Claim of Gypsum Carrier

• Decision Date: 12 February 1979
• Docket Number: Civ. A. No. 2798.
• Citation: 465 F. Supp. 1050
• Parties: Claim of GYPSUM CARRIER (bareboat charterer) and Oceanic Carrier (owner) of the MOTORSHIP PACIFIC CARRIER as Assignees of Seaboard Coast Line Railroad Company against Union Camp Corporation and the United States.
• Court: U.S. District Court — Southern District of Georgia

465 F. Supp. 1050

Claim of GYPSUM CARRIER (bareboat charterer) and Oceanic Carrier (owner) of the MOTORSHIP PACIFIC CARRIER as Assignees of Seaboard Coast Line Railroad Company against Union Camp Corporation and the United States.

Civ. A. No. 2798.

United States District Court, S. D. Georgia.

February 12, 1979.

COPYRIGHT MATERIAL OMITTED

George H. Chamlee, Chamlee, Dubus, Sipple & Walter, Savannah, Ga., for Pacific Carrier, Gypsum Carrier, Inc., and Oceanic Carrier, Inc.

Kirk M. McAlpin, King & Spalding, Atlanta, Ga., Stanley R. Wright, Ulmer, Murchison, Ashby & Ball, Jacksonville, Fla., for Union Camp Corp.

David V. Hutchinson, Dept. of Justice, Admiralty and Shipping Section, Washington, D. C., for the U. S.

Arnold C. Young, Hunter, Houlihan, Maclean, Exley, Dunn & Connerat, Savannah, Ga., for Seaboard Coastline R. Co. as assignor of its rights to Pacific Carrier and its owner and charterer in settlement of its claim with the latter.

OPINION

LAWRENCE, Senior District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Background of Litigation

In threatening weather, unfavorable tide and with a tornado watch in effect for the immediate area, the 580 foot Pacific Carrier headed out to sea on the night of April 23, 1971. Shortly after she was undocked a very heavy rainfall commenced. About one mile from where the vessel had undocked she collided with the Seaboard Coastline Railroad Company bridge spanning the Savannah River nearly opposite the Union Camp Corporation. The Pacific Carrier completely missed the channel opening in the bridge and knocked the structure into the river.

Seaboard filed an in rem action in this Court against the Pacific Carrier^* and an in personam action against the owner and charterer.

The vessel petitioned for exoneration from and limitation of liability. Several claims were made by other vessels and companies for damages caused by the delay that ensued in clearing the wreckage so as to make the channel navigable.

Union Camp Corporation and the United States were subsequently impleaded by Pacific Carrier under Rule 14(c), F.R.Civ.P. The vessel's claim against such third-party defendants is that smoke from the stacks of the pulp mill suddenly obstructed vision from the bridge and that the Coast Guard negligently failed to require adequate lighting to mark the 200-foot opening in the lift.

Union Camp moved to dismiss on the ground that it was not subject to the admiralty jurisdiction. This Court on January 3, 1973, sustained that contention on the basis of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454. On appeal the Fifth Circuit reversed. It ruled that industrial smoke obscuring navigable waters constitutes a navigational hazard within the admiralty jurisdiction. In re Motorship Pacific Carrier, 489 F.2d 152, cert. den. 417 U.S. 931, 94 S.Ct. 2643, 41 L.Ed.2d 235.

The liability issue was tried before the Court on February 3-7, April 1-4, May 27-29, and August 26-29, 1975. On June 11, 1976, this Court was informed that a settlement agreement had been reached between the owner and charterer of the Pacific Carrier and Seaboard Coastline. Under the terms thereof, the Railroad agreed to assign to Pacific Carrier its claims against Union Camp and the United States acting through the Coast Guard. The assignment included the claims against Seaboard by other parties.

The settlement was subsequently consummated. Union Camp thereupon moved to dismiss the third-party action brought by the owners of the vessel on the ground that the settlement automatically released all joint tortfeasors, including Union Camp. It principally relied on Romero v. Frank's Casing Crew & Rental Tools, Inc., 229 F.Supp. 41 (W.D., La.), aff'd 342 F.2d 999 (5th Cir.) in which the district court dismissed a Jones Act claim because the injured seaman had settled a maritime tort action against a joint tortfeasor.¹

On March 3, 1977, this Court ruled that the assignment of such claims was valid and constituted a covenant not to sue rather than a release and therefore did not have the effect of releasing other joint tortfeasors. I based my decision primarily on Cates v. United States, 451 F.2d 411 (5th Cir.) in which Chief Judge Brown adopted what he called the "modern, sensible rule that the consequence of the release is to be determined by the intentions of the parties." 451 F.2d at 415. The Fifth Circuit allowed the action against the government despite plaintiff's release of a joint tortfeasor. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 342-48, 91 S.Ct. 795, 28 L.Ed.2d 77.

