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IN RE AMERICAN EXPORT LINES

October 22, 1985;

In the Matter of the Complaint of AMERICAN EXPORT LINES, INC., formerly known as AMERICAN EXPORTS ISBRANDTSEN LINES, INC., as owner of the S/S C.V. SEA WITCH, seeking exoneration from or limitation of liability


The opinion of the court was delivered by: TENNEY

TENNEY, J.

Shortly after midnight on June 2, 1973, the container vessel SEA WITCH, owned by American Export Lines, Inc. ("AEIL"), *fn1" was proceeding out of New York Harbor at full maneuvering speed when she lost control of her steering an veered to starboard, colliding after some four minutes or more, at substantially full speed, with the tanker ESSO BRUSSELS anchored in the federal anchorage off Stapleton, Staten Island, New York. Both vessels burst into flames; sixteen men, including the masters of both vessels, lost their lives, and many more were injured. Property damage was in the millions.

Statement of Proceedings

 On June 7, 1973, AEIL filed a petition seeking exoneration from or limitation of liability under 46 U.S.C. §§ 183, et seq. (1982). Subsequently, numerous claims were filed by personal injury, death, cargo and other claimants against AEIL, which then counterclaimed against the ESSO BRUSSELS' owner-operator and time and voyage charterers; Bond Hydraulic Equipment Service, Inc. and its successors ("Bond Hydraulic"); Sperry Corporation ("Sperry"); Bath Iron Works Corporation ("Bath"); and the United States of America ("U.S.A.").

 On or about December 4, 1973, AEIL served a third-party complaint upon Bath seeking damages and indemnity within the limitation proceeding. This third-party complaint sets forth two causes of action: one in contract and one in tort.

 All of the aforementioned defendants cross-claimed against each other and against AEIL. However, although virtually all of the claimants were granted leave by the Court to file cross-claims against Bath, Sperry and Bond Hydraulic, many of them failed to ever do so.

 On January 25, 1977, the Court ruled that factual findings and exhibits contained in the Coast Guard Marine Board of Inquiry ("MBI") record and report would be admissible, the report of the National Transportation Safety Board would be inadmissible, and the admissibility of testimony taken before the MBI would be determined at trial. See 73 F.R.D. 454 (S.D.N.Y. 1977).

 Later in 1977, the Court granted requests by AEIL, Bath and Sperry for leave to assert cross-claims against the United States for contract and tort indemnity, and these were subsequently filed. A similar request on behalf of the ESSO BRUSSELS claimants was denied. See 76 F.R.D. 210 (S.D.N.Y. 1977). On April 10, 1974, the United States filed cross-claims against Bath, Sperry and Bond Hydraulic, and they in turn reasserted claims over against each other in respect of the government's claims.

 On July 21, 1983, the Court denied a motion by the United States for summary judgment dismissing the cross-claims of AEIL, Bath, and Sperry against it. See 568 F. Supp. 956 (S.D.N.Y. 1983).

 AEIL contends that certain parties have discontinued their actions in exchange for assignments of their causes of action to AEIL, *fn2" Pre-Trial Order ("PTO") at 2-3, and that others have been dismissed or have discontinued their actions in exchange for a general release without assigning their causes of action. *fn3" Id. at 3-4. Furthermore, AEIL has settled its third-party complaint against Bond Hydraulics, Sperry and the U.S.A. *fn4" Id. at 4. Bath has reserved its rights with respect to any such settlements, releases or assignments, including any and all defenses which Bath may assert. Id.

 The remaining dispute in this action, and the sole issue before the Court, is AEIL's claim for relief against Bath. The issue of liability was tried to the Court from May 7 through June 6, 1984. Thereafter, the parties filed voluminous briefs.

 AEIL essentially asserts that Bath, as manufacturer of the SEA WITCH and of the steering gear that failed, should be held liable for damages resulting from the collision. AEIL asserts three theories on which it should recover against Bath: negligence, strict liability, and implied warranties. AEIL in effect seeks both to recover for the direct damages it suffered and to be indemnified for sums paid to third parties in connection with the collision. Bath denies any and all liability with respect to the allegation that the steering mechanism was defective.

