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MARITRANS OPERATING PTNRS., L.P. v. M/T FAITH I

August 12, 1992

MARITRANS OPERATING PARTNERS, L.P., Plaintiff,
v.
M/T FAITH I; WALLEM SHIP MANAGEMENT LTD.; PLM INVESTMENT MANAGEMENT INC.; TRANSPETROL MARITIME PTE LTD.; ALICE G. FAITH LTD., Defendants.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BROTMAN, District Judge:

 This maritime action arises out of the collision of the tug and barge Independence/Ocean 192 with the tanker vessel M/T Faith I at about 12:36 a.m. on August 19, 1990 approximately one-half mile south of the entrance to the Delaware Bay for deep draft vessels. A bench trial on the issue of liability was held on February 18-19, 1992 and on May 4-5, 1992. After considering the evidence presented and the arguments and submissions of counsel, the court makes the following findings of fact and conclusions of law.

 I. FINDINGS OF FACT

 1. The M/T Faith I is a 32,500 deadweight ton single screw steel vessel built in 1974, of 609 feet in length and 86 feet in beam, registered in the Bahamas. At all relevant times her deep draft was 35 feet.

 2. At all relevant times, the M/T Faith I was owned by defendant Alice G. Faith Ltd., operated by defendant Wallem Ship Management Ltd. and chartered by defendant Transpetrol Maritime PTE Ltd. *fn1"

 3. The tug Independence is a thin-screw steel hull towing vessel of 82 feet in length and 6000 horsepower. The barge Ocean 192 is a steel tank vessel of 479.6 feet in length and 84 feet in beam subdivided into six cargo tanks, each with a port and starboard compartment. At all relevant times on August 19, 1990, the Independence was made fast to and pushing in the notch on the stern of the Ocean 192. The total length of this configuration was 525 feet and the deepest draft was 28 feet, 6 inches.

 4. The tug Independence and the barge Ocean 192 are, and were at all times material to this action, owned and operated by plaintiff Maritrans Operating Partners, L.P. ("Maritrans").

 5. The entrance/exit of the Delaware Bay for deep draft vessels is marked on its western extreme by Buoy number 5 and on its eastern extreme by Buoy number 6. The distance between the two buoys is approximately 1.2 miles. Buoy number 8 is approximately 1.5 miles north of Buoy number 6. At all relevant times, the Independence/Ocean 192 and the M/T Faith I were deep draft vessels.

 6. On August 18, 1990 at about 4:15 p.m., the Independence/Ocean 192 departed the BP Marcus Hook, Pennsylvania refinery heading down the Delaware River towards the Delaware Bay with a cargo of gasoline. Mate Matthew Frankowski was at the conn. At about 5:45 p.m., Captain Frederick Bush relieved Mate Frankowski at the conn.

 7. On August 18, 1990 at about 11:45 p.m., Mate Frankowski relieved Captain Bush. Standing watch with Mate Frankowski and acting as a look-out was Able Seaman Robert Hopkins. The Independence was equipped with two operating radar units and three operating VHF units. Mate Frankowski monitored the radar and was responsible for operating the engine controls and the VHF units. The Independence/Ocean 192 was outbound heading south down the Delaware Bay passing approximately two-tenths of a mile off of Buoy Number 8 and Buoy Number 6 on its port side at a speed of approximately 12 knots.

 8. Per Captain Bush's instructions, Mate Frankowski intended exiting the Delaware Bay within approximately two-tenths of a mile of Buoy number 6 and then heading east by turning to port into the outbound traffic lane of the Five Fathom Bank Sea one once clear of the Delaware Bay entrance. The Five Fathom Bank Sea ones run east and west. According to Captain Bush, the pilot station requested that outbound tugs were to stay to the east side of the Delaware Bay to accommodate vessels entering the nearby pilot area located within the Delaware Bay. Captain Bush testified that he has never seen this request in writing. *fn2" If not for this request, Captain Bush testified that he would have instructed Mate Frankowski to navigate down the west side of the Delaware Bay close to Buoy number 5. February 18, 1992 Transcript at 190-193; May 4, 1992 Transcript at 28-31. Moreover, Captain Richard McClean, Maritrans' expert in the area of navigational responsibilities, prudent seamanship and the rules of the road, also testified that it was the usual procedure, in accordance with the precautions required by the ordinary practice of mariners for vessels leaving the Delaware Bay, to stay on the west side close to Buoy Number 5. February 19, 1992 Transcript at 121-122, 142-143.

 9. On August 18, 1990 at about 11:40 a.m. after arriving from Tarragona, Spain with a cargo of vacuum gas oil bound for Philadelphia, Pennsylvania, the M/T Faith I anchored near the seaward entrance to the Five Fathom Bank Sea one access to the Delaware Bay.

 10. On August 18, 1990 at about 9:20 p.m., the M/T Faith I's anchor was aweigh and she was heading east at a speed of approximately 12 knots, toward the entrance to the Delaware Bay in the inbound traffic lane of the Five Fathom Bank Sea Lane. At all relevant times, the M/T Faith I was on hand steering.

