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July 27, 1973

In the Matter of GRACE LINE, INC., Plaintiff, as Owner of the STEAMSHIP SANTA LEONOR, For Exoneration From or Limitation of Liability

Griesa, District Judge.

The opinion of the court was delivered by: GRIESA

GRIESA, District Judge.

Grace Line Inc., as owner of the Steamship SANTA LEONOR filed on April 25, 1968, a petition for exoneration from or limitation of liability. The petition relates to the stranding and total loss of the SANTA LEONOR on March 31, 1968 in the Patagonian Channels, an inland waterway on the coast of Chile, north of the Straits of Magellan. The SANTA LEONOR was on a voyage from Rio de Janeiro to San Francisco with intermediate calls at various ports. Her last port of call prior to the accident was Buenos Aires, and her next stop was scheduled to be Valparaiso, Chile.

 The petition alleges that at the time of the stranding the SANTA LEONOR had on board 50 crew members and 7 passengers, all of whom were rescued. The SANTA LEONOR had a quantity of general cargo on board. The ship and the cargo are a total loss.

 Over $2 million in claims for lost cargo have been made against Grace Line. There are also claims by passengers and crew for personal injuries.

 The petition alleges that, following the stranding, the value of Grace Line's interest in the SANTA LEONOR was her pending freight and passenger revenue, in the amount of $173,903.

 By the time of the trial, commencing June 18, 1973, all but three personal injury claims had been settled. The total of these three claims is less than the available limitation fund. Grace Line has admitted liability as to these three claims. It has been agreed that the trial of damages on these personal injury claims is deferred until a later time.

 The trial which has been held has dealt with the issue of liability as to the cargo claims. Grace Line claims complete exoneration, and in the alternative, limitation of its liability to the amount of $173,903 plus interest.

 The Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq., applies, since most of the SANTA LEONOR's cargo was destined to ports in the United States. Also, all of the bills of lading made COGSA applicable.

 In its claim for exoneration Grace Line seeks the benefit of Section 4(2)(a) of the Act, 46 U.S.C. § 1304(2)(a), which provides that neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from "Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship."

 Admittedly Grace Line has the burden of proof of showing it is entitled to this exception from liability. Director General v. S. S. MARU, 459 F.2d 1370, 1372 (2d Cir. 1972). Grace Line asserts it has sustained this burden of proof. Cargo claimants assert the contrary. Cargo claimants contend that the cause of the stranding was either the unseaworthiness of the vessel or was an unknown cause. According to cargo claimants, under either alternative, Grace Line has failed to prove that the accident was caused by an error of navigation.

 Error of Navigation

 The master of the SANTA LEONOR, Donald F. Johnson, was 59 years of age at the time of the incident. He commenced going to sea in 1926. He received his Coast Guard master's license in 1948 and had actually sailed as a master of vessels since about 1952. He had sailed through the Patagonian Channels and the Straits of Magellan three times before.

 At 9:35 A.M., March 30th, the vessel picked up a Chilean pilot in Possession Bay off Punta Delgada, a port at the east entrance to the Straits of Magellan. The pilot was Ernesto Ruiz Munos (hereafter "Ruiz"). Ruiz was 57 years old. He had been at sea since 1929. He had received his master's license in the Chilean Merchant Marine in 1941 and had received a license as a Chilean channel pilot in 1964. He had made about 180 voyages through the Patagonian Channels as a master of merchant vessels and had made about 50 voyages through the Patagonian Channels as pilot.

 A few minutes after the boarding by the pilot, the SANTA LEONOR got under way and proceeded into the Straits of Magellan. During the next 16 hours before the stranding, Captain Johnson and Pilot Ruiz spelled each other in navigating the vessel.

 The pilot navigated from the time he boarded at 9:35 A.M. in Possession Bay until 12:30 P.M., when he was relieved by the captain at a point 5 miles below Cape Vincent in the Straits of Magellan. This first section when the pilot was on duty covered narrow, shallow channels called First Narrows and Second Narrows.

 The captain navigated the vessel from 12:30 P.M. until 6:00 or 6:30 P.M., when he was relieved by the pilot at a point off Cape Coventry in the Straits. This area navigated by the captain consisted generally of relatively wide and deep channels called Broad Reach, Famine Reach and Froward Reach.

 The pilot navigated from 6:00 or 6:30 P.M. until he was relieved by the captain at 9:30 P.M. off Radford Light in the Straits. This area covered by the pilot consisted of narrow channels called English Reach and Crooked Reach.

