As competent he might be in southern waters, Reimer, who was totally unfamiliar with Hudson River waters during the ice season, was not competent to take over, as a pilot or tug steerer, a tug and oil-loaded barge with a combined total of over 1800 gross tons. Red Star's management knew of Reimer's lack of experience on the Hudson River, knew of the conditions to be encountered, knew that he would stand night watches, clearly failed in its duty to exercise due diligence and sent out a ship unseaworthy because not properly manned under the existing conditions.

Neither was the fact that Kiernan, an experienced pilot, would have taken over the wheel, if asked, a sufficient excuse. Under this concept, if carried far enough, Red Star could excuse itself from liability even though an inexperienced, incompetent deckhand had been at the wheel, so long as he could have called a competent pilot.

In arriving at its conclusion the district court rejected the case of The Lady Pike, 88 U.S. (21 Wall.) 1, 22 L. Ed. 499 (1874), and adopted as "modern authority" The Temple Bar, 137 F.2d 293 (4th Cir. 1943).

In The Lady Pike, supra, the Supreme Court, with respect to pilots, laid down the following rule:

Ignorance of the danger before them is no sufficient excuse, as the owner appoints the master and is bound to select one of competent skill and knowledge, to transport goods and merchandise shipped on board in safety, which necessarily imposes the obligation to employ a master mariner who knows enough about the route to avoid the known obstructions and to choose the most feasible track for his route. Knowledge of the kind, in river navigation, is peculiarly essential, as the current frequently shift from one side towards the other, and the track of navigation is often obstructed by snags, sandbars, and shoals, which no degree of skill would enable the mariner or pilot to avoid without a prior knowledge of their existence.

The next year in Atlee v. New York Union Packet Company, 88 U.S. (21 Wall.) 389, 396, 22 L. Ed. 619 (1875), the court stated:

* * * (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. * * * He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river, as . . . sunken rocks . . . All this he must know and remember and avoid . . .

These decisions are still viable insofar as the standards they set for inshore piloting and are applicable here. The district court expressly recognized the difference between inshore piloting and ocean navigation, but erroneously adopted and applied the standards set out in The Temple Bar, supra, dealing with an ocean-going vessel on a foreign voyage, which does not set standards for inshore pilots. The standards set out in The Lady Pike, supra, and in Atlee v. New York Union Packet Co., supra, relating to inshore pilots have not lost any of their strength; they are not moribund and their eulogy has not been delivered.

Counsel has not cited, and we cannot find a reported case, where, as here, there was a complete failure by the shipowner to dispatch a vessel without appointing a captain. Because Red Star had a non-delegable duty to provide a qualified captain and crew, it seriously failed in that duty by sending the Ocean Prince on that trip without appointing someone (Kiernan or Reimer) as captain in command.

The district court further found that it was the captain's duty to know the experience and qualifications of the mate, but here we had no captain. Neither Kiernan nor Reimer had been told who was the master. Kiernan had never worked for Red Star before and was not told, nor did he know, of Reimer's total lack of experience on the Hudson, all of which the district court found to be "an unfortunate set of circumstances", creating confusion. Red Star's management alone was responsible for this "unfortunate set of circumstances." If it had intended Kiernan to be captain, it should at least have told him that he was captain and that Reimer had no experience on the river. Red Star should not have permitted this situation to develop, that is, directing the tug to make up to a loaded oil barge, and to proceed at night through waters that required special knowledge of the conditions that would be met, without clearly defining or advising its personnel as to which one of them had the ultimate responsibility of command. For Red Star to do so was clearly a negligent act on the part of Red Star's management, and Red Star's management was not exercising the character of care required.

The district court further found that "Even without the warning in the Coast Pilot, a mariner familiar with the river would not have relied on the buoy at this time of year under the existing conditions"; that "Reimer was well aware that he was unprepared to navigate under the difficult conditions which were rapidly developing", that "With proper use of radar, Reimer could have gotten a radar range from the Bear Mountain Bridge with reasonable accuracy. With a radar range off Bear Mountain Bridge and a visual bearing on Con Hook Light it would have been possible to construct a danger bearing to keep the vessel off the rock. However, since the Tug, as most tugs, was not equipped with a gyro repeater or a pelorus it was difficult to take accurate visual bearings"; and that "Had Kiernan been brought to the wheel house, it is very likely he would have quickly detected that they were to the west of the channel and that the buoy was obscured by drifting ice."

