COMPLAINT OF MOLAI SHIPPING CORP., 81 Civ. 0675
| Decision Date | 04 August 1983 |
| Docket Number | 83 Civ. 0389.,No. 81 Civ. 0675,81 Civ. 0675 |
| Citation | 569 F. Supp. 523 |
| Parties | In the Matter of the Complaint of MOLAI SHIPPING CORPORATION, as Owner of the M/V GEORGIOS G, for Exoneration from or Limitation of Liability. Bruno CAPPELLINI, as Administrator of the Estates of Jose Ramon Jiminez Fernandez, Jose Del Carmen Mendez Tamarez, Jaillal Kisson, Luis M. DeLeon Pichardo, Francisco Nicarnor Ramirez Espinosa, Agustin Compusano Diaz, Reinaldo Enrique Cardona, Rafael Berroa, Enrique Mendez Ascencio, decedents, Plaintiff, v. BRADFORD SHIPPING CORP. and Starlight Trading Co., Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Freehill, Hogan & Mahar, William M. Kimball, New York City, for petitioner and defendants; John J. Walsh, Peter S. Wiswell, New York City, of counsel.
Speiser & Krause, P.C., New York City, for plaintiff; Lawrence B. Goldhirsch, Susan P. Bodner, New York City, of counsel.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
These two consolidated actions center about a disaster in the Caribbean Sea when the captain, officers and other members of a 27-man crew and one stowaway went to a watery grave. Their vessel, the M/V Georgios G, disappeared off the coast of the Dominican Republic during the most severe hurricane ever recorded to have passed south of the island of Hispaniola (Haiti and the Dominican Republic). The only trace of the vessel, after an intensive search by the United States Coast Guard and others, was the discovery of a self-inflating life raft belonging to the M/V Georgios G several days after its last communication with another vessel. Those who perished in the disaster were eight Dominicans, seven Hondurans, five Colombians, four Greeks, two Guatamalans, one Chilean and one Guyanan.
Molai Shipping Corporation ("Molai" or "petitioner"), a Panamanian corporation, the owner of the M/V Georgios G, petitioned this Court for exoneration from or limitation of liability.1 Relatives or dependents ("claimants") of ten deceased seamen asserted claims in the limitation proceeding.2 All the claimants are residents and citizens of the Dominican Republic and are represented by the Public Administrator of the Surrogate's Court, New York County. The Administrator denied that Molai was entitled to exoneration or limitation of liability upon the ground that the M/V Georgios G was not a seaworthy vessel; that she could not withstand the sea and weather conditions prevailing prior to and at the time of the vessel's loss; that the master and others in charge of the vessel were negligent in putting her to sea under the then prevailing conditions and were further negligent during its operation thereafter; and that petitioner had privity or knowledge of unseaworthiness or negligence. The petitioner denied the allegations and in addition, set up an affirmative defense that the claimants had executed general releases upon payment of fair and reasonable amounts in settlement of their respective claims. The Administrator, in response thereto, charged that the releases were void because they were not executed freely, without deception and with full understanding of their import.
Thereafter the Administrator commenced a separate action in this Court under the Jones Act3 and Death on the High Seas Act4 on behalf of the same claimants. The defendants in that action are Starlight Trading Co., Inc. ("Starlight"), the time charterer of the vessel, and Bradford Shipping Corp. ("Bradford"). The complaint alleges that each defendant was the operator of the M/V Georgios G and employed the crew; that the disaster was due to the negligence of those defendants and their failure to provide the crew with a seaworthy vessel. Damages in the sum of $750,000 are claimed on behalf of the next of kin and dependents of each deceased seaman. Starlight and Bradford deny liability. The limitation proceeding and the Jones Act action were consolidated and tried to the Court.
We first consider petitioner's claim for exoneration from or limitation of liability. While the rule is that a crew member or the representative of a deceased crew member seeking damages against the owner of a vessel has the burden of proving that the ship was unseaworthy or the owner was negligent and that such unseaworthiness or negligence was in fact a cause of injury or death, petitioner here as an initial matter in the limitation proceeding assumed the burden of establishing a prima facie case that the vessel was seaworthy and that there was no negligence in its operation from the time it left the port of Rio Haina until it disappeared.5 And if it fails and unseaworthiness or negligence is established, the petitioner, has the burden of proof that its officers and managing agents lacked privity or knowledge.6
The M/V Georgios G, a Panamanian registered, 4636 gross ton vessel, was Japanese built in 1965 as a log carrier for rough weather Pacific trade. She was 355 feet long, well designed, inherently stable and tight — basically, a seaworthy, steel bulk carrier. She had four holds and four hatches covered by wooden hatch boards and was equipped with radar, radio direction finder, echo sounder and recorder, gyrocompass, illuminated magnetic compass and VHF radio. The ship had five double bottomed tanks port and starboard for seawater ballast and forepeak and afterpeak tanks for potable water and fresh water ballast, with total ballast capacity of 1,762.52 tons. Using her own valves and pumps, she could completely ballast herself with seawater in four hours both while stationary and while underway.
