628 F.2d 652 (1st Cir. 1980), 78-1543, Com. of Puerto Rico v. SS Zoe Colocotroni

Docket Nº:78-1543, 79-1468.
Citation:628 F.2d 652
Party Name:COMMONWEALTH OF PUERTO RICO et al., Plaintiffs, Appellees, v. The SS ZOE COLOCOTRONI, her Engines, Appurtenances, etc., et al., Defendants, Appellants.
Case Date:August 12, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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628 F.2d 652 (1st Cir. 1980)

COMMONWEALTH OF PUERTO RICO et al., Plaintiffs, Appellees,


The SS ZOE COLOCOTRONI, her Engines, Appurtenances, etc., et

al., Defendants, Appellants.

Nos. 78-1543, 79-1468.

United States Court of Appeals, First Circuit

August 12, 1980

Argued March 10, 1980.

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Owen McGivern, New York City, with whom John W. Wall, Peter S. Dealy, Gary B. Schmidt, Donovan, Leisure, Newton & Irvine, Daniel J. Dougherty, Mary Louise Montgomery, Kirlin, Campbell & Keating,

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New York City, Leo F. Glynn, Richard A. Dempsey, and Glynn & Dempsey, Boston Mass., were on brief, for defendants, appellants.

Nicolas Jimenez, San Juan, P.R., with whom William A. Graffam and Jimenez & Fuste, San Juan, P.R., were on brief, for plaintiffs, appellees.

Kenneth S. Kamlet, Elizabeth F. Kroop, Washington D.C., Marshall Coleman, Atty. Gen., Washington, D.C., Timothy G. Hayes, Asst. Atty. Gen., Richmond, Va., Commonwealth of Virginia, Francis X. Bellotti, Atty. Gen., Stephen M. Leonard, Asst. Atty. Gen., Boston, Mass., Commonwealth of Massachusetts, Richard S. Cohen, Atty. Gen., Cabanne Howard, Asst. Atty. Gen., Augusta, Maine State of Maine, Jim Smith, Atty. Gen., Martin S. Friedman, Asst. Atty. Gen., Tallahassee, Fl., State of Florida, Mark White, Atty. Gen., Douglas Caroom, Asst. Atty. Gen., Austin, Tex., State of Texas, Stephen H. Sachs, Atty. Gen., John B. Griffith, Asst. Atty. Gen., Annapolis, Md., State of Maryland, Rufus L. Edmisten, Atty. Gen., William Raney, Asst. Atty. Gen., Raleigh, N.C., State of North Carolina, Robert Abrams, Atty. Gen., Beryl Kuder, Asst. Atty. Gen., New York City, State of New York, Sarah Chasis, and Jane Bloom, New York City, on brief, for The National Wildlife Federation, et al., as amici curiae.

Jose A. Quiles, U.S. Atty., San Juan, P.R., Alice Daniel, Asst. Atty. Gen., Eldon V. C. Greenberg, Gen. Counsel, Michael A. Levitt, Atty., National Oceanic and Atmospheric Administration, William Kanter, and Allen van Emmerik, Attys., Dept. of Justice, Civil Division, Washington, D.C., on brief, for the United States of America, as amicus curiae.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and WYZANSKI, [*] Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

In the early morning hours of March 18, 1973, the SS ZOE COLOCOTRONI, a tramp oil tanker, ran aground on a reef three and a half miles off the south coast of Puerto Rico. To refloat the vessel, the captain ordered the dumping of more than 5,000 tons of crude oil into the surrounding waters. An oil slick four miles long, and a tenth of a mile wide, floated towards the coast and came ashore at an isolated peninsula on the southwestern tip of the island-a place called Bahia Sucia. The present appeal concerns an action in admiralty brought by the Commonwealth of Puerto Rico and the local Environmental Quality Board (EQB) to recover damages for harm done to the coastal environment by the spilled oil. 1

Defendants 2 have raised numerous objections to the district court's judgment awarding plaintiffs $6,164,192.09 in damages for cleanup costs and environmental harm. The primary objections are that the district court: (1) abused its discretion in striking defendants' pleadings on the issue of liability as a sanction for defendants' conduct during the discovery process; (2)

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erred in considering depositions of the ship's master and crew on the issue of liability and in making findings as to liability after that issue had been removed from the case; (3) lacked personal jurisdiction over the underwriters West of England-Luxembourg and West of England-London; (4) erred in finding plaintiffs had standing to sue for environmental damages; (5) applied the wrong standard in measuring damages; (6) made certain erroneous findings of fact on damages; and (7) erred in denying defendants' Rule 60 motion for relief from judgment. 3 The facts and circumstances of the oil spill and its aftermath are set forth in detail in the district court's opinion, Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 456 F.Supp. 1327 (D.P.R. 1978). After a brief review of these facts and of the trial testimony, we will address defendants' contentions in turn.


