The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
The petition for exoneration from, or limitation of, liability made pursuant to 46 U.S.C. § 183 et seq. by the Marine Sulphur Transport Corporation as owner, and by Marine Transport Lines, Inc. as demise charterer, of the vessel Marine Sulphur Queen is denied, and the wrongful death claims are allowed. The wrongful death claims are also allowed against the impleaded respondent Bethlehem Steel Corporation as designer and converter of the Marine Sulphur Queen, but these claims as against the impleaded respondent Texas Gulf Sulphur Company are dismissed.
The "contingent" petition for exoneration from, or limitation of, liability made pursuant to 46 U.S.C. § 183 et seq. by the Texas Gulf Sulphur Company as alleged owner or demise charterer of the Marine Sulphur Queen is dismissed, and the claims herein against the Texas Gulf Sulphur Company are dismissed.
The cargo claim of the United States Fire Insurance Company is allowed against the Marine Sulphur Transport Corporation and Marine Transport Lines, Inc.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The claims referred to above arise out of the disappearance in the Gulf of Mexico on or about February 4, 1963 of the Marine Sulphur Queen [hereinafter " Queen " or "MSQ"], which had a crew of 39 and a full cargo of molten sulphur. The Marine Board of Investigation convened by the United States Coast Guard to investigate the disappearance concluded on August 23, 1963 that the Queen and her entire crew "must be presumed lost."
This court now finds that the MSQ and all her crew members and cargo were in fact lost on or about February 4, 1963.
The court's jurisdiction is based on 46 U.S.C. § 185, on the Jones Act - 46 U.S.C. § 688, and on 28 U.S.C. § 1333(1) with regard to the claim arising under the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. Jurisdiction is also predicated upon the Death on the High Seas Act
since the court finds that the MSQ and crew were lost "beyond a marine league from the shore of any State." 46 U.S.C. § 761.
On April 28, 1960, a meeting took place between representatives of impleaded respondent Bethlehem Steel, a Pennsylvania corporation hereinafter referred to as "Bethlehem," and petitioner Marine Transport Lines, a Delaware corporation hereinafter referred to as "MTL." At the meeting, Bethlehem agreed in principle to convert a T-2 tankship to a molten sulphur carrier. Fundamental to this accord were MTL requirements that the cost of the conversion not exceed $1,650,000 and that the converted ship have a minimum cargo capacity of 15,100 long tons.
The latter requirement was part of a long-term tanker consecutive voyage charter party
executed as of April 8, 1960 between MTL and the impleaded respondent, "petitioner" Texas Gulf Sulphur Company, a Texas corporation hereinafter referred to as "TGS."
Subsequent to the reaching of the agreement, petitioner Marine Sulphur Transport Corporation, a Delaware corporation and wholly owned subsidiary of MTL [hereinafter "MSTC"], purchased from the Humble Oil Company the Esso New Haven,
an all welded T2-SE-A1 tanker of 7240 gross tons and 4057 net tons, with a length of 504 feet, breadth of 68.2 feet and depth of 39.2 feet. This ship was built in 1944 by the Sun Shipbuilding and Drydock Co. of Chester, Pennsylvania.
The design of such T-2 tankers, however, had proven from the beginning to be unreliable, to say the least. In January, 1943, the Schenectady broke in two in port, and by July, 1946, a total of 15 T-2's had experienced Class I Casualties,
while numerous others had experienced lesser fractures. Indeed, a T-2 tanker, the Pine Ridge, broke up in December, 1960 while the Esso New Haven was still in the process of conversion at Bethlehem's Baltimore shipyard.
