128. The first telex was sent by Lopez at 1304 (local Mexico
City time) on February 24. J.Exh. 178; Tr. 1280, 1284. In this
telex, Lopez stated that he was aware of the fact that the fuel
acquired by the TUXPAN in Antwerp, Belgium on February 14 was
having "negative effects" on its main engine. Tr. 1280, 1284;
J. Exh. 178.
129. Lopez sent three more telexes on February 26. J. Exhs.
180, 181, 182. In the first of these, Lopez requested the
vessel to advise Tecomar of the best possible ETA for the ports
of Veracruz and Tuxpan, Mexico. J.Exh. 180. Lopez also
authorized the chief engineer to operate the ship at the
highest speed in order to make up for the time lost during the
storm, "and this way, satisfy the cargo shippers who are
pressing us more each day."*fn62 Id. In the second telex —
sent approximately one hour after the first — Lopez requested
the captain to confirm the workshifts of the helmsmen and to
send him a list of the specific days on which the helmsmen
earned overtime wages. J. Exhs. 181; Tr. 1318-21. Approximately
one-half hour later, Lopez sent a third telex requesting an
estimation of the draft which the TUXPAN would have after
unloading cargo in Veracruz and whether it would be necessary
to rearrange the cargo in order to reduce the ship's
draft.*fn63 J.Exh. 182.
130. On February 27, three more telexes were sent by Tecomar
to the ship. J.Exhs. 183, 184, 185. The first advised the
Captain of current exchange rates between the United States
dollars and Mexican pesos. J.Exh. 183. The second requested the
Captain to "get in touch with these offices by telephone," or
to call Lopez or Hernandez at home. J.Exh. 184. In the third
telex, Lopez set forth a detailed accounting of the expenses
and net pay for every crew member during the month of February.
J.Exh. 185; Tr. 1049, 1346, 1325-26. These computations as to
net pay, however, were based on information which Lopez had
requested in a telex sent to the ship the previous day, i.e.,
on the Captain's confirmation of the crew's workshifts and
overtime. See J.Exh. 181. Given this fact, it is clear that
Lopez was communicating with the TUXPAN as late as February 27.
131. When a shipowner has not heard from its vessel for more
than twenty-four hours, the customary practice in the shipping
industry is to immediately contact the local maritime
authorities. See PTO ¶¶ 58-59, 70-71.
132. Tecomar maintains that the TUXPAN's 1530 report on
February 24 was the last time it had heard from the ship. Tr.
1270-96. For the following reasons, however, the court finds
this to be highly unlikely. None of the telexes sent by Lopez
after February 24 contains an inquiry as to the ship's location
or condition, even though he knew that Tecomar vessels must
report their positions every twenty-four hours, and that the
TUXPAN had recently experienced heavy weather. J. Exhs. 178,
180-85; Tr. 1270-96, 1304-06, 1318, 1314-15, 1323-25.
Furthermore, within the three-day period from February 24-27,
Lopez did not attempt to contact the Coast Guard or any other
maritime authorities, even though he knew that that this was
the customary practice of a prudent shipowner,
and that through Tecomar's participation in the AMVER program,
these authorities could have helped obtain information
regarding the TUXPAN.*fn64 Tr. 1297-98.
133. The mundane content and tone of the telexes sent between
February 24 and 27 coupled with Tecomar's failure to notify the
maritime authorities during this period, indicate that Tecomar
was communicating with the TUXPAN after February 24.*fn65
Moreover, according to an official report issued by the Mexican
government, discussed infra, Tecomar received two telexes from
the TUXPAN on February 26 and 27.*fn66 J.Exhs. 92, 97 at 2.
134. In light of all of these circumstances, the court
concludes that Tecomar was communicating with the TUXPAN as
late as February 27.*fn67 Based on the evidence before the
court, however, it is impossible to ascertain when, where, and
under what conditions the TUXPAN sank.
D. Post-voyage Investigation
135. On the morning of February 28, Lopez informed the
President of Tecomar, Peter Harmsen, that he had been unable to
communicate with the vessel for four days. PTO ¶ 24; Tr. 1053,
136. That same day, Tecomar contacted the Coast Guard and the
Mexican Maritime Authorities to report the TUXPAN as missing.
PTO ¶ 98; J.Exhs. 90 at 3, 1336 at 82, 101.
