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IN RE THEBES SHIPPING INC.

February 7, 1980

In the Matter of the Complaint of THEBES SHIPPING INC. as Owner of S.T. ARGO MERCHANT, for Exoneration from or Limitation of Liability.


The opinion of the court was delivered by: GRIESA

This action rises from the grounding of the Liberian S. T. Argo Merchant December 15, 1976 approximately 25 miles southeast of Nantucket Island. The Argo Merchant was a tanker carrying a cargo of 27,566 long tons of fuel oil on a voyage from Puerto La Cruz, Venezuela to Salem, Massachusetts. After lingering in the stranded position for some days, the ship broke in two and sank. The entire cargo of oil spilled into the ocean and was a total loss.

The shipowner is Thebes Shipping Inc., a Liberian corporation. The cargo of oil was consigned to Northeast Petroleum Corporation. The cargo insurer, Continental Insurance Company, having paid Northeast approximately $ 2 million for the cargo loss, is subrogated to the rights of Northeast.

 Procedural History

 On December 20, 1976 Thebes Shipping Inc. filed the present action a petition for exoneration from or limitation of liability. On the same date an order was entered restraining all other actions against Thebes arising out of the grounding, and directing that claims be filed in the limitation proceeding. The following claims have been filed:

 
(1) Continental Insurance Company claim for loss of oil;
 
(2) Northeast Petroleum Corporation contingent claim for indemnity in the event of recovery against Northeast for environmental damage;
 
(3) Jay Lanzillo et al. claim on behalf of commercial fishermen for possible damage to fishing beds and fishing equipment;
 
(4) Nantucket Conservation Foundation, Inc., et al. claim for possible fouling of beaches and other types of environmental damage;
 
(5) United States of America claim for expenses of activities undertaken to protect against oil pollution;
 
(6) Commonwealth of Massachusetts claim for expenses of cleaning pollution and protecting against pollution;
 
(7) State of Rhode Island claim for expenses of protecting against possible pollution.

 Several actions filed in this court and in the United States District Court for the District of Massachusetts are under the restraint of the December 20, 1976 order.

 The claims of the United States of America, the Commonwealth of Massachusetts, and the State of Rhode Island have been settled for the total sum of $ 1.1 million $ 20,000 being paid to the Commonwealth of Massachusetts, $ 5,000 to the State of Rhode Island, and the remainder to the United States of America.

 The major issue involved in Thebes' petition for exoneration or limitation is whether Thebes will be liable to Continental for the value of the lost oil. With regard to the question of environmental damage, it appears that the favorable weather conditions resulted in the oil being washed out into the open sea. However, the environmental claims of Lanzillo et al. and Nantucket Conservation Foundation et al., and the contingent claim of Northeast, have neither been settled nor formally abandoned. At least in theory, the question of whether Thebes has a right to exoneration or limitation of its liability bears upon these latter claims.

 The petition of Thebes for exoneration or limitation was tried to the court without a jury. This opinion constitutes the court's findings of fact and conclusions of law.

 Statutory Provisions and Issues

 The basic substantive law governing the issues between Thebes and Continental is the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300 et seq. Section 4(2)(a) of COGSA, 46 U.S.C. § 1304(2)(a), provides that neither the carrier nor the ship shall be responsible for loss or damage to cargo resulting from:

 
"(a) 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; . . ."

 The shipowner has the burden of proving this "error of navigation" exemption from liability. Director General of India Supply Mission v. S. S. Maru, 459 F.2d 1370, 1372 (2d Cir. 1972), cert. denied, 409 U.S. 1115, 93 S. Ct. 898, 34 L. Ed. 2d 699 (1973).

 If a shipowner proves error of navigation as a cause of loss, a cargo owner may defeat the owner's claim of exemption under COGSA by showing that an unseaworthy condition of the vessel was a concurring cause. In the Matter of the Complaint of Grace Line Inc., 517 F.2d 404, 407 (2d Cir. 1975); Director General of India Supply Mission v. S. S. Maru, supra at 1372; J. Gerber & Company v. S. S. Sabine Howaldt, 437 F.2d 580 (2d Cir. 1971). If unseaworthiness is shown as a cause, the shipowner, in order to escape liability, must sustain the burden of proving that it exercised due diligence at the beginning of the voyage in respect to the condition found by the court to be unseaworthy. Section 3(1)(a) of COGSA, 46 U.S.C. § 1303(1)(a), provides:

 
"(1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to
 
(a) Make the ship seaworthy; . . ."

