In re Marine Sulphur Queen

• Citation: 460 F.2d 89
• Decision Date: 25 April 1972
• Docket Number: 35235 and 35247.,Dockets 35228,No. 457-460,35233,457-460
• Parties: In the Matter of the Vessel MARINE SULPHUR QUEEN. Marine Sulphur Transport Corporation, As Owner, Appellant, and Marine Transport Lines, Inc., As Demise Charterer, Appellant, Bethlehem Steel Corporation, Impleaded Respondent-Appellant, United States Fire Insurance Co., Cargo Claimant-Appellee and Appellant, Ida Ruth Heard et al., Death Claimants-Appellees and Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

460 F.2d 89 (1972)

In the Matter of the Vessel MARINE SULPHUR QUEEN.

Marine Sulphur Transport Corporation, As Owner, Appellant, and

Marine Transport Lines, Inc., As Demise Charterer, Appellant,

Bethlehem Steel Corporation, Impleaded Respondent-Appellant,

United States Fire Insurance Co., Cargo Claimant-Appellee and Appellant,

Ida Ruth Heard et al., Death Claimants-Appellees and Appellants.

Nos. 457-460, Dockets 35228, 35233, 35235 and 35247.

United States Court of Appeals, Second Circuit.

Argued January 26, 1972.

Decided April 25, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John A. Sullivan, New York City (Cadwalader, Wickersham & Taft, William S. Busch, and Fred R. Profeta, Jr., New York City, on the brief), for appellants Marine Sulphur Transport Corp. and Marine Transport Lines, Inc.

Harold R. Medina, Jr., New York City (Cravath, Swaine & Moore, Ralph L. McAfee, David S. Cupps, Arnold P. Messing, and Ronald E. Guttman, New York City, on the brief), for impleaded respondent-appellant Bethlehem Steel Corp.

Douglas A. Jacobsen, New York City (Bigham, Englar, Jones & Houston, and Joseph J. Magrath, 3rd, New York City, on the brief), for cargo claimant-appellee and appellant, United States Fire Ins. Co.

Donald E. Klein, New York City, and George J. Duffy, Hoboken, N. J. (Herbert J. DeVarco, Chairman, Proctors Committee, Samuel Ackerman, New York City, Nathan Baker, Hoboken, N. J., Burton M. Epstein, Douglas A. Jacobsen, Herbert Lebovici, Thomas McElligott, Ned R. Phillips, Enrico S. S. Sanfilippo, and Jack Weinberger, New York City, on the brief), for death claimants-appellees and appellants.

Seward & Kissel, Eugene P. Souther, Martin C. Seham, New York City, Alfred E. May, and Edward P. Ruddy, Washington, D. C., on the brief for The American Institute of Merchant Shipping, American Maritime Ass'n and Shipbuilders Council of America, on the brief, amici curiae.

Before FRIENDLY, Chief Judge, ANDERSON, Circuit Judge, and BONSAL, District Judge.^*

ANDERSON, Circuit Judge:

The Marine Sulphur Queen (the Queen), a converted T-2 tanker laden with a cargo of molten sulphur, left a pier at Beaumont, Texas, with pilot aboard at 1330 C.S.T. on February 2, 1963. At 1900 the pilot was dropped at Sabine Bar Seabuoy and the vessel continued on her course for Norfolk, Virginia, with her estimated time of arrival at noon E.S.T. on February 7th. At 0125 E.S.T. on February 4th a personal message from a crew member was received by R.C.A. This was the last word heard from the ship or from anyone on her. Thereafter at 1123 an attempt was made to contact the Queen by R.C.A. radio but there was no response. At that time, had all gone well, the vessel's estimated position would have been roughly 100 nautical miles, on a bearing about West by South, from Key West, Florida. No radio distress message was ever received.

For the next nine days extensive air and surface searches were conducted for the vessel and her personnel. Nothing was found which could be identified with the vessel. Thereafter a second search was instituted and there were discovered eight life jackets, five life rings, two name boards, a shirt, a piece of an oar, a storm oil can, a gasoline can, a cone buoy and a foghorn, all of which were marked or identified as belonging to the lost vessel.

There was oil on some of the life jackets and life rings, but there were no traces of sulphur on any of the items; nor was there discovered any splintered or scorched debris or other evidence of fire or explosion. An underwater exploration was made by the Navy for the vessel's hulk, but without avail. Concentrated search operations were terminated on March 13.

After a thorough inquiry by a Marine Board of Investigation, convened by the Commandant of the United States Coast Guard, into all the circumstances of the ship's disappearance, it was concluded by the Board and the Commandant that, for an unknown and unascertainable cause, the Queen had gone to the bottom with the cargo, and the entire ship's company of 39 had been lost.

