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February 26, 1976

S.S. COLUMBIA, her engines, boilers, etc., ORIENTAL EXPORTERS, INC., and OGDEN SEA TRANSPORT, INC., as successor to SEA TRANSPORT, INC., Defendants, and OGDEN SEA TRANSPORT, INC., as successor to SEA TRANSPORT, INC., Third-Party Plaintiff, v. JOHN PEMBERTON MOSSE, an Underwriter at Lloyd's, and INDEMNITY MARINE ASSURANCE CO., LTD., Third-Party Defendants

The opinion of the court was delivered by: DUFFY


 The ship's rudder fell off in the middle of the Indian Ocean.

 This occurrence happened under conditions to be expected in that place at that time of the year. (These conditions will be more specifically set forth hereinafter.)

 The owner declared a general average.

 The plaintiff, Eastern Marine and Fire Insurance Company (hereinafter referred to as "Eastern") seeks to recover from the owners and operators of the S.S. COLUMBIA the sum of $120,000 which Eastern deposited as security for the general average claim arising out of this occurrence in August 1966. In turn, Ogden Sea Transport, Inc. (hereinafter "Ogden") seeks recovery of $47,200.86 from the plaintiff Eastern and the third-party defendants Corporation of Lloyd's (hereinafter referred to as "Lloyd's") for the unpaid portion of the general average expenses.

 At the time in question, the S.S. COLUMBIA was carrying a cargo of superphosphate from Safi, Morocco, to Korea. It is the position of the plaintiff that the S.S. COLUMBIA was unseaworthy with respect to her cargo at the time of sailing from Safi, Morocco, and that the defendants had failed to exercise due diligence to make the ship seaworthy prior to such sailing. The defendants of course dispute the foregoing and claim that the loss of the rudder was caused by the ship encountering heavy seas and thus that the cargo owners are liable for their portion of the general average.

 The S.S. COLUMBIA is a bulk carrier, having been converted from a T-2 tanker in 1962 by the insertion of a new midbody. On October 4, 1963, the COLUMBIA grounded while lying aside a pier at the port of Kandla, India, and, apparently, the vessel's rudder assembly suffered damage. The damage was repaired between March 25 and April 4, 1964, when the ship was drydocked in Norfolk, Virginia. At that time the rudder palm was disconnected and the top and bottom rudder pintles were removed. The rudder was also removed to the shipyard's shop for further examination and repairs. The rudder stock was removed from the vessel as well and taken to the shop where it was examined and checked, together with the rudder for alignment. At that time the top pintle was found to be fractured and was renewed, including a bronze liner. A fracture in the rudder plating was v-ed out and rewelded, after which the rudder was tested and found tight. A new skeg was installed and modifications were made to it with the approval of the American Bureau of Shipping, and a surveyor for the Salvage Association of London. Apparently the repairs were made to the satisfaction of the vessel's Master, the owner's marine surveyor and the various inspectors and other surveyors.

 The COLUMBIA was operated until the following March 1965, when she was again drydocked, this time at Jacksonville, Florida. According to a report to the American Bureau of Shipping, dated March 25, 1965, certain repairs were made to the rudder and the rudder assembly, including the removal of the lower pintle "to shop" and its subsequent reinstallation. Apparently the nut holding the lower pintle in place was found to be loose and afterwards the pintle was reinstalled and the nuts on the lower and upper pintles were hardened up. Nut-keepers were installed on both nuts and a flat bar installed on the lower edge of the pintle in the skeg to prevent the pintle from dropping down if the pintle nut became loose.

 After the completion of the repairs at Jacksonville in 1965, the vessel retained the highest ABS classification. On April 29, 1966, Sunda Marine, Inc. and the Office of Supply, Government of the Republic of Korea, entered into a charter for the carriage of 20,000 metric tons of superphosphate in bulk from Safi, Morocco, to a port in South Korea. It was this shipment that came to be insured by the plaintiff.

 On or about July 15, 1966, the COLUMBIA arrived at Safi, Morocco, and her master and chief engineer made inspections of the visible hull, rudder and propeller when the ship was unladen, at which time nothing unusual was found.

 On or about July 18, 1966, the COLUMBIA, laden with the superphosphate, sailed from Morocco and made her way through the Atlantic Ocean, Mediterranean Sea, the Suez Canal and the Red Sea to the Indian Ocean. There, on August 2, 1966, the COLUMBIA encountered the monsoon winds which begin in mid-June and have been known to be generally heavy from then to the end of July or early August, after which the winds generally moderate. The log for the COLUMBIA shows that on August 2, 1966 the ship encountered winds of force 7 on a Beaufort scale; the same force was encountered on August 3rd until about noon when the winds and seas abated to force 6-7 by the time, 1635 in the afternoon, that the rudder was lost.

 The ship was thereafter towed to Ceylon and subsequently to Singapore for repairs.

 There was no evidence of any grounding or the striking of a submerged object or bank or the like, to cause the loss of the rudder. The deck logs and the engine logs contain no reference to an incident that might have been relevant to the loss.

 At Singapore, a diver's inspection found that the rudder was fractured at approximately two inches below the palm flange. The upper pintle was still in place although the pintle nut was missing and the pintle threads damaged. The lower pintle and pintle nut were missing although ...

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