Sears, Roebuck and Co. v. American President Lines, Ltd.

• Decision Date: 08 July 1971
• Docket Number: No. 47292,47385 and 47637.,47292
• Parties: SEARS, ROEBUCK AND CO., a corporation, Plaintiff, v. AMERICAN PRESIDENT LINES, LTD., a corporation, et al., Defendants. AMERICAN PRESIDENT LINES, LTD., a corporation, Cross-Claimant, v. NATIONAL STEEL AND SHIPBUILDING COMPANY, a corporation, et al., Cross-Defendants. NATIONAL STEEL AND SHIPBUILDING COMPANY, a corporation, Cross-Claimant and Third-Party Plaintiff, v. MacGREGOR-COMARAIN, INC., Cross-Defendant.
• Court: U.S. District Court — Northern District of California

345 F. Supp. 395

SEARS, ROEBUCK AND CO., a corporation, Plaintiff, v. AMERICAN PRESIDENT LINES, LTD., a corporation, et al., Defendants.

AMERICAN PRESIDENT LINES, LTD., a corporation, Cross-Claimant, v. NATIONAL STEEL AND SHIPBUILDING COMPANY, a corporation, et al., Cross-Defendants.

NATIONAL STEEL AND SHIPBUILDING COMPANY, a corporation, Cross-Claimant and Third-Party Plaintiff, v. MacGREGOR-COMARAIN, INC., Cross-Defendant.

Nos. 47292, 47385 and 47637.

United States District Court, N. D. California.

June 24, 1971.

Supplemental Memorandum July 8, 1971.

COPYRIGHT MATERIAL OMITTED

Robert E. Patmont, Patmont & Meyers, San Francisco, Cal., for Sears, Roebuck & Co.

Robert H. Thede, Esq., Derby, Cook, Quinby & Tweedt, San Francisco, Cal., for Acme Mill Supply, and Phoenix Assur. Co., and others.

Norman B. Richards, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for American President Lines, Ltd.

Fielding H. Lane, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for Natl. Steel & Shipbuilding Co.

Barry L. Bunshoft, Cushing, Cullinan, Hancock & Rothert, San Francisco, Cal., for MacGregor-Comarain, Inc.

Frank J. Maley, Mendes & Mount, New York City, for Phoenix Assur. Co.

MEMORANDUM FOR JUDGMENT

OLIVER J. CARTER, Chief Judge.

The case at bar is before the Court under admiralty and general maritime jurisdiction. The plaintiffs are the owners or subrogated insurers of numerous articles of cargo that were shipped aboard the SS President Monroe in late July and early August of 1966. The cargo was loaded onto the ship at various ports in Japan, and its ultimate destination was Los Angeles. While the vessel was in San Francisco unloading cargo other than the plaintiffs' that was aboard the ship, the master of the President Monroe ordered the number 6 forward deep tanks filled with seawater for ballasting purposes. All parties concede that it was during this ballasting operation that sea water entered the vessel's number 6 lower hold and damaged the cargo in question.

At the time the cargo was damaged, the President Monroe was owned, operated, and under the exclusive control of American President Lines, Ltd. (hereinafter APL). APL held this vessel out as a common carrier of goods for hire, and, as a common carrier, APL undertook all of the requisite obligations implicit in safely transporting the plaintiffs' goods on its vessel. The plaintiffs have sued APL for their losses and allege that APL was negligent and the President Monroe was unseaworthy. APL denies negligence, unseaworthiness, or any wrongdoing on its part.

The President Monroe was built by defendant National Steel and Shipbuilding Company (hereinafter NASSCO) from specifications supplied by APL. NASSCO subcontracted the work that dealt with the design and construction of hatch covers, tank covers and related apparatus to defendant MacGregor-Comarain Inc. (hereinafter MacGregor).

It is the plaintiffs' contention that their cargo was damaged when seawater entered the lower number 6 hold because of defective and malfunctioning coamings, lids and closing mechanisms of the number 6 deep tank hatches, and because a hole existed in the aforesaid coamings. They also allege that the employees of APL were not given adequate or proper instructions as to the operation of the tank lids, hatch covers, and their hydraulic closing devices. Plaintiffs further allege a breach of an implied warranty of fitness of purpose on the part of NASSCO and MacGregor.

Defendant APL asserts that its personnel used all due care required of them in the operation of closing and securing the deep tank steel hatch covers. They deny any negligence and contend that the hatch covers supplied by MacGregor were inadequate and defective and, further, that MacGregor did not provide adequate instructions as to the operation of these hatch covers. APL further alleges that the overflow from the number 6 deep tanks into the lower hold resulted from a hole situated in the coaming of the deep tank. APL believes that the hole was negligently placed there while the vessel was under construction by NASSCO. Defendant APL has cross-complained against NASSCO and MacGregor for indemnity and contribution against any sums that APL is required to pay plaintiffs for damage to their shipments.

