COMPLAINT OF GEOPHYSICAL SERVICE, INC.
| Decision Date | 08 May 1984 |
| Docket Number | Civ. A. No. 81-3381. |
| Citation | 590 F. Supp. 1346 |
| Parties | In the Matter of the Complaint of GEOPHYSICAL SERVICE, INC., and Texas Instruments, Inc., in Respect of the Oceanographic Research Vessel M/V ARCTIC EXPLORER, its Engines, Tackle, etc., in a Cause of Exoneration from or Limitation of Liability. |
| Court | U.S. District Court — Southern District of Texas |
COPYRIGHT MATERIAL OMITTED
Eugene J. Silva, Vinson & Elkins, Houston, Tex., for petitioners.
Newton B. Schwartz, Houston, Tex., for respondents.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause came on to be heard with the filing of Petitioners' Motion for Partial Summary Judgment pursuant to Rule 56 and Motion to Dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. Respondent filed a Motion to Dismiss and Cross-Motion for Summary Judgment pursuant to Fed.R.Civ.P., Rules 12 and 56. This action was filed on December 31, 1981, by Petitioners Geophysical Service, Inc. (hereinafter "GSI") and Texas Instruments, Inc. (hereinafter "TI") for exoneration from or limitation of liability pursuant to the American Limitation of Liability Act, 46 U.S.C. § 181 et seq. (hereinafter "Limitation Act") and the Canadian Limitation of Liability Statute and the Canadian Shipping Act § 647 et seq. (hereinafter "Limitation Statute"). Petitioners filed this action to consolidate the various suits filed against them arising out of the sinking of the Canadian-flagged vessel, M/V ARCTIC EXPLORER (hereinafter ARCTIC EXPLORER), and seek the dismissal of the consolidated claims on the basis of forum non conveniens.
On January 21, 1983, the above-entitled and numbered cause was called for a hearing before this Court to consider the Petitioners' and Claimants' outstanding motions. Based upon a review of the record and the applicable law, this Court renders judgment for the Petitioners and enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.
Delaware, having their principal place of business in Dallas, Texas. Although GSI's domestic headquarters is located in Dallas, Texas, the company engages in geophysical survey work throughout the world. In Canada, GSI has offices in Calgary, Alberta; Dartmouth, Nova Scotia; and St. John, Newfoundland. Carino Company, Ltd., the owner of the ARCTIC EXPLORER, but not a party to this litigation, is incorporated under the laws of the Province of Nova Scotia, Canada, having its principal place of business in St. John, Newfoundland, Canada.
3. In late 1974, GSI negotiated with Carino in Norway for the charter of the ARCTIC EXPLORER. In early 1975, Carino chartered the ARCTIC EXPLORER to GSI pursuant to a time charter agreement for the exclusive purpose of conducting marine oceanographic geophysical surveys. The Time Charter Agreement between Carino and GSI was amended on September 9, 1980. The vessel remained under charter to GSI from 1975 until the sinking of the vessel, except for periods of time when it was returned to Carino for seal hunting.
4. Pursuant to the terms of the time charter agreement, Carino provided a minimum crew complement of six seamen, consisting of a captain, mate, chief engineer, second engineer and two able-bodied seamen. (Time Charter of M/V ARCTIC EXPLORER, Clause 1.2). In addition to being responsible for crewing the vessel, Carino also maintained and operated the vessel, warranting her seaworthiness and maintaining her classification.
5. Based upon a review of the daily activity reports from the geophysical crew, William Blakeley, Manager of Marine Operations stated and the defendants do not dispute, that with the exception of three short port calls in 1979 for the purpose of taking on fuel and supplies, the ARCTIC EXPLORER has not been in the United States. Moreover, the vessel's annual surveys, required inspections and routine inport repairs were performed in a Newfoundland, Canada.
6. On July 3, 1981, under the command of Captain William Jack King the ARCTIC EXPLORER, while en route to the coast of Labrador from the port of St. Anthony, Newfoundland, sank and became lost within Canadian territorial waters at a location approximately five miles off the coast of Newfoundland.
