Grosse Ile Bridge Co. v. American Steamship Co.

• Decision Date: 09 September 2002
• Docket Number: No. 00-2459.,00-2459.
• Citation: 302 F.3d 616
• Parties: GROSSE ILE BRIDGE COMPANY, Plaintiff-Appellant, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

302 F.3d 616

GROSSE ILE BRIDGE COMPANY, Plaintiff-Appellant, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellee.

No. 00-2459.

United States Court of Appeals, Sixth Circuit.

Argued: August 9, 2002.

Decided and Filed: September 9, 2002.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Robert T. Coniam, Ray, Robinson, Carle & Davies, Cleveland, OH, for Appellant. Thomas W. Emery, Garan, Lucow, Miller, P.C., Detroit, MI, for Appellee.

ON BRIEF:

Robert T. Coniam, William D. Carle, III, Ray, Robinson, Carle & Davies, Cleveland, OH, for Appellant. Thomas W. Emery, David M. Shafer, Garan, Lucow, Miller, P.C., Detroit, MI, for Appellee.

Before KEITH, MOORE, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

On September 6, 1992, the M/V H. Lee White, a 700 foot cargo freighter carrying 67 million pounds of iron ore, struck the Grosse Ile Toll Bridge, a pivot-swinging drawbridge on the Trenton Channel of the Detroit River. The Grosse Ile Bridge Company filed suit against the American Steamship Company, which owns the M/V White, seeking to recover damages to the bridge on the basis that the collision was caused by the M/V White's negligence. Following a bench trial, the district court found that the M/V White bore no responsibility for the accident, and therefore denied recovery. Grosse Ile now concedes that it was at fault for not timely swinging the bridge open, but argues on appeal that the M/V White was also partly at fault for failing to timely stop when it had the opportunity to do so. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

The Grosse Ile Toll Bridge is a privately owned bridge over the Detroit River that opened to traffic in 1913. It has a swing span in its center section that pivots open. The swing span is 305 feet long and takes approximately one and a half minutes to completely open after the bridgetender activates the pivot mechanism. Bracketing the swing section on both sides are fixed spans that are 180 feet in length. When the swing span is open, two 125-foot "draws" are created on either side of the bridge's pivot point. The bridge thus presents a tight passage for a ship such as the M/V White, which is 78 feet wide.

On September 6, 1992, which was a clear, sunny day, the M/V White was proceeding south on the Trenton Channel of the Detroit River toward its destination beyond the Grosse Ile Toll Bridge. The bridge operators knew that the M/V White was coming, because the ship had radioed notice to the operators the day before. Bridgetenders Donald Ryan and John Tonkovich testified that they expected the ship to arrive shortly after they came on duty at 2:00 p.m. that day.

Ryan was posted in the toll booth with a walkie-talkie. His duties involved taking tolls from passing traffic and lowering the traffic gates to clear the bridge of vehicles whenever the bridge needed to be opened for river traffic. Tonkovich was stationed in the office, which has a window looking northward onto the Trenton Channel. As the bridgetender manning the office, Tonkovich was responsible for monitoring radio communications from the Coast Guard and responding to requests to open the bridge by vessels on the channel. He was also charged with operating the mechanism for opening the bridge, which is situated on top of the office and accessed by ladder.

More than a mile above the bridge, the M/V White picked up two tugboats to help control the ship's lateral movement as it passed through one of the bridge's draws. Richard Sibbersen, captain of the tugboat that attached itself to the M/V White's bow, testified that he informed one of the bridgetenders over the radio that the ship and its tugboats would be at the bridge in the next 10 to 15 minutes. Tonkovich, the bridgetender who received the call, acknowledged the information by saying, according to Captain Sibbersen, that "they would be looking for us."

After the two tugboats began moving down the river at between five and seven miles per hour, Captain Sibbersen again called the bridge by radio. He said: "We're on our way down, we'll be down there in about five minutes or so," to which Tonkovich responded: "Fine. We see you. We'll be ready for you." Captain Sibbersen radioed a second time to tell the bridgetenders that he would be giving a whistle signal for the bridge to open in just a couple of minutes, and to ask them if they would be ready to open the bridge. Tonkovich replied: "Fine, okay." The whistle signal to open the bridge was given by Captain Sibbersen on his tugboat's whistle just after the M/V White reached Red Buoy 28, the point in the channel where it is customary to give the signal when towing a ship. But the bridge did not respond, so Captain Sibbersen blew a second open-bridge signal on his tugboat's whistle. He also radioed Tonkovich for a third time, but received no reply.

