The opinion of the court was delivered by: BONSAL
Petitioners instituted this proceeding, pursuant to 46 U.S.C. § 183 et seq., for exoneration from or limitation of liability with respect to claims arising by reason of the sinking of the S/S SMITH VOYAGER (the VOYAGER) in the Atlantic Ocean on December 27, 1964. The petitioners are:
Sumner A. Long (Long), the owner of the vessel;
Anne Quinn Corporation (Quinn), the bareboat charterer; and Earl J. Smith & Co., Inc. (Smith), the general agent for Quinn.
Thirty-five claims have been filed by or on behalf of members of the crew (individual claimants), including four death claims and thirty-one personal injury claims (one of which was settled during trial). In addition, the India Supply Mission (cargo claimant) has filed a claim for the loss of the cargo consisting of 10,204 tons of grain.
A trial, limited to the issue of liability, was held in June and July 1968, the adjudication of claims, if any, being reserved for later determination.
The VOYAGER sailed from Houston, Texas on December 12, 1964, carrying a cargo of 10,204 tons of grain bound for India. She called at Freeport, Grand Bahama Island, B.W.I., on December 15, 1964, where she took on fuel and water. On December 20, 1964, she encountered rough weather at sea. At about noon on that day, her engines were shut down because of a broken steampipe. Before repairs could be completed, the vessel took a sharp list to starboard and the general alarm was sounded. One of the lifeboats was launched and all but the Captain and three crew members left the vessel and took to the lifeboat. Four members of the crew who had left the vessel lost their lives and the rest were picked up by the S/S MATILDA BOLTEN. The VOYAGER remained afloat until the morning of December 27 when she sank by the stern. Between December 20 and December 27, the Captain and the three members of the crew who remained on the vessel were taken off, salvage operations were undertaken, and the vessel sank while under tow.
In seeking exoneration from or limitation of liability, petitioners were required to establish that the vessel was seaworthy when she broke ground at Houston and to bring out the facts known to them which might have a bearing on the cause of the disaster. Petition of Moore-McCormack Lines, Inc., 147 F. Supp. 816 (S.D.N.Y.1957). Following the petitioners' presentation, the claimants had the burden of proof to establish liability, and if they failed to do so, petitioners would be entitled to exoneration. Petition of Trawler Snoopy, Inc., 268 F. Supp. 951 (D.Me.1967). If the claimants established liability, the burden of proof shifted to the petitioners to show that they are entitled to limitation of liability because the vessel was seaworthy when she broke ground at Houston and because they had no privity or knowledge as to the cause of the disaster. Petition of Moore-McCormack Lines, Inc., supra.
This procedure was followed at the trial and, for the reasons hereinafter stated, the court finds that a substantial cause of the disaster was the overloading of the vessel which condition continued from the time she broke ground in Houston on December 12, 1964. The court further finds that the petitioners had privity or knowledge of the overloading and that, accordingly, the petition for exoneration from or limitation of liability must be denied.
The relevant facts stipulated by the parties or brought out at the trial may be briefly summarized as follows:
The VOYAGER was a Victory type vessel built in 1945 with an overall length of 445 feet 3 inches, breadth of 62 feet 1 inch, a gross tonnage of 7,606, a net tonnage of 4,549, and a total deadweight capacity of 10,720 tons.
From December 2 to December 9, 1964, the VOYAGER lay at the San Jacinto Terminal in Houston for the installation of grain fittings. On December 9, she moved to the Goodpasture Grain Elevator. She was light at the time, and while she was sailing down the Houston Ship Channel, Captain Frederick W. Mohle ordered the helmsman to get coffee and took the helm himself. While the Captain was at the helm, the vessel went aground on the north bank of the Houston Ship Channel at an angle of approximately 45 degrees. She remained aground about one hour when she was freed by two tugs in attendance and she then proceeded to the Goodpasture Elevator. The Captain reported the grounding to the petitioners by letter dated December 9, 1964, but the grounding was not reported to the Coast Guard until April 1965, after the sinking. Soundings were taken of the VOYAGER's forward tanks to determine whether the vessel had taken water, but no physical examination of the plates of the vessel was made.
At the Goodpasture Grain Elevator the VOYAGER loaded 10,204 tons of grain. She sailed with 154.5 tons of fuel and 120 tons of water. To be on her marks, her permissible mean draft (summer) was 28 feet 6 3/4 inches according to her International Load Line Certificate.
The parties conceded that she was entitled to a fresh water allowance of 6 inches because the water in Houston harbor is brackish and not salt. This entitled the vessel to a permissible mean draft at the time she left Houston of 29 feet 3/4 inch. On the basis of the evidence adduced at the trial, the court finds that when she completed loading at Houston, she had a mean draft of 30 feet 1 inch, or after allowing 6 inches for salinity, 29 feet 7 inches. She was therefore below her marks by more than 1 foot. Her permissible freeboard (shown on the Capacity Plan) was 9 feet 7 inches. When she left Houston, by reason of the overloading, her freeboard was approximately 1 foot less.
There was substantial evidence to show that the vessel was below her marks to the extent indicated. Smith's loading agent in Houston wired Smith at sailing that she had a mean draft of 29 feet 7 inches, and the same figure was contained in the VOYAGER's port log sent by the Captain to Smith following the vessel's departure.
The pilot on the vessel when she sailed on December 12 testified that, as the vessel sailed, he was informed by the ...