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August 29, 1973

OSWEGO SHIPPING CORPORATION, Defendant and Third-Party Plaintiff, v. BANCO do BRASIL, Third-Party Defendant

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Plaintiff, Venore Transportation Company, owner pro hac vice of the S.S. Santore seeks recovery of damages sustained by her while under time charter to the defendant, Oswego Shipping Corporation, during the discharge of a cargo of grain at Bahia, Salvador, Brazil. The claim is based upon Oswego's alleged breach of the safe berth clause contained in the charter party. *fn1" At the time of the occurrence the vessel was under a voyage charter from Oswego to Banco do Brasil. In turn, Oswego, as third-party plaintiff, asserts a claim against Banco do Brasil, as voyage charterer, alleging a breach of the safe berth clause in their charter which provided for a voyage from a United States port, with a full cargo of wheat in bulk to Salvador, Recife and Fortaleza in Brazil, with a safe berth at each port. The bill of lading covering the cargo of wheat was endorsed to Moinha da Bahia, S.A. and Bahia Industrial S.A. (hereinafter referred to as "Receivers").

 Pursuant to the aforesaid time and voyage charters the Santore sailed from Galveston, Texas, on or about April 24, 1964 with a cargo of wheat bound for Salvador, Brazil, the first discharging port, there to be delivered to the Receivers. The vessel arrived at the port of Salvador in the early evening of May 8, 1964. She was to dock at a pier known as the "Coal Wharf" where the Receivers maintained equipment for the discharge of grain by pneumatic means, but the Santore was directed to an anchorage outside the breakwater because another vessel then at the Coal Wharf had not completed discharging operations. The Santore remained at the anchorage from May 8th until May 10th waiting for the prior vessel to leave the Coal Wharf.

 Captain Long, Oswego's port captain, had arrived in Salvadore two or three days before the Santore to expedite her discharge and he discussed the docking arrangements with Cory Brothers, Oswego's agents there. Long also discussed with the Receivers the Coal Wharf designated for Santore's discharge. He was particularly concerned with the functioning of the Receivers' pneumatic discharging equipment and arranged for a special reducing fitting for the discharging system to assure the expeditious discharge of Santore's cargo. He also examined the Coal Wharf, a long concrete pier, and found it satisfactory in all respects. While there he had observed that two pontoons were in use by the discharging vessel and was told that this was to keep the ship about twenty feet off in sufficient depth of water. The depth at the quay at the Coal Wharf was twenty-six feet and vessels of deeper draft could be berthed by being breasted out by pontoons. A pontoon consisted of two steel cylindrical tanks or caissons covered by a wooden housing forming a somewhat square platform about twenty-four feet on a side and four and one-half feet to five feet high. The pontoon, in effect, acted as a buffer between the quay and the vessels. *fn2" While the Santore was at the anchorage from May 8th to May 10th, Captain Long came aboard and conferred with Captain Edelheit, the Santore's Master, concerning the discharging berth. He advised the Master that two pontoons would be used in the berth to keep the vessel off the quay and in sufficiently deep water. Neither Captain Long nor Captain Edelheit had ever been in Salvador before.

 On May 10th, Captain Long boarded the vessel and informed Captain Edelheit that the designated berth would be free and at about 1:00 p.m. the Santore proceeded to the Coal Wharf. As the vessel approached the vacated berth, it was noticed that only one pontoon was in place instead of two. After talking by megaphone with the shore, the pilot reported that one pontoon had been damaged by the vessel previously in the berth and that it had been towed away for repair. The Master was given to understand by Long and the pilot that the repaired pontoon would be returned in a matter of hours; additionally, the pilot assured the Master it would be "all right" to moor with one pontoon.

 The Master, who had no prior experience with pontoons, decided to dock using the one pontoon, and with the assistance of the pilot and two tugs the ship was safely docked by 3:25 p.m. with the pontoon placed amidship about twenty feet away from the dock. The weather then was clear and mild; however, the log entry at 4:00 p.m. reads: "[Mooring] lines have to be continuously tended trying to keep the bow and the stern at an even distance from the dock. One pontoon fender acts as a pivot which is aggravated by the heavy swell and surging of the vessel."

