In re the Complaint of J.E. Brenneman Co.

782 F. Supp. 1021, 1992 U.S. Dist. LEXIS 204, 1992 WL 5988
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 8, 1992
DocketCiv. A. No. 89-4488
StatusPublished
Cited by4 cases

This text of 782 F. Supp. 1021 (In re the Complaint of J.E. Brenneman Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Complaint of J.E. Brenneman Co., 782 F. Supp. 1021, 1992 U.S. Dist. LEXIS 204, 1992 WL 5988 (E.D. Pa. 1992).

Opinion

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

This is an admiralty action in which plaintiff J.E. Brenneman Company (“Brenneman”) seeks exoneration from or limitation of liability under 46 U.S.C.A.App. § 183 for damages sustained by the Tacony-Palmyra Bridge when it was struck on December 15, 1988, by the crane barge VULCAN/51 as the crane barge was being pushed up the Delaware River by the tug BEVERLY.

The Burlington County Bridge Commission (“the Commission”) has filed a claim in connection with this petition. Alleging that the negligence of Brenneman and the unseaworthiness of the VULCAN/51 were contributing causes of the allision, that is, the striking of a moving vessel against a stationary object, the Commission asserts that Brenneman should be found liable for a percentage of the Commission’s damages. [1024]*1024Brenneman has filed a cross-claim against the Commission, alleging that the negligence of the Commission in its operation of the Tacony-Palmyra Bridge was a contributing factor in the allision and as a result, the Commission should be found liable for a percentage of the damages to the bridge.

Because the BEVERLY interests have settled with the Commission and Brenneman, this Court has been requested to determine the respective liabilities and proportionate faults of the Commission and Brenneman only. After a three-day bench trial, this Court holds that no liability may attach to either Brenneman or the Commission. For the reasons set out below, therefore, this Court will grant Brenneman as owner of the crane barge VULCAN/51 exoneration from liability, and will further find no liability on the part of the Commission in connection with the allision.

I. FINDINGS OF FACT

Barney Carlsen, Sr. and River Enterprises, Inc. (“River Enterprises”), the owner and charterer respectively of the tug BEVERLY, entered into a verbal contract to provide towing services on December 15, 1988, for the VULCAN/51, the crane barge owned by Brenneman. Under that contract, the tug BEVERLY met the unmanned VULCAN/51 as it was being towed by Brenneman’s work boat COOPER’S POINT, at the mouth of the Schuylkill River. The BEVERLY “made up” to and towed the VULCAN/51 up the Delaware River toward its destination of Bristol, Pennsylvania.

The BEVERLY’s voyage up the Delaware River required it to pass under three fixed span bridges, which were the Walt Whitman, the Ben Franklin and the Betsy Ross. These bridges presented no navigation clearance problems, the lowest of the bridges being the Ben Franklin at about 135 feet above mean high water. The BEVERLY was also required to pass under two drawbridges. The first drawbridge, the Delair Bridge, is a low-clearance railroad “lift” bridge. The second, and the subject of this litigation, is the TaconyPalmyra Bridge, a low-clearance “bascule” bridge, of which the main arch span is fixed while another span opens by the raising of two hinged “leaves.”

At the time the tug BEVERLY picked up the VULCAN/51 at the mouth of the Schuylkill River, the BEVERLY’s captain, David Carlsen, knew the height of the fixed arch span of the Tacony-Palmyra was 64 feet at mean high water. Captain Carlsen did not know the height of the VULCAN/51 as it had been “dogged down” by the Brenneman crew. He was not given this height by Brenneman. Brenneman, further, had no procedure requiring its people to ascertain the height at which a crane had been set, nor of communicating the height to a tug captain.

Captain Carlsen made a visual estimate of the height of the VULCAN/51, which turned out to be grossly in error. Captain Carlsen had not been on deck when the tug “made up” to the VULCAN/51 and thus, he did not see the crane barge until the tug and tow were already underway, when his only perspective was that of looking up the crane from behind. He estimated the total height of the VULCAN/51 to be about 55 feet. Further, he assumed that Brenneman had set the crane of the VULCAN/51 low enough to safely pass under the fixed arch span of the Tacony-Palmyra Bridge, based on his experience of previous tows of the VULCAN/51, for which an opening had never been needed. As determined after the allision with the Tacony-Palmyra Bridge, the height of the VULCAN/51 was nearer 88 feet.

With the captain having made the erroneous assumption on the height of the VULCAN/51, the tug and tow proceeded up the Delaware River. Although a deckhand moved between the deck and the wheelhouse, and was basically keeping an eye on the crane, he was not posted as a look-out in a position that would enable him to ascertain the clearance of the crane in time to enable the tug to avoid allision with a bridge. On the basis of past personal experience, the deckhand, too, assumed the tow would fit under the fixed arch span of the Tacony-Palmyra.

[1025]*1025As the BEVERLY approached the Delair Bridge, Captain Carlsen requested a “half-a-lift” opening, which he assumed to be about 75 feet. The operator of the lift, the “tender,” determined visually, however, that the tow would not clear this height, and raised the lift higher. The bridge tender did not so inform Captain Carlsen. This communication, and another asking for a lift of 60 feet, were heard by the bascule tender of the Tacony-Palmyra Bridge, Maryanne Brewer, who was monitoring the Tacony-Palmyra’s marine radio.

On the day of the accident, Brewer had come on duty at about 7:00 a.m. At 11:15 a.m., she left the tower to perform a routine inspection of the bridge and bascule raising equipment, taking with her a hand-held radio. At some point, she heard a tug request a height of 60 feet from the Delair Bridge. Brewer thought this had been the BEVERLY; however, according to the bridge tender of the Delair, this had been another tug, the DELAWARE. At 11:45 a.m., she returned to the bascule tower, and saw the BEVERLY and tow about three-quarters of a mile downriver, between the Tacony-Palmyra and the Betsy Ross bridges. They appeared to her to be “parked.” Brewer did not contact the BEVERLY, because it was not the bridge’s practice to call to vessels to ask their intentions, and because vessels often pass under the fixed span of the bridge without contacting the bascule tender. Brewer, further, had never had a captain contact her to determine if a tow would clear the fixed span.

After a cursory view of the river, Brewer again left the tower, taking with her the hand-held radio and descending to a room without windows on the first floor of the bascule tower, where she changed out of the coveralls she wore for the bridge inspection, and made a cup of tea for her lunch.

Upon returning to the bascule tower at approximately 12:00 noon, Brewer saw the BEVERLY and the VULCAN/51, but she was not certain that the boom of the VULCAN/51 would not clear the bridge. When she at last determined that it would not clear, Brewer immediately tried to radio the BEVERLY. The captain and deckhand of the BEVERLY had, at about the same time, realized that the crane would not pass safely under the arch span, and the captain had put the engines in full reverse.

Within seconds, the jib boom of the crane struck the sidewalk railing and sidewalk of the bridge, after which the jib boom bent back and the main boom hit a tie member of the arch of the bridge, fracturing the inside steel angle and bending the main tie member steel plates.

At no time did the BEVERLY contact the Tacony-Palmyra for an opening.

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Bluebook (online)
782 F. Supp. 1021, 1992 U.S. Dist. LEXIS 204, 1992 WL 5988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-complaint-of-je-brenneman-co-paed-1992.