Petition of Marina Mercante Nicaraguense, SA

• Decision Date: 15 November 1965
• Docket Number: 63 Ad. 389,63 Ad. 529.
• Citation: 248 F. Supp. 15
• Parties: Petition of MARINA MERCANTE NICARAGUENSE, S.A., as owner of the MOTOR VESSEL, EL SALVADOR, in a cause of exoneration from or limitation of liability. Petition of McALLISTER BROTHERS, INC., as owner of the TUG RUSSELL NO. 18, for exoneration from or limitation of liability.
• Court: U.S. District Court — Southern District of New York

248 F. Supp. 15

Petition of MARINA MERCANTE NICARAGUENSE, S.A., as owner of the MOTOR VESSEL, EL SALVADOR, in a cause of exoneration from or limitation of liability.

Petition of McALLISTER BROTHERS, INC., as owner of the TUG RUSSELL NO. 18, for exoneration from or limitation of liability.

63 Ad. 389 63 Ad. 529.

United States District Court S. D. New York.

November 15, 1965.

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Cichanowicz & Callan, New York City, for petitioner Marina Mercante Nicaraguense, S.A.; Victor S. Cichanowicz, George G. Kalarjian, New York City, of counsel.

Foley & Martin, New York City, for petitioner McAllister Brothers, Inc.; Christopher E. Heckman, Thomas J. Irving, New York City, of counsel.

Lilly, Sullivan & Purcell, New York City, for claimant Catherine Marie Fargo; John J. Purcell, New York City, of counsel.

Mahar & Mason, New York City, for claimant Theresa F. Salvesen; Frank C. Mason, New York City, of counsel.

Fields, Rosen, McElligott & Auslander, New York City, for claimant Virginia Ruth Evans; Thomas E. P. McElligott, Stephen Fields, New York City, of counsel.

WEINFELD, District Judge.

On September 20, 1962 the tug Russell 18, which had just assisted in undocking the M/V El Salvador, sank in Port Elizabeth Channel, Newark, New Jersey, with the loss of three of her seven crew members.

These are consolidated proceedings in which petitioner McAllister Brothers, Inc. (hereafter referred to as McAllister), owner of the tug Russell 18, and petitioner Marina Mercante Nicaraguense, S.A. (hereafter referred to as Marina), owner of the El Salvador, seek exoneration from or limitation of liability.¹ Representatives of the estates of the three deceased crew members are claimants in each proceeding and contest petitioners' limitation and exoneration pleas. Also, each petitioner challenges the other's right to limitation, and each, in the event it is cast in liability to the death claimants, seeks indemnity from the other; McAllister further is a claimant against Marina for damages to the tug Russell 18. The claimants have the burden of proof on the issue of liability, and if they sustain it each petitioner has the burden under its limitation plea of establishing that the faults or acts which resulted in liability were committed without its privity or knowledge.²

The petitioners and claimants, in advance of trial, agreed upon the order of presentation of evidence in support of their respective burdens.³ Much evidence was received from those who witnessed the capsizing and sinking, with the not unusual disparity in the testimony of seamen. Also offered was evidence bearing on the stability of the tug. Then there was the testimony of the diver who located the tug at the bottom of the channel and there placed slings about her, preparatory to raising and towing her to dry dock, as well as that of surveyors who examined her at dry dock, one of whom, a marine architect, gave his opinion as to the cause of her foundering. Essentially, the principal issue is the cause or causes of the tug's sudden sinking in a matter of two or three minutes in the quiet and calm waters of Port Elizabeth Channel.

The tragedy occurred in the early morning hours, at about 5:30 a. m., in darkness. The tug Russell 18 had been engaged to assist the El Salvador from her berth at Pier 36 in Port Elizabeth, Newark, New Jersey, to Pier 3 in Brooklyn, New York. John Skogen, a harbor pilot employed by McAllister, was assigned to act as pilot for the trip.

The Russell 18 left Brooklyn at about 3:30 a. m. and proceeded to Port Elizabeth Channel. Those aboard were Skogen, the three deceased, Norman Evans, Frank Fargo and Carl Salvesen, and the four surviving crew members. The approach to Pier 36 where the El Salvador was berthed was by way of Port Elizabeth Channel from its junction with Newark Bay Channel. As the tug neared Port Elizabeth Channel Skogen sought, but was unable to locate a black buoy — black buoy can No. 1 — supposedly situated on the southerly side of the channel at the junction. The tug, not having located the black buoy, nonetheless entered Port Elizabeth Channel guided by four red unlighted can buoys to the tug's starboard, numbered 2, 4, 6 and 8, respectively; the distance between each was about 900 feet. The distance from where the tug entered the channel to where the El Salvador was moored at Pier 36 was about 3600 feet. The channel is about 600 feet wide and dredged to a depth of thirty-five feet.