 Captain Long, after observing that the discharge equipment was working well, went ashore inviting the Master to join him at his hotel that evening. Shortly after 6:00 p.m., Captain Edelheit went ashore and visited with Long. When the Master left the vessel, things were proceeding smoothly; there were on duty a mate and a quartermaster on deck; and an engineer, fireman and an oiler in the engine room. The remainder of the crew and officers had permission to go ashore and most of them did so. While Captain Edelheit was ashore the weather changed; he returned to the Santore about 10:30 p.m. There was some wind in brief squalls and intermittent rain; thereafter there was torrential rain, thunderstorms and squalls, the force of which was not recorded except by log entry. The mate reported that they had a hard time with the pontoon; the ship was "working" and the pontoon was acting as a pivot. The Master directed that in the event anything went wrong he be notified immediately and then went to his cabin where he lay down in his shore clothes. After midnight, the ship was rolling and commenced surging more than usual. At 12:20 a.m., the chief engineer made an entry in the engine log: "At Grain Dock -- Ship Slamming Dock, Steam on Engines at 12:20, Ready to Maneuver." At about 1:20 a.m., while the Master was in his cabin, the ship took a sharp roll of about twenty to twenty-five degrees. The mate then reported that the wooden housing of the pontoon had been smashed and shortly thereafter that the two metal caissons had been crushed together and the entire pontoon completely destroyed. At or about this time the discharging of cargo was halted. The Master determined an emergency existed, that there was risk of the vessel being smashed and ordered the engines ready for departure. He went ashore to get a pilot and tug boats to take the vessel out of the harbor. He encountered considerable difficulty in his mission because he could not speak Portuguese and could not find anyone on the dock who spoke English. The Master, after some telephonic difficulty, finally reached the duty officer of Cory Brothers who stated that he would attempt to get a pilot and tugs. He was advised that no tug would be available before 6:00 a.m. but an effort would be made to get a pilot. A pilot boarded the Santore at 3:10 a.m. At 3:45 a.m. the ship commenced heaving the port anchor and at 3:52 a.m. all lines were aboard and the ship was clear of the dock. By this time, the ship had been damaged by two incidents due to the absence of a pontoon and heavy ground swells: (1) the bow was sharply dented when the ship forcefully struck the concrete quay, and (2) several of the hull plates were pushed in when the ship pounded against the pontoon before its complete destruction. When the vessel cleared the dock the wind was from the south east, coming over the sheds and blowing her off the dock.

 The ship had no difficulty in leaving the berth and returned to her former anchorage where she remained until May 13th. While at anchorage during this period, the Master refused to go back to another pier without assurance of proper protection. He finally agreed only after representatives of Oswego, the time charterer, Banco do Brasil, the voyage charterer and the Receivers of the cargo, assured him that two or three pontoons and other safeguards would be provided. He then docked at a different pier where three pontoons were supplied, one of which was placed forward, the other amidship and the third aft, and thereupon the discharging of the balance of the wheat cargo was commenced and completed without incident on May 27th.

 Against this background of facts, the issue is whether Oswego, the time charterer, breached its warranty to supply a safe berth and if it did, whether it is liable for the resulting damage. The record compels the conclusion that the Coal Wharf was not a safe berth for the Santore and that the warranty was breached. That the vessel was initially docked with only one pontoon and without immediate mishap does not necessarily mean that the pier was a safe berth -- one that fulfilled Oswego's obligation under the safe berth clause of the time charter. Clause No. 6 thereof provided that cargos be "discharged on any dock or at any wharf or place that charterers or their agents may direct, provided the vessel can safely lie always afloat at any time of tide . . ." -- a warranty that continued from time of arrival until departure. *fn3" The wharf with a single pontoon was not a place where the vessel could "safely lie always afloat at any time of tide." The evidence abundantly establishes that one pontoon was insufficient to keep the vessel off the quay under variable conditions reasonably to be anticipated. There was no certainty how long good weather would last. *fn4" Substantial ground swells of considerable force were a foreseeable occurrence to those familiar with the port. That more than one pontoon was required to make the pier a safe berth also appears from the testimony of da Silva, the port pilot, that all ships with a thirty-foot draft discharging wheat generally used pontoons to keep them from the quay. Since Oswego breached its warranty to provide a safe berth it is accountable to plaintiff for the resulting damages.

 Plaintiff's recovery, however, may be lessened if the Master's actions after the Santore was docked were intervening acts of negligence wholly or partially causing the damages sustained by the vessel. *fn5" The burden on this issue is upon Oswego. *fn6" It contends that the Master of the Santore was negligent in various respects and that in any event the damages should be divided equally. Banco do Brasil in resisting Oswego's cross claim makes similar charges which in some respects, but not all, parallel those made by Oswego and so these contentions may be considered together. Banco do Brasil relies upon the testimony of an expert witness to support its plea for exoneration from liability. In general, the contentions are that Captain Edelheit did not act as a reasonably prudent master or exercise good seamanship in that (1) he should have recognized the situation as unsafe when on approaching the Coal Wharf he ascertained that one of the two pontoons had been damaged by the prior vessel and taken away for repairs; (2) he should have taken the vessel back to the anchorage until the damaged pontoon had been repaired and replaced or another substituted; (3) he should have issued an ultimatum to the agent and port authorities that if a second pontoon were not supplied within one-half hour to an hour he would leave the berth; (4) he should not have gone ashore prior to the replacement of the missing pontoon nor relieved most of his crew; (5) he should have maintained his engines in constant readiness for departure; (6) he should have arranged for prompt availability of pilot and tug service and immediately upon his return to the vessel, in view of the then existing conditions, have contacted them forthwith; (7) he should have, in view of the deteriorating weather conditions taken departure from the Coal Wharf with or without a pilot or tug assistance especially after the ship experienced the roll of twenty to twenty-five degrees; and (8) he should have employed a bilingual gangway watchman who spoke the local language or, if one were not available, have sounded the alarm signal and called for pilot and tug assistance.

