Marine Sulphur Queen Litigation
This is the civil litigation involving the disappearance of the Marine Sulphur Queen. The case cites are 312 F.Supp.1081(1970) and 460 F.2d 89(1972). The case was appealed to the U.S. Supreme Court, but certiorari was denied (No. 72-344, Marine Sulphur Transport Corp. et al v. Heard et al). More information will follow.
IN RE MARINE SULPHUR QUEEN
Cite as 460 F.2d 89 (1972)In the Matter of the Vessel MARINE
SULPHUR QUEEN.Marine Sulphur Transport Corporation,
As Owner, Appellant,
andMarine Transport Lines, Inc., As Demise
Charterer, Appellant,Bethlehem Steel Corporation, Impleaded
Respondent-Appellant,United States Fire Insurance Co., Cargo
Claimant-Appellee and Appellant,Ida Ruth Heard et al., Death Claimants-
Appellees and Appellants.Nos. 457-460, Dockets 35228, 35233,
35235 and 35247.United States Court of Appeals,
Second Circuit.Argued Jan. 26, 1972.
Decided April 25, 1972.
Proceeding in admiralty on petition for exoneration or limitation of liability to death and cargo claimants. The United States District Court for the Southern District of New York, John M. Cannella, J., 312 F.Supp. 1081, denied petitions of the shipowner and demise charterer for exoneration or limitation, entered judgment against shipbuilder declaring its liability to death claimants and dismissed cargo claimant’s claim against shipbuilder and denied death claimants’ claim for punitive damages. The shipowner and demise charterer appealed from the denial of petitions, shipbuilder appealed and the death claimants cross-appealed. The Court of Appeals, Anderson, Circuit Judge, held that the trial court properly denied the petition of the shipowner and the demise charterer for exoneration or limitation of liability, that the death claimants’ motion for punitive damages was properly denied but that the shipbuilder was not liable for the wrongful death claims and that the cargo claimant was not entitled to recover against shipowner and the demise charterer for loss of cargo.
Affirmed in part and reversed in part.
ANDERSON, Circuit Judge:
The Marine Sulphur Queen (the Queen), a converted T-2 tanker laden with a cargo of molten sulphur, left a pier at Beaumont, Texas, with pilot aboard at 1330 C.S.T. on February 2, 1963. At 1900 the pilot was dropped at Sabine Bar Seabuoy and the vessel continued on her course for Norfolk, Virginia, with her estimated time of arrival at noon E.S.T. on February 7th. At 0125 E.S.T. on February 4th a personal message from a crew member was received by R.C.A. This was the last word heard from the ship or from anyone on her. Thereafter at 1123 an attempt was made to contact the Queen by R.C.A. radio but there was no response. At that time, had all gone well, the vessel's estimated position would have been roughly 100 nautical miles, on a bearing about West by South, from Key West, Florida. No radio distress message was ever received.For the next nine days extensive air and surface searches were conducted for the vessel and her personnel. Nothing was found which could be identified with the vessel. Thereafter a second search was instituted and there were discovered eight life jackets, five life rings, two name boards, a shirt, a piece of an oar, a storm oil can, a gasoline can, a cone buoy and a foghorn, all of which were marked or identified as belonging to the lost vessel.
There was oil on some of the life jackets and life rings, but there were no traces of sulphur on any of the items; nor was there discovered any splintered or scorched debris or other evidence of fire or explosion. An underwater exploration was made by the Navy for the vessel's hulk, but without avail. Concentrated search operations were terminated on March 13.
After a thorough inquiry by a Marine Board of Investigation, convened by the Commandant of the United States Coast Guard, into all the circumstances of the ship's disappearance, it was concluded by the Board and the Commandant that, for an unknown and unascertainable cause, the Queen had gone to the bottom with the cargo, and the entire ship's company of 39 had been lost.
Claims were made by the representatives of the deceased crew members (Death Claimants) based upon the general maritime law relating to unseaworthiness of a vessel, under the Jones Act, 46 U.S.C. § 688, and under Death on the High Seas Act, 46 U.S.C. § 761 et seq., and also by United States Fire Insurance Company (F.I.C.), based upon the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. (COGSA), as insurer of the cargo shipped by Texas Gulf Sulphur Co., to whose claim F.I.C. was subrogated. Marine Sulphur Transport Corporation (MSTC), as shipowner, and Marine Transport Lines, Inc. (MTL), as demise charterer, petitioned for exoneration or limitation of liability pursuant to 46 U.S.C. § 183 et seq. Later Bethlehem Steel Co. (Bethlehem), as the shipbuilder, and Texas Gulf Sulphur Co. (TGS) were impleaded as respondents.
