SS TEXACO NORTH DAKOTA,
an American flag oil tanker operating from Port Arthur, Texas,
is the domestic coastwise carriage of refined petroleum products
between various Gulf Coast and Atlantic Coast seaports. Built in
1954 pursuant to Texaco design, TEXACO NORTH DAKOTA measured
565.0 feet and weighed 12,789 gross tons. The ship had an
amidships deckhouse which contained deck officers' quarters and
the navigation bridge. Located at the stern of the vessel was
the after deckhouse which housed the engineering/machinery
spaces as well as the engineers' and crews' quarters.
Fate: On Aug. 21st, 1980, she suffered a serious explosion in
her pump room, killing 3 crew. Scrapped Brownsville Texas, 1983.
BELOW IS THE FULL
INFORMATION OF THIS SHIP ( Source: https://law.justia.com/cases/federal/district-courts/FSupp/570/1272/1437047)
I. FACTUAL BACKGROUND
Texaco, Inc. was the owner and operator of S/T TEXACO NORTH
DAKOTA, an American flag oil tanker operating from Port Arthur,
Texas, in the domestic coastwise carriage of refined petroleum
products between various Gulf Coast and Atlantic Coast seaports.
Built in 1954 pursuant to Texaco design, TEXACO NORTH DAKOTA
measured 565.0 feet and weighed 12,789 gross tons. The ship had
an amidships deckhouse which contained deck officers' quarters
and the navigation bridge. Located at the stern of the vessel
was the after deckhouse which housed the engineering/machinery
spaces as well as the engineers' and crews' quarters. The vessel
was equipped with both a three centimeter radar and a ten
centimeter radar. A mast with a cross-tree was located just aft
of TEXACO NORTH DAKOTA's raised forecastle. This will be
discussed hereafter in greater detail.
Chevron Oil Company was the owner of EI-361-A, a partially
completed oil and gas platform located in the Eugene Island
Oil-field, Block # 361, in the Gulf of Mexico.
Brown & Root, Inc. had, on August 27, 1979, contracted with
Chevron to provide the design, fabrication, load out,
transportation and installation of the platform structure to be
identified as EI-361-A. On July 1, 1980, Chevron notified the
U.S. Coast Guard, 8th Coast Guard District, that installation of
an oil and gas platform, EI-361-A, would commence on July 2,
1980, and made application with the Coast Guard for permanent
aids to navigation for the structure. On July 14, 1980, the U.S.
Coast Guard approved placement of the platform and the
installation of navigational aids.
Actual installation began on July 4, 1980. The jacket
configuration for the platform was constructed by Brown & Root
at their shipyard. It was towed to location by the derrick barge
GEORGE R. BROWN (chartered by Brown & Root) and positioned on or
about July 5, 1980. On July 21, the Brown & Root crew completed
the installation of the jacket. The derrick barge remained on
location until this time. Because the above water platform
section was not ready, the Brown & Root crew and barge returned
to shore.
The Chevron structure measured approximately 151 feet by 47 feet
and was designed to form the base of an offshore platform rising
above the waters of the Gulf. The structure consisted of eight
cylindrical pilings erected in about 305 feet of water to a
depth of approximately 285 feet below seabed. Its total height
was approximately 327 feet, measured from seabottom. Thus, about
12-18 feet of the structure extended above the water surface.
On August 4, 1980, TEXACO NORTH DAKOTA departed Port Arthur,
Texas, and proceeding to Eagle Point, New Jersey. This was one
of the regular voyages that the vessel made between various Gulf
and Atlantic seaports. On August 18, 1980, the vessel departed
Eagle Point on its return trip to Port Arthur via the straits of
Florida, loaded with a highly volatile cargo of raffinate, fuel
oil and refrigerator oil.
Captain Joseph A. Lupton had served as master of the TEXACO
NORTH DAKOTA since early 1977. He had established a course line
for this particular return journey, which was essentially the
same as that which he had followed previously. TEXACO NORTH
DAKOTA travelled in and out *1276 of Port Arthur about two and a
half times a month eleven months out of the year.
Accordingly, during the early morning hours of August 21, 1980,
TEXACO NORTH DAKOTA was proceeding from the Dry Tortugas on the
294° course line set by Captain Lupton. The weather was clear
and visibility was unimpaired. There were light southerly winds,
and the seas were calm. At about 2100 hours, Captain Lupton
retired for the evening. He left instructions to observe his
standing night orders, to change course to 310° at the
appropriate time (in accordance with his track line), to call
him when in any doubt, and to wake him at 0600.
The XXXX-XXXX watch was uneventful. Second Officer Darrell
Miller, in charge of this watch, maintained the 294° T course at
18 knots until approximately 0312, when he changed course to
310°, essentially complying with the track line established by
the Captain. At 0354, Chief Officer Richard Graham relieved
Miller and commenced standing the 0400-0800 bridge watch. At
this time, Miller identified to Graham the rig the vessel had
come abeam of and was passing. That rig was located about one
mile and a half to starboard. Miller also identified a rig with
flashing lights high off the water approximately 12 miles away,
located about three degrees on the starboard bow, later
identified as Bokencamp Rig EI-354-A. Seaman Warren Britt
relieved the helm watch at 0355, and, at the same time, David
Roman relieved the lookout on the bridge wing.
At the time Chief Officer Graham assumed watch, only the ten
centimeter radar was in operation; the three centimeter radar
was on standby. Upon commencement of his watch, he noted a tug
(later identified as the JOAN MORAN) pulling a large barge. That
tug was to starboard. He also observed a lighted platform some
12 miles dead ahead. Graham anticipated passing to the southwest
of that structure and, after passing, bringing the ship back to
the track line established by the captain. He ordered a course
change to 309° true to compensate for what he perceived to be a
slight moderate set to the west.
At approximately 0420, Chief Officer Graham checked the radar
and observed the platform some five miles ahead of the vessel.
He decided to change the ship's course to 305° in order to be
sure to clear the rig.
I conclude that TEXACO NORTH DAKOTA was off course at this point
in time and that the track line established by the captain was
not being followed with precision.
Very soon after the course change to 305°, the lookout, David
Roman, came to the wheelhouse door to report a sighting. I deem
Roman's testimony with respect to that event sufficiently
important to quote it verbatim, as follows:
"Q. When you went out to stand lookout, where was the chief
mate?
A. He was in the wheelhouse.
Q. Was he standing or sitting?
A. He was sitting.
Q. Was he sitting in a chair?
A. Yes, sir.
Q. Where was the chair located?
A. Where was the chair what?
Q. Where was the chair he was sitting in located?
A. It was about It was close to the radar.
Q. Close to the radar?
A. Okay.
Q. Now, can you tell me about what time you spotted the barge?
Was it about 4:20, something like that?
A. 4:20, yeah, something like that.
Q. The casualty occurred about 4:30; is that correct?
A. That is what, sir?
Q. The casualty occurred about 4:30; is that correct?
A. Okay.
Q. Is that right?
A. Yeah.
Q. Now, do you recall what you did when you first spotted the
barge?
*1277 A. Well, I went inside the wheelhouse and tell the mate
what I saw.
Q. What did you tell him then?
A. I told him that I saw, like, an empty barge with no lights on
it coming across the bow.
Q. Now, where was the mate at that time?
A. He was seated in the chair close to the radar.
Q. Was he awake or asleep?
A. Well, he was in a position like, you know, like I won't say.
I can't prove that he was sleeping because he was bent like
that, tired, or something.
Q. He was bent over with his head down?
A. Right, sitting in the chair.
Q. Sitting in the chair with his eyes closed?
A. I can't Nighttime, I can't tell.
Q. In any event, did you have to shake him to tell him the barge
was there?
