City of New York v. Morania No. 12, Inc., 66 Civil 2576

• Decision Date: 28 March 1973
• Docket Number: 66 Civil 4122.,No. 66 Civil 2576,66 Civil 2576
• Citation: 357 F. Supp. 234
• Parties: The CITY OF NEW YORK, as Owner of the TUG SANITA, Plaintiff, v. MORANIA NO. 12, INC., the TUG MORANIA NO. 12, Penn Industries, Inc., and BARGE NO. 79, Defendants. PENN INDUSTRIES, INC., as Owner of the BARGE NO. 79, Plaintiff, v. The CITY OF NEW YORK and The TUG SANITA, Defendants.
• Court: U.S. District Court — Southern District of New York

357 F. Supp. 234

The CITY OF NEW YORK, as Owner of the TUG SANITA, Plaintiff, v. MORANIA NO. 12, INC., the TUG MORANIA NO. 12, Penn Industries, Inc., and BARGE NO. 79, Defendants.

PENN INDUSTRIES, INC., as Owner of the BARGE NO. 79, Plaintiff, v. The CITY OF NEW YORK and The TUG SANITA, Defendants.

Nos. 66 Civil 2576, 66 Civil 4122.

United States District Court, S. D. New York.

March 28, 1973.

COPYRIGHT MATERIAL OMITTED

J. Lee Rankin, Corp. Counsel, City of New York, for The City of New York; Wilbur E. Dow, Jr., New York City, of counsel.

Burlingham, Underwood & Lord, New York City, for Morania No. 12, Inc., the Tug Morania No. 12, Penn Industries, Inc., and Barge No. 79; Joseph C. Smith, John F. O'Connell, New York City, of counsel.

OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW

LEVET, District Judge.

This is an admiralty action involving a collision between a tug, the Sanita, with another tug and barge in tow, the Morania No. 12 and Barge No. 79 respectively. The collision occurred when the Sanita attempted to enter its berth as the Morania No. 12 with the Barge No. 79 in tow was backing out from between two piers.

After hearing the testimony of the parties, examining the exhibits, the pleadings, the Proposed Findings of Fact and Conclusions of Law, this court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. This court has jurisdiction over the subject matter and persons in this action.

2. On the night of September 4, 1965 the tug Sanita was owned and operated by the Department of Sanitation, City of New York. (Stipulation, pretrial order, p. 2.)

3. On the night of September 4, 1965 the tug Morania No. 12 was owned and operated by Tug Morania No. 12, Inc. (Stipulation, pretrial order, p. 3.)

3. On the night of September 4, 1965 the tug Morania No. 12 was owned and operated by Tug Morania No. 12, Inc. (Stipulation, pretrial order, p. 3.)

4. On the night of September 4, 1965 and at all times relevant to this action the Barge No. 79 was owned by Penn Industries, Inc. but was under the direction and control of the tug Morania No. 12 as a tow. (Stipulation, pretrial order, p. 2.)

5. The Sanita was built in 1954. (37.)¹ It was known by her crew to be an unstable tug when she was put into service. (40, 41, 42, 51.) There were subsequent efforts in July of 1965 to correct its instability (45, 47) by placing pig lead spools into its bilge (43), which spools were not made fast (96) but were piled up in a lose manner on the port side midship between the ribs. (95-100.) Additional efforts to correct the Sanita's instability were made by placing concrete blocks on its bow. (42-44.) These efforts to correct the Sanita's instability had only minimum corrective results. (49.)

6. On the night of September 4, 1965 the tug Morania No. 12 with five gravel barges in tow, at or about 10:00 P.M., arrived between piers 69 and 70 on the Manhattan side of the East River. (198-199.) Subsequently, the Morania left four of these barges on the north side of pier 69. (198-204.) Later, at or about 10:40 P.M. the Morania No. 12 commenced backing out from between piers 69 and 70 with the Barge No. 79 strapped in tow to the starboard side of the Morania No. 12. (154.) As the Morania No. 12 proceeded to back out she increased her speed. (187, 207.) She failed to blow a slip whistle or to blow three blasts to signal she was going astern. (187, 207.)²

7. At or about 10:40 P.M. on September 4, 1965 the tug Sanita crossed the East River from Newtown Creek and headed for her berth on the outer end of the south side of pier 70 (8, 9; Ex. 1), a Department of Sanitation pier used by the tug Sanita as its berth on the East River. (3, 4; Ex. 1.) The Sanita had all running lights properly displayed as she crossed the East River. (71, 72, 187, 188.)

8. Both the Captain, Leroy Petty, and the lookout, John Kaltner (74, 85) of the Sanita, while crossing the East River, observed two all white aft staff lights on the stern of a tug between piers 69 and 70 on the Manhattan side of the East River (10, 55), signifying a tug with a vessel in tow alongside and underway. (55, 56, 203.) This tug proved to be the Morania No. 12 and Barge No. 79. (8, 75.) However, Captain Petty and lookout Kaltner did not observe any other running lights during their observation of the Morania No. 12. (10, 59, 60, 66.)

