Pelican Marine Carriers, Inc. v. City of Tampa

• Decision Date: 14 April 1992
• Docket Number: No. 90-407-CIV-T-20C.,90-407-CIV-T-20C.
• Citation: 791 F. Supp. 845
• Parties: PELICAN MARINE CARRIERS, INC., Plaintiff, v. The CITY OF TAMPA, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

791 F. Supp. 845

PELICAN MARINE CARRIERS, INC., Plaintiff, v. The CITY OF TAMPA, et al., Defendants.

No. 90-407-CIV-T-20C.

United States District Court, M.D. Florida, Tampa Division.

April 14, 1992.

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Edward F. Gerace, Kass, Hodges & Massari, Tampa, Fla., for Pelican Marine Carriers, Inc.

Brooks Pettingill Hoyt, Mark Edwin Grantham, Holland & Knight, Tampa, Fla., for City of Tampa.

Clifford L. Somers, Somers & Associates, Tampa, Fla., for Misener Marine Inc. and Misener Marine Const., Inc.

ORDER

JENKINS, United States Magistrate Judge.

THIS CAUSE comes on for consideration of a diversity action for damages resulting from an allision involving the American flagged vessel, Louisiana Brimstone ("Louisiana"), which occurred on the westerly side of Sparkman Channel in Hillsborough County Florida on August 29, 1989. The parties consented to proceed before the Magistrate Judge pursuant to Title 28, United States Code, Section 636(c) and Fed. R.Civ.P. 73.

Summary judgment was granted in favor of defendants on July 30, 1991 on Count I which asserted claims of public and private nuisance and a private cause of action under Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq. (Dkt. 52).

The case proceeded to a non-jury trial on November 25 and 26, 1991 on Count II of the amended complaint which asserted a claim of negligence against the City of Tampa and Misener Marine Construction, Inc. These findings of fact and conclusions of law are submitted pursuant to Rule 52, Fed.R.Civ.P.

I Findings of Fact

1. The Louisiana is an American flagged tanker-type vessel measuring 612 feet in length and 80 feet in width, and having a gross tonnage of 13,199. The Louisiana is owned by the plaintiff, Pelican Marine Carriers, Inc. ("Pelican"), a corporation organized under the laws of Delaware and having its principal office for the transaction of business in a state other than Florida.

2. Defendant Misener Marine Construction, Inc. ("Misener") is a corporation organized under the laws of Florida and doing business in the State of Florida.

3. Defendant City of Tampa ("The City") is a governmental entity organized under the Constitution and laws of the State of Florida.

4. Sparkman Channel, a navigable waterway of the United States, is 400 feet in width and runs generally in a north-south direction. The published depth of the channel is 34 feet at mean low water.

5. In October, 1948, the City applied to the United States Corp of Army Engineers (the Corps) for a permit to construct a 48-inch sewer line under Sparkman Channel from Seddon Island (Harbor Island) to the mainland at Hooker's Point. The permit was granted on November 1, 1949 and incorporates drawings by the City which show the intended construction of the sewer line. The permit has never been amended or altered, and there have been no subsequent permits issued to the City in connection with the sewer line under Sparkman Channel.

6. On August 29, 1989, the Louisiana struck a portion of the sewer line which damaged the vessel's hull.

7. The permit for the sewer line issued by the Corps required that the top of the sewer pipe be no greater than forty (40) feet below mean low water for a full channel width of 400 feet and that the sewer line not constitute an unreasonable interference with navigation.

8. When constructed, however, the sewer line was at a depth of only 34.3 feet below mean low water as it transected the 400 foot channel before starting to rise towards the shoreline. Outside the channel, the slope of the banks and the sewer line was approximately 1:3 (one foot vertical rise for every three feet horizontal distance).

9. In 1958, the sewer line was damaged during a Corps dredging operation to deepen Sparkman Channel. On December 9, 1958, the City requested permission from the Corps to construct a concrete bulkhead on the Seddon Island side of the sewer line to protect the sewer line from future damage.

10. In a letter to the City dated December 18, 1958, the Corps stated that if the sewer line "had been placed in full accordance with the permit dated November 1, 1949, it is probable that no damage from the dredging operation would have been encountered." The letter noted the disparity between the pipe elevation specified in the permit — 40 feet below mean low water — and as shown by probings by the Corps taken before the dredging operation — 34.3 feet below mean low water.

