Tringali Bros. v. U.S.

• Decision Date: 19 November 1980
• Docket Number: No. 78-3831,78-3831
• Citation: 630 F.2d 1089
• Parties: TRINGALI BROTHERS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1089

630 F.2d 1089

TRINGALI BROTHERS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 78-3831.

United States Court of Appeals, Fifth Circuit.

Unit A

Nov. 19, 1980.

James A. Lewis, Admiralty & Shipping Sec., Dept. of Justice, Washington, D. C., for defendant-appellant.

Liskow & Lewis, S. Gene Fendler, Donald R. Abaunza, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, Chief Judge, RUBIN and WILLIAMS, Circuit Judges.

COLEMAN, Chief Judge.

The issue in this case, vigorously contested by the government, is whether it is liable in damages for 20% of what happened when the Coast Guard left a buoy out of place and the skipper of the M/V ATLANTIC BREEZE ran his vessel into a jetty in the Calcasieu Channel, outside Cameron, Louisiana.

The District Court found both parties negligent and apportioned fault at 80% against the vessel owners and 20% against the United States. The government appeals. We affirm.

The United States Coast Guard maintains several systems to warn of hidden dangers to those who navigate along the Gulf Coast. This includes lighted buoys, unlighted buoys, bell buoys, range lights, and a radio beacon system.

Jurisdiction is grounded on the Admiralty Jurisdiction Act, 46 U.S.C. § 740, ¹ and the Federal Tort Claims Act, 28 U.S.C. § 2674, et seq. ²

The Coast Guard has no statutory duty to place navigational aids in hazardous waterways but it is authorized to do so by 14 U.S.C. § 81 ³ and 14 U.S.C. § 83, ⁴ which specify that the Guard has sole authority to perform this function. Once the Coast Guard sets out buoys as navigational aids, it is bound to maintain them in a reasonable and prudent manner. Failure to exercise due care in buoy maintenance gives rise to an action in negligence against the government under the Federal Torts Claim Act. Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955). If it is determined that negligence by the Coast Guard was a proximate cause of an injury to the plaintiff, the court must apportion damages based upon its assessment of comparative fault between the parties. United States v. Reliable Transfer, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975).

At its entrance, the Calcasieu Channel has parallel stone jetties which pose a danger at night or at times when the tide is more than three feet. Accordingly, the Coast Guard set up two buoys: (1) # 45, a lighted, black buoy on the western side of the channel and (2) # 46, a lighted, red bell buoy on the eastern side of the channel. When both are correctly in place, the navigator, of course, can steer between the two, avoiding the jetties.

Each buoy is anchored by a 90-foot chain, tied to a 5-ton sinker. The buoy can swing on its chain beyond the point of anchor in a radius of at least 60-70 feet. This swing is calculated in the positioning of the buoy so that it can make the swing and still be in an adequate warning position. Weather conditions, waves, and other factors ultimately cause the buoys to move off correct position. To one depending upon the buoys, such shifts can have disastrous consequences, steering him into, rather than away from, dangerous obstructions. The Coast Guard is well aware of the tendency to move from the intended locations (it refers to such wandering as "discrepancies").

In the Gulf Coast area the Guard has two systems for the correction of such discrepancies. Its primary means of maintenance is its buoy tender, CGC GENTIAN, a 180-foot vessel carrying specialized equipment, including a crane to handle and reset buoys. In 1975 the CGC GENTIAN was the only buoy tender assigned to the Gulf of Mexico. If the CGC GENTIAN is not available, the Coast Guard has smaller utility boats which periodically check buoy positions. In the Calcasieu Channel area these boats are operated by the Coast Guard "Aids to Navigation Team" at Sabine, Texas (hereafter referred to as "A. N. T. Sabine"). The record reflects some dispute as to the actual capabilities of these small boats operated by A. N. T. Sabine beyond observation and fact finding.

The CGC GENTIAN requires periodic maintenance and repair ("Charlie status") scheduled months in advance. The CGC GENTIAN was scheduled to go on two weeks of "Charlie status" beginning September 7, 1975. On September 4, 1975, buoys 45 and 46 were checked and found in place, functioning correctly. On September 7 the Coast Guard vessel went into Charlie status, as scheduled. Two weeks later the commander of the CGC GENTIAN applied for and received a two day extension of the maintenance period, to September 23, 1975. No explanation has been offered for this extension. From September 7 to September 23 the CGC GENTIAN received messages of discrepancies and referred them to A. N. T. Sabine.