 The captain navigated the vessel from 9:30 P.M. to 12:30 A.M. the next morning (March 31), when he was relieved by the pilot at a point roughly approximating the entrance into the Patagonian Channels. The area which the captain had covered consisted of progressively widening and deep channels.

 The pilot navigated the vessel from 12:30 A.M. to the time it ran aground at 1:52 A.M. The grounding occurred on rocks off Isabel Island, approximately 20 miles into the Patagonian Channels, in an area called Paso Shoal. Due to the breaking of the rocks on which the vessel grounded, or for some other reason, the vessel slid back into the channel and floated down a short distance, where it finally came to rest off one of a small group of islands called the Adelaide Islands. A substantial part of the vessel is submerged, and neither the vessel nor the cargo has been able to be salvaged.

 During the approximately 16 1/2 hours that Pilot Ruiz was on board the SANTA LEONOR he was navigating the vessel for a total of about 7 1/2 hours, with the captain relieving him for a total of about 9 hours. The testimony of the pilot is that during his off time he was resting and sleeping in his special cabin. According to his testimony he felt well when he was on the bridge at the time of the grounding. *fn1"

 Throughout the passage through the Straits of Magellan and into the Patagonian Channels, to and including the time of the grounding, the vessel was going full speed, approximately 16-17 knots. Although it had been raining on and off commencing during the late afternoon of March 30, it was not raining at the time of the grounding. Visibility was good. There was a wind from the north-northwest of about 15-25 knots and a current from the north of 1-2 knots.

 During the period from 12:30 A.M. to the time of the grounding (1:52 A.M.), Pilot Ruiz was in the wheelhouse in charge of navigation. Also in the wheelhouse were the third mate, Dunham, and the helmsman, D'Acquisto. During this time the master was in the chart room immediately behind the wheelhouse.

 As indicated above, the question is whether Grace Line has sustained its burden of proving that the grounding was caused by an "act, neglect, or default" of the ship's personnel "in the navigation or in the management of the ship." There has been extensive evidence, briefing and argument on this issue, and the parties are in vehement disagreement on the conclusion to be reached.

 The salient fact is that the vessel sailed off its proper path in the channel between two islands, Richards Island and Isabel Island, and struck the rocks off Isabel Island. This channel, between the outlying rocks of the two islands, has a width of 4/10 of a mile, or 800 yards, or 2400 feet. The channel width is about five times the length of the SANTA LEONOR.

 In my view this circumstance of the vessel going off its course and grounding is in itself substantial evidence of navigational error, unless some other less likely cause appears.

 Although the cargo claimants do not have the burden of proof on this issue, they have argued that there is evidence of the accident being caused by steering system failure, rather than navigational error. In order to deal with this point, as well as with other questions relating to the cause of the accident, it is necessary to describe the testimony in some detail. A map showing the area of the Patagonian Channels known as Paso Shoal, the area where the grounding occurred, is appended to this opinion.

 The evidence shows that the vessel entered Paso Shoal at about 1:40 A.M. The entrance is marked by Point Buckley Light. At this point it was necessary to make a turn to the left of about 90 degrees. The ship then proceeded a short distance, and then made a right turn around Shoal Island of about 90 degrees. After completing this turn the ship proceeded another short distance with Richards Island on the left and the Adelaide Islands on the right. When the ship had Point George Light on Richards Island on its left, it was required to make a left turn of about 110 degrees to carry it through the channel lying between Richards Island on the left and Simpson Island and Isabel Island on the right. These maneuvers were carried out properly until the turn around Point George Light. The grounding occurred because the vessel failed to make the latter left turn properly and went aground on the rocks off Isabel Island.

 None of the eyewitnesses testified at the trial. All parties relied upon prior recorded statements and testimony. These statements and testimony were taken (1) before the Chilean maritime investigating authorities in April and May 1968; (2) in a United States Coast Guard investigation during April-June 1968; and (3) in pre-trial depositions taken in this case.

 Pilot Ruiz testified to a Commissioner of the Department of Littoral and Merchant Marine of Chile on April 4, 1968. Ruiz stated that shortly before the ship was abeam of Point George Light, he started the left turn with 15 degrees port rudder, and then almost immediately gave a command for hard port rudder because the turn was taking place too slowly. He testified that even after giving hard port rudder, the proper turn was delayed, but then the vessel started to fall to port slowly. He kept the rudder fully hard to port. But a few seconds later the ship ran aground. Later Ruiz stated:

"I might state that during navigation up to El Paso Shoal the steering conditions were good except at the moment of the final falling off, which was abnormally slow and held up the said falling off a few instants before continuing falling off slowly, not being in accord with the speed of falling-off which the vessel should have had with the rudder hard to port and with the normal cruising speed which her engine was supplying."

