The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW
This is a libel for cargo damage, tried before the court, the question of the amount, if any, of damages being reserved, only the issue of liability being considered.
The plaintiff seeks to recover for cargo damage sustained during a collision between the S.S. Janet Quinn and M/T Forest Lake and also seeks to recover from the defendants an additional sum which was paid to the defendants as cargo's contribution to the General Average.
The sole issue aside from damages is whether defendants exercised due diligence before and at the beginning of the voyage to make the ship seaworthy in that the vessel was improperly equipped and manned in that it did not possess adequate or up-to-date navigational charts and maps (Carriage of Goods By Sea Act, 46 U.S.C. § 1303).
All references to witnesses and pages, unless otherwise indicated, are taken from the official transcript of testimony of the S.S. Janet Quinn-M/T Forest Lake (1964, Folio) collision litigation which took place in the High Court of Justice, Admiralty Division, in the Royal Courts of Justice, United Kingdom. That trial took place on December 14, 1965, et seq., before Mr. Justice Hewson and Trinity Masters Captains Dunn and D.A.G. Dickens, subsequent to which an opinion and judgment was entered by Mr. Justice Darminski dated January 16, 1967. The parties by stipulation (Ex. 1A) agreed that all the testimony given at the English collision trial be admitted in this court for all purposes.
After hearing the testimony of the parties, examining the exhibits, pleadings and Proposed Findings of Fact and Conclusions of Law and post-trial memoranda submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. The court has jurisdiction over the subject matter and of the parties.
2. On June 5, 1963, the defendant Janet Quinn Corporation chartered the S.S. Janet Quinn under a contract of Charter Party (Ex. 1) with plaintiff, India, as charterer, to transport a quantity of wheat in bulk from the United States Gulf to ports in India at a stipulated freight rate (Stip., p. 2, para. 5).
3. On July 21, 1963, pursuant to the terms of the aforementioned contract of charter party, the India Supply Mission delivered to the Janet Quinn Corporation and the S.S. Janet Quinn at the port of Pascagoula, Mississippi, approximately 10,174.857 long tons of wheat in apparent good order and condition for shipment to Bhavnagar, India. The India Supply Mission had purchased the wheat in question from Louis Dreyfuss Corporation, Pascagoula, Mississippi, and paid the sum of $652,886.67. Wheat certificates were issued by the Mississippi Department of Commerce Weighmaster confirming the type of grain loaded and two certificates were issued by the National Cargo Bureau confirming the quantity and type of grain loaded. At the time of delivery of said wheat, a bill of loading was issued at Pascagoula, Mississippi by Earl J. Smith & Co., Inc., as agents for the defendant, Janet Quinn Corporation, and, additionally, a mate's receipt was signed on behalf of John Holden Hamby, Master of the S.S. Janet Quinn (Stip., p. 2, para. 6).
4. After the entire quantity of cargo was loaded aboard the Janet Quinn, the vessel sailed from Pascagoula, Mississippi, bound for India. On August 23, 1963, while the Janet Quinn was in Suez Bay, in the waters of the United Arab Republic, having gone through the Suez Canal and being about to enter the Red Sea on her way to the Gulf of Aden in the Indian Ocean, the Janet Quinn came into collision with the Dutch registered vessel, Forest Lake. As a result of the collision the Janet Quinn incurred structural damage and, in addition, a portion of the India Supply Mission's cargo of wheat was lost and damaged (Stip., p. 3, paras. 7, 8).
5. Subsequent to the aforesaid collision between the S.S. Janet Quinn and Forest Lake in Suez Bay, United Arab Republic, the defendants declared a General Average situation and the firm of Frank B. Hall & Co., Inc. was appointed General Average Adjustors. The plaintiff, India Supply Mission, paid to the General Average Adjustors and the defendants the sum of $99,914.29 as cargo's contribution in General Average (Stip., p. 3, para. 9). There is no claim or any waiver by plaintiff and both plaintiff and defendants are agreed that if the defendants are held to be liable on the cargo claim this is also dispositive of the companion claim for recovery of its liquidated sum previously paid in General Average (SM 5, 51).
6. On August 23, 1963, the date of the collision, the Janet Quinn was anchored in Suez Bay at a heading of 65 DEGREES true, which heading did not vary, in anchorage 2A, with three shackles of anchor chain paid out (U.K.T.-Hamby-Exhibit 18G, p. 3; U.K.T.-Preliminary Acts-Exhibit 18A, p. 2, para. VII). In the southwest side of anchorage 1A, off the Janet Quinn's port bow, lay the Harpula, heading northeast. The Harpula's starboard quarter was a cable length away from the Janet Quinn's bow (U.K. T.-Hamby-Exhibit 18G, p. 4).
7. At 1555 hours on August 23, 1963, the Forest Lake was abeam of the New Port Light and was on a heading of 322 DEGREES. The Forest Lake was heading to go to an anchorage No. 3A north of the Janet Quinn and was attempting to get there by passing through the gap that existed between the anchored Janet Quinn and the anchored Harpula (U.K.T.-Ru-Exhibit 18F, pp. 17-19).