A. No, sir, I did not touch him.
Q. When you reported the barge, what did the mate do?
A. The first thing he told me that there was nothing on there
because my eyes wasn't familiar with the darkness, you know. So
I went back outside and I look out, see if he was for sure, you
know. So, I came back and told him again that we was getting
closer to a subject I report to him. And he got up and he asked
the quartermaster about it, if he see anything. The
quartermaster say he didn't see anything. So, I went back and I
told him that we going to hit it.
Q. And then you went out a third time; is that right?
A. Yeah.
Q. And you again saw the barge?
A. Yes.
Q. Did you come back in and tell the mate a third time that it
was still there?
A. Sure.
Q. At any time did the mate order that the heading of the vessel
be changed?
A. I hear none of that.
Q. At any time did you see the quartermaster turning the wheel
or taking any evasive action?
A. No, sir."
Roman was sure that the object was unlit. Graham testified that
the object had not appeared on his radar screen at any time
prior to the event. Roman testified that he had observed a
(different) lit structure some miles ahead, with lights high up.
He also observed that the radar scanner was rotating. Thus, the
bridge personnel were all of the firm belief that the structure
which was struck had not appeared on the ten centimeter radar
screen and was unlighted.
Immediately after the allision, the ship's cargo of raffinate
exploded and caught fire, engulfing the entire forward portion
of the ship, including the bridge, in smoke.
The crew followed the captain's orders to abandon ship and with
the exception of those volunteers who stayed aboard to conn the
ship all hands had more or less safely abandoned the ship and
been rescued by other vessels in the vicinity within minutes
after the allision. The hulk of the TEXACO NORTH DAKOTA was
subsequently sold for scrap. The Chevron jacket was virtually
destroyed but remained in place.
The allision generated a large number of claims for personal
injuries and property damages. In these proceedings, Texaco
seeks to limit its liability for those various damage claims to
the value of the vessel following the allision. Claimants
against Texaco include Chevron, Brown & Root, Inc. and Tideland
Signal Corporation, all of whom contend that the damages
resulted from acts of negligence and/or conditions of
unseaworthiness of which Texaco had actual or constructive
knowledge.
II. AVAILABILITY OF LIMITATION
In determining the scope of the protection afforded by
limitation of liability, consideration *1278 must be given to
the social and economic purpose that this exculpatory device
seeks to serve. The Fifth Circuit Court of Appeals has observed
that the impetus behind passage of the Shipowner's Limitation of
Liability Act, 46 U.S.C. § 183 et seq., was to ensure that
American shipping attracted investment capital that the threat
of unlimited exposure might divert to England, which already
provided for limited liability. Continental Oil Co. v. Bonanza
Corp., 706 F.2d 1365 (5th Cir. 1983). Observing that the Act was
passed "in an era before the corporation, with its limited
shareholder liability, had become the standard form of business
organization and before the present range of insurance
protection was available," the Fifth Circuit has called the Act
"hopelessly anachronistic." Id. The court went on to discuss "a
discernible judicial trend to narrow the Limitation Act by
construction." In this circuit, there is, I find, constrictive
application of the Act.
Determination of Texaco's entitlement to limitation necessarily
requires a finding of which acts of negligence or conditions of
unseaworthiness (if any) caused the allision; and whether such
acts or conditions were within the privity or knowledge of the
shipowner. See: In Re Brasea, Inc., 583 F.2d 736 (5th Cir.1978);
Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir.1976).
The initial burden of proving negligence or unseaworthiness
rests with the claimants. In this connection, claimants
correctly note that there is a presumption of fault against a
moving vessel which strikes a stationary object. Bunge Corp. v.
M/V FURNESS BRIDGE, 558 F.2d 790 (5th Cir.1977). Opponents to
limitation having established acts of negligence or conditions
of unseaworthiness, the shipowner then bears the burden of
showing that the negligence or unseaworthiness did not
contribute to the allision and was not within its privity or
knowledge. "Privity" means some fault or neglect in which the
shipowner personally participates, and "knowledge" means
personal cognizance or means of knowledge, of which the
shipowner is bound to avail himself, of a contemplated loss or
condition likely to cause loss, unless proper means are adopted
to prevent it. 3 Benedict on Admiralty section 41 (7th ed.
1981).
The distinction between whether a cause of the allision is
solely due to navigational error on the part of otherwise
satisfactory officers and crew or an unseaworthy condition of
the vessel is critical to a resolution of the limitation issue.
For example, if the cause is the "instantaneous negligence" of
the crew or master, then the shipowner has generally been
allowed to limit his liability on the grounds of lack of privity
or knowledge. Matter of State of La., Dept. of Highways, 455 F.
Supp. 272 (E.D.La.1978); Farrell Lines, Inc. v. Jones, 530 F.2d
7 (5th Cir.1976).
Indeed, the Fifth Circuit has recently noted that no court has
previously denied a corporate shipowner limitation of liability
for a master's navigational error at sea when the owner has
exercised reasonable care in selecting the master. The theory
supporting limitation when the loss results from a master who
has made navigational errors is two fold: First, if the owner
exercises due care in selecting the master, he discharges his
obligations and he may thereafter rely on the master's skill and
expertise. Second, if the owner is so far removed from the
vessel that he can exert no control over the master's actions,
he should not be taxed with the master's negligence. Continental
Oil Co. v. Bonanza Corp., supra.
The latter consideration has been the subject of some criticism,
in view of modern technology which has made it increasingly easy
to maintain communication with vessels at sea. The more
restricted the operation in which a vessel is engaged, the
greater will be the degree of control which the corporate owner
will be expected to exercise. The duty to control thus increases
with the possibility of control. Waterman Steamship Corp. v. Gay
Cottons, 414 F.2d 724 (9th Cir.1969).
However, where the causative factor of an allision is an
unseaworthy condition *1279 rather than a negligent act of the
officers or crew limitation is often denied. The rationale of
such denials is that such conditions could have been, and should
have been, discovered before the vessel left the dock, and,
therefore, knowledge of the causative unseaworthy condition is
imputed to the shipowner through his managerial agents, port
captains, marine superintendents, etc. See: Matter of State of
La., Dept. of Highways, supra, at 281, citing The LINSEED KING,
285 U.S. 502, 52 S. Ct. 450, 76 L. Ed. 903 (1932).
Seaworthiness is defined generally as reasonable fitness to
perform or do the work at hand. Farrell Lines, Inc. v. Jones,
530 F.2d at 11. Unseaworthiness most frequently consists of some
mechanical or structural defect or deficiency in the vessel.
Matter of State of La., Dept. of Highways, supra. In keeping
with the recent judicial trend to narrow application of the
Limitation Act, some courts have also held that an inadequate
crew constitutes an unseaworthy condition. Tug Ocean Prince,
Inc. v. United States, 584 F.2d 1151 (2d Cir.1978); Matter of Ta
Chi Navigation (Panama) Corp., 513 F. Supp. 148 (E.D.La.1981).
This has led, in some instances to a conclusion that a vessel
was unseaworthy because the errors in navigation came about as
the result of an inadequate crew. Tug Ocean Prince, Inc., 584
F.2d at 1156; Complaint of Thebes Shipping, Inc., 486 F. Supp.
436 (S.D. N.Y.1980). But, if the owner fulfills his duty to use
due and proper care in providing a competent master and crew and
sees that the ship is seaworthy, then losses occurring by reason
of fault or negligence in navigation are a valid basis for
limitation. Equally clear, however, is the premise that "... an
owner cannot close its eyes to what prudent inspections would
disclose. An owner must avail himself of whatever means of
knowledge are reasonably necessary to prevent conditions likely
to cause losses." Waterman Steamship Corp. v. Gay Cottons, 414
F.2d 724 (9th Cir.1969); Avera v. Florida Towing Corp., 322 F.2d
155 (5th Cir.1963).
