Tug Ocean Prince, Inc. v. U.S.

• Decision Date: 07 August 1978
• Docket Number: 902,D,Nos. 842,901,s. 842
• Parties: Complaint of TUG OCEAN PRINCE, INC., and Red Star Towing & Transportation Co., as Owner and Charterer of the Tug "Ocean Prince", for Exoneration from or Limitation of Liability, Plaintiffs-Third Party Plaintiffs-Appellees-Cross-Appellants, v. UNITED STATES of America, Third Party Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. PITTSTON MARINE TRANSPORT CORP., Defendant-Appellee, Tug Ocean Prince, Inc. and Red Star Towing & Transportation Co., Defendants-Appellees. ockets 77-6190, 6195.
• Court: U.S. Court of Appeals — Second Circuit

Page 1151

584 F.2d 1151

12 ERC 1010

Complaint of TUG OCEAN PRINCE, INC., and Red Star Towing &

Transportation Co., as Owner and Charterer of the Tug "Ocean

Prince", for Exoneration from or Limitation of Liability, Plaintiffs-Third Party Plaintiffs-Appellees-Cross-Appellants, v. UNITED STATES of America, Third Party Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. PITTSTON MARINE TRANSPORT CORP., Defendant-Appellee,

Tug Ocean Prince, Inc. and Red Star Towing & Transportation

Co., Defendants-Appellees.

Nos. 842, 901, 902, Dockets 77-6190, 6195.

United States Court of Appeals, Second Circuit.

Argued May 24, 1978.

Decided Aug. 7, 1978.

McHugh, Heckman, Smith & Leonard, New York City, for Pittston Marine Transport Corp.

Healy & Baillie, New York City, for Tug Ocean Prince, Inc. and Red Star Towing & Transp. Co.

Thomas J. Cahill, U. S. Atty., Gilbert S. Fleischer, Atty. in Charge Admiralty & Shipping Section, Washington, D. C., Janis G. Schulmeisters, Trial Atty., New York City, for United States of America.

Before OAKES, Circuit Judge, BLUMENFELD, Senior District Judge, ^* MEHRTENS, Senior District Judge. ^**

MEHRTENS, Senior District Judge:

The oil-laden Barge New London, push-towed by the Tug Ocean Prince, struck a charted rock outside the navigable channel in the Hudson River, sustaining damage and causing a considerable oil spill. Tug Ocean Prince, Inc. and Red Star Towing & Transportation Co. (Red Star), the owner and charterer of the Tug Ocean Prince, petitioned for exoneration from or limitation of liability under 46 U.S.C. § 183 Et seq. in which proceeding Pittston Marine Transport Corp. (Pittston) filed claims for damage to the barge and loss of cargo. Red Star thereafter filed a third-party action against the United States of America (the United States), alleging that its fault caused the casualty. The United States counterclaimed against the tug and crossclaimed against the barge for the pollution cleanup expenses. Pittston crossclaimed against the United States for its damages and the United States counterclaimed against Red Star for the money spent for cleanup. The United States also filed a separate action against them for the cleanup costs in the civil pollution penalty under 33 U.S.C. § 1321. The actions were consolidated for trial. The trial court denied exoneration but granted limitation to the value of the tug. It further found that Pittston was not responsible for the oil spill and dismissed the United States' action against Pittston. The court also dismissed both Red Star's and Pittston's claims in the third-party action as well as Pittston's counterclaim against the United States in the action it instituted to recover the cleanup costs, limiting the tug's liability for pollution cleanup to $100 per gross ton under the provisions of 33 U.S.C. § 1321. Nobody is happy and everybody has appealed.

The court below made detailed findings of fact and conclusions of law. The Ocean Prince v. United States, 436 F.Supp. 907 (S.D.N.Y.1977). The facts may be capsulated, enlarging upon them as need be in the discussion that follows.

The Facts in the Court Below

In examining Pittston's and the United States' contentions that the district court erred in holding that Red Star was entitled to limit its liability, we make plain at the outset that we accept the fact-findings made by the trial court except where they are inconsistent or, in our opinion, clearly erroneous.

The Tug Ocean Prince has an overall length of 94.7 feet, a gross tonnage of 198 tons, and her deep draft was about 14 feet. She is pilothouse controlled, equipped with radar, a gyro-compass, a magnetic compass, and a searchlight. She did not have a pelorus or azimuth circle or other equipment with which to take visual bearings. The radar had relative graduations. With the cursor or cross hairs relative bearings could be taken. The tug's deck crew consisted of two pilots, Walter Reimer and John Kiernan, both Coast Guard licensed, and two deckhands, one assigned to each watch. Each pilot and deckhand stood six-hour watches. The deckhands had other duties and were often sent below for coffee, all of which was well known to Red Star's Vice President of Operations.