8. On the date of the collision the chart aboard the Janet Quinn was out of date (Exhibit 7). In 1960 Green Island Light had been moved southward by the United Arab Republic Canal Authorities (Exhibit 20, SM pp. 32-33). A "Notice to Mariners" that Green Island Light had been moved was issued April 1, 1960 (Exhibit 20). The chart aboard the Janet Quinn was corrected and up to date as of January 23, 1960 (Exhibit 7). The Janet Quinn did not have the "Notice to Mariners" dated April 1, 1960 aboard ship at the time of the collision (SM 34). Captain Hamby attempted to obtain an up-to-date chart prior to commencing the voyage. However, he was unable to do so. Thus, Captain Hamby thought that the chart aboard the Janet Quinn at the date of the collision was up to date (U.K.T.-Hamby-Exhibit 18G, p. 4).
9. The Chief Officer aboard the Janet Quinn was William Harrison Ball who was familiar with the Suez Bay area and knew that Green Island Light had been moved in 1960 approximately 235 yards south (U.K.T.-Ball-Exhibit 18C, pp. 6-7).
10. The fact that Green Island Light had been moved created a variance in the Janet Quinn's charted position when anchored of 6/10 of a cable to the south (U.K.T.-Hamby-Exhibit 18G, p. 21).
11. Captain Hamby's estimate of the distance between his vessel, the Janet Quinn, and the Harpula was visual and was not based on an examination of the ship's chart. Captain Hamby was informed by the pilot that he (the pilot) placed the tanker Harpula in anchorage 1A. The pilot told Captain Hamby that the Harpula was outside anchorage 1A but that her anchor was within anchorage area 1A (U.K.T.-Hamby-Exhibit 18G, pp. 22-23).
12. Pilot Awad Daadour boarded the Janet Quinn at 3:36 P.M. (Ex. 3A, August 23, 1963) and informed Captain Hamby that the Janet Quinn would not get under way until the Forest Lake cleared the channel (U.K.T.-Hamby-Exhibit 18G, pp. 4-5).
13. I FIND THAT THE CAUSES OF THE COLLISION BETWEEN THE JANET QUINN AND THE FOREST LAKE WERE AS FOLLOWS:
The Janet Quinn getting under way when she did.
Pilot Daadour and Captain Hamby watched the Forest Lake come up the channel. The pilot informed Captain Hamby that the Forest Lake was clear of the channel and changing her course. Pilot Daadour instructed heaving up the anchor. Captain Hamby complied although the Forest Lake was heading for the Janet Quinn's bridge. Captain Hamby asked the pilot to confirm the fact that the Forest Lake would pass around the Janet Quinn's stern in proceeding to its anchorage. The pilot gave this confirmation (U.K.T.-Hamby-Exhibit 18G, pp. 4-6, 27, 29, 30). In order to prevent the collision the Janet Quinn should not have gotten under way when she did (U.K.T.-Hamby-Exhibit 18G, p. 31; U.K.T.-Judgment-Exhibit 18B, p. 10; Captain Seeth SM 18).
I find that Captain Hamby ordered the Janet Quinn under way relying on information he had received from Pilot Daadour. Captain Hamby believed that the compulsory pilot aboard the Forest Lake had received instructions to pass astern of the Janet Quinn. Pilot Daadour had so informed Captain Hamby of this. I find that without this information from Pilot Daadour, Captain Hamby would not have gotten under way since he did not have personal knowledge whether or not the Forest Lake would pass ahead or astern of the Janet Quinn (U.K.T.-Hamby-Exhibit 18G, pp. 30-31).
I find that there was ample room for the Forest Lake to pass between the Janet Quinn and the Harpula provided that they remained at anchor. The exact distance between the Janet Quinn and the Harpula is uncertain. According to Captain Hamby the Janet Quinn was about 608 to 1,000 feet away from the Harpula (U.K.T.-Hamby-Exhibit 18F, pp. 4-5). According to Chief Officer Ball the distance between the two ships was about 1,000 feet (U.K.T.-Ball-Exhibit 18C, p. 2). The Chief Officer of the Harpula estimated that the distance between his ship and the Janet Quinn was half a mile (U.K.T.-Judgment-Exhibit 18B, p. 7). The English court concluded, and I concur, that the distance between the two ships was between half and a quarter of a mile, but in any case no less than a quarter of a mile (U.K.T.-Judgment-Exhibit 18B, p. 7).
The Janet Quinn failed to haul down its anchor ball after the ship had gotten under way (U.K.T.-Judgment-Exhibit 18B, p. 12; U.K.T.-Ru-Exhibit 18F, pp. 18-19).
The anchor ball remaining up indicated to the captain of the Forest Lake that the Janet Quinn was still stationary and that the Forest Lake could continue to proceed to pass between the Janet Quinn and the Harpula (U.K.T.-Ru-Exhibit 18F, pp. 18-19).
The Janet Quinn violated Rule 19 of the International Rules of the Road.
"When two power driven vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other."
(International-Inland Rules of the Road, United States Coast Guard, September 1, 1965; Rules of the Nautical Road by Farwell, ...