A heavily laden bulk carrier is scheduled to arrive at midnight at your wharf on the Mississippi River. The river is running high and fast and due to fog, visibility is limited. The ship is under the command of a river pilot as required by law, and is being assisted by helper tugs. As she makes her way into the berth, it takes considerable effort to secure the ship due to the weather and river conditions. Hours after she is finally secured, the ship breaks her mooring lines, is set adrift and causes significant damage to vessels and wharfs down river where she runs aground. Lawsuits are filed and the ship owner blames you, alleging negligence in that you failed to provide a safe berth, failed to ensure a sufficient number of mooring lines were deployed and failed to provide a standby tug to help keep the ship in its berth. What is your defense?
First, to establish maritime negligence the ship owner in this scenario must demonstrate there was a duty owed by you to the vessel, breach of that duty, damages sustained and a causal connection between your conduct and the plaintiff’s injury. In Re: Cooper/T. Smith, 929 F.2d 1073 (5th Cir. 1991).
In 1975, the Fifth Circuit Court of Appeals set forth the duty of a wharfinger towards a vessel in Trade Banner Line, Inc. v. Caribbean Steamship Co., 521 F.2d 229 (5th Cir. 1975), when it held, “It is well settled that a wharfinger is not the guarantor of the safety of a ship coming to his wharf. He is, however, under a duty to exercise reasonable diligence to furnish a safe berth and to avoid damage to the vessel. This includes the duty to ascertain the condition of the berth, to make it safe or warn the ship of any hidden hazard or deficiency known to the wharfinger or which, in the exercise of reasonable care and inspection, should be known to him and not reasonably known to the ship owner.”
In 1977, the Fifth Circuit Court of Appeals in Bunge Corporation v. M/V FURNESS BRIDGE, 558 F.2d 790 (5th Cir. 1977), elaborated and, citing Trade Banner, stated, “The wharfinger’s duty to warn applies only to ‘any hidden hazard or deficiency . . . not reasonable known to the ship owner.” Thus, no warning is required “where the alleged obstruction or condition is open and obvious to those in charge of the vessel’s management or where those in control of the vessel have actual knowledge.”
In 1989, the late Honorable George Arceneaux wrote, “The duty of a wharfinger (person or entity operating a wharf, dock, etc.) towards a vessel is well established. Although a wharfinger does not guarantee the safety of vessels coming to his wharves, he is bound to exercise reasonable diligence in ascertaining the condition of the berths there at, and if there is any dangerous obstruction to remove it, or to give due notice of its existence to vessels about to use the berths.” Delta Commodities v. M/T JOE OAK, 1989 WL 149253 (E.D. La. 1989).
In Trade Banner, supra, the Court also addressed the duty of a vessel and held that when the mooring of the vessel is controlled by the ship’s crew and under the supervision of its master, the responsibility of the mooring lay with him, stating, “it is the master, when present and supervising, and not a wharfinger absent some type of contractual commitment not present here, who is responsible for mooring of a ship. Judge Charles Schwartz came to the same conclusion in Petro United Terminals, Inc. v. J.O. Odfjell Chemical Carriers, 756 F. Supp. 269 (E.D. La. 1991) when he held, “in addition, the proper mooring of a vessel is the responsibility of the vessel and her master, not the dock owner, although the dock owner itself is required to keep its facility in proper condition.”
In Bunge, supra, the court addressed this issue also. It stated, “Bunge, as a dock owner, had no duty to supervise the Furness Bridge’s docking procedure, absent, perhaps, a hidden defect in the docking facilities. Rather, the master, and expert mariner, is responsible for the docking of his ship.”
When it comes to use of tugs, the courts have refused to place on the wharfinger the duty of providing assist tugs to a ship planning to moor at its facility. In Bunge, supra, the court held that “use of tugs is an integral part of docking procedure and as such is a navigational operation for which the ship’s master has exclusive responsibilities.”
The role of the compulsory pilot in mooring operations was succinctly discussed by the Fifth Circuit Court of Appeals in Bunge, supra. The Court stated in footnote 6:
During the docking in question, the vessel was being navigated by a compulsory pilot as required by LSA-R.S. 34:1041, et seq. “The authority of the master of a vessel is not in complete abeyance,” however, “while a pilot, who is required by law to be accepted, is in discharge of his functions.” In fact, our conclusion as to the respective duties of the parties is strengthened by the presence of the compulsory pilot who must be held to an unusually high standard of care because he “is selected for his personal knowledge of the topography through which he steers his vessel . . . . He must . . . be familiar with all dangers that are permanently located in the course of the river . . . All this he must know and remember and avoid.” . . . “[S]uch skillfulness requires a high degree of knowledge predicated on special training and inquiry, and not casual competence.” Thus, absent a finding of actual knowledge, the pilot may be charged with knowledge of a local condition as a matter of law. In the instant case, the compulsory pilot was charged with constructive, if no actual, knowledge of the mooring dolphins and the risk t hey presented.”
In our hypothetical scenario the rising, fast running river, fog and darkness would be open and obvious conditions about which you should not have to warn the ship’s master or pilot. As experienced mariners, they are presumed to possess the skills necessary to ensure safe mooring of the ship. Mooring is the responsibility of the ship and should be under the control of the ship’s crew under the supervision of the ship’s officers. As stated by the court in Trade Banner, supra, “parting of the lines provided by the ship and set out by its crew cannot be blamed on the wharfinger. The courts have also held that the ship owner cannot complain that the wharf was too small to safely moor the ship. This allegation was addressed by the court in Bunge and rejected. The court stated, “this characteristic was obvious indeed, unmistakable and required no warning. Those in control of the ship must be charged as a matter of law with knowledge of the comparative sizes of their vessel and the wharf.
With regard to the decision at night in fog the courts have refused to place responsibility on the wharfinger. With regard to the number or type of mooring lines the courts have found that as a matter of law there is no duty on the part of the dock owner to assist in mooring. As a matter of law, the dock owner’s failure to provide line handlers to assist in mooring cannot be a valid basis for liability.
In sum, unless there are contractual obligations assumed by the dock owner requiring its involvement or unless the dock owner voluntarily involves it self in the mooring of the ship, its only obligation to provide a reasonably safe berth.
Assuming no such involvement, you, the dock owner, should bear no liability. As stated by the Fifth Circuit Court of Appeals: We see no reason to disturb the traditional standard of care to which the wharfinger is held. Whether it be tugs or tankers that come to berth at his dock, the wharfinger remains in the same position in terms of his ability to protect his structure. Those in control of the vessel’s navigation must bear the greater responsibility for bringing their ship safely into and out of port. The dock owner’s liability should extend only so far as the vessel’s master could not have averted an accident, such as where a hidden hazard is or reasonably should be known to the wharfinger and cannot be known to the master in the exercise of ordinary care.