COMPLAINT OF POTOMAC TRANSPORT INC.

• Decision Date: 29 November 1989
• Docket Number: 83 Civ. 4597 (JFK).,No. 82 Civ. 0805 (JFK),82 Civ. 0805 (JFK)
• Citation: 741 F. Supp. 395
• Parties: In the Matter of The Complaint of POTOMAC TRANSPORT INC., as Owner of S/S POTOMAC, for Exoneration from or Limitation of Liability. BANGLADESH SHIPPING CORPORATION, Plaintiff, v. OMI CORP., Defendant.
• Court: U.S. District Court — Southern District of New York

741 F. Supp. 395

In the Matter of The Complaint of POTOMAC TRANSPORT INC., as Owner of S/S POTOMAC, for Exoneration from or Limitation of Liability BANGLADESH SHIPPING CORPORATION, Plaintiff, v. OMI CORP., Defendant.

Nos. 82 Civ. 0805 (JFK), 83 Civ. 4597 (JFK).

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

November 29, 1989.

Burlingham Underwood & Lord, New York City (Joseph C. Smith, W. Thaddeus Miller, Frank A. Atcheson, of counsel), for plaintiff Potomac Transport Inc. and defendant OMI Corp.

Walker & Corsa, New York City (Christopher H. Mansuy, of counsel), for plaintiff Bangladesh Shipping Corp.

Waesche, Sheinbaum & O'Regan, P.C., New York City (Richard W. Stone, II, of counsel), for Cargo claimants.

FINDINGS OF FACT and CONCLUSIONS OF LAW

KEENAN, District Judge:

PROCEDURAL BACKGROUND

These actions arise out of the February 8, 1982 collision between S/S POTOMAC ("POTOMAC") and M/V BANGLAR BAANI ("BAANI") in the Gulf of Mexico west of the Florida Keys.

Action 82-805 was commenced on February 9, 1982 and is a limitation of liability proceeding in which POTOMAC TRANSPORT INC. ("POTOMAC TRANSPORT"), registered owner of POTOMAC, seeks exoneration from or limitation of liability for any loss or damage arising out of the collision pursuant to 46 U.S.C.App. §§ 183-189. BANGLADESH SHIPPING CORP. ("BSC"), owner and operator of the BAANI, filed an Answer to the Complaint and a Claim against POTOMAC TRANSPORT on April 2, 1982. On April 14, 1982, POTOMAC TRANSPORT filed a Counterclaim against BSC. On May 5, 1982, BSC Answered the Counterclaim, and on May 19, 1982, BSC filed an Amended Answer to the Counterclaim. On May 28, 1982, Royal Insurance Company, et al. ("cargo claimants"), filed an Answer to the Complaint and a Claim for damages suffered by cargo interests for cargo aboard BANGLAR BAANI. Cargo claimants filed a Cross-Claim against BSC on February 3, 1983.

On June 21, 1983, BSC commenced action 83-4597 against Ogden Marine Inc. (now known as OMI Corp. ("OMI")), as manager and operator of POTOMAC, seeking to recover the same damages sought in BSC's Claim against POTOMAC TRANSPORT in the limitation proceeding. OMI filed its Answer on October 31, 1983.

JURISDICTION — VENUE

This is a case of admiralty and maritime jurisdiction pursuant to Title 28 U.S.C. § 1333 and is an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure for the United States District Courts. There is no dispute concerning jurisdiction or venue in the United States District Court for the Southern District of New York.

TESTIMONY AND FACTUAL FINDINGS

On the early morning of February 8, 1982 several miles west of the Florida Keys in open seas in the Gulf of Mexico under clear skies, there was a collision between two ships. The POTOMAC was a United States flagship which was owned by Potomac Transport Inc., a Delaware corporation which had its principal place of business in care of OMI Corp., a successor to Ogden Marine Inc., whose principal place of business was 280 Park Avenue, New York, New York. BAANI was a Bangladesh flag general cargo vessel owned by Bangladesh Shipping Corp. ("BSC"), a corporation organized and existing under the laws of Bangladesh.

Sometime after 0100 on February 8, 1982, the POTOMAC and the BAANI approached each other in a "crossing situation" west of the Florida Keys in the Gulf. The International Regulations for Preventing Collisions at Sea, 1972, 33 U.S.C. foll. § 1602, ("Rules of the Road"), governed the conduct of the vessels. POTOMAC was the "give-way" vessel and BAANI was the "stand-on." Visibility was 5 to 6 miles. At 0142 POTOMAC's bow struck BAANI's starboard quarter, causing the BAANI's engine room to be flooded with sea water. Fortunately, no one was injured although most of BAANI's crew was removed by lifeboat to another nearby ship.

The BAANI was on a voyage from Houston, Texas to Baltimore, Maryland with a cargo of rags, frozen shrimp and other unspecified items. The POTOMAC was on a ballast voyage from Port Manatee, Florida in Tampa Bay to Seattle, Washington.¹

The POTOMAC admits that it was the ship's custom and practice to man the ship with a master and four mates. (BSCX 44 at 48-40). The chief mate normally did not stand a watch when the ship was at sea. Rather, it was the custom and practice on the POTOMAC for the sea watches to be stood by the second mate and the two third mates — a three-watch division.

The POTOMAC, however, departed Port Manatee on this unfortunate voyage without its regular second mate on board. (BSCX 44 at 45-47). The ship sailed with one chief mate (Toren Lovenhardt) and two third mates (Ken Bagley and Kampmann) (PX 93 at 31). Rather than ordering the chief mate to stand a watch in the regular second mate's stead, Captain Hansen requested that the two third mates split the unattended watches and they agreed to do so. (Tr. 126-128).

