FINDINGS OF FACT, CONCLUSIONS OF LAW AND DIRECTION FOR ENTRY OF JUDGMENT
GIGNOUX, District Judge.
These two consolidated actions arise out of a collision which occurred at 0735 on the morning of August 21, 1974, when the dry cargo vessel FERNVIEW while attempting to dock at the Bangor & Aroostook Railroad Company ("BAR") pier at Searsport, Maine collided with the south end of the pier causing considerable damage to the pier. The collision occurred under conditions of reduced visibility and heavy fog. BAR has brought an action in rem against the FERNVIEW (Civil No. 74-46-ND) and an action in personam against the owner of the vessel, Fearnlee & Eger (Civil No. 76-77-ND). The ship and her owner have, in turn, impleaded as third-party defendants Delta Chemical, Inc. ("Delta"), the owner and operator of a sulfuric acid manufacturing plant which is situated approximately 1.3 statute miles northeast of the pier, and I.T.O. Corp. of New England ("I.T.O."), the stevedoring company whose employees were to unload the FERNVIEW after the ship was tied up at the pier. Delta has impleaded as fourth-party defendant William E. Abbott ("Abbott"),
By agreement of the parties, the issues of liability have been severed from the damage issues, and tried to the Court without a jury. Having received and considered the evidence and the written and oral arguments of counsel, the Court now makes its Findings of Fact and Conclusions of Law on the issues of liability for the collision, and directs entry of its judgment as follows:
FINDINGS OF FACT
The Court's Findings of Fact are:
1. The Pier. The Bangor & Aroostook Railroad Company was and is a Maine corporation and the owner of the pier at Searsport, Maine, which was damaged by the FERNVIEW on the morning of August 21, 1974.
The BAR pier is a wooden structure approximately 800 feet long and 100 feet wide, set on pilings. It is situated in a dredged basin roughly one mile to the east of Searsport Harbor and extends in a southerly direction from a point of land at the
On top of the pier, beginning at a point 139 feet from the southerly end and extending northward all the way to land, is a long rectangular warehouse constructed of steel girders and framing, with asbestos siding. The warehouse is 25 feet high and occupies more than half the width of the dock. On the western side of the warehouse are two railroad tracks extending the length of the pier. On the day of the collision, these tracks were occupied by two lines of railroad freight cars which ended at a point approximately adjacent to the southerly end of the warehouse.
2. The Ship. Fearnlee & Eger was and is a foreign corporation, partnership or unincorporated association, having a place of business in Oslo, Norway, and was the owner and operator of the M/V FERNVIEW on August 21, 1974.
The FERNVIEW is a Norwegian cargo vessel built in 1962, with an overall length of 577 feet and a deadweight tonnage (fully loaded) of approximately 11,000 tons. On August 21, 1974 she was en route from Boston to Searsport only partially loaded with a cargo of tapioca. Her draft was approximately 15' 8" forward and 23' 6" aft. The FERNVIEW has a single rudder, a single propeller and a single direct drive diesel engine, of approximately 11,300 horsepower, which is capable of driving the ship at a maximum speed of 18 knots. The ship's pilothouse is located amidships approximately 290 feet from the bow. The pilothouse is approximately 65 feet above the water, and the bow is approximately 30 feet above the water.
On August 21, 1974 the FERNVIEW was equipped with a Model D 202 Decca radar and a Model RM 426 Decca radar, together with a VHF radio, all of which were installed in the pilothouse and were in good operating condition.
3. The Pilot. William E. Abbott, a Penobscot Bay pilot, was the pilot of the FERNVIEW on the morning of August 21, 1974, having joined the ship in Boston the previous evening. Captain Abbott, a native of the Penobscot Bay area, attended the University of Maine at Orono and is a graduate of the Maine Maritime Academy. After serving in the Merchant Marine for a short period, Abbott returned to Belfast in 1946 and apprenticed as a Penobscot Bay and River pilot under his father. He earned his pilot license for Searsport Harbor and the BAR dock in 1952. Between 1952 and August 21, 1974, he had piloted approximately 4,000 ships in or out of Penobscot Bay, including approximately 1,000 into Searsport Harbor. Of the 1,000 ships piloted into Searsport, about half were diesel-powered cargo vessels similar to the FERNVIEW. Approximately 100 of the dockings at the BAR pier had been under reduced visibility conditions.
