Whitney Steamship Company, as Owner of the M/v Sam Laud, Cross-Appellant v. United States of America, Cross-Appellee

747 F.2d 69, 1985 A.M.C. 493, 1984 U.S. App. LEXIS 17647

• Court: Court of Appeals for the Second Circuit
• Decided: October 16, 1984
• Docket: 799, 837, Dockets 83-6133, 83-6147
• Status: Published

Opinions

TIMBERS, Circuit Judge:

More than a decade and a half ago, then Chief Judge Aldrich of the First Circuit stated that his Court refused to be a party to adding to the Coast Guard’s honored-motto, “Semper Paratus” (Always Ready), the words “Interdum Prudens” (Sometimes Careful). United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 197 (1 Cir.), cert. denied, 389 U.S. 836 (1967). That is the touchstone of the instant case so far as the principal appeal is concerned in which the United States seeks total exoneration for the conduct of the Coast Guard in this saga on Lake Erie outside Buffalo Harbor on July 4, 1976.

Before us are cross-appeals from a judgment entered March 25, 1983, in an admiralty action in the Western District of New York, Edmund F. Maxwell, Magistrate. The M/V SAM LAUD twice ran aground on July 4, 1976. The Buffalo Traffic Buoy, maintained by the United States Coast Guard, was not on station at the time of the groundings. Whitney Steamship Company, owner of the SAM LAUD, commenced this action for damages, alleging that the groundings were due to the negligence of the Coast Guard by reason of the absence of the buoy.

The action was tried before Magistrate Maxwell pursuant to 28 U.S.C. § 636(c) (1982) and Rule 36(B) of the Rules of the Western District of New York, the parties having waived their right to a trial before a district judge and having consented to a trial before a magistrate. The Magistrate found that, although the vessel’s negligence was the primary cause of the groundings and that they could have been avoided even though the buoy was off station, the groundings nevertheless would not have occurred if the buoy had been in place and that the Coast Guard was negligent in failing to discover the buoy’s absence. The Magistrate apportioned 80% of the damage to Whitney Steamship and 20% to the United States. The parties thereafter stipulated that the total damage sustained was $1,204,915.89. Judgment was entered on March 25,1983, awarding $240,-908.16, or 20% of the total damage, against the United States.

From that judgment, the United States has appealed and Whitney Steamship has cross-appealed. Finding no error, we affirm.

I.

At the time of the groundings, the SAM LAUD was carrying a load of iron ore pellets from Taconite Harbor, Minnesota, to Buffalo, New York, under the command of Captain Albert Wilhelmy, an experienced lake captain. The Third Mate, Alexander McDonald, although an experienced mariner, was making his first trip as an officer licensed by the Coast Guard. The SAM LAUD was equipped with fully functional gyro and magnetic compasses, with equipment for taking visual bearings on shore objects which then could be plotted on a navigational chart to ascertain the vessel’s position, and with two marine radars.

McDonald took over the navigation or “con” of the SAM LAUD at 0745 hours on the morning of July 4, 1976. She was then about 9 miles from Long Point, Ontario, and 60 miles west of Buffalo, running at full speed — approximately fifteen and a half miles per hour — in heavy fog. McDonald previously had been instructed by Wilhelmy to pursue a course recommended by the Lake Carriers Association, an organization of lake ship owners. The Association recommends certain courses for the purpose of separating upbound and down-bound lake traffic, and the limits of these courses are clearly marked on harbor charts. McDonald was supposed to follow the course from Long Point, Ontario, to the Buffalo Traffic Buoy.

The buoy in question is designated in the 1976 U.S. Coast Guard Light List as the “Buffalo Harbor Traffic Lighted Bell Buoy” No. 400 and is identified in the charts as “(BW) Bell Mo (A) W”. We shall refer to it as the “Buffalo Traffic Buoy” or “the buoy” in this opinion. The buoy is black and white vertically striped, 6 feet in diameter and 20 feet in height. It extends 10 feet above the water. It is equipped with a light and radar reflector. It is moored in approximately 40 feet of water and marks the point at which downbound vessels must change their course depending on which entrance to Buffalo Harbor they wish to use. It is removed from its station during the winter months, but had been returned to its station on April 26, 1976.

Using the vessel’s radar, McDonald took bearings on Long Point at 0756 hours which indicated that the vessel was “roughly a half mile wide” of the recommended lake course line. He changed course from 71 to 62 degrees, the recommended course line from Long Point to the Buffalo Traffic Buoy.

