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IN RE MARINA MERCANTE NICARAGUENSE

November 15, 1965

Petition of MARINA MERCANTE NICARAGUENSE, S.A., as owner of the MOTOR VESSEL, EL SALVADOR, in a cause of exoneration from or limitation of liability. Petition of McALLISTER BROTHERS, INC., as owner of the TUG RUSSELL NO. 18, for exoneration from or limitation of liability

Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

WEINFELD, District Judge.

On September 20, 1962 the tug Russell 18, which had just assisted in undocking the M/V El Salvador, sank in Port Elizabeth Channel, Newark, New Jersey, with the loss of three of her seven crew members.

 These are consolidated proceedings in which petitioner McAllister Brothers, Inc. (hereafter referred to as McAllister), owner of the tug Russell 18, and petitioner Marina Mercante Nicaraguense, S.A. (hereafter referred to as Marina), owner of the El Salvador, seek exoneration from or limitation of liability. *fn1" Representatives of the estates of the three deceased crew members are claimants in each proceeding and contest petitioners' limitation and exoneration pleas. Also, each petitioner challenges the other's right to limitation, and each, in the event it is cast in liability to the death claimants, seeks indemnity from the other; McAllister further is a claimant against Marina for damages to the tug Russell 18. The claimants have the burden of proof on the issue of liability, and if they sustain it each petitioner has the burden under its limitation plea of establishing that the faults or acts which resulted in liability were committed without its privity or knowledge. *fn2"

 The petitioners and claimants, in advance of trial, agreed upon the order of presentation of evidence in support of their respective burdens. *fn3" Much evidence was received from those who witnessed the capsizing and sinking, with the not unusual disparity in the testimony of seamen. Also offered was evidence bearing on the stability of the tug. Then there was the testimony of the diver who located the tug at the bottom of the channel and there placed slings about her, preparatory to raising and towing her to dry dock, as well as that of surveyors who examined her at dry dock, one of whom, a marine architect, gave his opinion as to the cause of her foundering. Essentially, the principal issue is the cause or causes of the tug's sudden sinking in a matter of two or three minutes in the quiet and calm waters of Port Elizabeth Channel.

 The tragedy occurred in the early morning hours, at about 5:30 a.m., in darkness. The tug Russell 18 had been engaged to assist the El Salvador from her berth at Pier 36 in Port Elizabeth, Newark, New Jersey, to Pier 3 in Brooklyn, New York. John Skogen, a harbor pilot employed by McAllister, was assigned to act as pilot for the trip.

 The Russell 18 left Brooklyn at about 3:30 a.m. and proceeded to Port Elizabeth Channel. Those aboard were Skogen, the three deceased, Norman Evans, Frank Fargo and Carl Salvesen, and the four surviving crew members. The approach to Pier 36 where the El Salvador was berthed was by way of Port Elizabeth Channel from its junction with Newark Bay Channel. As the tug neared Port Elizabeth Channel Skogen sought, but was unable to locate a black buoy - black buoy can No. 1 - supposedly situated on the southerly side of the channel at the junction. The tug, not having located the black buoy, nonetheless entered Port Elizabeth Channel guided by four red unlighted can buoys to the tug's starboard, numbered 2, 4, 6 and 8, respectively; the distance between each was about 900 feet. The distance from where the tug entered the channel to where the El Salvador was moored at Pier 36 was about 3600 feet. The channel is about 600 feet wide and dredged to a depth of thirty-five feet.

 The tug reached Pier 36 about 5 a.m., where Skogen disembarked and boarded the El Salvador. Under Skogen's direction the El Salvador was maneuvered away from her berth without incident. The vessel, still under Skogen's direction, then executed a ninety degree port turn into Elizabeth Channel and headed toward the junction with Newark Bay Channel, which she would now enter by a starboard turn on her planned passage to Brooklyn. The Russell 18 was tied to the port side of the El Salvador on a line thirty to forty feet in length made fast from the tug's forward bitts to the El Salvador's cleat. As the tug and ship proceeded toward the junction, the bow of the tug was against the side of the El Salvador aft of the forecastle head, with the pilot house forward of the ship's bridge and the tug's stern about four feet away from the ship.