 Even though AEIL has settled with Bond Hydraulics, Sperry and the U.S.A., they remain parties to this action for the purposes of allocation of fault and any cross-claims. PTO at 4. AEIL denies any and all liability on the part of itself, Bond, the U.S.A. and Sperry. Id. Further, it is agreed among all parties that Bath shall not be able to AEIL for any fault, liability or judgment attributed to anyone else.

 The Court finds that Bath is not liable in this action, and that the complaint against Bath should therefore be dismissed. The Court further finds that AEIL's navigation of the SEA WITCH on the night in question was negligent, and contributed to the collision. Based on AEIL's negligent navigation alone, the Court finds that 60% of the fault with respect to the collision must be allocated to AEIL. The Court concludes that AEIL may not recover from Bath for any or all of the remaining 40%. The Court has considered all of AEIL's products liability claims, and finds that the evidence adduced at trial does not support those claims.

 Having given careful thought to all of the evidence and having weighed the credibility of all witnesses, the Court has set forth below its findings of fact and conclusions of law dealing with (1) the navigation of the SEA WITCH on the night of June 1-2, 1973, and (2) the design, installation, maintenance and operation of the steering mechanism aboard that vessel. Incorporated in these findings are the many stipulated facts which are germane to the disposition of the matters before the Court. *fn5"

 NAVIGATION

 FINDINGS OF FACT

 1. Shortly before midnight on June 1, 1973 at 2329, the container vessel SEA WITCH departed Howland Hook Container Terminal on Staten Island, New York, and proceeded to sea at slow ahead (4.7 knots) around the northern end of Staten Island by way of Kill van Kull under the control of a docking pilot with two Moran Company tugs in attendance. The vessel at that time was owned by AEIL. *fn6" When the vessel reached a point near New Brighton, Staten Island, the harbor pilot, Captain John T. Cahill ("Cahill"), relieved the docking pilot who transferred to one of the two departing tugs. Trial Transcript ("Tr.") 41-42; Exhs. 9, 2A.

 2. SEA WITCH was at all relevant times an American flag vessel, home port New York, New York, 17,902 gross tons, 12,898 net tons, and approximately 594.2' long x 78.2' beam. At the times hereinafter mentioned she carried a crew of forty, including the master. PTO/UF 2.

 3. As SEA WITCH proceeded down New York harbor, present on the bridge, in addition to the harbor pilot Cahill, were her master, Captain Paterson, who was in command of the ship; third mate Lovsin; deck cadet O'Connor; and the helmsman, able bodied seaman Louis Miller. PTO/UF 5.

 4. At approximately 0025 on June 2, 1973, when SEA WITCH was off St. George, Staten Island, and clear of Kill van Kull, her speed was increased to half ahead, or about 9 knots through the water. The visibility was unlimited, the harbor was calm, and there was an ebb current of 2-3 knots. PTO/UF 6; Tr. 36; Exh. 2(a).

 5. After passing St. George, those in charge of navigating SEA WITCH observed four vessels, including the tanker ESSO BRUSSELS, anchored in the federal anchorage 24, Stapleton, along the eastern shore of Staten Island. A tug and tow were observed southbound in the channel toward the Narrows, and a second tug and tow were observed leaving the anchorage and turning south toward the Narrows behind the first tug and tow. PTO/UF 7.

 6. ESSO BRUSSELS was, at all relevant times, a tanker of 19,782 net tons, 667.4' long and with a beam of 97.3'. On June 1-2, 1973, she was loaded with 319,402 U.S. barrels of crude petroleum and was anchored in position 40 degrees 36' 46" North, 74 degrees 03' 17" West, with her port side approximately parallel to the Staten Island shore, in proximity to the quarantine station. PTO/UF 1.

 7. At 0029 on June 2nd, SEA WITCH's speed was increased to harbor full, which was about 13 1/2 knots through the water. PTO/UF 8.

 8. At about 0036, SEA WITCH passed Buoy 22 at a distance of about 700 to 1000 feet to port on a course of 167 degrees True, which placed her about in the center of the channel heading approximately toward the center of the Verrazano Bridge. PTO/UF 9; Tr. 441.

 9. A moment later the pilot, Cahill, ordered the course changed left, to 158 degrees True to pass the two southbound tugs, KATHLEEN TURECAMO and BARBARA MORAN, on the starboard side of SEA WITCH. PTO/UF 10; Tr. 443; Exhs. 327, 328, 10, 12.