4. The Ship's Personnel. On the bridge of the FERNVIEW during the approach to the BAR pier were, in addition to Captain Abbott, the ship's master, Captain Vage,
5. I.T.O. I.T.O. Corp. of New England, a stevedoring corporation with a place of business at Searsport, Maine, as the terminal operator under contract with BAR, was to unload the FERNVIEW once it had docked at the BAR pier on the morning of August 21, 1974. Four longshoremen had been ordered to report to the pier at approximately 0600 to handle the lines as the FERNVIEW landed. Four gangs of longshoremen were to report to the pier shortly before 0800 to unload the vessel. The FERNVIEW's estimated time of arrival was 0800. I.T.O.'s general manager at Searsport was Hartley Fraser, since deceased.
6. Delta. Delta Chemical, Inc. was and is the owner and operator of a chemical sulfuric acid manufacturing plant located on the shore of Penobscot Bay in Searsport approximately 1.3 miles northeasterly of the BAR pier.
Navigation of the FERNVIEW
7. Captain Abbott joined the FERNVIEW in Boston at 1500 on August 20. The ship was scheduled to depart Boston at 1700, but because of a delay in loading did not leave until about 1930. Abbott had never piloted the FERNVIEW, nor had he ever met Captain Vage or any other of the ship's officers. Abbott slept until shortly before he assumed his pilotage at approximately 0410 on August 21 at Buoy # 14-M, two miles west of Monhegan Island. Shortly after he took over, Abbott learned that the ship had been running at reduced speed, because of poor visibility, during the night. He knew that on mornings when a ship was due at the BAR pier, it was customary to have linesmen standing by at 0600 and to have the cargo handlers ready by 0800. Abbott was anxious to dock the vessel between 0730 and 0800, both to avoid "detention" charges levied by the stevedoring company when a ship is late and to take advantage of the slack tide, which would occur at 0715. At Monhegan the visibility was what Abbott categorized as "open and shut" (ranging from 3-4 miles to 5-6 miles). The radar was running and tuned.
8. From Monhegan to Islesboro the FERNVIEW made full sea speed of 15-16 knots. At 0706
At Buoy I-I Abbott explained to Captain Vage the two methods of docking a ship at the BAR pier. One method is to approach the end of the pier on a northeasterly course on a slightly oblique angle so that the port side of the vessel makes contact with the southeast corner, or "knuckle" of the pier, and then work the ship around the knuckle with the aid of mooring lines. The other method is to swing wider to the east during the final approach and then adopt a more northerly course so as to bring the vessel parallel with the east side of the pier. Abbott told Vage at this point that he intended to use the latter "quicker" approach, because there were four gangs of longshoremen ordered for 0800.
9. At approximately 0717, as the FERNVIEW approached Buoy # 2, Abbott ordered
10. Shortly thereafter the FERNVIEW passed 0.1 miles west of Buoy # 4.
At Buoy # 4 Abbott began conning the ship by radar, using the larger (RM 426) radar at the rear of the pilothouse.
11. As the FERNVIEW traveled between Buoys # 4 and # 5, Abbott, with Vage's concurrence, changed his docking plan, abandoning the parallel approach in favor of "working the knuckle." When the ship was abeam of Buoy # 5, 0.5 miles from the pier, Abbott adjusted his radar to the half-mile scale. At this point the ship was in a haze, which became more dense between Buoys # 5 and # 6.
12. At about 0727 the FERNVIEW drew abeam of Buoy # 6, about 0.3 miles (1800 feet) from the BAR pier.
13. At about 0729, in accordance with his usual practice, when the FERNVIEW was about one ship's length (500-600 feet) from the pier,
14. From the starboard wing of the bridge Abbott and Vage returned to the pilothouse. Meanwhile, the four I.T.O. linesmen on the pier were banging on an outbuilding and making noises so as to alert the ship as to the position of the end of the pier, where they estimated the visibility to be ten feet or less. For two or three minutes before the collision occurred, these linesmen could hear voices on the ship.
15. The bow of the FERNVIEW collided with the end of the pier at 0735. The ship's bow ultimately penetrated the end of the pier at a slight angle at a depth of approximately 50 feet.
Events at the BAR Pier
16. Between approximately 0600 and 0615 on the morning of August 21, Elwood A. Stantial, Daniel Rich, Warner C. Hamilton, and Raymond Hamilton, since deceased, longshoremen employed by I.T.O. who were to handle the lines during the docking of the FERNVIEW, arrived separately at the BAR pier. The men gathered in the "bullpen," a waiting room for longshoremen at the northerly, or land, end of the pier, pending arrival of the vessel. As the men reached the pier and proceeded to the bullpen, they encountered an extremely thick; white fog.
