The aids to the marine navigation system in the United States is an integrated system, using fixed, electronic, and floating aids. The latter, buoys, are the weakest link in the system. Their batteries and signal apparatus are unreliable; the buoys themselves are under constant attack by wind, wave, and salt water, and are vulnerable to ice floes, storms, and collisions with passing vessels. The Northern Gulf, facing page, was not the first, nor, unhappily, will it be the last ship to be betrayed by buoys.
Anyone who has sailed the New England coast knows that it can produce some of the foulest weather in the world. But those few hospitable days which now and then appear are exquisite gems. Calm, clear, virtually hazeless, they are perfect showcases for the harsh, unforgiving features of that fascinating maze of islands, inlets, and capes that lie "Down East.” It was on such a day that the SS Northern Gulf steamed into Portland Harbor.
The sea was calm, with a slight breeze of five or six knots from the northwest. Off to port, some four miles distant, was the lighthouse at Cape Elizabeth. Almost dead ahead, the white tower of Portland Head Lighthouse spiked the sky. Just off the starboard beam was the lighthouse on Halfway Rock, smaller than the others, but still a familiar landmark to those who sailed the coast of Maine. It was, all in all, a beautiful day--grey-blue sea and steep grey rock, starkly separated by that line of white surf which is the inevitable offspring of restless sea and immovable rock.
The Northern Gulf was the ship to match the day; this personification of the new breed of behemoth tankers was 696 feet long, drawing 35 feet, and laden with 261,429 barrels of Iranian crude oil. Relatively young, she was already an important ship. Nations had built mighty terminals and dredged mountains of earth to accommodate her and her sisters. But, like most queens, she was in fact the subject of those she appeared to rule.
On this particular day, 25 November 1963, there were four ship’s officers on her bridge. A few moments after she sailed past the little red Portland Light Vessel, they were joined by a harbor pilot. The sole concern of all was nothing more than getting her safely to her berth at Portland. A "Full” bell prodded her ahead at 12 knots for 14 minutes, until 0924, when her rudder brought her slowly to the right for a turn around West Cod Ledge.
Six minutes later, she was a motionless hulk impaled on West Cod Ledge Rock, her cargo oozing out of a gash in her starboard side. On the bridge, her stunned officers scurried about, looking for some sort of answer. What had caused this mid-morning nightmare? Within minutes there was ascertained a single fact which would be the focal point of all the controversy that was to follow: West Cod Ledge Rock Buoy No. 2 was 350 yards east of its charted position.
Had the Northern Gulf been a naval vessel, perhaps a Fleet oiler, an appropriate Board of Investigation would have been convened. In the case of merchant ships, however, lawsuits are frequently used to determine responsibility. Thus, in due course, the cargo and vessel owners of the Northern Gulf brought suit against the United Sates for $1,375,000.00.
Evidence introduced at the trial supported the finding of the court that the buoy was off-station as alleged. (Indeed, two local fishermen testified that they had discovered the buoy off-station some eight months prior to the grounding, a fact which they neglected to report to anyone at the time.) The testimony of the pilot established that he was making this leg of his passage without accurate reference to any aid other than the offending buoy. Despite the profusion of fixed aids available, not a single bearing had been taken. At this point, naval officers well might wonder what would be the fate of the naval officer who tried to convince a naval board of inquiry that the grounding of his vessel was the result of a single off-station buoy. What naval officer would want to tell his superiors that not a single bearing had been taken while entering a harbor?
In admiralty practice, when both of the parties to a suit have been adjudged to be negligent, the damages are divided between them. Government attorneys were confident that they could establish the negligence of the Northern Gulf, for several well established legal principles seemed clearly to require a finding of fault on the part of the Northern Gulf. A long line of admiralty cases had established that a presumption of negligence arose when a vessel ran aground on a well known and fully charted shoal. (The courts have stated this as a rule of law, but it is really nothing more than the obvious conclusion any landlubber would reach: a navigator must use due care to avoid dangers that are known to him.) Another line of cases had developed the rule that a higher standard of care would be imposed upon pilots than would be required of ordinary navigators, some cases even going so far as to impose a duty on the pilot to crosscheck and discovet when a floating aid to navigation was off-station. Moreover, there were cases dealing squarely with the point in issue holding that reliance on a single buoy, when fixed aids were available, was negligent navigation.
Nonetheless, the District Court concluded that the negligence of the United States had been the sole cause of the stranding and that the pilot of the Northern Gulf had not been negligent in relying solely on the single buoy, and decreed that the United States should be required to pay the entire damages. This ruling, later affirmed by the Court of Appeals for the Second Circuit,1 amounts to a rule of law that allows pilots to navigate with reference to single buoys only, without fear of being found negligent. This result was particularly disturbing to U.S. Coast Guard attorneys because they, more than anyone else connected with the case, were aware of the inherent limitations in the marine aids to navigation system, and could appreciate the full impact of such a rule.