The grounding of the Barge New London did not occur because of a single separate incident. It was the result of an accumulation of acts, all of which originated with Red Star's management, resulting in an easily foreseeable casualty. Where, as here, Red Star by prior action or inaction set into motion a chain of circumstances which may be a contributing cause even though not the immediate or proximate cause of a casualty, the right to limitation is properly denied. Waterman Steamship Corp. v. Gay Cotton, 414 F.2d 724 (9th Cir. 1969). Red Star's actions must be considered as causative when establishing fault in the grounding of the barge, and as such they come within the privity and knowledge of Red Star.

In Nuccio v. Royal Indemnity Co., 280 F. Supp. 468, 469 (E.D.La.1968), a proceeding to recover for injuries sustained when the boat on which libelant was a guest passenger collided into the bank of the bayou, the court stated:

It is hornbook law that when a moving vessel strikes a stationary object an inference of negligence arises and the owner of the vessel then has the burden of rebutting such inference. This respondent has failed to do.

The defense of limitation of liability is also unavailable to respondent because this accident occurred within the full privity of its assured. When respondent's assured entrusted the operation of the Pintail to an inexperienced person, he destroyed any defenses which he might have had relative to limitation of liability.

On appeal, Nuccio v. Royal Indemnity Co., 415 F.2d 228, 229 (5th Cir. 1969), the lower court was affirmed with the statement that:

Once it is determined that Arceneaux was negligent and therefore liable for Nuccio's injuries, Royal's contention that the trial court erred in failing to limit liability to the value of the Pintail becomes frivolous. In order to limit the owner's liability, the injury must occur without his "privity or knowledge." This phrase is often defined as "complicity in the fault that caused the accident." Where the owner's negligent act caused the alleged injury as found by the trial court, clearly all of the requirements of "privity" are satisfied.

The reasoning of that case is equally applicable here where Red Star's management entrusted the operation of the Ocean Prince to an inexperienced pilot.

Accepting as we do all of the district court's consistent fact findings, we nonetheless conclude in the context of the uncontradicted facts of this record that the casualty occurred as a result of negligence and unseaworthiness within the privity and knowledge of Red Star; that the order granting limitation of liability should be vacated; and that the court should have entered an order denying limitation of liability.

The district court, while finding that "Reimer failed to post a lookout when the conditions were such that the same was required," also found that "There was no proof whatever that a lookout forward could have observed the ice stranded buoy," and then it concluded that "the failure to post a lookout cannot be said to have contributed to the collision." This we find to be clearly erroneous because a lookout of suitable experience and competence, properly stationed, and vigilantly employed in the performance of his duty would have seen and reported the Con Hook Light in ample time to avoid the casualty.

Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

The importance of a lookout was stated by the Supreme Court in The Ariadne, 13 Wall. 475, 80 U.S. 475, 478-79, 20 L. Ed. 542 (1861), thus:

The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. * * * It is the duty of all courts charged with the administration of this branch of our jurisprudence, to give the fullest effect whenever the circumstances are such as to call for its application. Every doubt as to the performance of the duty, and the effect of non-performance, should be resolved against the vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary.

The lookout rule applies, of course, to tugboats. The Supply No. 4, 109 F.2d 101 (2d Cir. 1940). It is also established that the pilot steering a tug and tow is not a proper lookout. Dwyer Oil Transport Co. v. The Edna M. Matton, 255 F.2d 380 (2d Cir. 1958); The Supply No. 4, supra; Oil Transfer Corp. v. Diesel Tanker F. A. Verdon, Inc., 192 F. Supp. 245 (S.D.N.Y.1960).

Reimer was alone in the wheelhouse some 1750 yards south of the location of the charted rock when he experienced difficulty in locating the buoy. Despite being unable to locate it visually or with the radar, he did not direct the deckhand to serve as a lookout. The uncontradicted evidence shows that Con Hook Light was visible about 0.62 miles or 1300 yards south of the rock marked by buoy "25". From that point it would have taken the tug and barge 10 to 12 minutes to reach the rock all while the Con Hook Light and the shore line were visible.

The Con Hook Light is on top of a tower 46 feet above mean low water. It is visible at the rock (buoy "25"), is visible off Mystery Point, at Manitou, and is visible further south. The chart shows that there is a straight line of sight from Con Hook Light all the way down to the center of the Bear Mountain Bridge.

