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N.M. PATERSON & SONS, LIMITED v. CITY OF CHICAGO

May 21, 1962

N.M. PATERSON & SONS, LIMITED, A CORPORATION, LIBELANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, RESPONDENT-PETITIONER, V. THE GREAT LAKES TOWING COMPANY, INC., A CORPORATION, AS OWNER OF THE TUG OREGON, IMPLEADED RESPONDENT.



The opinion of the court was delivered by: Miner, District Judge.

This matter having been fully tried before the Court, and the court having read the pleadings filed herein by the respective parties, and the court having heard and examined all the testimony, documents and exhibits presented by the respective parties and admitted into evidence, and the court having read, heard and considered the briefs, memoranda and oral arguments submitted by counsel in support of their respective positions, and the court being fully advised, the court hereby enters its Findings of Fact and Conclusions of Law as follows:

FINDINGS OF FACT

1. This is a libel filed by N.M. Paterson and Sons, Ltd. for damage to the steamship Torondoc of $13,000, and a cross-libel by respondent City of Chicago against libellant for damage to the Dearborn Street Bridge of $10,569.35.

2. The libelant, N.M. Paterson & Sons, Ltd., a corporation duly organized under the laws of the Dominion of Canada, was at all times material hereto, the sole owner and operator of the Steamship Torondoc.

3. The respondent, City of Chicago, a municipal corporation duly organized under the laws of the State of Illinois, was at all times material hereto, the sole owner and operator of the Dearborn Street Bridge, a highway bridge lying within the territory of said municipality and spanning the Chicago River.

4. The impleaded respondent, The Great Lakes Towing Company, a corporation duly organized under the laws of the State of New Jersey, was at all times material hereto, the sole owner and operator of the diesel tug Oregon, engaged in harbor towing at the Port of Chicago, Illinois.

5. The Chicago River is a tributary to Lake Michigan and is a part of the navigable waters of the United States.

6. The Dearborn Street Bridge was erected by respondent, City of Chicago, pursuant to the terms of a permit of the Secretary of War of the United States, issued in 1905. The structure was completed in 1907, and rewired in 1939 at which time the conduits were also replaced. On November 20, 1957, the structure was a double leaf bascule-type bridge operated by employees of the City of Chicago.

7. At approximately midnight of November 19-20, 1957, the Torondoc, which had been lying at the wharf at Time Incorporated, above the Halsted Street Bridge in the south branch of the Chicago River, commenced a trip down the river assisted by the tug Oregon on a bow line. The steamer, being partly loaded, proceeded north in the south branch of the Chicago river, turned east at the bend before reaching the Franklin-Orleans Bridge, and proceeded easterly through a series of bridges. Its destination was the North Pier Terminal immediately west of the Outer Drive Bridge over the Chicago river.

8. In the course of its trip down the river, the steamship Torondoc, assisted by the tug Oregon, passed through four bascule-type bridges which opened to allow such passage without incident. These were the Franklin-Orleans Street, Wells Street, La Salle Street and Clark Street Bridges.

9. At the time of the incident giving rise to this suit, there were in effect certain regulations as follows: (a) by the Coast Guard under authority of 33 U.S.C.A. § 241 relating to navagation of the Great Lakes and waters tributary thereto; (b) by the Secretary of the Army under authority of 33 U.S.C.A. § 499 relating to the operation of drawbridges over navigable waters and the passage of vessels under such drawbridges; and (c) ordinances promulgated by the City of Chicago regulating drawbridges within its jurisdiction and the passage of vessels through waters within its jurisdiction. For convenience, many of these regulations have been compiled in a handbook entitled "Great Lakes Pilot," a copy of which was available to the Master of the steamship Torondoc in the course of the trip in question. The Master of said ship was familiar with all regulations and ordinances governing the navigation of his ship at the time in question.

10. Among the regulations promulgated by the Secretary of the Army under 33 U.S.C.A. § 499, is the following, relating to the passage of vessels under drawbridges (33 C.F.R. p. 287:

    "Every owner, officer, or person in charge of any
  vessel, craft or float * * * shall sound or cause to
  be sounded a whistle to signal bridge tenders to open
  and swing bridges, and such signal shall be three
  sharp, short sounds of the whistle, to be given in
  succession as quickly as possible * * *."

11. In the course of its passage under each of the four bridges mentioned in Finding 8 above, the Torondoc made no whistle sound.

12. The Dearborn Street Bridge of respondent, City of Chicago, is the first bridge immediately east of and approximately 400 feet from the Clark Street Bridge.

13. The tenders of the Dearborn Street Bridge had been notified by telephone message that the Torondoc was approaching from the west before the Torondoc had rounded the bend above the Franklin-Orleans Street Bridge.

14. The Coast Guard regulations promulgated under the authority of 33 U.S.C.A. § 241 provide in part (33 C.F.R. p. 104):

    "(a) Lift span lights. Each lift span of every
  bascule bridge shall be lighted so that the free end
  of the span will be marked on each side by a green
  light which shows only when the span is fully open
  for the passage of a vessel and by a red light which
  shows for all other positions of the lift span."

15. The Dearborn Street Bridge was equipped with such lift span lights marking the free end of each span. Each span of the Dearborn Street Bridge was equipped with these lights on both east and west sides, so that they could be seen by ships proceeding either east or west in the Chicago river. These lights were in operation on the night of November 19-20, 1957, and were red when the Torondoc passed through the Clark Street Bridge going east.

