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 ordering a hard port
rudder, and the problem was then aggravated by the propellor
starting up when the rudder was still turned to starboard.
This happened in the following manner.
When the slide to port had been started by the starboard
rudder, the rear tug requested a left rudder for a second and
then a third time. At about that moment, the pilot on the Buko
Maru gave the command "Hard to port, dead slow ahead" (or, he
says, ". . . half ahead"). This, of course, was intended to
comply with the request to "go ahead on left rudder". It takes
the Buko Maru's rudder 24 to 28 seconds to move from hard
starboard to hard port (a total of 70°). The pilot testified
that after he gave the command, the engine for some reason did
not respond for 25 to 30 seconds. The ship was on manual
controls and to change the rudder 70° requires four revolutions
of the steering wheel. The rear tug saw the propellor turn for
several seconds before the rudder changed over from starboard.
By the time the rudder had moved to port, the stern of the ship
was almost over against the south fender system of the bridge.
Neither the ship nor the rear tug could correct the slide of
17,500 tons of the loaded ship in time to avoid the collision
with the upraised bridge span.
This occurrence is not surprising when viewed in
perspective. This was the Buko Maru's first trip through the
Calumet River. She was one of the largest ships ever to go
through up to that date, and those in charge should have known
that it could be rather tight. She was a clumsy ship with a
rudder too small to do the job without help from the
propellor, and she consequently lost steerage under 3 m. p.h.
Although the engine therefore was needed for steerage, it
could not run slower than 5-7 m. p.h., too fast for the
Calumet River. A pilot who had previously taken this ship
through the Welland Canal found her difficult to handle, and
one pilot ran her aground due to the sluggish response of the
steerage mechanism. The tugboat captain confirmed that the
Buko Maru was a difficult tow. All in all it appears that
although the ship may have been fine on the open sea and in
wide harbors, it was not well constructed for traversing a
twisting and comparatively narrow waterway, especially in
pitch darkness without searchlights.
The captain and crew of the Buko Maru were all Japanese, but
they had taken on a Canadian pilot at Port Huron. He was in
charge of the navigation and acted as an agent of the ship
company (See The Oregon, 158 U.S. 186, 194-195, 15 S.Ct. 804,
39 L.Ed. 943 (1895)). He spoke no Japanese, and all commands
and radio communications were in English. The young helmsman
at the time of the collision had no river experience and may
not have understood the English orders as readily as he should
have. There is evidence that even the pilot was not
sufficiently qualified to handle this particular ship under
these circumstances, as the foregoing sequence of events would
indicate. Later in 1970 and in 1971 the Buko Maru made five
trips through the bridge draw with different pilots and
without incident. This all adds up to the conclusion that the
ship and its crew were not up to the task of passing through
the bridge draw without problems on the night in question.
Under The Oregon, (supra), it is the moving ship's burden to
exonerate herself from fault. (158 U.S. at 193, 15 S.Ct. 804).
The Buko Maru relies on the defense that the impact would
not have occurred if the bridge had been raised to its
designed height of 82° instead of its actual opening of 75°.
When the War Department authorized the bridge in 1909, it
prescribed the opening of 82°. After construction in 1912, the
War Department inspector certified that the bridge complied
with the authorization. There is no evidence to show when the
variation from 82° to 75° occurred, but there is also no
evidence that this variation only occurred on the night in
question. The bridge apparently opened on the night in question
just as it had been opening for years, perhaps ever since the
time of the original War Department approval. Therefore the
angle of opening on July 13, 1970 was not an act of negligence
but at most a negligent condition.
The next question is whether the 75° angle of opening
constituted an "unreasonable obstruction" to navigation, as
forbidden by 33 U.S.C. § 312 and 494. The evidence shows that
the bridge had been so declared by the War Department in 1956
as a basis for authorizing a new replacement bridge to be built
and paid for by the government. However, this statutory
prerequisite for obtaining funding is not necessarily an
accurate determination of a navigational problem in the case at
bar. The government, in a non-adversary hearing, can make a
general determination for its own purposes without foreclosing
a different finding in a specific situation. Cf. Seaboard
Airline R. Co. v. Pan American Petroleum & Transport Co.,
199 F.2d 761, 765 (5th Cir. 1952); Pacific Spruce Corp. v. City &
County of San Francisco. 72 F.2d 712, 714 (9th Cir. 1934).
Although the span encroached over the channel more at
75° than at 82°, this does not seem to be an "unreasonable"
obstruction to the navigation of the Buko Maru in this case.
Thousands of ships had gone through this draw without incident
since the bridge was constructed, an average of 1400 a season
in recent years. The channel was 120' wide at this point and
the overhang of the span even at 75° left almost all of the
channel completely clear. The stern of the Buko Maru slid clear
across the channel to its extreme south edge and still only hit
the upraised span with its flying bridge at a point almost 60'
above the water. The language and holding in Seaboard Airline
R. Co. (supra), where a channel had been narrowed by a bridge,
are quite applicable to the case at bar:
When, as the record shows to be the case here,
the conditions claimed to be unlawful or
negligent are entirely passive and have existed
for many years to the knowledge of the moving
vessel; when, too, the evidence is, as here,
uncontradicted that, while these conditions do
tend to make the passage more difficult than if
they did not exist, a passage can be safely made
under the conditions if due care is exercised;
there is no basis in the record even for a
division of the damages in favor of the actively
moving vessel, much less for awarding it full
damage. [citation omitted].
The ultimate question is whether the span, uplifted at
75° instead of 82°, contributed to cause the collision. It is
difficult to imagine that the ship would have cleared the
bridge under any circumstances, because the ship was sliding
sideways as well as moving forward and no one can tell where
the slide would have stopped. One witness on the rear tugboat
testified that the slide seemed to accelerate as the ship
crossed the channel, and all agreed the Buko Maru did not get
onto a correcting port rudder until just before the collision
with the bridge, prior to which the ship's propellor was
turning on a starboard rudder. This distinguishes the case at
bar from the similar case of Wilmington Transport Co. v.
Standard Oil Company, 53 F.2d 787 (9th Cir. 1931).