The SAM LAUD broke out of fog just west of Point Abino. Thereafter visibility was excellent, the winds were light and fixed landmarks were readily visible. Under the prevailing weather conditions, the buoy , should have been visible to the pilot of the SAM LAUD from a distance of at least four miles. This is in accordance with the Coast Guard Light List which states that a buoy extending 10 feet above the water should be visible to an observer at water level for a distance of approximately 4 miles. Since the pilot house is significantly above water level, the buoy should have been visible from more than four miles. There was testimony that the buoy should have been visible for seven to eight miles.

McDonald and the wheelsman tried to locate the buoy with binoculars and radar, but the buoy was not sighted. McDonald called Wilhelmy and told him that he had been unable to locate the buoy. Wilhelmy came to the pilot house briefly and instructed McDonald “to head on the buoy when he saw the buoy.” No plots of the vessel’s location were made on any chart from the time she passed Point Abino. There is no legal requirement that vessels plot their positions on navigational charts, but it is considered good navigation practice to do so.

At 1120 hours, McDonald logged the SAM LAUD’s position as -3.2 miles off Point Abino, proceeding at full speed. To steer on the charted position of the Buffalo Traffic Buoy, a starboard turn was necessary at this time. But the log shows that the course was changed to 60 degrees, thus turning the vessel to port. McDonald and the wheelsman continued to search for the buoy, but without success. They continued these efforts until relieved.

At approximately 1140 hours, Wilhelmy returned to the pilot house and assumed control. McDonald informed him that the Buffalo Traffic Buoy had not been sighted. No change was made in the vessel’s course or speed. By this time, the vessel was far off the limits of the recommended down-bound course that Wilhelmy had intended to follow and in dangerously shallow water. At 1150 hours, the Second Assistant Engineer made a notation in the engine room log of a grounding. This grounding was not noticed in the pilot house. An inspection disclosed that the vessel was holed and was taking on water in the fore-peak.

Wilhelmy decided that the vessel was too far to the north; so he changed course to starboard and checked the engines to one-half speed shortly after the first grounding. The pilot house log reflects that speed was checked at 1148 hours (the course change was not recorded), but there is some inaccuracy in at least one of the log entries. Although the pilot house log shows that speed was checked at 1148 and the engine room noted the grounding at 1150, uncontradicted testimony showed that the first grounding occurred prior to checking the speed. A second grounding occurred which was felt in both the pilot house and the engine room. The pilot house log recorded this grounding at 1200; the engineer’s log recorded it at 1201. Thereafter the vessel entered the harbor and docked.

The Coast Guard conducted a. search for the Buffalo Traffic Buoy after the groundings. Neither the buoy nor its mooring chains ever were found.

There of course was a great deal of other evidence, but that summarized above is believed sufficient to an understanding of the legal issues upon which we rule below in this opinion.

The case was tried from May 12-15, 1981, and on June 10, 1981. The Magistrate filed his decision on September 1, 1982, ' concluding as we have stated above. He found, among other things, that the vessel had ample time to take corrective action after it would have become obvious to a reasonable person that the buoy was missing. Navigational landmarks other than the Buffalo Traffic Buoy were visible to persons on the vessel’s bridge for at least half an hour prior to the groundings. If the vessel’s position had been plotted on the navigational chart at any time until immediately before the accident, the course misdirection would have been obvious and the groundings could have been avoided. Nevertheless, the vessel continued to proceed at full speed while a search continued for the buoy. Accordingly, the Magistrate apportioned 80% of the fault to the vessel. He apportioned the remaining 20% of the fault to the Coast Guard. While he found that the accident could have been avoided if the vessel’s navigators had exercised reasonable care, he nevertheless held that the Coast Guard should not be exonerated from all liability for the groundings, since its negligence was a contributing factor.

Thus the issue is squarely presented for our decision on the cross-appeals.

II.

Reliance is an essential element in a case for damages against the Coast Guard. Although a forceful argument may be. made to the contrary, we are convinced that the Magistrate did not err in implicitly finding that the vessel’s initial reliance on the presence and location of the Buffalo Traffic Buoy was reasonable. The Magistrate found that the buoy was the major navigational aid in the harbor. The evidence showed that the Coast Guard was aware that mariners routinely relied on its presence. In Indian Towing Co., Inc. v. United States, 350 U.S. 61 (1955), the Supreme Court held that, once the government exercises its discretion to operate navigational aids and engenders reliance on the guidance afforded by such aids, it thereafter is obliged to make certain that they remain in good working condition.

