THE PACIFIC MARU

• Decision Date: 25 September 1925
• Citation: 8 F.2d 166
• Parties: THE PACIFIC MARU. THE LEON. KAWASAKI KISEN KABUSHIKI KAISHA v. ATLANTIC TOWING CO. et al.
• Court: U.S. District Court — Southern District of Georgia

8 F.2d 166 (1925)

THE PACIFIC MARU THE LEON KAWASAKI KISEN KABUSHIKI KAISHA v. ATLANTIC TOWING CO. et al.

District Court, S. D. Georgia, E. D.

September 25, 1925.

Anderson, Cann & Cann, of Savannah, Ga., and Hunt, Hill & Betts, of New York City, for libelant.

Lawton & Cunningham, of Savannah, Ga., for respondents.

BARRETT, District Judge.

The Pacific Maru, a Japanese steel cargo steamer, 385 feet long, 51 feet broad, 36 feet molded depth, of 9,010 tons deadweight capacity, loaded with 8,324 tons of nitrate of soda in bags, which it had loaded in Chilean ports, of which 2,000 tons were to be discharged at Savannah, arrived off Tybee Bar at the mouth of the Savannah river at about 2 o'clock a. m. August 11, 1923, and anchored to await the river pilot. The pilot boarded the steamer at 5:50 a. m., and the vessel came up the river to the city of Savannah under his charge.

The tug Leon is owned by the Atlantic Towing Company. Her captain, Nicolich, boarded the Pacific Maru at 9:45 a. m. There is dispute as to the time when he took command for the purpose of docking the steamer. The testimony as to the location of the steamer when Capt. Nicolich took command is in direct conflict. According to the testimony of libelant, the steamer was opposite the Atlantic Coast Line wharf, which is about three-quarters of a mile down the river from the wharf of the Seaboard Air Line Railway, where the steamer was to be docked. According to libelee the steamer was approximately opposite Price street, which is only a short distance down the river from the Seaboard Air Line wharf. The Seaboard Air Line wharf is on the north side of the river, and the Atlantic Coast Line wharf on the south side. The steamer grounded opposite the Seaboard Air Line wharf at 10:30 a. m. Its exact position is in some dispute, as to whether it was opposite slip No. 2 or slip No. 3. The tide was ebbing, and at 10:30 a. m. it was 3 feet above mean low water. At that period of the year the rise of the tide was about 7 1/10 feet.

According to Capt. Nicolich, immediately upon boarding the ship, he inquired of the pilot what was the draft of the ship, and his response was that he did not know, but that the captain of the ship had told him that the draft was 27 feet sea water, equivalent to 27 feet 6 inches fresh water, and that this inquiry was made in the hearing of Capt. Kashiwa of the Pacific Maru. Capt. Kashiwa denies this. Capt. Nicolich claims that, upon learning of this draft, he stated that it would be impracticable to dock at that time the steamer in slip No. 3 of the Seaboard Air Line wharf, where she was ultimately to go, and that the best thing to do would be to put the steamer at berth 32; that is, at end of pier between number two and number three slips of the Seaboard Air Line wharf. There is a conflict as to the time elapsing between Capt. Nicolich's taking command and the stranding; libelant claiming that it was from 9:45 to 10:30, and Capt. Nicolich claiming that it was only the time occupied by the steamer in moving about two vessels' length. When the vessel first grounded it was then backed off, which was accomplished without much difficulty, and was again moved upstream, with the purpose on the part of Capt. Nicolich to get to the pier.

Again the vessel grounded, and despite vigorous efforts to push forward became firmly fixed. All parties then recognized that the vessel could not be floated before the tide commenced to flood, which would not occur until the afternoon. The vessel stood at some angle, the stern being nearer the middle of the stream. According to Capt. Nicolich, he inquired of Capt. Kashiwa whether he had appropriate hawsers or cables to run from the stern to the Seaboard Air Line wharf, to hold the vessel upon the flood tide, and that Capt. Kashiwa said he did not have the hawsers or cables. Capt. Kashiwa denies such conversation, and states that he had several new hawsers and cables appropriate for such use. Capt. Nicolich and others testified that such hawsers or cables were not a part of the equipment of a tug. In the afternoon, about 4 o'clock, the tug Leon and the tug William F. McCauley, which latter tug belonged, also, to the Atlantic Towing Company, came to the ship. The McCauley took its position on the starboard side, with line attached near the stern of the ship, and the Leon took its position on the port side, facing downstream. As the tide flooded, the stern lifted, but the stem remained fixed, with the result that the stern drifted to port and continued to do so, despite the efforts of the McCauley in pulling and the Leon in pushing. When the vessel was at approximately right angles, forming thus a dam almost across the entire channel, the stem was unloosed, and the steamer drifted up the river. In doing so its stern struck a hard bottom, with serious injury; among other things breaking off its stern a portion of metal weighing about 5 tons. The steamer was temporarily tied to the wharf on the south side of the river, and thereafter at flood tide was moved over into slip No. 3 of the Seaboard Air Line wharf.

