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AFRAN TRANSP. CO. v. S/T MARIA VENIZELOS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 11, 1978

AFRAN TRANSPORT COMPANY and GULF OIL CORPORATION
v.
S/T MARIA VENIZELOS, In Rem, COMPAGNIA MARITIMA ISTMENIA, LTDA., In Personam, VENIZELOS A.N.E., In Personam, VENIZELOS SHIPPING (AGENCIES) LTD., In Personam, and S/S ORE MERCURY, In Rem, UNIVERSE TANKSHIPS, INC., In Personam

The opinion of the court was delivered by: LUONGO

SUR PLEADINGS AND PROOF ON MOTIONS FOR RECONSIDERATION

 LUONGO, J.

 On December 26, 1973, the Steamship William Larimer Mellon ran aground as it was proceeding up the Delaware River in a dense fog. On September 22, 1975, the owner and the time-charterer of the Mellon instituted this action, in which they contend that the grounding was caused by the negligent navigation of the Steamship Ore Mercury, which had proceeded upriver ahead of the Mellon, and of the Steamtanker Maria Venizelos, which was proceeding down the Delaware River. *fn1"

 From November 29 to December 5, 1977, the case was tried to the Court on liability, and at the close of evidence I delivered findings of fact and conclusions of law from the bench. I found that the grounding was caused primarily by the negligent navigation of the Mellon, contributed to, in lesser degree, by the negligent navigation of the Ore Mercury and Maria Venizelos. Expressing those findings in terms of percentages of fault, as required by the Supreme Court in United States v. Reliable Transfer Co., 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975), I allocated 70% of the fault to the Mellon, 25% to the Maria Venizelos, and 5% to the Ore Mercury.

 Trial on damages was held on January 10-11, 1978. The parties stipulated that total damages resulting from the events on the date of the accident were $740,000, of which $220,000 was caused by the Mellon's efforts to unground. The defendants contended that the ungrounding damages should be charged solely against the Mellon and not allocated among the parties. At the close of the evidence, I again delivered findings and conclusions from the bench, holding that defendants were correct in their contention and that only $520,000 of the damages should be allocated in accordance with the percentages of fault in causing the grounding. I also held that plaintiffs were entitled to prejudgment interest.

 Plaintiffs and the Maria Venizelos defendants have now moved for "reconsideration" of some of my findings and conclusions. I interpret their submissions as motions to amend findings and the judgment under Federal Rule 52(b). *fn2" Necessarily, the findings and conclusions that I delivered from the bench were rather general. Although I believe that those general findings are sufficient to dispose of this case, in light of the pending motions I shall now set forth the findings and conclusions in a more detailed form, modifying them as appears necessary after a more thorough review of the record. The findings of fact and conclusions of law set forth herein supersede those delivered from the bench.

  Findings of Fact

 A. The parties and the ships

 1. Plaintiffs are Afran Transport Co., a business corporation with an office and principal place of business in Monrovia, Liberia, and Gulf Oil Corporation, a business corporation with its principal place of business in Pittsburgh, Pennsylvania.

 2. At all times material to this suit, Afran owned the Steamship William Larimer Mellon, a single-screw steam-powered tank vessel having a length of 753 feet and a beam of 102 feet, 1 inch.

 3. At all times material to this suit, Gulf was the time-charterer of the Mellon.

 4. The Steamship Ore Mercury is a single-screw steam-powered combination oil and ore carrier having a length of 751 feet and a beam of 102 feet, 4 inches.

 5. At all times material to this suit, the Ore Mercury was owned by defendant Universe Tankships, Ltd., a Liberian business corporation.

 6. The Steamtanker Maria Venizelos is a single-screw steam-powered oil carrier having a length of 558 feet and a beam of 70 feet, 4 inches.

 7. At all times material to this suit, the Maria Venizelos was owned by defendants Compagnia Maritima Istmenia, Ltda. and Venizelos A.N.E., two foreign business entities. It was operated by a third foreign business entity, defendant Venizelos Shipping (Agencies) Ltd.

 B. Site of the accident

 8. The incident giving rise to this suit occurred in the Marcus Hook Range of the Delaware River. That "range" is a 4.25 mile *fn3" stretch of the river in the vicinity of the border between Pennsylvania and Delaware. The succession of ranges on the river from the Delaware Memorial Bridge, which spans the river just south of Wilmington, Delaware, to the intersection of the Delaware and Schuylkill Rivers is: Cherry Island, Bellevue, Marcus Hook, Chester, Eddystone, Little Tinicum Island, Billingsport (which is adjacent to Paulsboro, New Jersey), and Mifflin (along which Hog Island is located). The normal width of the Marcus Hook Range channel is 800 feet. The upriver course on the range is 058 degrees true and the downriver course is 238 degrees true.

