The opinion of the court was delivered by: WEINER
These admiralty actions arise out of a collision which occurred during the early morning hours of January 31, 1975, on the Delaware River at Marcus Hook, Pennsylvania. The vessels involved were the SS Edgar M. Queeny ("Queeny"), an American steamship, and the S.T. Corinthos ("Corinthos"), a Liberian steam tanker. At the time of the collision, the Corinthos was moored, starboard side, to the BP Oil Inc./Sohio Petroleum Company dock at Marcus Hook, Pennsylvania in order to discharge her cargo of crude oil. The collision and the resulting explosions caused extensive damage to the dock, the destruction of the Corinthos, oil pollution of the Delaware River, minor damage to the Queeny, damage to neighboring properties, and tragic loss of 26 lives and other personal injuries.
As a result of this incident, numerous proceedings were instituted. The personal injury and wrongful death actions were settled and dismissed, and therefore shall not be discussed in this opinion. A products liability action was filed by BP Oil Inc. and Sohio Petroleum Company against Bethlehem Steel Corporation, General Electric Company and The William Powell Company (See C.A. 77-2362). These defendants, collectively referred to as the products or third party defendants, participated in one aspect or another in the design and construction of the Queeny, her turbine set and controls, and the astern guardian valve. At the time of trial, the products liability action was severed and stayed pending the resolution of the limitation actions.
Also severed at the time of trial was the action of BP Oil, Inc./Sohio Petroleum Company against Villaneuva Compania Naviera, S.A., et al., owner of the Corinthos (See C.A. No. 75-1285).
In the instant limitation actions, the issue of damages was bifurcated from the issue of liability, and the cases then proceeded to trial before the court sitting without a jury. On the second day of trial, James F. Young, Esquire, attorney for the Queeny interests admitted that his client no longer sought exoneration. (N.T. Pgs. 38-39, July 19, 1979). Accordingly, our opinion will address the questions of whether the Queeny interests are entitled to limit their liability and whether the Corinthos and BP Ohio Inc./Sohio Petroleum Company interests can be exonerated from or limit their liability. For ease of understanding, our Findings of Fact, Discussion, and Conclusions of Law shall be recited in narrative form rather than in separately numbered paragraphs.
The SS Edgar M. Queeny, Official Number 528567, is a single screw, steam powered tank vessel of 19,046 gross tons. She is 660.2 feet in length and 90 feet in breadth. She is powered by a 15,000 shaft horsepower steam turbine. She was designed and built as a multi-product chemical tanker by the Bethlehem Steel Corporation ("Bethlehem") during the mid-to-late 1960's for the Monsanto Chemical Co. The Queeny's turbine set and controls were designed and built by the General Electric Company ("G.E.") pursuant to a subcontract with Bethlehem. G.E. in turn, subcontracted with The William Powell Company ("Powell") for the manufacture of a valve known as a Marine Astern Guardian Valve, to be used in the turbine.
The Corinthos, Official Number 1916, was a single screw, steam powered tank vessel of Liberian registry of 30,705 gross tons. She was 723.7 feet in length and 106 feet in breadth. She was powered by a 17,000 horsepower steam turbine.
The Corinthos moored at the BP Oil, Inc. refinery dock in Marcus Hook, Pennsylvania at approximately 1500 hours (3:00 p.m., Eastern Standard Time) on January 30, 1975 and began discharging its cargo of crude oil. The Queeny moored across the river at the Monsanto Chemical Co. dock at Bridgeport, New Jersey at approximately 1248 hours (12:48 p.m., Eastern Standard Time) on January 30, 1975, in order to discharge part of its cargo.
At the time of docking, the Queeny was under the command of Captain Fay Kellog with Sverre Sorensen at the conn
serving as the pilot. Both Captain Kellog and Pilot Sorensen were familiar with the Queeny having participated in her docking and undocking maneuvers many times. At approximately 2300 hours (11:00 p.m., Eastern Standard Time) the vessel began preparations to depart Bridgeport, New Jersey and proceed to Paulsboro, New Jersey. As part of these preparations, the Third Mate, Robert Downs, and an engineer tested the engine order telegraph at the bridge and engine room locations, the steering gear, the bow thruster, and synchronized the wheelhouse, chartroom and engine room clocks. The equipment which was tested was found in good operating condition.
