Tampa Port Authority v. M/V Duchess

• Decision Date: 06 June 1997
• Docket Number: No. 94-1727-CIV-T-23C.,94-1727-CIV-T-23C.
• Parties: TAMPA PORT AUTHORITY, Plaintiff, and Westchester Fire Insurance Co., Intervening Plaintiff, v. M/V DUCHESS, In rem, and BT Straits, Inc., In Personam, Defendants/Third Party Plaintiff, v. Pilot Lambert W. Ware, Third Party Defendant.
• Court: U.S. District Court — Middle District of Florida

65 F.Supp.2d 1279

TAMPA PORT AUTHORITY, Plaintiff, and Westchester Fire Insurance Co., Intervening Plaintiff, v. M/V DUCHESS, In rem, and BT Straits, Inc., In Personam, Defendants/Third Party Plaintiff, v. Pilot Lambert W. Ware, Third Party Defendant.

No. 94-1727-CIV-T-23C.

United States District Court, M.D. Florida.

June 6, 1997.

COPYRIGHT MATERIAL OMITTED

Lance Sheldon Hamilton, Holland & Knight, LLP, Tampa, FL, for Tampa Port Authority, Body corporate and politic by and under the laws of the State of Florida.

Donald Lee Craig, E. Tyron Brown, Butler, Burnette & Pappas, Tampa, FL, for Westchester Fire Insurance Company, as subrogee of the Tampa Port Authority, et al. fka International Insurance Company.

Nathaniel G.W. Pieper, Lau Lane, Pieper, Conley & McCreadie, Tampa, FL, for BT Straits, Inc., M/V Duchess.

Margaret Diane Mathews, Anthony John Cuva, Akerman, Senterfitt & Eidson, P.A., Tampa, FL, for Lambert M. Ware, Pilot.

MEMORANDUM OPINION

JENKINS, United States Magistrate Judge.

This cause comes on for consideration of an admiralty matter brought pursuant to Rule 9(h), Fed.R.Civ.P. in connection with an allision on December 25, 1992 involving the vessel M/V DUCHESS ("DUCHESS") and the northwest corner of the Robert E. Knight Pier ("Pier") owned by the Tampa Port Authority ("TPA").¹

TPA brings a claim of negligence against DUCHESS in rem and its owner B.T. Straits, Inc. ("B.T.Straits"). Intervening plaintiff Westchester Fire Insurance Company ("Westchester") brings a subrogation claim against DUCHESS and B.T. Straits to recover insurance payments made to TPA in connection with the damage to the Pier. B.T. Straits and DUCHESS bring a third-party claim of negligence pursuant to Rule 14(c), Fed.R.Civ.P. against Lambert Ware ("Ware"), a Tampa Bay harbor pilot in command of the DUCHESS at the time of the allision.

On September 13, 1996, partial summary judgment was entered in favor of plaintiff TPA and Westchester against the DUCHESS as the vessel had not rebutted the presumption that a vessel colliding with a fixed object is at fault in an allision. The order granting summary judgment did not make any findings allocating fault among the various parties for the allision or resolving damages issues; nor did the order determine the cause of the allision. (Dkt.58)

A four-day non-jury trial was conducted on October 15 - 19, 1996. The parties then engaged in supplemental discovery as a result of certain matters occurring at the trial. The court reopened the evidence and received additional testimony and exhibits on January 16 - 17, 1997.²

Thereafter, the parties filed proposed findings of fact and conclusions of law and various memoranda, all of which have been considered by this court, in addition to the testimony and exhibits received at trial.

Pursuant to Rule 52, Fed.R.Civ.P., the following findings of fact and conclusions of law are entered.

Findings of Fact

1. Plaintiff, Tampa Port Authority (TPA), created under the laws of the State of Florida, owns and operates the REK Pier in Tampa Bay.

2. Intervening plaintiff Westchester, a corporation doing business in the State of Florida, was the property insurance carrier for TPA at the time of the allision.

3. In rem defendant DUCHESS is a U.S. flag registered oil tanker, measuring 672 feet long and 89 feet wide and capable of carrying cargo of up to 40,000 tons. When fully loaded, the draft is approximately 35 feet.

4. In personam defendant B.T. Straits is a corporation which owned the DUCHESS at the time of the allision.

5. Third party defendant Lambert Ware ("Ware") is a Tampa Bay harbor pilot who was in command of the DUCHESS at the time of the allision as a compulsory pilot as required by U.S. law and Coast Guard regulations.

6. On December 25, 1992 at 0130 hours, the DUCHESS struck the northwest corner of the Richard E. Knight (REK) Pier ("Pier"). The allision occurred while the vessel, fully loaded with cargo weighing approximately 37,000 tons, was being shifted from Berth 220 to Berth 226.

7. The DUCHESS sustained a three inch indentation in its bow as a result of the allision, which did not affect the seaworthiness of the vessel and was determined by a marine survey to be repairable at the next drydocking of the vessel. No claim for damages to the vessel is made in this case. Rather, the dispute in this case centers on what dock damage was caused by the DUCHESS and what damage pre-existed the allision.

