The opinion of the court was delivered by: WILLIAM G. BASSLER
In the early morning of June 7, 1990, after heaving anchor at Stapleton Anchorage in the Port of New York, near the Verrazano Bridge, and scheduled to berth at the terminal of Coastal New York in Bayonne New Jersey, the 811 foot Motor Tanker BT Nautilus ran aground in the Kill van Kull, rupturing the No. 4 starboard cargo tank, and discharging an estimated 230,000 gallons of No. 6 fuel oil. (Ex. 435 at 1). Limitation Plaintiff, Nautilus Motor Tanker Ltd. ("Nautilus"), as owner of the vessel, put up a $ 26,000,000 bond to cover the claims for damages from the oil spill. (Tr. 2493:10-19).
Nautilus filed a counterclaim seeking exoneration from or limitation of liability pursuant to 46 U.S.C. § 183. Nautilus, as Limitation Plaintiff, seeks to impose liability on Limitation Defendant, Coastal New York Inc. ("Coastal"), on the theory that it breached its duty as wharfinger because the vessel either grounded in the ship berth or, if it grounded outside the ship berth, the approach to the berth was unsafe. Coastal, on the other hand, contends that negligent navigation caused the vessel's grounding outside both the Coastal New York ship berth and the federal navigation channel, in a shallow area, shown on the navigation chart in use and known to the vessel's docking pilot.
The non-jury trial took nineteen days, produced 27 witnesses and generated 247 exhibits. To the resolution of the issue of liability only the court now bends a laboring oar in the following findings of fact and conclusions of law.
To the extent that any of the findings of fact might constitute conclusions of law, they are adopted as such. Conversely, to the extent that any conclusions of law constitute findings of fact, they are adopted as such.
The court finds by a preponderance of the credible evidence the following facts:
THE PASSAGE OF THE BT NAUTILUS THROUGH THE KILL VAN KULL AND THE GROUNDING
1. Limitation Plaintiff, Nautilus, was a corporation duly organized and existing under and by virtue of the laws of Gibraltar, and was the owner of the M/T BT Nautilus.
2. The BT Nautilus, built in 1979 at Odense, Denmark, is
an oil tanker of steel construction, 811 feet in length, 105 feet in breadth, 36,376 gross tons, and was at all relevant times a vessel registered under the laws of Hong Kong.
3. Coastal New York was a corporation organized and existing under the laws of one of the United States, with a principal place of business in Hasbrouck Heights, New Jersey, and was the owner and operator of a marine terminal in Bayonne, New Jersey, located on the north side of the Kill van Kull waterway between the States of New York and New Jersey.
4. The berthing facilities at the Coastal terminal consisted of a ship berth, a barge berth (sometimes referred to as the "new barge berth"), two smaller barge berths and an area south and east of the barge berth, which is referred to as the barge berth approach or barge berth entrance.
5. The Coastal New York terminal is located on the northern shore of the Kill van Kull between the states of New York and New Jersey. There is a government-maintained navigation channel in the Kill van Kull which is approximately 800 feet wide in the area of the terminal. The depth of the northern half of the channel is approximately 42-43 feet in the area of the terminal. (Exs. 85, 284, 288, 305 and 618).
6. The BT Nautilus, loaded with approximately 230 metric tons of residual fuel oil, arrived in the Port of New York on the morning of June 4, 1990, but could not proceed directly to the Coastal terminal to discharge cargo because the terminal's ship berth was occupied by another vessel. Instead, the ship anchored at Stapleton Anchorage pending availability of the Coastal New York ship berth.
7. Moran Towing & Transportation Co., Inc. dispatched two tugs, the Kerry Moran and the Scandia, and a docking pilot James Naughton, to assist the BT Nautilus in making the passage from the Stapleton anchorage to the Coastal New York terminal and in docking at the terminal.
9. Departure from the Stapleton Anchorage was about 4 3/4 hours before high water (high tide) at the Battery, i.e. 0354 and 0838 respectively.
10. Although there was testimony that the docking pilot and other pilots frequently docked vessels at the Coastal Terminal during all stages of the tide and current, Captain Roy Lee Redman, Coastal's expert on docking and piloting of vessels in the Port of New York generally, and the Kill Van Kull specifically, credibly testified that because of the size of the berth and the "rocks and shoals in the whole area around there the proper method of a berthing at the Coastal facility was to leave the Stapleton Anchorage about one and a half hours before high water slack in order to arrive at the pier about high water slack, a time when the tidal current is either nonexistent or minimal in either direction. (Tr. 2309:23-2310:10).
