The opinion of the court was delivered by: BEEKS
In this action plaintiff seeks to recover damages to the vessel NIRVANA arising out of a collision occurring in Alaskan waters in July of 1978. The basis of plaintiff's claim is negligence, and much of plaintiff's case rests upon the presumption of fault which exists when a moving vessel strikes a vessel that is moored or otherwise stationary. Defendants have attempted to rebut the presumption by evidence indicating that plaintiff's negligence caused or contributed to the accident. Trial on the issue of liability was had before this court on June 1, 1981.
Plaintiff is the owner of NIRVANA, a small fishing and crabbing vessel of wooden construction, approximately 46 feet in length, 15 feet in breadth, and 7 feet in depth. The defendants are MARINE CHALLENGER, a 5000 hp. steel tug, 141 feet in length, 33 feet in breadth, and 16 feet in depth; its owner, Alaska Marine Towing, Inc.; NORTON SOUND, an unmanned, non-self-propelled seagoing barge of 3862 gross tons, approximately 324 feet in length, 68 feet in breadth, and 24 feet in depth; and its owner, Pacific Hawaiian Line, Inc.
On the morning of July 13, 1978, MARINE CHALLENGER, with NORTON SOUND in tow, arrived in Captains Bay from Nome, Alaska. Captains Bay is located on the Bering Sea side of Unalaska Island, one of the Aleutian Island chain and, being located in the vicinity of Dutch Harbor, is well known to Alaskan fishermen. For various reasons, the facility in Captains Bay where cargo aboard NORTON SOUND was to be discharged would be unavailable for an extended period of time. Much of the cargo aboard the barge, however, consisted of construction materials destined for the Pan-Alaska Fisheries dock in nearby Iliuliuk Harbor, and so, at the request of Pan-Alaska, it was decided by the master of MARINE CHALLENGER, Earl A. Cole, that NORTON SOUND would be taken to that dock for discharge. Due to the size of the barge, it was necessary to take a route northward around Amaknak Island and swing through East Channel in Iliuliuk Bay.
During this time, and for the previous three days, NIRVANA was moored alongside a large blue barge of over 200 feet in length, which was used by Pan-Alaska Fisheries as a barracks facility for its employees. The barracks barge was permanently moored to the east of the Pan-Alaska dock and was positioned with her stem nearest the dock, her starboard side facing the channel, and her position roughly parallel to both the channel and the shore. NIRVANA was located approximately amidships on the starboard side of the barracks barge.
Cole requested Pan-Alaska to have NIRVANA moved. Although plaintiff was not in Unalaska at the time, Robert Paulis, who then owned a one-half interest in NIRVANA, resided in Unalaska. A Pan-Alaska representative attempted to contact Paulis to request that NIRVANA be moved but was unable to find him. Cole, assuming incorrectly that NIRVANA would be moved, left for Captains Bay to tow NORTON SOUND to the dock. Thus, when MARINE CHALLENGER brought the barge around Amaknak Island on the approach to Iliuliuk Harbor, NIRVANA was still moored to the barracks barge.
For the trip from Captains Bay, NORTON SOUND was towed astern, but when the vessels reached a point in Iliuliuk Bay, just off the entrance to Dutch Harbor, they slowed to a dead stop and MARINE CHALLENGER changed position, making her port side fast to the after starboard quarter of NORTON SOUND. Using three lines headline, springline, and sternline Cole secured MARINE CHALLENGER to NORTON SOUND in such a way that although the tug could best maneuver the barge in the channel, visibility was considerably obstructed. The vessels then proceeded approximately south-southwest (215o T) towards the bend into East Channel. To serve as lookout and to guide the approach of the vessels by walkie-talkie, Cole headed for the stem of NORTON SOUND some 300 feet distant and well above the tug's wheelhouse. He left for the stem shortly after the vessels were made fast together, and reached it as they finished their bend into East Channel. The approach to the channel requires that vessels come around a buoy to a heading of roughly west-northwest (350o T). Beyond this turn, East Channel is a straight passage of approximately one-quarter nautical mile in length which narrows in width from roughly 600 feet at the first buoy to about 190 feet at a point between Pan-Alaska's dock and the EAST POINT, a permanently moored processing vessel which is attached to a dock on the north shore of the channel. The width of this short channel at the point where NIRVANA was moored did not exceed 500 feet.
About the time Cole finally made it to his chosen lookout station, a wind, known locally as a williwaw, was blowing from the northeast at about 15 knots. This wind caused tug and tow to set left towards the south shore. By this time they had reached a point where the tug could not back out of the channel and had to continue towards the dock. It was only then that Cole first spotted NIRVANA. By walkie-talkie he ordered a burst of acceleration to increase rudder power and bring the vessels upwind. NORTON SOUND, however, was not responding well, and she was traveling at excessive speed due to the wind and power burst. As Cole continued to give corrective orders, the port side of NORTON SOUND struck NIRVANA, lifting her out of the water, pinching her up against the barracks barge and, as the barge moved on, dropping her back into the water with an obvious list.
No one was on NIRVANA at the time she was struck but Robert Paulis arrived soon afterward. Cole went to NIRVANA immediately after the tug and tow were safely moored to ascertain whether assistance was needed. After extensive repairs, NIRVANA was able to engage in crab fishing and did so shortly after commencement of the season.
When a moving vessel strikes a vessel which is moored or at anchor, there is a presumption of fault against the former. The OREGON, 158 U.S. 186, 15 S. Ct. 804, 39 L. Ed. 943 (1895). This presumption shifts the burden to the moving vessel to establish 1) that it was without fault, or 2) that the collision was occasioned by ...