17. On the easterly side of the bullpen was a window which one of the linesmen opened. Fog poured into the bullpen through the window, and shortly thereafter the men experienced breathing difficulties. Stantial also suffered eye irritation. The men obtained some relief when they shut the east window. Unlike ordinary fog, the fog which entered the bullpen and caused the men respiratory problems and eye irritation
18. At approximately 0630-0645, the linesmen heard the FERNVIEW whistle and proceeded to the end of the pier through the warehouse. During their walk through the warehouse, the men continued to experience respiratory difficulties.
19. The fog at the end of the pier was dense. Visibility was restricted to approximately 10 feet. Wind conditions were calm.
20. As the linesmen waited for the ship to arrive,
21. While on the ramp, after the hammering began, the linesmen heard voices from the FERNVIEW. Someone on the ship shouted to the dock to inquire if the men on the dock could see or hear the ship. Rich and Warner Hamilton
Events at Delta Chemical, Inc.
22. The Delta facility at Searsport consists of two separate sulfuric acid manufacturing plants, plant # 1 and plant # 2, each of which produces sulfuric acid through the "contact" process.
23. In the final stage of the contact manufacturing process sulfur trioxide ("SO
24. The SO
25. Under standard operating conditions a certain amount of SO
26. Though colorless itself, SO
27. The optimum concentration of the sulfuric acid solution pumped into the top of the absorbing tower is 98.5% to 98.8% sulfuric acid by weight. The remainder is water. If the strength of the acid solution exceeds 98.8%, the efficiency of the conversion of SO
28. The concentration of the sulfuric acid solution entering the absorbing tower is recorded on a graph by a "98% acid recorder."
29. The normal operating life of a 98% acid recorder varies from ten to twenty years. The recorder in use in Delta plant # 2 during all times material to the present litigation was eighteen years old. In the week preceding August 21, 1974, the recorder for plant # 2 was repaired or recalibrated on at least five occasions.
30. Delta plant # 2 was in continuous operation on August 20-21, 1974 until 0710, August 21.
31. At approximately 0030 on August 21 Randall Blake, the "A" operator for plant
32. As a result of the recorder malfunction, the operators of plant # 2 permitted the strength of the sulfuric acid solution which was pumped into the absorber to creep above the optimum concentration of 98.5% to 98.8% sulfuric acid. Increased acid strength caused excessive amounts of SO
33. Delta personnel had known of the repeated malfunctions of the 98% acid recorder for plant # 2 which had occurred in the days immediately preceding August 21 and had learned of the latest recorder malfunction approximately six and one-half hours before the plant was ordered shut down and approximately seven hours prior to the FERNVIEW's collision with the BAR dock.
34. Although both Bennett and Harry L. Burns, the shift supervisor who succeeded Bennett at 0630 on August 21, possessed the authority to shut the plant down because of excessive emissions, neither did so.
35. Upon entering the atmosphere, the excessive SO
BAR contends that the sole proximate cause of the FERNVIEW's collision with its pier was negligent navigation of the vessel by her pilot and the ship's officers.
Fault of the FERNVIEW
It is well established that a moving vessel and her owner are subject to the presumption of fault when the vessel strikes an obvious, or well-charted, stationary object, such as a dock. The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1895); Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 302 n.1 (5th Cir. 1976). The presumption of fault "operates against all parties participating in the management of the vessel at the time of the contact." Merrill Trust Co. v. Bradford, 507 F.2d 467, 470-71 (1st Cir. 1974), citing International Terminal Operating Co. v. Naviera Aznar, 198 F.Supp. 214, 217 (S.D.N.Y.1961). The presumption can be avoided only by proof that the stationary object was somehow at fault, or that the collision was "inevitable." The Louisiana, 70 U.S. (3 Wall.) 164, 173, 18 L.Ed. 85 (1886); The Oregon, supra; Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794 (5th Cir. 1977); Griffin, The American Law of Collision § 145, at 348 (1949). In the present case, it is undisputed that the BAR pier was an obvious and well-charted stationary object, and there is no suggestion that the pier itself could have been in any way at fault. Defendants contend that the collision was "inevitable" because it was caused by circumstances beyond the control of the pilot and ship's officers. See The Louisiana, supra. The evidence clearly establishes, however, that the handling of the FERNVIEW was faulty in several respects and the collision was by no means inevitable.
