In re Yamashita-Shinnihon Kisen

• Decision Date: 16 September 1969
• Docket Number: 312,Civ. No. 68-113,431,432 and 563.
• Citation: 305 F. Supp. 796
• Parties: In re YAMASHITA-SHINNIHON KISEN, as Owner of the MOTORSHIP SUWAHARU MARU, Plaintiff, in a Cause of Limitation of Liability. In re HELLENIC INTERNATIONAL SHIPPING, S.A. as Owner of the TANKER MANDOIL, II, Plaintiff, in a Cause of Limitation of Liability.
• Court: U.S. District Court — District of Oregon

305 F. Supp. 796

In re YAMASHITA-SHINNIHON KISEN, as Owner of the MOTORSHIP SUWAHARU MARU, Plaintiff, in a Cause of Limitation of Liability In re HELLENIC INTERNATIONAL SHIPPING, S.A. as Owner of the TANKER MANDOIL, II, Plaintiff, in a Cause of Limitation of Liability.

Civ. Nos. 68-113, 312, 431, 432 and 563.

United States District Court D. Oregon.

September 16, 1969.

Franklin, Olsen, Bennett, DesBrisay & Jolles, Portland, Or., for death and personal injury claimants.

Kell & Alterman, Clifford B. Alterman, Lent, York, Paulson & Bullock, Edwin A. York, Carney & Haley, Leo R. Probst, Portland, Or., for salvage claimants.

Wood, Wood, Tatum, Mosser & Brooke, Erskine B. Wood, Portland, Or., for Yamashita-Shinnihon Kisen and Iwai & Co., Ltd.

King, Miller, Anderson, Nash & Yerke, Curtis W. Cutsforth, Portland, Or., for Hellenic International Shipping, S. A.

Detels, Draper & Marinkovich, Martin P. Detels, Jr., Seattle, Wash., for U. S. Oil & Refining Co.

MEMORANDUM DECISION

BEEKS, District Judge.

These consolidated petitions for limitation of liability present many issues. This memorandum decision resolves two of them.

The first involves claims by Hudson Waterways Corp., (Hudson) owner, the master and the thirty man crew of the American steam tanker TRANSONEIDA for a salvage award against (1) Yamashita-Shinnihon Kisen, (Yamashita) the owner of the Japanese motor ship SUWAHARU MARU (SUWAHARU); (2) Iwai & Co., Ltd., (Iwai) the owner of the cargo of logs laden on said vessel; (3) Hellenic International Shipping, S. A., (Hellenic) owner of the Liberian steam tanker MANDOIL II (MANDOIL), and (4) U. S. Oil & Refining Company (U. S.), owner of a crude oil cargo laden in said vessel, for the saving of property, and for the saving of life against Yamashita and Iwai.

At 1450¹ February 28, 1968 the SUWAHARU, bound from Coos Bay, Oregon, to Nagoya, Japan, was in collision with MANDOIL, bound from Sumatra, Indonesia, to Tacoma, Washington, at a point approximately 300 miles west of the mouth of the Columbia River. At the time of the collision TRANSONEIDA was enroute from San Pedro, California, to Whittier, Alaska, and approximately 95 miles southeasterly of the point of collision.

At 1550 TRANSONEIDA received the distress signal of SUWAHARU that she was on fire forward and needed immediate help. Whereupon TRANSONEIDA proceeded to the position of the distressed vessel.

At 2056 TRANSONEIDA arrived in the collision area and hove to at the request of the KURE MARU, the first vessel to arrive in the collision area, and hence the "control vessel." At this time there was heavy fog.

At 2102 the KURE MARU requested that TRANSONEIDA proceed on her course as her assistance was not needed and the fog presented a danger of collision.

At 2105 TRANSONEIDA resumed its course but at 2140 received a request from the Thirteenth Coast Guard District at Seattle requesting it to remain on the scene for the purpose of providing radio-telephone assistance in an air drop of medical personnel to provide attention for the master of MANDOIL who was badly burned and in need of medical assistance.

At 2221 the KURE MARU advised TRANSONEIDA that it was proceeding to Westport, Washington with the crew of MANDOIL and asked that TRANSONEIDA watch SUWAHARU as the latter could not move. TRANSONEIDA replied in the affirmative. The survivors of MANDOIL were eventually taken to Astoria, Oregon.

At 0046 February 29th the Coast Guard requested TRANSONEIDA to remain on the scene to coordinate.

At 0125 SUWAHARU requested permission to transfer its crew to TRANSONEIDA while the sea was calm as her master did not believe SUWAHARU could withstand heavy weather. SUWAHARU further requested TRANSONEIDA to watch until arrival of the Coast Guard cutter which was expected the evening of March 1st.

During the early morning of February 29th the master and crew of SUWAHARU transferred to TRANSONEIDA by the use of her own lifeboat and ascended to the deck of TRANSONEIDA by use of a Jacobs ladder. None of the crew of TRANSONEIDA left TRANSONEIDA during this operation. TRANSONEIDA gave food and blankets to the crew of SUWAHARU. Between 2150 and 2302 twenty-nine members of the crew transferred to the Coast Guard cutter IVY by means of the latter's motor lifeboat.

