craft: Provided, That the draw of a railroad bridge need not be open when there is a train in the bridge block approaching the bridge with the intention of crossing, nor within 5 minutes of the known time of passage of a scheduled passenger, mail, or express train; but in no event, except in case of breakdown of the operating machinery, shall the opening of the draw be delayed more than 5 minutes in the case of a highway bridge nor more than 10 minutes in the case of a railroad bridge * * *.'
These regulations are silent as to the effect of radiotelephone communications. Improved navigational facilities for ore ships on the Delaware River became necessary with the opening of the Fairless Steel Works at Morrisville in 1953. Upriver inspection trips by representatives of the Coast Guard, Army Engineers, Pilots' Association and shipping interests resulted in improvement of range markers and buoy locations. The Coast Guard additionally suggested that radiotelephone communications be established between drawbridges and ore-ships. Wind conditions often severely limited the audible range of whistle or horn signals; the rapid Delaware River current compounded this navigational difficulty. The radiophone communications were intended to mitigate this hazard. Installed in 1954, it quickly became customary for oreboats to communicate with the bridges by radio; both relied on this method to govern their respective operations in the passage of oreboats through the draws. Radio communications were never intended to supersede the prescribed whistle or horn signals; the former were to supplement the latter.
Neither the Coast Guard nor the Army Engineers participated in the negotiations which led to the establishment of radiotelephone communications.
Maritime collision liability is predicated upon fault causally related to the accident. This presupposes the existence of ascertainable standards of conduct, deviation from which -- in the absence of a legally recognizable excuse -- results in a finding of fault and consequent imposition of liability.
These standards are derived from three sources, each of which may supplement the others. First and most definite are the statutory rules enacted by Congress, or those regulations promulgated by federal agencies in accordance with a delegation of legislative power.
The second source of standards, less precise than statutory rules, are the dictates of custom.
Third and last, though often first in point of historical development, are the demands of reasonableness and prudence. Much the same as in some areas of civil tort law, participants in the maritime industry are held accountable for the foreseeable consequences of their activities. Taking due account of the surrounding circumstances, unreasonable or imprudent conduct constitutes fault from which liability for collision will ensue.
The admiralty courts have fashioned relatively clear rules governing the conduct of maritime activities wherein collision hazards exist.
In the situation of a ship approaching a drawbridge, the danger of collision is obvious. Considerations of reason and prudence have led the courts to conclude that one who erects a low slung bridge over a navigable waterway is held to foresee that the span will interfere with navigation. A bridgeowner must therefore equip the bridge with a movable span and with machinery adequate to promptly open it. Competent personnel must be provided for the operation and maintenance of this equipment. Prompt and correct responses must be accorded signals sounded by approaching vessels desirous of passage.
The maritime tribunals view bridges as obstructions to navigation. The right of navigation is paramount; land traffic over the bridge is subservient thereto. Hence the rule has evolved that in approaching a drawbridge a ship having sounded proper signal may proceed on the assumption that the drawspan will be timely opened; the vessel is under no duty to heave to and critically examine the situation to satisfy itself that the drawspan is operating properly. This is not to say that a master may heedlessly steer the ship into a closed draw, but he may approach carefully on the assumption that the duties imposed upon the bridge personnel will be performed in timely fashion in the absence of a signal from the bridge to the contrary.
This assumption may be reinforced or rendered nugatory by inferences which the courts in retrospect hold that a pilot should have reasonably drawn from additional circumstances surrounding the approach of the vessel. Hence the right of the ship to attempt passage becomes well-nigh absolute when bridge personnel, by means of affirmative conduct, extend what the maritime tribunals deem an invitation to proceed in response to the vessel's signals.
Variation of the operative facts may produce wholly different results: the assumption that the bridge will be timely opened can be negated by inference to the contrary which a prudent pilot should derive from particular circumstances of the vessel's approach.
A closed drawbridge without more -- or the display of a visual signal indicating that the draw is closed -- does not suffice to serve notice upon the pilot or master of an approaching vessel that it will not be timely opened.
The viable standards of reason and prudence, applied to the totality of circumstances, determine the allocation of fault in each instance.
