Somerset Seafood Co. v. United States

• Decision Date: 18 January 1951
• Docket Number: Civ. A. No. 4912.
• Parties: SOMERSET SEAFOOD CO. v. UNITED STATES.
• Court: U.S. District Court — District of Maryland

95 F. Supp. 298

SOMERSET SEAFOOD CO. v. UNITED STATES.

Civ. A. No. 4912.

United States District Court D. Maryland, Civil Division.

January 18, 1951.

William Pepper Constable, John D. Alexander, Donald D. Webster, Baltimore, Md., for plaintiff.

Bernard J. Flynn, U. S. Atty., James B. Murphy, Asst. U. S. Atty., Baltimore, Md., Thomas F. McGovern, Sp. Asst. to Atty. Gen., for defendant.

CHESNUT, District Judge.

This case presents another novel question under the Federal Tort Claims Act. 28 U.S.C.A. §§ 1346, 2671 et seq. On October 15, 1949, about 4 A.M., a power operated oyster boat belonging to the plaintiff, stranded on the submerged wreck of the old battleship Texas which, in 1911 had been intentionally sunk as the result of target practice in the lower Chesapeake Bay in Virginia waters. The plaintiff contends that the buoy marking the wreck was negligently placed too far from the wreck itself; that the stranding of its boat was proximately caused thereby and also that the submerged wreck constituted a continuing nuisance. On the other hand, the United States contends (1) that there was no negligence in the placing of the buoy; (2) that the stranding was directly and proximately due to incompetent navigation and (3) that the United States is not liable under the Federal Tort Claims Act for an accident of this kind occurring in navigable waters. From the evidence in the case I make the following findings of fact.

1. In 1910, 36 Stat. 612, Congress by an amendment to the Navy Department appropriations act required that an experimental test attack be made at battle range upon a fully armored battleship. This proviso was added from the floor by Admiral Richmond P. Hobson, U.S.N. (Ret.), who suggested that the old battleship Texas be used, 45 Cong. Rec. 4292-4294. In 1911 the old battleship Texas which was then an obsolete vessel, was taken out, struck from the Navy register of commissioned vessels, used as a target and for experimental purposes, and sunk southwest of Tangier Island where she presently remains. The wreck's name was changed to the San Marcos and she has been marked by a buoy ever since 1911. The wreck lies in about 30 feet of water and is situated about 6½ miles southwest of Tangier Sound Light House and about 5 miles east of the main ship channel up the Chesapeake Bay to Baltimore. Prior to 1940 some part of the superstructure of the San Marcos was visible at high tide but for several years past it has been just about fully submerged except at quite low tide. The mean tidal range at the wreck is approximately 1.6 feet.

2. In 1921, General William Mitchell, U.S.A., used the wreck of the Texas and two other battleships, the Indiana and the Alabama, for targets in an experiment to prove that battleships could be sunk by air power. In 1924 the three battleships were advertised for sale and described in the sale catalogue as having been used for targets and for experimental purposes. Merritt-Chapman & Scott bid in all three vessels, but requested permission from the Army Engineers to remove only the Indiana and Alabama. The San Marcos was returned to the Government.

3. Some time prior to March 27, 1940, The San Marcos was legally abandoned to the United States Engineers under the Wreck Statute, 33 U.S.C.A. § 409 et seq., as held by the Court of Appeals in Baltimore, Crisfield & Onancock Line v. United States, 4 Cir., 140 F.2d 230, 234. On March 27, 1940, the freight vessel Lexington ran on the wreck and became a total loss. The Lexington was formally abandoned to the United States Engineers in 1940. By letter of April 23, 1940, the District Engineer reported through the Divisional Engineer to the Chief Engineer at Washington, that:

"The wreck lies on its side, and alongside to the S.E. of the wreck `Texas'. There is 34 feet of water alongside and 13 feet of water over the highest part. No part is visible.

"It is not believed to be a menace to navigation, as it is alongside of a wreck which is marked by a lighted buoy maintained by the U.S. Coast Guard and the location of the former wreck is shown on Coast and Geodetic Charts.

"It is recommended that the wreck be not removed."

After receiving the report the Chief of Engineers at Washington replied that no action would be taken. In 1940 the buoy was about 500 feet from the wreck. Prior to this date the buoy had been at various distances from 500-1500 or more feet from the wreck. During the Second World War the area surrounding the wreck was designated a danger zone, known as a Naval firing range, duly published in the Federal Register, placed upon the charts and published in the Coast Pilot. The regulations were continued after the war, pursuant to the authority of 33 U.S.C.A. § 3 and the regulations published at 33 C.F.R. 204.46.