This is where the failure to have a proper lookout is important and significant and not his ability or inability to see the buoy. Once Con Hook Light was sighted, a pilot could take bearings forward to that light and aft to Bear Mountain Bridge, establishing a line of position and a danger bearing so that the tug's position on one side would assure the tug and barge being in safe waters, while a position on the other side would clearly indicate a hazardous situation. Reimer had at least 10 minutes and probably more time during which the Con Hook Light was visible, yet he had no lookout and did not notice it himself. Even though a lookout did not see the ice stranded buoy, it would be a matter of pure speculation to say that a proper lookout would not have seen and reported Con Hook Light.

It seems clear that under the circumstances existing the ordinary practice of seamen required the keeping of a proper lookout at that time and place. Of course, in order to take proper precautions Reimer would first have to see Con Hook Light. He did not see it, and there was no lookout to report it, as the person who would have been the lookout was getting coffee. This was the usual practice condoned by Red Star's Vice President of Operations.

The failure to post a lookout when the conditions were such that the same was required was not only negligent and contrary to good practice, it was also a violation of a statutory duty. Such a violation invokes The Pennsylvania rule. When a ship violates a statutory rule intended to prevent casualties "The burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute." The Pennsylvania v. Troupe, 86 U.S. (19 Wall.) 125, 136, 22 L. Ed. 148 (1874); Ira S. Bushey & Sons, Inc. v. United States,172 F.2d 447 (2d Cir. 1949). The "Pennsylvania rule" is still alive and well today. That rule's vitality and force were not in any degree affected by United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975), which overruled The Pennsylvania only in so far as it abolished the Mutual Fault-Equal Contribution rule and substituted a new rule requiring liability for collision damage to be allocated proportionately to the comparative degree of fault.

In this case we hold that the district court's finding that failure to post a lookout cannot be said to contribute to the casualty is in the light of the uncontradicted facts and The Pennsylvania rule clearly erroneous and that Red Star failed to overcome its burden of showing that by all reasonable probabilities its failure to require a lookout did not contribute to the cause of the collision. We further conclude that a finding of lack of privity or knowledge on Red Star's part is also clearly erroneous.

This alone is enough to deny Red Star limitation of liability.Government's Responsibility for the Grounding

We need not pause long to conclude that the district court properly held that the United States should not be found liable under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52. There was substantial evidence from which the district court found that during the ice season the can buoy is the best practical floating aid for the site under present technology; that a fixed tower on the rock, the base of which would be in 7 feet of water, would be damaged or destroyed by ice, and that it cannot be said that the negligence, if any, of the United States in not establishing more effective aids to navigation was the proximate cause of the grounding.

We therefore affirm the district court's dismissal of the claims over against the United States.

Red Star's Liability to the United States for Pollution Cleanup Costs

The district court limited Red Star's liability to the United States, for pollution cleanup costs, to $100 per gross ton of the Tug Ocean Prince, or $19,800.00.

The United States insists that Red Star's actions, as a whole, constitute willful negligence or willful misconduct within its privity and knowledge.

The United States also contends that even if this not be so, the district court should have applied the "flotilla doctrine" and used the combined tonnages of the tug and barge, as a unit, in assessing pollution cleanup damages against Red Star.

If the United States is correct, then Red Star's liability for the cleanup costs would be $186,300.00 instead of $19,800.00.

The district court held that the cause of the grounding was not a fault within the privity and knowledge of Red Star and, therefore, never reached the question of what constituted willful negligence or willful misconduct. Because we hold that the Ocean Prince was unseaworthy at the inception of the voyage and that Red Star was guilty of negligence within its privity and knowledge, we must decide whether Red Star's actions constituted willful negligence or willful misconduct and, if it did not, whether the "flotilla rule" should be applied.

Increased oil pollution of the seas is a natural consequence of the world's increased dependence on oil to satisfy industrial needs and basic energy requirements. Each year approximately 60% Of the world production of oil is transported by sea. About 1/10 of 1% Of this amount is lost at sea. This amount is divided between tank cleaning operations wherein "slops" are dumped overboard and accident-related spills.1 The advent of the supertanker has created the danger of larger oil spills, such as occurred as a result of the strandings of The Torrey Canyon and the Ocean Eagle. Dumping and accidental spilling of oil constitutes a major pollution threat to the water resources of the nation. It can destroy or limit marine life, ruin wild life habitats, kill birds, limit or destroy the recreational value of ocean beaches, lake shores and river stretches, contaminate water supplies and create fire hazards. Congress has repeatedly indicated its high regard for our water quality and, conversely, its disdain for its pollution. United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp. 145 (D.Vt.1972).