The Army Engineers regulation comprises the core of the standards of care applicable to the present case. The Third Circuit Court of Appeals recently admonished
that strict adherence to the terms of such enactments is required. Violation of any provision therein will invoke the rule of The Pennsylvania:
'* * * The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute. * * *'
The court is of the opinion that the vessel committed no violation of the regulation in its approach. The ship blew the prescribed whistle signals once when immediately below the cutoff point at 12:40. The bridge did not respond with like signals. The vessel could have repeated this signal at a point farther upstream, closer to the bridge, but the pilot dispensed with this in view of the previous assurance by radiotelephone that the bridge would open. Under the circumstances, the once-blown signal was literal and sufficient compliance with the regulation. The Pennsylvania rule is therefore inapplicable to the navigation of the ship.
The proctor for the libellant railroad urges that the vessel violated another statute, the 'narrow channel' rule,
by proceeding upriver on the portside of the range. He would have the court invoke The Pennsylvania rule against the ship as a consequence. This argument is readily rebutted. The 'narrow channel' rule is designed to prevent collisions between vessels on inland waterways, rather than collisions involving a ship and a bridge. This suffices to render the rule inapplicable to the present situation. Even assuming arguendo that it applies to a lone ship approaching a bridge, the rule is self-restrictive to instances wherein compliance is 'safe and practicable.' In moving up the portside of the channel, the Marie was held to windward as is customary. This also facilitated a turnabout at the cutoff point, in the event such a maneuver became necessary.
These considerations would suffice to justify departure from the rule in the event it was applicable, since compliance was impracticable.
In further examination of the management of the vessel, construction of the Army Engineers regulation beyond the determination of an absence of statutory fault is unnecessary. Compliance with the statute was had; little additional aid is derived from the regulation since it is silent on the effect of radio signals, a crucial element in this case. The demands of custom and prudence supplement the regulation, imposing standards which must also be observed.
The absence of statutory violation makes these latter standards determinative of the question of fault on the part of the vessel.
In accordance with prevailing custom on the upper Delaware, the pilot resorted to radio communication with the bridge. When advised at 12:34 of the imminent crossing of the train, the vessel immediately slowed and thereafter proceeded towards the bridge at the slowest possible rate. The pilot was informed at 12:34 that the train would necessitate a two or three minute delay in opening the draw. The train was observed to clear the drawspan by 12:36; in response to the pilot's additional radiotelepnone query at 12:39, the tower operator replied that the draw was opening. Viewed against the 12:34 conversation, the passage of the train, when coupled with the assurance at 12:39, constituted an invitation to proceed. It is difficult to conceive of a more explicit invitation than a direct communication apprising the pilot that the bridge was opening.
The pilot reasonably inferred from this sequence of events that the drawspan would be timely opened to permit the vessel's passage. At no time after the passage of the train did the tower operator give any indication of further delay.
The failure of the drawtender to respond to the whistle signal cannot be held to negate the strong invitation previously extended. Lack of response to the whistle, with nothing more, would give rise to the assumption that the bridge would open seasonably. Munroe v. City of Chicago and The Bellatrix, note 59, supra. It would seem to follow a fortiori that failure to respond to the whistle signal could not serve to negate the rpeviously extended invitation to proceed under the circumstances.
The court is therefore of the opinion that the pilot's decision to proceed beyond that cutoff point was entirely reasonable. To attach fault to this phase or the vessel's upriver navigation would in effect be a determination that prudence and reason demanded that the substance of the radiotelephone conversations be ignored -- a result wholly at variance with prevailing custom.
At 12:42 the ship found itself in a position of imminent peril, solely because of its reliance on the observed passage of the train and the misleading radio conversations. The proximity of the vessel to the unopened bridge created an emergency. The pilot's decision to release the starboard bow anchor, his deployment of the tug, and the vessel's maneuvers subsequently have been repeatedly assailed as imprudent throughout the course of trial. No proof has been offered in support of these contentions. To the contrary, the unrebutted testimony of claimant's expert navigator -- predicated substantially on the facts as set forth at the outset of this opinion
-- stands as retrospective confirmation that the navigation of the vessel was at all times prudent. The court finds this testimony persuasive, and concludes that the navigation of the vessel complied with the dictates of prudent seamanship throughout its approach. Even if the management of the vessel beginning with release of the anchor and thereafter was found to fall short of the demands of prudent navigation, no liability would ensue. Navigational errors of judgment in the face of an emergency do not give rise to a finding of negligence. The Bellatrix, note 73, supra. Here the emergency of seemingly imminent collision was brought about through no fault of the vessel. The pilot, a competent seaman, acted to the best of his ability in taking measures to alleviate the situation. The law requires no more under the circumstances.
