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MARU SHIPPING CO. v. BURMEISTER & WAIN AMERICAN CO

November 9, 1981

MARU SHIPPING CO., INC., as Owner of The Frisky, Plaintiff,
v.
BURMEISTER & WAIN AMERICAN CORPORATION and Burmeister & Wain A/S, Defendants



The opinion of the court was delivered by: SAND

Briefly stated, the principal issue raised in this case, which has been tried to the Court, is the extent to which the defendant, who sold defective parts for use in the auxiliary engines of plaintiff's vessel, is responsible in damages for the amount of time the vessel was tied up in port while the cause of the engine's malfunctioning was being determined and remedied, where much of this time was spent examining and repairing other deficiencies in the engines for which defendant was not responsible.

I. FACTS

In 1977, plaintiff purchased for $ 400,000 a vessel which had gone aground off Cuba and undertook to repair and rehabilitate the vessel, renamed the M/V Frisky. The three auxiliary engines on the vessel had been manufactured by a Brazilian licensee of Burmeister & Wain A/S. *fn1" In 1977, plaintiff asked a representative of B&W to inspect the auxiliary engines and to recommend how they should be repaired. B&W recommended that the engines be replaced. Plaintiff, however, decided to overhaul the three auxiliary engines and to utilize the labor of its own crew in doing this. Various replacement parts, including five connecting rods, were ordered by plaintiff from B&W for this purpose.

 Plaintiff ultimately expended approximately $ 4,000,000 in repairing the vessel, of which $ 950,000 was spent on hull repairs done in Greece. The ship thereafter operated on charter as a scrap metal carrier, but experienced a malfunctioning in its auxiliary engines.

 Each of the three auxiliary engines has a crankshaft and five connecting rods which transmit energy generated by the rotating crankshaft. Each connecting rod is attached to the crankshaft bar (journal) as illustrated in the diagram annexed hereto as Appendix I. As will be seen by reference to Appendix II, the connecting bar itself ends in a half oval. A second object, known as a cap, is attached to the connecting rod by bolts forming a circle or aperture through which the journal passes. The bolts which connect the cap to the connecting rod intrude into the aperture at two sides. A metal bearing is placed between the connecting rod and the journal to reduce friction and enable the parts to move freely. This bearing, manufactured by others, was sold by B&W to plaintiff for use in conjunction with the connecting rods, some of which were ordered from B&W and installed in Greece, and some of which may have been of original manufacture, i.e., made by B&W A/S's licensee and aboard the vessel when purchased by plaintiff. The bearings consist of two half ovals of a special metal mixture, with provisions for lubrication and two recesses designed to accommodate the bolts which hold the cap to the connecting rod where they intrude into the aperture. It was these bearings which were overheating, causing a deterioration in the bearings (wiping, melting, etc.) and a malfunctioning of the engines.

 Plaintiff's vessel put into Venezuela and requested that B&W send a service representative to ride the vessel to Boston and report on the cause of the malfunctioning. Mr. Jorgen Sorenson boarded the vessel in Venezuela, observed a large quantity of burned out bearings, and was advised that a new crankshaft had been ordered for installation in Boston, the vessel's next port, and that the crew was going to strip down # 3 engine en route to Boston. (It was undisputed at the trial that prudent seamanship requires that there be at least two operative auxiliary engines prior to sailing). Sorenson determined that he could accomplish nothing by accompanying the vessel to Boston and so he left her in Venezuela but rejoined her in Boston.

 In Boston, he engaged in a systematic appraisal of the possible causes of the bearing problem. He discovered a great many respects in which the engines failed to conform to the operating procedures prescribed and recommended by B& W. These included the following: remetalling of the journals with chromium, improper tightening of the bolts, *fn2" lack of proper maintenance and cleaning, misplacement of lubricating gauges, misalignment of # 3 engine with its generator, etc.

 Sorenson undertook, during the period from January 25, 1979 to March 22, 1979 to correct these conditions, except that he did nothing to remedy the misalignment of the # 3 engine and generator. His testimony was that he called this condition to the attention of plaintiff's attending supervisor (Mr. Mendel) and that, since the indicated procedure was to realign the generator rather than the engine, he regarded it as being beyond the scope of his engagement.

 A vigorous controversy exists as to the extent to which Sorenson in Boston detected what is now asserted to be "the cause" of the bearing failures. Sorenson testified, and the Court finds, that in addition to numerous other steps and inquiries that he made, including an enlargement of the connecting rod aperture which he found to be not within acceptable tolerances, he deepened the recesses on the bearings on the # 3 engine so that the bolts would not pinch the bearing.

 Ultimately, Sorenson reported that the engines were in operating condition. He left with Mendel some written instructions and a sketch for the use of the crew. The written instructions indicated that the recesses should be given special attention.

 On March 22, 1979, the M/V Frisky sailed for Korea, but put into Cape Canaveral as a port of haven because of continued problems with the auxiliary engines. Sorenson and another diesel expert, independently engaged by plaintiff, examined the engines in Cape Canaveral.

 It was determined that two causes for the continued difficulties existed: 1) the misalignment of the # 2 engine and generator, and 2) the pinching of the bearings by the bolts in engines # 1 and # 2, the recesses of which bearings had not been deepened by Sorenson in Boston because these bearings were not overheating at that time. The recesses on all bearings were deepened by filing and the generator on # 2 was realigned in Cape Canaveral, and no further difficulties have been experienced by the M/V Frisky with her auxiliary engines.

 Mr. Sorenson, although he testified to the number of deficiencies he observed in the engines, described the pinching of the bearings by the bolts, a condition remedied by filing and thereby deepening the bearing recesses, as "the cause" of the problem.

 It, of course, makes little difference whether one regards the connecting rods or the bearings as being defective. Both were supplied by B&W to function in conjunction ...


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