The first statute specifically dealing with oil discharges was the Oil Pollution Act of 1924 (33 U.S.C. §§ 431-437), intended to protect the nation's coastal waters from vessel discharges. Congress next passed the 1948 Water Pollution Control Act (33 U.S.C. § 466), which was amended in 1956 and 1961. In 1965 Congress enacted the Water Quality Act establishing water quality standards for interstate waters. The Clean Water Restoration Act of 1966 (33 U.S.C. § 466) amended the Oil Pollution Act of 1924.

The 1966 Act was superseded by the Water Quality Improvement Act of 1970 (33 U.S.C. § 1161), a more comprehensive Act wherein Congress declared the policy to be "that there should be no discharges of oil . . . into or upon the waters of the contiguous zone" (33 U.S.C. § 1321). The 1970 Act, as amended by the Federal Water Pollution Control Act of 1972 (33 U.S.C. § 1321), is the law applicable to this case. This Act adopts the same measure of damage as the 1924 Oil Pollution Act; however, the defenses are more limited, reflecting a strict liability rather than a negligent standard.

The 1970 Water Quality Improvement Act, incorporated into and modified by the Federal Water Pollution Control Act of 1972, is a comprehensive plan attempting to expedite oil pollution cleanup and to establish a workable scheme for limiting and distributing liability. As amended, the Act prohibits any discharge of oil or other hazardous substances into or upon the navigable waters of the United States and adjoining shorelines or into or upon waters of the contiguous zone, except where permitted under Article IV of the International Convention for the Prevention of Pollution of the Seas by Oil, as amended, or where permissible by presidential regulation (33 U.S.C. § 1321).

Summarized, the Act provides that in cases where a discharge of oil is not permissible under the Act, the owner or operator of the applicable vessel or onshore or offshore facility shall be liable to the United States for cleanup costs, except if the owner or operator proves that the discharge was caused by Act of God, Act of War, negligence by the United States, or an act or omission of a third party whether or not negligent or by any combination of those causes. It provides that "Notwithstanding any other provision of law, liability of vessel owners to the United States for the actual cost of removing oil or hazardous substances discharged is limited to $100 per gross ton or $14,000,000.00, whichever is lesser," and that limitation in the above amounts will be denied where the United States can show that the discharge was the result of "willful negligence or willful misconduct within the privity and knowledge of the owner" (33 U.S.C. § 1321(f)(1)). With respect to third party liability it provides that where the owner or operator of a vessel or onshore or offshore facility proves that a discharge was caused by an act or omission of a third party, the third party shall be liable to the United States and contains the same penalties and defenses as set out in subsection (f) dealing with the actual spiller or discharger.

The statute is not a model of clarity. In the absence of clarifying case law or legislative history on point, one can only speculate as to the meaning of the "Notwithstanding any other provision of law" clause. With respect to federal cleanup costs, it is uncertain whether Congress intended the Federal Water Pollution Control Act to supersede the Limitation of Liability Act or whether it intended both Acts to be read together so as to provide the greatest relief to the United States. Because the two statutes serve different purposes and differ substantially on crucial issues, in all probability the United States is limited to recover under the Federal Water Pollution Control Act, which does not deny limitation for cleanup costs unless the discharge is the result of willful negligence or willful misconduct within the privity and knowledge of the owner.

As used in the Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 Et seq., and specifically as used in section 1321, Oil and Hazardous Substance Liability, the phrases "willful misconduct" and "willful negligence" have not been defined. Counsel have not indicated any cases in which the terms have been explained, and our research has disclosed none. The phrase "willful misconduct", however, has been defined by this court with reference to cases arising under the Warsaw Convention, 49 Stat. 3000, Article 25(1), which excludes any limitation of liability if the damage is caused by the carrier's willful misconduct.

In those cases arising under the Warsaw Convention, this circuit has established the following criteria for a finding of willful misconduct: an act, intentionally done, with knowledge that the performance will probably result in injury, or done in such a way as to allow an inference of a reckless disregard of the probable consequences. Pekelis v. Transcontinental & Western Air, 187 F.2d 122 (2d Cir.), Cert. denied, 341 U.S. 951, 71 S. Ct. 1020, 95 L. Ed. 1374 (1951). If the harm results from an omission, the omission must be intentional, and the actor must either know the omission will result in damage or the circumstances surrounding the failure to act must allow an implication of a reckless disregard of the probable consequences. Pekelis v. Transcontinental & Western Air, supra. The knowledge required for a finding of willful misconduct is that there must be either actual knowledge that the act, or the failure to act, is necessary in order to avoid danger, or if there is no actual knowledge, then the probability of harm must be so great that failure to take the required action constitutes recklessness. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532 (2d Cir. 1965); Pekelis v. Transcontinental & Western Air, supra.