III. ALLEGATIONS AND EVIDENCE OF NEGLIGENCE
Claimants against Texaco contend that the crew of TEXACO NORTH
DAKOTA was negligent in (1) failing to use the safety fairway
established by the United States Coast Guard; (2) posting the
lookout on the bridge instead of on the bow; (3) failing to pick
up a U.S. Coast Guard broadcast warning of possible damage to
navigational aids following the passage of Hurricane Allen; and
(4) failing to use both radar sets. Claimants contend that these
acts of negligence were within the privity or knowledge of
Texaco. Claimants further assert that the vessel was unseaworthy
in that the ten centimeter radar aboard the vessel allegedly had
a "blind spot," and that the navigational chart in use on the
voyage was inaccurate and did not reflect updated information
contained in the most recent edition of the 8th District, U.S.
Coast Guard, Local Notice to Mariners. Similarly, claimants aver
that these conditions of unseaworthiness were within the privity
or knowledge of Texaco, and that limitation of liability should
therefore be denied.
At the outset, it must be noted again that there is a
presumption of fault against a moving vessel which strikes a
stationary object. Thus, although claimants bear the initial
burden of proving which acts of negligence or conditions of
unseaworthiness caused the accident, this burden is met by the
presumption of fault against Texaco. Accordingly, the burden
shifts to Texaco to demonstrate that it was without fault or
that the allision was occasioned by the fault of the stationary
object or was the result of inevitable accident. Bunge Corp. v.
M/V FURNESS BRIDGE, 558 F.2d 790 (5th Cir. 1977).
Texaco maintains essentially that the cause of the allision was
the negligence of one or more of the claimants in failing to
insure that the navigational aids installed on the Chevron
jacket were operational following the passage of Hurricane Allen
through the Gulf. Had the jacket been properly lighted, Texaco
argues that the allision would not have occurred.
*1280 The testimony of bridge personnel on watch aboard TEXACO
NORTH DAKOTA on the night of the allision was uniform there were
no lights on the Chevron jacket. Other testimony is not as
compelling: Steve Sweimler was a mechanic employed by Reagan
Equipment Company who did maintenance work during the summer of
1980 (one week on, one week off) on Texaco platform EI-338-A,
located approximately four to five miles north of the Chevron
jacket. Sweimler was familiar with the location of other
platforms in the area. He recalled seeing the jacket when it was
set in early July. Sometime thereafter, and continuing through
the week of July 29, 1980, to August 5, 1980, he observed four
flashing lights on the jacket. When Sweimler returned to Texaco
platform 338-A after the hurricane alert (discussed later), he
noted that the jacket was no longer lit at night.
Ben Landry was a pumper on Texaco platform 338-A during the
summer of 1980. He was also familiar with the various oil and
gas structures in the area. Landry testified that prior to the
hurricane, he observed two flashing lights; he noted that in his
experience, such structures normally have four lights, and
concluded that possibly only two were visible from his angle of
view. Following the hurricane, Landry returned to the Texaco
platform for four days and three nights and did not see any
lights on the jacket during this period.
Landry reported the outage to Jerry Marcotte, a Texaco
production foreman for the field on platform 313-A, and two days
later, called the Texaco office in Morgan City to report the
matter to Allan Verret, a Texaco district civil engineer. Verret
confirmed that he received this call on August 12th, but
apparently erred in recording the identity and location of the
unlit jacket. Because of this, Verret never ascertained the
owner of the jacket.
Chevron and other claimants contend that Texaco has failed to
prove that the jacket was unlighted on the night of the allision.
They contend that it is apparent the jacket was properly
lighted. Chevron offered the testimony of Walter Evans, an
alleged eye witness to the allision. On the night of August 21,
1980, Evans was aboard the tug M/V JOAN MORAN, which was towing
a large barge across the Gulf. Evans testified that, on his
radar, he saw the TEXACO NORTH DAKOTA overtake his vessel on the
port side, and then pull ahead and across his bow. Evans further
testified that prior to the allision, he noticed two stationary
oil and gas structures on his radar, and that he also visually
observed dim lights on the nearer structure, as well as bright
lights on the structure about eight to ten miles behind it.
Evans had made this trip previously, but could not recall if he
had noticed the dimly lit structure before, and did not have it
indicated on his chart.
In a written statement taken the day after the incident, Evans
elaborated further, stating that he "had them both on radar, but
looking at them visually, right, I couldn't tell which was the
closer and which was the further away rig." Evans continued to
observe the TEXACO NORTH DAKOTA and noted that immediately prior
to the allision, the vessel and the two structures he had
observed "came on line." Shortly thereafter, he saw the vessel
collide with the jacket. At that time, Evans was about five
miles away from the vessel and the jacket.
Chevron also called Michael O'Brien, a cadet wheelman employed
by Offshore Crews aboard the M/V MATAGORDO SEAHORSE. On August
20, 1980, that vessel was enroute from Morgan City to Bokencamp
Rig No. 3, EI-354-A (a Mobil rig) to discharge liquid mud. The
Chevron jacket was about five miles southeast of the Bokencamp
rig. When the MATAGORDO was about one mile north of that rig,
O'Brien noticed some lights southeast of his heading, and
because he was "new in the area," thought at first that the
lights might have been the Bokencamp rig. O'Brien testified that
he had never seen a light in block 361, but he had only been in
the area once before at night. O'Brien did not see any lights
beyond those he noted, and was unaware that there was a platform
and rig in block 384, southeast of block 361 about 12 to *1281
13 miles away from the MATAGORDO at the time he noticed the
lights. O'Brien testified that he also saw lights to the south
of his course.
What might be termed as positive testimony regarding the
lighting on the structure is, at best, inconclusive, while the
negative testimony is strong and clear. Furthermore, in dealing
with this issue, I have thought it fair and proper to give
considerable weight to Roman's testimony on this point (which is
helpful to Texaco's contention of failed lighting) to the same
extent that I credited his testimony (damaging to Texaco)
regarding Chief Officer Graham's conning of the ship.
I find that the structure was unlit or so inadequately lit that
it was unlit for practical, navigational purposes.
IV. THE PART PLAYED BY BROWN & ROOT AND TIDELAND SIGNAL CORP.
A review of the history of the navigational aids installed on
the EI-361-A is pertinent to further resolution of the lighting
issue. The contract between Chevron and Brown & Root provided:
Contractor (Brown & Root) shall be responsible for placing
appropriate temporary Coast Guard approved navigational aids on
the structure at all times when construction equipment is not
alongside the structure. Contractor shall be responsible for
maintaining this equipment in operating condition until
construction work under this contract is completed insofar as
possible.
In accordance with this provision, the Brown & Root work crew
installed on July 21, 1980, navigational aids rented from
Tideland Signal Corporation ("Tideland"). These aids consisted
of two flashing white lights and a fog horn. On July 22, 1980, a
Chevron representative contacted Brown & Root and ordered
installation of additional navigational aids, approved by the
U.S. Coast Guard. Brown & Root contracted with Tideland for
provision and installation of these additional aids.