Since the Queeny was moored port side to the pier, it was necessary for it to make a 180o starboard turn upon leaving the dock in order to proceed upstream to the next discharge facility at Paulsboro, New Jersey.
At approximately 0006 hours (12:06 a.m., Eastern Standard Time) on January 31, 1975, the Queeny departed the Monsanto terminal. Its draft at that time was 36 feet forward and 36 feet 10 inches aft. The weather was clear and cold with visibility of 8-10 miles. The tide was flooding with a current of about 1.5 to 2.0 knots and the eastern half of the Marcus Hook channel was closed for dredging operations. The dredging operations reduced the channel width from its normal 800 feet to 400 feet. The "Local Notice to Mariners" required vessels to proceed up the western half of the channel.
During the undocking maneuver, the master and pilot were on the bridge; the third mate, Robert Downs, was manning the engine order telegraph; and the quartermaster, Daryl Sutton was at the helm. In the engine room at this time were the first assistant engineer, George Zahar, at the engine control with third assistant engineer, J. King; and engineman, J. Tomczak. At the forecastle docking station were Michael Casey, first mate; and Arvie Harris, able seaman; along with several other crew members. At the after docking station was chief mate, Lee Woodward, with various other members of the ship's crew assisting to undock the vessel.
In maneuvering from the dock, the Queeny used its main engine and bow thruster, and had its rudder hard left. The Tug Tanda 12, which was engaged to assist with the undocking, was positioned on the port bow and was in radio communication with Pilot Sverre Sorensen who was at the conn. Both anchors on the Queeny were ready to let go, to the degree that it was necessary only to remove the riding pawl and disengage the braking mechanism.
At the time of letting go the lines, prior to departing, Pilot Sorensen made a safety call on Channel 13 of the VHF stating that the Queeny was preparing to leave the dock at Monsanto. Once the vessel was clear of the dock and was proceeding into the river, a second safety call was made. Also at that time the Queeny began backing and filling, using a series of astern and ahead maneuvers in conjunction with the ship's rudder, the bow thruster, and the tug boat to facilitate the starboard turn of the vessel to position her to head upriver. As she was heading into the channel both Pilot Sorensen and Captain Kellog were aware that the eastern half of the channel was closed.
At about 0010 hours (12:10 a.m., Eastern Standard Time), Tug Tanda 12 was pushing the port bow of the Queeny to assist the ship in the turning maneuver. At about that time, Pilot Sorensen came into radio contact with Captain William Kegel, Master of the upbound S.S. Pennsylvania Sun in order to discuss the Queeny's intentions. During this time, the bow thruster was on right thrust and the Queeny's engines were placed on half ahead with rudder hard right. In the period of time between 0010 and 0022 hours, the Queeny backed and filled approximately twice in order to facilitate its turn.
Located in the river approximately 1060 feet from the Monsanto dock and 1,440 feet from the channel edge is anchor buoy D. At about 0022 hours, the Queeny approached buoy D, said buoy being located about 30-35 yards from the port bow, bearing well to the left of the bow. Also at that time, the Tug Tanda 12 was released from the port bow and was instructed to stand by at Paulsboro, New Jersey. Captain Kellog was on the starboard wing of the bridge and Pilot Sorensen was on the port wing.
Though the rate of swing materially decreased upon the release of the tug, Captain Kellog felt no cause for concern because he expected Pilot Sorensen to back and fill additionally as he had done on other occasions in that same turn across the river or in similar maneuvers. However, as the rate of swing decreased, the Queeny's forward acceleration increased.
At this point, Captain Kellog became apprehensive that the Queeny would not clear the Corinthos because of Pilot Sorensen's failure to continue to back and fill, and because of the decrease in the rate of turn. Though Captain Kellog voiced his concern about the "closeness" of the situation, Pilot Sorensen replied, "Captain, she should make that O.K.", or words to that effect.
Shortly thereafter, Captain Kellog again voiced his concern to Pilot Sorensen, stating: "Captain, I think we better go astern because we will be very close on this maneuver", or words to that effect. Captain Kellog received no response to his statement. He noted that Pilot Sorensen was engaged in a radio exchange with Captain Kegel of the S.S. Pennsylvania Sun.
Shortly thereafter, Pilot Sorensen ordered a "double jingle" which order was received and promptly acknowledged by the engine room. The order had little impact on the operation of the engines in that Mr. Zahar had already opened the throttle as far as he thought could be safely done. The rate of the Queeny's turn to the right was reduced as the propeller responded to the full astern order.