 The Commissioner suggested possible failure of the steering system and Ruiz agreed.

"COMMISSIONER: To what do you attribute the slowness in falling off to port of the ship? Might it be something wrong in the steering system?
"DECLARANT: I attribute it to many reasons, namely the failure in the steering system and a strong current towards the south aided by the wind which was striking it on the port side. The steering system of the vessel is combined hydraulic and electric and the failure might have been in either of the two systems."

 Captain Johnson, who had been the first witness in the Chilean proceedings on April 3, reappeared on April 8. He stated that, although he could hear the orders which the pilot gave to the helmsman and the confirmation of the orders which the helmsman called back to the pilot, he "cannot state what they were because I was busy with the charts." He stated that he could not be certain of the rudder degrees but that he had the "impression that the pilot ordered 15 degrees rudder and subsequently ordered more to port, at all times falling off to port." He did not know actually whether the rudder ever reached hard to port. He did not immediately go on the bridge as he would have done if he "had heard an order for hard to port or starboard."

 In the meantime, certain vessel personnel were testifying to a Chilean District Attorney. On April 4, 1968 Third Mate Dunham testified. It should be recalled that Dunham was in the wheelhouse at the time of the grounding. He was responsible for assisting the pilot and for, among other things, seeing that the helmsman carried out the pilot's orders.

 Dunham's version basically corroborated Ruiz's testimony to the Commissioner of the same date. Dunham testified that shortly before the accident the pilot ordered 15 degrees port rudder, and since the turn was taking place too gradually, the pilot ordered hard port rudder. Dunham stated that at the time of the grounding the rudder angle indicator showed full port rudder.

 On April 4, 1968 the helmsman, D'Acquisto, testified before the District Attorney, and sharply contradicted the pilot and the third mate. D'Acquisto was asked what order he had received from the pilot during the last steering maneuver. D'Acquisto answered that the order he received from the pilot was rudder 10 degrees to port. According to this testimony, he kept the rudder 10 degrees to port for two or three minutes and then received the order from the pilot for rudder amidship. He was asked whether at any time immediately prior to the grounding he had received an order from the pilot for full port rudder, and answered that he received no such order. He testified that at the time of the grounding the rudder was in the amidship position. D'Acquisto testified that the pilot's orders were in perfectly understandable English, which D'Acquisto repeated in English. He further testified that the ship appeared to be responding normally to the steering.

 To summarize the conflict in the testimony thus far given in the Chilean proceedings -- the version of the pilot and the third mate was that the pilot had ordered 15 degrees port rudder, and then hard port rudder in an attempt to correct too slow a turn. The helmsman's version was that the pilot started with an order of 10 degrees port, followed by an order for rudder amidship, and that at the time of the grounding the rudder was amidship. According to the helmsman, no order for full port rudder was received. The testimony of the master, up to this point, was basically that he had no actual memory of the rudder commands; but he doubted that there was ever a hard port rudder command, since that would have caused him to go to the bridge immediately, which he did not do.

 At this point in the Chilean investigation, the District Attorney recalled as a witness Third Mate Dunham to inquire about the above conflicting versions. This testimony was on April 6. The District Attorney asked Dunham whether he heard clearly the order given by the pilot for hard port rudder. Dunham then shifted from testifying about hard port rudder, to describing the command as " more rudder to port."

"Yes, sir. I saw on the helm indicator that the rudder was about 15 degrees port and immediately afterwards he ordered the rudder further to port and then insisted on 'More Rudder to Port', 'More Rudder to Port'."

 As to the position of the rudder angle indicator, Dunham testified that it was "towards port when the collision occurred, but I do not know whether it was hard down to port." Dunham was asked whether he kept the rudder angle indicator under constant observation. Dunham stated that he "did not have my eye fixed on the indicator, but when I did look at it, it was always to port." Finally, the District Attorney asked whether at this time Dunham ever heard the pilot order rudder amidship. Dunham answered that at no time did he hear this order but he did hear the pilot order "more to port, more to port."

 Ruiz testified to the District Attorney on April 8, and abandoned his earlier statement about hard port rudder.