On July 24, 1980, two Tideland service technicians and two Brown
& Root welders traveled to EI-361-A and installed these
navigational aids, with transportation provided by Brown &
Root's derrick barge GEORGE E. BROWN. The lights already in
place were removed and four 6 foot high 3 inch diameter steel
poles were welded to the horizontal cross trusses of the well
jacket, one on each of the four corners. Pedestals were then
welded on top of each pole, and an ML-300 light installed on
each pedestal, secured with 3½ inch diameter bolts. Each light
was 2½ feet from the base to the top of the lens, with a
diameter of 17 inches. The lights were rated by the U.S. Coast
Guard as having a visibility of 5 miles, and were connected with
a "sync" line so that they would flash in unison. The top of the
lights was approximately 22-23 feet above the surface of the
Gulf. An Audio Beam 2-Mil Fog Signal, Model AB-860 was also
installed. The power to run the lights and fog signal was
provided by batteries with appropriate backups. The work crew
and vessel returned to shore after these installations, and the
Chevron structure was, thereafter, unattended.
During the period August 6 through 9, Hurricane Allen moved into
and across the Gulf of Mexico, producing gale winds and high
seas. The center of the storm passed some 250-275 miles south of
the location of EI-361-A. Because of the passage of Allen,
Chevron made the decision on August 13, 1980, to contact Brown &
Root to request that the navigational aids on the jacket be
inspected. As a result of this, Lonnie Cowan, Brown & Root
Marine Construction Coordinator Manager, contacted Winton Adams,
accounts manager for Tideland, and requested an inspection of
the above described navigational aids. It is apparent that Adams
understood that this inspection was to be performed as soon as
possible, and stated that in the normal course of events it
would have been performed within a week. Adams referred the
request to Calvin Carrier, service manager for Tideland in
Berwick, Louisiana. Adams was aware that Hurricane Allen had
just passed, and stated that he had received *1282 many similar
calls. He also testified that he received a fairly substantial
number of orders for lights damaged by the hurricane. In
response to the call from Adams, Carrier contacted various
companies to obtain a vessel for transportation, but was unable
to procure one immediately. He instructed those companies to
call him as soon as a boat did become available.
Adams testified that he was informed by the service department
that no boats were available, and that he called Cowan back to
advise him of this problem. Adams further testified that he
requested a vessel from Cowan, who responded that he had none
available. This testimony directly conflicts with that of
Carrier, who stated that he did not recall calling Adams back,
and Cowan, who stated that although he did not offer to provide
transportation, he would have had vessels available, and that
Adams never called to request assistance with the
transportation. Brown & Root records essentially support Cowan's
assertion that a vessel could have been made available to
transport an inspection team to the jacket location.
Moreover, the evidence supports the conclusion that the service
department did in fact have a vessel available to carry out this
service request. The M/V SPARTACUS is a vessel chartered by
Tideland on a more or less continuous basis for servicing
maintenance contract customers of Tideland on a periodic basis.
The schedule for that vessel during August 13-20 indicates that
it was in the area of the Chevron jacket. Specifically, the ship
logs demonstrate that the SPARTACUS passed within ten miles of
the jacket on August 18, 1980. Moreover, Carrier testified that
he had in the past contacted the SPARTACUS while at sea to make
various inspections in the area where it was operating. Carrier
stated that in this instance he did not consider using the
SPARTACUS because he did not feel there was any particular
urgency and because he had made tentative ("call me back")
arrangements to charter another boat.
Carrier went on vacation on August 15th, leaving in charge Alan
Pearson, an assistant supervisor who testified that he was not
often left in charge. Pearson stated that Carrier instructed him
that the Brown & Root request remained outstanding and that as
soon as a boat company called with a boat available, the call
out was to be performed. Pearson never did receive such a call.
Though he was in daily contact with the SPARTACUS (out at sea
from August 15 through August 21), he did not feel that he had
authority to re-route the vessel.
The Brown & Root call out was therefore never performed. After
the allision, Adams sent a telex to Brown & Root confirming this
nonperformance:
We must advise you that the inspection of Aids to Navigation on
the Chevron Oil platform at Eugene Island 361 requested by you
on or about August 13, 1980, has not yet been accomplished. Our
delay is due to unavailability of helicopters or boats after
Hurricane Allen and the many requests by other offshore
operators for inspections and replacement of storm lost
equipment.
Based on the failure of Tideland to perform the call out, and
the testimony of its witnesses, Texaco contends that the lights
on the Chevron jacket were not functioning on the night of the
allision. Relying primarily on the testimony of Evans and
O'Brien, claimants contend otherwise. The testimony of the
witnesses on this point was clearly inconsistent.
I conclude that the navigational aids on the jacket were damaged
at least to the extent that they were virtually
indistinguishable on the night of the allision. In so holding, I
do not impugn the credibility of any of the witnesses who
testified that they saw lights. The area in which the Chevron
jacket was situated was marked by a variety of rigs and
platforms, making it easy to confuse one for another, especially
when, as is the case with Evans, one viewed the Chevron jacket
from an angle at which it was dead ahead of another much larger
and brightly lit platform and rig. I acknowledge that the
possibility that other rigs or platforms were mistaken for the
Chevron jacket is one that exists with respect to all of the
witnesses; however, I find this possibility *1283 to be less
likely in the case of Landry and Sweimler, offshore workers who
had been working in the area for some time and were comparably
familiar with the area, and thus more likely to notice
accurately any changes. Although O'Brien had occasionally worked
in the area of EI-361-A, he was far from familiar with the area,
and in fact conceded that he was new in the area. The same is
true of Walter Evans, who also was not familiar with the jacket.
I conclude, therefore, that the jacket was unlighted on the
night of the allision as a result of damage inflicted by the
passage of Hurricane Allen. Winton Adams, accounts manager for
Tideland, testified that after that hurricane he received many
calls for inspections to navigational aids, and many orders for
lights damaged by the hurricane. The testimony of Calvin Carrier
(Tideland's service manager) that Tideland did not receive an
unusually large number of calls is unpersuasive because of his
departure on vacation shortly following the hurricane.
I conclude also that the absence of properly functioning lights
on August 21, 1980 contributed to the allision which took place
at that time. I am aware of those cases cited by claimants for
the proposition that the absence of lights on a structure was
not a legal cause of an accident. Placid Oil Co. v. S.S.
WILLOWPOOL, 214 F. Supp. 449 (E.D.Tex.1963); Continental Oil Co.
v. M/S GLENVILLE, 210 F. Supp. 865 (S.D.Tex. 1962). Both cases
are distinguishable. In Continental Oil, the bridge personnel
did not utilize the ship's radar at all, no lookout was posted,
and the latest charts showing the position of the structure with
which the vessel collided were not aboard the ship. Moreover,
the court made a specific finding that the lights upon the
structure were of sufficient intensity and brightness, such that
any negligence in this regard was "minor and technical when
taking into consideration the faults of the vessel." 210 F.
Supp. at 866. I find that in the circumstances of this case, the
absence of lights upon the Chevron jacket cannot be considered
merely "technical fault."
V. CHEVRON'S SITUATION
As owner of the well jacket EI-361-A, Chevron had a general
statutory duty to provide the structure with properly operating
lights. 33 C.F.R. 67.01 67.15-10; 33 C.F.R. 62.20, 62.25-50;
Chevron Oil Co. v. M/V NEW YORKER, 297 F. Supp. 412
(E.D.La.1969). Pursuant to contract with Chevron, Brown & Root
agreed to be responsible both for placing appropriate temporary
navigational aids on the structure at all times when
construction equipment was not alongside, and for maintaining
these aids in operating condition until construction work was
completed. Brown & Root hired Tideland to provide and install
temporary navigational aids. When Brown & Root received a phone
call from Chevron to inspect these navigational aids, it called
Tideland to perform this task, which responsibility Tideland
accepted. Tideland's failure to perform this task constitutes
negligence on its part. Moreover, Brown & Root failed to ensure
that its contractual responsibilities were adequately fulfilled,
and in this respect was itself negligent. Chevron had a general
statutory duty to provide the structure with proper lights, and
attempted to fulfill this duty by contractually delegating this
responsibility to Brown & Root during the construction phase,
and by requesting an inspection of the aids from Brown & Root
following the hurricane. These actions, reasonable to the extent
that they were carried out, nevertheless fail to exonerate
Chevron entirely from responsibility.