Molai bought the Georgios G in 1978. While under charter to Starlight and until her demise she was mostly on a "milk run" of one month round trip voyages carrying fertilizer from the United States Gulf ports to the Dominican Republic, and after unloading of that cargo, there picking up sugar cargo for delivery at a United States Gulf port. During her ownership by Molai the vessel was certified by Bureau Veritas, an international survey inspection agency, and was fully classed according to its highest standards. Survey reports in April, May and June 25, 1980, the last six weeks before the vessel went down, established that the Georgio G's appurtenances, machinery, boiler and safety equipment were in class — that is, in good working condition and that the vessel was seaworthy.
Rio Haina is an open port on the southern coast of the Dominican Republic. It is exposed to wind and waves and dangerous for ships during a tropical storm. It was a common practice for ships to leave Rio Haina before an approaching hurricane because it was deemed safer to leave the port than to remain there and risk damage to vessels and to the port. Several months prior to the incident at issue a severe hurricane had washed two ships into the town of Rio Haina. In earlier years the port experienced several bad accidents and vessels sank.
On August 2, 1980, the Georgios G was at the port of Rio Haina, having by noon of that day discharged her cargo of fertilizer and shifted her berth to allow another vessel to unload, waiting orders from Starlight, her charterer. There were two other vessels in the port, the M/V Anastasia II, a 7600 deadweight ton, 14 knot speed ship under the command of Grigorios Kotzamanoglov, a licensed Greek captain, and the M/V Barahona, a 10,100 gross ton vessel, under the command of Captain Jose P. Zulueta, Jr., a Phillipine licensed officer. The depositions of both were read into the trial record.
On August 3 at 0.007 hours a tropical storm which became Hurricane Allen was 962 miles east of Rio Haina. Commencing at that time a series of advisories were issued every few hours from the National Hurricane Center at Miami, Florida, advising of a tropical storm with a track of 280 degrees at various speeds which increased as reported in each advisory until it reached hurricane status. It was first called Hurricane Allen in Advisory No. 8 issued at 1500 hours on August 3.
The captain of the Anastasia II on August 3 decided to ride out the storm in port, but his decision was of no avail. On August 4 at noon the Dominican Haiti island was put on hurricane "watch" by the National Hurricane Center.8 The storm then had maximum sustained winds of 120 knots per hour, gusting to 140 knots per hour. At about that time the Rio Haina harbor master ordered the captains of the three vessels to leave the port. The Barahona, after bunkering, left the port at 1712 hours. The Georgios G, secured for sea but high out of water because it had no cargo, departed next at 1810 hours. Within ten minutes she was followed by the Anastasia II with 800 to 1,000 tons of fertilizer still aboard. Both the Georgios G and the Anastasia II headed south and slightly west in an effort to cross ahead of the track of the oncoming hurricane and into the safe navigable south semicircle. The Barahona took a course to Puerto Rico. An advisory issued at or about the time the vessels departed placed the movement of the hurricane west or 280 degrees at 18 knots, diameter of eye eight nautical miles, maximum sustained winds 130 knots and gusts to 150 knots.
The details of events that followed are based upon the testimony of Captain Kotzamanoglov of the Anastasia II. The Anastasia II was in VHF voice communication with the Georgios G following departure from the port of Rio Haina, which contact continued until 0500 hours August 5.
After leaving Rio Haina on August 4, the reported and relative positions of Anastasia II and the Georgios G were by dead reckoning.9 These were based upon the length of time the Anastasia II steered her courses multiplied by its estimated 15 knot speed determined by the number of her engine revolutions. At first the two ships continued southwesterly, occasionally altering course more to the west to take greater advantage of the winds. But at 0100 hours on August 5, after receiving a weather report which indicated to him that he could not...
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