American Zinc Co. v. Foster

Decision Date20 March 1970
Docket NumberCiv. A. No. 3758.
Citation313 F. Supp. 671
PartiesAMERICAN ZINC CO., Wilbur Ellis Co., Inc., Ralston Purina Corporation, Cargill Incorporated, and International Protein Corporation, Eagle Star Insurance Co., Ltd., Commercial Insurance Company of Newark, Hartford Insurance Company, and Orion Insurance Company, Plaintiffs, v. Jacob A. FOSTER, a pilot, and the Ingalls Shipbuilding Division of Litton Systems, Inc., a Maryland Corporation, Defendants, v. The INGALLS SHIPBUILDING DIVISION OF LITTON SYSTEMS, INC., a Maryland Corporation, Third Party Plaintiff, v. VERA CRUZ CIA. NAVIERA, S.A., Owners of the S/S STELLA MARIS, in personam, and the S/S Stella Maris, her engines, boilers, etc., in rem, and Jacob A. Foster, her pilot, Third Party Defendants.
CourtU.S. District Court — Southern District of Mississippi

COPYRIGHT MATERIAL OMITTED

Merle Palmer, Wm. J. Palmer, Pascagoula, Miss., Frank C. Allen, Jr., Robert B. Acomb, Jr., New Orleans, La., for defendant and third party plaintiff (Ingalls).

Albert S. Johnston, III, Pascagoula, Miss., Raymond P. Hayden, Richard Ashworth, New York City, for third party defendants (Vera Cruz & Stella Maris).

John D. Gautier, Pascagoula, Miss., Lester C. Franklin, Jr., Pascagoula, Miss., Francis V. Elias, Donovan, Donovan, Maloof & Walsh, New York City, for plaintiffs (Cargo).

Clinton Lockard, Pascagoula, Miss., for Jacob A. Foster, defendant and third party defendant (Pilot).

NIXON, District Judge.

This is a suit in admiralty filed by plaintiffs, owners of certain shipments of cargo consisting of zinc concentrates, fishmeal and whalemeal, which was loaded and stowed in Peru aboard the Peruvian ship, S/S Stella Maris, and which was being transported thereon to Pascagoula, Mississippi. Plaintiffs contend that their cargo was partly damaged and partly subjected to "Stella Maris'" claim in General Average when the "Stella Maris" struck a submerged object and ultimately sank while traveling up the Pascagoula River on the night of June 5, 1969. This suit was filed by plaintiffs against the defendants, Vera Cruz CIA. Naviera, S.A. (hereinafter referred to as "Vera Cruz"), owners of the S/S Stella Maris, the "Stella Maris" and its agent, Ferrarhos Hermanos Callao, S.A. Plaintiffs subsequently amended their complaint to bring in as defendants Ingalls Shipbuilding Division of Litton Systems, Inc. (hereinafter referred to as "Ingalls") and Jacob A. Foster, a bar pilot on board the vessel "Stella Maris" at the time of the collision (hereinafter referred to as "Foster").

Subsequent to the commencement of this suit, Summary Judgment was granted in favor of the vessel "Stella Maris", its agent and owners because the affidavits and sworn testimony considered on the Summary Judgment hearing convinced this Court that there was no question of fact concerning the seaworthiness of the "Stella Maris", but as a matter of law, she was seaworthy. Thus, plaintiffs were not, as a matter of law, entitled to recover against those defendants under the Carriage of Goods By Sea Act, 46 U.S.C.A. § 1304.

Also, during the time the Motion for Summary Judgment was under consideration, the defendant, Ingalls, filed a Third-Party action against the "Stella Maris", its agent and owners, and Jacob A. Foster, the pilot. Thereafter, Vera Cruz and the agent for the vessel "Stella Maris" filed a counterclaim against Ingalls. At the trial of this matter C. Tennant Sons, & Co. of New York (hereinafter referred to as "Tennant") and the insurers of the subject cargo were added as parties plaintiff with permission of the Court.

All parties to this action jointly moved the Court for a severance of this trial on the issues of liability and damages and pursuant to admiralty practice under 28 U.S.C. § 1292(a) (3) and Rule 53, Federal Rules of Civil Procedure. The Court granted this motion and has tried and will now decide the issue of liability or responsibility only, having reserved the question of damages for further trial in the event the parties cannot stipulate thereto after they have been fully computed and an adjustment of General Average has been completed.