The navigation of the FERNVIEW must be measured against the general requirements of good seamanship and due care. Gilmore & Black, The Law of Admiralty § 7-3, at 489 (2d ed. 1975). "The test is, could the collision have been prevented by the exercise of ordinary care, caution, and maritime skills." The Jumna, 149 F. 171, 173 (2d Cir. 1906); see also 33 U.S.C. § 221. The only expert testimony offered with respect to the seamanship of Captain Abbott and the FERNVIEW's officers was that of Captain David M. Kennedy, who testified on behalf of defendants. On his direct examination, Captain Kennedy stated his opinion that Captain Abbott's handling of the FERNVIEW conformed to the standards of prudent seamanship and was without fault. The record discloses, however, that the pilot and officers of the
(a) Failure to keep track of the ship's position and speed. Kennedy testified that it is essential that those in command of a ship know at all times its position, speed and heading. Because he would have done so himself, he assumed that Abbott was making these calculations as the FERNVIEW approached the pier. In fact, the evidence discloses that neither Abbott nor the ship's officers attempted to fix the ship's position on a chart or to use the radar for this purpose. Indeed, there was not even a chart in the pilothouse. The evidence further shows that between 0714, when Abbott ordered the engines "half ahead" and shortly after 0729, when Abbott and Vage attempted to estimate the ship's speed by observing the water from the wing of the bridge, no attempt was made to determine how fast the ship was moving. Kennedy conceded that it would have been prudent to determine the ship's speed during that period, especially in view of the fact that Abbott had delayed reducing speed for eight minutes beyond the point where he ordinarily would have done so. In this connection, it is significant that the vessel's speed was probably considerably faster than the one knot which Abbott estimated at about 0729 from the bridge wing.
(b) Failure of communication between Abbott and the ship's officers. Kennedy testified to the importance of a close working relationship between the pilot and the master and of adequate communication between the bridge and the forecastle during docking maneuvers. In fact, possibly because of the language barrier, Abbott and Vage had almost no communication prior to the collision and, more importantly, the communication between the bridge and the forecastle was not only minimal but misleading. At 0729, when the FERNVIEW was about one ship's length from the pier and the fog was thickening, Abbott had abandoned the radar and was relying on Wikeroy in the bow as the "eyes" of the ship. Yet neither Abbott nor anyone else on the bridge inquired of Wikeroy, nor did Wikeroy volunteer a report, concerning the ship's speed or distance from the dock, the visibility conditions at the bow, or how the anchor was tending. Wikeroy failed to report the changing visibility as the bow penetrated the thick fog, nor did he report on his inability to see the water any more. His first communication, reporting the banging noises on the pier, came at the last minute; and his second communication, "Full ahead astern," was confusing and incorrect, causing Abbott to hesitate and compromise by ordering, "Slow astern."
(c) Concern about late arrival. Kennedy testified that a pilot should be concerned only with the safe movement of his ship, without regard to shore considerations such as stevedore detention charges which might result from a late arrival. The evidence, however, plainly indicates that Abbott's navigation of the FERNVIEW was, to some extent at least, affected by the fact the ship was late and the longshoremen had
(d) Failure either to stop or reduce substantially the FERNVIEW's speed during the final minutes before the collision. Kennedy testified that one of the options available to Abbott and Vage, in their approach to the pier, was simply to stop, anchoring if necessary, and to wait for visibility conditions to improve. He testified that after dropping the starboard anchor when a ship's length from the pier he would have continued, as Abbott did, expecting to see the pier at any moment. But he conceded that when he received no word that the forward lookout had sighted the pier, he would have brought the ship to a dead stop before reaching the pier. He also admitted that it might not "always" be prudent to rely upon the fact that, as Abbott testified, regardless of fog conditions elsewhere, there had always been between 200-300 feet visibility at the end of the BAR pier.