 The cataloging of what the Master "should or should not" have done reflects a prime instance of Monday morning quarterbacking. Banco do Brasil's expert witness had never been in the Salvador port. His judgment in some respects is not only self-contradictory but is challenged by the contrary views of Captain Long and the port pilot who were on the scene, participated in events and were familiar with current local conditions. Thus, both Captain Long and the pilot agreed that under the prevailing conditions it was safe for Captain Edelheit to accept the berth with the one pontoon. *fn7" In this instance, the expert conceded he, too, would have docked under the existing conditions. Moreover, Captain Edelheit was led to believe by Captain Long and by the pilot that a second pontoon would be supplied in a matter of hours; additionally, he was assured by the pilot that it would be "all right" to berth the vessel with the one pontoon pending the delivery of the second. *fn8" Captain Edelheit, unfamiliar with conditions at the port, was entitled to rely on these assurances. *fn9" He was unaware that variable conditions at the Salvador port could thereafter make the use of one pontoon hazardous and render the wharf unsafe. Moreover, even had no assurances been given, the charter party was itself an express assurance that the berth was safe, upon which the Master had a right to rely. *fn10" Under all the circumstances, the Santore's Master was justified in docking at the Coal Wharf even though only one pontoon was then supplied.

 As to the contentions that Captain Edelheit should not have gone ashore or relieved most of his crew and should have maintained his engines in readiness, Captain Long testified that he did not think it unusual that the Master left the vessel to go ashore when he did since everything was then moving along smoothly. Long and the pilot were of the view that, considering the anticipated delivery of the second pontoon, there was no reason for concern about the ship's safety when Captain Edelheit went ashore. The Master testified that he did not consider an emergency existed until the steel caissons of the pontoon had been destroyed, which occurred at approximately 1:20 a.m., a judgment for which under all the circumstances he cannot be faulted. *fn11" He was then confronted with an unanticipated situation and acted with due diligence. He was of the view that although Salvador was not a compulsory pilot port, under the worsening weather and sea conditions with a Brazilian naval vessel directly astern of the Santore and his general unfamiliarity with the port, he would risk not only greater damage to the vessel but even the loss of lives were he to take the vessel out without the aid of a pilot. *fn12" Again, only a wisdom born of hindsight would attribute fault to the Master in waiting for a pilot familiar with the harbor. Here, it is not without interest that da Silva, the experienced port pilot, testified that when conditions are dangerous a captain always calls for a pilot. Taking into account the extreme weather and sea conditions and the Master's lack of familiarity with the port, the prospect was real that had he undertaken to leave the quay without the aid of a port pilot or tugs, if available, it could have presented a risk of even greater damage than that sustained by the vessel. That it now appears alternative procedures (i.e., leaving the berth without a pilot) might have been a safe course does not establish that the Master's actions taken as events unfolded were unreasonable. *fn13" As to the claim that the Master should have employed a bilingual watchman while at the port, the defendants have failed to establish that such a general practice existed when in foreign ports. To the contrary, the third-party defendants' expert's opinion on this claim is negated by the testimony of Captain Long, the defendants' witness.

 As to the Master's failure to blow the whistle signal for a pilot, he testified he never was informed of such a signal and that his practice was to call his agent to secure a pilot. The expert witness testified that the signal can be found in the sailing directions for the particular port; however, the sailing directions received in evidence *fn14" do not contain such information. Moreover, as already noted, Captain Edelheit, upon deciding an emergency situation existed, immediately contacted Cory Brothers for pilot and tug assistance. A pilot was obtained by Cory Brothers who sent for him by car during a raging storm, and he was brought from his home to the dock where after some delay and difficulty he boarded the vessel. It is questionable that had a signal been sounded for the pilot that he would have arrived and boarded the vessel any earlier than he did.

 Under all the circumstances, it has not been established that the Master was negligent or imprudent in his course of action or that his conduct was an intervening cause of the damage. Accordingly, plaintiff is entitled to recover the cost of repairs and losses due to the detention of the ...

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