Opinion
Civ. No. 99-3421, SECTION: E/4.
September 6, 2000.
ORDER AND REASONS
Defendant THE PANAMA CANAL COMMISSION has filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law on the plaintiff's complaint. Plaintiff AHL SHIPPING COMPANY opposes the motion.
On January 30, 1999, the M/V DELTA WAVE, a Pakistani registered, dry-bulk carrier, was underway from the Atlantic Outer Anchorage to the Limon Bay Anchorage of the Panama Canal in order to obtain bunkers and supplies. While en route, at a point 1.3 nautical miles north-northwest, outside of the Atlantic breakwater and prior to the boarding of a Panama Canal pilot, the M/V DELTA WAVE lost her steering capability. The captain of the M/V DELTA WAVE attempted to order the forward port anchor dropped, but encountered difficulty in communicating with his crew stationed in the forecastle. Unable to effect the immediate dropping of the anchor, the captain of the M/V DELTA WAVE ordered the engines full astern. However, these efforts were unable to avert an allision with the S/S NEW RIVER, a US registered, tank vessel, that was at anchor outside of the Atlantic breakwater and awaiting permission to enter the Panama Canal. Plaintiff AHL SHIPPING COMPANY is the owner of the S/S NEW RIVER.See Complaint ¶ 3.
At the time of the allision, neither vessel had a Panama Canal pilot present and both vessels were 1.3 nautical miles outside of the Atlantic breakwater. The captain of the M/V DELTA WAVE had not requested tug assistance from THE PANAMA CANAL COMMISSION. Nor was THE PANAMA CANAL COMMISSION alerted to any actual or potential mechanical problems, including the status of the steering gear, that could affect the M/V DELTA WAVE's ability to sail to the Limon Bay Anchorage.
Prior to January of 1999, the M/V DELTA WAVE and her crew was left to languish by her owners in the Panama Canal. Running dangerously low on food, supplies, and bunkers, without owner support or P I coverage, and having been seized by creditors, the vessel was forced to rely on the humanitarian aid of the PANAMA CANAL COMMISSION. During her Pacific to Atlantic Ocean passage through the Canal, her main engine was derated, only one electrical generator was operable, her chock arrangement was found deficient, and the sanitary conditions on board were deplorable. However, having effected repairs and with the assistance of Panama Canal tugs, she was able to transit the Canal and reach the Atlantic Outer Anchorage.
AHL SHIPPING COMPANY has filed the instant complaint against THE PANAMA CANAL COMMISSION for damages alleging negligence in allowing the M/V DELTA WAVE to "maneuver within its jurisdiction in an unseaworthy manner and without any assistance such that it posed a substantial risk of harm to all vessels in proximity to the M/V DELTA WAVE." See Complaint ¶ 7.
THE PANAMA CANAL COMMISSION contends that: (1) the allision and resulting damage did not occur in the Panama Canal or waters adjacent thereto; (2) the Panama Canal Commission was not negligent in allowing the M/V DELTA WAVE to sail to the Limon Bay Anchorage under her own power because they had no reason to suspect action on their part was necessary; and (3) even if a Panama Canal pilot was aboard the vessel, the Panama Canal Commission is not liable in negligence for accidents caused by circumstances beyond human control.
The Panama Canal Commission is an agency of the United States Government. See 22 U.S.C. § 3611. It is well settled that suits against the United States cannot be maintained without express authority from Congress. See Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1 (5th Cir. 1973).
Regarding vessel damage outside of the locks, the Panama Canal Act provides that the Panama Canal Commission shall:
promptly adjust and pay damages for injuries to vessels . . ., which may arise by reason of their presence in the Panama Canal, or waters adjacent thereto, other than the locks, when the injury is proximately caused by the negligence or fault on the part of an officer or employee of the United States acting within the scope of employment and in line with his duties in connection with the operation of the Canal. . . .22 U.S.C. § 3771 (emphasis added). In addition, "[i]f the negligence or fault of the vessel, master, crew, or passengers proximately contributed to the injury, the award of damages shall be diminished in proportion to the negligence or fault attributable to the vessel, master, crew, or passengers." Id.