The tank Barge New London, of 1665 gross tons, has an overall length of 295 feet, and was drawing 12 feet. In her stern was a pushing notch where the bow of the tug fits snugly. The tug was secured to the barge with steel cables and synthetic lines. Steering and propulsion were supplied by the tug.

Operating as a unit, the tug and barge were 385 feet long, of 1863 gross tons.

Reimer had been employed by Red Star for about one and one half years while the Ocean Prince operated in southern waters. In southern waters Reimer had acted as her captain and mate, but when the Ocean Prince came north at the beginning of the year Reimer left for vacation.

Kiernan was employed by an associated company as tug captain. He had extensive experience on the Hudson River, but, except for this voyage, had never worked for Red Star. On February 1, 1974, Kiernan joined the Ocean Prince as mate.

On February 2nd the permanent captain of the Ocean Prince left and thereafter Reimer arrived. Red Star intended Kiernan to be captain and Reimer to be mate, but Red Star's dispatcher, who assigned the Ocean Prince to the job, did not communicate this information to Kiernan or to Reimer, and neither had anyone else, nor was the fact that Reimer had never piloted on the Hudson River communicated to Kiernan. As a result, Kiernan and Reimer each assumed that he was the mate and the other the captain. Reimer, although he had no experience on the Hudson River, did not check the navigation aids on board or examine the Light List or the Coast Pilot very carefully.

About one and three-quarters miles north of Bear Mountain Bridge lies a large submerged rock formation on the west side of the channel, which is clearly indicated on the chart and marked in winter months by the unlighted black can buoy "25".

The Light List warns the pilot not to rely on floating aids to navigation; that all buoys should be regarded merely as warnings or guides; that whenever, if possible, a vessel should be navigated by bearings or angles on fixed objects on shore and by soundings rather than reliance on buoys; that the lighted buoy "25" is replaced by an unlighted can buoy from December 15 to April 1; and that the fixed light "27" on Con Hook Island is on a black skeleton tower 46 feet above water.

The Coast Pilot advises pilots that during the ice season aids to navigation are covered or dragged off station by moving ice; that, however, the river is well marked by lights along the shore and, most important, that with respect to the rock marked by buoy "25", the rock has a depth of seven feet, and with a fair current there is a tendency to set toward the rock; caution is advised.

At about 1800 hours (6:00 P.M.) Red Star's dispatcher advised the Ocean Prince to proceed to Exxon Dock to take the Barge New London to Kingston. Nothing was said about who would be the captain or Reimer's lack of experience on the Hudson River. The Ocean Prince proceeded there, was secured to the barge, after which Reimer went below and Kiernan continued on watch. At 2330 hours (11:30 P.M.) Reimer came to the pilothouse and relieved Kiernan of the watch. The tug and barge continued northward up the Hudson River past Peekskill and approached Bear Mountain Bridge. The tide was ebbing. There was ice in the river and visibility was about two miles with snow flurries. The tug was proceeding at a speed of about six knots over the bottom. The radar was operating and a chart for the area was in the wheelhouse. When the tug and barge passed under the bridge, Reimer sent the deckhand down to the galley to get coffee, remaining by himself in the wheelhouse.

Although able to see both shore lines of the river, Reimer began using the tug's searchlight to look for buoy "25" on the lefthand side of the channel. Unable to see it, he reduced the engine speed to "half, maybe less" and continued searching for the buoy. He never saw the light on Con Hook Island ahead, although it was visible from a position off Fort Montgomery or Town of Manitou about 1.5 miles south of the light and one mile south of the point of striking. The deckhand returned to the wheelhouse about the time that the barge struck the rock on her port side and to the left of the navigational channel. Oil escaped from the damaged cargo tanks, creating a serious pollution problem. Reimer never saw the can buoy. Kiernan came to the wheelhouse shortly after the striking, saw the Con Hook Island light ahead and observed the can buoy on the starboard beam of the tug 50 to 75 feet away. Reimer was very upset and Kiernan took over the wheel. He turned the tug and barge around and headed south to the Dayline Pier. After turning around Kiernan observed the lights on the Bear Mountain Bridge about two miles away.

The Limitation of Liability

The district court held that the casualty resulted from errors of navigation and management on board the tug, not within Red Star's privity and knowledge, and that, therefore, its liability was limited to the value of the tug and her pending freight and that Red Star's liability to the United States was subject to the tonnage limitation contained in 33 U.S.C. § 1321(g).

In a limitation proceeding such as this, the burden of proof as to the absence of privity or knowledge is on the petitioners, Red Star. Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943). It is the owner's duty to use due and proper care to provide a competent master and crew and to see that the ship is seaworthy; any loss occurring by reason of fault or neglect in these particulars is within his privity. Teeracciano v. McAlinden Construction Co., 485 F.2d 304 (2d Cir. 1973); Re Reichert Towing Line,251 F.2d 214 (2d Cir.), Cert. denied, 248 U.S. 565, 39 S.Ct. 9, 63 L.Ed....