The opinion of the court was delivered by: RICHARD OWEN, Senior District Judge
On November 24, 1997, the MSC Carla, a fully-loaded 900 foot
containership, was on a voyage from LeHavre to Boston following a
recent month-long dry-docking with a "Special 25 Year" Survey by
Lloyd's Register at which time over 100 men did a lot of work on
the vessel and Lloyds' issued a clean certificate of class.
The first days of the voyage were uneventful. The Carla had
loaded cargo at various ports such as Hamburg, Bremerhaven and
left LeHavre for Boston on November 21. The vessel was properly
loaded and its stability was satisfactory. Captain Giuseppe
Siviero, an experienced master, described the Carla as being in
good to optimum condition. On November 24, however, weather
conditions began deteriorating and wind speed increased steadily
until by 4 o'clock that afternoon wind from the west reached force 10 or 11 on the Beaufort Scale, approximately 55 to 72
miles per hour, with wave heights of 11 to 12 meters. The
vessel's heading was 250 degrees with seas coming at its
starboard bow at an approximately 20 to 40 degree angle and
swells from a previous storm coming at its port bow from a
southwesterly direction. Thus, approaching from different
directions, the storm waves were confused. At 6 o'clock, the
vessel suddenly rolled heavily about 25 degrees several times
and then steadied somewhat. These several rolls, in addition to
tossing and breaking all the dishes in the crew dining room,
caused all three engines the major center one and two side
engines to stop running because of lack of oil pressure. The
engineer was shortly able to get the center engine going and the
Carla continued on its 250 degree course but at minimal speed.
Shortly after regaining power on its central engine, the
Carla encountered the first of at least two large, steep waves.
Captain Siviero (through an interpreter) testified as to what
Q. Now what happens after 1830 hours?
* * *
A. Well, of course the first thing we did was we tried to put a
little bit of order because of everything having been thrown all
over the place, and to try to put the situation, the conditions
was they were prior to that incident of rolling. And of course
the engineer below was trying to get the two side engines started
again. As we were adjusting and increasing the pitch, of course
we were gaining a little bit more speed. . . . six maybe seven
knots, because it's only one engine. We started climbing a wave,
and you could see that the bow light kept coming up and up and up
and up, and I could see that the ship was going up this wave.
Q. And then what happened?
A. So I was trying to judge how big this wave was by the
inclination of the ship, and I noticed that the bow light was
lower than where one would expect it to be in relationship to the
pitch of the ship. (Tr. 122-23).
* * * Then as we started going down the other side of this
wave, . . . the ship made a very strange motion as if
it had wanted to screw itself into the wave . . . I
heard a very sharp hit, impact, and of course the
noise had been carried through the hull, but a very
sharp staccato noise, and then going up this second
wave, and I noticed that there was something
absolutely wrong. As a matter of fact my first
officer, I noticed that the bow was going down. The
ship was going up, the bow was going down, and the
first officer was saying we've broken apart, we've
broken apart and I was able to see. I immediately ran
out to the wing on the observation wing and what I
noticed is that this part, the bow was actually
separating itself to port, away from the rest of the
ship. And we broke apart. (Tr. 123-24).
* * *
Q. When did it break?
A. On the first wave. Here is hogging started, to crack here.
When it go down, the big shock break, go up again, split. (Tr.
Q. What happened after that?
A. The wave passed, the impact passed also, went away, of
course. When we went so, there was the impact. The impact
stopped. The wave passed over us*fn1 but we started going up
that wave and that's when the ship broke. That's when it
separated, split. (Tr. 129).
Q. In your opinion, captain, based on being up on the bridge on
November 24th at approximately 1830 hours, at what point did the
ship begin to break in half in events, over the series of waves
that he has just talked about?
A. I would say that the ship started breaking apart on top of
the first wave. . . . That's when I believe that the cracking
Q. Captain, exactly why do you think it cracked at that
particular moment, at the top of the first wave?
A. Because we saw that the bow light had started to lower
itself relative to the position where it should have been, and
the line of containers, the surface of containers was not in line
with the containers aft of them. They had shifted as though they
had shifted position, because they were lower. (Tr. 124).
* * * The hull of the Carla broke apart roughly in a complete
circle at or just in front of the welding at the back of a 15
meter elongation section defendant Hyundai Corporation ("HC"),
had built and inserted in its mid section in front of the bridge
some 13 years earlier. The front half of the vessel moved to port
and fortunately the captain was able to turn the stern half of
the vessel (with the rudders) to starboard and thus avoided
hitting the separated forebody. The front half, over 5 days,
slowly filled up with water and sank. The stern half was towed to
Los Palmas Island, the cargo unloaded, then towed to Gijon,
Spain, where it was scrapped.