 As the El Salvador started to move down the straightaway of Port Elizabeth Channel with the Russell 18 made fast on her port side, Skogen, the pilot, positioned himself on the starboard wing of the ship's bridge about twenty-five feet from the ship's wheel to search in the darkness for the same black buoy can No. 1 which he had not located when the tug entered the channel and which Skogen believed now, *fn4" on his return trip, was off the starboard side. He intended it as a guide to make the starboard turn into Newark Bay Channel. As he exited from Port Elizabeth Channel, the four red unlighted can buoys were now on the port side in reverse order, numbered 8, 6, 4 and 2, respectively. Hansen, the master of the El Salvador, was also on the starboard wing. The pilot's orders were transmitted by the master to the engine room for execution.

 When the ship left the dock Skogen ordered her engines put at slow ahead and then half ahead because the engine was slow and sluggish; meanwhile the tug's searchlight was played on buoy No. 8 and then on buoy No. 6, which was about fifteen feet from the tug's port side. When the El Salvador was abreast of buoy No. 6, Skogen observed a tanker assisted by two tugs proceeding south-bound down Newark Bay Channel toward the junction of the two channels, which he felt he could reach before the tanker and make his starboard turn. Although he was still endeavoring to locate black buoy No. 1, he ordered full speed ahead, giving the El Salvador a speed through the water of about seven knots, or eight miles an hour over the ground. Subsequently Skogen ordered hard astarboard, and upon the master's instructions the order was executed by the wheelsman. No signal was given to the tug to indicate change in speed or course.

 At or about this time Forbes, the El Salvador's boatswain, stationed at the cleat to which the Russell 18's single line was made fast, saw the line under a heavy strain. He also observed the tug listing heavily to port, water going over her, and several men on the bulwark of the tug yelling excitedly. Although he could not understand them, he sensed a situation of danger. Without giving notice to the bridge, and without orders from the bridge, Forbes, unable to release the line from the tug to the El Salvador because of the heavy strain, cut it. *fn5"

 The tug, cast adrift, still listing heavily to port and unable to keep pace with the ship, began to fall behind. As the tug drifted astern, she was rubbing along the ship's side, taking water over her stern and sinking fast When clear of the ship she turned starboard, capsized and soon went under stern first on her port beam to the starboard side of Elizabeth Channel. No rescue operations were undertaken by the El Salvador's personnel. No life rings, jackets, or lines were thrown to the tug; no lifeboats were launched and no lights were shone or flares dropped on the area where the tug went down. A move by the boatswain to lower a Jacobs ladder was futile, since the tug had already drifted astern of the El Salvador. Fargo, Evans and Salvesen were not seen alive thereafter. The other crew members were rescued by the tugs which had been towing the tanker down Newark Bay Channel, after the El Salvador signalled them to come to the disaster scene.

 Skogen, who had been on the starboard wing in his effort to locate black buoy No. 1, first learned that the Russell 18 was in trouble either from the El Salvador's master or from a whistle by the tug. He started for the center of the bridge, meanwhile giving orders to reduce speed - first, to half ahead, then to slow, and finally to stop. When he saw the tug, after she had been cast adrift, moving aft along the ship, Skogen ordered the wheel hard left to avoid contact between the ship's propeller and the tug.

 While these events were taking place, Orville Evans, the chief engineer of the tug, became aware of trouble at his station in the engine room. After the undocking of the El Salvador, as she and the tug proceeded into Port Elizabeth Channel, the tug developed a slight but noticeable port list. About two minutes later, when the tug's engines were operating at full speed, Evans heard a squealing noise. Upon inspection to ascertain the cause, hot oil squirted in his face. Because it was hot Evans concluded it came from the steering mechanism, a conclusion verified by subsequent events. He next heard the engines straining or laboring, soon followed by water coming into the engine room over the upper half of a Dutch door. The tug continued to list heavily to port and was going under. He made his escape from the engine room as the tug was going down.

 The Court is persuaded that the straining of the tug and the pressure in the steering system which caused the oil to squirt in Evans' face resulted from the application of an external force - contact of the tug's rudder with the port bank of the channel - in short, that the tug struck the bank immediately before she sank.