VI. TEXACO AND THE SAFETY FAIRWAY SITUATION
Since the 1950's, oil and gas platforms and related structures
have proliferated in the Gulf of Mexico coastal area of
Louisiana and Texas. To maximize safety in navigating these
areas, the U.S. Corps of Engineers has established systems of
"safety fairways" leading to every major deep water Gulf Coast
port, including Port Arthur. Use of the safety fairways,
although not mandatory, is recommended by the U.S. Coast Guard:
*1284 "A system of shipping safety fairways has been established
along the Gulf Coast to provide safe lanes for shipping that are
free of oil well structures. Vessels approaching the passes and
entrances to the ports, or bound along the Gulf Coast between
Sabine Pass and San Luis Pass should proceed in the charted
shipping safety fairways...." (U.S.C.G. Coast Pilot No. 5.)
At trial, TEXACO NORTH DAKOTA's Captain Lupton testified that he
was aware of the steady increase in the number of platforms in
the Gulf. His decision not to follow the safety fairway into
Port Arthur was deliberate, based on his opinion that the
fairway was too narrow, and heavily congested with vessel
traffic. Captain H. Pappas, Manager of Texaco's U.S. Fleet
Operations, testified that Texaco was aware that this and other
of their vessels did not regularly utilize the safety fairways.
Texaco's policy was not to interfere in such decisions but to
leave matters of navigation[1] to the discretion of its masters.
Although Texaco does recommend use of "traffic separation
schemes," Captain Pappas testified that these were not
considered to include safety fairways.
Captain Welch was master of the TEXACO NORTH DAKOTA from 1961
through 1964, and from 1969 through the spring of 1977, when he
was relieved by Captain Lupton. Captain Welch testified that he
also had "run the rigs"[2] in and out of Port Arthur, and that
in his opinion the safety fairway was no safer than "running the
rigs" because of the density of traffic therein. Texaco's expert
master mariner, Captain Kenneth Torreas (formerly employed by
Farrell Lines) concurred in this assessment.
The foregoing testimony was called into question by that of
Chevron's expert master mariner, Captain Thomas DeTemple, who
stated that it was unsafe to run outside the safety fairway in
the Gulf since it was not unusual to find unlit structures out
there, and also a proliferation of new structures, some of which
spring up in a matter of days. Captain DeTemple testified that
it was for these reasons that his former employer, Farrell
Lines, had instructed its mariners to use all safety fairways,
separation zones, and recommended routings. Captain DeTemple's
opinion was confirmed in all respects by Captain Claude
Davenport, a master mariner and maritime consultant.
Chevron contends that the failure to use the safety fairway was
negligence contributing to the cause of the allision, and that
this negligent practice was within the actual knowledge of
Texaco's management. Chevron cites the GEMINAR, (1977) 2 Lloyd's
List Reports 17, wherein a collision occurred between two ships
in the Dover Strait where there was, at the time of the
casualty, a traffic separation scheme in force, designated to
separate ships proceeding through the strait in one direction
from others proceeding in the opposite direction. The scheme
involved two main traffic lanes which were marked by arrows on
the relevant charts. Although compliance with this scheme was
not compulsory by law, the court observed:
Good seamanship, however, requires that ships should, in general
comply with the scheme, so that failure by any ship to comply
with it may well amount to negligent navigation on her part.
After finding that the master of the GEMINAR was well aware of
the traffic separation scheme depicted on the relevant charts,
and the recommendations with regard to it, the court found that
the vessel was guilty of fault, and that this fault caused the
collision.
Texaco argues that the Gulf of Mexico "safety fairways" are
distinguishable from the traffic separation schemes positioned
*1285 throughout the world in heavily trafficked channels.
Safety fairways were created pursuant to 33 C.F.R. 209.135. This
regulation delineates certain areas in the Gulf where offshore
drilling, exploration, and production is prohibited. However,
there is nothing in the regulation requiring vessels to navigate
only in the safety fairways. By contrast, argues Texaco, traffic
separation schemes were established by the Inter-Governmental
Maritime Consultative Organization (IMCO), for the purpose of
segregating vessel traffic into "one-way navigation routes" at
the approaches to various international seaports and channels.
Texaco has through various Circular Letters and Notices urged
the use of traffic separation schemes where applicable,
although, as Texaco agrees, navigation through traffic
separation schemes is not mandatory by law, but only encouraged.
Texaco attempts to distinguish safety fairways from separation
schemes insofar as standards of prudent navigation are
concerned, and there may be some validity to this when
considered only from the standpoint of a navigational decision
by the captain and the officers who are actually conning the
vessel. But a management determination to leave this decision
entirely in the hands of the line officers of the company
vessels is one that must be painstakingly scrutinized from the
limitation standpoint.
Although the allision may well have been avoided had the Chief
Officer not deviated from Captain Lupton's track line
(questionable navigation in and of itself), it is clear that the
allision would have been averted had the vessel been proceeding
within the appropriate safety fairway, a route designed and
intended to prevent allisions such as the one which occurred
here. Captain Lupton took a greater risk in failing to use the
safety fairway at a time when Hurricane Allen had recently
passed through the area. The conscious decision not to use the
safety fairway was within the actual knowledge of Texaco. This
important fact is essentially conceded by Captain Pappas,
Texaco's Manager of domestic fleet operations, and distinguishes
this case from those in which limitation was granted where the
accident occurred due to an act of navigational negligence over
which the shipowner had neither control nor knowledge. Moreover,
since Texaco encouraged use of traffic separation schemes, it
clearly could also have encouraged and recommended use of safety
fairways here with compliance being essentially assured thereby.
The failure to require use of the safety fairway just after
Allen's passage was, I believe, a decision that intertwined both
navigational and managerial processes. Indeed, I find
navigational and managerial oversights intertwined to a
substantial degree throughout the factual occurrences that
involve Texaco and to an extent that fully supports the breaking
of limitation.
VII. HURRICANE ALLEN
As noted previously, during August 6th through 9th, Hurricane
Allen moved across the Gulf of Mexico, its center passing
approximately 250-275 miles south of the Chevron jacket. From
August 8th-22nd, the Eighth Coast Guard District used its radio
facilities to make daily marine broadcasts from various Coast
Guard radio stations on the East Coast and in the Gulf of
Mexico:
Due to Hurricane Allen, aids to navigation, particularly lighted
and unlighted buoys, may be moved from charted positions,
damaged, destroyed, extinguished or otherwise made inoperative.
Lights on offshore structures may be extinguished and drilling
rigs moved off location, leaving well casings, pilings, and
related equipment which may be lighted or unlighted. Mariners
should use extreme caution and report any aid to navigation
discrepancies to the nearest Coast Guard unit. (Broadcast Notice
to Mariners No. 3538-80)
This Notice was broadcast on 2670 kilohertz, a frequency not
guarded by the TEXACO NORTH DAKOTA (nor required to be so
guarded). It was also carried on 432 kilohertz, a frequency
which was guarded by the vessel. The Notice ceased being
broadcast on August 22nd, the day after the *1286 allision.
Texaco contends, and claimants do not dispute, that U.S.
Merchant Marine ships are not required constantly to monitor
incoming radio traffic but must only monitor eight hours of
radio traffic usually from 0800 to 1600 hours. The radio station
transmitting the above noted message was sent once a day during
the radio officer's normal watch. The radio officer aboard the
TEXACO NORTH DAKOTA did not pick up this broadcast. No shoreside
personnel of Texaco was assigned the task of monitoring these
radio broadcasts, and apparently no one in Texaco's shoreside
employment did in fact pick up this broadcast.