At 0708 March 1st the remaining eight members of the crew of SUWAHARU were transferred to the IVY by the same method.

At 0738 March 1st TRANSONEIDA resumed her voyage to Whittier, Alaska.

At 1200 March 1st TRANSONEIDA, pursuant to instruction from Hudson, reversed course and proceeded to the vicinity of MANDOIL.

At 1341 a boarding party from the Coast Guard cutter MODOC boarded MANDOIL and returned to the MODOC at 1445.

At 1717 a boarding party of eleven members of the crew of TRANSONEIDA, headed by the Chief Mate, and including the Chief Engineer, Third Mate and Boson, left TRANSONEIDA and rowed a lifeboat of said vessel to MANDOIL, boarding the same by means of a Jacobs ladder hanging over the stern.

It was the unsuccessful intention of the boarding party to place a line from MANDOIL to TRANSONEIDA and to this end they placed two coils of light line aboard the lifeboat. The smallest line was a light non-metallic line ¼" in diameter. The other, commonly known as a "heaving line," also non-metallic, was approximately ½" in diameter. The ¼" line was bent to the ½? line, which which was bent to a 3" (circumference) line and this in turn was bent to 8½" boarding lines. The latter lines remained aboard TRANSONEIDA and they were made of braided poly-dacron fibers.

TRANSONEIDA had 300 fathoms of 3? line and nine 200 fathom lengths of 8½" line. The boarding party intended to trail the line from TRANSONEIDA to MANDOIL and then pull the heavy line aboard the latter vessel by use of the lighter line.

At 1850, shortly after the boarding party started to pull the line aboard MANDOIL, however, the ½" line parted at the stern chock through which it passed.

The boarding party spent the night of March 1st-2nd aboard MANDOIL.

The Canadian salvage tug SUDBURY II arrived in the vicinity of MANDOIL at 1954 March 1st and at 0845 March 2nd the TRANSONEIDA boarding party delivered up MANDOIL to a boarding party from the tug SUDBURY II, returned to TRANSONEIDA in their lifeboat at 0935 and TRANSONEIDA resumed course for Whittier at 1042.

On March 2nd the tug ARTHUR FOSS put a line aboard SUWAHARU and towed her to Victoria, British Columbia, arriving at said destination at 2300 March 7th, for which salvage service Foss Launch and Tug Company (Foss) was paid the contract sum of $30,050.00.

Eleven members of the crew of MANDOIL lost their lives, eight Greek and three Filipino seamen. Others received injury. The Court has been informed, however, that an amicable disposition has been made of the personal injury claims, and that they are withdrawn.

The factual matters aforesaid are not in dispute. The services rendered by TRANSONEIDA divide themselves into two distinct periods: (1) from 1550 February 28th, when TRANSONEIDA received the distress signal from SUWAHARU, until 0738 March 1st when TRANSONEIDA resumed her voyage to Whittier, Alaska, and (2) from 1200 March 1st, when TRANSONEIDA reversed course and proceeded to the vicinity of MANDOIL until 1042 March 2nd when TRANSONEIDA resumed course for Whittier. These periods will be referred to as First Period and Second Period.

During First Period the principal services of TRANSONEIDA were directed to the care of the SUWAHARU crew, and assisting the U. S. Coast Guard in providing medical attention for the Master of MANDOIL who was horribly burned and in need of medical assistance. The Commander of the Thirteenth Coast Guard District has characterized this service as a quick and competent response to a call for help which undoubtedly prevented a more serious loss of life and an excellent example of a seaman's humanitarian concern for a brother in distress. I agree.

During First Period, however, TRANSONEIDA provided a salvage service, primarily to SUWAHARU and to a lesser extent to MANDOIL. At the time of TRANSONEIDA'S arrival in the casualty area there was heavy fog, which remained until approximately 2254 when it started to clear. During this period MANDOIL could be seen through the fog as she was afire, but SUWAHARU could not be seen and the sea in this area was littered with floating logs which became separated from SUWAHARU'S deck load as a result of the collision, all of which presented a degree of danger.

The salvage service rendered by TRANSONEIDA, as it relates to property, was of a low order, sometimes characterized as a "standby service." TRANSONEIDA at all times during obscured visibility maintained a lookout as well as a radar watch for the purpose of ascertaining the presence of and giving warning to other vessels in the area, and TRANSONEIDA was equipped with both wireless and radio telephone for use in giving aid and comfort to the distressed vessels.

In addition to an award for assistance in the saving of property claimants contend they are entitled to an award for life salvage service rendered to the master and crew of SUWAHARU. In this connection they urge that in fixing the award the Court should consider the agreed fee of $30,050.00 paid to Foss for towing SUWAHARU to Victoria, B. C.

The Life Salvage Act² does not provide compensation for life salvage, it only allows salvors of life who have participated in the services rendered on the occasion of the accident giving rise to salvage, a fair share of the property salvage award. Thus, whatever may be the social injustice involved, life salvors are entitled to only a fair share of the compensation awarded to property salvors. Their share must come out of the property award and they have no cause of action against the beneficiaries of their service. It would serve no useful purpose to discuss the right of claimants to participate in an award for the standby service aforesaid. The claimants who...