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SHELL PETROLEUM CO. v. PESCHKEN

June 24, 1960

SHELL PETROLEUM CO., Ltd., as Owner of THE M/S LEMBULUS, Libelant,
v.
Charles PESCHKEN, Canolius V. Hines and Fred W. Bents, Respondents



The opinion of the court was delivered by: WORTENDYKE

This case properly invokes the Admiralty jurisdiction of this Court. The cause of action alleged in the libel arises out of a collision between the British Motor Tanker Lembulus, owned by libelant, and the draw section of a New Jersey State Highway bridge over the Hackensack River, a navigable body of water of the United States, on December 20, 1957. The bridge is also locally known as the Lincoln Highway bridge, and extends between Jersey City and Kearney, New Jersey. The respondents were employees of the New Jersey State Highway Department, who were charged with the engaged in the performance of the duty of operating the highway drawbridge with the draw section of which the collision here involved occurred.

The Bridge Act of 1906, 33 U.S.C. § 499 provides that it shall be the duty of all persons operating and tending drawbridges built across the navigable rivers and other waters of the United States 'to open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of the Army the public interests require to govern the opening of drawbridges for the passage of vessels * * *, and such rules and regulations * * * shall have the force of law.' Rules and regulations have been promulgated by the Secretary of the Army for the operation of the Lincoln Highway bridge and are to be found in 33 C.F.R. 203.200(d) and (e), which provide:

 '(d) When a vessel approaches within signaling distance of a bridge for passage, the master thereof shall signify his intention by three blasts of a whistle or horn. * * * The signal of the craft shall be immediately answered by the tender or operator of the bridge. If the draw is ready to be immediately opened, the answer shall be three blasts of a whistle or horn from the bridge. In case of delay in opening the draw, as is provided for in this section, or as may be necessary by accident to the machinery or other contingency the signal from the vessel shall be answered by two long blasts of a whistle or horn from the bridge * * *. In all cases when delay signals have been given, a signal of three blasts of a whistle or horn shall be given as soon as it is possible to open the draw.

 '(e) Upon hearing or perceiving the signals prescribed, the tenders or operators of a drawbridge, except * * * shall at once open the draw signaled for so as to allow the prompt passage of any vessel: * * *.'

 Other regulations promulgated by the New Jersey State Highway Department for the operation of the drawbridge provided that if the opening were delayed abnormally, due to traffic conditions or failure of equipment, 'the signal of two blasts is to be repeated at intervals until the draw can be moved.'

 The evidence at the trial disclosed that the vessel had been moored at Kopper's Wharf on the westerly bank of the river at Kearney Point, New Jersey, some distance north of the Lincoln Highway bridge, discharging cargo. After cargo discharge, the vessel, in ballast, for a voyage to Curacao, Dutch West Indies, cast off from the wharf and proceeded downstream upon the river, followed by two tugboats which had assisted in turning the vessel about after she cast off. She had been moored at the wharf port-side to, with the bow in an upstream direction. The Lembulus was 466 feet 2 inches in over-all length, had a beam of 54 feet 7 inches, and a loaded draft of 25 feet 7 1/2 inches. Her gross tonnage was 6,503. In ballast, as she was upon her departure, her forward draft was 13 feet and her after draft 17 feet. She was clear of the wharf at 1529 hours on the date stated, and headed downstream, or seaward, at 1542 1/2 hours. The wind was fresh to strong from the southeast, and squally, with intermittent rain showers, and there was an incoming tide.

