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N.M. PATERSON & SONS LIMITED v. M/V ETHEL E.

September 21, 2004.

N.M. PATERSON & SONS LIMITED, Plaintiff,
v.
M/V ETHEL E., WILLIAM C. SELVICK, CURLEY'S MARINE TOWING, and CRONIMET CORPORATION, Defendants.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Introduction

Plaintiff N.M. Paterson & Sons, Ltd. is a company formed under the laws of Canada with its principal place of business located in Canada. Plaintiff is the owner of the vessel M/V Paterson ("Paterson"), a Great Lakes bulk carrier registered in Canada. At 1:50 a.m. on October 7, 2000, after unloading its cargo at ACME Steel on the Calumet River, the Paterson departed her unloading berth and proceeded on her journey back up the Calumet River towards Lake Michigan. To aid him in his journey up the Calumet River, Capt. Guy Houde, master of the Paterson, chose to hire one tugboat, the M/V Ethel E. ("Ethel E.").*fn1 The Ethel E. was captained by James Wray. The Ethel E. is owned by defendant William C. Selvick and is managed by defendant Curley's Marine Towing. On its way up the Calumet River towards Lake Michigan the Paterson, assisted by the Ethel E., grounded on the river bottom or on debris found on the river bottom, causing substantial damage to the boat's rudder and propellers. In this lawsuit the plaintiff, N.M. Paterson & Sons Ltd., claims that defendants Ethel E., Selvick, owner of the Ethel E., and Curley's Marine Towing, the managing entity of the Ethel E., were negligent in guiding the Paterson up the Calumet River thereby causing the damages the Paterson sustained. Defendants deny any negligence.

  Summary of Testimony and Facts

  Thomas Karl Coates, a marine consultant, testified on behalf of plaintiffs. Coates has held various positions including mid-shipman, third mate, second mate, first mate and master on various shipping lines and is qualified to be master of almost any vessel anywhere. He is familiar with the use of tugboats. Coates commenced an investigation for the plaintiff in order to establish the cause of the accident. At the time he commenced his investigation, he was employed by the plaintiff as superintendent of hull and navigation. Since then, he has established his own business. As part of his investigation, Coates interviewed both the master and first officer of the Paterson. He testified that his investigation led him to conclude that the Paterson ran aground some 200-250 feet south of the 106th Street Bridge. The trailing edge of the rudder and tips of the propellers were damaged. The damage he observed while the ship was in dry dock is consistent with a ship that has run aground while going astern.

  Coates testified that the typical use of a tugboat in a situation such as this is to keep the vessel being towed in the navigable channel. As the two vessels traveled through the Calumet River, the Ethel E. was in front of the Paterson and proceeded bow first, but the Paterson was traveling stern first. In other words, the two vessels were back-to-back during the tow. Coates also described the tugboat's duty as keeping the stern of the Paterson as close to the center of the channel as possible. Consistent with this opinion was the testimony of Capt. Houde, who indicated that when he left the dock, his instructions to the tugboat captain were that he "start pulling astern and then try to keep her in the middle as much as he can and that's the middle of the channel." According to Coates, although the Paterson needs two tugboats if it is loaded with cargo, when not loaded one tugboat is all that is required, as the ship is traveling under its own power, and the ship's master can use its bow thruster to steer that portion of the ship. Coates testified it is usual and customary for the Paterson to back out of the Calumet River because of the great difficulty a ship of that size would have in turning around after depositing its cargo in order to return upriver toward Lake Michigan bow first. Capt. Houde testified that even though there was a turning basin he could have used, his prior experience was that this basin was always full of barges and it would take forever to find their owners and get them removed in order to be able to utilize it.

  On cross-examination Coates testified that neither the tugboat nor the Paterson was in complete control of the steering of the Paterson, rather, navigating the Paterson through the Calumet River out to Lake Michigan was a joint undertaking which required coordination between both captains. This is so because the Paterson was not a powerless barge, but it retained power to move itself and with its steering and bow thruster could steer that portion of the ship, while the tugboat Ethel E., by means of a line attached to the stern, had influence over the stern of the ship as it led the Paterson stern first towards the lake. Capt. Houde described the interaction between the tugboat and his crew as "teamwork" during which the tug would sometimes give him advice on what to do and vice versa. According to the Ethel E. captain, Capt. James Wray, however, his responsibility when towing such a ship it is to get it out in the channel and then listen to the captain's commands.*fn2 However, he understood that it was his job to keep the ship in the center of the river. In Capt. Wray's understanding, the captain of the Paterson was in charge of the maneuver itself. He was there to assist. Coates also testified that pilots are neither required nor customary in situations such as this, as the captains/masters of the ships are considered sufficiently knowledgeable to be pilots. Capt. Houde testified that he did not have sounding charts for the Calumet River from the Army Corp of Engineers even though he had asked for them when he started as captain because the American charts they had were not sufficiently detailed, and he wanted to know how deep the river was.

