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IN RE GREAT LAKES TOWING COMPANY

March 2, 1972

IN RE COMPLAINT OF THE GREAT LAKES TOWING COMPANY, AS OWNER OF THE TUGS ARIZONA AND JOSEPH H. CALLAN, FOR EXONERATION FROM OR LIMITATION OF LIABILITY. CHICAGO AND WESTERN INDIANA RAILROAD COMPANY, A CORPORATION, ET AL.
v.
MOTORSHIP BUKO MARU, HER ENGINES, TACKLE, APPAREL AND FURNITURE, ET AL., DEFENDANTS.



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

DECISION

These cases arise out of a collision of the M.S. Buko Maru with a single leaf bascule bridge of the Chicago and Western Indiana Railroad. When the collision occurred, the Buko Maru was being assisted up the Calumet River from Lake Michigan to Lake Calumet by two tugs of the Great Lakes Towing Company. The towing company filed a libel (70 C 2259) against the owners of the bridge and of the ship, seeking to be exonerated from any liability on the ground that its two vessels were properly operated (46 U.S.C. § 193 et seq.). We find this complaint should be granted.

In a separate but merged action, the Chicago and Western Railroad Company libelled the shipowner for damage to the bascule bridge (70 C 1837). The issue of liability has been tried separately from the issue of damages. Applying the rules of Admiralty (see 46 U.S.C. § 740), we find that the ship was at fault for this collision and its owner must respond in damages to the plaintiff railroad. It follows from the foregoing that the cross-libel of the steamship company for damages to its vessel must be denied.

The collision occurred in the dark of night on July 13, 1970. The resulting problem is to reconstruct just what occurred to cause the collision as the ship was passing through the bridge draw. This problem is complicated by the fact that each of the several occurrence witnesses could see only their own small segment of the action. In order to help put the pieces of the puzzle together, the parties presented several expert engineering witnesses, but the experts disagreed among themselves. The facts and circumstances make it clear, however, that negligence on the part of the M.S. Buko Maru was the primary cause of the collision and that the improper construction of the railroad bridge was not shown to have been a contributing factor. The court has arrived at this conclusion on the basis of the weight of all the evidence, taking into consideration the credibility and interest of the various witnesses and the consistency of their respective versions with the objective facts.

Turning first to the liability of the Great Lakes Towing Company, one of its tugboats was pulling the Buko Maru's bow and the other was guiding the stern. The Buko Maru supplied its own power from time to time, but it could not rely entirely on itself because its engine even at dead slow went too fast for safe navigation of the river. Under the circumstances of this trip, the tugs were intended primarily to assist the Buko Maru, and the master and the pilot of the Buko Maru remained basically in charge. Cf. Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932).

After going around the last bend before the bridge, the tugs straightened out the Buko Maru in adequate time to make a straight shot through the 120' bridge draw. The Buko Maru was not supplying any power at this point. The forward tug whistled the bridge open and the span went up from right to left, roughly north to south. The front tug went through the draw pulling the Buko Maru properly in mid-stream.

The Buko Maru is 549' long, and when it was about one-third or 183' through the bridge draw, its starboard side was passing 5 to 8' from the north or right hand fender system of the open bridge. This is the proper way for a ship of this size to pass through the draw.

As this pass was being made by the front third of the ship, a lookout on the rear tug noticed that the stern of the Buko Maru began to slide to port. When the rear tugboat captain was notified of this, he radioed the Buko Maru to "go ahead on left rudder." A left rudder swings the stern to starboard on the Buko Maru. This would have had the effect of correcting the slide, but only if the rudder turned to port before the engine started. In the meantime the tug tried to pull the ship's stern toward the north or right hand shore as much as it could, until it had to desist due to shallow water.

The tugboat captain repeated his request by radio twice more. At about the time of the last call, a minute or so after the first, the rear tug noticed that the ship's propellor had started while the rudder was still turned to starboard. This pushed water against a starboard rudder, accentuating the slide to port. The rudder eventually did turn to port as requested, but too late.

The flying bridge of the Buko Maru, which was 150' from the stern, hit the upraised span of the railroad bridge at a point 2 to 4 feet inboard on the ship and on the southwesterly portion of the span. This ship which was 74' wide had swung across the 120' channel a distance of about 40'. During this period it moved forward at between 2 and 3 miles per hour, accelerating. If the ship was travelling at about 3 m. p.h. or 264' per minute, the entire swing occurred in less than one minute. The impact with the upraised span put the bridge out of operation but did not stop the momentum of the ship, and it continued its journey to Lake Calumet without further incident.

The contention that the front tug may have pulled the bow of the ship off course is not only contrary to the weight of the evidence but also contrary to the logic of the situation. The Buko Maru's crew and pilot hopelessly contradicted each other on this issue. Logically, there was no reason for the tug to try to alter the ship's course; the tug-boat captain knew the river and knew that the next bridge did not require any turn. There was no wind or appreciable current and no obstruction in the river dead ahead, in short, no reason at all to pull the bow of the ship off course. The testimony of the tugboat crew must be accepted, that they pulled straight ahead after passing through the draw.

The principal contention of the parties opposing exoneration of the towing company is that the forward tug could not talk directly to the Buko Maru because of a defective radio. The radio was able to communicate with the rear tug which in turn could talk to the ship. However, there was no evidence that the front tug had anything significant to say to the ship at this point. The front tug could not see back to the parts of the Buko Maru which were involved in the problem, so its unseaworthiness had no connection with the collision.

The rear tug which had direct radio communication with the ship gave it proper advice when the crisis arose. This is all that is required of the towing company. Distinguish American Bridge Division, etc. v. Roen Steamship Co., et al., 216 F. Supp. 353 (E.D.Wis., 1963) aff'd 328 F.2d 838 (7th Cir. 1963).

Turning now to the controversy between the bridge owner and shipowner, the evidence clearly shows that the navigation of the Buko Maru was faulty. The improper interaction between its rudder and the propellor as observed by the rear tug was caused by faulty commands on the ship's bridge combined with the nature of the ship's mechanism. The ship's pilot ordered the rudder to starboard when her starboard midship was passing the north fender system of the bridge. Why he did this is not clear, except that he apparently thought his bow was being pulled to port. He may have feared the stern would slide to starboard or that 5 to 8' clearance was too close. Whatever his purpose, he attempted to correct by ...


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