At the trial voluminous evidence was presented covering the circumstances surrounding the acquisition of the Queen by MSTC, the arrangements for her conversion from a former oil tanker to a carrier of molten sulphur, the nature and details of the conversion, extensive expert testimony as to the effect of the structural changes on the operational condition of the ship as a molten sulphur carrier, the characteristics and hazards of the cargo and the history of the ship prior to the fatal voyage, including her 63 round-trip voyages as a molten sulphur carrier between January 18, 1961, when 'the Queen was certified by the Coast Guard for the carriage of Grade E liquids at elevated temperatures, and February 1, 1963, when she commenced taking on cargo for what proved to be her last voyage. There was evidence as to the quantity of this cargo and its stowage. The testimony also included statements by experts as to the possible causes for the loss of the vessel, cargo and crew. All of these elements of the case are described and discussed in the opinion of the district court, 312 F.Supp. 1081 (S.D.N.Y.1970). For the purpose of this review a summary will suffice.
In April, 1960, TGS was desirous of making long term arrangements for the transportation of its molten sulphur. As a result of negotiations with MTL, the latter agreed to cause its wholly owned subsidiary MSTC to purchase a 17 year old, T-2 oil tanker, Esso New Haven, to be converted into a molten sulphur carrier by Bethlehem at its Baltimore shipyard, in accordance with a contract, including plans and specifications, agreed upon by MTL and Bethlehem and approved by TGS. Charter parties were agreed Upon in advance between MSTC, as shipowner, with MTL, demise charterer, and between MTL and TGS, as time charterer, for consecutive voyages for 12 charter years, commencing when the vessel was ready to load. Fundamental to this accord were MTL requirements that the cost of the conversion not exceed $1,650,000 and that the converted ship have a minimum cargo capacity of 15,100 long tons.
In due course the T-2 oil tanker was purchased and was delivered to the Bethlehem shipyard where her conversion went forward. The plans contemplated that the cargo, a minimum 0; 15,100 long tons of molten sulphur at 265' to 275'F., would be carried in a large tank in the hold of the vessel. This tank was 306' long, 30'6" wide and 33' high, having a rectangular cross section. It had three internal sulphur-tight bulkheads which divided the tank into four sub-tanks. The Queen herself was an all welded T-2-SE-A1 tankship of 7,240 gross tons and 4,057 net tons, with a length of 504', beam of 68.2' and a depth of 39.2'. In order to accommodate the 306' cargo tank it was necessary to remove the greater part of nine transverse bulkheads, i. e. those at frames 47 and 71 and the seven in between. It was also necessary to lower the floor of the ship which cut the transverse web frames down to 3'4" above the flat keel plate. The center vertical keel was reduced to less than half its original height and the deck centerline girder was cut down slightly less than half its depth. The American Bureau of Shipping and the Coast Guard were not persuaded that the original conversion plan afforded sufficient transverse strength to the vessel and they required that a full transverse bulkhead be included at frame 59, which was the center of the cargo tank and mid-ships of the Queen, and also ordered that provision be made for other strengthening factors. The loss of transverse strength from removal or reduction of the transverse bulkheads was sought to be compensated for by strategically placed whole or partial diaphragm bulkheads, the addition of substantial flange plates, transverse web frames at the bottom of the vessel and at the top, beneath the deck, and by welding the cargo tank from frame 58 to 60 to the five longitudinal girders of the ship which were under the cargo tank.
To allow for longitudinal expansion due to the intense heat of the cargo there were five longitudinal stringers attached to the bottom of the cargo tank to which were fitted flange plates which were bolted to the flange plates affixed to the ship's five longitudinal members. Between the flange plates there was inserted Phenolite, a laminated plastic, as a heat insulator. There were slots 31/2" to 4" long in the insulation and in the flanges attached to the ship's longitudinals to allow for movement of the bolts. Likewise, above the tank there were slotted bolt connections with the centerline deck girder.
