The opinion of the court was delivered by: SWEET
This action arose out of a series of events which took place off the coast of Crete in March of 1976, involving the Panamanian-flag motor vessel EVANTHIA K, and the Israeli-flag motor vessel M/V HAR SINAL. The two ships collided at 0812
on March 8, 1976, and on March 9, 1976 at 0945, the EVANTHIA K stranded, subsequently becoming a total loss. While there are some questions of law to be resolved, the principal, and intriguing, task to be performed is to determine what happened on a sunny, clear day on the Aegean Sea over three years ago and whether what happened was responsible for the loss of the EVANTHIA K and the damage to her cargo. The determination is based upon a review of depositions and numerous exhibits, and the testimony of experts. Highly competent counsel have piloted the court with great skill through this mass of depositions, exhibits, and expert testimony and have been of great assistance in providing the essential clues which have made it possible to resolve conflicting contentions.
Both vessels failed to comply with the International Rules of the Road, as set forth below, resulting in the collisions. Eighty-five percent of the fault in connection with the collisions was that of the HAR SINAI; fifteen percent was attributable to the EVANTHIA K. The collision was the proximate cause of the stranding. The plaintiffs will recover their damage from HAR SINAI and EL YAM BULK CARRIERS (1967) LIMITED ("EL YAM"), which in turn will recover fifteen percent of that amount from the EVANTHIA K and Alexandra K Shipping Co., S.A. ("AKS").
The plaintiffs are MISR Insurance Company ("MISR"), the insurer of the cargo which was lost, and the General Organization for Supply Goods ("GOFSG"), the owner of the cargo. The defendants, HAR SINAI and its owner EL YAM filed a third party complaint impleading the EVANTHIA K and its owner AKS. In a written opinion dated November 2, 1978, this court granted a motion by EL YAM to amend its ad damnum clause to include a claim that plaintiffs have judgment directly against the third party defendants. The effect of that amendment was to view the action as if plaintiffs had originally sued both defendants and third party defendants. Opinion of November 2, 1978, at 3-4. The Honorable Henry F. Werker, exercising jurisdiction over the dispute upon the consent of all parties, denied a motion of the EVANTHIA K to stay the claim brought by plaintiffs against AKS pending arbitration. MISR Ins. Co. v. M/V Har Sinai, 1978 A.M.C. 1223 (S.D.N.Y. 1977) (not officially reported). Subsequently, three witnesses were heard at trial before this court, and numerous exhibits were admitted into evidence, including ten depositions.
The EVANTHIA K was constructed in 1953. She was 229.44 feet in length, 35.44 feet in beam, and had a summer timber draft of 15 feet 3 1/2 inches at a deadweight (or weight carrying) capacity of 1,586 long tons.
The HAR SINAI was a bulk carrier constructed in 1961. She was 676.21 feet in length, 74.18 feet in beam, and had a maximum draft of 35.62 feet at a deadweight capacity of 28,754 long tons. Her gross tonnage was 19,030 long tons. Thus, the loaded HAR SINAI was approximately 15 to 20 times the weight of the loaded EVANTHIA K and three times its length.
The EVANTHIA K was loaded at Sibenik, Yugoslavia, with a cargo of 1,615.761 cubic meters (1,272 long tons) of beechwood which was not bound into bundles. A bill of lading was issued by the master of the EVANTHIA K, GOFSG was the consignee, and Alexandria, Egypt, the port of discharge. The seller of the beechwood was SIPAD, which had entered into a charter party with Agoudimos (Flandermar), which in turn had chartered the EVANTHIA K from its owners, AKS. There is no evidence that GOFSG was aware of this charter or that it assumed responsibility for the loading or, indeed, even for the cost of loading.
The EVANTHIA K departed from Sibenik on March 3 and encountered heavy weather, which increased to gale force by March 7. The ship developed a seven degree port list and took refuge in the Bay of Messara. The next morning, March 8, the weather having improved, the EVANTHIA K departed, steadying on the Cape Litmos Lighthouse on the southern coast of Crete, and set a course of 131 degrees for Alexandria at a speed of 9-10 knots. Visibility was good.
At the same time the HAR SINAI was proceeding from New Orleans off the same coast, on a course of 103 degrees, for Haifa at a speed of 13.5 knots. At 0710 the Chief Mate of the HAR SINAI observed the EVANTHIA K at a relative bearing of 30-35 degrees off the port bow of the HAR SINAI at a range of six miles. At 0750 the Chief Mate observed the relative bearing of the EVANTHIA K to be constant, and the range to be about three miles. During this time the HAR SINAI was operating on its automatic pilot.
At 0752 the Master of the EVANTHIA K, Voliotis, observed the HAR SINAI off his starboard quarter, and between 0752 and 0757 the EVANTHIA K came left to a course of 120 degrees. After remaining on this course for a minute or so, Voliotis came right to his original course of 131 degrees and sought to signal this course change, only to have the cord to the whistle part, thus precluding his signaling the change.
Meanwhile, the Chief Mate of the HAR SINAI was being relieved by the Acting Third Mate, Marmour, who was advised by the Chief Mate that the EVANTHIA K was on a parallel course and that the relative bearing was opening to port. No radar ranges or bearings were taken, no plot was maintained on the HAR SINAI, and no lookouts other than the deck officer were posted.
Certain of the events aboard the HAR SINAI after Marmour relieved the Chief Mate are disputed and will be discussed below. At 0810 the Captain of the HAR SINAI, while in his cabin, saw the EVANTHIA K through a porthole, rushed to the bridge, stopped the engines, and sounded one whistle blast. At 0812 the ships collided, with the port bow of the HAR SINAI striking the starboard side of the EVANTHIA K with force perceptible on the HAR SINAI. The starboard bulwarks and plates of the EVANTHIA K ...