NAT. SHIPPING CO. v. Moran Mid-Atlantic Corp.
| Decision Date | 25 April 1996 |
| Docket Number | No. 2:95cv258.,2:95cv258. |
| Citation | 924 F. Supp. 1436,1996 AMC 2604 |
| Parties | NATIONAL SHIPPING COMPANY OF SAUDI ARABIA (NSCSA), Plaintiff, v. MORAN MID-ATLANTIC CORPORATION, in personam, Moran Trade Corporation of Delaware, in personam, Moran Towing of Virginia, Inc., a division of Moran Mid-Atlantic Corporation, in personam, and M/V HARRIET MORAN, her engines, tackle, apparel, etc., in rem, Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
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John R. Crumpler, Megan E. Burns, Kaufman & Canoles, Norfolk, VA, Patrick J. Bonner, Freehil, Hogan & Mahar, New York City, for Plaintiff.
Patrick A. Genzler, Mark T. Coberly, Vandeventer, Black, Meredith & Martin, Norfolk, VA, for Defendants Moran Mid-Atlantic Corporation, in personam, Moran Trade Corporation of Delaware, in personam, Moran Towing of Virginia, Inc., a division of Moran Mid-Atlantic Corporation, in personam, and M/V HARRIET MORAN, her engines, tackle, apparel, etc., in rem.
This controversy began on December 1, 1993, when the HARRIET MORAN, a tug owned by Defendant Moran Trade Corporation of Delaware and operated by Defendant Moran Towing of Virginia (Defendants referred to collectively as "Moran"),1 collided with the M/V SAUDI DIRIYAH, a vessel owned and operated by Plaintiff National Shipping Company of Saudi Arabia ("NSCSA"). As a result of the collision, approximately 9,000 gallons of fuel oil spilled into the Elizabeth River. NSCSA accepted immediate responsibility for the spill and coordinated its cleanup under the Oil Pollution Act of 1990 ("OPA"). NSCSA then brought this action against Moran, claiming that the oil spill was caused by Moran's negligence. It argues that Moran is obligated to reimburse NSCSA for the cost of the cleanup and the expenses it incurred compensating victims of the spill. Moran filed a counterclaim against NSCSA, alleging that the oil spill was caused by NSCSA's negligence and seeking indemnity from NSCSA for any liability Moran faces from third party claimants.
In its Second Amended Verified Complaint, NSCSA asserts four causes of action pursuant to: (1) general maritime law; (2) Virginia's State Water Control Law, Va.Code Ann. § 62.1-44.34:18(C)(4); (3) Virginia common law; and (4) the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq. On June 15, 1995, Moran filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By order filed August 14, 1995, this Court granted in part Moran's motion. The Court dismissed NSCSA's claim for recovery of removal costs and the cost of compensating victims of the spill under the State Water Control Law, Va.Code Ann. 62.1-44.34:18(C)(4), and NSCSA's claim, in its original complaint, for recovery under the Clean Water Act. The Court, however, retained NSCSA's right to proceed under the State Water Control Law to recover damages to its own property resulting from the collision.
On January 16, 1996, this case came before the Court for a non-jury trial. Evidence was presented over the course of three days. On February 20, 1996, each side submitted proposed findings of fact and conclusions of law. The Court later heard closing arguments, and the matter is now ripe for determination.
The M/V SAUDI DIRIYAH is a roll-on, roll-off cargo vessel of 25,036 gross registered tons with a length of 248.72 meters and a beam of 32.28 meters. The stern of the vessel is flared outward from the waterline, The reduced drag achieved by this hull configuration allows the vessel to maintain a high rate of speed while carrying a full container load. The M/V SAUDI DIRIYAH is owned and operated by NSCSA.
The HARRIET MORAN is a tug boat of 252 gross registered tons with a length of 92 feet and a beam of 29 feet. The HARRIET MORAN is owned by Moran Trade Corporation of Delaware. During the relevant time period, the tug was bareboat chartered to Moran Towing of Virginia, a division of Moran Mid-Atlantic Corporation.
On December 1, 1993, the M/V SAUDI DIRIYAH was docked at Container Berth One at the Norfolk International Terminals ("NIT") in Norfolk, Virginia. She faced due north with her starboard side against the berth. The Master of the M/V SAUDI DIRIYAH was Captain Mario Grech. The vessel was scheduled to undock and shift to Lambert's Point Docks ("Lambert's Point") at 11:00 p.m. that evening. Lambert's Point is three to four miles upstream from NIT on the Elizabeth River.
NSCSA hired Captain John R. Morey, a docking pilot, to direct the shift to Lambert's Point. NSCSA contracted with Moran to provide tug assistance. Moran provided two tugs for the shift, the CAPE HENRY and the HARRIET MORAN. The Captain of the CAPE HENRY was Alvin Doucet; the Captain of the HARRIET MORAN was William Lusk. Moran tugs had docked and undocked the M/V SAUDI DIRIYAH and her sister ships with identical hull designs on other occasions. Captain Lusk himself, on one previous occasion, docked the M/V SAUDI DIRIYAH. Captain Lusk was an experienced tug master, and he was well aware of the flared hull design of the M/V SAUDI DIRIYAH.
