The opinion of the court was delivered by: Kirkpatrick, Chief Judge.
This is an action to recover damages resulting from a
collision between the S.S. Creighton Victory and a dolphin
belonging to the libellant, located 175 feet upriver from the
libellant's loading dock on the Delaware River at
Billingsport, New Jersey. The accident occurred as the vessel,
assisted by two tugs, was maneuvering under her own power into
the berth at the end of the dock. The time was 12:20 P.M. on
a clear but windy day in February and there were no other
vessels anywhere near the place.
"When a moving vessel strikes a stationary object, such as
a wrarf, an inference of negligence arises and the burden is
then upon the owners of the vessel to rebut the inference of
negligence." General Petroleum Corp. of California v. City of
Los Angeles [Hokonesan Maru], Cal.App., 109 P.2d 754, 756.
The common sense behind the rule makes the burden a heavy
one. Such accidents simply do not occur in the ordinary course
of things unless the vessel has been mismanaged in some way.
It is not sufficient for the respondent to produce witnesses
who testify that as soon as the danger became apparent
everything possible was done to avoid an accident. The
question remains, How then did the collision occur? The answer
must be either that, in spite of the testimony of the
witnesses, what was done was too little or too late or, if
not, then the vessel was at fault for being in a position in
which an unavoidable collision would occur.
The only escape from the logic of the rule and the only way
in which the respondent can meet the burden is by proof of the
intervention of some occurrence which could not have been
foreseen or guarded against by the ordinary exertion of human
skill and prudence — not necessarily an act of God, but at
least an unforeseeable and uncontrollable event.
In the present case the accident occurred in broad daylight
in a part of the river entirely free of all traffic which
might have interfered with the maneuver or produced an
unforeseeable emergency. The respondents rely upon testimony
to the effect that when the vessel was about 150 feet out from
the pier and not yet quite abreast of it, lying almost
parallel with it, a sudden gust of wind sent her into a sheer
which the pilot and crew could not possibly break before she
struck the dolphin.
When the vessel hove anchor, about 20 minutes before the
accident, in order to go to the berth at the oil terminal, the
wind was force six on the Beaufort scale which is 20 to 24
miles per hour and which the captain translated as 15 to 20
knots. As the vessel moved down the river there were gusts up
to 25 knots. Obviously, the wind was increasing in strength
because after the accident there were "continuing heavy gusts
of wind * * * up to 40 knots."
The captain of the vessel estimated the force of the gust
which blew the vessel over toward the dock at 40 to 45 knots.
The docking pilot in charge of the maneuvering estimated it at
between 30 and 45 miles. The captain, asked whether there had
been any other gusts of wind prior to this of that strength,
said, "Didn't seem to be none that had affected the
maneuvering of the vessel." Naturally, the witnesses, being
charged with negligence, would not be likely to underestimate
the force of the gust. However, it unquestionably caused the
bow of the vessel to swing toward the dock, and I place it at
40 miles per hour.
Taking into consideration the conditions during the whole
maneuvering and when the vessel left anchorage, it cannot be
said that such a gust of wind, although sudden and unexpected,
could not reasonably have been foreseen and provided against.
The captain testified, "If * * * gusts up to that force had
been blowing all the time why I would have recommended three
tugs before we approached the dock." Only two were used. There
may be occasions when to take a calculated risk is good
seamanship, but not in this case.
I am of the opinion that the respondents have not met the
burden of disproving negligence which the law casts upon them.
As to the responsibility of the respondents I think it must
be put upon both Black Diamond Steamship Corp. and Curtis Bay
Towing Co. The presumption of negligence arising from a
vessel's collision with a stationary object operates against
all parties participating in the management of the vessel at
all times when negligent management was a factor in causing
the collision. During the maneuvering of the vessel in the
effort to break the sheer, the captain was present on the
bridge and if what the pilot did appeared to be insufficient
or wrong he could have corrected or countermanded the pilot's
orders. Before the vessel left her anchorage either party
could have insisted upon an additional tug. The pilotage
clause by which the docking pilot became the servant of the
vessel and her owners does not affect the tort liability of
the parties to the libellant, whatever its effect may be as
between the two parties to the contract. See Publicker
Industries, Inc. v. Tugboat Neptune Co., 3 Cir., 171 F.2d 48.
The dolphin was constructed of sheet steel piling with
interlocking edges driven in a circle. It was filled with
river bottom fill and capped with a concrete cap 12 inches
thick. There was no hatch in the cap to permit inspection of
the fill. The fill would normally settle as much as two feet
during the first year and as much as six inches a year
thereafter. The fact that the cap had no hatch in it made it
impossible to inspect the level of the fill and to add more as
it was needed.
The dolphin was so situated that it was inevitable that tugs
and barges as well as other craft would bump and push against
it, and they frequently did. As the fill settled in the
dolphin, it lost a great deal of its strength, so that the
normal life of a dolphin constructed and maintained as this
one was and used as this one was is about 25 years. This
dolphin at the time of the accident was 12 or 13 years old.
After the striking by the Creighton Victory it could have been
repaired in such a manner that it would have a life of 12 or
13 years from the time of the accident for $5,000. These
repairs would have given the libellant a