Going back those 13 years to February 20, 1984, HC, involved in
the ship building services, entered into a ship elongation
contract with the then-owner of the vessel, Brostrom Shipping
Co., Ltd., under which HC, identified as the "contractor,"
undertook to lengthen the NIHON, as the Carla was then named,
by adding approximately 15 meters length in its middle in
accordance with its plans and specifications annexed to the
contract. Bostrom was to pay HC some $2,000,000 for the work with
liquidated damages under the contract of $25,000/a day for
failure to deliver the vessel by the 25th day delivery date.
HC obtained the builders' risk insurance. HC did not perform
the work but delegated it to its shipyard, specifically Hyundai
Mipo Dockyard ("HMD"). HMD fabricated the new midbody section in
its shipyard in Ulsan, Korea. It cut the vessel in half, put in
the new midbody which was then joined by welding to the old
aftbody and forebody. In addition to the work on the NIHON, HMD
was more or less simultaneously doing three other lengthening projects for the group of which
Brostrom was a member, and as to one, the M/V JUTLANDIA, HMD's
work on that vessel overlapped with its work on the NIHON by
approximately twenty days. Consequently, from the trial
testimony, it appears that the many labor demands on HMD were
causing the JUTLANDIA to be nine days behind delivery schedule
and the NIHON (now named Carla) three days behind schedule. To
avoid or minimize liquidated damages under the contract, HMD
contracted with quite a number of outside welders to supplement
HMD's welding staff but their quality, as I conclude here, had
disastrous consequences thirteen years later.
Six months after the NIHON's delivery, it was discovered that
all 76 butt welds to the doubler straps on the deck of the
Carla were deficient and HMD acknowledged to officials at
Lloyd's Register in early June of 1985 that the outside welders
brought in had done a poor job. The doubler straps referred to,
three on each side of the deck for much of its length, to be made
continuous, were to be welded between each section with what is
called full penetration welds. This requirement, imposed by
Lloyd's Register, was to provide adequate deck strength
especially across the newly-installed midsection. Normally, it
appears HMD's welders did their work in the shop which would have
made it easy to do a two-sided transverse butt weld bottom to
top. Instead, here, HMD elected to install the doublers plate by
plate onto the deck. As a result, the welders not being able to
come up from the underside, failed to do "full penetration welds"
which obviously markedly weakened the straps which were there to
strengthen the deck while the vessel would be bending and turning in waves.*fn2 It also appears
that for the 60 HMD welders Lloyd's Register had only one hull
surveyor present and he did not have the ability to observe every
weld. One of HMD's top vice-presidents acknowledged that HMD's
quality assurance department did not radiograph all of the welds
to ensure they were of good quality. Instead it appears HMD
decided to only perform random radiographic inspections which did
not catch a number of faulty welds. How many were missed and
unexplained is not clear. This, in addition to the new doubler
joints not being staggered relative to the joints of the plates of old body part, made it
even weaker (see, infra).
Also, a substantial number of design and construction flaws
were concentrated in a relatively small area. The most
significant of these was a cavity of an undetermined number of
inches in length and irregular in shape where there should have
been solid welding where the deck and the starboard topside
joined at the rear of the inserted section. This should never
have existed. And not only did the cavity increase the stresses
in that area but welding irregularities high and low points of
welding material inside the cavity also created additional
points of stress.*fn3
Next there was a 7 mm gap from a misalignment of a sheer strake
plate and the deck plate at one point. This misalignment was
purportedly compensated for by the welders filling the gap with
welding material but which, according to engineering testimony in
fact increased stresses at that point. Further, as mentioned
above, in a number of places there was a failure to have the
doubler welds "bridge" the erection joint weld. In homely terms,
this is like a bricklayer building a brick wall by putting one
brick one exactly on top of another without alternating the
bricks. In some cases there was insufficient beveling on the deck
plate, meaning the HMD workers beveled at a 25 degree angle from
the vertical where drawings specified 45 degrees, which made it
impossible for welders thereafter to fully insert a welding tool
into the crevice for a full penetration weld. Many butt welds
also contained slag which weakened their ability to bear loads that they were designed to carry.
Joseph Winer testified as an expert for the plaintiffs'
interests and was personally involved in supervising the
lengthening of a number of vessels over the years. He went aboard
the Carla's aft section the moment it was towed to Los Palmas
immediately after the break-up in December 1997 and visited it
later four times over a one year period in Gijon, Spain. He
concluded that quality assurance was lacking and that the
inspection practices and procedures were inferior which permitted
defective welds to go uncorrected. He faulted HMD's planning,
particularly as to the design and construction of the deck
Winer, after being very specific about the defects in the
workmanship by HMD's welders, testified that from the
observations and measurements he made aboard the vessel the ship
failed on deck, and the fracture ran ...