In the same Order I ruled that the Anti-Assignment Statute, 31 U.S.C. § 203, which voids assignments against the United States, is not applicable to actions brought under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq. See Seaboard Fruit Co., Inc. v. United States, 73 F.Supp. 732 (S.D.N.Y.).

As stated above, Pacific Carrier has settled with all parties except Union Camp and United States Coast Guard. The bond for stipulation of value of the vessel was dissolved by Order of Court dated November 8, 1978. The limitation of liability feature of the case thus became moot.

A final evidentiary session was held on June 28-30, 1976, at which time rebuttal evidence was heard. Oral argument, briefing, preparation of proposed Findings and Conclusions extended to early 1977. Because of my heavy workload I have been unable to spare since then the three weeks which have been devoted to the preparation of this Opinion in a case where the record runs to over 7,250 pages. Its incubus-like presence has bedeviled this Court for two years.

II. Issues

Two questions remain before this Court for determination. They are:

1. WHETHER AND TO WHAT EXTENT UNION CAMP; PACIFIC CARRIER, AND/OR THE UNITED STATES WERE AT FAULT.

2. WHETHER A PARTY SETTLING A CLAIM AND TAKING AN ASSIGNMENT OF ALL CLAIMS MAY RECOVER MORE THAN THE AMOUNT PAID IN SETTLEMENT.

III. Findings of Fact

1. Oceanic Carrier, Inc. owns the Pacific Carrier which at the time of the collision was being operated by Gypsum Carrier, Inc. as bareboat charterer and owner pro hac vice. The vessel was chartered to Caribbean Steamship Company for the purpose of shipping gypsum from Halifax to Savannah.

2. The Pacific Carrier is of Liberian registry. Her overall length is 579.83 feet, and her beam is 72.18 feet. It is diesel-powered and propelled by a single right-hand screw. The bridge is located aft. The port anchor and chain had been lost in February, 1971. It was not replaced. However, the ship remained in class with the American Bureau of Shipping under the condition that the anchor be replaced as quickly as possible.

The vessel carried a full complement of twenty-seven men and nine officers. She was completing her third voyage between Halifax and Savannah since March 24, 1971.

3. The Pacific Carrier docked at National Gypsum Company approximately one mile upstream from the Seaboard bridge on April 21, 1971, and proceeded to discharge her cargo.

4. The bridge is a vertical lift draw-bridge which provided a rail connection between the mainland and Hutchinson Island in the Savannah River. Its two hundred-foot opening is located in the center of the four hundred foot ship channel. The centerline bearing is 138 degrees true.

5. The bridge had been rammed by a vessel in 1966 and was badly damaged in the collision. A year later, the fender system was grazed by the Partula while piloted by Mr. Harry J. Padgett.

6. Following the 1966 collision, the bridge was repaired. Its design as originally built and as the structure was rebuilt after the collision, was formally approved by the Coast Guard. See Seaboard Airline R. Co. v. Pan American Petroleum and Transport Company, 199 F.2d 761 (5th Cir.).

7. The Coast Guard approved the same type lights for the rebuilt structure which were on the bridge prior to the 1966 collision. At the time of the 1971 collision, the lights in question fulfilled Coast Guard Regulations. There were four red pier protection lights, one on each fender; two red pier lights, one on each pier; and two green lift span lights. At the time of the collision, the Coast Guard had approved and Seaboard had installed temporary red flashing lights on the north side because of dredging operations in the Savannah River.

8. Union Camp Corporation operates a pulp, paper, and bag manufacturing plant on the south bank of the Savannah River. It is upriver from and nearly opposite the former Seaboard bridge. The plant is one of the largest integrated pulp and paper mills.

9. Smoke emitted during the manufacturing process sometimes obscures the Seaboard bridge. Following the 1966 collision, the United States Coast Guard was requested to improve the lighting on the bridge. River pilots had complained that smoke and fog was encountered at that point more frequently than elsewhere and that the condition impeded navigation. The Savannah Port Authority requested the Coast Guard to investigate the situation. The Union Camp plant was regarded by many persons working on the riverfront to be the major contributor to the smoke and haze problem in the vicinity of the bridge. A Coast Guard officer discussed the matter with plant officials. After conducting its own study, Union Camp denied that the emissions obstructed navigation. The Coast Guard took no further action other than refusing to approve the experimental use of fog penetrating lights on the bridge.

10. The discharge of the Pacific Carrier was completed at 9:30 P.M. on April 23rd. About that time, H. J. Padgett, the senior Savannah River pilot in point of service, came aboard. Padgett prepared to take the vessel out at once although there existed at the time a maximum ebb tide in the direction of the bridge. There was no urgency which necessitated immediate sailing. Weather conditions, as stated, were extremely unstable.

11. A strong cross current or sheer of approximately...