Despite these radio calls and whistle signals, Captain Sibbersen saw vehicular traffic still moving on the toll bridge. So did Richard Gasco, the lookout on the bow of the M/V White, as the ship approached Green Buoy 25 and Red Buoy 26. These buoys, located approximately 2,000 feet above the bridge, are effectively the point of no return for a ship the size of the M/V White. The custom and practice of the bridge was to begin opening the pivotal span for a ship no later than Red Buoy 28, which is 3,000 feet north of Buoys 25 and 26.

Upon reaching the point of no return, Captain Sibbersen blew the danger signal to the bridge on his tugboat's whistle. John Gapczynski, captain of the M/V White, also blew the danger signal, which he repeated as the ship passed the buoys. These danger signals — each one consisting of five short whistle blasts — were heard by witnesses on the shore. In addition to all the whistles, Michael Mehall, a pleasure boater who was next to the bridge and sitting on the top of his boat at the elevation of the bridgetender's office about 12 feet above the water, yelled to Tonkovich that the ship was approaching the bridge. But the bridge remained closed. Allen Wilson, another pleasure boater in the vicinity, testified that the bridge's yellow light, a signal that the bridge is opening, was flashing as the ship's bow passed Green Buoy 25 and Red Buoy 26.

But neither the M/V White nor the tugboats saw the light or any other sign that the bridge was about to open, and the district court made no finding as to whether the yellow light was in fact on or off. Gasco, the lookout, testified that he was aware that a flashing yellow light is one method that a bridge can use to signal that it is about to open, but said that he did not specifically look for such a light on the day of the accident because it would have been difficult to see in sunny conditions. Instead, he focused on other signs that the bridge was opening, such as the traffic on the bridge.

Soon after the ship passed the point of no return, Gasco saw a car hurriedly back away from the center section of the bridge. Interpreting this as a sign that the bridge was about to open, Gasco told Captain Gapczynski that the vehicular traffic had finally cleared away. But then Gasco saw two more vehicles drive onto the center section. Hearing this, Captain Gapczynski decided that he had to stop the M/V White in order to avoid a collision. In attempting to do so, Captain Gapczynski first radioed to the tugboats that he was going to back down the M/V White's engine, even though this would cause the bow of the freighter to swing to the port side. He told Captain Sibbersen to move his tugboat from the bow to the starboard flank of the ship in order to partially counteract the movement to port. The M/V White's engine was then put into reverse, causing the bow to veer to port and thus lose alignment with the planned draw through the open bridge.

Sometime after these measures were taken, the bridge finally began to open. When the M/V White was just 200 to 300-feet from the bridge, the ship dropped its 13,000 pound port-bow anchor. The M/V White had come to an almost complete stop when it reached the bridge, but its bow tapped the stationary span on the east side of the bridge. Because of the huge momentum of a ship laden with 67 million pounds of iron ore, this slight tap was enough to knock the entire 180-foot span into the water. Fortunately, no one was injured. The bridge, as it turned out, had fully opened by the time the ship hit the stationary span.

Why the bridge failed to timely open is less than clear. Tonkovich testified that he simply thought he had more time to open the bridge than he did, and that he did not hear the ship's second danger signal. Ryan offered no justification. There was testimony from one of the off-duty bridgetenders, however, that Ryan appeared to have been drinking alcohol when he reported for duty at 2:00 p.m. on the date of the accident.

Grosse Ile sued American Steamship to recover damages to the bridge. After a seven-week bench trial, the district court found that the bridgetenders had failed to timely open the bridge for the M/V White despite receiving multiple notices of the ship's approach. The district court concluded that Grosse Ile's "actions and lack of action in this matter caused the [co]llision," and that the M/V White bore no responsibility for the accident. Grosse Ile then filed this timely appeal.

II. ANALYSIS

A. Standard of review

The district court's apportionment of fault is subject to review under the clearly erroneous standard. In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205 (6th Cir.1995) (affirming the district court's apportionment of fault in an admiralty case using the clearly erroneous standard); Todd Shipyards Corp. v. Turbine Serv., Inc., 674 F.2d 401, 405 (5th Cir.1982) (holding that, in an admiralty case, "questions concerning ... the existence of negligence and proximate causation are treated as factual issues and are thus subject to...