Amoco Transport Co. v. S/S MASON LYKES

• Citation: 550 F. Supp. 1264,1983 AMC 1087
• Decision Date: 16 November 1982
• Docket Number: Civ. A. No. G-80-97,G-80-304 and G-81-221.
• Parties: AMOCO TRANSPORT CO., Plaintiff, v. S/S MASON LYKES, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

550 F. Supp. 1264

1983 AMC 1087

AMOCO TRANSPORT CO., Plaintiff, v. S/S MASON LYKES, et al., Defendants.

Civ. A. Nos. G-80-97, G-80-304 and G-81-221.

United States District Court, S.D. Texas, Galveston Division.

November 16, 1982.

John R. Pearson, Clann & Pearson and John K. Meyer, Hinds & Meyer, Houston, Tex., for plaintiff cargo interests.

Joseph Newton, Eastham, Watson, Dale & Forney, Houston, Tex., for Amoco Transport Co. Samuel B. Kent, Royston, Rayzor, Vickery & Williams, Galveston, Tex., for S/S Mason Lykes and Lykes Bros. Steamship Co.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.

GIBSON, District Judge.

This consolidated action arises out of the collision of the M/V AMOCO CREMONA and the S/S MASON LYKES on April 2, 1980. The claim and counterclaim of the vessels were settled prior to the commencement of trial. The remaining claims are those of the cargo interests aboard the MASON LYKES against both vessels for the freight expenses they incurred as a result of the collision. The cargo was not physically harmed, but the MASON LYKES was significantly damaged. Consequently, its owner and operator, Lykes Brothers Steamship Co. Lykes, opted to abandon the voyage and claimed under its bills of lading that freight was earned. Cargo interests allege that the carrier did not earn the freight it collected because the abandonment was improper. In addition to the original freight, the cargo interests were forced to pay another freight to Lykes to reach their final ports in the Far East.

Upon review of the evidence and applicable law, the Court concludes that the freight expenses are not recoverable against either defendant. Accordingly, the Court makes the following findings of fact and conclusions of law:

II.

1. At all material times, Amoco Transport Company Amoco was owner and operator of the M/V AMOCO CREMONA, a tank ship 789 feet in length, 118 feet in breadth, with a capacity of 72,814 deadweight tons, powered by a 18,600 h.p. diesel engine, and having a standard sea speed of 13 knots.

2. At all material times, Lykes was the owner and operator of the S/S MASON LYKES, a cargo ship 540 feet in length, 76 feet in breadth, with a deadweight capacity of 14,660 tons, powered by a steam engine of 12,500 horsepower and having a standard sea speed of 21 knots.

3. The AMOCO CREMONA was outbound from Galveston and piloted by a local pilot. The vessel had just discharged its cargo of light crude oil.

4. The MASON LYKES on voyage 50 was inbound to Galveston from its originating point, New Orleans, Louisiana. The vessel was carrying 2,300 tons of general cargo manifested for the Far East. It was coming to Galveston to load additional cargo.

5. The bills of lading covering cargo loaded in New Orleans had two clauses of particular interest. Clause 10 allows the vessel to deviate from its voyage and/or abandon its cargo, and states, in pertinent part, the following:

Clause 10. In any situation whatsoever and wheresoever occurring and whether existing or anticipated before commencement of or during the voyage, which in the judgment of the Carrier is likely to give rise to risk of capture, seizure, detention, damage, delay or disadvantage to or loss of the ship or any part of her cargo, or to make it unsafe, imprudent, or unlawful for any reason to commence or continue the voyage, the Carrier may before or after loading, ... proceed or return, directly or indirectly, to or stop at any port or place whatsoever as the master or the Carrier may consider safe or advisable under the circumstances, and there discharge the goods; ... such discharge shall constitute complete delivery under this contract and the Carrier shall be freed from any further responsibility.

Clause 16 contains a guaranteed freight agreement and states, in pertinent part, the following:

Full freight hereunder to port of discharge named herein shall be considered completely earned on shipment whether the freight be stated or intended to be prepaid or to be collected at destination; and the Carrier shall be entitled to all freight and charges due hereunder, whether actually paid or not, and to receive and retain them irrevocably under all circumstances whatsoever ship and/or cargo lost or not lost or the voyage broken up or abandoned.

6. The vessels were approaching the sea buoy which marks the division between the Gulf of Mexico and the Galveston Channel. Near that point, vessels either take on or let off local pilots who captain the vessels within the Galveston Channel. AMOCO CREMONA let off its pilot at 4:12 a.m., and the MASON LYKES estimated to take on its pilot by 4:45 a.m.

As the vessels neared each other, the seas were slight, the wind light, and visibility poor (½ mile) due to fog. Some drizzle had been reported.