The Court, having heard all the evidence in this case, considered all exhibits, heard arguments of counsel, and carefully read and considered post-trial briefs as well as proposed findings of facts and conclusions of law submitted by all the parties, now makes the following Findings of Fact and arrives at the following Conclusions of Law:

FINDINGS OF FACT

1. All plaintiffs, other than those who are underwriters, were the owners of the cargo loaded and stowed aboard the "Stella Maris" at the time of the collision in question, including the cargo that was damaged. The Underwriter or Insurer plaintiffs, having reimbursed the titled plaintiffs, their assureds, for the particular losses suffered as a result of the subject casualty were and are subrogated to the latters' rights. The Owner plaintiffs also have standing to complain by virtue of the fact that they have a right of recovery surviving subrogation as to any contribution they may be obligated to make in the General Average declared by the vessel.

2. At the time the cargo was loaded to the "Stella Maris" at the ports of loading in Peru and at the time of the collision in question on June 5, 1969, it was in good order and condition. As a direct result of this collision, the cargo owned by plaintiffs was partially damaged by Pascagoula River water which entered the "Stella Maris" through the tear in her hull caused by striking a submerged object.

3. After being loaded in May, the "Stella Maris" sailed from Paita, Peru, its last port of loading and thereafter arrived off Pascagoula, Mississippi, anchoring at the sea buoy off Petit Bois Island on June 4, 1969. On the following night of June 5, 1969 at approximately 2205 hours "Stella Maris" took aboard the compulsory Pascagoula River pilot and Third Party defendant, Jacob A. Foster, at the sea buoy located south of Horn Island Pass, for the purpose of proceeding north up the Pascagoula River to Terminal "A" wharf located on the Westbank of the Pascagoula River in the Pascagoula harbor to unload her cargo. The vessel weighed anchor and got underway at 2229 hours at full speed ahead. During the voyage up the Pascagoula Channel and into the Pascagoula harbor the "Stella Maris'" first officer, Juan Mejia, who had 22 years of experience at sea and who had sailed into the Pascagoula harbor on four or five previous occasions, was stationed on the forecastle as lookout. Prior to weighing anchor, and after the pilot Foster came aboard, Mr. Mejia consulted and studied Chart No. 414 which is the navigation chart of the Pascagoula Channel and harbor (Ex. I-4) kept aboard the "Stella Maris" as a navigational aid. The vessel was also equipped with a United States Coast Guard Light List, 1969 Volume (Ex. I-3), showing navigational aids in the Pascagoula River, which was consulted by the vessel's captain, Alphonso Oliva Arana, prior to entering the Pascagoula River.

4. Mr. Mejia, the only forward lookout on duty during the voyage from the sea buoy into the Pascagoula harbor, had the duty of keeping a lookout forward for any dangerous or unusual conditions, and for any item that obstructed the vessel's way, and reporting these to the bridge. He received no special instructions from either the captain of the "Stella Maris" or pilot Foster concerning these duties on the night of June 5, 1969, but knew these to be his normal duties as First Officer and lookout. He was stationed on the forecastle, a location approximately 160 feet forward of the bridge. The vessel was equipped with a loudspeaker communication system between the forward lookout's post and the bridge which was in operating condition on the evening of June 5, 1969 as the vessel entered the Pascagoula River.

5. An anchor watch consisting of the quartermaster, Gosi Collaso, and two other seamen were stationed on the forecastle to drop anchor in the event that it became necessary. Three or four seconds was required to let the anchor go. The "Stella Maris" was equipped with two forward anchors which were in position to be dropped when and if the order was received.

6. The captain of the "Stella Maris", Alphonso Oliva Arana, who had been a ship's master for 15 years although this was his first voyage as captain of the "Stella Maris", was stationed on the bridge of the vessel during the period of time from weighing anchor at the sea buoy until its arrival at Terminal "A" wharf at 0010 hours on June 6, 1969. Also stationed on the bridge of the vessel were her third officer, the helmsman, and pilot Foster. The helmsman of the "Stella Maris" was Juan Garcia Chaves, who had served aboard the vessel for a period of two years and four months and had served as helmsman thereon when it entered the Pascagoula River on six previous occasions.

7. The "Stella Maris" was equipped with a fathometer which was in proper operating condition, radar which had a minimum range of one-half mile and a maximum range exceeding ten miles, and a marine radio equipment, none of which was inquired about by Foster on the night in question and none of which was utilized by anyone aboard the vessel either prior to or subsequent to the collision which occurred.

8. The "Stella Maris" had an overall length of approximately 400 feet and a 50 foot beam. She drew 24 feet of water and eye level on her bridge was 42 feet above the water level.

9. The "Stella Maris", at the direction of its pilot, Foster, passed Beacon No. 46 at a distance between 125 and 150 feet to her starboard side. This beacon is shown on Chart 414 and described on the Coast Guard Light List as a flashing red four-second light. At this point the Pascagoula Channel is 350 feet wide and although it is shown on navigation charts to be located 150 feet outside the Channel limit on the east side thereof at its second bend, it is in actuality only approximately 25 feet east of the Channel...

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