The tug reached Pier 36 about 5 a. m., where Skogen disembarked and boarded the El Salvador. Under Skogen's direction the El Salvador was maneuvered away from her berth without incident. The vessel, still under Skogen's direction, then executed a ninety degree port turn into Elizabeth Channel and headed toward the junction with Newark Bay Channel, which she would now enter by a starboard turn on her planned passage to Brooklyn. The Russell 18 was tied to the port side of the El Salvador on a line thirty to forty feet in length made fast from the tug's forward bitts to the El Salvador's cleat. As the tug and ship proceeded toward the junction, the bow of the tug was against the side of the El Salvador aft of the forecastle head, with the pilot house forward of the ship's bridge and the tug's stern about four feet away from the ship.

As the El Salvador started to move down the straightaway of Port Elizabeth Channel with the Russell 18 made fast on her port side, Skogen, the pilot, positioned himself on the starboard wing of the ship's bridge about twenty-five feet from the ship's wheel to search in the darkness for the same black buoy can No. 1 which he had not located when the tug entered the channel and which Skogen believed now,⁴ on his return trip, was off the starboard side. He intended it as a guide to make the starboard turn into Newark Bay Channel. As he exited from Port Elizabeth Channel, the four red unlighted can buoys were now on the port side in reverse order, numbered 8, 6, 4 and 2, respectively. Hansen, the master of the El Salvador, was also on the starboard wing. The pilot's orders were transmitted by the master to the engine room for execution.

When the ship left the dock Skogen ordered her engines put at slow ahead and then half ahead because the engine was slow and sluggish; meanwhile the tug's searchlight was played on buoy No. 8 and then on buoy No. 6, which was about fifteen feet from the tug's port side. When the El Salvador was abreast of buoy No. 6, Skogen observed a tanker assisted by two tugs proceeding southbound down Newark Bay Channel toward the junction of the two channels, which he felt he could reach before the tanker and make his starboard turn. Although he was still endeavoring to locate black buoy No. 1, he ordered full speed ahead, giving the El Salvador a speed through the water of about seven knots, or eight miles an hour over the ground. Subsequently Skogen ordered hard astarboard, and upon the master's instructions the order was executed by the wheelsman. No signal was given to the tug to indicate change in speed or course.

At or about this time Forbes, the El Salvador's boatswain, stationed at the cleat to which the Russell 18's single line was made fast, saw the line under a heavy strain. He also observed the tug listing heavily to port, water going over her, and several men on the bulwark of the tug yelling excitedly. Although he could not understand them, he sensed a situation of danger. Without giving notice to the bridge, and without orders from the bridge, Forbes, unable to release the line from the tug to the El Salvador because of the heavy strain, cut it.⁵

The tug, cast adrift, still listing heavily to port and unable to keep pace with the ship, began to fall behind. As the tug drifted astern, she was rubbing along the ship's side, taking water over her stern and sinking fast When clear of the ship she turned starboard, capsized and soon went under stern first on her port beam to the starboard side of Elizabeth Channel. No rescue operations were undertaken by the El Salvador's personnel. No life rings, jackets, or lines were thrown to the tug; no lifeboats were launched and no lights were shone or flares dropped on the area where the tug went down. A move by the boatswain to lower a Jacobs ladder was futile, since the tug had already drifted astern of the El Salvador. Fargo, Evans and Salvesen were not seen alive thereafter. The other crew members were rescued by the tugs which had been towing the tanker down Newark Bay Channel, after the El Salvador signalled them to come to the disaster scene.

Skogen, who had been on the starboard wing in his effort to locate black buoy No. 1, first learned that the Russell 18 was in trouble either from the El Salvador's master or from a whistle by the tug. He started for the center of the bridge, meanwhile giving orders to reduce speed — first, to half ahead, then to slow, and finally to stop. When he saw the tug, after she had been cast adrift, moving aft along the ship, Skogen ordered the wheel hard left to avoid contact between the ship's propeller and the tug.

While these events were taking place, Orville Evans, the chief engineer of the tug, became aware of trouble at his station in the engine room. After the undocking of the El Salvador, as she and the tug proceeded into Port Elizabeth Channel, the tug developed a slight but noticeable port list. About two minutes later, when the tug's engines were operating at full speed, Evans heard a squealing noise. Upon inspection to ascertain the cause, hot oil squirted in his face. Because it was hot Evans concluded it came from the steering mechanism, a conclusion verified by subsequent events. He next heard the engines straining or laboring, soon followed by water coming into the engine room over the upper half of a Dutch door. The tug continued to list heavily to port and was going under. He made his escape from the engine room as the tug was...