There is conflict between the testimony of the opposing parties, and some conflict also between the log of the vessel and the other testimony furnished by libelant as to the draft of the ship. Records were introduced showing the draft at Iquique, in Chili, and at Balboa, the Pacific entrance to the Panama Canal, in Gatun Lake, and in slip No. 3 of the Seaboard Air Line wharf the night of its arrival there and the subsequent day. Capt. Kashiwa does not deny telling the pilot when he came aboard the draft of the vessel and claimed that he meant the mean draft. It was his opinion that the vessel was of the same draft throughout, as he claims to have used the water and oil from the forward and aft tanks in such proportions as to maintain the balance. According to the measurement of the first mate of the vessel, the draft taken while she was in the slip at Savannah the night of arrival was 27 feet 11 inches forward and 27 feet 5 inches aft. The log of the vessel showed 28 feet forward and 27 feet 4 inches aft. According to Capt. Nicolich, who took the draft of the ship at 10 p. m. on the date of her arrival, the forward draft was 28 feet 2 inches and the aft 27 feet 6 inches.

Libelant offers the following explanations of why the draft at the bow after the accident was in excess of what Capt. Kashiwa understood it was when he came into the river: (1) That the dropping of five tons of metal from the stern would tend to sink the bow. (2) In No. 1 hold, which was in the forward end of the ship, the cargo of bagged nitrate had been stored in tiers and kept about 2 feet away from the bulkheads, in order to avoid staining the bags; that upon examination of the cargo at Baltimore, where the vessel went after leaving Savannah, it was ascertained that the cargo in the lower hold and the lower between-decks had broken down and fallen forward, filling up the space between the forward bulkhead and the original tiers. This hold was 18 feet deep and 41 to 42 feet wide. It is inferred that the falling of these bags was due to the stranding and that this caused a sinking of the bow. (3) The No. 1 ballast tank, toward the bow of the ship, was caused to fill, in part at least, with water, by reason of certain of the strake plates being injured by the stranding. The addition of 38 tons would cause the vessel to sink one inch. There is no evidence as to the amount of water that was in this ballast tank at the time of the taking of the draft.

The libel is brought in tort against the three barges Leon, William F. McCauley, and Cambria, and against their owner, the Atlantic Towing Company. Thereafter the libel against the Cambria was dismissed. The allegations of negligence are as follows:

"(1) In attempting to bring the Pacific Maru, her mean draft then being 27 feet 7 inches fresh water, up the river from the Atlantic Coast Line docks to the Seaboard Air Line pier No. 3 when water was low, from 9:45 to 10:50 a. m.

"(2) In failing to wait until high water before bringing the Pacific Maru up the river from the Atlantic Coast Line dock to Seaboard Air Line pier No. 3.

"(3) In failing to tie up the Pacific Maru to the Seaboard Air Line pier after she first grounded at 10:50 a. m., about 30 feet off the end of the Seaboard Air Line's pier No. 2.

"(4) In attempting to get the Pacific Maru off the bottom where she had first grounded at 10:50 a. m. by the use of her engines, without waiting for high water, which maneuver caused her to go more firmly aground further out in the channel.

"(5) In attempting to move the Pacific Maru from her position where she was grounded at 4:15 p. m. on August 11, 1923, instead of waiting for high water at 8 p. m.

"(6) In attempting to move the Pacific Maru at 4:15 p. m. with two tugs of insufficient power to hold the vessel against the tide.

"(7) In improperly attaching the tugs Leon and William F. McCauley to the Pacific Maru, so that they did not exert their full power in holding the stern of the vessel against the tide, so that it swung to port and grounded on a well-known and charted shoal.

"(8) In failing to hold the Pacific Maru and prevent her stern swinging to port and going aground on a well-known and charted shoal.

"(9) In grounding the Pacific Maru at 10:50 a. m., 4:56 p. m., and 5:07 p. m., on well-known and charted shoals, thereby causing great damage to her hull and propelling machinery.

"(10) In other respects to be shown at the trial."

In August, 1923, the owner of the vessel maintained an office at No. 1 Broadway, New York City, for the transaction of business. Suzuki & Co., Limited, maintained offices at 220 Broadway. It is insisted by libelant that the owner had charge of the operations of its vessels, including the Pacific Maru, and that the business of Suzuki & Co., Limited, was limited to obtaining cargoes, collecting freights, and disbursing the vessels out...