 Section 4(1), 46 U.S.C. § 1304(1), provides:

 
"(1) Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied, . . . Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section."

 Thebes contends that it is entitled to exoneration under Section 4(2)(a) of COGSA because it has proven that the grounding of the Argo Merchant resulted from errors in navigation by the ship's officers i. e., steering improper courses and failing to make adequate use of available navigation techniques to ascertain that the vessel was in danger of grounding.

 Continental contends that defects in the vessel's navigation equipment were concurring contributing causes of the casualty specifically, that the vessel's gyrocompass and radio direction finder were malfunctioning, and that certain charts used prior to the grounding were outdated. Also, Continental argues that the ship's compliment of navigation gear was inadequate because it lacked a radio navigation device known as LORAN.

 As to any condition found to have been unseaworthy and a cause of the grounding, Thebes urges that there was an exercise of due diligence, and Continental argues to the contrary. *fn1"

 Evidence and Findings

 The Argo Merchant left Puerto La Cruz, Venezuela the morning of December 5, 1976 bound for Salem, Massachusetts. The officers of the ship having to do with navigation were the master, Georgios Papadopoulos; the chief officer, Georgios Ypsilantis; and two second officers, Anastasios Nisiotis and Georgios Dedrinos. *fn2" On the voyage from Puerto La Cruz the chief officer and the two second officers had the following watches on the bridge:

 TABLE

 TABLE

 From Puerto La Cruz the vessel sailed northwest about 500 miles to Mona Passage, between Puerto Rico and the Dominican Republic. The vessel sailed through Mona Passage on December 7. From Mona Passage the vessel continued northwest to Cape Hatteras, North Carolina, a distance of approximately 1100 miles. The vessel arrived at a point off Cape Hatteras shortly before midnight December 12, at which time it turned northeast and set course for Nantucket Lightship. The intention was to pass Nantucket Lightship to the east, and sail around Cape Cod into Salem. The distance from Cape Hatteras to Nantucket Lightship is about 435 miles.

 The navigating officers expected to sight Nantucket Lightship at about 3:00 A.M. December 15. They did not do so, kept sailing, and ran aground at 6:00 A.M. December 15, at 41o 02' N latitude, 69o 28' W longitude, in Fishing Rip, Nantucket Shoals, 32 miles north of Nantucket Lightship.

 The vessel actually sailed past Nantucket Lightship about 18 miles west thereof. The vessel's intended course would have taken her about three miles east of the lightship. The vessel was thus off course by some 21 miles.

 As would be expected, the vessel was equipped with both a gyrocompass and magnetic compasses. The master gyrocompass was located in a room beneath the bridge. There were two gyrocompass repeaters on the bridge one located to the right of the helmsman and one on the forward bulkhead of the bridge. The gyro repeater to the right of the helmsman was attached to the automatic steering mechanism. There was also a magnetic compass located to the left of the helmsman referred to as the "steering compass." Another magnetic compass, referred to as the "standard compass," was located on the flying bridge. In the chart room located behind the bridge there was a radio direction finder. There were also two radars and a fathometer in the bridge area.

 The evidence indicates that, at various times in the open seas under favorable conditions, the automatic steering mechanism would be used. However, the indications are that the automatic steering mechanism was not used after Cape Hatteras, and that there was manual steering between Cape Hatteras and the grounding.

 Although most of the Argo Merchant's navigation materials and equipment went down with the ship, the two charts used on the vessel from Cape Hatteras to the grounding were rescued. These two charts are C. & G.S. No. 1000 (Cape Sable to Cape Hatteras), and C. & G.S. No. 1107 (Georges Bank and Nantucket Shoals). The rough deck log was rescued, as were the "deviation cards" for the standard and steering magnetic compasses.

