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In Re Seaway Company of Catalina

March 7, 2013

IN RE SEAWAY COMPANY OF CATALINA, ET AL.


The opinion of the court was delivered by: Percy Anderson United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs-in-Limitation Seaway Company of Catalina and Catalina Freight Line ("Plaintiffs-in-Limitation") filed a Complaint for Exoneration From or Limitation of Liability on January 12, 2011. (Docket No. 1.) On January 20, 2011, claimants Michael Avila, as an individual; Michael Avila, as the personal representative of the Estate of Penny Avila; and the Estate of Penny Avila ("Claimants") filed their Answer and Claim. On November 17, 2011, the Court dismissed all of the Claimants' claims except for the Death on the High Seas Act ("DOHSA") claim of Michael Avila ("Avila"), as the personal representative of the Estate of Penny Avila.

The Parties filed Trial Briefs and exchanged proposed Findings of Fact and Conclusions of Law.*fn1 On May 29, 2012 and May 30, 2012, the Court, sitting without a jury, conducted a bench trial. Having considered the materials submitted by the parties and reviewing the evidence, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a):

I. FINDINGS OF FACT

A. THE BAYLINER

1. The private pleasure craft occupied by Henry Sanchez ("Sanchez") and Penny Avila was a Bayliner Avanti model with Vessel Identification No. CF2138JU and with an overall length of 28.66 feet ("the Bayliner"). The Bayliner was originally constructed in 1989. (Stipulated Fact*fn2 No. 5.)

2. Penny Avila's son, Michael Avila, owned the Bayliner. (Stipulated Fact No. 6.)

3. The Bayliner was composed of fiberglass; small fiberglass boats present a poor radar signature. (Stipulated Fact No. 66.)

4. The Bayliner was not equipped with radar reflectors. (Stipulated Fact No. 67.)

5. The Bayliner was equipped with radar. (Declaration of Michael Avila ("Avila Decl.") 6:11--12.)

6. On October 1, 2008, the Bayliner was equipped with red and green (port and starboard) navigation lights on the bow and an all--round white navigation/anchor light. The Bayliner's light switch had three positions: (1) ANC, in which the all--around white navigation/anchor light would be on; (2) NAV, in which the red and green (port and starboard) navigation lights and the all--around white navigation/anchor light would be on; and (3) OFF, in which no lights would be on. (Stipulated Fact No. 27; Declaration of Eugene Hickey Jr. ("Hickey Decl.") 15:18--21.)

7. The all--round white navigation/anchor light on the Bayliner, if energized, had a visible range of two miles. (Hickey Decl. 11:10--11, 15:24--27.)

8. The red and green (port and starboard) navigation lights on the Bayliner, if energized, had a visible range of one mile. (Hickey Decl. 11:13--15, 15:24--27.)

B. TUG REBEL II AND BARGE ISLANDER

9. At all relevant times, Plaintiff-in-Limitation Seaway Company of Catalina owned and Plaintiff-in-Limitation Catalina Freight Line operated the tug REBEL II and the barge ISLANDER. (Stipulated Fact Nos. 57 and 58.)

10. The tug REBEL II, official number 519844, is a vessel registered under the laws of the United States, of 61 gross tons and an overall length of 61.8 feet. It was originally constructed in 1969. (Stipulated Fact No. 1.)

11. The REBEL II was operating in waters governed by the International Regulations for the Prevention of Collisions at Sea ("COLREGS"), 33 U.S.C. §§ 1601-1608. (Stipulated Fact No. 7)

12. The United States Coast Guard manning requirements for the tug REBEL II authorized a one--man operation of the tug REBEL II in both inland and international waters. (Hickey Decl. 28:6--8; Trial Transcript*fn3 55:10--13.)

13. The barge ISLANDER, official number 294606, is a barge registered under the laws of the United States, of 326 gross tons with an overall length of 128 feet and a breadth of 38 feet. The barge ISLANDER was originally constructed in 1964, and is used by Catalina Freight to transport cargo between Santa Catalina Island ("Catalina Island") and the Port of Los Angeles. (Stipulated Fact No. 2.)

14. The barge ISLANDER was transporting cargo between Catalina Island and the Port of Los Angeles. (Stipulated Fact No. 3.)

15. The tug REBEL II was towing the barge ISLANDER astern at a distance of between 1,100 and 1,200 feet. (Stipulated Fact No. 4.)

16. The physical characteristics of the tug REBEL II when towing a barge do not allow for quick and dynamic movements. This is particularly true for the barge ISLANDER, given that it has no means of independent propulsion separate and apart from the tug REBEL II. (Declaration of Olimpio Scoto, Jr. ("Scoto Decl.") 8:12--16; Trial Transcript 44:3--8.)

17. The radar of the tug REBEL II was on and in proper working order. (Scoto Decl. 9:9--10.)

18. The radar set on board the tug REBEL II was a Furuno 1832 that was purchased from Long Beach Marine and maintained and serviced by Neptune Electronics Inc. (Stipulated Fact No. 59.)

19. The equipment and machinery of the tug REBEL II and barge ISLANDER were functioning and in proper working order. (Scoto Decl. 9:11--13; Declaration of John Amstutz ("Amstutz Decl.") 4:10--12.)

20. The navigation lights on both the tug REBEL II and barge ISLANDER were on and in proper working order. (Scoto Decl. 10:13--14; Amstutz Decl. 4:28 --5:1; Trial Transcript 70:14--23.)

21. Plaintiffs-in-Limitation usually operated the tug REBEL II with two people, a licensed master and a deckhand. (Scoto Decl. 6:8--10.)