Defendant NASSCO denies any negligence or malfeasance and contends that the hole in the number 6 tank is of unspecified origin and was not placed there by it. NASSCO further alleges that the contract between NASSCO and APL limits its liability and should bar any recovery by APL against NASSCO. Defendant NASSCO denies that any warranty of fitness for purpose exists as to the President Monroe. NASSCO has filed a cross-complaint against MacGregor contending that if any defects existed in the number 6 hold they were there solely because of the negligent acts and omissions of MacGregor, and that MacGregor should indemnify NASSCO for any liability incurred by it. MacGregor contends that it is free from all fault and liability and that it should be dismissed from this action. During the course of the trial they made such a motion and the Court took said motion under submission.

THE SS PRESIDENT MONROE WAS UNSEAWORTHY IN THAT THERE WAS A HOLE IN THE NUMBER 6 FORWARD PORT DEEP TANK

The duty of a shipowner to supply a seaworthy ship is absolute and cannot be delegated. Mitchell v. Trawler-Racer, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941; Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Italia Soc. per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315, 84 S.Ct. 748, 11 L.Ed. 732. APL cannot contract away the burden of unseaworthiness and the owner of the vessel must bear the full responsibility of any act or omission that makes his ship unseaworthy. Liability for unseaworthiness is absolute and imposed regardless of fault. Burton v. Greig, 265 F. 418 (5 Cir.); Dimas v. Lehigh Val. R. Co., 234 F.2d 151 (2d Circuit); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. The fact that APL did not have actual or constructive knowledge of the hole nor the fact that it should not have known of its existence will not reduce its responsibility or liability. The shipowner has a non-delegable duty to furnish a seaworthy vessel, and no amount of due care will absolve him of that legal responsibility. Pinion v. Mississippi Shipping Co., 156 F.Supp. 652 (E.D.La.1957); Mormino v. Leon Hess, 210 F.2d 831 (2d Circuit).

APL WAS NEGLIGENT IN THE OPERATION OF BALLASTING THE NUMBER 6 DEEP TANKS

The number 6 deep tanks were ordered filled with seawater by the Master of the President Monroe after the vessel had discharged a portion of its cargo in San Francisco. APL had not had occasion to perform this operation at any previous time as it had taken delivery of the vessel only six months before the date of the flooding. However, APL was present when the operation was carried out during the shakedown cruise prior to delivery. The task of ballasting is not a complex one, and it is a basic operation aboard a seagoing cargo vessel. The evidence presented at trial has shown that the crew of the President Monroe conducted the ballasting operation in a negligent and careless manner. The flooding of the dry cargo space was a result of leakage that occurred during the ballasting of the number 6 deep tanks. The water either leaked in through a hole in the coaming of the number 6 deep tank or it may have entered because the hatch covers in the hold were improperly closed. But in either case if the water had been shut off immediately once the tanks were filled, extensive damage would not have occurred. The Court is not suggesting that APL bear the entire burden for the resulting damage to plaintiffs' cargo, but it does find that APL's negligence in this respect was a contributing cause of the damage.

Both the appliances, which measure the depth of liquid in the tanks, and the electrical bilge alarm system were inoperative during the ballasting operation.

APL knew that these devices were on the ship's deficiency list and thus could not be depended upon to warn the crew when the tanks were full. If the bilge alarms had been working then the overflow could easily have been discovered. The testimony of APL employees Beam and Woslewski indicates that no extra precautions were taken even though there was ample notice that these systems were inoperable. Clearly some sort of precautions could have been taken to assure that the ballasting would be done properly and without mishap. Sounding lines could have been lowered into the tanks, and someone could easily have visually observed at least a portion of the filling procedure; once the water reached the appropriate level, the operation could have been halted. APL had a duty to assure the safe carriage of plaintiffs' cargo.

The testimony further indicates that the sounding tubes that would have alerted the crew to the fact that the tanks were full, had the tubes been working properly, were blocked with wooden plugs. This condition was not discovered until after the flooding had occurred. The reliance of the crew of the President Monroe on these vents as an indicator that the tanks were full was reasonable and proper. The blockage of the tubes could be determined only after they were once tested. There was no reason for APL to think that the sounding tubes might be stopped up. The tank test foreman of NASSCO, Mr. Duarte, testified that the vents were sealed with wooden plugs for the testing of the vessel prior to delivery to APL, and that the plugs were later removed. It seems evident that this was not the case. The plugs were overlooked and not removed by NASSCO and there is no reason that APL should have had knowledge of this omission. The negligence of both parties caused the flooding. APL depended on the sounding tubes to provide a warning that the tanks were full. This was circumvented by the negligence of NASSCO in its failure to remove...