 The officers and crew of the Argo Merchant were rescued. Depositions of the captain and others were taken commencing a few days after the grounding. Also, testimony was taken in the spring of 1977 before a Marine Board of Investigation appointed by the Republic of Liberia. Both the depositions and portions of the Liberian Board of Investigation testimony were introduced at the trial of this action.

 Officers' Testimony Regarding Navigation from Cape Hatteras

 The summary in this section of the opinion is based mainly upon the testimony of the captain, the chief officer, and the two second officers, relating to the navigation of the Argo Merchant from the time of the turn at Cape Hatteras until the grounding. Although there are questions about the reliability of certain important features of this testimony, the basic story told by the navigating officers should be understood.

 The turn at Cape Hatteras was made at 11:00 P.M. December 12. The chart shows that the turn occurred ten miles off Diamond Shoal Light. *fn3" A course of 040o was laid out on chart C. & G.S. No. 1000 (Cape Sable to Cape Hatteras), which would take the vessel slightly to the east of Nantucket Lightship. When testifying about the vessel's courses, the navigating officers referred primarily to what they said were courses on the gyrocompass. The magnetic compass served mainly as an auxiliary, to be used for steering if the gyrocompass failed. The magnetic compass was used for steering after trouble occurred with the gyrocompass the evening of December 14. According to the navigating officers, until this problem arose, the helmsmen steered by the gyrocompass repeater immediately to the right of the wheel.

 The ship's courses were entered in the deck log every four hours midnight, 4:00 A.M., etc. Course changes were supposed to be entered when made, although, during the period from Cape Hatteras to the grounding, the three course changes which occurred were not promptly logged, and were not entered until the next regular four-hour recording time.

 The logbooks of the Argo Merchant contained printed forms in which the courses were recorded. There were three columns "Standard," "Gyro" and "Steering." On the final voyage of the Argo Merchant no entries were made in the "Gyro" column, and only the "Standard" and "Steering" columns were filled out. The heading "Standard" was usually crossed out by hand and the word "True" printed in. The testimony of the navigating officers is that this column referred to gyrocompass courses, and they were put in the "True" column because the gyrocompass had been corrected so that the gyro course was the same as the true course. *fn4"

 The course entries labeled "Steering" referred to the magnetic steering compass.

 Dedrinos had the deck watch from midnight December 12 to 4:00 A.M. December 13. At some point during this watch he called the captain, said that the weather was pushing the vessel to the right, and recommended that there be a change of course to the left in order to compensate. The captain approved a 4o change from 040o to 036o on the gyro. The course entries in the log commencing at 4:00 A.M. December 13 and continuing through midnight of that day were 036o True, 050o Steering.

 The most precise method for establishing a ship's position by celestial navigation is to take star sights at dawn and dusk of each day. However, because of overcast weather, no such star sights could be obtained on the Argo Merchant after Cape Hatteras, until one-half hour before the grounding when a star fix was obtained which will be discussed later in this opinion.

 Although no fix was obtained by star sights on the morning of December 13, a position was obtained at noon that day by sun lines. This position was nearly ten miles to the right, or east, of the intended course line drawn from Cape Hatteras to Nantucket Lightship. This means that, while the vessel had supposedly been steering 040o from 11:00 P.M. December 12 until some time during the midnight-4:00 A.M. December 13 watch, when the course was changed to 036o, the vessel had actually made good a course of 044o during this time.

 The vessel did not change course at noon December 13. The captain testified that the reason for no course change was that Nantucket Lightship bore 036o from the noon December 13 position, and the vessel was already on this course. *fn5"

 At about 4:00 P.M. December 13 the vessel started experiencing a strong gale from the north northwest. The captain gave orders to reduce speed. The gale started to subside after midnight December 13 and was over at least by 8:00 A.M. December 14.

 Commencing at 4:00 A.M. December 14 there was a change in the course entries in the log which is the subject of some confusion a change from 036o True, 050o Steering, to 036o True, 047o Steering. Thus there was a change in the steering, or magnetic, compass entries from 050o to 047o, but the entries for the true, or supposedly gyrocompass, entries remained the same 036o .