9. Neither the captain nor the lookout of the tug Sanita noticed any movement of the tug and tow they observed between piers 69 and 70. (11, 59, 75.)³ No whistle signals were heard by the captain or the lookout of the Sanita from the tug Morania No. 12. (12, 17, 40, 75.) The Morania No. 12 had in fact never blown any signal whistles. (171, 187, 224.)

10. The Sanita continued to approach her intended berth at the outer end of the south side of pier 70 and attempted to enter her slip while the Morania No. 12 with the Barge No. 79 strapped to her starboard side was attempting to maneuver out from between piers 69 and 70, which was unusually congested. (12-16, 33.) At the time the Sanita was being positioned to enter her slip, the captain and the lookout of the Sanita became aware that the tug Morania No. 12 was backing out with the Barge No. 79 strapped to her starboard side. (17, 76, 207, 226.)

11. When the captain of the Sanita became aware that the Morania No. 12 was backing out he immediately put the Sanita full astern and gave three whistle blasts. (18, 77.) This operation caused the Sanita to take a port list, which was a manifestation of the Sanita's instability. (158, 159, 169, 211, 219.) In addition to the aforesaid list created by putting the Sanita full astern, she was caused to swing around across the stern of the Morania No. 12 and the Barge No. 79. (255.) The resulting contact between the Sanita and the Morania No. 12 swung the Sanita completely across the stern of the Morania No. 12 and the Barge No. 79. (19, 22, 51, 251.)

12. At or about the time the Sanita went full astern two deckhands aboard the Morania No. 12 observed the approaching Sanita (156, 157), and, although not designated as lookouts,⁴ they shouted to the captain of the Morania No. 12 to go ahead on his engines. (160, 172, 177-178, 189, 209, 228.) Although the Morania No. 12's said deckhands had observed the Sanita approaching them (171, 176), neither deckhand warned the captain of the Morania No. 12 of the Sanita's approach until the Sanita and the Morania No. 12 were nearly in contact. (171, 179, 188, 189, 228.)

The captain of the Morania No. 12 never saw the Sanita until the Sanita was right underneath the stern of the Morania No. 12 (206, 207, 222) although he had seen vessels in the East River when he started to back out from between piers 69 and 70. (205.)

Once the Morania No. 12 had been put into full ahead there was some delay in her change from her motion astern to forward motion. (166, 209, 226, 256.)

13. Almost simultaneously with the Morania No. 12 being put into full ahead, the stern of Barge No. 79 came in contact with the Sanita approximately 15 feet from the Sanita's bow on her port side and overrode the Sanita's bulwarks (78, 249) while the stern of the Morania No. 12 came in contact with the stern of the Sanita.

The list of the Sanita increased by the contact of the Barge 79 and the Morania No. 12 with the Sanita. (79, 109, 168, 180-181.)

14. As the Sanita's list increased, the quickwater from the Morania No. 12, created by her being put into full ahead, surged over the bulwarks of the listing Sanita and entered the engine room through the port side engine room doorway due to the fact that the engine room door had been secured in an open position. (23, 53, 79, 80, 145, 210-211.)

15. The Sanita subsequently sank within one or two minutes. (24, 227.)

16. Immediately after the Sanita sank, the captain of the Morania No. 12 released Barge No. 79 in the East River and went out into the river to pick up the members of the Sanita's crew who were still in the East River. (183-184, 213, 227.) After these persons were rescued, the Morania No. 12 resecured the Barge No. 79 to its starboard side as it had been prior to the collision with the Sanita and while attempting to enter back between piers 69 and 70, knowing that the Sanita was sunk in that immediate area, caused the Barge 79 to strike the sunken Sanita. (213.)

17. The Morania No. 12 had no designated lookout, did not blow a slip whistle and did not blow a three blast whistle to signal that it was backing out from between piers 69 and 70. (See Findings of Fact 9, 12.)

18. Prior to the collision the Sanita made no attempt to ascertain the direction of movement of the tug Morania No. 12 and its tow, Barge No. 79, or to take appropriate precautions to prevent its unseaworthy condition of unstability, creating a dangerous or hazardous condition by maneuvering in a congested area.⁵

DISCUSSION

Liability under admiralty collision law involving statutory violations was considered by the Supreme Court in The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148 (1873). The court, in what is now known as the Pennsylvania Rule, held that, "When * * * a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collision, it is no more than a reasonable presumption that the fault, if not the sole cause was at least a contributory cause of the disaster." The Pennsylvania, supra, 136. The Supreme Court continued, stating that "In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been." At page 136.

Upon first impression it would appear that the Morania No. 12, having violated three statutory rules of navigation (Findings of Fact 6, 9, 12, 17), would clearly be liable in this instant action, under the law as stated in The Pennsylvania. However, a closer examination and analysis of admiralty law mandates a...