22. The tug REBEL II was originally constructed with only one wheelhouse, which is a standard design for ocean-going tugs. (Stipulated Fact No. 60.)

23. The tug REBEL II's upper wheelhouse was not original to the tug, but was added later to facilitate navigating the tug when in the harbor and while working alongside a barge, permitting the operator to have better visibility down the side of the tug. (Scoto Decl. 5:8--11, 6:22--24; Trial Transcript 55:16 --56:9, 208:6--23.)

24. It is standard industry practice for operators of ocean-going tugs, such as the tug REBEL II, to station their lookouts in the lower wheelhouse. (Scoto Decl. 6:14--21; Declaration of R. Russell Johnson ("Johnson Decl.") 4:27--5:1; Hickey Decl. 28:2--22; Trial Transcript 209:1--11.)

25. On October 1, 2008, the lower wheelhouse of the tug REBEL II contained various navigational equipment and controls including an autopilot, magnetic compass, global positioning system, two radios, and a Furuno Model 1832 radar set. The navigational equipment and controls in the upper wheelhouse was limited as it only had two radios, a Furuno Model 1832 radar set, and a remote steering hand stick control. (Scoto Decl. 5:12--17; Amstutz Decl. 2:11--14.)

26. The tug REBEL II's lower wheelhouse has a forward visibility (looking toward the bow) through five forward--facing windows, separated by support stanchions, providing approximately 180--degree visibility out the front of the tug. (Stipulated Fact No. 61.) 27. The view aft from the lower wheelhouse of the tug REBEL II was provided through a window on the starboard--aft bulkhead and a small, round porthole window on the aft--port bulkhead. (Stipulated Fact No. 62.)

28. If a target is acquired from the lower wheelhouse, any line of sight impediments in the lower wheelhouse of the tug REBEL II can be eliminated by moving around the lower wheelhouse to maintain constant tracking of the target. (Scoto Decl. 7:13--16, 10:23--26; Amstutz Decl. 3:9--12; Johnson Decl. 8:2--6; Hickey Decl. 8:2--5, 9:14--23.)

29. Leaving the doors fully open would increase visibility out of the port and starboard sides of the lower wheelhouse. (Trial Transcript 28:13--18.)

30. The upper wheelhouse of the REBEL II provides an unobstructed, 360-degree view of the horizon, as there are no bulkheads in the upper wheelhouse and with the exception of narrow window support stanchions there are no blind spots or significant impairments. (Trial Transcript 45:23-- 46:1; Avila's Exhibit 201.)

31. The Furuno Model 1832 radar set, which was mounted in the lower wheelhouse REBEL II, was not in compliance with federal regulations governing the navigation equipment for an uninspected towing vessel the size of the REBEL II. The regulations are found in 33 CFR 164.72 (ii)(B). (Avila's Exhibit No. 279 at 2.)

32. The radar on the tug on the night in question was not in compliance with 33 CFR 164.72 for the following reasons:

(a) the bearing discrimination was inadequate;

(b) the maximum range setting was inadequate;

(c) the screen size was 130 mm. A minimum screen size of 180 mm was required;

(d) the radar antenna was a 24-inch Radome. At least a 4-foot-long slotted waveguide antenna was required. (Avila's Exhibit No. 279 at 2.)

33. The recreation of the collision demonstrated that there was no significant difference between the compliant and the non-compliant radar when detecting a replica Bayliner on the 3 mile range scale. (Declaration of Samuel R. Pecota ("Pecota Decl.") 5:9-17; 6:2-10.)

C. THE CREW

34. Captain Olimpio Scoto ("Captain Scoto") is the holder of a Coast Guard--issued credential as a master of steam or motor vessels of not more than 1,600 gross registered tons (Domestic tonnage), 3,000 gross tons (ITC tonnage) upon oceans, master of towing vessels upon oceans and radar observer (unlimited). (Stipulated Fact No. 9.)

35. Captain Scoto was first licensed by the United States Coast Guard in 1973 and has extensive experience in the ocean--going tug industry spanning approximately 40 years. (Stipulated Fact No. 10.)

36. John Amstutz ("Deckhand Amstutz") holds no Coast Guard--issued credentials nor any type of radar endorsement or radar observer certification, and has had no formal training in the use of vessel radar. (Stipulated Fact Nos. 11 and 12.)

37. Deckhand Amstutz had extensive experience as a deckhand. He worked on two towing vessels for approximately 10 years and has been informally trained by Captain Scoto and other captains on deckhand duties and radar observation. (Stipulated Fact No. 13.)

38. The lower wheelhouse of the tug REBEL II is normally used by Captain Scoto for his lookout while the tug is underway in the transit between Catalina Island and the Port of Los Angeles. (Scoto Decl. 6:14--16.)

39. Captain Scoto stations his lookout in the lower wheelhouse of the tug REBEL II because he can more easily work with and confer with the dedicated lookout from that location. The lower wheelhouse is quieter than the upper wheelhouse of the tug REBEL II which assists with Captain Scoto's communication with the dedicated lookout. (Stipulated Fact No. 65; Scoto Decl. 6:17--21.)

40. In all of Captain Scoto's years of experience and training, including interfacing with the United States Coast Guard, no one has ever told him that a prudent mariner, a captain, operating a tug at night with a tow coming into port, should station a lookout in the upper wheelhouse to visually look for small pleasure craft. (Scoto Decl. 6:25 --7:1.)

41. The COLREGS are silent as to the precise position of where a lookout should be positioned. ...


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