a copy of the Coast Guard report that Exxon Albany struck an unchartered submerged object outside of the navigable channel. Belcher was able to observe where the Exxon Albany was hung up, because it remained there for an appreciable period of time until lifted off by the tide. It must have realized that the barge was in the area which it believed had a 26 foot minimum depth. It had a television camera on its terminal roof which took periodic shots of vessels entering the terminal. It did not check these photographs to ascertain the position of the Exxon Albany when it was grounded. Belcher made no attempt to locate the obstruction and it continued to take barges which exceeded the limitations set forth in its operating manual. This was negligence.
On August 8 Belcher advised Sonat, upon Sonat's inquiry, that there was 26 feet of water available at the berth. This advice necessarily constituted advice that there was at least 26 feet of water in the approach to the berth. Belcher knew that the safe approach to the berth had to include the additional 26 foot area beyond that shown on the chart. It had failed to take adequate precautions in January and February to assure itself that there were no obstructions in that area of less than 26 feet. It received information in March and June of 1982 sufficient to put it on notice that there was such an obstruction in the additional 26 foot area. It had long realized that it was highly likely that barges the size of Interstate 138 would cross the additional 26 foot area when entering the terminal. Yet its answer to Sonat's inquiry on August 8 constituted an invitation to bring Interstate 138 drawing 24 feet six inches into the barge berth and could in no way be viewed as a warning to avoid a possible hazard just to the east of the reported 26 foot area shown on chart 12333.
The totality of the circumstances constitutes major and continuing negligence on Belcher's part.
C. The Relevant Degree of Negligence : Price's negligence was a momentary lapse from a degree of extreme care which the conditions shown on chart 12333 called for. It was the kind of lapse which in 1981 Belcher had concluded was likely to occur when large barges entered the tightly constricted, unmarked approach to its barge terminal. If Belcher had accomplished the improvements which it sought to accomplish in early 1982, Price's lapse would have been of no moment.
Belcher's fault, on the other hand, was a continuing one from the inception of its dredging project and acceptance of larger barges until it finally removed the offending rock and imposed new size and draft limitations after the grounding of the Interstate 138.
I conclude that a fair apportionment of responsibility for the grounding is 25 percent for Price's negligence and 75 percent for Belcher's negligence.
Conclusions of Law
The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Section 1333.
The facts concerning Price's approach to the Belcher terminal are set forth above. With greater care he probably could have prevented the barge from passing through the waters east of the reported 26 foot depth area shown on chart 12333. His failure to do so was a failure to use ordinary care under the circumstances which contributed to the grounding of Interstate 138. Bunge Corporation v. M/V Furness Bridge, 558 F.2d 790 (5th Cir. 1977).
A terminal operator such as Belcher does not guarantee the safety of vessels coming to its docks. However, "he is bound to exercise reasonable diligence in ascertaining the condition of the berths thereafter and if there is any dangerous obstruction, to remove it, or to give due notice of its existence to vessels about to use the berths." Smith v. Burnett, 173 U.S. 430, 433, 43 L. Ed. 756, 19 S. Ct. 442 (1899). This duty includes the duty to ascertain the existence of underwater obstacles, e.g., Medomsley Steamship Company v. Elizabeth River Terminals, Inc., 354 F.2d 476 (4th Cir. 1966), and to remove or adequately warn of such obstacles, e.g., Berwind-White Coal Mining Co. v. City of New York, 135 F.2d 443 (2d Cir. 1943).
It is true that the duty of a terminal operator extends only to the berth and to the approach to the berth and not to adjacent areas. Trade Banner Line, Inc. v. Caribbean S.S. Co., 521 F.2d 229 (5th Cir. 1975). However, in the present case Belcher's own actions establish what waters should be considered the approach to the terminal. Even though it had no legal interest in the water between the southerly line of its leasehold of the berth area, it assumed sufficient control over that area to attempt to ensure a proper approach to the ship and barge terminal. It obtained soundings of the area. Then partly with and partly without permission of the Corps of Engineers it retained Weeks to conduct dredging operations. The dredging operations in the approach to the barge dock were designed to provide a minimum depth of 26 feet from the government channel to the berth area. When Sonat discovered the offending rock, Belcher first sought to persuade the Corps of Engineers to remove it, and, failing in that endeavor, proceeded to remove it itself.
Thus the approach in the present case was a widened 26 foot depth area. At the time of dredging Belcher failed to ascertain the existence of underwater obstacles in that area. It was put on notice that in all probability there was an underwater obstacle in the approach. Belcher failed to search for it or to warn users of the terminal of its existence. This was a serious breach of the terminal operator's duty to exercise reasonable diligence in ascertaining the conditions of the berth and its approaches and to remove or warn of underwater obstacles in the approaches.
Belcher cites Creppel v. Shell Oil Co., 738 F.2d 699 (5th Cir. 1984) as authority relieving it of responsibility. In that case the Court held that the holder of a mineral lease in the Gulf of Mexico is not liable to vessels which strike an obstruction in the waters subject to the lease which the lessee neither owns nor has placed there nor maintains. That case is totally inapposite to the present case. Belcher is not a mere lessee of navigable waters through which other vessels travel. Rather, Belcher is a terminal operator inviting vessels to use its berths and to pass through approaches maintained by it to get to the berths. As such it has recognized duties to its patrons whatever the state of the title to the berth and to the approaches may be.
Since in admiralty liability is determined using a so-called pure form of comparative negligence, Sonat is entitled to recover from Belcher an appropriate portion of the damages caused by the combined negligence of Belcher and Sonat. United States v. Reliable Transfer, 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975). As noted above I have concluded that Belcher's negligence was 75 percent responsible for the grounding and Sonat's negligence was 25 percent responsible.
Total damages have been stipulated to be $535,000 exclusive of prejudgment interest. It is appropriate that prejudgment interest be paid from the last date on which Sonat made a major payment for repairs to the barge, namely, November 9, 1982. In re Bankers Trust, 658 F.2d 103 (3d Cir. 1981). The average (annual) compounded weighted rate of interest which Sonat paid to its three major banks during the applicable period it borrowed funds was 10.85 percent and the annual simple interest rate paid to those banks during that period was 12.43 percent.
Using these figures Sonat's senior accountant computed prejudgment interest on the total amount of $535,000 to be $168,946.40, which, of course, will have to be apportioned to reflect the comparative negligence of the parties.
Having reached these conclusions it is unnecessary to consider the application of the Pennsylvania Rule, The Pennsylvania v. Troop, 86 U.S. 125, 22 L. Ed. 148 (1873), the applicability of New Jersey's law of public nuisance as applied to the unauthorized dredging and the applicability of the good samaritan rule set forth in Restatement (Second) of Torts, Section 323.
Belcher's counterclaim for indemnity for attorney's fees incurred by it must be dismissed. Its contention that Sonat should have voluntarily dismissed its action when it discovered that the offending rock was outside the area reported on chart 12333 as having a 26 foot depth is for the reasons previously stated without merit.
Sonat is requested to submit an appropriate form of judgment.
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