137. On March 4, Tecomar's Marine Manager, Captain Perez, and
Port Engineer Luis Castro met with the Coast Guard in New York
to provide assistance in the search for the TUXPAN. PTO at
¶ 87; Tr. 1057; J.Exhs. 1335 at 317, 1336 at 121-33, 119, 727,
90 at 103-05. To establish the geographical scope of the
search, the Coast Guard used the information it received from
Tecomar, e.g., that the 1530 telex on February 24 was the
TUXPAN's last report. See J.Exh. 1336 at 160-61; Tr. 447-48.
The exact area of the search was determined by a computer model
based on calculations of weather, drift, and currents. Tr.
138. On March 4, the Coast Guard dispatched airplanes to
search for the TUXPAN. See J.Exh. 90. During the five-day
period from March 3-8, the Coast Guard and the United States
Navy searched 19,000 square miles of the North Atlantic, but
found no trace of the ship. See J.Exh. 90.
139. Subsequently, Tecomar chartered the M/V HEICON to
conduct its own search for the TUXPAN.See Tr. 1341; J.Exh. 1336
at 57. On March 8, Tecomar directed the HEICON to look for the
TUXPAN in an area which was over 100 miles
south of the TUXPAN's customary route.*fn68 Tr. 1341; J.Exhs.
1336 at 157; see also J.Exhs. 92, 729.
140. On March 10, the HEICON discovered a container, numbered
ICSU 358412-3, at a location approximately 170 miles southeast
of the TUXPAN's 1530 position. J.Exh. 93; Pet. Exh. 16. The
container was positively identified as having been leased to
Tecomar and loaded on the TUXPAN at Antwerp before its last
voyage.*fn69 J.Exhs. 92, 93, 94.
141. Other than this container, no flotsam was discovered in
the vicinity of the TUXPAN's last reported position. Tr.
488-89. Furthermore, none of the ship's lifesaving equipment
was ever sighted, and no bodies were ever found. Tr. 488-96.
142. On March 10, the Director of the Mexican Merchant Marine
commenced an investigation to determine the facts and
circumstances relating to the disappearance of the TUXPAN. PTO
¶ 99. On the same day, the Mexican Maritime Authorities
subpoenaed Tecomar to appear before their representatives on
March 16 and present any evidence surrounding the ship's
disappearance. Id. ¶ 100.
143. In compliance with the subpoena, Viveros appeared on
March 16 before a panel of Mexican Maritime Authorities in
Mexico City and presented certain records regarding the
disappearance of the TUXPAN. Id. at ¶¶ 102, 105; J.Exh. 1335 at
336-37. Viveros, however, did not inform authorities of the
TUXPAN's crack history or engine problems. See J.Exhs. 92, 222.
144. The official minutes that were taken at this meeting
formed the basis of the official investigative report — the
"ACTA" — issued by the Mexican Maritime authorities on April
6. J.Exh. 1335 at 337-38, 348-49. Viveros and the others
present at the meeting not only signed the ACTA, but also
reviewed and initialed each individual page.*fn70 J.Exh. 1335
at 337-39; J.Exh. 97 at 2, 4.
145. Based on the files that Viveros turned over to the
Mexican Maritime Authorities, the ACTA contains a list of all
the telexes sent from the TUXPAN to Tecomar during the vessel's
last voyage. J.Exh. 97 at 2; J.Exh. 1335 at 340-44, 372.
Interestingly, this list includes telexes sent from the TUXPAN
on February 26 and 27, even though no such telexes were ever
produced by Tecomar.*fn71 J.Exh. 97 at 2; J.Exh. 1335 at
146. The ACTA concludes that the sinking of the TUXPAN was
caused by the storm of February 24. PTO at ¶ 106; J.Exhs. 92,
222. This conclusion, however, was based on the data supplied
by Tecomar, which did not include the TUXPAN's crack history,
its engine breakdowns, and the problems with its seawater
cooling system.*fn72 See J.Exh. 2, 92, 222; see also J.Exh.
1335 at 376-77.
The court has subject matter jurisdiction over this case
pursuant to 28 U.S.C. § 1333.
B. Applicable Law
Tecomar's liability for the TUXPAN's lost cargo is governed
by COGSA, 46 U.S.C. App. §§ 1300 et seq., and the Hague-Visby