 When the captain first testified about this, he stated that there was in fact a 3o course change to the left, as reflected by the change in the magnetic compass entries from 050o to 047o . The captain testified that this course change was made to compensate for weather and current from the port side of the ship. He testified that his information regarding the currents came from a chart entitled "Pilot Chart of the North Atlantic Ocean." These pilot charts are published by the United States Defense Mapping Agency, and are issued monthly. The captain used the pilot chart for November 1976. He did not have the December 1976 chart. There is a question, which will be discussed later, as to whether the captain was misled in any material degree by having available only the November chart.

 At a later point in his testimony, the captain stated that there was no course change at 4:00 A.M. December 14, judging from the fact that there was no change in the gyrocompass entries. He could not explain why the magnetic compass entries went from 050o to 047o . Still later, the captain testified that he could not remember whether there was or was not a course change at this time.

 Dedrinos had the deck watch from midnight December 13 to 4:00 A.M. December 14. He testified that he could not remember any order for a course change during his watch and that during the entire time the helmsmen were being directed to steer 036o gyro. He testified, however, that there was a blackboard on the bridge on which the compass courses were written, and that during his watch the figures on the blackboard were changed with respect to the magnetic course from 050o to 047o, while the figures relating to the gyro course remained 036o . He cannot recall any discussions about this change. The only reason he can recall for the change in the blackboard notation for magnetic was that the heading on the magnetic compass changed.

 Ypsilantis assumed the deck watch at 4:00 A.M. He testified at one time that he did not know whether there was a course change before 4:00 A.M. December 14, and later testified positively that there was no change. Nisiotis, who came on watch at 8:00 A.M., testified that there was no course change, since the gyrocompass course entries remained the same in the log and the vessel was steering by gyro.

 Positions were obtained by sun lines at noon and 2:00 P.M. December 14. The noon position was about 21/2 miles to the left, or west, of the intended 040o course line which had been drawn from Cape Hatteras to Nantucket Lightship. The 2:00 P.M. position was about 31/2 miles to the left of that course line. This meant that, from noon December 13 to noon and 2:00 P.M. December 14, the vessel had made good a course of 035o .

 Nisiotis, who was on watch from 8:00 A.M. to noon and calculated the noon fix, informed the captain, who was on the bridge at noon, that the vessel was to the left of the course. However, he did not calculate the course made good from noon of the previous day and he did not discuss a possible problem or course change with the captain.

 Dedrinos came on watch at noon, and calculated the 2:00 P.M. fix. He testified at first that he did not give any thought to the course made good since noon the previous day. Later he testified to the contrary, and stated that he did discuss with the captain the course made good, but did not discuss a possible course change.

 The captain's testimony is that he did not direct or consider any possible course change at midday December 14.

 Thus, according to the testimony of these officers, the vessel continued to steer 036o gyro and 047o magnetic after the noon and 2:00 P.M. fixes December 14. If the vessel continued to make good 035o, as it had from noon December 13, the vessel would pass to the west of Nantucket Lightship headed into shoal waters. This would also be true if the vessel made good 036o from the noon and 2:00 P.M. December 14 positions.

 According to the navigating officers, trouble with the gyrocompass commenced about 6:00 P.M. December 14. The gyro repeater to the right of the helmsman started fluctuating rapidly over an arc of about 12-14o . From this time until the grounding the next morning the steering was by magnetic compass. However, no entry about the gyro problem was made in the log. Also, entries continued to be made in the "True" course column in the log. Thus the entries at 8:00 P.M. December 14 were the same as they had been the entire day 036o True and 047o Steering.

 The captain testified that, after the trouble began with the helmsman's gyro repeater, he and Ypsilantis checked the master gyro and found that it was also defective, although they could not ascertain what was the source of the problem.

 Ypsilantis, who was on watch from 4:00 P.M. to 8:00 P.M. December 14, testified that the only trouble was with the helmsman's gyro repeater, and that he and the captain checked the master gyro and found no problem there.

 Nisiotis, who came on watch at 8:00 P.M. December 14, agrees with Ypsilantis that there was a problem with the helmsman's gyro repeater but that the master gyro continued functioning properly. Indeed, Nisiotis testified that he checked the master gyro and that ...


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