to dispose of Hanssen is understandable, but whose disregard of the record is less so, said the following.

"(The government's) whole case is predicated on one man's testimony, Hanssen, who was completely unreliable. He was alleged to be a drunk; he had all kinds of axes to grind; his cross-examination destroyed his credibility."

Starting with its footnote 24, ante, the court was, of course, correct that Hanssen testified only by deposition meaning that it could not observe his courtroom...