Captain Lupton testified that he was aware of the passage of
Hurricane Allen in the Gulf and that he had plotted its course.
He testified further that if the information contained in the
radio broadcast had been specifically called to his attention by
his marine office, he might have taken more particular
precautions. Captain Lupton was aware of the passage of the
hurricane, and was also aware, or should have been aware, of the
increased risks created thereby. His decision not to use the
safety fairway in these circumstances constituted a risk-taking
decision to which Texaco was privy.
VIII. LOOKOUTS, RADARS AND CHARTS
On the night of the allision, David Roman was posted as lookout
for the 0400-0800 watch. He stood this watch on the wing of the
bridge. The Chief Officer positioned Roman on the wing of the
bridge rather than on the bow because he believed the higher
position provided a better vantage point and because he would be
better able to monitor the lookout at that station. Captain
Lupton testified that this positioning was in accordance with
his general policy. The lookout was placed on the bow only when
the vessel was approaching port or when the weather caused poor
visibility. Texaco did not recommend or mandate any particular
positioning of lookouts, and left these decisions to the
discretion of its masters.
Chevron contends that the failure to post the lookout on the bow
on the night of the allision was negligence which contributed to
the allision. Chevron cites cases holding that the proper place
for a lookout is, under ordinary circumstances, on the bow.
E.g., Sun Oil Co. v. S.S. GEORGEL, 245 F. Supp. 537
(S.D.N.Y.1965). But, even assuming improper navigation in not
placing the lookout on the bow, such improper navigation is not
a managerial concern. See Complaint of B.F.T. No. Two Corp., 433
F. Supp. 854 (E.D.Penn.1977).[3]
The TEXACO NORTH DAKOTA was equipped with a three centimeter
radar set and a ten centimeter radar set. On the night of the
allision, only the ten centimeter radar set was operating, with
the three centimeter radar set on standby. Texaco left it to the
discretion of its masters when to use one or both radar systems.
For example, it was Captain Lupton's policy to use both radars
when entering and departing port, but, in open sea conditions,
one radar was used, with the other on standby. If Captain Lupton
considered the waters to be congested, he would order the use of
both radars; he testified further that he would use both radars
when approaching a number of rigs. Only one radar was operating
when he retired for the night of August 20, 1980. Although he
left no instructions concerning the radar, he testified that he
expected that his qualified officers would use their good
judgment in reaching a decision to use (or not to use) both
radars when approaching the rigs several hours later.
*1287 Claimants contend that the failure to use two radars on
the night of the allision, coupled with the existence of an
alleged "blind spot" in the ten centimeter radar in use at that
time, constitute negligence and unseaworthiness within the
privity and knowledge of Texaco's management.
Claimants contend that a blind spot existed in the ten
centimeter radar due to the positioning of the radar viz-a-viz
the foremast and its crosstree. The foremast was 2'25" wide and
approximately 45'4" from the deck to the crosstree, which itself
measured 24'2" across, and about 45.4' above the forecastle
deck. The ten centimeter radar scanner was 48'7" above the deck,
and was located about 115'8" back from the foremast and cross
tree which were positioned slightly to the left forward of the
radar scanner. The bottom of the crosstree was 2.48' above the
scanner. The TEXACO NORTH DAKOTA was the only remaining vessel
of its class in the domestic fleet with the foremast and
crosstree placed precisely as it was.
On May 28, 1980, Chief Engineer W.J. Clark of the TEXACO NORTH
DAKOTA sent in a Form M162 Shipyard Repair Request to crop the
foremast. The request was designated "Hold for further study
August 11, 1980." At the time of the allision, no further action
had been taken on this request.
It is uncontested that the officer conning the ship at the time
of the allision, Chief Officer Graham, at no time viewed the
Chevron jacket on the ten centimeter radar screen, although he
looked at the screen some five to six times during the 20-25
minutes he was on watch before the allision. It is apparent that
the ten centimeter radar, if properly adjusted, should have
easily picked up the jacket. There was no testimony that the
radar was improperly adjusted on the night of the allision.
Chief Officer Graham testified that the gain on the radar was
properly adjusted, and this testimony was essentially confirmed
by the vessel's radar maintenance man, Altrer Tschurhart, who
checked the radar that night before retiring.
Claimants, as noted previously, contend that the ten centimeter
radar was flawed by the presence of a blind spot caused by the
obstruction of the foremast and crosstree; and that this blind
spot prevented or obscured the jacket from appearing on the ten
centimeter radar screen. The testimony at trial substantially
confirms that the configuration of the foremast and crosstree
had some obscuring effect upon the ability of the radar to pick
up targets. This interference was described variously as a
"vector of interference," "shadow sector," "grey area," "area of
reduced power output," and "attenuated area."
Chief Officer Graham was aware that the ten centimeter radar had
"shadow sectors" or "vectors of interference." He understood
that this interference resulted from the foremast configuration
previously described and acknowledged that the Chevron jacket
was just prior to the allision probably positioned in the area
of interference, which comprised approximately a 3°-6° vector
fine on the port bow, "extending from the heading line on out."
Darrel Miller, Second Officer, testified similarly. He was aware
of a "gray area" about 8° on the port bow caused by the
foremast. Finally, Captain Lupton testified that he had heard
discussion of a blind spot on the ten centimeter radar, and that
he had noted a gray area. It was his opinion that this was
caused by the crosstree on the foremast. On cross-examination,
Captain Lupton conceded that removal of the crosstree could have
improved the radar. He testified, however, that it was his
understanding that this was not the reason for the request to
crop the foremast, but that this request was made because the
crosstree and foremast no longer served a useful function and
the crosstree was rusting.
The manufacturer's manual for the Raytheon 1660 ten centimeter
radar refers to the possibility of a blind spot caused by the
foremast of the ship. The manual further states that the angular
width and relative bearing of any shaded sector should be
determined immediately after installation.
*1288 Texaco's shore-side personnel were unaware that the ten
centimeter radar experienced any area of interference, and
explained that Texaco would rely on its masters and crew members
to bring any such problem to its attention. Both John H.
Merrell, Acting Assistant Manager Onshore and Robert L. Kroh, a
radar maintenance man stationed onshore, testified that they
were generally aware that radar interference can be caused by
obstructions such as foremasts, smoke stacks, etc. Texaco did
not initiate or conduct any affirmative investigation to
determine the existence and/or degree of the extent of such
interference.
Chevron called Hilliard Lubin, an expert radar consultant, who
testified concerning calculations he made with respect to the
physical location of the foremast and crosstree in relation to
the radar scanner. He concluded that there was a shadow area
from dead ahead to about ten degrees to port, give or take a
degree, caused by the foremast and crosstree. Referring to The
Use of Radar at Sea, by Captain F.J. Wylie, one of the respected
treatises in the field, Lubin stated that the average foremast
causes some shadow, and that, accordingly, a crosstree causes a
greater problem. The reference notes further that where the
scanner is placed at or just above the level of the crosstree, a
more extensive sector of interference may result. The writing
goes on to observe: "of the necessity for exact and intimate
knowledge of the sectors and for exhibiting the information on a
notice or tally plate near the display, there is no dispute."
It was Mr. Lubin's opinion that the shadow area on the TEXACO
NORTH DAKOTA was the only reasonable explanation for the Chief
Officer's failure to see the jacket on the ten centimeter radar
screen. Lubin also testified that the three centimeter radar
should have been used on the night of the allision because it
has a narrower beam width, allowing a more detailed picture. He
went on to make the statement that Texaco management had the
responsibility to give instructions concerning the navigation of
a vessel with a radar blind spot or shadow area.
