Tan-Tar-A, Inc. v. F/V PANTHER, Civ. No. 92-258-P-H.
| Decision Date | 22 June 1993 |
| Docket Number | Civ. No. 92-258-P-H. |
| Citation | 823 F. Supp. 19 |
| Parties | TAN-TAR-A, INC., Plaintiff, v. F/V PANTHER and Stephanie Jane, Inc., Defendants. |
| Court | U.S. District Court — District of Maine |
Jay F. Meyer, Thompson, McNaboe, Ashley & Bull, Portland, ME, for plaintiff.
Michael X. Savasuk, Portland, ME, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case arises out of a collision between two fishing vessels around 4:30 a.m. on February 12, 1992. The PANTHER, a steelhulled vessel, ran into the LESLIE ELLEN, a fiberglass and wood vessel at anchor on Cash's Ledge, a popular fishing ground off the Atlantic coast. Fortunately no personal injuries were suffered. There was extensive physical damage to the LESLIE ELLEN, however. The parties dispute responsibility for the collision. The reasonable cost of the repairs has been stipulated, but the amount of time the LESLIE ELLEN was reasonably out of service, the amount of her lost profits, and the expenses for having her repaired at a distance from Portland, Maine, are disputed. The parties also dispute whether repairs to the PANTHER were required by the collision and what lost profits were suffered by the PANTHER as a result of the need to make these repairs.
I heard testimony at a bench trial on May 24 and 25, 1993. Some of the testimony raised serious credibility issues. For example, experienced seamen who were on the two vessels estimated the seas at the time of the collision variously from 3 to 6 feet to 15 to 20 feet. One of the seamen who testified to 6- to 8-foot swells admitted that he had originally told the Coast Guard that the seas were 10 to 15 feet. He happens to be the captain of the plaintiff's vessel. The trial testimony of the captain of the defendant's vessel also differed in some ways from a statement that he had given immediately upon returning to port after the collision. My findings, therefore, take into account that not every witness was testifying candidly and forthrightly at all times.
The following are my Findings of Fact and Conclusions of Law.
1. Jurisdiction is based upon this court's admiralty jurisdiction.
2. On the night of February 11 and the early morning of February 12, 1992, the weather was clear and visibility was good in the general area of the collision. The lights of other boats could be seen for five to eight miles.
3. The winds were 25 to 30 miles per hour out of the northwest and were following winds for the PANTHER on her trip to the fishing grounds. The seas were 10 to 15 feet.
4. The temperature was below freezing. The PANTHER, however, received little freezing spray because the seas were following her.
5. The LESLIE ELLEN anchored on Cash's Ledge near the "Twenty-Seven's" on February 11, 1992. She was firmly anchored and not drifting or dragging—as evidenced by her Loran coordinates, kept and checked regularly; by the silent anchor alarm, set to go off if drifting of two miles occurred; and by the difficulty of pulling up anchor the next morning. Because the LESLIE ELLEN was at anchor she ordinarily rode into the wind and therefore received some freezing spray. My finding that the LESLIE ELLEN was making ice is confirmed by the fact that her captain stated the next morning that he needed to chip ice off before leaving.
6. Prior to and at the time of the collision the LESLIE ELLEN was showing an all round white light (anchor light) approximately 12 feet above the waterline on top of her wheelhouse. She was also showing her green and red sidelights.
7. I find that some ice buildup occurred on the anchor light, restricting its visibility to some degree, but that the light was still visible. I am not persuaded that its visibility was reduced below two miles. See 33 U.S.C. § 1602, Rule 22(b).
8. While at anchor the LESLIE ELLEN did not have her radar operating nor did she have a regular watch posted. Instead, her captain got up from time to time to look around and then return to his bunk.
9. The location where the LESLIE ELLEN was anchored is neither a shipping channel nor a recognized anchorage. Instead, it is a fishing ground where fishing vessels are often located.
10. As a wood and fiberglass vessel, the LESLIE ELLEN was a poorer radar target than a steel vessel like the PANTHER. The LESLIE ELLEN had no radar reflectors installed on her. Her fishing buoys, which were stored on her roof, did contain radar reflectors. They were not arranged, however, so as to provide a vertical surface to reflect the radar signal. The LESLIE ELLEN, however, was not invisible on radar. In good conditions she was visible on radar up to eight miles. I conclude, therefore, that she was not required to install a radar reflector under 46 C.F.R. § 28.235(b). Thus, the presumption of causation from The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1873), does not apply in this connection.
11. The PANTHER was underway at approximately seven knots heading southeast. Her captain was sleeping in the wheelhouse in his bunk and the PANTHER was on autopilot. The crew stood successive two-hour watches.
12. The PANTHER's bow structure is such that when the vessel is lying flat in the water her bow obstructs the view from the wheelhouse so that a person in the wheelhouse cannot see where the sky meets the water. This visibility obviously can be improved or made worse depending upon whether the vessel is descending or ascending a swell. In order to obtain a 360° view from the vessel, a crew member must either go to an elevated ball cage behind the wheelhouse or move around on deck. The additional steering station to the starboard removes the obstruction to the view on the starboard but not on the port side.
13. The PANTHER was equipped with two radar sets. On the night and morning in question, however, the crew was operating only one radar set. Upon leaving Portland harbor, the captain had set its range at six miles and expected the crew not to alter it. Crew member Findley had been on watch from about 2:30 to 4:30 a.m. He stood at the wheel dressed only in longjohns and wore a blanket over him. The wheelhouse was about 50°F. I find that dressed as he was, and given the below freezing temperature and winds outside, he did not make regular excursions out on deck to examine 360° of the horizon for other vessels.
14. At 4:30 a.m. crew member Desjardins took the watch. When he got out of his bunk he went outside onto the starboard side to relieve himself. He was dressed only in a T-shirt, sweatpants and sneakers. He took a quick look for other vessels but dressed as he was I find that he did not make any exhaustive search for vessels. Moreover, from this vantage...
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