Rosado v. Pilot Boat No. 1

• Decision Date: 01 October 1969
• Docket Number: Civ. No. 778-68.
• Citation: 304 F. Supp. 49
• Parties: Pedro Labiosa ROSADO, Rafael Santiago Salgado and Carlos Rosario, Plaintiffs, v. PILOT BOAT NO. 1; San Juan Harbor Pilots, Inc.; and Gerardo Acevedo, Defendants.
• Court: U.S. District Court — District of Puerto Rico

304 F. Supp. 49

Pedro Labiosa ROSADO, Rafael Santiago Salgado and Carlos Rosario, Plaintiffs, v. PILOT BOAT NO. 1; San Juan Harbor Pilots, Inc.; and Gerardo Acevedo, Defendants.

Civ. No. 778-68.

United States District Court D. Puerto Rico.

October 1, 1969.

COPYRIGHT MATERIAL OMITTED

Nachman, Feldstein, Lafitte & Smith, San Juan, P. R., for plaintiffs.

Pieras & Torruellas, Hato Rey, P. R., for defendants.

MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW

FERNANDEZ-BADILLO, District Judge.

This suit is the result of a collision between the F/V Corsario and Pilot Boat No. 1, which occurred in the harbor of San Juan, Puerto Rico, in the early evening of November 18, 1968. The owners of the Corsario brought an action in rem against Pilot Boat No. 1 and in personam against its owners, San Juan Harbor Pilots, Inc. and its operator, Gerardo Acevedo. The defendants answered the complaint and together therewith filed a counterclaim. The actions were set for trial on the 18th of February, at which time, pursuant to stipulation of the parties, the Court heard testimony and received evidence solely on the issue of fault.

The testimony of the parties and witnesses was heard and exhibits, pleadings, Puerto Rican and United States Statutes and Regulations and the proposed findings of fact and conclusions of law submitted by counsel were examined. From these, the Court finds that the following issues of fact require adjudication: whether the Corsario was anchored in a prohibited area of the harbor or was in any way obstructing navigation; whether the Corsario was displaying proper anchor lights; whether Pilot Boat No. 1 maintained a proper lookout prior to the collision; whether Pilot Boat No. 1 was unseaworthy or was being improperly navigated within the harbor of San Juan; and whether the above, or any of them, individually or combined, was or were the proximate cause of the collision. As a subsidiary issue is the question of whether Pilot Boat No. 1 failed to stand by and render assistance to the Corsario, after the collision.

With a view towards reaching those issues, the Court will now consider and resolve the conflicts of testimony.

FINDINGS OF FACT

1. On November 18, 1968, at approximately 7:30 P.M., the F/V Corsario was anchored in 18 feet of water, off the west end of Isla Grande Airport. According to the testimony of the plaintiffs and of pilot Juan Luis Alicea, a passenger on board Pilot Boat No. 1 at the time of the collision, the place of anchorage was estimated to be somewhere between 150 to 300 feet from the west shore of Isla Grande Airport, at a point close to the Police Department hangar and some distance to the south of an existing navigation beacon. The plaintiffs had anchored with the bow headed into the wind, which at the time was blowing from the east.

2. At about the same time, pilots Bolivar Maldonado and Juan Luis Alicea had boarded Pilot Boat No. 1, which was being operated by Gerardo Acevedo. Both, Alicea and Maldonado, are licensed harbor pilots and were enroute to render pilot service to a vessel scheduled to leave from Pier 13 on the San Antonio channel. As they left the Pilot Station which lies on the south shore of Isla Grande, they proceeded west until they reached the southwestern tip of Isla Grande, at which point they changed to a north course along the west shore of Isla Grande. This course took Pilot Boat No. 1 directly amidship the Starboard (Right) side of the anchored Corsario.

3. The Corsario is a 23 feet long-6 feet wide, open motorboat, with a 65 horsepower engine It has a mast and is capable of being operated by sail. At the time of the accident, its wooden hull above the waterline was painted white, with a blue line at the deckline.

Pilot Boat No. 1 was a wooden hull vessel, over 30 feet in length, with an enclosed cabin, from where it is operated. The rear of the cabin is where the pilots sit while en route to service a vessel. In front of the cabin, on deck, is a 3 feet high shield, used by the pilots prior to boarding a vessel when in the open sea. This vessel, at the time of colliding with the Corsario, was cruising at a speed of 5 to 6 knots.

4. At the time of the collision, the weather was clear with a slight wind blowing out of the east. Although dark, visibility was excellent and the city lights surrounding the area could be seen burning brightly. Inland from the shoreline near where the Corsario anchored, several bright lampposts illuminated the small aircraft parking area. To the south of the Carsario, at a distance of approximately 300 feet, was a lighted beacon marking the northwestern tip of Isla Grande.