4. In September 1948 a motorboat from Urbana, the Fay Ray, owned and operated by Everett Owen, an insurance man and member of the Coast Guard Auxiliary, ran on the San Marcos wreck in broad daylight, having mistaken the San Marcos wreck buoy for the Nun buoy 6, having assumed a ten degree error in his compass which in fact had been corrected by the co-owner the previous week.

5. Subsequent to this collision, a commodore of the Coast Guard Auxiliary, a voluntary organization of yachtsmen affiliated with, but not paid by the Coast Guard, on September 29, 1948, complained that the San Marcos wreck was in a dangerous condition and recommended that "the remaining superstructure of the wreck should now be blown away until there is a clearance of not less than three fathoms left over it." On October 21, 1948, an employee of the office of the Baltimore District Engineer, J. L. Reynolds, made an inspection of the wreck and made recommendations for a fixed structure on the wreck. His inspection report resulted in a separate letter from the Office of the Chief of Engineers to the Commandant of the Coast Guard, dated November 19, 1948. The letter states: "Complete removal or demolition of the wreck would be impracticable. At the time of the inspection a lighted bell buoy located 300 yards to the southwest marked the wreck. The effectiveness of this aid could probably be increased if the buoy were placed closer to the wreck. However, because of the difficulties in keeping floating buoys in position, particularly under ice conditions, it is suggested that the Coast Guard give consideration to the installation of a lighted fixed structure with mechanically operated whistle or bell." On December 1, 1948, the Commandant of the Coast Guard in Washington requested advice and information from the Commander, 5th Coast Guard District at Norfolk, on the following questions:

"Can subject buoy be placed closer to wreck? If affirmative, give distance and bearing, otherwise state reason why buoy cannot be placed closer to wreck.

"Furnish estimated cost to provide suitable aid to navigation on fixed structure as recommended in inclosure. Give intensity of such light and type of fog signal considered appropriate.

"Would two lighted buoys more satisfactorily mark subject wreck? If affirmative, give recommended locations for such buoys, type of buoys and their characteristics."

6. The Norfolk Coast Guard Aids to Navigation Office sent its lighthouse engineer out to look at the wreck and to determine whether there was sufficient left of the wreck to support a lighthouse. It was determined that the wreck would not support a lighthouse, that it would be necessary to drive caissons and to erect an elaborate structure. The Commander, 5th Coast Guard District at Norfolk, reported to the Commandant of the Coast Guard at Washington on February 9, 1949, as follows:

"While it is possible to place the buoy closer to the wreck, this action is not deemed practicable due to the added danger created in connection with tenders servicing the aid. The buoy is now located a distance from the wreck that is usual and normal in open waters as in this case.

"An investigation of the possibilities of erecting a light on the wreck has been undertaken and the findings indicate that the establishment of a structure adequate to hold a minor fixed light and automatic fog signal, together with the necessary approach platform, would require an elaborate structure. The use of a reinforced concrete base is considered necessary for any permanency and the estimated cost of construction of such an aid is $30,000.00. The wreck has been used as a bombing target and the only usable section is one about 10 feet in diameter with approximately two feet of water over it.

"The use of two (2) lighted buoys to mark the wreck is not considered a necessity and is not deemed advisable. The buoy which now marks the wreck is held to be so located that sufficient warning of the obstruction is given a prudent mariner navigating with the normal knowledge and precaution expected in approaching a known, charted danger."

7. Under Coast Guard regulations and administrative practices, the determination of how close it is practicable to place a buoy to a wreck and to permit the buoy to be serviced is in the hands of the commanding officer of the buoy tender which places the buoy and which has to service it. The determination of whether it is practicable to build a lighthouse is vested in the Commandant of the Coast Guard at Washington.

8. On February 18, 1949, the Commandant, Coast Guard Headquarters, Washington, advised the Chief of Engineers, Washington, that: "A field examination of the condition of San Marcos Wreck discloses that it is not practicable to place subject buoy closer to the wreck than at present. It is believed that charting of the obstruction and the present marking as now located with respect to the wreck is sufficient warning for a prudent mariner navigating with normal knowledge and precaution expected in approaching a known, charted danger." The Commandant of the Coast Guard in the same letter advised that it would cost about $30,000 to build a lighthouse, that if the...