Chevron calls attention to Summit Venture Limitation
Proceedings, Civil Action No. 80-563 on the docket of the United
States District Court, Middle District of Florida, decided on
March 14, 1983, 566 F. Supp. 962. SUMMIT VENTURE collided with
the Sunshine Skyway Bridge. The vessel owner sought to limit
liability. SUMMIT VENTURE was equipped with two three-centimeter
radars. On May 16, 1980, the vessel was proceeding through
Egmont Channel in the Tampa Bay in extremely severe weather
conditions, including heavy rain and fog. The crew was unable to
visually sight buoys placed to guide the ship's course and radar
contact with the buoys was also lost due to the heavy rainfall.
Interference apparently resulted from simultaneous operation of
the two radars. The court concluded that the interference
resulting from the radars operating together did not in and of
itself render the vessel unseaworthy. However, the court
concluded that the problem was well known and that it was an
error of judgment on the part of the owners to allow the ship to
proceed to sea without correcting a known problem.
Though Texaco essentially concedes the existence of a gray area
which occasionally diminished visibility on the radar scope,
they argue that it in no way completely obscured targets. Texaco
argues further that the radar sets were regularly maintained and
reasonably fit for their intended use as an aid in navigating
the ship. Mr. Kroh, Texaco's onshore electronics man, was
familiar with this ten centimeter radar and testified that he
considered it fully fit for use.
Texaco contends that several possibilities exist for the failure
of the Chevron platform to appear on the radar scope, including
improper adjustment of the radar, or a circuit failure
immediately prior to the casualty.
The problem with these contentions is that they are just that
contentions unsupported by the evidence. There is no evidence
*1289 to support the contention of improper adjustment or of
circuit failure; in fact, the evidence indicated that the radar
was properly adjusted on the night of the allision. A more
plausible explanation for the radar's failure to pick up the
jacket was that it was lost or obscured in an area of
interference located several degrees off the port bow and caused
by the positioning of the foremast and crosstree.
The vessel owner had a duty to investigate the apparent
existence of an area of radar interference and to determine its
nature, intensity, and size. This could have resulted in
appropriate measures to remove the foremast or the crosstree.
Where the ship owner could make a determination of such needs by
reasonable and prudent inspection, he is burdened by that
responsibility. Summit Venture Limitation Proceedings, supra;
Waterman Steamship Corporation v. Gay Cottons, 414 F.2d 724 (9th
Cir. 1969).
The U.S. Defense Mapping Agency ("DMA") publishes a weekly
Notice to Mariners containing updates of recent changes and
additions to navigational aids and other matters of navigational
safety for the high seas, territorial waters, inland waters and
harbors throughout the United States and the world. These
Notices also contain weekly updates of offshore well locations
and related structures.
The U.S. Coast Guard, 8th District, publishes a weekly Local
Notice to Mariners for the district. The Local Notice contains
useful marine information relating to the U.S. Intracoastal
Waterways, Mississippi River and its tributaries, and other
waterways and harbors within the territorial limits of the 8th
Coast Guard District. Local Notices are printed, and delivered
to the 8th Coast Guard District's mail room on Fridays, and,
thereafter, disseminated by U.S. Mail to those on the District's
mailing list. The Local Notices are also sent to the DMA where
some of the information contained therein is collated and
included in a subsequent DMA Notice to Mariners.
Title 33 C.F.R. 164.33 requires that all vessels have the most
recent, available and currently corrected copy of both the DMA
Notice to Mariners and the Local Coast Guard Notice to Mariners.
On July 30, 1980, the 8th Coast Guard District Local Notice to
Mariners No. 32-80 was compiled, containing a notice that
"Chevron 192-3 in position 28-07-04N, 91-39-25W has been
established displaying four quick flashing white lights. Sign:
CH-EI-361-A. Chart: 11340." This Local Notice was delivered to
the U.S. Postal Service on Friday, August 1, 1980, for
distribution through the regular mail.
As the navigating officers of TEXACO NORTH DAKOTA traversed the
Gulf, they referred to NOAA chart No. 11340 (40th Ed. March 1,
1980). That chart had been placed into service aboard the ship
on August 15, 1980. The chart was updated by weekly Notices to
Mariners, and at the onset of this voyage had been corrected
through and including Notice to Mariners No. 33, the most recent
issue of that publication preceding the allision. Because that
Notice did not contain information concerning the Chevron
structure, the navigation chart did not reflect the existence of
the structure. It is undisputed that the most recent Eighth
Coast Guard District Local Notice to Mariners No. 32-80
containing that particular information had not been received
aboard the vessel. Captain Lupton testified that he was aware of
the statutory duty to have both the Notice to Mariners and the
Local Notice to Mariners aboard, and that it was his
responsibility to ensure that all necessary navigational aids
were aboard. He acknowledged that TEXACO NORTH DAKOTA had not
been placed on the mailing list for the Eighth Coast Guard Local
Notice to Mariners. Thus, the vessel did not receive said
publication at all during 1980.
Texaco's shoreside management did not receive the 8th District
Local Notices to Mariners, and was unaware until after the
allision that the TEXACO NORTH DAKOTA was not receiving them.
Texaco relied upon its masters to ensure that appropriate
publications were ordered and on board. Texaco itself takes
responsibility for ensuring *1290 that all charts and
publications ordered through them by their ship masters do in
fact reach the vessels, and in general that all ship mail
reaches the vessels.
Had Captain Lupton put his ship on the mailing list for the 8th
Coast Guard Local Notices to Mariners, Local Notice 32-80,
published and sent to the U.S. Postal Service on August 1, 1980,
would have reached the vessel at some point prior to the
allision, if not by August 4th when it departed on its journey,
at least by August 18th, when the vessel docked at its interim
destination: Marcus Hook, Pennsylvania.
Whether the vessel owner could properly delegate responsibility
to the ship's navigating officers for ensuring that all
appropriate charts and publications were aboard is an important
consideration. Chevron relies on several cases in contending
that the vessel owner's failure to ensure that up-to-date charts
and publications were aboard constitutes a breach of its duty to
provide a seaworthy vessel.
In Com. of Puerto Rico v. SS ZOE COLOCOTRONI, 456 F. Supp. 1327
(D.P.R.1978), the COLOCOTRONI grounded off the coast of Puerto
Rico, necessitating the dumping of much of its cargo of crude
oil. Multiple suits were filed, including a petition by the ship
owner for exoneration or limitation of its liability, and an
action brought by the Commonwealth of Puerto Rico seeking
recovery of clean up costs. The court noted that because of the
unusually contumacious conduct of the defendant during the
pretrial phase of the case, it was obliged to strike the
defenses and dismissed the petition for exoneration and
liability. Nevertheless, the court went on to delineate its
substantive reasons for denying limitation in discussing
defendants' liability for clean up costs. The court noted:
Our view of the law ... is that charts, light lists, and similar
navigational data are essential equipment for the safe
navigation of a ship, that she is unseaworthy without them, and
it is the duty of her owner to supply them. Such documents of
course become sources of information for the navigator, and the
task of securing them is often delegated to officers of the
ship. Failure to supply adequate information or navigation
without it may thus constitute negligent navigation or
management for which they are chargeable; but it does not follow
that the owner is thereby relieved by the Harter Act from
liability from ensuing disaster, because the same circumstances
may also amount to failure on his part to use due diligence to
make his vessel seaworthy. The duty of an owner in this respect
is nondelegable; and the navigation of a ship defectively
equipped by a crew aware of her condition does not relieve the
owner of his responsibility or transform unseaworthiness into
bad seamanship. 456 F. Supp. at 1334.
