The opinion of the court was delivered by: HUYETT
Judge Learned Hand once wrote:
Masters who choose to divine the purposes of other vessels and keep on, may avoid the charge of overcaution, but they take their chances. If they escape, well and good; if they fail, their owners pay.
A. H. Bull S.S. Co. v. United States, 34 F.2d 614, 616 (2d Cir. 1929). This case attests to the continuing vitality of Judge Hand's admonition: the facts reveal that sailors continue to take chances and the resolution evidences that their owners continue to pay.
At 0138 on the morning of September 13, 1973, the S.S. Santos, a tanker owned by Tankore Corporation (Tankore), collided on the Delaware Bay with a barge which was being towed by the Harbor Star, a tug owned by B.F.T. No. Two Corp. (BFT) and operated by Boston Fuel Transportation, Inc. (Boston Fuel). Plaintiffs, the owner and the operator of the Harbor Star, brought this action for exoneration from or limitation of liability. Tankore, owner of the S.S. Santos, entered the case as a claimant, and in addition the owner of the barge, the United States, asserted a cross-claim against Tankore. The government eventually relinquished its cause of action against Tankore for $247,500. As claimant, Tankore seeks to recover from plaintiffs BFT and Boston Fuel the amount paid in settlement to the United States, the owner of the barge, and for the damage sustained by the S.S. Santos.
Both claimant and plaintiffs contend that the collision was attributable solely to the fault of the other vessel. Alternatively, each alleges that any fault on its part was minimal compared with that of the other vessel.
After considering the stipulations agreed to by the parties, the proposed Findings of Fact and Conclusions of Law, the exhibits admitted into evidence, the testimony at trial and post-trial briefs, we make the following Findings of Fact and Conclusions of Law in accordance with Fed.R.Civ.P. 52(b). For ease of understanding, we choose to document our Findings of Fact and Conclusions of Law in narrative form rather than in separately numbered paragraphs.
The tug Harbor Star is a diesel powered, uninspected towing vessel, which flies the American flag. She is 87 feet 9 inch in length and has a beam of 24 feet. She was purchased by BFT in December, 1972 for $52,500. At all material times, she was equipped with radio transmitter, compass, radar and whistle in the wheelhouse. None of this equipment was situated at the aft control station, but there was a radio speaker in the galley which could be heard by someone manning the aft controls. (Exs.P-11D, P-11B).
On September 7, 1973, John Curry, dispatcher for Boston Fuel, received a call seeking a tug to tow a Navy houseboat from Boston to Philadelphia, a distance of 472 miles. The job was accepted and the following terms were agreed to: (1) the tow would be picked up in the Navy Yard in Boston on September 10; (2) the fee would be $75 per hour portal to portal (round-trip); and (3) the Navy would supply the running lights on the barge.
When the tug left Boston bound for Philadelphia she was manned by a seven-man crew: Captain MacDonald, Thomas Balcom, two engineers, two deckhands, and a cook. No decision had been made about the status of the crew and tug upon arrival in Philadelphia. The crew might have stayed over in Philadelphia for several days awaiting a return tow or a replacement crew might have relieved the original crew if a return tow could have been arranged for immediate departure.
The tug Harbor Star picked up the tow on September 10, 1973. The tow measured 261 feet long, 48 feet in beam and 40-50 feet high. The lights which were supplied to the tow by the United States Navy consisted of a 10 point green starboard running light, a 10 point red port running light, a 12 point white stern light and a 20 point forward white light. In addition, a forward strobe light was provided as a safety device which would signal if the barge began taking water.
The tug set off from Boston and proceeded down through the Cape Cod Canal and Long Island Sound. With the tow on a 1200 foot hawser, the Harbor Star continued down the New Jersey coast and entered Delaware Bay at about 0024 on the morning of September 13th. The night was clear with a full moon and visibility was at least 10 miles. In the bay, a 15 knot wind was blowing from the northeast and the current was running towards the southeast at about 1 1/2 knots. As he entered the Delaware Bay, Tom Balcom spoke on the telephone with the Philadelphia Pilots' station. He was informed that there were several outgoing ships, but no mention was made of any incoming traffic.
The tug proceeded up to the east of the Brandywine Range, the deep water channel leading to the Delaware River up to the port of Philadelphia. When she arrived on the east side of the Delaware Bay one-half to three-quarters of a mile west of buoy R-2 and about 3 miles below buoy R-9 at Brown's Shoal, (Ex. P-10, point marked P-5) the tug stopped to shorten her hawser down from 1200 feet to the 200-300 feet needed for safe towing in the narrow confines of the Delaware River. This locale was known among seamen as a place often used for shortening up. (Ex. C-31, p. 24).
At 0119 the shortening-up process was commenced. No one was specifically appointed as a lookout during shortening up, but there were three men, Tom Balcom and two seamen, on the stern of the tug occupied with bringing in the hawser. Captain MacDonald was overseeing the operation from the aft steering station. During the shortening-up process or immediately before its commencement, two white lights were spotted on the horizon. The Captain checked the radar which was on a six-mile range and saw nothing. Two further checks of the radar by Captain MacDonald revealed nothing astern. (N.T. 243-44)
At 0137, when the hawser had been shortened to about 300 feet, the men on the tug espied the stem of the Santos off their starboard aft, approximately 400-500 feet from the barge. No whistle or radio contact was initiated by either vessel at this time. At 0138, the Santos' stem collided with the tow just forward of amidships. The impact pulled about 600 feet of the hawser line out before the seamen on the tug had an opportunity to cut the hawser.
