United States v. Tanker Monsoon, 7651.

• Decision Date: 23 October 1970
• Docket Number: No. 7651.,7651.
• Citation: 433 F.2d 95
• Parties: UNITED STATES of America, Petitioner, Appellee, v. TANKER MONSOON, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

433 F.2d 95 (1970)

UNITED STATES of America, Petitioner, Appellee, v. TANKER MONSOON, Respondent, Appellant.

No. 7651.

United States Court of Appeals, First Circuit.

October 23, 1970.

Richard A. Dempsey, Boston, Mass., with whom Leo F. Glynn and Glynn & Dempsey, Boston, Mass., were on brief, for appellant.

Alan S. Rosenthal, Atty., Dept. of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., David A. Brock, U. S. Atty., and Alexander P. Humphrey, IV, Atty., Dept. of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

The night of April 9-10, 1969 the M/V MONSOON discharged a cargo of No. 6 Bunker oil at the Sprague Terminal, located on the New Hampshire side of the Piscataqua River at Atlantic Point, some two miles above the Portsmouth Navy Yard. In the early morning a complaint was made to the Coast Guard of oil spillage in the river. The officer in charge, a chief boatswain's mate, arrived and, finding the MONSOON the only tanker at any of the several terminals, inspected her. The MONSOON had finished unloading. The chief discovered no traces of oil of any significance around her hull or the pier, and concluded, in view of the absence of such evidence, that for the oil to have come from her it must have been "when they were all through pumping and they were separating the lines." He decided, in spite of the MONSOON's denial, that since no other vessels had been discharging, and the spillage was No. 6 oil, this is what had happened. In connection with this determination he surveyed the river, and found the oil to extend along the shore four miles upstream, past Dover Point to Fox Point. At Fox Point a substantial quantity had come ashore on the high water, now some time past.

The Coast Guard promptly instructed the U. S. Attorney to libel the MONSOON. The U. S. Attorney thereafter informed her counsel by telephone that in order to sail he would have to post a $10,000 bond to cover various charges in connection with a violation of the Oil Pollution Act, 33 U.S.C., § 431-37, and in addition must make arrangements for "yourself or us" to clean up the spillage.¹ Upon confirmation that the bond had been written and the MONSOON had arranged to do the clean-up at her expense, she was allowed to sail. A concern hired on her behalf thereafter did the cleaning work, and she filed a cross-claim to the libel to recover from the government the cost thereof.

At the trial the evidence showed conclusively, as a result of a chemical analysis, that although the oil spillage was No. 6 oil, it was special Navy oil — an irony which was not pursued — and not the commercial grade carried by the MONSOON. The government's case accordingly failed, and the sole question was the right of the MONSOON to recover on its counterclaim. The district court held that it could not, finding that the Coast Guard was not negligent in charging the MONSOON, and that there was governmental immunity. This appeal followed.

As to the first point, we find that the immediate, objective evidence, quite apart from the chemical analysis, which was not made until later, points conclusively to what we can only regard as gross negligence on the part of the Coast Guard. Dover Point, a recorded tide station, is three miles upstream from the Sprague Terminal; Fox Point four miles. The first hoses were disconnected at 6:45 A.M. By reference to the Tide Tables it could be readily learned that at 6:45 high water slack had occurred at the terminal and the tide was already running out. Consequently an oil spill could not have moved upstream any distance whatever, let alone the four miles to Fox Point.²

The government describes the chief as "experienced in the investigation of oil spills." Having in mind his necessary knowledge of tides, the single most important matter, in the light of the objective evidence of oil extending four miles upstream, was the time of the MONSOON's disconnecting her lines. In this posture the government says, "There is absolutely nothing in the record to indicate that he was aware the unloading had been completed at 6:45 A.M." The burden is the other way. It is inconceivable that before attaching a vessel a reasonable Coast Guard officer, faced on a falling tide with oil extending four miles upstream, should have taken no steps to inquire when the hoses had been disconnected. This was a readily determinable fact. The ship's log and, we would assume, a shore log, must show it. Witnesses were manifestly available, both on board and ashore. Oil pollution is a serious matter. This does not justify charging the first person in sight, without making rudimentary inquiries.

We consider the Coast Guard irrefutably negligent, and that it cannot fairly be said, on all the circumstances known to it or readily ascertainable, to have had probable cause to charge the MONSOON. The district court could have found otherwise only because of a landsman's lack of understanding of a seaman's ready knowledge of tides and currents, of which an admiralty court...