Two final arguments advanced by the libellant with respect to the vessel's approach must be considered. First, it is urged that a presumption of negligence arised generally in admiralty when a moving vessel strikes a fixed object, and that this applies to the case at bar. The short answer to this contention is that the Third Circuit has refused to apply this presumption in situations involving a ship colliding with a bridge.
Finally, libellant contends that the doctrine of last clear chance
should be applied to the vessel's approach, with the result that liability for damages arising from the collision be imposed exclusively upon the ship. Application of last clear chance to the instant facts would do violence to the doctrinal rules governing the duties of bridges and ships, when the latter approach the former. Its effect would be to negate both the assumption, when properly drawn, that the bridge will seasonably open and the legal effect of the invitation to proceed, since its application assumes that the vehicle or ship in motion has the 'superior opportunity to avoid * * * (the impending harm) * * *.'
The court therefore rejects the applicability of this doctrine to the present situation.
Accordingly, the court finds that it was prudent for the vessel to proceed upriver under existing conditions,
and that it was without fault throughout its approach to the bridge. Hence the ship is not liable for damages resulting from the collision.
Once apprised of the vessel's intent to negotiate the draw at 12:26, those in charge of the bridge had an affirmative duty to open the drawspan to its fullest extent at a time sufficiently in advance of the ship's arrival so as to assure the pilot of safe passage. In the event a timely opening of the draw proved impossible, it was incumbent upon the bridge personnel to promptly notify the ship to this effect by resort to signals customarily employed under the circumstances. Munroe v. City of Chicago, Clement v. Metropolitan Ry. Co., The Bellatrix, note 58, supra; see also Conklin v. City of Norwalk, 270 F. 68 (2 Cir. 1920), and Conners Marine Co. v. New York & Long Branch R. Co., note 63, supra, and cases therein cited.
A necessary corollary of these alternative duties is the obligation of the tower operator to convey accurate information, free of any misleading quality, over the radiotelephone; it was both foreseeable and customary that all representations made in the course of these conversations would be relied upon by the pilot in navigation of the vessel. The bridge operators breached these duties, as the evidence conclusively shows. Consistent with these requirements, the vessel at 12:34 was informed of the delay which would ensue because of the anticipated passage of the train. The breach of care by the bridge tenders occurred after its crossing: having observed its passage, the pilot had no reason to expect further delay; in reliance upon the 12:34 conversation, he reasonably assumed the bridge would promptly open. In support of this assumption, he was informed at 12:39 that the bridge was opening. Yet the bridge was not open to its full extent until 7 1/2 minutes after the passage of the train. The record is barren of explanation for this delay. There is testimony that four minutes were generally required to open the bridge after electronic release by the tower operator; two minutes were devoted to preparation to activate the drawspan machinery, and two minutes consumed during the actual swinging motion. Consistent with this, both drawtender and tower operator testified that the bridge was fully opened at 12:40 -- exactly four minutes after the passage of the train. But the more persuasive testimony of the Coast Guardsmen on board ship places the time of opening at 12:43 1/2, and the court accepts this latter version as fact. The drawspan did not begin to open until 12:42, simultaneous with the ship's release of the anchor. This delay contravened the assumption, properly inferred from the 12:34 conversation and expressly verified at 12:39, that the drawspan would promptly open after the train's passage. The misleading qualities of the radiotelephone conversations resulted in the invitation to proceed and were relied upon by the pilot.
This fault was substantially the sole cause of the ensuing collision; because of this breach of duty, liability for damages suffered by the ship must be borne by those in charge of the bridge.
For the reasons set forth in this opinion, the libel against the Marie Leonhardt will be dismissed. A decree will be entered in favor of cross-libellant Leonhardt & Blumberg against The Pennsylvania Railroad Co., for whatever damages suffered by the ship in the collision as are properly compensable according to law and proven by acceptable standards.
This opinion shall constitute findings of fact and conclusions of law in accordance with Admiralty Rule 46 1/2, 28 U.S.C.A.
Submit order accordingly.