7. As soon as the AMOCO CREMONA let off its pilot and set a course of 134°, the ship's master, Stefano Caiolo, and a second mate observed on the port and starboard radar systems the MASON LYKES at about 5° to 10° port. Caiolo determined that the distance between the two vessels, seven to eight miles, was too close and ordered the course changed to 140°. The vessel was moving at a slow ahead speed, having been set at dead slow ahead when the pilot was left off. The 140° heading was reached about ten minutes later (4:22 a.m.). At that time, the MASON LYKES was called over channel 16 of the VHF, but no response was heard.

Caiolo determined that the AMOCO CREMONA might be in some danger on the 140° heading because of the speed and direction of the MASON LYKES although it appeared that the MASON LYKES would pass on AMOCO CREMONA's port side. Consequently, he ordered the course changed to 160° and speed increased to half-ahead. This course change took seven minutes to complete (4:29 a.m.). During the change, at about 4:25 a.m., the AMOCO CREMONA attempted to contact the MASON LYKES again, but to no avail.

At 4:29 a.m., collision appeared imminent. Caiolo ordered hard starboard full ahead, but the collision could not be avoided and was logged at 4:32 a.m.

During the encounter with the MASON LYKES, no AMOCO CREMONA crewmember was on watch on the bow lookout because Caiolo felt that with the radar operating and because of the limited visibility a lookout would serve no purpose.

Just prior to the collision, the lights on the MASON LYKES came into view from the port wing of the AMOCO CREMONA. Caiolo sounded one long blast immediately prior to the sighting and a series of short blasts afterward.

8. As the MASON LYKES approached the AMOCO CREMONA, it traveled at approximately 14 knots. Its first course was 308°. The MASON LYKES's chief officer, Henry G. Guice, was advised of three vessels leaving Galveston. When the AMOCO CREMONA came into view on radar at a range of about two and a half miles, Guice ordered a course change to 300° and later to 295°. As the AMOCO CREMONA neared the MASON LYKES, Guice ordered a hard port turn, engine full astern. Realizing he was in error, he attempted to countermand the order but the vessel would not respond and the collision resulted.

During these movements of the MASON LYKES, no radar plots were made. Guice assumed that the AMOCO CREMONA was leaving Galveston the same way he was coming in and would pass the MASON LYKES on the starboard side. He had heard the AMOCO CREMONA's emergency blast and had answered.

9. All parties agree that the actions of the MASON LYKES crew were "unbelievably stupid," as plaintiffs' expert, Captain Richard Patterson, testified. Due to the lack of visibility, both the speed and direction of the MASON LYKES were the result of negligent navigation of MASON LYKES crewmen. The Court finds that the vessel was traveling too fast and its port course was exceedingly dangerous, violations of navigational rules. In addition, the crew was negligent in not adequately plotting the position of the AMOCO CREMONA, another rule violation. Such navigational negligence presumptively caused the collision and consequent damages.

10. The Court also finds that the crew of the AMOCO CREMONA was slightly negligent in not clearly and decisively changing course so that its direction would be obvious on the MASON LYKES radar screen. The Court agrees with Captain Patterson's assessment that the AMOCO CREMONA's course changes—6° and then 20° at the speed undertaken — were insufficient to comply with the navigational rules. Guice's testimony reveals his own belief that the AMOCO CREMONA would pass to his starboard. In sum, in light of the direction of the MASON LYKES and the lack of visibility, Caiolo should have ordered the AMOCO CREMONA to move more decisively starboard. The Court finds this act was a violation of the navigational rules and a cause of the collision.

Moreover, no crewman was posted on the bow of the AMOCO CREMONA to watch for other vessels. This failure to have a man stand watch is also a violation of a navigational rule and presumptively a cause of the collision.

Regarding the alleged failure of the AMOCO CREMONA to plot the position of the MASON LYKES, the Court finds that the AMOCO CREMONA crew did adequately plot the MASON LYKES' position. The AMOCO CREMONA crew knew the direction of the MASON LYKES and attempted to avoid the ensuing collision by going further starboard. Captain Patterson noted that to make a thorough radar plot, the AMOCO CREMONA needed to remain in a constant direction. The Court finds that this action appears in conflict with the recommended avoiding action.

Regarding the alleged failure of the AMOCO CREMONA to communicate with the MASON LYKES, the Court finds that the AMOCO CREMONA attempted to call twice but received no response. The Court finds no negligence on the part of the AMOCO CREMONA's crew concerning its attempt to communicate with the MASON LYKES.

11. In sum, the Court finds that navigational negligence was committed by the crews of both vessels and apportions it as follows: MASON LYKES, 90%; AMOCO CREMONA, 10%.

12. Following the collision,...