 10. After executing the order to come left to 158 degrees, to check the left swing, the helmsman applied 12 degrees right rudder. At this point, steering control from the bridge was lost and the rudder remained locked at 12 degrees right. At 0037.62, *fn7" the helmsman reported that the ship was not steering. Tr. 438-45; Exh. 327. Upon receiving this report Captain Paterson exclaimed, "That damn steering again." At this time, the distance between SEA WITCH and ESSO BRUSSELS was at least one mile. Tr. 129-30.

 11. Upon hearing this report, the pilot, who was with Captain Paterson on the starboard side of the bridge, went to the center of the bridge; he noticed that the ship was heading straight down the Narrows, not toward Staten Island and not toward Brooklyn, and that the vessel's head was drifting slowly to the right. PTO/UF 12; Tr. 52.

 12. Captain Paterson proceeded to the steering stand and attempted unsuccessfully to regain steering by switching from the starboard steering system to the port steering system. PTO/UF 13.

 13. Some time later, at about 0040, SEA WITCH passed about 150' ahead of the tug BARBARA MORAN and her tow. Thereafter, Cahill commenced sounding a series of short blasts on the whistle and then locked the whistle down to sound continuously. PTO/UF 14; Exh. 12, at 15-16.

 14. When those in charge of navigating SEA WITCH concluded that collision was a certainty, Cahill ordered full astern. The third mate rang full astern on the engine order telegraph and the order was answered by the engine room. Thereafter, Cahill ordered the port anchor let go and ordered the general alarm sounded. PTO/UF 15.

 15. SEA WITCH personnel stationed at the bow were unable to drop the port anchor because the riding pawl had not been raised prior to departure and was jammed against the anchor chain. The chief mate, on his own initiative, attempted to drop the starboard anchor; the anchor landed, however, on the deck of the ESSO BRUSSELS at collision. PTO/UF 16.

 16. Seconds before collision, Cahill told all hands to clear the bridge and the bow. he left the ship's whistle locked on and ran toward the stern of SEA WITCH. The bow of SEA WITCH collided with the starboard side of ESSO BRUSSELS at about 0042. The time between the helmsman's report that steering was lost and collision was over four minutes. *fn8" Tr. 446; Exhs. 327, 328, 329. Both vessels were immediately engulfed in flames and 16 men lost their lives. Property damage was extensive. PTO/UF 17.

 17. Tests conducted by the Coast Guard and others on June 15, 1973 on STAG HOUND, a sister ship of SEA WITCH, brought the STAG HOUND from harbor full speed to a dead stop in the water at a distance of 520 yards. PTO/UF 17(A).

 18. The Court finds that the distance between the SEA WITCH and the ESSO BRUSSELS when steering was lost was at least one mile and might have been as much as 1.3 miles. Tr. 129-30.

 19. The time between the helmsman's report that steering was lost and collision was about 4 1/2 minutes. The Court rejects Pilot Cahill's contention that the interval was only 2 or 2 1/2 minutes.

 20. The SEA WITCH has experienced prior steering difficulties and had recently undergone repairs to her steering system. PTO/UF 65. Those repairs were considered temporary. Id. Although AEIL knew the repairs were temporary, SEA WITCH's after steering station was unmanned. The Court finds this to be contrary to the requirements of good seamanship.

 21. Prior to the casualty, Captain Paterson had not advised Pilot Cahill of those earlier steering casualties, as he was required to do by common prudence and the practice of seamen. Pilot Cahill first heard of it when Paterson exclaimed "That damn steering again" upon receiving the helmsman's report that steering was lost. Tr. 99.

 22. The first and only engine order given by Pilot Cahill after the loss of steering and prior to collision was full astern. The Court finds that no stop order was given. Cahill's testimony to the contrary is rejected.

 23. Cahill waited about 3 1/2 or 4 minutes before ordering full astern, contrary to requirements of good seamanship, and even then he did not order emergency full astern, which would have called for more power. Tr. 89, 449, 507, 596. By this time, as Cahill admitted, collision was a certainty. Tr. 119. The SEA WITCH struck the starboard side of the anchored ESSO BRUSSELS at substantially full speed.