16. As the Torondoc passed through the Clark Street Bridge, the Dearborn Street vehicular and pedestrian traffic-gates were lowered preliminary to the opening of the Dearborn Street Bridge. This, as well as the flashing lights warning automobile traffic to cease crossing the Dearborn Street Bridge, was seen by the officers of the approaching vessels.

17. As the bow of the Torondoc passed through the Clark Street Bridge, the leaves of the Dearborn Street Bridge commenced to rise. The south leaf rose approximately eight feet and by reason of malfunction lowered down approximately four feet; the north leaf rose about two-thirds upward toward the open position and was then intentionally lowered to a position approximately ten feet above the partly open south leaf. The lift span lights on the bridge remained red during all pertinent times.

18. When the malfunction of the Dearborn Street Bridge became apparent, the tug Oregon gave a danger signal consisting of five short whistle blasts. The steamship Torondoc then put her engines full speed astern in an attempt to reduce her forward motion. The tug passed under the partly opened north leaf of the bridge. The deck of the steamship Torondoc on the port side also passed under the north leaf, but the pilot house, which extends upward from the deck, struck the north leaf of the bridge. The deck of the Torondoc on the starboard side struck the outer end of the south leaf of the bridge.

19. At and prior to the collision, the steamship Torondoc furnished and controlled her headway or speed without assistance from the tug Oregon. The assistance furnished by the tug Oregon consisted solely of occasional steering of the bow of the Torondoc. The Torondoc worked her engines and used her helm without signals from the tug Oregon. In moving east in the Chicago river, including the area between the Clark Street bridge and the Dearborn Street Bridge, the steamship Torondoc controlled her own rate of speed.

20. When it became apparent to the navigator of the tug Oregon that the Dearborn Street Bridge would not open for passage, there was no way in which the tug Oregon could have assisted in slowing or stopping the headway of the steamship Torondoc before contact was made by it with the leaves of the bridge.

21. The collision of the steamship Torondoc and the Dearborn Street Bridge occurred at approximately 1:00 A.M., Central Standard Time, on November 20, 1957.

22. At the time of and prior to the collision, the master and a wheelsman were in the pilot house of the steamship Torondoc, the second mate was forward on the bow, and the third engineer was in charge of the engine room. The master of the Torondoc, who had been in command slightly longer than one month, was making his second voyage down the Chicago river as a master of a ship. The Torondoc was his first command.

23. The Municipal Code of the City of Chicago (§ 38-30) provides, with respect to vessels passing under drawbridges, that:

    "(a) Every vessel using steam * * * shall be moved
  slowly at a speed not exceeding four miles per hour
  under a low head of steam * * *."
    "(b) Vessels exceeding two hundred tons navigating
  the harbor shall not proceed at a speed greater than
  four miles per hour."

24. The Torondoc was a vessel using steam, and also exceeded two hundred tons net tonnage.

25. Up to and including the time when the Torondoc passed through the Clark Street Bridge, it was traveling at a rate of speed in excess of six miles per hour.

26. The officers of the Torondoc were aware of the malfunction of the Dearborn Street Bridge in ample time to allow them to stop had the ship been moving at or under the maximum permissible speed of four miles per hour.

27. The malfunction of the south leaf of the Dearborn Street Bridge was caused by a defective resistor-grid in the electrical wiring system that activates the motors, as well as other failures in the electrical system. The admittedly defective grid was not preserved by the respondent City of Chicago.

28. Some of the factors which might have contributed to the malfunctioning of the grid and entire electrical mechanism are accumulation of dirt, moisture, age of grid insulation, continued vibration, and movement of the bridge controller's switch too rapidly, which latter factor could cause a sudden electrical overload.

29. Some of the parts of the electrical mechanism, including some of the resistor-grids, had been in use many years without renewal or testing by the respondent City of Chicago.

30. There are relatively simple and inexpensive methods of testing such equipment.

31. The regulations of the Secretary of the Army promulgated under 33 U.S.C.A. § 499, applicable to navigation through the Chicago river bridges, provide in part:

    "(c)(2) If from any cause the bridge tender cannot
  open the bridge, he shall immediately notify the
  vessel by waving a red flag by day and a red lantern
  by night and continue waving the same until the
  vessel has stopped, continuing to display the same
  until the bridge can be opened."

32. The agents and servants of respondent City of Chicago in charge of the Dearborn Street Bridge did not give warning to the steamhip Torondoc by waving a red lantern or any other affirmative action.

33. At the time of the collision of the steamship Torondoc with the Dearborn Street Bridge, it was the policy of the respondent City of Chicagos' bridge department, upon failure of one leaf of a double-leaf bridge to open, to withhold raising the other leaf. This policy was aimed at preventing ships from attempting to navigate through a partly open bridge, as well as to eliminate the temptation of automobile traffic to venture out onto a partly open bridge.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties to and the subject matter of this suit.

2. The regulations set forth in the findings of fact herein have the force of law.

3. The steamhip Torondoc was negligent, among others, in the following particulars:

(a) In traveling east in the Chicago river at a speed substantially in excess of the maximum speed allowed under the governing regulations set forth in Finding of Fact No. 23.

(b) In failing to sound its whistle upon approaching each of the bridges west of the Dearborn Street Bridge, in violation of the governing regulations set forth in Finding of Fact No. 10, and thus failing to timely warn ...


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