7. At approximately 7:30 a.m. on the morning of July 3, the ARCTIC EXPLORER began to list to starboard about ten degrees. Very shortly thereafter, the list increased to approximately thirty degrees, followed by an increase to forty degrees to starboard. Weather conditions at this time were estimated to be in the range of Beaufort scale six; a strong westerly breeze blew at an estimated force of twenty-two to twenty-seven knots, the skies were clear, visibility was good and the seas were choppy. The vessel continued listing to starboard and, within thirty minutes, for unknown reasons, the vessel sank.
8. On board the vessel at the time of the sinking were Captain King and seven members of his crew, all of whom were Canadian citizens, and specifically, residents of the Province of Newfoundland. The ARCTIC EXPLORER also carried an additional crew of twenty-four men, whose sole function was to perform oceanographic geophysical survey work. There is no indication in the record, nor was there any evidence produced at the hearing, which would establish that the scientific personnel played any role in the vessel's operations. As a result of the accident, thirteen of the thirty-two individuals aboard the vessel, lost their lives. Of those thirteen, one was American, two were Australians and ten were Canadians. The Canadian Coast Guard rescued the remainder of the ship's personnel from their lifeboat approximately fifty-one hours after the vessel was lost.
9. The personnel on board the ARCTIC EXPLORER were employed as follows:
GSI Carino
1. Cyril Aylward 1. Clarence Ash
2. Malcolm Bailee 2. Gerald Butler
3. Scott Brennan 3. Mansfield Butt
4. James Catley 4. Brian Hargreaves
5. Gary Connolly 5. Francis King
6. Jeff Cunkelman 6. Jack King
7. Kenneth Erskine 7. Frank Philpott
8. William Evans 8. Roy Weir
9. Barry Gilbert
10. John Hobert Ocean Nav Limited
11. Derek Jeans
12. Roger Locke 1. John Pumphrey
13. William MacInnis 2. Charles Randell
14. Kevin McLean 3. John Ratter
15. Allan Mathewson
16. Terry Piercey British Petroleum
17. Derick Sheppard
18. Gerald Strachan 1. Chris Martin
2. Wallace Way
Tideland Geophysical Co
1. Kelly McCamy
All of the deck and engineering crew members on board the vessel, including the master, were employed directly by Carino. All of the scientific personnel aboard were employed by GSI. The remaining personnel were employed by Ocean Navigation, Ltd. "ONL", a Canadian electronic surveying company which provided technical services and equipment to GSI, British Petroleum, the client for whom GSI was performing geophysical and geological survey work, and Tidelands Geophysical Company "Tidelands", which also provided equipment to GSI.
10. Canadian authorities, including the Canadian Coast Guard, the Royal Canadian Mounted Police and the Canadian Ministry of Transport, undertook separate and extensive investigations of the sinking. A formal investigation convened in St. John, Newfoundland, Canada on April 27, 1982. It continued for several months during which time the authorities obtained testimony from fifty-five witnesses and accumulated a great deal of evidence. The Canadian Ministry of Transport recently issued a final, lengthy report concerning its investigation. Thus, the Canadian government has exhibited a very strong interest in this controversy.
11. Shortly after the vessel's sinking, survivors of those who lost their lives commenced litigation in several different state and federal courts in Texas, naming as Defendants GSI and TI. The American attorneys for the Plaintiffs in those actions successfully defeated efforts by GSI and TI to consolidate those suits by removing the state court actions to federal court.
12. On September 14, 1981, the petitioner, GSI, the time charterer, and Carino filed an action in the Federal Court of Canada, for limitation of liability pursuant to the Canadian Limitation Statute against all persons having claims against the petitioner. Pursuant to the Canadian Shipping Act, the Federal Court of Canada limited petitioners' liability and ordered petitioner to pay into that court's registry in Canadian dollars, plus interest to the date of deposit.
13. Facing the prospect of litigating twenty different lawsuits in various federal and state courts of Texas, GSI and TI filed their Limitation of Liability petition in this Court on December 31, 1981. This petition satisfies the six-month procedural deadline for the filing of a limitation of liability petition. In that pleading GSI and TI petitioned this Court to invoke a concursus bringing all claims against them arising from the sinking into one forum to be disposed of in one action. The Petitioners invoked limitation under Canadian law and/or under the laws of the United States.
14. Pleading in the alternative, Petitioners sought several different forms of relief in their limitation of liability complaint. Stating their contention that Canadian substantive law must govern...
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