  In essence, Coates opined that the Ethel E. captain was deficient in several ways in fulfilling his responsibilities. The Ethel E. captain failed, when he found his view obstructed by glare, to take steps to secure a better view. He could simply have walked to another nearby location, placed a spotter of his own in an appropriate position, or notified the captain of the Paterson of his inability to see clearly. The Ethel E. captain, according to both Coates and Capt. Houde, was in a superior position to see how close the Paterson was coming to the side of the channel. According to Coates, the captain of the Ethel E. could have and should have alerted the Paterson's captain in time to avoid the grounding. Coates also opined that the Ethel E. captain was deficient in not knowing the contours of the bottom of the channel and in not communicating his knowledge of the same to the captain of the Paterson.

  According to Coates and Capt. Houde, spotters were assigned at points of the Paterson by Capt. Houde to notify the captain of the ship's position relative to the banks of the channel.*fn3 Capt. Houde testified that he depended on both the tug and the spotters to tell him if he was getting too close to the bank of the river. In this case, Capt. Houde assigned first officer Dan McDonald to be the spotter on the stern.*fn4 McDonald used a radio to communicate his observations to the captain. The tugboat captain would also be relying on the spotter's observations. McDonald, however, failed to communicate his sightings to the captain during the crucial three to four minutes prior to the grounding. There was conflicting testimony as to what could have caused this failure of communication. There was some testimony that one of the crew saw McDonald absent from his post. There was also testimony that McDonald's radio may have been set to the wrong channel or frequency for communication with the captains of the Ethel E. and the Paterson; that it could have been simply that McDonald's radio signal was blocked by some part of the ship; or that the radio was not turned on. At any rate, according to Coates, the custom is for the spotter to require acknowledgment from the captain of his communicated observations. Therefore, even if he was properly on duty and attempting to relay information, McDonald ought to have known that his communications were not getting through. Coates also testified that as first officer, McDonald would be expected to know where to stand on the ship so that his signal would get through to the captain. Tim Black, charged with investigating and writing a report as to the cause of the accident by N.M. Paterson & Sons, concluded that the first officer, Dan McDonald, was not at his location as a spotter, but rather that he went into the galley to get a cup of coffee.*fn5 For that reason, or possibly because McDonald forgot to turn his radio up, Capt. Houde did not get the required spots to avoid hitting the dock, which caused major damage and expense to the Paterson. Black bases this conclusion on the discussions he had with the watchman, the third mate, and the first mate during his investigation of the incident. According to Black, there was a failure of communication, and the captain did not get the information necessary to do his job properly. The cause of the failure of communication is not clear to the Court. It could have been any one of the aforementioned things or a combination. However, what is clear is that both Capt. Houde and Capt. Wray were relying upon these observations to help them maintain the ship centered within the navigable channel. Coates believed this failure on McDonald's part was so critical that he recommended McDonald be discharged from his position. Capt. Houde wrote a statement indicating that he would not be comfortable having McDonald work under his command again, as he would never be able to trust him. On redirect examination, Coates clarified that he subsequently offered to rehire McDonald, believing that his conclusion that McDonald voluntarily absented himself from his post may have been hasty. However, it is not McDonald's employment or loss of employment that is important to the resolution of this case. It is not crucial for us to determine precisely why McDonald failed to communicate with his captain. The significance of the fact that the plaintiff considered firing McDonald for failing to do so is that it highlights how critical his observations were to the steering of the ship. This is especially true as both the ship and the tugboat were relying on these observations. Without these observations, Capt. Houde would have no idea how close to the shore the ship was. As a result, he would be of no help whatsoever in determining what action, if any, needed to be taken. If it is true, as plaintiff's experts have testified, that the steering of the ship back up the river was a team effort between the two captains, then McDonald's failure to live up to his responsibilities effectively sidelined half of the team. Capt. Wray was left on his own to attempt to adapt to the new circumstances.