The original concept of the T-2 design envisioned distribution of the cargo (petroleum) throughout the spaces, port to starboard. Nevertheless, the transformation of the Esso New Haven into the MSQ contemplated removal of the original T-2 centerline tanks and replacement of them with a single independent, sulphur-carrying tank, some 306 feet long, 30 feet, 6 inches wide and 33 feet high - such tank being internally divided by sulphur-tight transverse bulkheads into four tanks with No. 1 83 feet long, Nos. 2 and 3 73 feet long, and No. 4 77 feet. The remaining original wing tanks were to be used only for ballast. Pursuant to this basic concept, Bethlehem had drawn up Plan 43933, Alt.0
which it submitted in May, 1960 to MTL, TGS, the American Bureau of Shipping [hereinafter "ABS"]
and the Coast Guard
for consideration. Installation of the 306-ft. tank necessitated, in effect, the gutting of the ship, and Plan 43933, Alt.0 accordingly provided, among other things, for the removal of nine transverse bulkheads located at frames 47, 50, 53, 56, 59, 62, 65, 68 and 71. There were not to be any complete or partial bulkheads connecting the structure of the cargo tank to the ship's structure. As agreed upon, MTL submitted this Plan to the George G. Sharp Co., which thereafter reported to MTL on May 17, 1960 as follows:
A preliminary study of [Plan 43933, Alt.0] indicates the design to be deficient in transverse strength. All the main transverse bulkheads in the center tanks of the original tanker have been removed. We believe it will be necessary to restore at least three of those bulkheads and divide the sulphur tanks into two or three longitudinal tanks with cofferdams between. Longitudinal top and bottom girders and transverses in way of the sulphur tanks have been reduced below what is considered good practice. It may be possible to make up this deficiency by increased thickness of materials in these structural members, but this will require a detailed study. Correction of the above deficiencies will result in the reduction of the specified cargo deadweight of from 3 to 5%.11
As soon as it received this report, MTL forwarded a copy to Bethlehem with a cover letter stating:
* * * The remarks contained [in this report] are quite disturbing to us; however, we feel that from our preliminary discussions you will be able to meet all necessary classifications and Coast Guard requirements in order that we may guarantee our Charterer [TGS] the specified deadweight carrying capacity of not less than 15,100 longtons of molten sulphur.
A day earlier, on May 16th, J. N. Shrader of Bethlehem had encountered a similar negative reaction to Plan 43933, Alt.0 when he met with the ABS.
Thereafter, on May 20th, representatives of Bethlehem again met with the ABS. Bethlehem's "basic approach was to convince the Bureau that the sulphur tank, even though attached to the ship by bolted connections (plus being welded solid to the ship's structure at the tank's mid point) actually contributes a great deal of strength by becoming part of the ship's hull girder."
This "approach" was clearly dictated by the overriding economic concern that minimum cargo capacity not go below the specified 15,100 tons. In any event, the ABS acquiesced in this approach after the inclusion of certain features in the design.
Bethlehem then drew up its revised Plan 43933, Alt.1
which retained the basic single tank structure, but which added a complete transverse bulkhead at frame 59 and diaphragm bulkheads at frames 53 and 65. Furthermore, the wing tank transverse bulkheads were to be aligned with the cargo tank's transverse bulkheads. This Plan was submitted to MTL, MSTC, TGS and the ABS and Coast Guard for consideration. There were no dissenters. On August 9, 1960, MSTC entered into a contract with Bethlehem for the conversion of the Esso New Haven into the MSQ,
and this process was completed by January 20, 1961.