The aids to navigation system in the United States is an integrated system, using fixed, electronic, and floating aids. Fixed aids, especially those located on the shore, are by far the most reliable. Lighthouses are not subject to shifts in position. They can be linked to the most reliable power sources, and their signal apparatus is not subject to the shocks and corrosion of the marine environment. Electronic aids (such as Loran, RDF, or Decca) are likewise insulated from the marine environment and provided with extremely reliable power supplies. The main degradation of their reliability is the vagary that attends any electronic propagation, but such interference or fading is usually obvious to the operator, who can then make allowance for the decreased precision. Floating aids (buoys) are the weakest link in the system. The batteries upon which they depend for their power source are inherently less reliable than shore-side power. Their relatively delicate signal apparatus—timer, flasher, lens, daylight control, and lampchanger—are exposed to irregular, and sometimes violent, motion. They are constantly under attack by wind, wave, and salt water. They are always subject to shifting their position, and are vulnerable to current, ice floes, storms, and collisions with passing vessels.
Floating aids, therefore, are intended to supplement, not supplant, fixed aids. To ensure that the navigator is aware of these factors, the aids to navigation regulations published in Title 33 of the Code of Federal Regulations state explicitly:
"Caution.
(a) Buoys are liable to be carried away, shifted, capsized, sunk, etc.; lighted buoys may be extinguished or sound buoys may not function as the result of storm, the accumulation of ice, running ice, or other natural causes, collisions or other accidents.
(b) For the foregoing reasons, mariners should not rely completely upon the position or operation of floating aids to navigation, but should also utilize bearings from fixed objects and aids to navigation on shore. (Section 62.25-55).”
In addition, the following warning appears in each volume of the List of Lights, a publication which any competent navigator should study as he attempts to become familiar with any stretch of water:
"It is imprudent for a navigator to rely on floating aids to navigation to always maintain their charted positions and to constantly and unerringly display their advertised characteristics. The obstacles to perfect performance are of such magnitude that complete reliability is manifestly impossible to achieve. Buoys are liable to be carried away, shifted, capsized, or sunk as the result of storms, ice conditions, collisions or other accident. Lighted buoys may become extinguished or their lighting apparatus broken or deranged causing them to show improper light colors or light phase characteristics.”
''All buoys should, therefore, be regarded as warnings or guides and not as infallible navigation marks; especially those located in exposed positions. Whenever possible, a ship should be navigated by bearings or angles on fixed objects on shore and by soundings rather than by reliance on buoys.”
These bare, published warnings have been fleshed out by the content of navigation courses as well as by the recognized texts on the subject. Both Dutton and Bowditch include cautions regarding reliance solely on buoys, using substantially the same language as appears in the published regulations. In addition, texts prepared for practical use by the merchant marine—e.g., Reisenberg’s Standard Seamanship for the Merchant Service and The American Merchant Seaman’s Manual—carry the same warnings.
In any rational legal system, the law, of course, should follow the facts—i.e., the law should be structured to operate in the environment that actually exists, and not in some other, more ideal, set of circumstances. If this is so, in dealing with admiralty tort cases involving buoys, the law fashioned by the courts should reflect the relative lack of reliability of floating aids. In judging the reasonableness of the actions of mariners, the courts must include this "supporting role” of the buoy as one of the factors to be considered.
That branch of the law dealing with the adjudication and allocation of damages from civil wrongs is called the law of torts. The long developed common law of torts has not been adopted completely by the admiralty courts, but rather, as one might expect, several important changes have been made to accommodate the law to the peculiarities of the marine environment. Nonetheless, even in Admiralty law, the basic purposes of tort law remain the same, namely, the allocation of damages after they have occurred, and the prevention of future damages. The courts allocate the damages by applying their rules of law to determine who should pay for a particular loss. They prevent future losses by fashioning those rules so that the party who has the best opportunity to avoid the damage is the party who will have to pay, and thus will have the incentive to use due care to avoid the damages.