 9. On the New Jersey (eastern) side of the Marcus Hook Range is a deep water anchorage marked on the National Ocean Survey maps as Anchorage No. 7. The water depth in the anchorage exceeds forty feet and the depth of the river to the New Jersey side of the anchorage exceeds thirty feet.

 10. Marker buoys are located at various points along the Delaware River channel. The boundary between the Marcus Hook and Chester Ranges is marked by a flashing green buoy designated Chester Range Lighted Buoy 1C on the Pennsylvania (western) side of the channel and a "nun" buoy designated Chester Range Buoy 2C on the New Jersey side. Another flashing green buoy designated Marcus Hook Range Lighted Buoy 9M is normally located about six-tenths of a mile downriver from Buoy 1C on the Pennsylvania side of the channel. In the vicinity of Buoy 1C, an overhead power cable crosses the channel; it has an authorized clearance of 210 feet. To the Pennsylvania side of the channel, about.6 mile downriver of the boundary between the Marcus Hook and Chester Ranges, is the mouth of Stoney Creek, and about.5 mile below that point on the same side of the river is the mouth of Marcus Hook Creek.

 11. From some time prior to and on December 26, 1973, a one-half mile length of the channel at the upper end of the Marcus Hook Range was restricted due to drilling, blasting, and dredging operations; a 500 foot wide portion of the channel on the Pennsylvania side of the river was closed to navigation. To mark the restricted area, colloquially referred to as the "cut", Buoys 9M and 1C were relocated to points at the westernmost edge of that 300 foot portion of the channel on the New Jersey side of the river that remained navigable and Buoy 2C was replaced with a red lighted buoy. In addition to the channel restrictions, the upper portion of the Marcus Hook anchorage, north of a line drawn perpendicular to the channel from the mouth of Marcus Hook Creek, was closed to anchored vessels. The Coast Guard issued periodic Notices to Mariners which advised seamen of the restrictions and requested voluntary one-way traffic in the cut and the granting of the right of way to ships travelling with the current, especially during the two hours prior to high water at Marcus Hook when deep draft vessels bound upriver would necessarily be scheduled to transit the area. The Notices also advised seamen "to establish right of way well in advance" of traversing the cut. Although these Notices to Mariners were phrased as voluntary, under general maritime custom and usage they were in fact mandatory directives.

 12. On December 26, 1973, high water in the vicinity of the upper end of the Marcus Hook Range was predicted to occur at 1333 hours at a height of 5.8 feet. During the two hour period preceding high water at Marcus Hook the current was a flood tide running at a rate of 1.7 knots upriver on a course of 060 degrees true (i.e., it had a "set" two degrees to the east of the Marcus Hook channel upriver course of 058 degrees).

 C. Events leading to grounding of the Mellon

 13. On December 26, 1973, the S/S Ore Mercury, under the command of Captain Alexandros I. Betsis, was inbound on the Delaware River carrying approximately 49,000 long tons of iron ore from Puerto Ordaz, Venezuela, to the United States Steel facility at Morrisville, Pennsylvania. The ship had a draft of thirty-eight feet, five inches fresh water. Between 0404 and 0407 hours on that morning, the ship stopped at the Cape Henlopen pilot station at the mouth of the Delaware River, where it was boarded by Captain Donald M. Douglas, Jr., a duly licensed Delaware River pilot. The ship then proceeded upriver toward Morrisville.

 14. On December 26, 1973, the S/S William L. Mellon, under the command of Captain Fortunato Galano, was inbound on the Delaware River carrying 49,639 long tons of crude oil from Escravos, Nigeria, to the Gulf Oil facility at Hog Island in Philadelphia. The ship had a draft of thirty-seven feet. At approximately 0400 hours on that morning, Captain Michael J. Linton, a duly licensed Delaware River pilot, boarded the ship from a pilot launch at Big Stone Beach in the lower Delaware Bay. At 0459, the ship commenced its passage up the Delaware River; it was astern of the Ore Mercury.

 15. At about 0700, the Ore Mercury encountered a patch of fog in lower Delaware Bay, about forty miles south of Marcus Hook. At approximately 0750, the Mellon reached this patch of fog. The Mellon's pilot, Captain Linton, heard Captain Douglas of the Ore Mercury talking on the radio and called him to inquire about the visibility. Douglas responded that he had encountered no bad visibility once he had traversed that patch of fog. At this time, the Ore Mercury was approximately ten miles ahead of the Mellon.

