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IN RE DELPHINUS MARITIMA

February 9, 1981

In the Matter of the Complaint of DELPHINUS MARITIMA, S.A., as Owner of the M.V. MARI BOEING, Plaintiff, for Exoneration from or Limitation of Liability


The opinion of the court was delivered by: MOTLEY

FINDINGS OF FACT AND CONCLUSIONS OF LAW

These are eleven consolidated non-jury admiralty actions brought under Rule 9(h) of the Federal Rules of Civil Procedure in which the issue of damages is deferred until the questions of liability and limitation of liability have been first determined. The actions arise out of the stranding of the Mari zBoeing off the northern coast of Bermuda on December 27, 1978. This court's jurisdiction has been invoked pursuant to 46 U.S.C. § 183 et seq. and 28 U.S.C. § 1333.

Delphinus Maritima, S.A., the vessel owner, filed its complaint for exoneration from or limitation of liability in 79 Civ. 2496. In that action, five claims were filed on behalf of various cargo interests. A claim was also filed in that action against the vessel owner on behalf of the charterer of the vessel, Atlanta Shipping Corporation (Atlanta), for its damages and for contribution or indemnity. A claim was also filed in that action against the vessel owner on behalf of Tidewater Stevedoring Company, the stevedore, for indemnity. The vessel owner counterclaimed against both the charterer and the stevedore for all losses sustained by the owner and for indemnity. Cross-claims were then made by all cargo claimants against the stevedore for all damages sustained by the cargo interests. The vessel owner impleaded National Cargo Bureau (NCB) for all losses incurred by the vessel owner and for indemnity.

 In five separate actions, 79 Civ. 3460, 79 Civ. 3826, 79 Civ. 4031, 79 Civ. 4061 and 79 Civ. 6964, cargo claimants brought suit for their damages against Maritime Transport Overseas Inc. (MTO) and against the charterer, Atlanta, as the alleged operators and or charterers of the Mari Boeing and against the stevedore. In these actions, the charterer and MTO cross-claimed against the stevedore for contribution or indemnity. The stevedore then cross-claimed against the charterer and MTO for indemnity. MTO then impleaded the salvor, Smit International Ocean Towage and Salvage Company, (Smit). Smit counterclaimed against all cargo plaintiffs, except the United States, and filed a fourth party complaint against the vessel owner for indemnity. The third party complaint against Smit was subsequently dismissed and Smit is no longer a party to this action.

 In five more actions, 79 Civ. 6388, 79 Civ. 6685, 79 Civ. 6798, 79 Civ. 6790 and 80 Civ. 0338, the cargo claimants brought suit for their damages against Intermarine, Incorporated, as the alleged managers of the Mari Boeing. Thus the parties to this action are:

 1. Delphinus Maritima, S.A., a corporation which at all relevant times was and is the owner of the M.V. Mari Boeing.

 2. Atlanta Shipping Corporation, a corporation which at all relevant times was the charterer of the Mari Boeing as set forth in a certain charter party under which the Mari Boeing was then operating.

 3. Tidewater Stevedoring Company, a corporation which performed stevedoring functions with regard to the Mari Boeing while at Newport News, Virginia.

 4. National Cargo Bureau is a non-profit corporation which inspected the cargo aboard the Mari Boeing when the vessel was in Newport News, Virginia, for the owner.

 5. The Lummis Company and other plaintiffs listed in 79 Civ. 3460 are corporations or organizations which own or were the underwriters or subrogated underwriters of certain cargo on board the Mari Boeing.

 6. The United States of America (79 Civ. 6685) is a sovereign party which was a shipper of certain cargo aboard the M.V. Mari Boeing. Todd Logistics, Incorporated, brought the action as agent for the United States and on behalf of the owners of the said cargo.

 7. Petrolleo Brasileiro, S.A. (Petrobas) and Petrobas International, S.A. (Braspetro) (79 Civ. 4031 and 80 Civ. 3725) are corporations or organizations which were the owners or underwriters or subrogated underwriters of certain cargo onboard the vessel.

 8. Agricultural Combinat PKB and Kannal DTD (79 Civ. 4061) are corporations which were the owners of certain cargo onboard the Mari Boeing.

 9. Atco International, Limited, and the other plaintiffs listed in 79 Civ. 3826 are corporations or organizations which are the owners or were the underwriters or subrogated underwriters of certain cargo onboard the Mari Boeing.

 10. Maritime Transport Overseas, Incorporated (MTO) is a corporation which acted as the agent for the charterer.

 11. Intermarine, Incorporated, is a corporation which is named as sub-agent for the vessel owner in an agreement dated January 15, 1976 between Intermarine, Incorporated and Overseas Maritime, Limited.

 The parties to this action stipulated to the following facts prior to trial:

 (1) The Mari Boeing is a general cargo ship built in 1975. It has an overall length of 161.85 meters (531.02 feet). It has a breadth of 22.84 meters (73.1 feet). It has a gross tonnage of 13,456.53 long tons and a dead weight capacity of 21,192 metric tons.

 (2) At all relevant times the Mari Boeing was operated pursuant to terms of a charter party dated December 1, 1978 wherein Delphinus Maritima, S.A., was listed as the owner and Atlanta Shipping Corporation as the named charterer.

 (3) During the voyage, which is the subject of this law suit, the Mari Boeing loaded cargo at the following ports:

 
(a) December 4-10, Houston, Texas.
 
(b) December 16, Baltimore, Maryland.
 
(c) December 18, New York, New York.
 
(d) December 20-23, Newport News, Virginia.

 (4) Cargo claimants were the owners or duly authorized representatives of the owners or underwriters or subrogated underwriters of cargo onboard the Mari Boeing for which bills of lading were issued. The parties agreed prior to trial that the bills of lading would be admitted evidence, and further agreed that at least some damage was sustained for each shipment.

 (5) Newport News, Virginia was the vessel's last loading port and at 2248 hours on December 23, 1978, the vessel set sail from Newport News, Virginia destined for ports in the Middle East.

 (6) The deck log records that on December 25, 1978 some of the deck cargo on board the vessel was seen to move.

 (7) On December 26, the vessel altered course and went to Bermuda in order to work on the cargo ...


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