  Capt. James Wray was the captain of the towboat Ethel E. towing the Paterson out of the Calumet River. The typical crew for the Ethel E. is a captain, an engineer/deck hand, and a second deck hand His crew's primary purpose after securing to the vessel is to standby and be ready if something should happen to let a tow line go. They do not ordinarily act as lookouts for him. He is the only lookout on the boat. His eye level is approximately 10 feet above the water level. The Ethel E.'s pilot house has windows all the way around so that one can see 360 degrees.

  Although he recalls asking the Paterson for help, Capt. Wray cannot recall why — whether it was because he could not get the ship over alone, it was just going too fast, or some other reason. When lining up for the 106th Street Bridge, he likes to keep the speed of the ship under 1.5 knots. He has no specific recollection of checking his speed as he lined up for the Bridge on the occasion in question, but he does know that the speed was at least under 1.5 knots. He would have made sure of this from habit. He stated he does not need to check his GPS in order to judge the speed of the tow. In his report to the Coast Guard, Capt. Wray stated:
While towing out, the ship took a sheer to port. I pulled up to his starboard and told the Captain to come ahead full hard over to help me get the stern up in the center away from the dock. The deck crew had not said signals in a while, and with glare in the windows, I could not tell right away the ship was sheering off to port. After we got straightened out, the Captain could not — still not get his crew on the radio to answer. I did not think very [sic] stern or rudder touched the dock. It did not look like it from where I was.
  The glare referred to was from all of the lights around the area reflecting on the tugboat's windows. Capt. Wray testified that it was possible for him to step away from the controls for a brief moment and go by the door. Presumably this could be done in order to look outside and avoid the glare of the windows. He cannot recall if there was any reason why he could not have done that the night of the accident. Capt. Wray testified that he could not see the distance between the ship and the shore because he was on the other side of the ship, the starboard side of the ship, trying to pull the ship into the center. Knowing how far the port side of the ship was from the dock would definitely have helped. The reason he suggested to Capt. Houde that he come ahead and put his rudder over hard is that even though he could not see, he felt from the distance to the west bank, which he could see, that the ship was coming too close to the eastern side of the channel. This dialogue occurred at a time when they were getting no communication from the spotters.

  Capt. Wray knows who the captain of the Paterson was that evening because he had towed him many times before. He cannot recall any specific instructions given to him by Capt. Houde that night. He does recall, however, that Capt. Houde was having problems with his crew in that they quit giving signals (distances) to the captain and he got a little mad over it and could not get them on the radio to find out what was going on. Capt. Houde could not get in touch with his crew, and he was asking them where they were or why they were not answering over the radio. Capt. Wray also relied somewhat on the Paterson crew's reports in doing his work.

  Capt. Wray does not know exactly how far from the center of the river the outside channel limits of the Calumet River go. According to him, how close the channel limits get to the edge of the river varies. He agrees it is necessary to obtain information about the river conditions, and he gets his information from Notice to Mariners and whatever is broadcast on the radio as Notice to Mariners from the Coast Guard. He listens to this broadcast regularly and he reads the faxed written notices as well. Although he does not recall listening to the broadcast on the day before the accident, he does listen regularly when he is on board, and if he was on the boat that day he listened to them. He also receives written Notices to Mariners. He does not recall having received any specific information about the condition of the river next to the Cronimet dock. He recalls nothing about the condition of the river in the area south of the 106th Street Bridge next to the Cronimet dock that day that was different from any other day. Although he received no specific information about the water levels in the Calumet River during that time, he knew that the water level was way down. He was not aware of the bottom contours of the river.

  The testimony of G.E. Leithner, plaintiff's expert witness, was given by deposition. Leithner has been a marine surveyor since 1948. He does cargo damage surveys and hull damage surveys. He graduated from the Merchant Marine Academy in 1948. At one time he had a second mate's license, but that lapsed long ago. He has attended numerous continuing education courses since his graduation and has done many investigations. He was engaged by N.M. Paterson & Sons to investigate the accident. He also concluded that the rudder of the Paterson grounded on either the river bottom or on debris on the river bottom, but within the channel limits. Indeed, this is what Coates appears to say in his redirect testimony. He concludes that if the Paterson had not collided with the underwater debris it would have left the navigable portion of the channel and, it follows, run aground shortly thereafter. This would imply that at least one of those involved had allowed the ship to end up in the situation in which not even extreme evasive action could have kept it from leaving the navigable portion of the channel and likely running aground. The testimony of Scott Hollister, a ...


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