Nicholes v. M/V Maya

• Decision Date: 13 December 1996
• Docket Number: C/A No. 2:95-626-18.
• Citation: 949 F.Supp. 391
• Court: U.S. District Court — District of South Carolina
• Parties: James R. NICHOLES, Plaintiff, v. M/V MAYA, her engines, boilers, tackle, equipment, furniture, freights, and apparel, in rem, and Egon Oldendorff (Liberia), Inc., in personam, Defendants.

949 F.Supp. 391

James R. NICHOLES, Plaintiff, v. M/V MAYA, her engines, boilers, tackle, equipment, furniture, freights, and apparel, in rem, and Egon Oldendorff (Liberia), Inc., in personam, Defendants.

C/A No. 2:95-626-18.

United States District Court, D. South Carolina, Charleston Division.

December 13, 1996.

John Hughes Cooper, Sullivans Island, SC, Philip A. Middleton, Charleston, SC, for plaintiff.

Gordon Schreck, Julius Hines, Charleston, SC, for defendants.

ORDER

NORTON, District Judge.

This admiralty action is before the court for Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52. A bench trial was held before this court November 4-5, 1996. Because this court concludes that the commercial cargo vessel MAYA and those navigating her were not negligent on the date in question, the court finds in favor of Defendants.

I. FINDINGS OF FACT

1. Plaintiff, James R. Nicholes, is a 35 year-old citizen and resident of Charleston County.

2. Defendant Motor Vessel MAYA is a Liberian-flag containership owned and operated by Defendant Egon Oldendorff (Liberia), Inc., a Liberian corporation with its principal office in Monrovia.

3. Plaintiff testified that he had "been on the water" all of his life, getting his first boat at the age of 10. He was an avid recreational fisherman, intimately familiar with the waters in and around Charleston Harbor. In February of 1994, he purchased a new 24-foot aluminum Sea Ark "john" boat, powered by a 120 horsepower outboard motor. Plaintiff "customized" his boat for commercial fishing, installing a plywood floor and a small pilot house over the steering wheel console. He put running lights on the top of this pilot house, along with a 100-watt "dome light" to illuminate the forward end of the boat for night fishing.

4. Prior to the date of the accident in question, Plaintiff had been working with his cousins, Mark Moser and Grady Robison, crabbing, oystering and clamming, as the seasons permitted. Much of this commercial fishing activity took place in and around Charleston Harbor.

5. In the fall of 1994, the shrimp-baiting season opened in Charleston, and Plaintiff and his cousins purchased licenses and began shrimping on a daily basis, as weather permitted.¹

6. On the night of October 19, 1994, Plaintiff took his boat and, accompanied by his cousins Moser and Robison in Robison's 16-foot outboard, went out to their favorite shrimp-baiting spot off the southeast end of Shutes Folly Island, also known as Castle Pinckney, in Charleston Harbor.² They had been shrimp-baiting in this same spot for years. They arrived at Castle Pinckney around 2300 hours, intending to shrimp the three to four hour window prior to and after low tide, which was at 0250 hours in the early morning of October 20. The weather was good, with clear visibility and minimal wind and seas in Charleston Harbor.

7. Upon his arrival off Castle Pinckney, Plaintiff anchored his boat at a location approximately 150 feet east of the rear marker of Range C, a navigational aid used to assist outbound commercial shipping traffic transiting Horse Reach and Shutes Reach.³ At trial, Plaintiff identified the site of his anchorage by drawing a small circle on the chart near the rear range marker.

8. Plaintiff testified that he tested the water with a 16-foot bamboo pole before dropping his anchor, and the pole did not touch the ground. He estimated the water to be 15-20 feet deep. Plaintiff stated that he had never had problems in that location with wakes from ships, and had never seen breaking wakes on any prior occasion.

9. Meanwhile, Robison and Moser were "stobbing" out poles for shrimp baiting. Plaintiff testified that his companions were working in about 5 feet of water.

10. According to the Charleston Harbor chart, Plaintiff's anchorage was immediately adjacent to the main shipping channel designated for deep draft ocean going vessels entering and leaving Charleston. Plaintiff acknowledged at trial that he was aware of the shipping traffic transiting the harbor and of the wakes created by large commercial cargo vessels. He had observed ship wakes on previous occasions when he engaged in recreational and commercial fishing activity in and around the harbor.