The prudence of Abbott's reliance upon his assumption that there would be 200 to 300 feet visibility at the end of the pier is subject to serious question. Abbott's testimony that the visibility conditions at the pier on August 21 were unprecedented is contradicted by the testimony of Harold Garcelon, a watchman on the pier since 1964. Garcelon testified that he had seen heavy fog appear approximately ten times during normal summers, reducing visibility to between two and 50 feet. Abbott himself also admitted that fog of varying density is common along the Maine coast, often appearing very thick in one direction but not in another. But more significantly, even if it was prudent for Abbott to proceed as he did after dropping the anchor at 0729 when a ship's length from the pier, this does not justify his failure to stop the vessel before the collision. At the one-knot speed (100 feet per minute) estimated by Abbott, the vessel should have reached the pier in approximately six minutes. If, as Abbott assumed, Wikeroy had 200-300 feet of visibility at the bow, he should have anticipated that the lookout would report almost immediately that he had sighted the pier. Yet Abbott received no report whatsoever until about 0734, five minutes later. Plainly, his failure to drop the port anchor, to reverse the FERNVIEW's engines, or to take any other action to slow or stop the vessel (or even to inquire of the lookout as to whether the dock had been sighted), was less than prudent seamanship.
(e) Reliance on radar. Kennedy testified that it is "imprudent" to con a vessel by radar at a range of less than 0.2 miles (1200 feet) from the radar antenna.
(f) Misuse of radar. Although Kennedy's testimony did not touch upon it, it also appears highly probable that a cause of the collision may have been that Abbott's radar was not picking up the southeast end of the pier, as he supposed, but rather the southeast end of the warehouse on the pier. For some unexplained reason, the FERNVIEW was seriously off-course; instead of grazing the knuckle, the bow struck the pier at a substantial distance to the left of the knuckle. There was no wind or current which might have deflected the ship from her course. There is no indication that the helmsman fell off to the left of the course which Abbott had given him before leaving the pilothouse to go out on the starboard wing. The specifications of the RM 426 radar show a bearing accuracy of one degree, and the evidence is that the radar was in good condition. The only other possible explanation is that Abbott had in fact set his heading flasher and his course for the southeast corner of the warehouse, which, Marden testified, because of its width, its height, and its steel and asbestos construction presented a much better radar target than the end of the pier.
It further appears that Abbott had incorrectly adjusted the radar, since neither the ship's bow nor what he would have presumed to have been the warehouse were displayed on the radar scope. As Marden testified, the "sea return" control and other tuning mechanisms in the radar would have allowed Abbott to receive and to differentiate the bow and the warehouse, as well as the knuckle, had he properly tuned the radar set.
Being persuaded that the navigation of the FERNVIEW on her approach to the BAR pier did not meet the required standards of good seamanship and due care and that the evidence fails to establish any such "inevitability" of collision as to avoid the presumption of fault which arises when a moving vessel strikes a stationary dock, the Court holds that negligent navigation of the FERNVIEW was a proximate cause of the vessel's collision with the BAR pier.
Fault of Delta
It is well established that a manufacturer who negligently emits steam or other opaque gas which obstructs visibility
Delta does not dispute the FERNVIEW's general legal contention that, if it negligently caused the emissions of SO
In its effort to minimalize the amount of acid mist which plant # 2 could have produced, Delta relies heavily on the results of four manual dilution tests which Randall Blake took between approximately 0030 and 0530 on August 21. The first test, Blake testified, revealed the strength of the acid solution to be normal. The final test yielded an acid concentration of 98.8% or 98.9%, which Blake also considered to be normal. The second and third tests, and the only dilution tests which Blake recorded in the operating log book for plant # 2, registered acid strengths of 98.87% and 98.98% respectively. This data pattern, Delta asserts, indicates that acid strength, and thus SO
Delta's argument is unpersuasive in several respects. First, as two of Delta's senior operating personnel, Hess and Sawyer, testified, the maximum concentration of acid solution permitting the most efficient conversion of SO
Equally unpersuasive is Delta's assertion that wind conditions made it impossible for significant amounts of acid mist to have reached the BAR pier. Delta places heavy emphasis on the testimony of Blake and Bennett, who stated that when they observed the stack emissions during the early morning hours, wind conditions were calm and the emissions passed straight up upon leaving the stack. Blake also testified that at 0500 and again at 0600-0630, fog was drifting over the Delta site from the south or southwest. These observations would indicate that the fog, and, hence, the wind were heading in a direction away from the BAR pier at that time. Delta also cites in support of its position the testimony of Hess and Sawyer, who around 0700 viewed both the fog and the Delta emissions blowing toward the town of Stockton Springs and away from the pier.
Delta's evidence with respect to wind direction is conclusively met by log entries in the operating summary for plant # 2 and by the uncontested statements of the longshoremen. The sole written record of wind direction consists of two entries which Blake made in the plant operating summary at 1130 and 0330 on August 20-21.