The S.S. Santos, a Liberian flagship, is owned by Tankore. The vessel, a tanker 639 feet 7 inch in length, 80 feet 5 inch across the beam and weighing 45,000 tons, was transporting a cargo of heating oil to Philadelphia.
Early on the morning of September 13th, the Santos was steaming toward the Delaware Bay to take a pilot on board to guide her up the Delaware River to Philadelphia. At about 0020-0025, Captain Cano on the Santos spotted a tug showing two or three towing lights. He first attempted to fix the tug with binoculars, but because of excessive glare, he continued his observation without the binoculars. The tug was bearing about 20 degrees to the Santos and the Captain estimated that it was six miles away. He looked at the radar at that time and was able to ascertain only one target on the screen.
At 0047, the Santos stopped in the pilot area to pick up Captain Orton, a duly licensed Delaware River pilot. When the pilot entered the bridge, at least 4 other persons were present: the seaman on watch at that time, the helmsman, the second officer, and Captain Cano. Shortly after entering the bridge, Captain Orton observed the tug showing three towing lights, bearing about 20 degrees off his starboard bow. He checked the radar, which was operating on a four-mile range, and only saw one pip near the outside of the ring. Subsequently, no constant radar watch was maintained, although the second officer checked it sporadically. Two targets, signifying a tug and tow, were never observed on the radar screen.
Subsequently, the pilot took the conn and brought the vessel to a course of 337 degrees, heading for the entrance to the Brandywine Range. The tanker's engines were operating properly. (Ex. C-29, p. 9; Ex. C-25, p. 83-84). At 0048, the engines were put on half ahead. At 0052, the engines were advanced to full ahead where they remained until about one minute before the collision. At full ahead, the Santos made 7-8 knots over the ground after deducting the 1 1/2 knot ebb current against which she was proceeding.
Several minutes before the collision, the pilot observed that the Santos' course was going to take her within 300 feet of the stern of the tug. The Santos altered her course to the left to about 335 degrees to allow for 500 feet of clearance between herself and the tug.
From approximately 0100 onward, the helmsman, watch and pilot had the tug under observation. The bearing of the tug remained between 6 degrees-10 degrees off the Santos' starboard bow, but the distance between the two ships kept closing. (C-25, p. 47, 52, 55, 57). No attempt was made by the Santos to call the tug and the Santos never sent any whistle signals reflecting an intention to pass.
Between 0118 and the time of the collision at 0138, Captain Cano left the bridge twice. At 0118 he went below to advise the port engineer that they were proceeding directly to Philadelphia. After returning to the bridge for several minutes, Captain Cano went below to his quarters to check his computations on the ship's draft since that was crucial to the Santos' navigation up to Philadelphia. While in his quarters, he viewed the tug's lights at least once prior to his first observation of the barge.
At 0159, the Santos anchored in the following position: 3.6 miles, bearing 350 degrees T to Buoy 9, and bearing 024 degrees T, distance 2.05 miles, to the upper end of the Harbor of Refuge breakwater.
III. Location of the Collision.
Tankore avers that the collision occurred west of the track to the Brandywine Range, while the plaintiffs contend the situs is east of the entrance to the Range. The situs of the collision is important since it will in part determine the degree of the Harbor Star's culpability. If the Harbor Star permitted the barge to drift across the shipping entrance without taking care to determine its position, then the tug's share of any fault apportioned pursuant to United States v. Reliable Transfer Co., 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975), may be increased.
In support of its contention that the collision occurred east of the track to the Brandywine Range, the plaintiffs rely upon the testimony of Captain MacDonald, the master of the tug, that he felt that he had drifted about a mile to the west while shortening up. (N.T. 259-60, 284). This would still place the tug and barge east of the entrance to the Brandywine Range. The Captain further stated that he was "jogging up" the tug's engines at this time. (N.T. 252). The Captain and mate testified that they thought they were still to the east of the track because they were still within the red sector of the Brandywine light. (Ex. P-10) (N.T. 215, 361).
The claimant, Tankore, contends that during the 20 minute shortening-up period, the tug and barge drifted approximately three miles and thus were situated to the west of the track. To prove this contention, it relied upon the expert testimony of Anthony Suarez who reconstructed the path of the ship up the Delaware Bay from the course recorder, a device which records the gyro heading of the ship as a function of time. (Exs. C-7, C-23). Suarez' reconstruction of the ship's path places the collision to the west of the track to the Brandywine Range. (Ex. C-24, point marked collision). His reconstruction, however, is dependent upon several other pieces of evidence, including: (1) Captain Cano's testimony regarding where the Santos picked up the pilot, and (2) where and how the Santos anchored following the accident. In other words, the path which he charts is relative only to fixed points where the path begins and ends. If either of these points are changed, or the manner and speed in which they are arrived at is altered, his calculation as to the situs of the collision must also change. There is conflicting testimony with regard to these variables.
First, Captain Orton's testimony about where he was picked up in the Pilot Area contradicts Captain Cano's testimony. The Santos' master, who had only been in the Delaware Bay as a master two or three times before (Ex. C-25, p. 123-24) placed the pick-up point in the western portion of the Pilot Area (Ex. C-2, point marked Pilot). Captain Orton, who had been piloting ships up and down the Delaware for more than 20 years, placed the pick-up point in the eastern portion of the Pilot Area. (Ex. P-9, point marked XA).
Engine Bell Book ...