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September 26, 1962

S.S. JOHANNES FRANS, her engines, boilers, tackle, apparel, etc., and Canadian Foreign Steamship Co., Respondents, and Taylor & Anderson Towing and Lighterage Co., Impleaded Respondent

The opinion of the court was delivered by: DUSEN

This admiralty action is brought to recover damages to a dolphin or caisson connected to a pier of libellant resulting from a collision between the ship JOHANNES FRANS and this dolphin (caisson #3). The accident occurred as the ship, assisted by two tugs belonging to the impleaded respondent, was maneuvering under her own power into the berth at No. 1 Pier of the libellant's wharf on the Delaware River at Paulsboro, New Jersey (see Exhibits L-1 and L-1A for drawing of the pier and caissons).

The FRANS was not too large for the berth at Pier 1 and no larger than libellant's superintendent (Mr. Barton) would have expected to be moored at this pier. This ship was scheduled to berth at the Patterson Terminals dock for the purpose of refueling in the afternoon of October 11, 1958. Arrangements were made to have assistance in such berthing from impleaded respondent. *fn1" The vessel arrived at Mantua Creek Anchorage at or about 1454 hours on October 11, but was unable to berth immediately because of the presence of another tanker at the berth which the JOHANNES FRANS was to use. Two of impleaded respondent's tugs (the TANDA 10 and the J. M. TAYLOR) arrived at or about 2300 hours and were ordered to stand by the FRANS to assist her when the berth was free. When the tugboat assistance was requested, the number of tugs to be used was not specified, such matters being left to the discretion of the tugboat company.

 The vessel left the Mantua Creek Anchorage at or about 0117 hours, October 12, 1958, under the command of the docking pilot, Captain L. Howard. Captain Howard, an employee of the impleaded respondent, was Captain of the TANDA 10 and boarded the JOHANNES FRANS about 0110 to take over his duties as docking pilot. *fn2"

  The vessel was headed upstream into the then ebbing tide and brought abreast of the pier, the weather being clear, visibility good, and the wind blowing from the northwest at a force (approximately Beaufort 4, being 11 to 16 Knots -- R-14 shows a weather bureau calculation of 10 knots at 0155) not unusual for that time of year. The two tugs were placed at the vessel's starboard side (the J. M. TAYLOR was at the bow, the TANDA 10 was at the stern) and the tugs' engines operated in an ahead direction at a speed sufficient to permit the wind to ease the JOHANNES FRANS in toward her berth. When the vessel was approximately 80 to 100 feet off the pier, the bow of the vessel began to swing faster than the stern. *fn3" To slow the bow movement, the bow anchor was let go, but the stern of the JOHANNES FRANS continued to move shoreward at about 10 feet per minute, despite the counteraction of the TANDA 10. The TANDA 10 was maneuvering at an angle insufficient to hold the larger vessel, having been forced to change its position form one approximately 45 degrees (having initially been at a 90 degrees head-on position) from the broadside of the JOHANNES FRANS to one only about 10 degrees from the broadside of that vessel because of the danger of being caught between the respondent vessel and the pier. The presence of the barge PATOIL, owned by libellant, which was at all pertinent times docked in the barge berth directly behind Pier No. 1, with part of the barge extending past the side of the pier, limited the maneuverability of the TANDA 10.

 The stern of the JOHANNES FRANS contacted the downriver dolphin of libellant's pier at approximately 0206 hours, October 12, 1958, with a more than usual force. It is that collision which is the subject matter of this suit, damages being sought for damage alleged to have been caused to said dolphin by the impact.

 When a moving vessel strikes a stationary object, such as a wharf, an inference of negligence arises and the owners of the vessel then have the burden to rebut the inference. General Petroleum Corp. v. City of Los Angeles (Hakonesan Maru), 42 Cal.App.2d 591, 109 P.2d 754, 1941 A.M.C. 510, 513 (1941). In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by fault of the stationary object or was the result of inevitable accident. Carr v. Hermosa Amusement Corporation, Limited, 137 F.2d 983, 985 (9th Cir. 1943).

 As Senior Judge Kirkpatrick stated in Patterson Oil Terminals v. The Port Covington, 109 F.Supp. 953 (E.D.Pa.1952), at page 954: *fn4"

 '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.'

 The respondent and impleaded respondent have not met the burden of disproving the negligence, which burden the law casts upon them under the facts in this case. It has not been proved to the satisfaction of the court that some 'unforeseeable and uncontrollable event' occurred which could not have been seen or guarded against.

 As to the responsibility of the parties, the respondent and impleaded respondent should both be held responsible to the libellant. 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 causing the collision. Patterson Oil Terminals v. The Port Covington, supra, at p. 955. During the maneuvering of the vessel, the Captain of the JOHANNES FRANS was present on the bridge and could have countermanded or corrected the orders of the docking pilot, Captain Howard. *fn5" Before the vessel left the Mantua Creek Anchorage, either party could have insisted upon an additional tug if that was needed. *fn6" It appears that the docking pilot should have made allowances for the presence of the PATOIL when maneuvering the JOHANNES FRANS into its berth and taken steps to prevent the collision by asking that it be moved, positioning the tugs differently (for example, on the port side of the ship), using liens from tugs to the ship, asking for more tug power, giving clearer directions to the tug masters, or docking the ship farther up shore. Both respondent and impleaded respondent are, therefore, liable to the libellant in the principal action. The cross-libel will be discussed at a later part of this opinion.


 The cost of the repairs made to the caisson or dolphin by libellant after the collision was $ 26,526.55. Libellant contends that it is entitled to recover this entire amount, which is agreed to have been a reasonable charge for the work done, less $ 600. which is admitted to have been charged for replacing the fender system that was customarily renewed at least every other year. T. H. Browning Steamship Co. v. F. H. Peavey & Co., 235 F.2d 5 (8th Cir.1956), and O'Brien Bros. v. The Helen B. Moran, 160 F.2d 502 (2d Cir.1947), are relied on for the proposition that the applicable measure of damages is the reasonable cost of repairing to an extent sufficient to put the object back to its original condition. The respondent and impleaded respondent contend that the full cost of repairs should not be awarded because the ship did not cause all the damage found after the collision, the repairs resulted in betterment of the structure, and the caisson could have been put back to its condition prior to the impact for a lesser sum. It is also argued that the damages should be reduced because the libellant was negligent in having placed the barge PATOIL in the position it was at the time of the collision.

 In this case, there is no evidence as to the value of the caisson either before or after the collision. Libellant has argued that the caisson was an integral unit of the pier facility and that, therefore, the court must look to the market value of the entire facility, which is said to have had a value of $ 180,750. as of December 1958, and then hold that, since the cost of repair was less than this amount, it must be paid in full. This argument is rejected by the court. This breasting dolphin is not an integrated part of the pier and, although it affects the pier's usefulness and stability, there is no reason to treat it as such an integral part thereof that the market value of the ...

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