The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
In the early morning hours of December 11, 1971, the SS WESTERN COMET ("the tanker"), on charter to the Military Sea Lift Command, Department of the Navy, was berthed alongside a NATO terminal at Sari Saki, Turkey, discharging fuel oil, when strong winds started blowing. Chief Mate George Perry, observing that a mooring line had parted, went to the forecastle to adjust the lines and sustained severe brain injuries
when he was struck on the head by a parting line.
Perry brought an action against plaintiff Western Tankers Corporation, in the Superior Court of California, alleging negligence under the Jones Act and unseaworthiness. Plaintiff settled Perry's action and brought this third-party action against the United States, as charterer of the tanker, alleging breach of the "safe berth" clause of the charter party and seeking full indemnity for the amount paid in settlement of Perry's claim and the expenses incurred in that action.
The "safe berth" clause of the charter party provides, in pertinent part:
"The Vessel shall load and discharge at a safe place or wharf designated by the Charterer to which she can proceed, lie at, and depart from always safely afloat."
This action was tried by the court, without a jury. Plaintiff claims that the United States breached the safe berth clause because the designated berth was too short to accommodate the entire vessel and also because a lead line could not be tied from the bow to the pier because the pier had no forward bollard.
Relying on Venore Transp. Co. v. Oswego Shipping Corp., 498 F.2d 469 (2d Cir. 1974), plaintiff first contends that it is entitled to full indemnity for damages arising from the charterer's breach of the safe berth warranty because the master of the tanker, Captain Davis, had no prior knowledge that the berth was unsafe, nor did he hinder, hamper, mislead or prevent the charterer from performing its obligation to furnish a safe berth.
Defendant contends that it is not liable for indemnity because Perry's injuries were not caused by an unsafe berth but solely by the intervening negligence of plaintiff's vessel. Plaintiff counters that the negligence of the vessel, if any, is immaterial because the accident would have happened any way due to the unsafe berth.
We turn now to a consideration of the evidence in light of the parties' contentions.
It is undisputed that on December 9, 1971, when the tanker moved into its designated berth, the master discovered that the pier was too short to accommodate the entire vessel because the inshore end of the berth was too shallow. In addition, there was no forward bollard on the pier, making it impossible for the crew properly to secure the vessel to the pier by tying a lead line forward from the bow of the vessel. We think there can be no question that such a berth is unsafe and that the government breached its warranty to provide a safe place or wharf where the tanker could lie "always safely afloat."
The uncontested testimony of Captain Davis is that before entering the berth he had no knowledge of its unsafe conditions and that, as soon as practicable
after discovering them, he protested orally to a naval lieutenant and to a NATO representative. Nevertheless, Davis decided to unload and ordered the crew to secure the vessel by tying seven polypropylene lines to the bollards located on each side of the tanker and by bringing short lead lines from the bow back to the bollards.
During the early morning hours of December 11, 1971, heavy winds began to blow, but with intermittent periods of calm. The tanker, continuing to unload, was rising out of the water a foot every hour as the fuel oil was discharged. Captain Davis was on deck during the first hours of the 0400 to 0800 watch and talked with Perry about the danger of the vessel's breaking away from her moorings. Nevertheless, during a calm, Davis went below to sleep, leaving Perry in charge of slacking off the lines.
Davis testified that he left a full watch of three men on deck, but the vessel's log shows that only one man was on deck. In any event, Davis admitted that even four men would not have been enough properly to slack off the seven lines under the conditions.
A log entry by second mate Grossman described the mooring lines as so taut at the time of the accident that they were almost straight up and down. Grossman also reported that before the accident he had asked Perry to order the crew to slack off the lines, but that Perry had refused. The log sheets of December 10 and 11, 1971 also show that some of the crew members ...