"The only thing that I remember is that I insisted in giving orders of More Rudder to Port, but I was unable to verify whether this was fully hard down, this being due to the fact that I was at the starboard wing of the bridge in order to have better visibility, and my orders were re-transmitted by the officer on watch."

 He was asked whether he ever gave the order rudder amidship after Point George Light had been cleared. His answer was:

"No, sir, because I ordered at all times and insisted in ordering more rudder to port."

 But Ruiz admitted the possibility of the helmsman placing the rudder amidship due to misinterpretation of the orders.

"DISTRICT ATTORNEY: Do you believe that the Helmsman may at any time have placed the rudder amidships due to misinterpretation of your orders?
"DECLARANT: That possibility exists due to the slowness that the vessel had at one time in falling to port, for which reason I insisted in giving more rudder to port on the assumption that it had a minimum of 15 degrees in accordance with the previous order."

 Ruiz presented a further modified version of the events in a statement he made April 10, 1968 to the Director of Littoral and Merchant Marine of Chile. He stated in this report that when he was off Point George Light, he ordered 15 degrees port rudder and then 10 degrees rudder:

"When the vessel arrived at about 45 degrees to port of the George Light, on Richards Island, I ordered fall to port with 15 degrees rudder first of all, and then with 10 degrees rudder, in order to clear George Light at a distance of one length to one and a half cable length. This maneuver was completed correctly and the vessel responded well. I suddenly observed that the falling to port had stopped and I then ordered more port rudder. The vessel again started to fall away but a few seconds later it violently hit bottom on the starboard side."

 At some time before April 29, 1968 the Chilean Commissioner of Littoral and Merchant Marine made findings regarding the cause of the accident. *fn2" The Commissioner found that Pilot Ruiz was responsible for the accident because he failed to reduce speed in the relatively narrow pass with successive pronounced turns. The Commissioner also found that Captain Johnson had a "moral responsibility" because he did not work with the pilot and remained absent from the bridge. Finally, the Commissioner held that Helmsman D'Acquisto deserved a "drastic punishment" for his refusal to reappear, as requested, in order to clarify his testimony.

 On April 29, 1968 the Maritime Governor of Punta Arenas forwarded the Commissioner's findings to the Director of Littoral and Merchant Marine, with approval, except that the Maritime Governor recommended that Helmsman D'Acquisto be subjected to further interrogation.

 On May 13, 1968 Pilot Ruiz furnished a statement to the Director of Littoral and Merchant Marine, claiming error in the findings of the Commissioner. With regard to the speed, the pilot stated that the speed of 16 knots which was being used was necessary in order to maintain maneuverability.

 Perhaps of greater importance for our present purposes is the fact that the statement of May 13 effectively negates the pilot's earlier theory of steering mechanism failure. It will be recalled that when the pilot first testified on April 4, he suggested that one of the causes of the accident may have been a failure in the steering system. In his May 13 statement he made no mention of any claim of steering failure. He stated that his order of more port rudder was made solely to compensate for the fact that the vessel was under the effects of the current and the wind. He concluded as follows:

". . . I believe that from what has been stated above, only one conclusion can be reached, namely that I exhausted all measures within my power to avoid the collision and that if the collision finally occurred, this was due to an act of God, consisting mainly of elements of nature, wind and current, and that if under these circumstances of correct performance of my obligations, the accident nevertheless occurred, there was absolutely no type of responsibility whatsoever on my part."

 It is safe to say that if Ruiz had actually believed that there had been failure of the steering system, he would have mentioned it in this May 13 statement.

 In May 1968 (the record here does not show the precise date) Captain Johnson also made a statement objecting to the finding of fault against him. As to the charge of "lack of cooperation" with the pilot, Captain Johnson said that he was prepared to assist the pilot at all times, and at the time of the accident, was in the chart room studying the charts for the next stage of navigation. The important part of Captain Johnson's May 1968 statement for our purposes relates to the steering mechanism. Captain Johnson stated that the navigating equipment and the steering mechanism of the SANTA LEONOR operated properly at all times up to and including the accident. He specifically stated that after the accident, the steering system was tested and found to be operating correctly. He concluded that the accident resulted from an Act of God:

"What explanation can then be given for the accident? It can only be said in some imponderable manner, due to the small forward draft and due to the force of the current and the wind, the "SANTA LEONOR" after having emerged from the lee of Richards Island, shifted to ...

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