11. Coastal's expert docking pilot, Richard Hugh Riley, explained why a laden tanker drawing 35 feet, 3 inches forward and thirty six feet aft on route to the Coastal facility, should leave the Stapleton Anchorage one and a half hours before high water slack: to afford maximum water under keel and minimum current for maximum control when berthing at the Coastal dock. (Tr. 2440:1-22).
12. That the appropriate time for departing the Stapleton Anchorage is about one and a half hours before high tide at The Battery is also documented in the Shipping Guides Ltd. The Guide to Tanker Ports states:
Belcher (now Coastal) Bayonne Terminal: . . . Transit from Anchorage to Terminal: The Pilot/Mooring Master will board and heave anchor approximately 1.5 hours to HW (Battery). Then proceed into Kill Van Kull . . .
13. The flood tide current in the Kill van Kull runs generally from east to west and was, therefore pushing the BT Nautilus from astern, so long as the ship remained parallel to the current.
14. At the time of initial contact, the BT Nautilus was moving in the ahead direction and to the starboard. In other words the ship was "crabbing", (Tr. 2022:1-2026:21; Ex. 708), as evidenced by the "furrow" scratching and scoring on the hull which were parallel and at the same angle to the centerline. (Ex. 140).
15. The available tidal current data reflected that at a location off of New Brighton, about a nautical mile from the grounding, the maximum flood was at 4:27 and at Bergen Point about a half mile from the grounding the maximum flood was at 4:27, so that the grounding at 5:15 on the morning of June 7th, was approximately 45 minutes after the time of the maximum flood. (Tr. 312:19-25; Tr. 330:25-331:15).
16. Dr. James Mays, Nautilus's expert witness in the area of physical oceanography and ocean engineering, testified that by using a computer model, he reconstructed the speed of the current at the location of the grounding to be only 1.01 knots. (Tr. 318:18-23). Although the tidal current tables published by the National Oceanic and Atmospheric Administration advises that because "currents are frequently disturbed by wind or variations in river discharge on days when the current is affected by such disturbing influences" and that "the times and speeds will differ from those given in the table . . . local knowledge would enable one to make proper allowance for these effects." (Tr. 333:16-25). Dr. Mays acknowledged that he made no effort, in formulating his opinion, to consult with any masters or pilots familiar with the Kill van Kull. (Tr. 334:3-13). Nor were any meters deployed to measure the speed of the tidal current in the immediate vicinity of the Coastal facility. (Tr. 326:3-6).
17. The testimony regarding the estimated speed of the tidal current by Dr. Mays is impugned by the statement of the docking pilot, Captain Naughton, in the transcript of the U.S.Coast Guard tape. (Ex. 100A at 53:17-25).
19. The BT Nautilus went aground at 5:15. After the engines were stopped, depths were reported of 9.5 feet under the keel forward and aft 6.5 feet under the keel. (Tr. 445:3). The Captain of the BT Nautilus, Albert Frank Ainscough, tried to take bearings of some shore objects but they were inconclusive. He went to the charts and wrote the bearings and the distances and also "scribbled them down on a piece of paper." But according to Captain Ainscough, because the IMTT berth is not shown on the charts, and because one of the charts showed two dolphins at the Coastal berth, when there was only one, he couldn't fix the position of the ship. (Tr. 446-447). The Captain was not able to find the piece of paper when the Coast Guard came on board shortly after the berthing. (Tr. 463:18-25). He attempted to plot the ship's position on the British Admiralty chart but because it wasn't a good fix, the Captain said he just automatically erased the penciled in position. (Tr. 609:2-610:2).
20. As of 0511, approximately four minutes before the grounding, the tidal current was strong enough to cause the docking pilot, Captain Naughton, concern. The Coast Guard tape recorded Captain Naughton's response to a smaller vessel, the Poling Eight, who wanted to cut into the BT Nautilus as she was making her final approach to the Coastal ship berth: "Well, there's not too much we can do here. We've got a rip snorten, roaring flood tide here." (Ex. 100A at 53:17-25). The Court does not credit Captain Naughton's trial testimony, (Tr. 680:9-22), that this statement did not reflect a concern over the tidal current but rather, was an attempt by him to dissuade the Poling Eight from cutting in front of the BT Nautilus. Similarly, the Court does not credit Captain Ainscough's testimony that this was merely "a figure of speech." (Tr. 573:8-10). In fact, Captain Ainscough stated that Captain Naughton had told him to expect a strong tidal current in the Kill van Kull. (Tr. 573:11-16).