That the wind in fact carried Delta emissions to the pier is supported directly by the unimpeached testimony of the I.T.O. longshoremen, which strongly indicates that they were exposed to Delta emissions. The longshoremen consistently stated that shortly after 0600 a thick, noxious fog blew into the bullpen waiting room at the land end of the pier through the open east window. When the east window was closed, the fog stopped entering the room. The fog thus originated from the northeast quadrant, the location of the Delta facility. The dense fog caused the men respiratory and eye irritation while they were in the bullpen, in the warehouse, and on the end of the pier at the time of the collision.
Delta's negligence in allowing the excessive emissions to escape the plant is manifest. Delta was aware that the 98% acid recorder for plant # 2 was old and that it had malfunctioned frequently in the week preceding the collision. Although Delta had on hand prior to August 21 the
Following the recorder malfunction at approximately 0030 on August 21, Delta failed to take appropriate actions which would have alleviated the dangers stemming from the malfunction. Between 0030 and 0500, Delta personnel conducted merely four manual dilution tests to determine the strength of the acid solution. But as Hess acknowledged, the proper practice should have been for the plant operators to have taken a dilution test every 15 minutes during the period in which the 98% acid recorder was not functioning. Only in this manner could the operators have assured that the concentration of the acid solution would not exceed the 98.5%-98.8% range. By failing to monitor acid strength closely, Delta breached the standard of reasonable care under which it was obligated to operate its facility. Lavelle v. Grace, supra; cf. Foley v. H. F. Farnham Co., 135 Me. 29, 188 A. 708 (1937). Moreover, even though Delta personnel learned as early as 0100 that some degree of excessive emissions were being produced, no instrument technicians were called, the plant was not shut down until 0710 and no notice was ever given to the United States Coast Guard, the Maine State Police, or other authorities who could have taken appropriate steps to warn users of public waterways and highways of possible reductions in visibility due to the emissions. These omissions were substantial; Delta was negligent in failing either to alleviate the hazard or to issue appropriate warnings. Simonsen v. Thorin, 120 Neb. 684, 234 N.W. 628, 629 (1931); Restatement (Second) of Torts, supra, § 321; see Prosser, The Law of Torts, (4th ed. 1971), § 56 at 342-43.
In short, Delta knew of the poor condition of the recorder and had available the equipment to replace it; it knew of the production problems presented by a faulty recorder and of the reasonably foreseeable dangers posed to the public as a result of excessive plant emissions. Yet Delta failed to take adequate measures to prevent the recorder malfunction from happening; it did not mitigate the obvious hazards once the malfunction occurred; and it did nothing to warn the public of those hazards. The Court holds that Delta's negligence was also a proximate cause of the collision.
Fault of BAR
The FERNVIEW argues that BAR, as owner and operator of the pier, is responsible in part for the collision because it was derelict in its duties as a wharfinger. It is well settled that, although a wharfinger "does not guarantee the safety of vessels coming into [its] wharves," it is "bound to exercise reasonable diligence in ascertaining the condition of the berths thereat, and if there is any dangerous obstruction to remove it, or to give notice of its existence to vessels about to use the berths." Smith v. Burnett, 173 U.S. 430, 433, 19 S.Ct. 442, 443,
The FERNVIEW's efforts to hold BAR responsible for the collision must fail. As a wharfinger, BAR was obligated to warn the ship of an unusual or latent dangerous condition obstructing the berth. E. g., Smith v. Burnett, supra (submerged rock underneath berth); Paragon Oil Co. v. Republic Tankers, supra (other vessel already in the berth); Garfield and Proctor Coal Co. v. Rockland-Rockport Lime Co., 184 Mass. 60, 67 N.E. 863 (1903) (submerged ledge near dock). The wharfinger's duty to warn, however, applies only to "any hidden hazard or deficiency . . . not reasonably known to the shipowner." Bunge Corp. v. M/V Furness Bridge, supra, citing Trade Banner Line, Inc. v. Caribbean Steamship Co., S.A., 521 F.2d 229, 230 (5th Cir. 1975). A wharfinger is under no duty to advise an approaching vessel of weather reports at the pier or of other conditions arising during the ordinary course of navigation or docking and which are readily apparent to the ship. Bunge Corp. v. M/V Furness Bridge, supra (wharfinger under no duty to warn ship of night fog); United States Trucking Corp. v. City of New York, 18 F.2d 775 (2d Cir. 1927) (wharfinger under no duty to warn vessel of visible wreck alongside pier); Sabine Towing and Transportation Co. v. St. Joe Paper Co., 297 F.Supp. 748 (N.D.Fla.1968) (wharfinger under no duty to warn vessel of bolts protruding from dock where captain and pilot of ship had actual knowledge of the bolts and appreciated the hazard). The FERNVIEW has been unable to cite any authority for the proposition that a wharfinger must inform a ship of fog, winds, or similar meteorological phenomena. The mere presence of the fog did not constitute a latent dangerous condition about which BAR ought to have informed the vessel. The Court holds that the railroad cannot be faulted for its conduct.