 11. The bridge of the M/T Faith I was initially manned by Captain Misra Yogesh Kumar, Second Officer Obaid Kayani and a helmsman. There was a scheduled watch change at midnight so that at 11:55 p.m. on August 18, 1990, helmsman Isidro Ducanes took the wheel and at 12:25 a.m. on August 19, 1990, Second Officer Michael Jacob relieved Kayani. The M/T Faith I was equipped with two operating radar units and two operating VHF units. Captain Misra monitored the movements of the vessel and also watched the radar. Second Officer Jacob watched the radar, controlled the VHF units and made entries in the deck log book and the deck maneuvering order book.

 12. At about 12:15 a.m. on August 19, 1990, the M/T Faith I detected the Independence/Ocean 192 visually and by radar. At about 12:25 a.m. the Independence/Ocean 192, detected the M/T Faith I visually and by radar.

 13. At about 12:24 a.m., the M/T Faith I's engines were ordered half ahead. At about 12:26 am, the M/T Faith I initiated a VHF communication with the pilot tower regarding dispatching a pilot to the M/T Faith I. Pursuant to this conversation, Captain Misra intended to turn to starboard towards the Delaware Bay close to Buoy number 6 after picking up Pilot Walter Howard Jr. who was heading towards the M/T Faith I aboard the pilot boat. November 13, 1991 De Bene Esse Transcript of Captain Misra at 143. *fn3" At about 12:27 a.m., the M/T Faith I's engines were ordered slow ahead.

 14. At about 12:27 a.m, Mate Frankowski initiated a VHF communication with the M/T Faith I. Mate Frankowski requested a port to port passage which was rejected by the M/T Faith I because it could not take Buoy number 6 on its port side. The M/T Faith I countered with a request for a starboard to starboard passage and that was rejected by the Independence/Ocean 192 because it could not take Buoy number 6 off of its starboard side. After the response by the Independence that it had rejected the M/T Faith I's counter-proposal, the M/T Faith I told the Independence/Ocean 192 that the M/T Faith I would stop its engines and let the Independence/ Ocean 192 "pass ahead" of the M/T Faith I. November 13, 1991 De Bene Esse Transcript of Second Mate Jacob at 20, 25. *fn4"

 15. At about 12:30 a.m. on August 19, 1990, the M/T Faith I stopped its engines. At about 12:35 a.m., the M/T Faith I went full astern and its rudder was turned hard to starboard to avoid a collision with the Independence/Ocean 192. If the M/T Faith I would have gone full astern or its rudder turned hard to starboard between 12:30 a.m. and 12:33 a.m., the collision would not have occurred.

 16. After the VHF communication with the M/T Faith I, the Independence/Ocean 192 maintained its speed of about 12 knots and continued on its course approximately two-tenths of a mile from Buoy number 8 and Buoy number 6 on the eastern side of the Delaware Bay. At about 12:35 a.m., the Independence/Ocean 192 was switched from automatic pilot to hand steering and the rudder was turned hard to starboard to avoid a collision with the M/T Faith I. If the Independence/Ocean 192 had navigated towards the western side of the Delaware Bay close to Buoy number 5, the collision would not have occurred.

 17. A collision occurred at about 12:36 a.m on August 19, 1990 between the M/T Faith I and the Independence/Ocean 192 approximately one-half mile south of Buoy number 6. The M/T Faith I's bow penetrated the port quarter of the Ocean 192 at an angle of approximately 90 degrees. At all relevant times leading up to the collision, the Independence/Ocean 192 was on a course approximately 45 degrees or four points *fn5" off the M/T Faith I's starboard bow.

 18. At the time of the collision the vessels were navigating in an area to which the 1972 International Regulations for Preventing Collisions at Sea, Rules Following 33 U.S.C. § 1602, applied to govern the conduct of the vessels in respect to each other. The vessels were also navigating in a Precautionary Area in which mariners must exercise extreme care when navigating.

 19. No whistle signals were sounded by either vessel prior to the collision, and neither vessel had posted a bow lookout at any relevant time.

 20. Except for the VHF communication initiated by Mate Frankowski at about 12:27 a.m., no further communication occurred between the two vessels prior to the collision.

 21. Prior to the collision, neither of the vessels took compass bearings or radar plots of the other vessel to determine the speed and the changes in the speed of the other vessel. Captain Norman Cockcroft, defendants' expert in the fields of navigation, collision regulations and collision analysis, testified that it should have been apparent to the M/T Faith I crew by the use of radar that the Independence/Ocean 192 was on a course heading close to Buoy number 6 on the eastern side of the Delaware Bay. May 4, 1992 Transcript at 163-165, 181.

 22. At all relevant times, the weather was clear and visibility was good.

 23. No other vessel interfered with or affected the navigation of either the M/T Faith I or the Independence/Ocean 192.

 II. CONCLUSIONS OF LAW

 A) Rule Violations

 In 1874, the Supreme Court established The Pennsylvania Rule for determining fault in ...


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