Removal of the original centerline tanks and all of the transverse bulkheads in their way did not provide enough space, however, for installation of the 306-ft. tank, the cross section of which was rectangular. Additional structural reductions and/or alterations were required. The height of the center vertical keel from frames 46 1/2 to 72 1/2 was cut down from 7 feet, 6 inches to a constant height of 3 feet, 4 inches, and a 17 in. x 1 in. flange plate was welded to the top thereof. The transverse web frames, or floors, in the bottom of the ship were cut down to a constant horizontal plane of 3 feet, 4 inches above the flat keel plate and were fitted with 15 in. x 1 in. flange plates welded to the top thereof. On either side of the centerline vertical keel, the bottom longitudinals, 7 feet, 6 inches and 15 feet off the centerline, port and starboard, were extended up to this same 3 ft. 4 in. horizontal plane, by the addition of 1/2 inch plate with an 8 in. x 1 in. flange plate welded to the top. The bottom of the sulphur tank was fitted with five longitudinal stringers of 1/2 inch plate faced with 8 in. x 1 in. flanges. The longitudinals fitted to the bottom of the tank and the flange plates of the ship's bottom longitudinals were bolted together, except between frames 58 and 60, with a 1/2 inch thick, 8 in. wide phenolite laminated plastic installed between the flanges as a heat insulator. To permit longitudinal expansion and contraction of the tank, 1 inch bolts were mounted in 1 1/16 in. holes in the tank longitudinals and passed through 1 1/16 in. x. 3 1/2 in. slots in the insulator and the flanges in the ship's bottom longitudinals. Although not reflected in the conversion plan, these slots were increased in length to four inches for the last ten feet from either end of the tank. There was a single row of bolts on each of the outboard longitudinals and a double row on the centerline longitudinal. Between frames 58 and 60, a distance of 24 feet, 4 inches, the five longitudinals fitted to the bottom of the tank were welded to the ship's five bottom longitudinals after a plate 1/2 inch thick was inserted to compensate for the absence of the heat isolating material in these areas.
No precise measurements of the expansion were made during a subsequent test when air temperatures of 240 degrees F. to 252 degrees F. were achieved inside the empty tank,
but one witness recalled that the ends of the tank had expanded so that the bolts were within 1/4 to 3/8 of an inch from the ends of the 4 in. slots. Apparently, no measurements of the expansion were ever made while the tank was full of molten sulphur. During the one test and later at various times while the vessel was in operation, loud noises caused by expansion and contraction of the tank were heard throughout the vessel.
As was required below the tank, the ship's structural members also had to be cut above the tank in order to provide the requisite space. Under the weather deck, the centerline deck longitudinal girder was reduced from its original depth of 5 feet to 2 feet, 8 inches, except between frames 58 to 60 where the original depth was 3 feet, 6 inches. This section was welded directly to the top of the tank. Where this girder was cut to a depth of 2 feet, 8 inches, a 15 in. x 1 in. face flange was welded to the bottom thereof. On the top of the tank at the centerline, bracketed webs 1/2 inch thick with face plates 8 inches by 1 inch by 12 inches long were fitted at each frame between frames 47 to 71 inclusive except for the welded portion between frames 58 to 60. Again the slotted bolt arrangement was employed, with each connection being made with two bolts staggered on either side of the centerline of the girder.
In summary then, the cargo tank was attached at the bottom to five longitudinal girders and at the top to the centerline deck girder by means of slotted bolts. This unique arrangement was the subject of much expert testimony and criticism and was attacked as to its basic ability to hold in place a tank and cargo of the size and weight specified when the ship worked in a heavy sea.
Continuing with the features of the conversion, a complete watertight bulkhead surrounded the tank at frame 59 so that a void space then existed fore and aft of this bulkhead. Diaphragm plates were fitted between the tank sides and the wing tank longitudinal bulkhead at frames 53 and 65, both on the port and starboard sides. These diaphragm plates were not watertight. They extended from 4 feet, 6 inches above the tank bottom to within 1 foot, 6 inches of the top of the tank. At about the 20 ft. level above the tank bottom, 15 in. x 36 in. access holes, port and starboard, were cut out of the diaphragm plates to permit access along a cat walk, which together with appropriate vertical ladders, permitted personnel to descend from the weather deck to the void space surrounding the tank.
On each side of the tank, tank expansion connections consisting of two pieces, one welded to the tank and the other to the wing tank longitudinal bulkhead, were fitted at frames 47, 50, 56, 62, 68 and 71.