 24. The Court finds that the failure to release the port anchor was also a factor contributing to the collision. Pilot Cahill testified that he hoped the anchor would "pull the bow to port," away from the ESSO BRUSSELS. "It might have helped and it certainly couldn't have hurt," he concluded. Tr. 107. A further factor was the failure to drop the starboard anchor until the SEA WITCH was about to collide with the ESSO BRUSSELS.

 25. In addition, the speed of the SEA WITCH down New York Harbor, about 16 1/2 knots over the ground, was excessive under the circumstances, and was not in keeping with the requirements of good seamanship.

 26. Almost any timely action by Cahill would have avoided collision. Professor Norman A. Hamlin, whose testimony the Court fully accepts, demonstrated that by promptly stopping or reversing the engines, or dropping an anchor, the SEA WITCH would have stayed well clear of the ESSO BRUSSELS. Tr. 447-448; Exhs. 327-333. The Court rejects the testimony of AEIL's expert Robert F. Stanley that no avoiding action was possible.

 THE STEERING GEAR ON THE SEA WITCH

 27. The steering gear room on SEA WITCH contained, among other things, the steering engine, consisting of two hydraulic steering rams connected to the rudder shaft, the hydraulic steering pumps, the differential gear-box (or "differential"), the trick wheel, the connecting linkage, the rotary power units ("RPUs"), the tiller block, all related mechanical and hydraulic components, and the rudder angle transmitter. The steering gear room was located in the stern of the ship, just above the rudder. PTO/UF 46.

 28. The steering engine pumps were activated by the differential which converted rotary mechanical signals into linear directional signals. PTO/UF 48.

 29. The differential could receive mechanical rudder order steering signals from either the bridge, through two independently wired, hydraulically driven RPUs which converted electrical steering commands signals into rotary mechanical signals, or from a trick wheel mounted on the differential. PTO/UF 49.

 30. The two RPUs were mounted on a single platform which in turn was mounted on the starboard end of the forward hydraulic ram cylinder. The RPUs were mounted next to each other, at the same height, with their output shafts facing aft. PTO/UF 51.

 31. The differential was mounted opposite and above the RPUs on a separate platform which was mounted on the starboard aft ram cylinder. PTO/UF 52.

 32. The differential input shaft was approximately eight inches higher than the RPU output shafts. The differential input shaft was directly aft of the port RPU output shaft by approximately thirty-five inches. PTO/UF 53.

 33. The RPUs were connected to each other by a steel chain mounted on sprockets on the output shaft of each RPU. PTO/UF 54.

 34. When the ship was being steered by use of the port RPU, the output shaft of the starboard RPU would be freewheeling because it would be rotated by the chain and sprocket. When the ship was being steered through the starboard RPU, the ouput output shaft of the port RPU would be rotated by the chain and sprocket. If one RPU could not be operated, all steering commands could be transmitted by the other RPU. Only one RPU was needed to transmit the steering commands and only one operated at any one time. PTO/UF 55.

 CONCLUSIONS OF LAW

 In a collision case the court must look to the navigation or seamanship of the vessels involved. In the instant case, the ESSO BRUSSELS was properly at anchor in an official anchorage and was in no way at fault. Thus, it is the navigation and seamanship of SEA WITCH with which the Court is concerned.

 Bath argues that the seamanship and navigation of SEA WITCH on the night of June 1-2, 1973 was such that Bath should be exonerated from all liability, regardless of whether or not Bath was responsible for the steering failure. AEIL argues that the master and harbor pilot--AEIL's agents--acted properly under the circumstances, and that the Court should not "second guess" an experienced master and harbor pilot or substitute its own judgment long after the event. In addition, AEIL contends that the loss of steering was the sole cause of the collision.

 For the reasons set forth below, the Court concludes that AEIL was negligent in its navigation and seamanship. The loss of steering and AEIL's negligence were both causative factors in the ultimate collision. Based on a careful review of the evidence, the Court is convinced that SEA WITCH could have avoided the collision completely, despite the loss of steering, if proper steps had been taken. The Court further concludes that 60% of the fault of the collision must be allocated to AEIL for its negligent navigation and seamanship.