The following facts found by the district court are not in serious dispute. On March 15, 1973, the ZOE COLOCOTRONI departed La Salina, Venezuela, carrying 187,670 barrels of crude oil en route to Guayanilla, Puerto Rico. For the first two days of the voyage, the vessel proceeded by celestial navigation. The last star fix, however, was taken at 1859 hours on March 17. For the next eight hours, the ship proceeded by dead reckoning. As the vessel approached the south coast of Puerto Rico, it was, the district court stated, "hopelessly lost." At 0300 hours on March 18, the ship grounded on a reef. Efforts to free the tanker by alternately running the engines in forward and reverse were unsuccessful. After ten minutes, the captain ordered the crew to lighten ship by emptying the cargo of crude oil into the sea. 4 By the time the vessel refloated, some 1.5 million gallons of crude oil-5,170.1 tons-had poured into the surrounding waters.

The oil floated westward from the site of the spill throughout the daylight hours of March 18, and began coming ashore after nightfall. Bahia Sucia is a crescent-shaped bay facing southeastward from the Cabo Rojo peninsula, which forms the southwest tip of Puerto Rico. The oil entered Bahia Sucia, washed onto the beaches, and penetrated the mangrove forests that line the western edge of the bay. The oil was particularly thick in three areas: around the rocky tip of the peninsula, in a section of mangroves known as West Mangrove between a point called "Hermit One" and an inlet called "Dogman's Cove," 5 and on the open beach area stretching along the northern edge of the bay. In addition, as the tide ebbed and flowed, oil entered the tidal flats behind the mangrove fringe, coating the roots of mangroves growing deeper in the forest and soaking into the sediments.

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A massive cleanup operation, coordinated by the United States Coast Guard and several Commonwealth agencies, commenced on the morning of March 19. Cleanup crews, hampered to some extent by variable winds that blew oil back and forth across the bay, used booms to attempt to contain oil floating on the surface. Much of this oil was pumped out, either directly from the water or from large holes dug in the beach into which oil was channeled by the cleanup crews. By March 29, approximately 755,000 gallons of oil, or about half the amount spilled, had been recovered. On several occasions during the cleanup, oil was driven by winds and currents into the eastern edge of the bay in an area known as East Mangrove. This thin layer of oil was difficult to remove, but, according to the district court's findings, it caused little or no harm to the East Mangrove forest.

By April, cleanup activities had switched from large-scale removal of oil to small-scale activities such as manual beach cleanup and bailing of oil from tidal pockets with buckets and small boats. Large amounts of contaminated sands-totalling about 4,500 cubic yards-were removed from the beach area by bulldozer and by hand. At the end of April, the major remaining cleanup efforts were halted, and all further efforts were discontinued after September 24. Despite the cleanup, oil continued to be present in Bahia Sucia, especially in the stand of mangroves on the west side of the bay.

One of plaintiffs' expert witnesses, Dr. Ariel Lugo Garces, a wetlands specialist, testified that the ecological functions of a mangrove forest such as that at Bahia Sucia included: (1) protecting the shoreline from erosion, storms, tides, and high winds; (2) providing a habitat for wildlife, especially birds; (3) providing a protected breeding ground for fish and shellfish; and (4) acting as a food source for aquatic creatures of all kinds. Dr. Roger D. Anderson, a marine biologist who testified for defendants, agreed with Dr. Lugo that tropical mangroves are an important link in the food chain that supports fisheries and other marine resources.

The district court described the Bahia Sucia mangroves as follows:

"The mangrove that borders on the ocean fringe throughout Bahia Sucia is a species referred to as red mangrove (Rhizophora mangle). This mangrove has both main and prop roots, in which are located lenticels or pores for gas exchange. These lenticels facilitate root respiration. Various epibenthic species such as tree oysters, snails, crabs, sponges and molluscs dwelled in these root systems. In the waters surrounding these roots, communities of fish, shrimp and similar floating or swimming organisms throve. The bottom around the roots was inhabited by various benthic infauna. The bottom near the red mangrove was covered with both turtle grass . . . and manatee grass

Further inland from the fringe, as the interstitial salinity rises, the red mangrove is supplanted by the black mangrove (Avecennia nitida). This mangrove inhabits a zone systematically flooded by the tide, and rather than prop roots, it has fingerlike breathing tubes (called neumatafors) which rise from the ground to above high water level. This area provided a habitat principally for crustaceans such as crabs and barnacles, and algae grazing snails, bees and reptiles. There were also benthic infaunal communities similar in nature to those in the bottom surrounding the red mangrove fringe."

456 F.Supp. at 1338 (footnotes omitted). 6 The district court noted that the configuration

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of Bahia Sucia, together with the prevailing winds and currents, made the bay a natural trap for floating...

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