Claims were made by the representatives of the deceased crew members (Death Claimants) based upon the general maritime law relating to unseaworthiness of a vessel, under the Jones Act, 46 U.S.C. § 688, and under Death on the High Seas Act, 46 U.S.C. § 761 et seq., and also by United States Fire Insurance Company (F.I.C.), based upon the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. (COGSA), as insurer of the cargo shipped by Texas Gulf Sulphur Co., to whose claim F.I.C. was subrogated. Marine Sulphur Transport Corporation (MSTC), as shipowner, and Marine Transport Lines, Inc. (MTL), as demise charterer, petitioned for exoneration or limitation of liability pursuant to 46 U.S.C. § 183 et seq. Later Bethlehem Steel Co. (Bethlehem), as the shipbuilder, and Texas Gulf Sulphur Co. (TGS) were impleaded as respondents.

At the trial voluminous evidence was presented covering the circumstances surrounding the acquisition of the Queen by MSTC, the arrangements for her conversion from a former oil tanker to a carrier of molten sulphur, the nature and details of the conversion, extensive expert testimony as to the effect of the structural changes on the operational condition of the ship as a molten sulphur carrier, the characteristics and hazards of the cargo and the history of the ship prior to the fatal voyage, including her 63 round-trip voyages as a molten sulphur carrier between January 18, 1961, when the Queen was certified by the Coast Guard for the carriage of Grade E liquids at elevated temperatures, and February 1, 1963, when she commenced taking on cargo for what proved to be her last voyage. There was evidence as to the quantity of this cargo and its stowage. The testimony also included statements by experts as to the possible causes for the loss of the vessel, cargo and crew. All of these elements of the case are described and discussed in the opinion of the district court, 312 F.Supp. 1081 (S.D.N.Y.1970). For the purpose of this review a summary will suffice.

In April, 1960, TGS was desirous of making long term arrangements for the transportation of its molten sulphur. As a result of negotiations with MTL, the latter agreed to cause its wholly owned subsidiary MSTC to purchase a 17 year old, T-2 oil tanker, Esso New Haven, to be converted into a molten sulphur carrier by Bethlehem at its Baltimore shipyard, in accordance with a contract, including plans and specifications, agreed upon by MTL and Bethlehem and approved by TGS. Charter parties were agreed upon in advance between MSTC, as shipowner, with MTL, demise charterer, and between MTL and TGS, as time charterer, for consecutive voyages for 12 charter years, commencing when the vessel was ready to load. Fundamental to this accord were MTL requirements that the cost of the conversion not exceed $1,650,000 and that the converted ship have a minimum cargo capacity of 15,100 long tons.

In due course the T-2 oil tanker was purchased and was delivered to the Bethlehem shipyard where her conversion went forward. The plans contemplated that the cargo, a minimum of 15,100 long tons of molten sulphur at 265° to 275°F., would be carried in a large tank in the hold of the vessel. This tank was 306' long, 30'6" wide and 33' high, having a rectangular cross section. It had three internal sulphur-tight bulkheads which divided the tank into four sub-tanks. The Queen herself was an all welded T-2-SE-A1 tankship of 7,240 gross tons and 4,057 net tons, with a length of 504', beam of 68.2' and a depth of 39.2'. In order to accommodate the 306' cargo tank it was necessary to remove the greater part of nine transverse bulkheads, i. e. those at frames 47 and 71 and the seven in between. It was also necessary to lower the floor of the ship which cut the transverse web frames down to 3'4" above the flat keel plate. The center vertical keel was reduced to less than half its original height and the deck centerline girder was cut down slightly less than half its depth. The American Bureau of Shipping and the Coast Guard were not persuaded that the original conversion plan afforded sufficient transverse strength to the vessel and they required that a full transverse bulkhead be included at frame 59, which was the center of the cargo tank and mid-ships of the Queen, and also ordered that provision be made for other strengthening factors. The loss of transverse strength from removal or reduction of the transverse bulkheads was sought to be compensated for by strategically placed whole or partial diaphragm bulkheads, the addition of substantial flange plates, transverse web frames at the bottom of the vessel and at the top, beneath the deck, and by welding the cargo tank from frame 58 to 60 to the five longitudinal girders of the ship which were under the cargo tank.

To allow for longitudinal expansion due to the intense heat of the cargo there were five longitudinal stringers attached to the bottom of the cargo tank to which were fitted flange plates which were bolted to the flange plates affixed to the ship's five longitudinal members. Between the flange plates there was inserted Phenolite, a laminated plastic, as a heat insulator. There were slots 3½" to 4" long in the insulation and in the flanges attached to the ship's longitudinals to allow for movement of the bolts. Likewise, above the tank there were slotted bolt connections with the centerline deck girder.

There were spaces on both sides of the length of the cargo tank which were approximately 15' in width between the sides of the tank and the sides of the ship. This area was partly taken up by wing tanks which were used for fuel, water or ballast, or left empty and the remainder, except for internal frame structures, gear and appurtenances, constituted the voids. The cargo tank was covered with a blanket of Owens-Corning Armaglas insulation which was 6" thick on top and 4" thick elsewhere. At the...