Fault of I.T.O.
The FERNVIEW attempts to place liability for the collision on I.T.O. on three separate grounds. First, the FERNVIEW claims that I.T.O. was a wharfinger and, as such, was charged with the duty of warning the ship about the reduced visibility near the dock. Even assuming arguendo I.T.O. to have been a wharfinger,
The second theory which the FERNVIEW advances stems from Abbott's purported conversation with his wife concerning visibility conditions. During the trial, Abbott stated that as the FERNVIEW passed between Buoys # 5 and # 6, he
Although Mrs. Abbott's testimony substantially confirmed that of her husband, Fraser flatly denied having had any conversation with Mrs. Abbott on the morning of August 21 and stated that he did not arrive at the pier until approximately 0815, long after the accident.
It should be noted initially that a phone call from Abbott to the I.T.O. office via his wife would have been unique. Abbott stated that he never previously had called I.T.O. from a ship for a weather report and, in fact, during his entire career as a Penobscot Bay pilot, had made only one other call to the BAR pier to confirm visibility conditions. On that occasion he spoke with the BAR watchman and not the I.T.O. office. Abbott further admitted that the usual practice was for the pilots to call the C. H. Sprague Co. dock for a weather report, not the BAR pier. Also troubling is the manner in which the alleged conversation first was revealed. Abbott acknowledged that neither he nor his wife had discussed the incident until the summer of 1976, two years after the accident, in the course of a conference with his counsel and counsel for the ship. Abbott made no reference to the call in the report of the collision which he prepared on August 22, 1974, in his report to the investigating Coast Guard officer, or to the Penobscot Bay and River Pilotage Commission. For all of these reasons, the Court must disregard evidence of the phone call to Fraser; I.T.O. cannot be held liable because of the purported conversation.
Moreover, even if the call had taken place, the FERNVIEW could not prevail on this theory of liability. Fraser's alleged remarks were ambiguous and very likely could have meant that it was possible to see the northerly, or land edge of the pier. The added comment "and beyond" makes more sense in the context of the latter interpretation. Without the remainder of the pier as a reference, in a period of restricted visibility, Fraser would have been unable to determine how far, if at all, he could see beyond the southerly end of the pier. Hence, Fraser's comment may have been wholly accurate; certainly, he had no motive to lie to Mrs. Abbott by exaggerating the visibility at the pier. A close examination of Abbott's version of the conversation also reveals that he relied on his wife's description of the sunny conditions at their home in Belfast no less than he did on Fraser's alleged report of visibility at the pier. Finally, even if Abbott did rely on the alleged report, that reliance ceased to be reasonable, at least ten minutes and possibly as long as 30 minutes later, as the FERNVIEW approached the pier and it became apparent that visibility was considerably less than 1000 feet. At 0729, when the
The third ground upon which the FERNVIEW seeks to charge I.T.O. with liability — that the banging sounds made by the I.T.O. longshoremen at the end of the pier lured the vessel into a dangerous berth — is preposterous. The noises were intended to let the ship know the location of the pier and nothing more. In fact, the hammering had the desired effect, since the mate in the bow of the FERNVIEW heard the noises and reported them to the bridge immediately before issuing his ambiguous astern order. To label the hammering a lure which attracted the vessel to an unsafe berth defies both the facts and common sense. With good reason, the FERNVIEW can offer no authority to support this contention. The actions of the longshoremen afford no basis on which to hold I.T.O. responsible for the collision.
The Court holds that no fault of I.T.O. was a proximate cause of the collision.
Apportionment of Fault Between the FERNVIEW and Delta
With its landmark decision in United States v. Reliable Transfer, Inc., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the Supreme Court discarded the venerable rule of divided damages which formerly had applied in maritime collision cases when more than one party was at fault and, instead, adopted a standard of comparative fault. The Court held that
Id. at 411, 95 S.Ct. at 1716. Accordingly, having found that the negligence both of the FERNVIEW, by her pilot and ship's officers, and of Delta, in producing the excess emissions, proximately caused the accident, the Court must apportion liability between these parties.