 A. AEIL'S NEGLIGENCE

 The faults charged against AEIL fall generally into two categories: precautionary and remedial. AEIL was negligent (1) in failing to take certain precautionary actions, prior to the loss of steering, that would have helped prevent a collision, and (2) in failing to take the remedial action needed to avoid collision once the steering was lost.

 1. Precautionary Actions

 Those faults which may be described as precautionary are:

 
(a) Failure of the master to advise the harbor pilot of prior failures of the steering machinery, so that appropriate precautions could be taken by the harbor pilot;
 
(b) Failure to retain at least one of the two accompanying tugs until the anchorage had been passed, in case the steering problem should recur;
 
(c) Failure to have the anchors ready to let go;
 
(d) Failure to man the trick wheel while leaving harbor; and
 
(e) Proceeding at a speed which was excessive in light of the prior loss of steering and the temporary nature of the repairs.

 The faults listed above are, of course, interrelated, and the faults of the harbor pilot are the faults of the master. See United States v. The WESTERVELT, 135 F. Supp. 596, 599 (S.D.N.Y. 1955).

 On April 17, 1973, less than two months before the collision, the SEA WITCH had suffered a loss of steering. The repairs made to correct the problem were considered only temporary. PTO/UF 65; Exh. 107. If the master had informed the harbor pilot that there had been a recent loss of steering and that only temporary repairs had been made, it is doubtful that the harbor pilot would have taken the vessel to sea. Tr. 104. In any event, the harbor pilot testified that he would have kept the tugs alongside the SEA WITCH. Id. Failure to advise the harbor master constituted negligence.

 Moreover, the master, who was aware of the recent steering failure, should have kept at least one tug alongside the SEA WITCH until it was safely past the anchorage. Exh. 295, p. 1363; Exh. 303, p. 1548; 305, pp. 1925-26. The master, however, failed to do so.

 It is admitted that the port anchor could not be dropped. Prior to departure, the crew failed to raise the riding pawl, which was jammed against the anchor chain. Failure to ensure that the anchor was ready for release constituted a fault which contributed to the collision. See The SUNNYSIDE, 251 F. 271 (2d Cir. 1918); River Terminals Corp. v. United States, 121 F. Supp. 98, 104 (E.D. La. 1954); The WIRELESS No. 1, 290 F. 239 (E.D.N.Y. 1923); Exh. 293, p. 1671; Exh. 320(b), pp. 2156-57; Tr. 107.

 The most serious precautionary fault, however, was the failure of the master to have the trick wheel in the steering engine room manned while the vessel was under way and until safely beyond the anchorage and harbor traffic. The trick wheel was unaffected by the steering failure and could have been used to steer the vessel. It is significant that on a prior occasion involving the steering mechanism of SEA WITCH, the same master had ordered that the trick wheel be manned when the vessel entered the harbor. Tr. 1809, 1817-18, 1839-40. The master's failure to do so on the later occasion was negligent, as was his failure to direct that the trick wheel be manned once the loss of steering became apparent--as discussed hereinafter.

 The charge of excessive speed prior to the loss of steering is difficult to sustain in view of the good visibility and minimal traffic at the time. Absent the prior experience with the steering mechanism, the SEA WITCH's speed would not have been excessive. However, in light of the prior steering problem--and the master's knowledge of it--SEA WITCH's speed must be considered excessive. Faced with the temporary nature of the repairs, SEA WITCH should have proceeded at a slower speed. *fn9" Thus, under the circumstances, SEA WITCH's speed was not reasonable.

 2. Remedial Actions

 AEIL was also negligent in its navigation and seamanship of SEA WITCH after the loss of steering. The almost total failure to take remedial action to avoid or at least diminish the severity of the collision with ESSO BRUSSELS constituted negligence and was a proximate cause of the collision. The faults charged are:

 
(a) Failure of SEA WITCH to stop her engines immediately upon loss of steering;
 
(b) Failure of SEA WITCH to reduce speed or go full astern until the collision was inevitable;
 
(c) Failure to order the trick wheel manned after loss of steering was known;
 
(d) Failure to drop the starboard anchor.

 In order to understand the faults listed here and the extent of AEIL's negligence, it is crucial to understand what took place during the time between the loss of steering and the collision.