 Before reaching the bridge with which the collision occurred, in her progress down the river, it was necessary for the vessel to negotiate, in the following order, the Lackawanna Railroad Bridge, and the so-called City bridge, a short distance to the south of the Lackawanna bridge, both of which are drawbridges, and then to pass beneath the fixed Pulaski Skyway bridge. Because of her position at the wharf during the cargo discharge operations, it became necessary for her to be turned around. There was some conflict in the testimony respecting the location at which the vessel, with the assistance of the two tugs, was turned about. The master of the vessel testified that this maneuver was executed to the south of the Lackawanna bridge, after the vessel had been towed stern-first through that draw, whereas evidence for the respondents was to the effect that the turn-around took place to the north of the railroad bridge and that the vessel passed through the draw of that bridge bow first. The vessel's Deck Log book discloses: '1537 Vœ swinging in river. 1542 1/2 , Vœ swung, slow ahead, proceeding downriver. 1543 1/2 , Lackawanna bridge opened. 1546 dead slow ahead, Vœ cleared Lackawanna Bridge.' These entries are confirmed by similar entries in the bridge movement book and in the engine movement book of the vessel. Whatever may have been the manner of her passage of the Lackawanna drawbridge, she accomplished it without incident, and her passage through the City bridge draw was also uneventful. Her navigation, while proceeding downstream, was under the control of Captain John Bassett, a Dock Master and River Pilot, employed by the owner of the two tugboats above mentioned, but his testimony could not be presented because of his death before the trial. However, the testimony of Captain Hawkins, the Master for the vessel, who was with the Pilot on the vessel's bridge during the operation, disclosed that, at 1546 hours, while passing through the draw of the City bridge, which crosses the river at a point 1.1 nautical miles to the north of the bridge with which the vessel collided, the Pilot signalled for the opening of the latter bridge by three blasts of the vessel's whistle. The giving of this signal is corroborated by the Chief Bridge Operator in his written report, following the collision. This signal was acknowledged by the Highway bridge by two blasts of its horn (the prescribed warning of delay in opening the draw), but the drawspan of the bridge nevertheless commenced to rise almost immediately.

 The bridge operator, respondent Peschken, stated in his post-collision report to the New Jersey State Highway Department: 'We knew that the tugs had gone up the river for the steamer and we were watching for them. When we seen (sic) them coming I signalled the gatemen to close the gates and I gave the steamer two long blast (sic) on the horn. Due to electrical trouble on the bridge this was done before the steamer reached the Skyway. The span was in upward motion before the steamer was under the Skyway.' He testified on the trial, however, that he gave a second two-blast signal after the respondent Hines told him the vessel was 'coming down pretty fast.' Respondent Hines testified to a similar effect.

 Captain Hawkins testified that after the Highway bridge signaled to acknowledge the vessel's signal, no further warning of the stopping or slowing of the rise of the drawspan, or of any difficulty in its operation, was given, and that the orders to stop and reverse the engines were given upon the Pilot's visual observation from the vessel's bridge of the slowing or stopping of the lifting of the drawspan.

 Respondents concede that the vessel passed through the Lackawanna bridge draw at 1546. This fact is disclosed by the log book of the tender of that bridge, as well as by the deck log book of the vessel. The bridge tender of the City bridge testified that the vessel passed through his draw at 1548 hours. She was then somewhat over one-half a nautical mile north of the Pulaski Skyway fixed bridge beneath which she was about to pass, and at that time the Lincoln Highway bridge's draw section was already in upward motion. Libelant contends that the vessel's fore topmast struck respondents' draw section at 1557 hours, ship's time. Respondents' drawbridge log reports the vessel's passage through the Lincoln Highway draw between 3:42 and 3:48 p.m. ( 1542/1548 hours). This entry is obviously incorrect, especially in view of the entry in the railroad bridge tender's log book that the vessel passed through the Lackawanna draw at 1546. If the vessel passed through that draw at 1546 and through the City bridge draw at 1548 hours, she could not have reached the Lincoln Highway bridge, 1.1 nautical miles away, at the same instant. I find as a fact that the vessel covered the distance to the Lincoln bridge in nine minutes, or at the rate of 743.132 feet a minute, an average of 7.33 knots. The Captain of the Lembulus, however, admitted that her average speed between the Skyway and the Lincoln Highway bridges was 9 knots. Average speed between the designated points is misleading, however. A high speed at the start and slow speed near the finish averages the same as would the reverse of those speed allocations. I am concerned with the speed of the vessel between the moment the bridge span commenced to rise and that of the collision. Her course was generally southwest; the wind was fresh to strong from the southeast, and she was moving against an incoming tide. She had slowed from full ahead to slow ahead at 1553 hours, five minutes after passing through the City bridge draw and four minutes prior to the collision, and her engines were stopped at 1555 hours and at 1555 1/2 hours were ordered to full astern. They were going full astern at the moment of collision. A master mariner, familiar with vessels of the size of the Lembulus, and with the Hackensack River channel in which she was proceeding, testified, for respondents, that under the circumstances and conditions existing at the time of the occurrence here in question the maximum safe speed for the vessel between Koppers Wharf and the Lincoln Highway bridge would be 3 1/2 to 4 knots. But this opinion of the witness was predicated upon the assumption, contrary to fact, that the tide was ebbing. The opinion of this expert that a speed of 9 or 10 knots between Kopper's Wharf and the Lincoln Highway bridge would be excessive does not impel me to conclude that the vessel was moving at an excessive speed over the ground between the point at the Skyway bridge where she signaled for the opening of the draw at 1553 hours, with her engines at slow ahead, and that of her contact with the draw section at 1557 hours. Between these two points her engines reached no higher speed than dead slow ahead, and they were going full astern at the moment of collision. I am not convinced that the speed at which she was traveling was immoderate or excessive because of the existing weather and tidal conditions.