5. In determining the issues and ruling on the liability of this case, we must begin with a presumption that when a moving ship collides with a vessel at anchor, there is not only a presumption in favor of the anchored vessel, but a presumption of fault on the part of the moving vessel which shifts the burden of proof. The Oregon (1895) 158 U.S. 186, 15 S.Ct. 804, 39 L. Ed. 943; The Louisiana, (1866) 3 Wall. 164, 70 U.S. 164, 18 L.Ed. 85; The Victor, 153 F.2d 200 (5 Cir.1946); Placid Oil Co. v. S. S. Willowpool, 214 F.Supp. 449, 451 (E.D.Tex.1963); Continental Oil Co. v. M. S. Glenville, 210 F.Supp. 865, 867 (S.D.Tex.1962). Therefore, in order to absolve herself from liability, Pilot Boat No. 1 must show that she was without fault or that the collision was occasioned by fault on the part of the Corsario, or was the result of an inevitable accident. At the outset, it then becomes necessary to ascertain whether the Corsario incurred in fault which in any way contributed to or was the proximate or sole cause of the collision.

6. The Court finds that the Corsario was not anchored in a prohibited area nor was it obstructing navigation. The plaintiff, Labiosa, and pilot Alicea marked the approximate points of anchorage on the chart of San Juan harbor, defendant's Exhibit "A", which according to said chart was at a considerable distance east of the main channel leading into San Antonio channel. However, Alicea testified that although not anchored in the channel, the only permissible anchoring areas in the harbor of San Juan, were those designated as such in the chart, and at no other place. The harbor has three anchoring areas marked as "D", "E" and "F" on said chart. On cross-examination, he admitted the existence of sufficient passageway to navigate around the Corsario. He could not tell the Court the specific regulation which he claimed prohibited anchoring in that place. Counsel for defendant later advised the Court that the regulation was contained in 33 C.F.R. 110.240. This is the first issue that must be decided.

In reviewing Section 110.240, the Court finds that it is a regulation designating the three anchorage areas, "D", "E" and "F" in the harbor of San Juan. However, Section 110.240 does not prohibit anchoring outside of those areas. The Court has read the entire text of Subchapter 1, which relates to "Anchorages", and finds that the only restrictions against anchoring in the harbor are found in Sections 207.810(d) and 207.812(a) and (b) of 33 C.F.R. The first prohibits vessel from anchoring "in such a manner as to obstruct the channel for passing vessels" and the second establishes the seaplane landing areas, and prohibits vessels from lying to, anchoring or otherwise obstructing the area. The Court finds that the Corsario was anchored at a considerable distance to the east of the channel and was nowhere near the designated seaplane landing areas, as was shown in the chart, defendant's Exhibit "A".

It is also clear that it was not anchored within any of the designated anchoring areas. However, according to Section 109.10, concerning special anchoring areas in general, vessels not exceeding 65 feet in length are not required to show anchor lights as the anchorages are well removed from the fairways and located where general navigation will not be endangered by unlighted vessels. The Court believes that the purpose of the regulation in establishing anchorage areas is to enable vessels to safely take refuge in these areas, where other rules, such as those relating to lights, do not have to be observed.

The Court has reviewed the applicable United States Statutes and Regulations, and finds that anchoring is prohibited only in navigable channels, 33 U.S.C.A. § 409 and in the restricted areas, such as the channels, 33 C.F.R. 207.810(d) and the seaplane landing areas, 33 C.F.R. 207.12(a) and (b). The question for decision is then whether the action of the Corsario in anchoring at the point of collision was unlawful. In the absence of regulatory prohibition or a finding that as a matter of fact, the anchored vessel was obstructing navigation, it cannot be held that anchoring at the point of collision constitutes fault.

On this first issue, the Court finds the Corsario free from fault.

7. The Court also finds that the Corsario exhibited the prescribed anchor lights and running lights. A vessel of that size, when at anchor, is required to carry forward where it can best be seen a lantern that shows a clear light for a distance of two miles around the horizon. 33 U.S.C.A. § 180; 23 R. and R.P. R. 451a71(5). The Court finds that prior to the collision, the Corsario exhibited a bright gas lantern on the mainstay at a height of 8 feet. This light alone satisfied the statutory requirements. However, at the same time, the Corsario also displayed running lights. 33 U.S.C.A. § 173; 23 L.P.R.A. 451c and 23 R. and R.P.R. 451a71. It did not show fishing lights (a red light 6 feet above white light), 33 U.S.C.A. § 178. Despite the Corsario's irregular lights, the Court finds that the excessive and improper display of lights could in no way whatsoever have contributed to the collision, as the lights were never seen by Gerardo Acevedo, the operator of Pilot Boat No. 1. If, according to his testimony, he didn't see the lights, then he could not...