8. Ware, a Tampa Bay harbor pilot with approximately 24 years experience, possessed all necessary Florida and Coast Guard licenses. He was very familiar with the Pier and its berths, including the condition of the Pier at the time of the allision. Ware had also piloted the DUCHESS on at least one other occasion.

9. Pilot Ware was assisted by the master of the vessel, Captain Herman F. Custin ("Custin"), licensed by the Coast Guard as a master in 1948 who had served as a ship captain since 1964.

10. The REK Pier is a concrete structure referred to as a "finger pier," approximately 900 feet long and 40 feet wide, which is owned and operated by the TPA in an area known as Hooker's Point, Cut D, a 400 foot wide channel which empties into Tampa Bay.

11. The Pier includes two berths: Berth 226 is on the north side of the pier and Berth 227 is on the south side of the pier.

12. The pier is used for five different terminal storage transfer facilities, four involving petroleum products and one a hydrous ammonia facility.

13. According to Steven L. Fidler ("Fidler"), TPA operations manager, approximately 400 vessels use the REK Pier annually resulting in approximately one and one-half billion dollars of revenue from this activity. (JX 113, 115)³

14. At the time of the DUCHESS allision, the outboard 100 foot section of the Pier was under repair pursuant to a project known as the "fender renovation project." However, the Pier was still being used for commerce during this construction period.

15. Both Ware and Custin were aware of the weakened condition of the Pier and the need to use extra caution in docking at the berths. In fact, Ware stated that the pilots nicknamed the concrete corner of the Pier, which did not have fendering, as "the can opener." He testified that the northwest corner was "a horror story waiting to happen for a loaded tanker of gasoline to be punched in the side" because there were no "double-hulled tankers back in those days and it would be easy to spill." (T1, p. 163)

The Maneuver

16. Prior to commencing the shifting maneuver, Ware met with the captain and the officers and was acquainted with the vessel's specifications. He had piloted the DUCHESS on at least one prior occasion.

17. During the entire shifting operation, Ware and Custin were on the bridge of the vessel, starboard side. Ware, as the compulsory pilot, gave the engine commands and steering orders.

18. The DUCHESS proceeded in a northerly direction from Berth 220 towards Berth 226 at a speed of two to three knots assisted by two tugs. Visibility was good and there were no unusual wind or weather conditions.

19. Ware received accurate and timely distances from the ship's officer stationed at the bow of the vessel throughout the maneuver. The tugs were also in good working order and followed the pilot's commands.

20. As was his custom in docking a vessel at Berth 226 from the south, Ware planned to stop the headway of the vessel to bring the bow due west of the pier. Using the tugs, the vessel would then be pivoted starboard and moved into the slip parallel to the berth.

21. However, as the DUCHESS drew even with the Pier the forward momentum continued. A 0122 a dead slow order was given by Ware. At 0124 the tug ORANGE was shifted to the stern. At 0126 the tug KINSMAN was shifted to the starboard bow and a stop engine order was noted in the vessel's bell book at the same time. (JX 78)

22. Although Ware testified that at 0133 he gave a full astern order when the DUCHESS was approximately 150 to 200 feet from the REK Pier, the full astern order was not entered in the bell book until 0135, the same time that the bow of the DUCHESS struck the northwest corner of the pier. However, Ware further stated that the engines were full astern and the DUCHESS was "dead in the water" when the bow of the DUCHESS hit the concrete corner of the REK Pier. (T1, p. 141) (JX 78)

23. Despite the discrepancy in the bell book, it appears that the full astern order was promptly executed by the ship's crew at 0133.

24. Ware was not aware of the impact until the officer on the bow advised Captain Custin and him of the allision.

25. In a written statement after the incident, Captain Custin stated that "[t]he Pilot's performance and comportment was observed to be beyond reproach, correct and professional in every respect, however, the casualty appeared to be due to an error in the Pilot's judgement [sic]". (JX 75)

26. Although the vessel had not lost its headway when the turning maneuver began, by the time it struck the Pier the full astern order had virtually stopped its forward momentum. While both the dock and vessel were damaged as a result of the allision, the DUCHESS had practically come to a halt at the time it made contact.

27. The U.S. Coast Guard's investigation of the allision resulted in a finding that Pilot Ware "was considered to be negligent in relying too heavily on the ship's engines in lieu of using the tugs alongside." However, it was considered a "minor incident because of the small amount of damage to the vessel's bow and the pier." Also, as Ware had no prior record, a letter of warning was issued in lieu of initiating a formal proceeding against his license. No findings of fault were made as to the vessel's master, officers or its crew or the two tugs. (JX 94)

28. The damage to the DUCHESS was slight, causing a three inch indentation about three feet from the stem approximately five feet above the waterline. (JX 78)

29. Pilot Ware testified that,...