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