It is this second objective—damage prevention—which should control the issue in a case such as the Northern Gulf. To understand why this should be so, it is necessary to concentrate for a moment on the concept of "damage.” As used here, and elsewhere in tort law, it embodies a negative value, a situation in which something of value is lost—withdrawn from the use of the individual affected, and, indirectly, from society as a whole. Thus, when a building is destroyed by fire, all of the material and all of the man-hours which it represents cease to exist—their value is available to no one. Other branches of the law deal with the transfer, rather than the loss of value. Thus, the law of real property will be applied to determine which of two claimants will get possession of a parcel of property, leaving one the "loser,” but the value and productivity which land represents will not be lost to society as a whole. In casualties such as that of the Northern Gulf, however, we are talking about cases in which value—considerable value—is completely and irretrievably lost to society. The oil which gushed from her side, extracted from the earth at tremendous expense, will never drive dynamos or heat buildings. The marine life lost cannot be recovered, the dislocation of the ecology cannot be undone. The dollars, the material, and the man-hours expended in cleaning up operations were wasted—they produced no new value for society, but merely returned the situation to what it had been before the incident. That is the true meaning of the bare legal term "damages:” tax dollars—some 1,375,000 of them—expended for nothing, for no gain whatsoever.
Obviously, the primary concern of the legal system should be the avoidance of such losses to society, and not merely their allocation after a loss has occurred. And one of the most readily available means of avoiding such loss is pressure—hard, economic pressure—on all parties who have the capacity to avoid the loss. This means penalizing the United States when its buoys are off-station in circumstances when this can be prevented. It also means penalizing the operator who sails his vessel into a charted obstruction without using every reasonable means available to avoid that obstruction.
It is important to note that the concept of negligence is a court-fashioned tool used in allocating the damages which flow from a particular act. Acts of Congress do not, by and large, declare what is or is not negligent. In deciding what constitutes negligence, courts have traditionally looked to all of the factors in a given case, including the potential for harm in a given act, and the availability of safer alternatives. The man using dynamite is held to a higher standard of care than the man using a shovel. The courts must recognize that mammoth tankers are more like dynamite than shovels, and treat them accordingly. The tremendous potential for harm inherent in the operation of such vessels demands that their operators be required to use every reasonable means available for their safe navigation.
Congressional feelings with regard to the operations of petroleum suppliers have been made clear. The Water Quality Improvement Act of 1970 provides that operators responsible for a spill shall be responsible for the cost of clean-up operations. The intent of Congress was to place the expense of spills on operators as a cost of doing business. And yet, just as federal agencies are cranking up to put teeth into this Congressional intent through enforcement, federal courts are decreeing that an operator may approach our shores with his mammoth tankers—with all of their tremendous potential for inflicting damage—while blithely ignoring a safe, reasonable and reliable means for avoiding dangers.
The enormous scope of this decision by the courts cannot be appreciated without some knowledge of the effect that it will have in several classes of cases. The Northern Gulf represents the most obvious case--disastrous pollution from grounded tankers. As the size of the world tanker fleet grows, so does the risk of pollution incidents. The stories of the Northern Gulf, Torrey Canyon, and Ocean Eagle will be repeated. As the size of individual tankers increases, the scope of the potential disaster that each vessel carries with her increases. The cost of cleanup operations after a major tanker disaster will be enormous. By the Water Quality Improvement Act of 1970, Congress made the operator liable for these clean-up costs, except (among other things) where the operator can show that the spill was caused solely by the negligence of the United States. Since, in the Northern Gulf case, the courts have decided that it is not negligent for a vessel to rely on a single buoy, an operator can pass this tremendous cost on to the taxpayer even though those in charge of his vesstl consciously and deliberately chose to ignore a profusion of fixed aids which were available.
The second class of cases affected by the Northern Gulf ruling involves the costs of removing wrecked vessels from the nation’s waterways. One example is the case of the barge Wychem 112. This barge, loaded with deadly chlorine, sank in the Mississippi River in 1961. Because of the danger the barge represented to populated areas, she had to be removed. The owners of the barge claimed the venerable Admiralty right of "abandonment,” claiming that their responsibility for removing the barge ceased when they abandoned her. Ultimately, the United States removed this time bomb from the river at a cost in excess of $3 million. In deciding the case, the Supreme Court ruled that an owner does not have a right of abandonment when the sinking is attributable to his negligence. Thus is possible that this issue of negligence and the single off-station buoy will decide the disposition of millions of dollars in wreck removal costs, particularly as more exotic and dangerous cargoes are shipped in larger an larger vessels.
These two classes of cases, oil pollution and wreck removal, demonstrate the enormous exposure of the United States to liability in such incidents. The loss of value in such casualties should be avoided by means available. Operators must be required to use all reasonably available navigation aids to ensure the safety of their vessels, and, at a minimum, this means that the courts must begin to hold pilots and masters negligent for relying solely on buoys when fixed aids are allso available.
