Duty of the Berth Operator

Every year the Lower Mississippi River experiences high water.  Mooring heavily laden bulk carriers in midstream buoy systems or in more traditional berths at a dock can be a tricky business in such conditions.  What are the obligations owed by the berth owner/operator (wharfinger) to a ship that intends to moor at its facility in such conditions.

As a general rule, the dock owner is under a duty to exercise reasonable diligence to furnish a safe berth and to avoid damage to the vessel.  The dock owner is not, however, the guarantor of the safety of the ship coming to its berth.  The wharfinger’s duty does include 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 him or which, in the exercise of reasonable care and inspection, should be known to him and not reasonably known to the ship owner.  Smith v. Burnett, 19 S.Ct. 442 (1899)

Taking this ruling a step further, the U.S. Court of Appeals in Bunge Corp. v. M/V FURRESS BRIDGE, 558 F.2d 790 (1977) made it clear that the wharfingers’ duty to warn applies only to “any hidden hazard or deficiency,” and that 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.

Over the years, when given the opportunity, the courts have refused to expand these responsibilities of the dock owner.

In Trade Banner, Inc. v. Caribbean Steamship Co., 521 F.2d 229 (1975), the Federal Fifth Circuit held that safe mooring of a vessel is the responsibility of those in charge of the ship.  As stated by Judge Brown, it is the master, when present and supervising, and not a wharfinger, absent some type of contractual commitment, who is responsible for mooring of a ship.  The dock owner has no duty to supervise the docking procedure.  It is the master, an expert mariner, who is responsible for the docking of his ship.

It is not unusual in high water conditions for ships to require helper togs to maneuver into the berth.  The courts have refused to place on the wharfinger the duty to provide assist tugs.  The courts have consistently 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 responsibility.

The courts have also refused to assign liability to the dock owner for failing to advise the ships of (1) the size of the dock, (2) the presence of unfendered mooring dolphins, and (3) the current of the river, presence of fog, tide, visibility problems encountered docking at night, and depth of the water.  As stated by the courts, those in control of the vessel’s navigation must bear the greater responsibility for bringing their ship safely into and out of port.  In Delta Commodities, Inc. v. M/T JO OAK, etc. 1988 WL 149253 (E.D. La. 1989), the court held:

“These circumstances are conceptually indistinguishable from those discussed in Bunge, supra, wherein the Fifth Circuit failed to impose upon the wharfinger the duties relative to supervision of docking, specifically the failure to warn about the size and structure of the wharf, the alleged hazards of unfendered dolphins, the use of four tugs, and the visibility problems encountered in docking at night.  There, as here, the wharfinger did not attempt to assert control over the vessel’s navigation, and the Fifth Circuit concluded that navigational determinations were “an integral part of docking procedure and as such [are] navigational operations[s] for which the ship’s master has exclusive responsibility.”  Bunge, supra, at 799.  This rule is equally applicable to any alleged duty to measure and ensure adequate water depth after loading, where the vessel maintains complete and total control over such operations.”

Also, when it comes to providing line handlers, that is also the responsibility of the ship.  Florida Fuels, Inc. v. CITGO Petroleum Corp., 6 F.3d 330 (5th Cir. 1993).  Further, the courts have imputed the knowledge of the compulsory pilot to those in charge of the ship.  The courts have stated that the compulsory pilot 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,” and is familiar with all dangers located in the course of the river.  Even without a finding of actual knowledge, the pilot may be charged with knowledge of a local condition as a matter of law.

While the courts have refused to impose extraordinary legal obligations on the dock owner, this should not deter the responsible dock owner to take all reasonable efforts to provide a safe berth.