11. The Corps' letter also noted that "concrete boxes may be present at various points along the pipe and that the elevation of these boxes may be even greater than the elevation determined by the probings shown on the attached sheet." The letter warned that the proposed concrete bulk-head would be a "menace to navigation in the sense that any vessel which for any reason veered outside of the strict limits of the channel could well be damaged," and stated that the "best method of protection" would be to lower the sewer line.

12. The City did not lower the sewer line or build the proposed bulk-head but placed a concrete cap at the site of damage to the sewer line from the 1958 accident.

13. In 1982, the sewer line blew a hole at the site of the concrete cap, and the City contracted Misener to repair the cap. Norm Van Pelt, a commercial diver, was Misener's superintendent in charge of the sewer line repair project.

14. In order to repair the sewer line, Misener first had to visualize the leak by removing ten (10) feet of mud or overburden. The crew then jackhammered concrete from the center of the concrete cap until the leak was exposed. Misener removed as much of the broken concrete as it could because it would have been a hazard to navigation to leave the concrete pieces in the channel.

15. Misener repaired the cap by pumping approximately ten (10) cubic yards of concrete into the structure. Misener did not remove all of the old concrete prior to pumping the new concrete, as the jackhammering did not reach the edges of the original concrete cap.

16. Misener submitted a proposal to the City regarding repair of the sewer line, and the City approved the plan. The City did not provide any directions to Misener regarding the elevation of the repair, nor did the City instruct Misener to place a buoy or any other warning device at the site of the cap.

17. After Misener's repair in 1982, there was approximately three to five feet of concrete over the sewer line at the cap site, and the top of the concrete cap was approximately thirty (30) feet below mean low water level.

18. Misener did not change the dimensions of the concrete cap which the City constructed on the sewer line after the 1958 accident. The cap repaired by Misener did not rise any higher after the repair job done by Misener in 1982 than it did prior to the repair.

19. At the time of the allision, the existence of the sewer line crossing Sparkman Channel was noted on the Corps' survey charts and reports which, according to the Coast Guard, are "available and commonly referenced by the pilots." However, neither the sewer line nor the concrete cap was noted on navigation charts and there was no surface marker marking the area of the cap at the time of the allision involving the Louisiana.

20. The pilot of the Louisiana, Warwick Cahill, knew of the general location of the sewer line crossing Sparkman Channel from the charts, as well as the fact that a warning sign had existed in the past on Seddon Island. However he did not know about the concrete cap located on top of the sewer line just outside the channel. The master of the ship, Captain Alan Hopkins, was not aware of the existence of the sewer line or cap at the time of the allision.

21. Based on their experience navigating Sparkman Channel, Pilot Cahill and Captain Hopkins had reason to believe that the bottom surface outside the channel was soft mud and did not present a hazard to navigation. It was not uncommon for vessels to leave the channel limits during docking maneuvers in the turning basin and other areas.

22. Both Pilot Cahill and Captain Hopkins held valid First Class Pilot's Certificates for Tampa Bay issued by the United States Coast Guard.

23. On August 29, 1989, the Louisiana was navigating Sparkman Channel and headed for Freeport Sulphur dock located on the east side of the channel. The Louisiana was loaded with a cargo of liquid sulphur to a mean draft of 33 feet, 6 inches.

24. There were no adverse weather conditions limiting visibility or navigation.

25. Both pilot and master were participating in the management of the vessel.

26. The usual docking approach of the Louisiana was to turn the vessel in an area off of the Tampa Shipyards and back her into the Freeport dock so that the vessel would be portside to berth.

27. On August 29, 1989, Pilot Cahill and Captain Hopkins used a different docking approach due to recent shoaling in the area. Captain Hopkins had used this approach on one prior occasion. The Louisiana proceeded north up Sparkman Channel to the Ybor City Turning Basin, turned south and headed back to the Freeport berth, approaching bow first instead.

28. This approach required that the Louisiana pass the Pennsylvania Trader, a petroleum tanker docked just north of the Freeport Sulphur dock. In order to pass the Pennsylvania, the Louisiana was required to veer to the west of the channel centerline.

29. As the Louisiana exited the turning basin, the tugs YVONNE and EDNA were accompanying her with slack lines. Engine speed was half a head leaving the basin at 1531 hours. At 1533 hours the Louisiana put her engine slow ahead. At 1538 hours the Louisiana put her engine dead slow ahead to approach and pass PENNSYLVANIA TRADER. At 1540 hours the Louisiana stopped her engine.

30. As the Louisiana lost headway, YVONNE was ordered to push the bow to port i.e. to the east or away from Seddon Island and toward Hooker's Point. This was the first...