On the night of December 1, 1993, visibility was good, and the river was calm. Captain Morey, the docking pilot, boarded the M/V SAUDI DIRIYAH at 10:45 p.m. At about the same time, the tugs arrived at NIT. While the ship's lines were taken in, the tugs held the vessel against the pier for about fifteen minutes. The HARRIET MORAN was on the port quarter; the CAPE HENRY was on the starboard bow. During this procedure, Captain Lusk observed the cut-away, flared stern of the M/V SAUDI DIRIYAH.
The undocking began at 11:04 p.m. Captain Grech, Master of the M/V SAUDI DIRIYAH, breasted the vessel off the pier by using the ship's bow and stern thrusters. These thrusters are propellers mounted on the side of the vessel, under the water line, inside tunnels approximately two meters in diameter. Each propeller is powered by a 1,800 horsepower engine. The thrusters are used to move the vessel sideways or to turn the vessel when there is little room for maneuvering.
At 11:07 p.m., after breasting the ship about 100 feet away from the pier, Captain Grech used the thrusters to make a port, counter-clockwise turn toward the Norfolk Harbor Reach. In its pier at NIT, the M/V SAUDI DIRIYAH was heading due north. To effect the shift to Lambert's Point, which is south/southeast of NIT, the vessel had to make a 180 degree turn from her position at NIT. Because of the need to make this turn in a tight space, Captain Grech engaged the thrusters.
At 11:13 p.m., after the vessel had partially completed its 180 degree turn to port, the thrusters were stopped and the engines were ordered dead slow ahead. At this point, Captain Morey had the command of the vessel. He commenced an eleven degree starboard turn which took place over the course of 2.7 minutes. This starboard turn, or correction, was necessary to line up the vessel with the channel, while avoiding shallow water. Because the turn to starboard was slight, the thrusters were not engaged.
While the ship was making the eleven degree starboard correction, Captain Morey ordered the CAPE HENRY to lay on the starboard bow. He then radioed Captain Lusk on the HARRIET MORAN and ordered him to come in on the port quarter to assist with the turn into the river. Captain Lusk asked Captain Morey, "Do you want me to come in now?" Captain Morey responded, "No," and ordered Captain Lusk to hold off until the vessel had completed its starboard correction. After the vessel stopped turning to starboard, Captain Morey ordered Captain Lusk to come in on the port quarter to assist with the turn into the channel.2
At 11:16 p.m., in accordance with Captain Morey's order, Captain Lusk maneuvered the HARRIET MORAN alongside the port quarter of the M/V SAUDI DIRIYAH. Captain Lusk intended to land with the starboard shoulder of his tug against the port quarter of the ship. Instead, the stern of the tug made first contact. One of the tug's starboard quarter bitts struck the M/V SAUDI DIRIYAH and put a nine inch gash in her hull. The gash was in the flared portion of the vessel's stern near the "Dutch" chock, a place on the vessel's where tugs customarily either push or pull the vessel with a rope. The collision punctured the M/V SAUDI DIRIYAH's fuel oil settling tank. Fuel oil immediately began spilling into the Elizabeth River.
Other than Captain Lusk, no one on either the M/V SAUDI DIRIYAH or the HARRIET MORAN saw, heard, or felt the collision. The M/V SAUDI DIRIYAH had no markings on her hull indicating where a tug should land or where a tug should not land. No sign alerted tug pilots to the location of the fuel oil settling tank. Captain Lusk was not advised of the flared design of M/V SAUDI DIRIYAH's hull or of the location of the fuel oil settling tank. As mentioned above, however, Captain Lusk was well aware of the vessel's flared stern, having docked and undocked the M/V SAUDI DIRIYAH and her sister ships on previous occasions. When the collision occurred, the HARRIET MORAN had no lookout other than Captain Lusk in the wheelhouse. Captain Lusk testified that if he had posted a lookout it would have been Eddie Sanders, the chief engineer, who was in the galley at the time of the collision.
Shortly after the collision occurred, Chief Engineer Sanders came onto the deck of the HARRIET MORAN and smelled a stench, which he believed to be either petroleum or bilge water. He also saw that something was being discharged from the ship. After investigating, he notified Captain Lusk that oil or messy bilge water was coming from the M/V SAUDI DIRIYAH. At 11:18 p.m., Captain Lusk radioed Captain Morey on the bridge of the M/V SAUDI DIRIYAH and advised him that the vessel was pumping something overboard on the port quarter. Captain Lusk testified that he told Captain Morey that oil was coming from the M/V SAUDI...
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