Where would such rulings leave the lowly buoy? Why is it there, if the navigator cannot rely on it? The answer is obvious—the buoy is there to be used as part of a system, to aid the navigator. Buoys are to be used, together with other navigational information available, and not used alone. As an example, assume the case of a driver at night, who neglects to turn on his headlights, and drives into an intersection and strikes a car stalled there. Will he be absolved from blame merely because he can say that the traffic light was green, so he felt he didn’t have to look ahead into the intersection? Of course not. He would summarily be declared negligent for failure to use all reasonably available means to avoid the obvious danger. The mariner who sails into a harbor with his alidades and bearing circles packed away, ignoring the fixed aids around him, and strikes a charted obstruction, should fare no better.
This "system approach” to the use of navigational aids is illustrated by several of the past cases on which the government relied in defending the Northern Gulf suit. In such cases as the Manhattan, the Sommers N. Smith and the barge Electric No. 20, courts had laid down the rule that navigators were negligent in relying upon single buoys. In deciding the Northern Gulf case, the District Court laid aside these cases, distinguishing them on the grounds that they had all involved situations where ranges were available to the navigator. It is undeniable that ranges are easier to use than bearings on shore objects, but the difference is not so great as to justify allowing potential disasters to sail toward our shores without using simple bearings to fix their positions. Certainly, for a vessel equipped—gyrocompass and bearing circles—and manned as was the Northern Gulf—the pilot, master, first officer, third officer, a deck cadet, quartermaster, and a lookout were all on the bridge before the grounding—the taking and plotting of bearings is a minimal effort.
A rule of law declaring a navigator negligent for failure to use all reasonably available navigational aids need not be applied in such a way as to operate oppressively against smaller boat operators. A reasonable legal system could impose liability on vessels like the Northern Gulf, but not necessarily on all other vessels. Small commercial fishing vessels and mammoth tankers arc obviously different creatures, and can rationally be treated differently. The fishing trawler does not carry the equipment that is standard on the tanker. The trawler does not have the same manpower as the tanker. And, above all, the trawler does not present the same exorbitant risk of loss that the tanker does. It is only reasonable that those persons whose activities pose the highest risk to society be required to exercise the highest degree of care.
The logical conclusion, then, is that those in charge of the operation and navigation of "high risk” vessels should be required to use all navigation aids which are reasonably available to them. Yet, the evidence taken in the Northern Gulf case shows that the widespread custom in the merchant service is to stop taking bearings when a pilot comes aboard. In addition, the pilots themselves do not take bearings, or require that they be taken. One pilot testified that the crew of a vessel would feel "suspicious” if he used navigational instruments or took bearings; another testified that he would feel insulted if the crew of a vessel took bearings while he was piloting. Cases like Northern Gulf place the seal of judicial approval on this custom: "seaman’s eye” replaces prudent navigation; and the cost of this bit of showmanship is passed on to the public.
The courts cannot continue treating these high-risk vessels as if they were the relatively miniscule ships of only a decade ago. The size and exotic cargo of today’s merchant marine requires a whole new approach to the problems of safe navigation and collision avoidance. The Harbor and Rivers Act, which governs questions of liability for wreck removal, was passed in 1899. But merchant vessels of wood and canvas represent a different problem from those of steel and steam. Chlorine- barges, molten sulphur carriers, and LPG (liquid petroleum gas) vessels have added another dimension. We can no longer be content with letting ships move where, when, and however, they please. Because of the risk they present, some forms of traffic control must be imposed on today’s vessels. It is no longer enough to provide passive navigation aids and depend on vessels to use them; it is necessary to introduce active controls over vessels, directing or delaying their movements as necessary. The Bridge-to-Bridge Radiotelephone Act and the pending Ports and Waterways Safety Act are important steps toward this end.2 We can expect more such improvements in the future. But for right now, the courts can take the simple and effective first step of requiring mammoth tankers and exotic cargo carriers to use all navigation aids available— which is, after all, simply prudent navigation.
1 The Supreme Court declined to hear a government appeal from the Second Circuit decision.
2 See F. D. Higbcc, "Overdue Aids to Navigation," July 1971 Proceedings, pp. 103-104.
A 1961 graduate of the Coast Guard Academy, Lieutenant Commander Meade lias served in the USCGC Cook Inlet (WHEC-384), as Commanding officer of Kwajalcin l.ORAN Station in the Marshall Islands, and as a Controller in the Norfolk Rescue Coordination Center. He holds a Juris Doctor degree from George Washington University, and has served in the Claims and Litigation Division of the Office of Chief Counsel, U. S. Coast Guard. He is presently an assistant professor in the Legal Section at the U. S. Coast Guard Academy.