Zim Israel Nav. Co., Ltd. v. Special Carriers

• Court: U.S. District Court — Eastern District of Louisiana
• Writing for the Court: John J. Broders, George R. Alvey, Jr., New Orleans, La., for Lash Carriers
• Citation: Zim Israel Nav. Co., Ltd. v. Special Carriers, 611 F.Supp. 581, 1986 AMC 2016 (E.D. La. 1985)
• Decision Date: 05 June 1985
• Docket Number: 82-3452 and 83-349.,82-419,Civ. A. No. 82-418
• Parties: ZIM ISRAEL NAVIGATION CO., LTD., Plaintiff, v. SPECIAL CARRIERS, INC., M/V Acadia Forest, Defendants. LASH CARRIERS, INC., Plaintiff, v. M/V EN GEDI, Her Engines, Tackle, Apparel, etc., Zim Israel Navigation Company, Ltd., Defendants. ZIM ISRAEL NAVIGATION CO., LTD., Plaintiff, v. PETROLEOS MEXICANOS S.A., Defendant. HASSNEH INSURANCE CO., LTD., Hamagen Insurance Co., Ltd., Yardenia Insurance Co., Ltd. and Biderman Insurance Co., Ltd., Plaintiffs, v. MV EN GEDI, Zim Israel Navigation Co., Ltd., MV Acadia Forest and Lash Carriers, Inc., Defendants.

611 F. Supp. 581

1986 AMC 2016

ZIM ISRAEL NAVIGATION CO., LTD., Plaintiff, v. SPECIAL CARRIERS, INC., M/V Acadia Forest, Defendants.

LASH CARRIERS, INC., Plaintiff, v. M/V EN GEDI, Her Engines, Tackle, Apparel, etc., Zim Israel Navigation Company, Ltd., Defendants.

ZIM ISRAEL NAVIGATION CO., LTD., Plaintiff, v. PETROLEOS MEXICANOS S.A., Defendant.

HASSNEH INSURANCE CO., LTD., Hamagen Insurance Co., Ltd., Yardenia Insurance Co., Ltd. and Biderman Insurance Co., Ltd., Plaintiffs, v. MV EN GEDI, Zim Israel Navigation Co., Ltd., MV Acadia Forest and Lash Carriers, Inc., Defendants.

Civ. A. Nos. 82-418, 82-419, 82-3452 and 83-349.

United States District Court, E.D. Louisiana.

June 5, 1985.

COPYRIGHT MATERIAL OMITTED

James L. Schupp, Jr., Hugh R. Straub, New Orleans, La., for Zim Israel Nav.

John J. Broders, George R. Alvey, Jr., New Orleans, La., for Lash Carriers.

Rene S. Paysse, New Orleans, La., for Hassneh Ins., et al.

J. Barbee Winston, Edward F. LeBreton, III, New Orleans, La., for Petroleos Mexicanos.

MEMORANDUM OPINION

CASSIBRY, Senior District Judge:

These consolidated cases involve a collision in the Gulf of Mexico on January 25, 1982, between the M/V EN GEDI, owned by Zim Israel Navigation Co., Ltd. ("Zim Israel"), and the M/V ACADIA FOREST, owned by LASH Carriers, Inc. ("LASH"). Both vessels were damaged as a result of the collision, and the respective owners filed claims and counterclaims against one another.¹ In addition, Zim Israel filed suit against Petroleos Mexicanos, S.A. ("PEMEX"), the owner of the M/T JOSE COLOMO. Although the JOSE COLOMO was not involved in the actual collision, it is alleged that the vessel contributed to the casualty by embarrassing the navigation of the EN GEDI, the ACADIA FOREST, or both.

After a trial on the issue of liability, the court held that the collision was caused solely by the ACADIA FOREST without fault on the part of the EN GEDI or the JOSE COLOMO. The court now enters the following findings of fact and conclusions of law in support of its judgment.

FINDINGS OF FACT

1. The EN GEDI, an Israeli flag bulk carrier owned by Zim Israel, is approximately 196 meters in length, 27 meters in breadth, and 23,573 gross tons. On the evening of January 25, 1982, the EN GEDI was bound for Israel from Elmo, Louisiana with a load of yellow corn. After an uneventful passage to the head of passes on the Mississippi River, the EN GEDI had transited the Southwest Pass, and reached the Southwest Pass sea buoy where the bar pilot left the vessel. According to the EN GEDI's deck bell book, the vessel departed from the sea buoy at 2106 hours. The EN GEDI's master, Captain Leopold Spiegelman, ordered full ahead sea speed, and, after a slight deviation, set a course of 180 degrees into the Gulf of Mexico.

2. A safety fairway extends below the Southwest Pass sea buoy into the Gulf of Mexico. The fairway provides mariners with a secure route through the various offshore oil and gas structures located in the Gulf. From the sea buoy, the two-mile-wide fairway continues for approximately six miles and then bifurcates, forming an inverted "Y", with one branch extending southeast and the other southwest. The fairway does not constitute a designated traffic scheme and its use is entirely voluntary.

3. As the EN GEDI proceeded in the fairway, a vessel was sighted astern, on the EN GEDI's starboard quarter. This vessel proved to be the JOSE COLOMO, a Mexican flag liquid gas tanker, owned by PEMEX. The JOSE COLOMO is approximately 158 meters in length, 24 meters in breadth, and 15,819 gross tons.