The Court notes that the allision having occurred 1.3 nautical miles outside of the Atlantic breakwater is an undisputed fact. Deposition testimony and the relevant sections of the Code of Federal Regulations indicate that the responsibilities of the Panama Canal Commission are limited to the waters inside of the Atlantic breakwater. See also Petroleos Mexicanos v. The Panama Canal Commission, CV 92-374, 1992 WL 125400 (E.D.La. May 19, 1992) (Panama Canal Commission admitted that an allision within the Atlantic breakwater was considered to have occurred in the Panama Canal or waters adjacent thereto). Typically, the Panama Canal pilot does not board an incoming vessel until she has sailed inside of the breakwater. See 35 C.F.R. § 105.1 (1999); Couturier Deposition at 18. However, a vessel may request that a Panama Canal pilot board outside of the Atlantic breakwaters. See 35 C.F.R. § 105.5 (1999). Also, vessel captains retain full responsibility and control for their vessels when no Panama Canal pilot is aboard. See 35 C.F.R. § 111.2 (1999). Thus, the waters beyond the Atlantic breakwater are not considered adjacent to the Panama Canal and the captain of the vessel is responsible for the actions of the vessel when no pilot is aboard.
Further, the express language of the Panama Canal Act limits liability for the Panama Canal Commission to those incidents occurring in the Panama Canal, or waters adjacent thereto, and resulting from the negligence of a Panama Canal employee. It appears that the incident did not occur within the Panama Canal, nor within adjacent waters. It is undisputed that no Panama Canal employees, let alone pilots, were aboard either vessel at the time of the allision, and, therefore, the allision cannot be the result of a Panama Canal pilot's errors.
However, the plaintiff contends that THE PANAMA CANAL COMMISSION owed a duty of care to the vessels anchored, while awaiting transit, in the Atlantic Anchorage in these particular circumstances because THE PANAMA CANAL COMMISSION was aware that the M/V DELTA WAVE was experiencing serious operational difficulties. THE PANAMA CANAL COMMISSION was aware of the crew related problems aboard the vessel, confirmed by the very reason why the M/V DELTA WAVE was en route to the Limon Bay Anchorage — to obtain emergency supplies, food, and bunkers. However, THE PANAMA CANAL COMMISSION had no reason to suspect that the vessel would be unable, due to a mechanical failure, to make the short voyage in from the Atlantic Outer Anchorage. The captain of the M/V DELTA WAVE did not request tug assistance, nor was a request made for a machinery inspection or emergency repairs. Also, even if a Panama Canal pilot had been aboard, the loss of steering capability was due to a sudden rudder failure, an event that could not have been reasonably anticipated. The Fifth Circuit in Andros Shipping Co. v. Panama Canal Co., 298 F.2d 720 (5th Cir. 1962), indicated that the Panama Canal Commission will not be liable for uncontrollable circumstances resulting in an allision even while the vessel is being navigated by a Panama Canal pilot, as long as the pilot is not found negligent. See also Seafarer S.A. v. Panama Canal Co., 168 F. Supp. 427 (D.C.Z. 1955) (holding that the Panama Canal pilot was not liable because the accident was proximately caused by the failure of vessel's steering mechanism and failure of vessel's personnel to execute promptly the orders of the pilot). Thus, nothing in the record indicates that THE PANAMA CANAL COMMISSION was negligent in any manner which caused the casualty at issue.
The Court finds, viewing the evidence in a light most favorable to the non-movant, (1) the allision and resulting damage did not occur in the Panama Canal or waters adjacent thereto; (2) THE PANAMA CANAL COMMISSION was not negligent in allowing the M/V DELTA WAVE to sail to the Limon Bay Anchorage under her own power because it had no knowledge that the M/V DELTA WAVE's steering system would fail or that the crew would lose communication ability; and (3) there are no facts in the record that otherwise establish negligence on the part of THE PANAMA CANAL COMMISSION in causing damage to the plaintiff. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986). Accordingly for the foregoing reasons,
IT IS ORDERED that the motion of THE PANAMA CANAL COMMISSION for summary judgment be hereby GRANTED.
New Orleans, Louisiana, September 5, 2000.
MARCEL LIVAUDAIS, JR., United States District Judge.