 16. The Ore Mercury passed under the Delaware Memorial Bridge at 0929 and entered the Cherry Island Range; visibility was three to four miles. Captains Douglas and Betsis (the Ore Mercury's master) then learned from VHF radio conversations between vessels further upriver that visibility in the Marcus Hook area was very poor. By the time the Ore Mercury reached the middle of the Bellevue Range, visibility was deteriorating; the Ore Mercury began slowing its speed.

 17. At 0946 on December 26, 1973, the S/T Maria Venizelos, under the command of Captain Demetrios Archontas, left the Mobil Oil docks at Paulsboro, New Jersey, and proceeded down the Delaware River, headed for New York. The ship had a draft of twenty-four feet, six inches. At 0245 on that morning, Captain John H. Ahrens, a duly licensed Delaware River pilot, had boarded the ship. Departure, which had been scheduled for 0300, had been delayed because of cargo operations. Ahrens took over as pilot at about 0950, after the undocking was completed, and gave a full ahead order. Because of an inoperable high pressure turbine, the ship's speed downriver (against the flood current) at full ahead was only about five knots. *fn4"

 18. It was raining in Paulsboro when the Maria Venizelos undocked, and visibility was one and one-half to two miles. Because of the rain, Ahrens did not anticipate fog downriver and he and Captain Archontas, the ship's master, decided to sail. No attempt was made to communicate with ships downriver to check on visibility conditions.

 19. While he was piloting the Maria Venizelos, Captain Ahrens was aware of the navigation restrictions at the upper Marcus Hook Range.

 20. At 0953, the Mellon passed under the Delaware Memorial Bridge, having slightly reduced its speed because of barges in the area. Captain Linton overheard radio conversations about reduced visibility upriver. By radio, he verified that tugboats would be available to dock the Mellon at Hog Island. He called ahead to the Ore Mercury, which at that time was in the middle of the Bellevue Range near Bellevue Range Lighted Buoy 6B, and Captain Douglas responded that he was encountering fog, that he might anchor at Marcus Hook if the fog got too thick, and that he would keep Linton informed of his intentions.

 21. Because of worsening visibility, from 1000 the Ore Mercury continued slowing its speed with a series of slow ahead, dead slow ahead, and stop orders. The ship began blowing danger whistles -- inland fog signals. At approximately 1006, the Ore Mercury entered the Marcus Hook Range. The fog was so dense that Captain Douglas was unable to see the buoys as he passed them. He and Captain Betsis decided to anchor in the Marcus Hook Anchorage. The only other available anchorage between there and the Ore Mercury's Morrisville destination was the one at Mantua Creek (marked as Anchorage No. 9 on the National Ocean Survey maps), an anchorage on the New Jersey side of the Mifflin Range that was somewhat shallower and less preferred than the one at Marcus Hook. Since three or four ships were already anchored at Mantua Creek, Douglas and Betsis concluded that it would not be safe for the Ore Mercury to attempt to anchor there.

 22. At 1004, the Mellon was on the Cherry Island Range near the intersection of the Delaware and Christina Rivers. Visibility was two to three miles, and various lookouts were stationed. The ship's engine orders at about this time varied between half ahead, at which the Mellon could sail at eight to eight and one-half knots in dead water (i.e., in water without a current), and slow ahead, at which it could sail at three to three and one-half knots in dead water. At approximately 1006, Captain Linton was informed by Captain Douglas that the Ore Mercury would anchor at Marcus Hook if it could find room in the anchorage. Despite this information, the Mellon did not reduce her speed. By 1015, the Mellon was on the Bellevue Range encountering progressively denser fog. On the bridge with Captains Linton and Galano (the master) were the helmsman, mate on watch, and lookouts on each wing; from the time the ship entered dense fog, a lookout was posted at her bow.

 23. As the Ore Mercury proceeded up the Marcus Hook Range, Captain Douglas checked occupancy of the anchorage by radar, shifting from a four mile scale to a two mile scale and then to a one mile scale. There were three vessels in the anchorage, each of which was parallel to the eastern edge of the channel with its bow facing downriver, into the flood current. The lowermost and uppermost vessels were close to the edge of the channel, and the middle vessel was deeper into the anchorage. There was space in the anchorage below the lowermost and above the uppermost vessels. Most of the upper space was in the part of the anchorage closed by the Notices to Mariners. Captain Douglas decided to anchor in the upper space, leaving the lower one for the Mellon.