Four days before this maintenance period ended, a report of a discrepancy as to Buoys 45 and 46 came in, September 19, 1975. These discrepancies are described in Sabine group broadcast reports every 6 hours on VHF radio. For aught that appears in this record, from September 19 to September 24, the Guard broadcast that Buoy 45 was off position. ⁵

On September 20, 1975, A. N. T. Sabine sent out a 40 foot utility boat to investigate discrepancies. It found that Buoy 45 was 40 yards off charted position, but Buoy 46 was in place. The utility boat made no attempt either to "steam" (drag) Buoy 45 back into position or to substitute for it a smaller "temporary replacement unlighted buoy" (referred to as a "TRUB"). The only action was to note the discrepancy for broadcast and wait for the CGC GENTIAN to come off Charlie status and correct the discrepancy.

In oral argument, the government contended that a 40-foot utility boat is too small to pull a 12-foot flashing buoy weighing 7 tons and attached to a 5-ton sinker (the dimensions of Buoys 45 and 46). It also asserted that it is equally impractical to expect the smaller boat, which has no crane on board, to handle a TRUB. It argues that even if the A. N. T. Sabine personnel had managed to get the 600 pound TRUB with its 1000 pound sinker on the utility boat it would have been difficult, not to mention unreasonably dangerous, to expect it thereafter to be thrown overboard at the correct location. The Coast Guard says the dangers of either maneuver were increased by the presence of 5-7 foot waves in the Calcasieu Channel on September 20, 1975.

The evidence on wave elevation when the Coast Guard found the discrepancy in Buoy 45 is conflicting. The District Court discounted the 5-7 foot estimate and accepted the weather reports from the National Climatic Center in Sabine, Texas and Lake Charles, Louisiana which stated waves were actually 0-2 feet that day. Based upon this, and the testimony of Commander Rex Morgan of the Coast Guard, the Court also discounted the assertion that it was impossible under any conditions for a utility boat to drag a buoy like No. 45 back into position. ⁶

In any event, the stage was set for that which soon followed.

On September 21, 1975, three shrimp trawlers, belonging to Tringali Brothers, left Galveston heading for Fernandino Beach, Florida. The lead boat was the M/V ATLANTIC BREEZE, piloted by Captain Clarence Williams. Following were the M/V ATLANTIC MOON and the M/V ATLANTIC STAR. On the morning of their departure there were weather warnings of a hurricane in the Gulf of Mexico. By the evening the weather had worsened, so Captain Williams decided to pull into Cameron, Louisiana, to sit out the storm. To do this the flotilla had to pass through the Calcasieu Channel, eluding the stone jetties.

Captain Williams testified that he was relying almost exclusively upon the Coast Guard buoys, travelling by sight from buoy to buoy. He says that he could not find Buoy 46 (concluding its lights were out), and therefore had to rely strictly upon Buoy 45. Depending upon Buoy 45, he piled into the jetty, damaging the wooden hull of the ship and causing further economic damages to Tringali Brothers. After the collision he warned the boats following and they escaped harm. Three days later, when the CGC GENTIAN got off Charlie status and came to check on Buoy 45, it was 110 yards off station.

The District Court found that responsibility for this collision rested heavily on the shoulders of Captain Williams of the M/V ATLANTIC BREEZE. The Court found it highly imprudent for the Captain to enter the Calcasieu Channel without charts and with only a sketchy knowledge of the channel obtained three years earlier by having navigated it during the daytime. It found the Captain violated the statutory duty set out in 33 U.S.C. § 221 ⁷ by not having a proper lookout. It discounted the major part of the Captain's testimony, including his claims that Buoy 46 was not lighted and that the Coast Guard's range lights were not usable. It found the Captain negligent in failing to use his compass or loran, and relying too heavily on buoys for navigational assistance. Prudent navigators, the Court said, are well aware that buoys shift in position and so they utilize other means of navigation. The Captain was faulted for using his spotlight too sparingly, for using his CB radio only to communicate to other ships in his caravan, and for not using his VHF radio, or seeking assistance from the Coast Guard at Monkey Island. Had Captain Williams used his VHF radio he might have learned that Buoy 45 was off station and perhaps would have sought the assistance which could have helped elude the west jetty.

Despite this heavy criticism of the failures of Captain Williams, the Court did not find that his negligence was the sole proximate cause of the accident. It also found that the Coast Guard actions of September 1975 deviated...