11. Plaintiff testified that he expected wakes as high as 2-4 feet from shipping traffic passing Castle Pinckney. He also acknowledged that he was aware that when wakes from passing ships reach shallow water, they typically tend to "cap" or "break," and he admitted having seen 2-4 foot waves breaking in water depths of 3-4 feet near Castle Pinckney. Plaintiff conceded that wakes breaking in shallow water could pose a danger to small boats, but insisted that on the night in question, he had anchored his boat in relatively deep water where breaking wakes from passing ships should not have posed a problem for him.

12. Two Charleston harbor pilots who testified at trial, both with years of experience not only in navigating the channel in this vicinity but also operating their own pleasure boats at that location, stated that the water depths in this area were accurately reflected on the Charleston Harbor Chart as being 6 feet or less. While recognizing that the contour of an ocean bottom is not completely level, the court nevertheless finds that the water depths at low tide in the area where the Plaintiff indicates he was anchored were generally as shown on the chart and can best be described as "shallow."⁴

13. After anchoring, Plaintiff set about making up bait mud balls, sitting at the bow of his boat with the dome light shining down on him. He testified that the bow of his boat, anchored against the ebbing tide, was pointing towards Castle Pinckney, with the stern towards Crab Bank and the adjacent ship channel.

14. Although Plaintiff recalls five cargo ships passing Castle Pinckney earlier that evening, he admitted that he paid little attention to them or to other shipping traffic which may have been using the channel. Plaintiff was concentrating on making up his bait balls, and since he believed that he was anchored in a relatively deep spot, he had no reason to be concerned about the dangers associated with wakes from passing ships.

15. Plaintiff and his companions testified that during their shrimp-baiting activity that evening, they kept their running lights on and that the 100-watt dome light on Nicholes' boat was burning.

16. Plaintiff testified that at approximately 0100 on the morning of October 20, he left the front deck and went to the stern of his boat to relieve himself; that while in the stern of his boat he saw off in the distance something dark and moving, but that he could not identify it. After he looked at the puzzling dark shape for some time, he heard the sound of a wave breaking and then saw in the moonlight white portions of a "huge" breaking wave approaching him. At the same time, out of the "corner of his eye," Plaintiff observed the MAYA passing. The wave was coming from the Mt. Pleasant/Sullivans Island direction. The stern of Plaintiff's boat was facing the direction of the wave, which was moving west from the shipping channel.

17. Realizing that a breaking wave was approaching, Plaintiff rushed to the bow of his boat to haul in his anchor. He had just gotten the anchor in and had gone back to the pilot house to start his engine when the wave hit his boat, filled it with water, and "surfed" it into one of the pilings of the nearby range marker. The impact dented the bow of his boat and caused him to be thrown against the pilot house, injuring his neck, back, and shoulder.

18. Plaintiff's cousins testified that they also observed the wave send Plaintiff's boat into the range marker. Plaintiff, Robison, and Moser all testified that the wave was very large and came from the general direction of the harbor entrance (from the east) and moved toward peninsular Charleston (to the west). The only inbound ship at this time was the MAYA and the only known cause of such a wave was a large ship. Robison, though engaged in putting out poles upon initially noticing the wave, had no difficulty maneuvering his boat so as to avoid any adverse effect from the approaching wave.

19. Photographs of the collision damage to the bow of the Nicholes boat depict a large indentation where the bow of the Nicholes boat was forced around the shape of the piling. (Pl.'s Ex. 16-D).

20. Sgt. Ben Moise investigated the accident and interviewed Plaintiff just after the casualty. Sgt. Moise observed the plywood cabin and decks loosened by the impact and a quantity of barnacles and oyster shells on the front deck of Plaintiff's boat near the indentation. Sgt. Moise went to the range marker at low tide several days later and observed that the piling on the channel side of the range marker had been shaved of all of its shells for about 18-24 inches. This confirmed Plaintiff's story that the barnacles and oyster shells in the bow of Plaintiff's boat came from the piling on the range marker.

21. The MAYA was bound for the Wando Container Terminal in Charleston. According to the ship's log, she arrived at the Charleston Sea Buoy shortly before midnight on October 19, and at 2354 hours, Charleston Harbor Pilot W. Crayton Walters, III boarded to navigate the ship to her intended berth.⁵

22. Along with Pilot Walters on the bridge of the MAYA during her inbound transit were a bridge watch officer, a helmsman, a lookout, and Capt. Erich Struempell, a seasoned German ship captain with some twenty-five years of experience commanding cargo ships of all types and sizes.⁶

23. The MAYA is a standard gearless containership of 33,000 deadweight tons, having an overall length of 616 feet and a beam of 93.5 feet. She was built in 1984 and is powered by a direct-drive diesel engine, turning a single screw. There was no evidence that there was anything unusual about her hull configuration which would cause her to produce any unusually large wake at normal...