 It is undisputed that steering was lost when SEA WITCH was changing course from 167 degrees to 158 degrees shortly after she passed Buoy 22. PTO/UF 10. The distance between Buoy 22 and ESSO BRUSSELS was approximately 1.4 miles. Professor Hamlin, a naval architect of vast experience, developed a track of SEA WITCH using a formula created by Professor Numoto. Exh. 328; Tr. 435. *fn10" In developing this track, Professor Hamlin took into account the characteristics of SEA WITCH, the change of course from 167 degrees to 158 degrees during which the rudder froze in a position of 12 degrees right, the speed of the vessel, the tide, and the prevailing currents.

 The track presented by Professor Hamlin was not made on a chart with reference to any geographical position but, rather, was a theoretical track in space, which Professor Hamlin placed over the chart upon which he had plotted the known position of the ESSO BRUSSELS. Tr. 461; Exh. 327. Because the collision occurred at 0042, Professor Hamlin moved the track so that the 0042 position was in contact with ESSO BRUSSELS and the upper position was on a heading of 167 degrees. Tr. 434, 440-441. He found that this theoretical track, when so applied, showed that the change of course from 167 degrees to 158 degrees occurred shortly after passing Buoy 22 at a distance of approximately 1000 feet. Professor Hamlin found that the time between the loss of steering and the collision was 4 minutes and 23 seconds, and the distance covered was 6,290 feet, i.e., a little over a mile. Tr. 444-447.

 The validity of the formula employed by Professor Hamlin has not been seriously challenged. The Court does not find the testimony of the harbor pilot to be credible, nor does the Court accept the conclusions of AEIL's expert witness. Professor Hamlin's conclusions are consistent with the testimony of disinterested eyewitnesses who testified concerning the collision and the movements of SEA WITCH during the period immediately preceding the collision. As previously indicated, the Court has adopted the findings of Professor Hamlin with respect to the track of SEA WITCH during the period after passing Buoy 22 and ending with the collision with ESSO BRUSSELS.

 Based on Professor Hamlin's testimony, together with the other evidence presented in this case, the Court is convinced that, after the loss of steering, SEA WITCH had sufficient time to prevent the collision by taking remedial actions. The failure to take such actions constituted negligence. See Complaint of Flota Mercante Grancolombiana, S.A., 440 F. Supp. 704, 714 (S.D.N.Y. 1977); see also The NEW YORK, 175 U.S. 187, 209, 44 L. Ed. 126, 20 S. Ct. 67 (1899); The BERN, 74 F.2d 235, 237 (2d Cir. 1934), The COMMERCIAL MARINER, 63 F.2d 798, 800-01 (2d Cir. 1933), cert. denied, 290 U.S. 643, 54 S. Ct. 61, 78 L. Ed. 558 (1933); The CHEROKEE, 45 F.2d 150, 151 (2d Cir. 1930).

 The failure to stop engines constituted the most serious navigational fault that occurred after steering was lost. Although the harbor pilot testified that he did stop the engines almost immediately, the Court does not find such testimony credible in light of his Coast Guard testimony. His testimony also lacks credibility in light of the testimony of Penswick, mate of the tug BARBARA MORAN, and the computations of Professor Hamlin. It is clear that the engines of SEA WITCH were not stopped when steering was lost, but remained at full speed until collision was a certainty. *fn11" This was a serious fault.

 It has been suggested that the harbor pilot was misled when he mistakenly assumed that the rudder order indicator--which was in the full left position--was the rudder angle indicator, i.e., that the rudder itself was full left instead of being in a locked position of 12 degrees right. Tr. 78-81. However, once the helmsman had reported that the ship was not steering, there was no possible excuse for not stopping the engines. Proceeding at full ahead was gross negligence.

 It was also gross negligence not to man the trick wheel immediately upon learning that the steering was suspect. As previously indicated, the captain had more than four minutes to act between the loss of steering and the collision. That was more than enough time to man the trick wheel and control the direction of the SEA WITCH. Failure to do so clearly violated the principles of proper seamanship under the circumstances of this case.

 Finally, the starboard anchor should have been released. Dropping that anchor might have prevented the collision by slowing, stopping, or turning the vessel. Even though the port anchor was fouled, there was no excuse for failing to drop the starboard anchor. Failure to release the starboard anchor until the moment of collision was at least a ...


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