Com. of Puerto Rico v. SS Zoe Colocotroni

• Decision Date: 29 August 1978
• Docket Number: 309-73.,Civ. No. 252-73
• Citation: 456 F. Supp. 1327
• Parties: COMMONWEALTH OF PUERTO RICO and the Environmental Quality Board of the Commonwealth of Puerto Rico, Plaintiffs, v. The SS ZOE COLOCOTRONI, her engines, appurtenances, etc., et al., Defendants. UNITED STATES of America, Plaintiff, v. M/V ZOE COLOCOTRONI, etc., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

456 F. Supp. 1327

COMMONWEALTH OF PUERTO RICO and the Environmental Quality Board of the Commonwealth of Puerto Rico, Plaintiffs, v. The SS ZOE COLOCOTRONI, her engines, appurtenances, etc., et al., Defendants.

UNITED STATES of America, Plaintiff, v. M/V ZOE COLOCOTRONI, etc., et al., Defendants.

Civ. Nos. 252-73, 309-73.

United States District Court, D. Puerto Rico.

August 29, 1978.

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Jiménez & Fusté, San Juan, P. R., for Com. of Puerto Rico.

Allen Van Emmerik, Dept. of Justice, Washington, D. C., for the U. S.

Hartzell, Ydrach, Mellado, Santiago, Pérez & Novas, San Juan, P. R., for defendants.

DECISION

TORRUELLA, District Judge.

The present cases are the remnants of multiple suits¹ arising from the spillage of petroleum products by the SS ZOE COLOCOTRONI in the Caribbean Sea in the immediate vicinity of the Southwestern coast of Puerto Rico on March 18, 1973.

Civil Number 252-73 is a suit in admiralty, in rem and in personam, brought by the Commonwealth of Puerto Rico and its principal environmental agency, the Environmental Quality Board of the Commonwealth of Puerto Rico,² seeking recovery for various environmental damages and cleanup costs pursuant to the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Water Pollution Control Act of Puerto Rico (24 L.P.R.A. 591, et seq.) and the Public Policy Environmental Act of Puerto Rico (12 L.P.R.A. 1121, et seq.). The Defendants in this suit are the SS ZOE COLOCOTRONI,³ her owners, Marbonanza Compañía Naviera, S.A. and/or Colocotroni Ltd. and/or Colocotroni Brothers, S.A.,⁴ and their underwriters, West of England Ship Owners Mutual Protection and Indemnity Association (Luxembourg) and West of England Ship Owners Mutual Insurance Association (London) Limited.⁵

Defendants' conduct during the pretrial discovery stages of this case and its companion suits was at best deliberately obstructive, and most probably also contumacious. These tactics culminated in the striking of their pleadings and defenses, and the dismissal of the petition for exoneration and limitation of liability in Civil Number 289-73.⁶ The trial of this case was therefore limited to the issue of damages and matters relevant thereto.

Civil Number 309-73 is a claim by the United States of America against the COLOCOTRONI, her owners and West of England for cleanup costs resulting from the spillage, and for penalties pursuant to the Rivers and Harbors Act (33 U.S.C. §§ 407, 411, 412). At the commencement of trial summary judgment was entered on behalf of the United States for the cleanup costs. Hence, the only remaining issue in this action is whether said party is entitled to interest, penalties and attorneys' fees.

BACKGROUND

The COLOCOTRONI is a motor tanker built in 1953. She is 605 feet, 2 inches, l.o.a., has a gross tonnage of 15,899 tons, and net tonnage of 9,654 tons. Her hold has 26 cargo tanks subdivided into 7 tanks forward, 12 tanks amidship and 7 tanks aft, where her machinery is also located.

Although her home port is Piraeus, Greece, her registered owner is Marbonanza, a corporation organized in the Republic of Panamá. The actual control over the vessel's management and operations was exercised by Colocotroni Brothers, two foreign corporations organized in Greece and Great Britain, respectively.⁷ These companies had the joint responsibility for maintaining, provisioning, manning and insuring the COLOCOTRONI.⁸ Colocotroni Brothers were Marbonanza's agents at all times pertinent herein.

On March 15, 1973 the COLOCOTRONI took on a load of 187,670 barrels of petroleum known as Tia Juana Crude, in La Salina, Venezuela. The crude was shipped by Mobil Oil Company de Venezuela and consigned to the Commonwealth Oil Refining Company in Guayanilla, Puerto Rico. On this same day the ship departed for Guayanilla.

At 0200 hours on March 16, she was 5.5 miles abeam of Aruba Light and assumed a course of 032°. She continued on this course, proceeding by celestial navigation until 1859 hours on March 17, when the last star fix was taken. This sight established her position as approximately 80 to 85 miles due south of Puerto Rico.