On the night of the collision, the JOSE COLOMO was bound for Tampa, Florida with a partial cargo of liquefied ammonia. The JOSE COLOMO left the Southwest Pass sea buoy to her starboard side at approximately 2110 hours.² The master of the JOSE COLOMO, Captain Ramoa Jimenez Lopez, testified at deposition that he increased his vessel's speed from dead slow to full ahead maneuvering speed. Captain Jimenez estimated that at the time his vessel passed the sea buoy, the EN GEDI was less than one mile ahead and appeared to be on an identical course with the JOSE COLOMO of 180 degrees due south. The JOSE COLOMO subsequently overtook and passed the EN GEDI on the latter vessel's starboard side.

4. At about the time they saw the JOSE COLOMO, the navigators of the EN GEDI also noted the white masthead and range lights of the ACADIA FOREST bearing on the EN GEDI's port bow at approximately a forty degree angle. Captain Spiegelman estimated that at the time she was first sighted, the ACADIA FOREST was 3.5 nautical miles away from the EN GEDI. The ACADIA FOREST's navigation lights indicated that the vessel was proceeding northwest and was in a crossing relationship with both the EN GEDI and the JOSE COLOMO.

5. The ACADIA FOREST, a Liberian flag ship owned by LASH, is approximately 261 meters in length, 32 meters in breadth, and 33,231 gross tons. On the night of the collision, the ACADIA FOREST was bound for St. Rose, Louisiana from Balboa, Spain. At approximately 2000 hours, the master of the ACADIA FOREST, Captain Rolf C. Barth, contacted the Southwest Pass pilot station to report his vessel's estimated time of arrival at the Southwest Pass sea buoy.³ The ACADIA FOREST proceeded towards the sea buoy through the southeast leg of the safety fairway on a course of 326 degrees. At 2100 hours, Captain Barth reduced speed from full ahead sea speed to full ahead harbor speed. As she proceeded, the ACADIA FOREST was positioned approximately in the middle of the safety fairway. Captain Barth testified that at 2113 hours, he observed the red side lights and white masthead and range lights of the EN GEDI and the JOSE COLOMO bearing on the ACADIA FOREST's starboard bow. The lights of the two vessels indicated they were in a crossing relationship with the ACADIA FOREST. Captain Barth ordered his vessel's speed decreased to half ahead, but made no alterations in the ACADIA FOREST's course of 326 degrees.

At approximately 2119 hours, an unsuccessful attempt was made to contact the two southbound ships by radio on VHF channel 16. A few seconds later, the Southwest Pass pilot station informed the ACADIA FOREST of the names of these vessels. Captain Barth then called the JOSE COLOMO by name to confirm her course and intentions. In the ensuing radio exchange, the navigators aboard the JOSE COLOMO confirmed that the tanker was continuing on a due south heading of 180 degrees. Captain Barth conceded at trial that he never called the EN GEDI by name, and the evidence indicates that no radio communication with the EN GEDI was ever accomplished. The evidence further indicates that the EN GEDI's bridge radio monitored VHF channel 16 at all pertinent times.

6. Initially, the ACADIA FOREST did not unduly alarm those navigating the EN GEDI because the lights and position of the LASH vessel indicated a typical crossing situation in which the EN GEDI was the privileged vessel. Furthermore, as explained more fully below, the ACADIA FOREST was the burdened vessel and required to keep clear of the EN GEDI. Thus, Captain Spiegelman maintained his vessel's course and speed in the expectation that the ACADIA FOREST would alter her course to the right. However, as time passed and the distance between his vessel and the ACADIA FOREST decreased with no change in the relative bearing of either vessel, Captain Spiegelman became increasingly concerned.

Captain Spiegelman testified that approximately three minutes prior to the casualty, the ACADIA FOREST was 1.5 miles away from the EN GEDI on a direct collision course. Spiegelman sounded a one whistle blast to indicate his intention to turn right, and then altered the course of the EN GEDI five to ten degrees starboard. Captain Spiegelman contends that at this point in time, he was unable to alter the course of his vessel any further because the JOSE COLOMO was abreast of the EN GEDI and approximately 600 feet to starboard. Captain Jimenez of the JOSE COLOMO disagrees with this contention and asserts that the lateral distance separating the JOSE COLOMO and the EN GEDI during the overtaking was, at the closest point, about one half mile. Thus, the JOSE COLOMO interests argue that the JOSE COLOMO overtook and passed the EN GEDI at a distance which gave the EN GEDI ample maneuvering room. Furthermore, the JOSE COLOMO had drawn clear ahead of the EN GEDI before the risk of collision became imminent. This contention is supported by the ACADIA FOREST's log book which shows the JOSE COLOMO to have crossed the bow of the ACADIA FOREST a full two minutes prior to collision.

I conclude that the JOSE COLOMO properly overtook the EN GEDI and presented no embarrassment to the navigation of that vessel. The evidence, when viewed in its entirety, supports the JOSE COLOMO's version of the overtaking. Furthermore, even if the JOSE COLOMO was close aboard the EN GEDI three minutes prior to collision, I agree with the expert testimony of Master Mariner Robert C. Chamberlin that under these circumstances, the JOSE COLOMO's best course of action was to promptly clear the area and to maintain her course and speed. This she did.

7. After overtaking the EN GEDI, the JOSE COLOMO continued down the safety fairway on a heading of 180 degrees. The JOSE COLOMO passed the ACADIA FOREST port to port without incident. Although Captain Barth of the ACADIA FOREST testified that the presence of the JOSE COLOMO influenced his decisions, there was no evidence that the JOSE COLOMO committed any act or omission which embarrassed the navigation of the ACADIA FOREST. The ACADIA FOREST had been apprised of the JOSE COLOMO's intentions by radio communication prior to the port-to-port passage between the two vessels.

8. Two minutes before the collision, Captain Barth reduced the speed of the ACADIA FOREST to dead slow ahead, but continued to hold his course of 326 degrees. Meanwhile, the EN GEDI sounded five short whistle...