21. When the BT Nautilus ran aground at 0515, the only immediate indication of grounding was a slight port list (Tr. 443:1;2-9). The Captain's first action was to stop the engines (Tr. 444:19-20). The ship itself was "stopped totally." (Tr. 445:11-13; 762:18). After the Captain's abortive attempt to fix the ship, the pilot told the Captain that oil was "coming up in the water." (Tr. 447:6-8). The tide in the Kill van Kull was coming in and going west. (Tr. 647:3-7).
22. Several minutes after the Nautilus stopped, estimated by the docking pilot, Captain Naughton, to be from two to three or as much as four to five minutes, (Tr. 761:2-5; 762:14-15; 768:12-13), the Nautilus began to rotate. With the current hitting the ship on the port quarter, it "started going towards the northside of the channel" (i.e. in a counter-clockwise direction). (Tr. 761:13-15).
23. When the ship grounded, the pilot "looked around," and believing that the ship was still in the Federal Navigation Channel, (Tr. 769:5-15) said to Captain Ainscough: "We shouldn't have touched anything, Captain, we're still in the channel." (Tr. 445:14-16).
24. A copy of the Guide to Tanker Ports was on board the BT Nautilus, as it was in every tanker on which Captain Ainscough had served as master. The Guide, as Captain Ainscough acknowledged, states that the ships are "always starboard side to, and breasted in at the Belcher Coastal terminal." (Tr. 428:16-24). Breasted in means that the ship is put parallel with the berth and then pushed in by tugs. (Tr. 428:24-24). The Guide to Tanker Ports with respect to docking at "Belcher Bayonne Terminal" (now Coastal) states:
Docking and Mooring. All vessels; dock starboard-side-to with the assistance of 2 tugs. Vessels approach the terminal at time of HW slack with minimal headway. Due to the shape of the dredged basin all vessels are normally spotted off the berth and then moved broadside into position alongside the breasting islands. . . .
(Ex. 256 at "NAU-04507").
26. Captain Naughton's approach to the terminal was at an angle and did not utilize the "breasting in" approach. (Tr. 428:21-23). When Captain Ainscough had previously called the Coastal terminal the BT Nautilus was spotted off the berth and then breasted in. (Tr. 428:16-429:18).
27. On the morning of June 7, Captain Naughton was in radio communication with the Coast Guard. At about 0527 the Coast Guard responded to the BT Nautilus as follows:
Group New York: BT Nautilus, Group New York. I understand you're at IMTT, between IMTT and also Coastal Bayonne. What is the distance from your pier? Over.
28. At about 0517 and 0532 the following communication took place:
Group New York: BT Nautilus, this is Group New York. I understand you had a ground up at the Belcher Bayonne, and ah, is there any hull damage? (Final Pretrial Order Stipulation No. 46).
Speaker; BT Nautilus, Group New York. I understand you are pretty much right there to the piers. If you can safely maneuver to the piers, by all means, maneuver to the piers. Over.
29. At about 0534, the Coast Guard initiated a marine safety broadcast for "New York, New Jersey, Kill van Kull":
The tanker BT Nautilus is reported aground in the Kill van Kull in the vicinity of IMTT. All mariners are requested to use caution when transitting the area. Break. This is the United States Coast Guard, New York Group.
(Stipulated Fact 48; Ex. 100A at 71:10-19). This Coast Guard communication was based upon information given to the Coast Guard by the docking pilot on board the BT Nautilus. (Tr. 812:9-25; 1-21).
30. At about 0605 the BT Nautilus refloated on the still rising tide and was docked without further incident at the Coastal New York ship berth. (Stipulated Fact 52).
31. At no time that the BT Nautilus was aground was the ship's position fixed and plotted in the navigational sense: it was not marked on a chart using ranges and bearings (radar or visual) to fixed objects. (Tr. 834:1-835:3). According to Captain Naughton he did not attempt to take a fix of the grounded position of the vessel because he was "busy trying to straighten the ship out and answer radios and talk to people". (Tr. 834:24-835:3).
32. Captain Ainscough testified that he attempted to fix the grounded position but was unable to do so and then gave up the effort in order to assess the source and extent of the escaping oil. (Tr. 445:17-447:13).
33. The court does not credit Captain Ainscough's testimony that a fix could not be determined. Coastal's expert witness, Captain Jay D. Bolton, credibly testified that obtaining a fix based on visual bearings at a position off the IMTT Pier A facility in the Kill Van Kull is a simple procedure, (Tr. 2200:18-23), because there were any number of marks available for visual bearings. (Tr. 2204:11-2205:22). Further, Captain Bolton testified that the radar "could have been used for some benefit." (Tr. 2208:1-8).
34. It was Captain Naughton's opinion that, although the IMTT facility does not have range lights, sector lights or any aids to navigation over and beyond what is at the Coastal facility next door, the ...