 As already pointed out, the regulations governing the operation of the Lincoln Highway drawbridge as the Lembulus approached it required the vessel to indicate her intention to pass through the draw by three blasts of her whistle when within signaling distance of the bridge. It is uncontradicted that the Lembulus complied with this requirement. The bridge operator was required, by the same regulations, to answer the vessel's signal with three blasts of the bridge's horn if the draw was ready to be immediately opened, but if there were delay incident to mechanical failure or otherwise, he was required to so indicate by two long blasts of the bridge horn. 33 C.F.R. 203.200. Captain Hawkins testified that as the Lembulus was 'about to pass under the Skyway bridge at approximately 1553 hours, three whistle blasts were blown' by the vessel as a signal to the bridge to open. He further testified that 'the bridge answered our signal and commenced lifting almost immediately.' It will be observed that the Captain did not say of how many blasts the bridge's answering signal consisted. The vessel's speed was then reduced to dead slow ahead to enable her to shape course to pass through the comparatively narrow opening afforded by the draw. That the drawspan was rising in what appeared to the vessel to be a normal manner following its receipt of her signal, but that the span then seemed to slow to such an extent that it was difficult to tell whether it was still moving or had stopped, was confirmed by the testimony of the Captain of one of the tugboats, which accompanied the Lembulus as she approached the bridge. He also testified that the Lembulus was moving very slowly as she approached the draw. He, however, was not asked how many blasts were given by the bridge tender in answer to the vessel's signal, nor whether any subsequent warning was sounded from the bridge.

 Peschken had been aware for some time previous to the date of the collision that the electrical operating mechanism of the drawbridge was in a defective condition. Respondents' witness, Inannaccone, in charge of maintenance of the electrical bridge draw operating facilities for the State Highway Department, had discovered some time previously a malfunction in the mechanism of the Lincoln Highway bridge, which manifested itself only when the speed of the bridge opening was above what he called the 'third power point'. It was known to the electrical supervisor as well as to the drawbridge operator that the draw could only be opened slowly because of the risk of stoppage through power failure. Despite the two-blast response of the bridge to the vessel's three-blast signal to open, the prompt commencement of the draw opening was inconsistent with the implications of the two-blast bridge response, and constituted no notice that the draw would open slowly or stop during its rise. The vessel was entitled to assume that it might proceed with safety from the point at which it was at the time the span commenced to rise.

 There is another aspect of the case which discloses failure of the drawbridge operator to exercise the degree of care imposed upon him not only by the governing regulations, but also because of the peculiar circumstances of the situation, including his knowledge of the risk of stoppage of the draw through power failure. The electrical supervisor testified that the draw opening mechanism was provided with dual control systems so that, in the event of failure of one, an alternate might be used in the lifting of the drawspan. The slowing or stopping of the draw, which occurred in this case, and which unquestionably resulted in the damage to the ...


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