There were spaces on both sides of the length of the cargo tank which were approximately 15' in width between the sides of the tank and the sides of the ship. This area was partly taken up by wing tanks which were used for fuel, water or ballast, or left empty and the remainder, except for internal frame structures, gear and appurtenances, constituted the voids. The cargo tank was covered with a blanket of Owens-Corning Armaglas insulation which was 6" thick on top and 4" thick elsewhere. At the after ends of each of the four sub-tanks within the cargo tank there were port and starboard expansion trunks which extended up through the weather deck into weathertight pumphouses.
From each of the sub-tanks there was at the forward center a stream jacketed 6" vent, which extended up through and about 3' above the weather deck and ended in a U-bend. Also from each of the expansion trunks there was a steam jacketed 4" vent which ran through the top of the pumphouse and terminated about 2' above it in a U-bend. These were designated to carry off the hydrogen sulphide and carbon disulphide from the surface of the molten sulphur.
The Queen's Trim and Stability Booklet, approved by the Coast Guard, gave her optimum cargo capacity as 15,211 long tons. The district court found that on the voyage in question, though the ship's waterline was, on departure, below her Plimsoil mark, she carried 15,315 long tons of molten sulphur which completely filled her cargo tanks and overflowed into the expansion trunks. The court held that this over-filling of the cargo tanks was, under the circumstances, improper and dangerous. The 15,315 long tons figure was taken from the bill of lading and the weight certificate, and it was also the amount of the cargo claim for which the insurance company paid to TGS after the loss. MTL and MSTC argued that the correct figure was 15,260 long tons which the Coast Guard Board had assumed to be the cargo tonnage.
After the Queen was lost the United States Navy Oceanographic Office prepared a report on the weather which had prevailed between 2000 E.S.T. on February 3, 1963 to 1300 E.S.T. on February 4, for the waters lying between 80° W. and 82° W. There were generally northerly winds at a maximum of 25 knots with gusts to 46 knots. The maximum height of the waves was 16.5´. Because the entire weight of the cargo was confined to an area 30´ wide and centered over the keel rather than across the whole 68.2´ width of the vessel's hull, the radius of gyration of the ship was reduced; in other words, the arc of its roll was substantially shortened as compared with another vessel with the same metacentric height. The period of roll of the Queen was 8.5 seconds and, according to the Oceanographic Office report, the timing of the succession of waves was within 10% of the vessel's roll time.
The district court concluded that when the Queen left Beaumont, Texas, on her last voyage she was unseaworthy in several respects and "not reasonably suitable for her intended service." The court found the vessel as converted violated "the hundred-foot rule", § 12(2), of the ABS "Rules for Building and Classing Steel Vessels," which were adopted as official regulations by the Coast Guard, 46 C.F.R. § 31.10-1, and promulgated pursuant to 46 U.S.C. § 391a(2), in that she was constructed with transverse bulkheads more than 100´ apart and MSTC and MTL were thus liable for statutory fault.
It also concluded that the conversion resulted in a substantial weakening of the transverse strength of the vessel, which was not made up for or replaced by the newly added diaphragm bulkheads, the fastenings of the cargo tank, the tank itself and the other internal structures, to the extent that the Queen was unable to cope with the racking stresses caused by the heavy seas on February 3 and 4, 1963 and that she could well have suffered a sudden and massive structural collapse.
The court further held that the Queen was unseaworthy because there was no provision for transverse and vertical thermal expansion and the resulting stresses; and because the center line concentration of the cargo weight reduced the ship's radius of gyration and her period of roll was faster than that of another vessel with the same metacentric height. She was also unseaworthy because the sheer stress on the bottom transverse web frames tended to be increased; because corrosive (and conceivably explosive) pieces and particles of sulphur coated most of the interior of the vessel surrounding the cargo tank; because there was no adequate system for warning the crew of the toxic and potentially explosive mixtures of hydrogen sulphide and carbon disulphide in the cargo tank and in the void spaces where there had been a history of frequent fires; and because the vents for carrying off these gases from the surface of the molten sulphur were ineffective due to the over-filling of the cargo sub-tanks and the overflow into the expansion trunks. As noted above, the court also found that the vessel was dangerously loaded.