Captain Hansen allowed the two third mates to arrange the following watch division for the voyage:

                    Date    Watch Period     Mate on Watch
                   2.7.82    0400-0800      Kampmann
                   2.7.82    0800-1200      Bagley
                   2.7.82    1200-1600      Kampmann
                   2.7.82    1600-1800      Bagley
                   2.7.82    1800-2000      Capt. Hansen
                   2.7.82    2000-2400      Bagley
                   2.8.82    XXXX-XXXX      Kampmann (collision
                                             at about
                                             0142)
                

(PX 93 (Hansen dep.) pp. 45, 122-124; PX 3; Tr. 116-118, 123). If the regular second mate had been aboard the POTOMAC (or had Captain Hansen ordered the chief mate to stand watch in his stead) the three-watch division would have been as follows:

                   Date    Watch Period    Mate on Watch
                   2.7.82  0400-0800       Second Mate/Chief
                                             Mate
                   2.7.82  0800-1200       Kampmann
                   2.7.82  1200-1600       Bagley
                   2.7.82  1600-2000       Second Mate/Chief
                                             Mate
                   2.7.82  2000-2400       Kampmann
                   2.8.82  XXXX-XXXX       Bagley
                

(BSCX 44 (Gordon dep.) p. 83; Tr. 244-245, 454-455).

John H. Kampmann, the Third Officer of the POTOMAC, testified at the trial. He had graduated from the United States Merchant Marine Academy in Kings Point, Long Island with a B.S. Degree in 1981. (Tr. 14, 15). During the fall of 1981, Mr. Kampmann coached high school football, rather than going to sea. (Tr. 19). Although there were sea projects during his undergraduate career at Kings Point, he served as a Deck Cadet, not a Ship's Officer, while at Kings Point. (Tr. 15-17). Mr. Kampmann is, however, a duly-licensed Third Officer of ocean-going vessels of unlimited tonnage, having received United States Coast Guard approval as a Third Officer. On February 6th Kampmann became the Third Mate on the POTOMAC and he stood the first watch of his nautical career from 2000 hours to 2400 hours on that night. (Tr. 20, 21).

On his fourth watch, XXXX-XXXX hours February 8, 1982 POTOMAC was sailing without a gyro compass because of a failure of that compass on February 7, 1982. (Tr. 24). POTOMAC was steering by magnetic compass and its radar was operational during the time in question. (Tr. 25, 28). POTOMAC's two VHF radios were switched on, one monitoring channel 16 and the other, Kampmann testified, probably channel 13 (Tr. 29, 255). There were a lookout and helmsman on duty with Kampmann. (Tr. 55).

Prior to the encounter with the BAANI two other vessels appeared on POTOMAC's radar scope and they passed without incident. (Tr. 31). At 0124 the radar showed that POTOMAC and BAANI were in a close quarters situation in which POTOMAC would cross ahead of BAANI's BOW. (Tr. 44). Kampmann wanted to alter POTOMAC's course so as to pass astern of BAANI. At this point, POTOMAC's course was 235° magnetic and BAANI's was 108.5° magnetic. (Tr. 47, 48). BAANI's speed was 13.5 knots (Tr. 47) and POTOMAC's speed was 10.7 knots. (Tr. 57). One minute after BAANI was 5 miles from POTOMAC, Kampmann altered POTOMAC's course from 235° magnetic² to 265°, a turn to starboard. (Tr. 59).

While testifying Kampmann utilized PX 86a to chart the movements, course, speed and expected location of each ship at various points up to the time of the collision. It was when the two ships were some five miles apart that he first visually sighted the BAANI.

Kampmann first testified that if POTOMAC had maintained its 265° bearing at 10.7 knots she would have crossed BAANI's course line at 0141 and the BAANI's port side would have passed POTOMAC's bow at a distance of .65, .66 nautical miles. This assumed BAANI did not change course and continued at a speed of 13.5 knots. He later corrected this to say the crossing would have been at 0139.6 at a distance of .11 nautical miles. (Tr. 72, 74). After steadying on 265° Kampmann saw that BAANI was maintaining a steady course and their crossing would be a close quarters situation. Therefore, he continued to alter his course to starboard ordering his helmsman to turn to 275°. (Tr. 66). This course change to 275° was after one minute on 265°. (Tr. 75). Had the vessels stayed at the same speeds and on the same course lines, after the turn to 275°, BAANI would have crossed POTOMAC's bow at 1.99 miles. (Tr. 80). However, BAANI started to come left on POTOMAC's starboard bow while POTOMAC steered on 275°. While Potomac was at 275° BAANI's white masthead lights were visible to Kampmann and at first BAANI's red (port) light was visible. But then Kampmann saw BAANI's green side light, indicating that BAANI's starboard side was what POTOMAC was sailing towards. (Tr. 84). Kampmann then ordered POTOMAC to come 20° more to right to 295°. (Tr. 85). As this maneuver, which was estimated as taking 60 seconds, occurred, BAANI turned to port. (Tr. 85). Kampmann ordered a Hard Right, sounded a Danger Signal of 5 short blasts of the ship's whistle and then gave an order for POTOMAC's engines to go Full Astern. (Tr. 87). He dispatched the lookout to the Captain's cabin and sounded a second Danger Signal....