At 1859 the COLOCOTRONI altered course to 033° and proceeded at a speed of 10.4 knots. From this point on she navigated by dead reckoning, the officer on watch advancing the 1859 star fix in accordance with estimated speed, drift and heading.

At 0110 hours of March 18 the vessel's speed was reduced to 7½ to 8 miles per hour. The ship was about 18 to 20 miles from shore. The wind was proceeding from about 75° at 25 miles per hour. A two knot current was moving from east to west and there was no indication of inclement weather.

As he approached the coast, Captain Anastacios Michalopaulos, the ship's master, was not able to establish the position of the COLOCOTRONI. At 0253 he decided to backtrack and ordered left rudder. As the vessel turned westward, it ran out of water and went aground.

The COLOCOTRONI grounded at 0300 hours of March 18, 1973 at latitude 17°55' north, longitude 67°07' west, which is approximately 3 miles due south of the village of La Parguera in Southwestern Puerto Rico. The water depth at that point ranges from 30.5 feet to 35 feet as compared to the COLOCOTRONI's draft at the time of grounding of 33 feet 4 inches. Seven-eighths of the ship's length grounded.

Captain Michalopaulos attempted to refloat the vessel by "rocking" it, that is, by alternately running the engines full forward and back. About ten minutes after the grounding, it became apparent that this maneuver was ineffective. Without seeking outside assistance, Captain Michalopaulos proceeded to lighten the ship by dumping 5,170.1 tons of crude oil, or an equivalent 1.5 million gallons, into the sea.⁹ By 1212 hours of March 18, the COLOCOTRONI was afloat and free.

In the meantime the oil slick, about one-tenth of a mile wide by four miles long, began to extend westward from the place of grounding towards Cabo Rojo on the Southwestern tip of Puerto Rico. At some time during March 18, the oil hit Margarita Reef, which is located three and one half miles southeast of Bahía Sucia. The oil immersed Margarita Reef at low tide and thus, when the tide filled, Margarita Reef became a source of oil in addition to the oil afloat. Sometime after dark on March 18, the oil slick reached the shore of Bahía Sucia, the locale of the present controversy. At one point the oil slick extended along the entire distance from Margarita Reef to Bahía Sucia.

THE LIABILITY OF DEFENDANTS

The grounding, although accidental, was not surprising considering the state of the COLOCOTRONI and its crew. Although the immediate cause of the grounding was undoubtedly the fact that the ship's crew was hopelessly lost, the factors which directly contributed to this condition were the lack of proper charts on board,¹⁰ the failure of the master to properly compensate for a westerly set in the current,¹¹ inoperative or defective navigation equipment,¹² the failure to post a bow lookout, and an incompetent crew.¹³

There is no doubt that at the time of grounding the COLOCOTRONI was in an unseaworthy condition, in that her charts, navigation equipment and crew were unfit to meet perils reasonably to be anticipated in her voyage. These were conditions which existed before the vessel left Venezuela and in fact for some time prior to departure. The COLOCOTRONI was thus unseaworthy at the commencement of the voyage in question and therefore her owners are not entitled to either exoneration nor, considering the substantial evidence of privity, to limitation.¹⁴Waterman Steamship Corp. v. Gay Cotton, 414 F.2d 724 (C.A. 9, 1969); Empire Sea Food v. Anderson, 398 F.2d 204 (C.A. 5, 1966), cert. den. 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444 (1968); China Union Lines Ltd. v. Anderson & Co., 364 F.2d 769 (C.A. 5, 1966), cert. den. 386 U.S. 933, 87 S.Ct. 955, 17 L.Ed.2d 805 (1967), reh. den. 390 U.S. 974, 88 S.Ct. 1015, 19 L.Ed.2d 1191 (1968).

As the Court of Appeals for the Fourth Circuit has stated, in the context of a libel proceeding under the Harter Act:

"Our view of the law . . . is that charts, light lists, and similar navigational data are essential equipment for the save 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." The Maria, 91 F.2d 819, 824 (4th Cir., 1937);¹⁵ also see: The Iowa, 34 F.Supp. 843 (D.C.Or., 1940).

Within the framework of this case, it should be pointed out that this broad duty giving rise to liability on the part of the owners for damages caused by an unseaworthy vessel encompasses the obligation to put it in charge of a capable crew. See In re Liberty Shipping Corp., Motor Ship Don José Figueras, 509 F.2d 1249 (C.A. 9, 1975), Petition of United States, 178 F.2d 243, 252 (2nd Cir., 1949); The Trillora II, 76 F.Supp. 50 (D.C.S.C., 1948). Exoneration of the shipowner has also been denied where the vessel was not equipped with an efficient radio direction finder and other necessary equipment, Waterman Steamship Corp. v. Gay Cottons, supra; In re Seaboard Shipping Corp., 449 F.2d 132 (2nd Cir., 1971), ...