The COLOCOTRONI case is distinguishable from the instant one in
several respects. First, it did not directly involve a
disposition of the breaking of limitation, and to the extent
that it did, it relied upon cases involving exoneration under
the Harter Act. Second, the shipowner's agent shoreside
exercised absolute control over the day to day operations of the
vessel; and it is well established that the greater the degree
of control exerted by the vessel owner, the greater is his duty
of control. The COLOCOTRONI decision does, however, stand for
the general proposition that a vessel owner has a duty to ensure
that his vessel is equipped with proper charts.
Claimants rely heavily upon the recent decision in The MARION,
on appeal from the High Court of Justice, Queen's Bench Division
(Admiralty Court), decided on May 20, 1983. In that case, the
vessel MARION damaged an oil pipeline when she attempted to
weigh anchor. The immediate cause of the damage was found by the
lower court to be the negligence of the master in navigating the
vessel off uncorrected charts upon which the pipeline was not
shown.
The owners sought to limit their liability under the Merchant
Shipping Act of 1894 on the ground that the damage to the
pipeline was caused without their actual fault or privity. The
lower court found for the owners in the limitation action. He
held *1291 that the provision and maintenance of the charts,
including their correction, were matters incidental to
navigation, and thus properly within the sole responsibility of
the master. The owners were thus justified in relying on the
master to ensure that the vessel was provided with adequate and
up-to-date charts.
On appeal, claimants argued that it is not sufficient in this
day and age for a shipowner to leave to the master, without any
supervision, the whole responsibility for the adequacy of a
ship's charts, even though incidental to navigation. Basically
agreeing with this contention, the appellate court reversed,
stating that:
where ... there is a particular hazard of accident due to
failure to have up to date charts on board, which is or ought to
be known to shipowners, then it is their duty to ensure that
their vessels are supplied with the latest up to date charts.
The extent of the duty will vary according to the circumstances,
but ... it is not sufficient for the owner to rely on his master
to obtain the necessary publications and information for the
purpose of navigation.... `It is no longer permissible for
owners or managers to wash their hands so completely of all
questions of navigation, or to leave everything to the
unassisted discretion of their masters.'
Both courts found that the master of the MARION was grossly
negligent in handling the vessel's charts. A corrected chart
showing the pipeline was aboard the ship, but was not used. The
master was in complete charge of requisitioning and up dating
charts. The master inadequately performed these tasks charts
were not consistently updated and out of date charts were not
consistently discarded when new ones were obtained. The
appellate court held that the vessel owners violated their duty
to ensure that the vessel was furnished with the latest charts
and navigational information, including their duty to institute
an appropriate system for this purpose.
This holding was based in large part on the fact that about one
year prior to the incident, a report had been issued by various
Liberian inspection officials that was highly critical of the
state of the charts aboard the vessel. The higher court found
that this report should have put the shipowner on notice that "a
very unsatisfactory situation existed ... in relation to charts
requiring urgent remedial action...." In light of that report,
the court observed that the practice, "if it be a practice," of
leaving the correction of charts wholly to the master without
even knowing what, if any, system was in operation on board the
vessel, and without any supervision of the master and his
officers, was fraught with danger and inconsistent with the high
standard of care owed by the shipowner in relation to charts.
The key distinction between The MARION and the instant case is
that the vessel owners in the former case had strong reason to
know that the master's handling of the charts was grossly
negligent because of the inspection report turned over to the
operations manager of the shore-side management team. Texaco had
no such cause to believe that its delegation of authority in the
area of charts to Captain Lupton was lacking in some fashion.
This distinction is not, however, sufficient to render The
MARION completely inapplicable. My review of the cases in this
area leads me to the conclusion that a vessel owner is generally
held to a high standard of care to ensure that his vessel is
equipped with up-to-date navigational information, and that this
includes more than a total delegation of responsibility to a
master, however competent. At the least, a vessel owner has a
duty to assure itself that an adequate system is established for
the updating of charts, and to periodically check to see that
the system is functioning properly. Texaco's compliance with
this duty fell short of these minimum standards.
There remains the question of causation. In The MARION, it was
clear that the lack of a suitable chart updating system
contributed to the accident since a corrected version of the
chart showing the pipeline was in fact aboard the MARION, but
simply *1292 was not used. The vessel owners argued that because
the owners had provided a correct chart, the sole cause of the
accident was the master's negligence in not using it. The court
rejected this contention, finding that if the vessel owner had
taken appropriate action on the Liberian report, including at
least a reprimand for the master, "it is impossible to say that
the master would have continued to navigate off out of date
charts." In the instant case, the question of causation is less
clearly resolved. The latest Local Notice for the 8th District
was not aboard the TEXACO NORTH DAKOTA at the inception of its
voyage on August 4, 1980. It was sent out by the Coast Guard on
Friday, August 1, 1980, and, thus, Texaco contends, would not
have reached the vessel before it sailed, even had it been on
the mailing list. Since Texaco contends that the Notice would
not have reached the TEXACO NORTH DAKOTA until it returned to
home port, they further contend that any negligence in failing
to obtain the Local Notices could not have contributed to the
accident.
Claimants contend that the vessel would surely have received the
Local Notice at its interim destination at least, along with
other forwarded ship's mail. This contention is supported by
evidence that Texaco's shore side personnel regarded ship's mail
as a high priority item.
IX. CONCLUSION
I find that the allision which occurred in the early morning
hours of August 21, 1981, was directly attributable to varying
degrees of fault on the part of all parties involved. Further, I
find Texaco is not entitled to limit its liability.
A progression of coincidental failures, oversights, mishaps and
non-followups all played a part in causing the allision.
Fortunately, the loss occasioned thereby has been pretty much a
property loss situation, since, mercifully, there was no loss of
life and the alleged personal injuries were, in almost all
instances, quite moderate.
I have tried to make the apportionment of fault as fine tuned as
possible. Basically, I have concluded that the fault should be
apportioned on the basis of something in the range of one-third
against the unlighted structure (or, perhaps I should say, the
structure which I conclude was unlighted) and two-thirds against
the ship. But, even that required a little additional fine
tuning since I considered every possibility between 35%-65% and
30%-70%; finally arriving at 67% as to the vessel and 33% as to
the structure.
Then, the matter of the apportionment among the so-called
structure entities needed to be addressed. My considerations in
that regard were based on a conclusion that the magnitude of
that aspect of the fault determination was on a sort of one,
two, three basis, with Tideland bearing the greatest degree,
Brown & Root next, and Chevron last. After a good deal of
consideration on this point, I finally concluded that the
percentage of liability of the structure entities should be
Tideland16%, Brown & Root 12%, and Chevron 5%, so that the
overall apportionment of fault for the allision and the
resulting damages occasioned thereby is: Texaco 67%, Tideland
16%, Brown & Root 12%, and Chevron 5%.
NOTES
[1] Whether this kind of decision is validly a matter of
navigation will be later discussed.
[2] By use of this informal frame of reference, I imply no
specific criticism of that particular navigational decision,
i.e., to "run the rigs." Rather, I use it simply to signal the
difference between what was done here (running the rigs) and
conning the vessel through the designated safety fairways.
[3] That case determined that the failure to maintain a proper
lookout was not within the privity or knowledge of the owner.
The court reasoned that the policy of the Act seeks to protect
owners from operational fault over which they have no control.
Furthermore, management in that case had entrusted this
operation to a man who had worked for more than 25 years and had
never had an accident. The court concluded that management had
no actual knowledge of the failure of the captain to post a
lookout, and that they had no non-delegable duty to decide in
all situations to post a lookout.
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