COMPLAINT OF DELPHINUS MARITIMA, SA, ETC.

• Decision Date: 09 February 1981
• Docket Number: 79 Civ. 4061,79 Civ. 6798,79 Civ. 3460,79 Civ. 6790,79 Civ. 6964 and 80 Civ. 0338.,79 Civ. 4031,79 Civ. 2496 (CBM),79 Civ. 6388,79 Civ. 3826,79 Civ. 6685
• Citation: 523 F. Supp. 583
• Parties: In the Matter of the Complaint of DELPHINUS MARITIMA, S.A., as Owner of the M.V. MARI BOEING, Plaintiff, for Exoneration from or Limitation of Liability.
• Court: U.S. District Court — Southern District of New York

523 F. Supp. 583

In the Matter of the Complaint of DELPHINUS MARITIMA, S.A., as Owner of the M.V. MARI BOEING, Plaintiff, for Exoneration from or Limitation of Liability.

79 Civ. 2496 (CBM), 79 Civ. 3826, 79 Civ. 6798, 79 Civ. 6388, 79 Civ. 4061, 79 Civ. 3460, 79 Civ. 6685, 79 Civ. 4031, 79 Civ. 6790, 79 Civ. 6964 and 80 Civ. 0338.

United States District Court, S. D. New York.

February 9, 1981.

COPYRIGHT MATERIAL OMITTED

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MOTLEY, District Judge.

These are eleven consolidated non-jury admiralty actions brought under Rule 9(h) of the Federal Rules of Civil Procedure in which the issue of damages is deferred until the questions of liability and limitation of liability have been first determined. The actions arise out of the stranding of the Mari Boeing off the northern coast of Bermuda on December 27, 1978. This court's jurisdiction has been invoked pursuant to 46 U.S.C. § 183 et seq. and 28 U.S.C. § 1333.

Delphinus Maritima, S.A., the vessel owner, filed its complaint for exoneration from or limitation of liability in 79 Civ. 2496. In that action, five claims were filed on behalf of various cargo interests. A claim was also filed in that action against the vessel owner on behalf of the charterer of the vessel, Atlanta Shipping Corporation (Atlanta), for its damages and for contribution or indemnity. A claim was also filed in that action against the vessel owner on behalf of Tidewater Stevedoring Company, the stevedore, for indemnity. The vessel owner counterclaimed against both the charterer and the stevedore for all losses sustained by the owner and for indemnity. Cross-claims were then made by all cargo claimants against the stevedore for all damages sustained by the cargo interests. The vessel owner impleaded National Cargo Bureau (NCB) for all losses incurred by the vessel owner and for indemnity.

In five separate actions, 79 Civ. 3460, 79 Civ. 3826, 79 Civ. 4031, 79 Civ. 4061 and 79 Civ. 6964, cargo claimants brought suit for their damages against Maritime Transport Overseas Inc. (MTO) and against the charterer, Atlanta, as the alleged operators and or charterers of the Mari Boeing and against the stevedore. In these actions, the charterer and MTO cross-claimed against the stevedore for contribution or indemnity. The stevedore then cross-claimed against the charterer and MTO for indemnity. MTO then impleaded the salvor, Smit International Ocean Towage and Salvage Company, (Smit). Smit counterclaimed against all cargo plaintiffs, except the United States, and filed a fourth party complaint against the vessel owner for indemnity. The third party complaint against Smit was subsequently dismissed and Smit is no longer a party to this action.

In five more actions, 79 Civ. 6388, 79 Civ. 6685, 79 Civ. 6798, 79 Civ. 6790 and 80 Civ. 0338, the cargo claimants brought suit for their damages against Intermarine, Incorporated, as the alleged managers of the Mari Boeing. Thus the parties to this action are:

1. Delphinus Maritima, S.A., a corporation which at all relevant times was and is the owner of the M.V. Mari Boeing.

2. Atlanta Shipping Corporation, a corporation which at all relevant times was the charterer of the Mari Boeing as set forth in a certain charter party under which the Mari Boeing was then operating.

3. Tidewater Stevedoring Company, a corporation which performed stevedoring functions with regard to the Mari Boeing while at Newport News, Virginia.

4. National Cargo Bureau is a non-profit corporation which inspected the cargo aboard the Mari Boeing when the vessel was in Newport News, Virginia, for the owner.

5. The Lummis Company and other plaintiffs listed in 79 Civ. 3460 are corporations or organizations which own or were the underwriters or subrogated underwriters of certain cargo on board the Mari Boeing.

6. The United States of America (79 Civ. 6685) is a sovereign party which was a shipper of certain cargo aboard the M.V. Mari Boeing. Todd Logistics, Incorporated, brought the action as agent for the United States and on behalf of the owners of the said cargo.

7. Petrolleo Brasileiro, S.A. (Petrobas) and Petrobas International, S.A. (Braspetro) (79 Civ. 4031 and 80 Civ. 3725) are corporations or organizations which were the owners or underwriters or subrogated underwriters of certain cargo onboard the vessel.