In this case, the questions are whether Red Star's omissions, specifically its failure to inform Kiernan of Reimer's unfamiliarity with the river, its failure to appoint a captain, and its failure to require a lookout under the circumstances, were done intentionally, and whether Red Star knew such a combination of omissions would likely result in damage; or whether, if Red Star did not have actual knowledge, it should have recognized the probable consequences, and that, therefore, the failure to act constituted a reckless disregard of those probable consequences. We think it did.

With regard to whether the failure to act was intentional, Keenan, Red Star's night dispatcher, knew the facts and determined that the tug was suitable for the voyage. Furthermore, even after the tug had left port, any one of Red Star's dispatchers could have called Kiernan to inform him of Reimer's inexperience on the river. Given that Keenan knew of Reimer's unfamiliarity, that the day dispatcher had told Keenan that Kiernan was to be captain, that a ship-to-shore radio was available to communicate this information, even if Keenan had merely forgotten at the time of assigning the Ocean Prince to the trip, and had said nothing to either Kiernan or Reimer, Keenan's omission and his failure to correct it must be considered intentional. Koninklijke Luchtvaart Maatschappij N.V. KLM v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, Cert. denied, 368 U.S. 921, 82 S. Ct. 243, 7 L. Ed. 2d 136 (1961). Additionally, we have previously held (as the lower court expressly found) that a lookout was required under the existing circumstances, and that failure to post a lookout was a violation of a statutory duty. Since Red Star was aware of the practice of sending the mate for coffee, failed to take any steps to alter that practice, and knew the absence of a lookout was unsafe under the existing conditions, its failure to require the lookout posted must also be considered intentional. American Airlines v. Ulen, 87 U.S.App.D.C. 307, 186 F.2d 529 (1949).

The circumstances surrounding this trip warrant an inference that Red Star acted in reckless disregard of the probable consequences. Red Star's management failed to designate the captain of the tug and failed to inform Kiernan of Reimer's unfamiliarity with the river. Red Star knew that deckhands were sent below for coffee, thereby eliminating them as a lookout, yet failed to take any steps to halt this practice. Given the conditions at the time of the accident the ice along the bank, the possibility of the buoys having been moved by the ice, the darkness, and the ebbing tide all of which Red Star knew or should have known, Red Star's failure to act allows an inference of a reckless disregard of the probable consequences.

It must be made clear that the determination of willful misconduct does not rest solely because of Reimer's unfamiliarity with the river, Cf. Goepp v. American Overseas Airlines, 281 A.D. 105, 117 N.Y.S.2d 276 (1952), Aff'd., 305 N.Y. 830, 114 N.E.2d 37, Cert. denied, 346 U.S. 874, 74 S. Ct. 124, 98 L. Ed. 382 (1953), nor does it attach necessarily because of any navigational mistakes, Cf. Grey v. American Airlines, 227 F.2d 282 (2d Cir. 1955), Cert. denied, 350 U.S. 989, 76 S. Ct. 476, 100 L. Ed. 855 (1956). This case is unlike Grey v. American Airlines, supra, in which the court found that even if there had been pilot error, that fact, by itself, did not necessarily constitute willful misconduct. It is, rather, the combination of factors which together indicate a probable consequence of damage resulting from several failures to act, and by continuing to fail to act in the face of that probability, that indicates a reckless disregard of the consequences. While any one of the faults of Red Star alone, even within privity, may not constitute "willful misconduct", on the entire record the various inactions and gross disregard of the potential harm amount, in our opinion, to willful misconduct within the meaning of the statute. Otherwise, it would be difficult to imagine what would be necessary to make a tug company liable for the costs of cleaning a negligent oil spill save an admission of an actual intent to do so, and would extend to the tugboat industry an almost absolute exemption from liability for pollution cleanup costs.

In summary, we hold that the order of the district court that Red Star is entitled to limit liability with respect to Pittston's claim and also the United States' claim for pollution cleanup costs should be vacated and that an order be entered denying Red Star the right to such relief; directing the entry of judgment in favor of Pittston and the United States for the amount of their damages; and that the district court's judgment in all other respects be affirmed.

Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.