Reliable Transfer Co., Inc. v. United States, 540

• Citation: 497 F.2d 1036
• Decision Date: 23 May 1974
• Docket Number: Dockets 73-1513,No. 540,803,73-2325.,540
• Parties: RELIABLE TRANSFER CO., INC., Plaintiff-Appellee and Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 1036 (1974)

RELIABLE TRANSFER CO., INC., Plaintiff-Appellee and Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant and Cross-Appellee.

Nos. 540, 803, Dockets 73-1513, 73-2325.

United States Court of Appeals, Second Circuit.

Argued February 19, 1974.

Decided May 23, 1974.

Herbert B. Halberg, New York City (Krisel, Beck & Halberg, New York City, on the brief), for plaintiff-appellee and cross-appellant Reliable Transfer Co., Inc.

Janis G. Schulmeisters, Atty., Admir. & Ship. Section, Dept. of Justice, New York City (Harlington Wood, Jr., Asst. Atty. Gen., Washington, D. C., Robert A. Morse, U. S. Atty., Brooklyn, N. Y., and Gilbert S. Fleischer, Atty. in Charge, Admir. & Ship. Section, Dept. of Justice, New York City, on the brief), for defendant-appellant and cross-appellee United States.

Before LUMBARD, FRIENDLY and TIMBERS, Circuit Judges.

PER CURIAM:

This case arises from a little saga of the sea — this time involving a coastal tanker, the Mary A. Whalen, that got lost in the waters just outside New York harbor on a clear night in December 1968 when the seas were rough, the tide was running strong and a breakwater light maintained by the Coast Guard was out. The tanker ended up stranded on a sand bar off Rockaway Point.

The owner of the tanker, Reliable Transfer Co., Inc., invoking the admiralty and maritime jurisdiction of the district court under the Suits In Admiralty Act, 46 U.S.C. § 741 et seq. (1970), sued the United States to recover damages sustained by the stranded tanker.

After a bench trial in the Eastern District of New York before Orrin G. Judd, District Judge, the court found that the stranding of the tanker was caused 25% by the negligence of the Coast Guard in its failure properly to maintain the breakwater light and 75% by the negligence of the vessel in making a U-turn in a dangerous channel when its captain knew that the breakwater light was not operating. The court held under controlling law that each party should bear half of the damages.

We hold that the court was not clearly erroneous in finding that the negligence of both parties, in the proportions stated, caused the stranding.

The vessel's claim that it was not at fault borders on the frivolous; under circumstances requiring extreme care in navigation and with adequate navigation instruments available, the captain simply got lost and was considerably further north than he thought when he made a U-turn in a dangerous channel knowing that the breakwater light was not operating.

We also reject the government's claim that its failure properly to maintain the breakwater light was merely a condition rather than a cause of the stranding. Surely it was a but-for cause. The court found, as common sense would dictate, that if the breakwater light had been operating the captain would not have stranded the vessel. Viewing the government's claim as essentially a variation of the last clear chance doctrine — given the captain's knowledge of the dangerous situation, he should have been able to avoid the stranding — we refuse to apply here the doctrine of last clear chance which has been given only limited application in admiralty. See Petition Of Kinsman Transit Co., 338 F.2d 708, 719-21 (2 Cir. 1964), cert. denied, 380 U.S. 944 (1965).

We also decline the invitation to seize upon this case as a vehicle to overrule the equal division of property damage rule that has long applied in admiralty cases where both parties are at fault. Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 603 (1963); The Max Morris, 137 U.S. 1, 13 (1890); North Star, 106 U.S. 17 (1882). And we particularly see no basis either in...