 A number of facts support this finding. In addition to Evans' testimony, the survey made when the tug was in dry dock indicated that a tin can float gauge in the sump tank had been crushed; unchallenged is the testimony that only the application to the rudder of pressure from outside the vessel could have caused this. Over and beyond is the credible and persuasive testimony of Edward Ganly, a naval architect and marine surveyor, as to the tug's physical condition during his several examinations of her in dry dock. His testimony fully supports a finding that the tug struck the bank immediately before she sank. *fn6" He found the tug's rudder and steering gear in a hard to starboard position beyond their normal stops - a position into which they could not have been pushed except by some external force - the same force which caused the hot oil to squirt in Evans' face and crushed the tin can float gauge in the sump tank. He also found damage to the tug's clutch resulting from its slipping in the ahead motion, which indicated that the "propeller itself was digging into the ground or bank against which the tug was being forced." The port side of the rudder had a fracture of such nature as would have occurred by the tug being dragged along the channel bank.

 Ganly also found mud on the tug's propeller and on her rudder, five feet up on the port side, but only two feet, seven inches on the starboard side; mud, rust and scrapings were on her hull. This indicated contact with the ground. Ganly's findings as to the mud on the propeller are particularly significant. His unchallenged opinion was that the mud got on the propeller while it was turning. Since the propeller stopped turning immediately before the tug went under, the mud could not have come from that part of the channel bottom to which the tug sank. This finds support in the fact that no mud was found on the propeller blade which was closest to the bottom after the sinking and that the propeller, when first seen by the diver, was lying in the clear open water about two feet from the bottom. The evidence is convincing that the source of the mud was the channel bank.

 Having found that the tug struck the channel bank after it had developed a severe port list, the question remains who was responsible. The Court concludes that both vessels, the Russell 18 and the El Salvador, by negligent acts and conduct, substantially contributed to the tug's sinking, and each bears responsibility for the casualty.

 The El Salvador was negligent in a number of respects. An outstandingly egregious act was the cutting of the line by Forbes, the boatswain, without notifying the bridge that the tug was in difficulty and when he was unaware of the cause of her listing. *fn7" Negligent conduct is also attributable to the first mate, who likewise failed to report the tug's plight to the ship's master and pilot for appropriate action before the line was severed. There can be little doubt as to what prudent seamanship required. The answer is given by both the pilot and the master. Skogen testified that had he been notified of the tug's difficulty he would have immediately stopped the ship, reversed the engines, dropped the anchor, rendered all assistance to the tug and, if need be, beached the vessel. *fn8" Hansen, the master, made it perfectly clear that he would not have cut the line but would have kept the tug alongside until he knew the cause of her listing and apparent sinking. *fn9" And even Forbes recognized his error, when upon the trial he acknowledged that he did not know what caused the tug to list, but assumed that when he cut the line the tug would not sink but would straighten up. He conceded that, had the tug not been cast adrift, it would have been an easy matter to drop a Jacobs ladder or even put down a gangway to enable the tug's crew to leave in safety.

 The El Salvador is further chargeable with fault by reason of the negligent acts and conduct of both the pilot *fn10" and the master. Pilot Skogen, while on the starboard wing still searching in vain for black can buoy No. 1, ordered the El Salvador as she passed red can buoy No. 6 on full ahead, so that with the tug at her side she attained in the darkness and narrow channel a speed of seven knots. Under existing conditions this speed in the narrow waters was excessive. *fn11" The speed caused the El Salvador to pull the Russell 18 and the line between the two vessels to strain, which in turn caused the Russell 18 to list noticeably. *fn12" The improvidence of the order, executed without notice to the tug, is emphasized by the fact that, when he gave it, Skogen did not know whether the tug could keep pace with the full ahead speed of the ship, while he did know, or should have known, that a tug being pulled too fast by a ship not only readily develops a list and takes water, but also is in danger of "tripping" or turning over.

 The tug's peril was further compounded when Skogen, still not having located the elusive black buoy, subsequently ordered a hard starboard turn to effect his entrance into Newark Bay Channel. Skogen admitted that he did not know the actual distance between the El Salvador and the port bank of the channel and was not certain that the wheelsman was keeping to the course he had set. The effect of this improvident order, *fn13" again without signal to the tug, was to cause the stern of the Russell 18, whose port side was in fact perilously close to the bank, to strike against it, and the resulting contact pushed the tug's rudder starboard. A starboard rudder normally causes a tug to list to port; in this instance it so accentuated the already heavy port list that the tug, which had only a one foot freeboard, took water immediately, capsized and sank quickly.