The United States argues that the Coast Guard did not engender reliance on the Buffalo Traffic Buoy and points to new language on their charts and the Light List to the effect that the buoy “must not” be relied upon exclusively in navigating the harbor. The approach chart to Buffalo sets forth the following statement in distinctive magenta coloring: “WARNING The prudent mariner will not rely solely on any single aid to navigation, particularly on floating aids, see U.S. Coast Guard Light List and U.S. Coast Pilot for details.” The Light List contains a more detailed warning:

“BUOYS It is imprudent for a navigator to rely on floating aids to navigation to always maintain their charted positions and to constantly and unerringly display their advertised characteristics____ The approximate position is used because of practical limitations in positioning and maintaining buoys and their sinkers in precise geographical locations. These limitations include, but are not limited to, inherent imprecisions in position fixing methods, prevailing atmospheric and sea conditions, the slope of and the material making up the seabed, the fact that buoys are moored to sinkers by varying lengths of chain, and the fact that buoy/body and/or sinker positions are not under continuous surveillance but are normally checked only during periodic maintenance visits which often occur more than a year apart____ The mariner is also cautioned that buoys are liable to be carried away, shifted, capsized, sunk, etc. ... For the foregoing reasons, a prudent mariner must not rely completely upon the position or operation of floating aids to navigation, but will also utilize bearings from fixed objects and aids to navigation on shore____ All buoys should, therefore, be regarded as warnings or guides and not as infallible navigation marks; especially those located in exposed positions.”

A similar warning is found in 33 C.F.R. § 62.25-55 (1983).

These warnings of course increase the magnitude of the error of the SAM LAUD’s navigators in failing to use other navigational aids. They do not convince us, however, that any reliance on the proper placement of the buoy was unreasonable. Cf. Afran Transport Co. v. United States, 435 F.2d 213, 219 (2 Cir.1970), cert. denied, 404 U.S. 872 (1971) (“What this amounts to is giving the Regulation an interpretation which construes the statement which only says mariners should not rely ‘completely’ on buoys in such a way as to say that mariners should not rely on buoys at all if they are able to take fixes. That such an innovation would be impractical and unenforceable seems apparent.”) Once a navigational aid is put in place, the Coast Guard is under a duty to exercise due care in maintaining it. Warnings will not immunize the Coast Guard from this duty, nor from the consequences of negligent maintenance which contributes to accidents.

The Magistrate also relied on the holding in Afran Transport, supra, 435 F.2d at 215, that, absent “some suspicious circumstance or notice, navigators are entitled to rely upon the representations made in the Government charts relative to the location of the buoys.” True, suspicious circumstances began to appear as the SAM LAUD went further and further off course and the navigators’ continued reliance on sighting the buoy until the very end was unreasonable. Nevertheless, these things occurred well after Wilhelmy’s initial decision to steer a course toward the buoy. The Coast Guard may be held liable for damages if it is negligent in maintaining a navigational aid and such negligence causes an accident, even if circumstances finally make it obvious that the aid is missing or off station before the accident occurs. In Reliable Transfer Co., Inc. v. United States, 497 F.2d 1036 (2 Cir.1974), reversed on other grounds, 421 U.S. 397 (1975), we affirmed a damage award against the United States where the ship’s captain discovered that the Coast Guard breakwater light was out a half hour prior to the accident and ceased to rely upon the light. On remand from the Supreme Court’s holding in Reliable Transfer, 421 U.S. 397, 401-11, replacing the century old admiralty rule of equally divided damages by the rule of damages in proportion to fault, we remanded the case to the district court with instructions to enter judgment awarding damages on the basis of its finding that the stranding was caused 25% by the negligence of the Coast Guard in its failure properly to maintain the breakwater light and 75% by the negligence of the vessel in making a U-turn in a dangerous channel when her captain knew that the breakwater light was not operating. Reliable Transfer Co., Inc. v. United States, 522 F.2d 1381 (2 Cir.1975).