 24. While the Ore Mercury was preparing to anchor, the Maria Venizelos proceeded down the channel at about five knots. At about 1020, the ship was in lower Little Tinicum Island Range, about two and one-half miles from its point of departure, and it began to encounter reduced visibility. Captain Ahrens radioed the Ore Mercury to check on visibility downriver and was informed of Captain Douglas' plans to anchor in the upper part of Marcus Hook anchorage, about three and one-half miles from where the Maria Venizelos was then located. Despite reducing visibility, the Maria Venizelos continued down the channel without slackening speed. The ship's radar was set on a two-mile scale, and that scale was not expanded to check the position of the ships further downriver.

 25. As the Ore Mercury was abeam of the lowermost vessel in the Marcus Hook anchorage, Captain Douglas radioed the Mellon and informed Captain Linton of his intention to anchor in the upper anchorage, leaving the lower spot for the Mellon. Linton replied that the Mellon was bound for Hog Island and would not be anchoring at Marcus Hook. By that time, the Ore Mercury was committed to taking the upper spot in the anchorage; it was too late for it to take the lower spot since it had gone too far up the channel.

 26. The Ore Mercury continued up the Marcus Hook Range, navigating by radar. While it was still in the vicinity of the lowermost ship in the anchorage, the radar image of the uppermost ship in the anchorage, the Pella, blurred because the radar beam picked up the Pella and the nearby British Petroleum docks at approximately the same distance and location and showed them as a single object on the radar scope. Captain Douglas attempted to radio the Pella to confirm that it was not moving and that there was not an additional ship in the upper anchorage, but he received no response. Inquiries to the Curtis Bay tug office produced no additional information. At one point, Douglas had a radio conversation with Captain Ahrens on the Maria Venizelos in which he asked about Ahrens' radar view of the upper anchorage; Ahrens replied that his radar only showed one vessel in the upper anchorage. The radar image cleared as the Ore Mercury proceeded up the channel, revealing that the Pella indeed was the only vessel in the upper anchorage and that it was stationary.

 27. Between about 1030 and 1035, the Mellon made the right turn onto the Marcus Hook Range. Captain Linton's engine orders continued to alternate between half ahead and slow ahead until 1040, when a dead slow ahead order was given. (At dead slow ahead the Mellon could sail at about three knots in dead water.) At about 1040, the Mellon was in the vicinity of Marcus Hook Lighted Buoy 1M in the lower Marcus Hook Range. It had travelled approximately 6.2 miles since 0943, when it had sailed under the Delaware Memorial Bridge, and its average speed during this forty-seven minute period was about eight knots. This was double the Mellon's bare steerageway (the minimum speed necessary for the ship to maintain steering control) which, in the 1.7 mile following current, was approximately four knots. (The bare steerageway of the Mellon in dead water is approximately two knots.) The Mellon's average speed over the 4.4 miles between its position on the lower Cherry Island Range where it first encountered reduced visibility at about 1004 and its position at 1040 was about 7.5 knots.

 28. While it was in the lower Marcus Hook Range, the Mellon met, without incident, the tugboat Queen Bee, which was pushing a gasoline barge downriver. The tug and tow anchored in the space available in the lower Marcus Hook anchorage. 29. The Ore Mercury continued to sail up the Marcus Hook Range at a slow speed. Captain Douglas visually sighted the Pella, the northernmost ship in the anchorage, as the Ore Mercury passed within about one hundred feet of it, and he then began anchoring maneuvers, using the visual location of the Pella as a guide. The Pella was in the anchorage at the edge of the channel with its bow facing southward into the current. Upon passing the Pella, at a point near the southern boundary of the closed portion of the anchorage, Douglas gave a hard starboard order which brought the bow of the Ore Mercury to the right, past the Pella's stern. Slowly, he steered the front of the Ore Mercury into the anchorage with a series of dead slow ahead and stop orders. At 1049, he gave a full astern order to stop the ship's forward momentum; by this time, the bow of the Ore Mercury was in the anchorage to the New Jersey side of the Pella, but the stern was still in the channel. At 1050, Douglas issued a stop order and had the anchor and 180 feet of chain dropped from the ship's bow. He then continued to steer the ship to the right (hard starboard) as he gave the following engine orders: 1051 slow ahead 1054 stop 1055.5 dead slow ahead 1057 slow ahead 1059.5 half ahead 1100.5 slow ahead 1101 half ahead

19780511

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