Hercules Carriers, Inc. v. Claimant State of Fla., Dept. of Transp.
| Decision Date | 26 August 1985 |
| Docket Number | Nos. 82-5733,83-3242 and 83-3591,s. 82-5733 |
| Citation | 768 F.2d 1558 |
| Parties | In the Matter of the Complaint of HERCULES CARRIERS, INC., etc., Plaintiff- Appellant, v. CLAIMANT STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, et al., Defendants- Appellees. In the Matter of the Complaint of HERCULES CARRIERS, INC., etc., Cross- Appellee, v. CLAIMANT STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, et al., Cross- Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Dewey R. Villareal, Jr., Carl R. Nelson, Tampa, Fla., J.M. Morse, III, Tallahassee, Fla., for plaintiff-appellant.
G. Morton Good, Miami, Fla., James A. Martin, Jr., Clearwater, Fla., Richard G. Rumrell, Jacksonville, Fla., Charles P. Schropp, Raymond T. Elligett, David G. Hanlon, Tampa, Fla., for State Dept. of Transp.
Richard F. Ralph, Miami, Fla., for Greyhound Bus Lines, Inc.
David V. Hutchinson, Civ. Div., Torts Branch, U.S. Dept. of Justice, Washington, D.C., for U.S.
Roger A. Vaughan, Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, Fla., for all Death & Personal Injury Claimants.
Appeals from the United States District Court for the Middle District of Florida.
Before JOHNSON and CLARK, Circuit Judges, and LYNNE *, District Judge.
This is a consolidated appeal involving three cases arising out of the allision of the SUMMIT VENTURE with the Sunshine Skyway Bridge near the mouth of Tampa Bay on May 9, 1980. In No. 82-5733, the district court granted the claimants' motion for partial summary judgment on the issue of exoneration. Hercules has appealed this order but as discussed below the ruling of the district court on Hercules' right to limit its liability pursuant to 46 U.S.C. Secs. 183, et seq., has rendered this appeal moot. After entry of partial summary judgment on the exoneration issue, a bench trial was had on the issue of limitation of liability. The district court ruled that Hercules was not entitled to a limitation of liability. Case No. 83-3242 involves Hercules' appeal from this order. After the bench trial Hercules moved for exoneration from liability as to the State of Florida, arguing that the State was collaterally estopped from seeking recovery based upon the negligence of Pilot Lerro because a prior state administrative proceeding had found Pilot Lerro non-negligent and refused to revoke his pilot's license. The district court denied the motion, finding that the doctrine of collateral estoppel did not apply in this case. We affirm the three orders of the district court consolidated in this appeal.
The following facts were stipulated to by the parties and recited by the district court. In re Complaint of Hercules Carriers, Inc., 566 F.Supp. 962 (M.D.Fla.1983):
Hercules Carriers, Inc., a Liberian corporation, was the registered owner of the SUMMIT VENTURE at all material times. Hercules Carriers, Inc., had time chartered the SUMMIT VENTURE to Showa Lines at all material times. Showa Lines had sub-chartered the vessel to Yamashita Shinnihon Lines at all material times. The SUMMIT VENTURE came to Tampa to load a cargo of bulk phosphate products. She arrived off the sea buoy on May 6, 1980, at 1634 hours. The ship had called at Tampa once in each of the preceding three years.
Dates and times as noted in the logbooks, bell books, engine order logger, and course recorder of the SUMMIT VENTURE are the best evidence of the facts as to those dates and times. The SUMMIT VENTURE was a diesel powered bulk carrier with the engine room and super structure aft. She was built in 1976 in Japan to the rules of the American Bureau of Shipping and was 609 feet in length, 51 feet in depth, 85 feet in breadth, and was, on the morning of May 9, 1980, drawing 9 feet forward and 21 feet aft. She was equipped with two 3-centimeter radars manufactured by Japan Radio Corporation.
The SUMMIT VENTURE was originally scheduled to get underway from her anchorage near the Tampa sea buoy on May 9, 1980, at or about 0500. The vessel's schedule was delayed at the recommendation of the pilot. Her anchor was heaved up at 0543 and she proceeded towards the sea buoy where she was boarded by Tampa Bay Deputy Pilot Lerro and Tampa Bay Observer Pilot Atkins at about 0625 near the entrance to the Egmont Channel. Shortly thereafter Atkins took the conn and conducted the vessel into Egmont Channel. After the pilots took the conn, the master did not take it again before the collision. The engine speed was increased to full speed ahead at 0650. At 0639 the vessel passed buoys 3 and 4 in Egmont Channel. At 0706 the vessel passed Egmont Key lighthouse. At 0721 the engine speed was ordered reduced to half ahead. At 0723 the vessel was at buoys 15 and 16. When the vessel reached a position two-tenths of a mile west from buoys 1A and 2A, radar contact with the buoys was lost. When the vessel was one-tenth of a mile west from buoys 1A and 2A, radar contact was regained for one or two sweeps of one radar. At 0731 the engine speed was ordered reduced to slow ahead. At 0732.5, Lerro ordered double full astern, hard aport, and let go anchors.