We hold that the SAM LAUD’s reliance on the buoy was justified. We turn now to the question of due care. The Coast Guard has a duty to exercise due care to discover if a buoy is misplaced or lost and to give warning as to its absence. Indian Towing, supra, 350 U.S. at 69. We believe that the Magistrate’s determination that the Coast Guard was negligent in failing to warn mariners of the buoy’s absence was not clearly erroneous. ' At 1849 hours on July 2, 1976, two days before the groundings of the SAM LAUD, the JOAN M. McCULLOUGH had reported to the Coast Guard that a buoy was missing. The report referred to the “Waverly Shoal traffic buoy” or “Waverly Shoal fairway buoy” as the missing buoy. The Coast Guard checked the buoy designated in the Light List as the “Waverly Shoal Buoy”, a black can owned by the Canadian government, located approximately 2 miles north-northwest of the Buffalo Traffic Buoy in approximately eighteen feet of water. This buoy was found to be properly on station. The Magistrate found that the technically incorrect name “Waverly Shoal” is commonly used in referring to the Buffalo Traffic Buoy, and that the Coast Guard should have been aware that the McCULLOUGH was referring to it.

Many of the seamen who testified at trial continued to refer to the Buffalo Traffic Buoy as the Waverly Shoal Buoy. Prior to 1961, the buoy we refer to as the Buffalo Traffic Buoy was the primary navigational aid used in entering the Port of Buffalo. It was listed as the “Buffalo Harbor Waverly Shoal Lighted Bell Buoy”, and commonly was referred to as the “Waverly Shoal Buoy.” This buoy was moved approximately .9 miles southwest of its former position to its current location and was renamed when the approaches to the north and south harbor were changed in 1961. Evidently, experienced mariners continue to refer to this buoy as the “Waverly Shoal Approach Buoy” or the “Waverly Shoal Traffic Buoy.” The terms “fairway” and “traffic” connote navigational buoys rather than warning or marker buoys like the one at Waverly Shoal.

The Magistrate also found that the described location of the missing buoy should have alerted the Coast Guard to the fact that the McCULLOUGH was referring to the Buffalo Traffic Buoy rather than the Waverly Shoal Buoy, because such a large vessel would not have been- in the vicinity of the true Waverly Shoal Buoy. It is undisputed that between July 2 (when the McCULLOUGH reported that a buoy was missing) and July 4 (when the SAM LAUD was grounded) the Coast Guard issued no notices to mariners and broadcast no advisories regarding the Buffalo Traffic Buoy. It is further undisputed that the SAM LAUD monitored appropriate radio channels en route and picked up current notices to mariners on July 3. Since the Coast Guard negligently checked the wrong buoy, it did not discover that the Buffalo Traffic Buoy was off station and therefore issued no warnings.

The Magistrate found that this breach of the duty of due care by the Coast Guard was a proximate cause of the groundings. If “the buoy had been on station the vessel would have changed course to steer on the buoy and the groundings would not have occurred.” This factual determination that the groundings would not have occurred but for the Coast Guard’s error is entitled to substantial deference by us as a reviewing court. After all, the Magistrate heard and saw the witnesses. He was there and we were not.

The United States argues that it should not be held liable because the Magistrate found that the SAM LAUD could have avoided the groundings by using proper navigation procedures, even though the buoy was off station. This argument is essentially an invitation to return to the last clear chance doctrine, which negates a defendant’s negligence if the plaintiff had the last opportunity to avoid the accident. We decline the invitation. Last clear chance is no longer viable in determining admiralty damages. United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 411 (1975); see Getty Oil Co., Inc. v. SS Ponce De Leon, 555 F.2d 328, 333 (2 Cir.1977). The United States may incur liability for the Coast Guard’s negligent failure to maintain a buoy if that failure is a factor contributing to the grounding of a vessel. Bouchard Transportation Co., Inc. v. Moran Towing & Transportation Co., Inc., 428 F.Supp. 153, 155 (S.D.N.Y.1977).

If the Coast Guard had not been negligent in failing to discover the buoy’s absence, of course it would not be liable. Courts have rejected any idea that strict liability applies with respect to the placing of navigational aids. E.g., Indian Towing Co. v. United States, 276 F.2d 300, 302 (5 Cir.), cert. denied, 364 U.S. 821 (1960).

This brings us, finally, to Whitney Steamship’s cross-appeal in which it is asserted that the Magistrate apportioned damages on the basis of the degree of causation rather than the degree of fault. We disagree. Our review of the Magistrate’s decision leads us to the conclusion that he properly carried out his responsibility of allocating damages in proportion to the fault of each party under Reliable Transfer, supra, 421 U.S. at 411. We hold that the Magistrate’s allocation of fault and damages was not clearly erroneous. Getty Oil, supra, 555 F.2d at 334.

We affirm the judgment entered on the decision of the Magistrate, with costs to Whitney Steamship Company in this Court.

Affirmed.