8. Agricultural Combinat PKB and Kannal DTD (79 Civ. 4061) are corporations which were the owners of certain cargo onboard the Mari Boeing.

9. Atco International, Limited, and the other plaintiffs listed in 79 Civ. 3826 are corporations or organizations which are the owners or were the underwriters or subrogated underwriters of certain cargo onboard the Mari Boeing.

10. Maritime Transport Overseas, Incorporated (MTO) is a corporation which acted as the agent for the charterer.

11. Intermarine, Incorporated, is a corporation which is named as sub-agent for the vessel owner in an agreement dated January 15, 1976 between Intermarine, Incorporated and Overseas Maritime, Limited.

The parties to this action stipulated to the following facts prior to trial:

(1) The Mari Boeing is a general cargo ship built in 1975. It has an overall length of 161.85 meters (531.02 feet). It has a breadth of 22.84 meters (73.1 feet). It has a gross tonnage of 13,456.53 long tons and a dead weight capacity of 21,192 metric tons.

(2) At all relevant times the Mari Boeing was operated pursuant to terms of a charter party dated December 1, 1978 wherein Delphinus Maritima, S.A., was listed as the owner and Atlanta Shipping Corporation as the named charterer.

(3) During the voyage, which is the subject of this law suit, the Mari Boeing loaded cargo at the following ports:

(a) December 4-10, Houston, Texas.

(b) December 16, Baltimore, Maryland.

(c) December 18, New York, New York.

(d) December 20-23, Newport News, Virginia.

(4) Cargo claimants were the owners or duly authorized representatives of the owners or underwriters or subrogated underwriters of cargo onboard the Mari Boeing for which bills of lading were issued. The parties agreed prior to trial that the bills of lading would be admitted evidence, and further agreed that at least some damage was sustained for each shipment.

(5) Newport News, Virginia was the vessel's last loading port and at 2248 hours on December 23, 1978, the vessel set sail from Newport News, Virginia destined for ports in the Middle East.

(6) The deck log records that on December 25, 1978 some of the deck cargo on board the vessel was seen to move.

(7) On December 26, the vessel altered course and went to Bermuda in order to work on the cargo on the deck of the vessel.

(8) On December 27, 1978, at 0453, the vessel went hard aground on a coral reef off the northern coast of Bermuda.

(9) The vessel remained aground until on or about February 26, 1979 before finally being refloated by professional salvors under a Lloyd's Open Form No Cure No Pay Salvage agreement and was taken into port in Bermuda.

(10) During the time when the vessel was aground the voyage was terminated. All available cargo was salvaged and discharged from the vessel at Bermuda where the owners of said cargo took possession of their cargo.

(11) Subsequent to the grounding, the vessel owner declared a General Average.

The consolidated trial on the issue of liability established the following additional facts:

The Mari Boeing is a Liberian flag vessel owned by Delphinus Maritima, a Liberian corporation. The vessel has five cargo holds and five hatches on the weather deck. The master, officers and crew of the vessel were all Republic of China (Taiwan) Nationals.

Overseas Maritime Limited (Ossmarine) and Intermarine, Incorporated (Bermuda and New York corporations respectively) were the agents of the vessel owner and of the vessel. These two corporations had broad general management duties and authorities with respect to the manning, equipping, operating and supervision of the vessel, its personnel and cargo carrying activities. Intermarine's principal place of business was in New York where it shares office space with Ossmarine. Ossmarine also has offices in Tokyo and Bermuda.

MTO is a Texas corporation and is the general agent of Atlanta Management Corporation. The latter are general managers for Atlanta and acted as agent of Atlanta, the charterer, with respect to the voyage here.

Tidewater was the stevedoring company which had been selected and paid by MTO to load the vessel's cargo at Newport News, Virginia. The National Cargo Bureau was also retained by MTO to inspect the propriety of the loading, stowing and securing of cargo at several of the vessels loading ports, including Newport News, Virginia.

The charter party between the vessel owner and Atlanta was dated December 1, 1978 and was on the New York Produce Exchange form with certain amendments. Paragraph 8, as amended, provided:

"8. That the Captain shall prosecute his voyage with the utmost dispatch, and shall render all customary assistance with ship's crew and boats. The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, trim and discharge the cargo at their expense under the supervision and responsibility as to vessel's seaworthiness of the Captain."

The Mari Boeing was delivered by the owner to Atlanta and MTO at Houston on December 3, 1978. The main office of MTO was in Houston but it also had offices in New York. On December 1, on the way to Houston, the vessel sent a message to MTO at Houston advising that it did not have a large scale harbor chart for Houston. The master wanted such a chart in order to proceed safely to the pilot station at Galveston. He believed there was some shallow water close to Galveston. The master expected that a harbor chart would be sent to him, however, the chart was not sent.

Atlanta and MTO had booked and had agreed to carry cargo of...