 The El Salvador also is chargeable with the failure of Hansen, her master, to countermand Skogen's obviously improvident full speed and starboard orders. *fn14" Hansen was on the El Salvador's bridge during the undocking and subsequent passage down Port Elizabeth Channel, and was aware that Skogen gave the orders without being certain of the El Salvador's course. Indeed, Hansen had himself never looked to see if the El Salvador was keeping to a proper course. Yet, when he received Skogen's full speed and starboard orders, he issued directions for their execution.

 Finally, the El Salvador is chargeable with two other negligent omissions. One was the failure to use the ship's searchlight to assist in looking for the missing black can buoy, *fn15" although Skogen admitted that if the light had been used he would not have had to station himself on the starboard wing in the search for the buoy, but could have remained at his normal station outside the wheelhouse. The other was the failure to use any of the El Salvador's instruments to set and check her course; rather, Skogen referred solely to shore lights, some of which he could not identify, and to the red can buoys, to which he admittedly did not know the distance. *fn16"

 The Russell 18 also is chargeable with fault. Several years before the disaster a new engine and auxiliaries had been installed off center in the tug's port side, causing her to list to port. Her owners did not install permanent ballast to compensate for the added weight. Instead, to correct the list and to keep the tug on an even keel, the practice had been to use liquid ballast, specifically to carry 1000 gallons more fuel in the starboard wing tank than in the port wing tank. The failure to install permanent ballast would not of itself constitute negligence. However, on the morning of the disaster, instead of the required 1000 additional gallons of fuel in the starboard wing tank, it contained only 700. Furthermore, as a result of a leak, about eleven inches of fuel had accumulated in the lazarette, a small open space immediately astern of the tug's No. 4 fuel tank. The insufficient ballast and the fuel in the lazarette, either singly or in combination, rendered the Russell 18 unstable and readily susceptible to an unusual list which, as already noted, developed when the El Salvador began pulling the tug down Port Elizabeth Channel and was thereafter aggravated by the acts of the El Salvador previously specified. In the circumstances, the failure to maintain the ballast at its usual requirement in order to stabilize the tug and the failure to pump the fuel from the lazarette constituted negligence. *fn17"

 In sum, the various acts, omissions and faults of the ship and tug above discussed were substantially concurrent and contributory causative factors of the tug's sinking, and both must respond in damages to the claimants. *fn18" Moreover, whatever petitioners' relationship vis-a-vis one another by reason of Skogen's position as pilot, he still remained the agent of McAllister as far as claimants, innocent third parties, are concerned, and McAllister, as well as Marina, is liable for his negligent conduct. *fn19"

 Although not entitled to exoneration from liability, the respective shipowners have sustained their plea of limitation of liability, since the faults attributable to each vessel were faults in seamanship and navigational conduct, for which they were not responsible and which occurred without their privity or knowledge. *fn20"

 As to the tug, its instability was readily corrected by means of liquid ballast maintained in required proportions, and the tug crew was fully informed and knew of this requirement. Indeed, it appears that over extended periods prior to the tragedy, when the ballast in the tanks was properly maintained, no difficulty was encountered in the tug's stability. The failure to pump the fuel out of the lazarette similarly was an operational failure on the part of the tug's crew not chargeable to the owner.

 As far as the El Salvador is concerned, no valid basis exists to support any claim that the vessel was unseaworthy to the knowledge of her owner. She has been cast in liability solely by reason of improvident navigational orders and conduct. Both petitioners are entitled to a decree of limitation.

 DAMAGES

 Preliminary to consideration of the separate damage claims, *fn21" some observations are in order in view of the differing contentions between petitioners and claimants. The awards are to be computed on a two-stage basis: (1) the damages to the date of decision are to be totalled without discount and increased by prejudgment interest, *fn22" and (2) future damages are to be discounted to their present value. *fn23"

 The guiding considerations in determining damages are a decedent's earning capacity and what sum under all the circumstances he might reasonably have been expected to earn had he lived, and the extent to which the surviving dependents "might logically and reasonably have been expected to share in it." *fn24" In determining the reasonable expectation of pecuniary assistance or support of which the beneficiaries have been deprived, proper adjustment should be made for taxes, *fn25" personal expenses of the decedent and his share of the household expenses. *fn26" Also ...


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