The Court initially notes that the instant matter is neither one in which the parties are equally at fault nor one in which it is not possible fairly to allocate fault between the ship and Delta. Rather, in allocating responsibility for the collision, it is clear that the greater part of the fault by far must rest on the FERNVIEW because of the operational negligence of her pilot and ship's officers. The acts and omissions of the pilot and ship's officers were multiple and serious. The failure to keep track of the FERNVIEW's position and speed, the failure to communicate adequately with the bow, the concern over a late arrival, the improper use of radar, and the failure either to stop the FERNVIEW or to reduce substantially her speed just prior to the collision collectively constitute fault of high order. The Court therefore concludes that most of the fault must be charged to the FERNVIEW.
Based on the entire record and the foregoing Findings of Fact, the Court finds that the collision was caused 80% by the fault of the FERNVIEW and 20% by the fault of Delta. Accordingly, the Court holds that 80% of the liability for the resulting damages must be allocated to the FERNVIEW and that Delta must bear 20% of the liability for such damages. See United States v. Reliable Transfer, Inc., supra.
CONCLUSIONS OF LAW
The Court's Conclusions of Law are:
1. This Court has jurisdiction of the actions and of the parties thereto. 28 U.S.C. §§ 1333(1) and 1332(a)(2).
2. Both the negligent navigation of the FERNVIEW, by her pilot and ship's officers, and the negligence of Delta, in producing excessive chemical emissions which obscured visibility at the BAR pier, proximately caused the collision of the FERNVIEW with the BAR pier on the morning of August 21, 1974. Responsibility for the collision is attributable 80% to the fault of the FERNVIEW and 20% to the fault of Delta. See United States v. Reliable Transfer, Inc., supra.
3. The FERNVIEW, her owners and her pilot, and Delta are liable to BAR for its damages as joint tort-feasors. BAR is entitled to recover the full amount of its damages either from the FERNVIEW, her owners and her pilot, or from Delta. Delta is entitled to contribution in the amount of 80% of the damages from the FERNVIEW, her owners and her pilot, and the FERNVIEW, her owners and her pilot are entitled to contribution of 20% of the damages from Delta. The Sterling, 106 U.S. 647, 1 S.Ct. 89, 27 L.Ed. 98 (1882); Empire Seafoods, Inc. v. Anderson, 398 F.2d 204, 217 (5th Cir.), cert. denied, 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444 (1968); Linehan v. United States Lines, Inc., supra.
4. The acts or omissions of neither BAR nor I.T.O. constituted a proximate cause of the collision.
DIRECTION FOR ENTRY OF JUDGMENT
In accordance with the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED, ADJUDGED and DECREED:
33 U.S.C. § 192. See also 33 C.F.R. § 80.13(a). Although the rule does not in terms require a ship to reduce speed before she is in a fog, the courts have held that she must begin reducing speed so that her speed will be moderate "the moment she is in it." The City of Alexandria, 31 F. 427, 431 (2d Cir. 1887); see also The Silver Palm, 94 F.2d 754 (9th Cir. 1937); Griffin, supra, § 121 at 306. In view of the Court's conclusion that the FERNVIEW has made no showing of inevitability such as to overcome the presumption of fault arising from the striking of a stationary object, it is unnecessary for the Court to reach the question of whether the ship is subject to the further presumption of fault because of violation of the foregoing safety rule.
In sum, Winter's conclusions can only be interpreted as hypotheses predicated on assumption of the very facts which his testimony was submitted to prove. The Court cannot consider reliable his estimate of the amount of SO
Delta clearly knew that a broken recorder was likely to cause excessive emissions.
The FERNVIEW claims that because of its contract with BAR to handle cargo landed at the BAR pier, I.T.O. was a wharfinger within the statutory definition. The ship additionally contends that, even if not strictly within the terms of the statute, I.T.O.'s activities on the pier rendered it a de facto wharfinger.
These arguments must fail. The primary element distinguishing a wharfinger from other users of a pier is the control over pier functions which the wharfinger assumes. See, id. The record in the instant case unquestionably establishes BAR as the wharfinger. BAR owned the pier, BAR watchmen patrolled it, and the BAR special agent, Oden Gradie, exercised ultimate control over the facility, subject to instruction from BAR management. I.T.O. merely unloaded dry cargo pursuant to a contract with BAR and was not the wharfinger.