Subsequently, the starboard bow of the SUMMIT VENTURE came into contact with pier 2S on the Sunshine Skyway Bridge. A part of the bridge fell on the forecastle of the vessel and the spans of the bridge going northward from pier 3S to more than halfway between 1S and 1N collapsed. Several vehicles fell into the bay, including a Greyhound bus, resulting in the deaths of 35 people and injuries to one.
At all material times Venture Shipping (Managers) Ltd. was the general agent and Wah Kwong Shipping Agency Company, Ltd. was the sub-agent for Hercules Carriers, Inc. with respect to the SUMMIT VENTURE.
There was no error in the SUMMIT VENTURE's gyro compass. The gyro compass accurately indicated true headings. Deputy Pilot Lerro was a compulsory pilot. At all material times the 1970 edition of East Coasts of Central America and Gulf of Mexico Pilot was onboard the SUMMIT VENTURE.
Hercules, 566 F.Supp. at 966-67.
The following facts were adduced from the evidence at trial and are not contested on appeal:
The SUMMIT VENTURE was owned by Hercules Carriers, Inc., a Liberian corporation, and the vessel was registered under the laws of the Republic of Liberia. The stock of Hercules Carriers, Inc. was owned by a wholly owned subsidiary of Wah Kwong Shipping & Investment Co., Ltd., of Hong Kong. Hercules Carriers, Inc. appointed Venture Shipping (Managers), Ltd. as its general agent for the oversight of the building and operation of the SUMMIT VENTURE. Venture Shipping (Managers), Ltd. appointed Wah Kwong Shipping Agency Company as the sub-agent for the oversight of the construction, crewing, and operation of the vessel.
On May 9, 1980, the navigating team of the SUMMIT VENTURE was composed of Deputy Pilot John Lerro, Observer Pilot Bruce R. Atkins, Captain Hsiung Chu Liu, and Chief Officer Chan Csin Yee. Off watch and not involved in the navigation at material times were Second Officer Sun Chi Kong and Third Officer Lai Ying Ki. The bo'sun (lookout) was Sit Hau Po, the carpenter (anchor watch) was Lok Lin Ming, and the helmsman was Wong Sau Ho, an able bodied seaman.
Hercules, 566 F.Supp. at 967-68.
Second Officer Sun Chi Kong, in the normal course of his duties, made entries in the SUMMIT VENTURE's deck log in English. He also prepared deck log abstracts in English.
After the allision, Hercules Carriers, Inc. (Hercules) filed a limitation action under the Limitation of Liability Act, 46 U.S.C. Sec. 183, et seq., and Rule F of the Supplemental Rules for Certain Admiralty Claims, asking for either exoneration or limitation of liability. The claimants against Hercules included the State of Florida for damage to the bridge, Greyhound Bus Company for loss of a bus that fell off the bridge when it collapsed, wrongful death and personal injury claimants, and other shipping companies whose vessels were delayed in traveling into or out of Tampa Bay as a result of the accident. Hercules filed counterclaims against Florida and Greyhound and brought in the United States as a third-party defendant for allegedly improper weather warnings. The United States counterclaimed against Hercules.
Several of these claims are not before this court. Hercules obtained summary judgment against the delay claimants 1 and neither the claim against the United States nor any of the various counterclaims have yet come to trial. The personal injury and wrongful death claims have been resolved and are not before us on this appeal. Additionally, the claim of Greyhound Bus Lines, Inc., and Hercules' counter-claim against Greyhound have been settled. The three appeals before this court encompass the State of Florida's claim against Hercules for damages caused to the Sunshine Skyway Bridge and Hercules' defense that it was entitled to exoneration or in the alternative a limitation of liability. Because the appeals involved in 82-5733 and 83-3591, ultimately turn on the district court's finding that Hercules was not entitled to a limitation of liability (No. 83-3242), we will first address appellant's appeal of that issue.
Title 46 U.S.C. Sec. 183(a) provides:
The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
Under this statute, Hercules is liable beyond the value of the ship if it had privity and knowledge before the start of the voyage of the acts of...
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