As noted previously, the cargo tank was divided internally into four separate cargotight areas. Each of these four sub-tanks was fitted at the after end with port and starboard expansion trunks which extended through the weather deck into watertight pumphouses.
To reduce thermal losses, the entire tank exterior was insulated with a blanket of Owens-Corning Armaglas PF-335, 4 inches thick on the bottom, sides, ends and around the expansion trunks and 6 inches thick on the top.
The Queen was certificated at Baltimore by the Coast Guard on January 18, 1961 for the carriage of "Grade E liquids at elevated temperatures." She was then put in service transporting molten sulphur from TGS's main storage and loading terminal at Beaumont, Texas to molten sulphur terminals at Carteret, New Jersey and Norfolk, Virginia, as well as other Gulf and East coast ports on occasion. The vessel, which had an estimated life expectancy (by MTL) of 15 years, made only 63 voyages after conversion and prior to February 1, 1963. On that date, loading of molten sulphur
commenced at Beaumont. Some 7,828 long tons of dark sulphur were pumped into "tanks" 1 and 2; bright sulphur weiging 7,487 tons was pumped into "tanks" 3 and 4. Total load: 15,315 long tons.
In addition to this cargo, the MSQ had on board 3,830 barrels of fuel and 100 tons of water
at the time of departure from Beaumont, 1330 hours (CST) on February 2, 1963. She proceeded to sea under the direction of a pilot, who left the vessel at the Sabine Bar Sea Buoy. Shortly thereafter, Captain James V. Fanning, master of the Queen, radioed that the ship had departed the buoy at 1900 CST (on February 2d) via 24.4 degrees N 83.0 degrees W to 24.8 degrees N 80.2 degrees W to 31.2 degrees N 79.2 degrees W to 35.1 degrees N 79.3 degrees W to Cape Henry, Virginia, with an estimated time of arrival at Norfolk of 12 noon (EST) on February 7th. Captain Fanning had been instructed to give both a 48 hour and a 24 hour advance notice of arrival to the Norfolk agent. No such messages were ever received. The only other (and last known) message from the MSQ was a personal one from a member of the crew which was transmitted at 1:25 a.m. (EST) on February 4th and received by RCA Radio. At this time, the estimated position of the ship was 25 degrees 45'N 86 degrees W based on an estimated speed of 14.5 knots. RCA made two unsuccessful attempts to contact the Queen, the first commencing at 11:23 a.m. (EST) on February 4th. At that time, the vessel would have been at an estimated position of 24 degrees 40'N 83 degrees 18'W if she had continued along.
The hindcast prepared by the United States Navy Oceanographic Office on the weather conditions prevailing along the projected track of the MSQ during the period of 2000 hours (EST) on February 3 to 1300 hours (EST) on February 4 for the area between 88 degrees W and 82 degrees W indicates that the ship may have encountered seas with a maximum wave height of 16.5 feet slightly abaft the port beam. The winds would have been generally northerly in direction, also slightly abaft the port beam, with a maximum force of 25 knots and gusting to 46 knots. The vessel's period of roll was calculated to have been 8.5 seconds. The period of the waves was included in the hindcast and was within ten percent of the MSQ's period of roll.
As with most, if not all, tragic and seemingly esoteric happenings, the loss of the Queen has precipitated a rash of theories incorporating both physics and metaphysics in varying degrees. The two petitions herein were filed on March 1, 1963 and July 9, 1964.
In a proceeding for exoneration from, or limitation of, liability, the petitioners are required to prove that the given ship, in this case the Queen, was seaworthy when she broke ground and to set forth facts known to them which might have a bearing on the cause of the loss. The claimants have the burden of proof of establishing either unseaworthiness or negligence, and if they do this,
the petitioners must then show that they are entitled to limitation because of a lack of privity or knowledge as to the condition of unseaworthiness or negligence. See Petition of Moore-McCormack Lines, Inc., 147 F. Supp. 816 passim (S.D.N.Y. 1956); ...