The district court denied the petitions of MSTC and MTL for exoneration or limitation of liability; it granted recovery to the Death Claimants against MSTC, MTL and Bethlehem but denied them the recovery of punitive damages. It dismissed their claim against TGS and TGS's petition for exoneration or limitation - rulings which were not appealed. It granted F.I.C., as cargo claimant, recovery against MSTC and MTL but dismissed its claim against Bethlehem.
Although the Death Claimants invoked and the district court decided their claims on the authority of both the Jones Act and unseaworthiness, it is wholly unnecessary to consider the applicability of the Jones Act in this case where all of the decedents were lost in the line of duty on a ship at sea. Unseaworthiness as a basis for their claims against MSTC and MTL amply covers all conceivable interests of the claimants and the Jones Act can add nothing; any rights of the Death Claimants which are based upon negligence are subsumed by the recognition of their claim of liability without fault which flows from their showing unseaworthiness - subject, of course, to the issue of causation, which we discuss infra. G. Gilmore & C. Black, The Law of Admiralty, § 6-25, at 295; § 6-38, at 315-317 (1957).
The concept, design, conversion and operation of the Marine Sulphur Queen was an experiment in the interests of developing a new and more efficient means of delivering molten sulphur by sea. She was the first vessel of her kind. As an experiment there were new and relatively untried features in her construction which in the opinion of the experienced and capable shipbuilders and certifying officials should theoretically have produced a seaworthy ship. The ship's handling and carriage of molten sulphur were governed by instructions from the highly experienced shipper, and 63 successful voyages had been completed under a galaxy of varying conditions without serious loss. Yet the frequent fires in the cargo tank insulation and in the voids, the spillage of molten sulphur into the ship's bilge, the nature and characteristics of the gases, their potential for danger from toxicity and explosion, and the means of venting them out of the closed areas of the ship were not fully explained or understood. The owner, however, did not consider these problems to be dangerous or unmanageable, but, as indicated below, we accept the lower court's findings that the vessel was unseaworthy in several respects.
A Coast Guard naval engineer testified that the design and conversion of the Queen for the carrying of molten sulphur "was a calculated risk." It was largely the owner's experiment, to which the officers and men of the ship had been committed.
There was an abundance of evidence, as detailed above, covering the entire history of the Queen from the plans for her acquisition and conversion through her actual operation as a molten sulphur carrier. This basic factual material furnished the grist for the central contention in the case carried on through the testimony of experts who were, on the one side, of the opinion that the ship was sound and seaworthy in all respects and those who, on the other side, were of the opinion that the vessel, as reconstructed and loaded at the time of her departure, was dangerous to the life and limb of the ship's company for several different reasons and was, therefore, unseaworthy. The district court concluded that the latter were correct and that the ship was unseaworthy in the several respects previously mentioned.
[1,2] Although findings as to unseaworthiness and negligence are not, in this circuit, protected by the "unless clearly erroneous" test of F.R.Civ.P. 52(a), Mamiye Bros. V. Barber Steamship Lines, Inc., 360 F.2nd 774, 776-778 (2 Cir.), cert. Denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966), such findings are entitled to great weight and will ordinarily stand unless the lower court manifests an incorrect conception of the applicable law. Cleary v. United States Lines Co., 411 F.2d 1009 (2 Cir. 1969). We can see no reason to disturb the lower court's findings of unseaworthiness.
The wrongful death claimants therefore sustained their burden of proving unseaworthiness and there remained only the issue of whether or not one or more of the conditions of unseaworthiness or some other agency caused the disaster. The court found in explicit terms that "no one knows how the ship was lost." The resolution of the question of liability will, under the circumstances, be determined by the allocation of the burden of proof on the causation issue, the existence of a rebuttable presumption and whether or not that presumption has been met.
[The entire text can be found at a local law library.]
Note: The famous IN RE: AIR DISASTER AT LOCKERBIE SCOTLAND ON DECEMBER 21, 1988 litigation references IN RE MARINE SULPHUR QUEEN: "Pan Am insists that causation was not established and that therefore the objected to wilful misconduct evidence was speculative and unrelated as a cause of the crash. We think the question of whether it had a causative effect was, without objection or exception, properly submitted to the jury. In other areas of the law, causation may be established when an increasing number of defendant's faults creates an inference that the totality must have caused the harm. See In Re Marine Sulphur Queen, 460 F.2d 89, 99-100 (2d Cir.), cert. denied, 409 U.S. 982 (1972)...."