As the bow of the Queeny continued to ease closer to the Corinthos, Pilot Sorensen recommended that the starboard anchor of the Queeny be dropped. Captain Kellog apparently acquiesced in that he gave that order via his walkie talkie. No response was received because Arvie Harris, the Bow Lookout and the only person stationed at the windlass anchor watch position, had fled the extreme bow, seconds before, in the face of an impending collision.
Moments later, the Queeny came into contact with the Corinthos. The first contact produced sparks as a result of scraping between the two vessels. Due to the shock of the initial contact and the ships' rolling and pitching, there was an interval of intermittent non-contact and contact. It was during the subsequent contacts that the port fluke anchor of the Queeny punctured the port shell plating of the No. 4 and/or No. 5 cargo tanks of the Corinthos. During this time period, there was a series of explosions, followed by a conflagration.
Immediately after the collision and first explosion, third mate Downs instinctively rung up "Stop" on the engine telegraph. Shortly thereafter, Captain Kellog noted that the tachometer indicated 0 RPM's and called to Mr. Downs for full astern. That order was executed but not without a degree of confusion.
Captain Kellog, in an effort to emphasize the order, took the bridge telegraph control handle and signalled what he believed to be "Full Astern." Inadvertently, the telegraph was moved to "Bridge Control" following which the First Assistant Engineer called the bridge by telephone to confirm the request. Failing to receive a response from the bridge, the engineer moved the throttle control selector to the "Bridge Control" position. After some confusion, the bridge selector switch was moved from "Bridge Control" to "Full Astern", which signal was received and responded to by the engine room. The Queeny's propeller then began to turn in reverse.
Efforts to back the Queeny away continued until 0041 hours, at which time the Queeny pulled clear, and was able to proceed "full ahead" away from the burning Corinthos. While the Queeny headed downriver toward an anchorage area, its crew was engaged in extinguishing a fire on the Queeny's forecastle head.
At approximately 0100 hours (1:00 a.m., Eastern Standard Time), the Queeny anchored at a position close aboard buoy C of the Sun Oil dock. At about 0305 hours, she began to heave anchor and shifted to another anchorage which was completed at about 0345 hours when the Queeny safely anchored.
Meanwhile, the fires aboard the Corinthos continued to burn out of control through the early morning hours of January 31, 1975. During the course of the firefighting activities, the Delaware River was intermittently opened and closed to traffic as the danger of additional fires fluctuated.
Eventually, the fires and explosions on board the Corinthos caused that ship to break in half and to immediately sink near by the BP dock.
Limitation and/or exoneration of a vessel owner's liability is provided for in Title 46 of the United States Code, Section 181 et seq. The section pertinent to the issues in this case is Section 183(a), which in relevant part, provides:
"The liability of the owner of any vessel ... for any ... loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage or injury by collision, or for any act, matter, or thing, loss, damage, forfeiture, done or occasioned, or incurred without the privity or knowledge of such owner or owners shall not, ..., exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."
The analysis of whether the Queeny interests are entitled to limit their liability involves a two-step process. First, we must determine what acts of negligence or conditions of unseaworthiness caused the accident. Second, we must determine whether the shipowner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness. Farrell Lines, Inc. v. Jones, 530 F.2d 7, rehearing denied, African Neptune, S.S., 532 F.2d 1375 and Farrell Lines, Inc. v. Jones, 532 F.2d 1375 (5th Cir. 1976). Negligent actions or unseaworthy conditions of which the vessel owner has knowledge or privity will trigger the denial of limitation. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S. Ct. 379, 19 L. Ed. 2d 407 (1967). Moreover, it is settled that the claimants bear the initial burden of proving negligence or unseaworthiness while the Queeny interests bear the burden of proving lack of privity or knowledge. Farrell Lines, Inc. v. Jones, supra.
The parties do not dispute that the predominating cause of this disaster was Pilot Sorensen's failure to properly execute the starboard turn into the Marcus Hook channel due to his navigational error. In addition, it is clear that navigational error on the part of the crew generally occurs without the privity or knowledge of the shipowner, and is not attributable to an absent owner for purposes of limitation of liability. Tittle v. Aldacosta, 544 F.2d 752, rehearing denied 546 F.2d 906, 907, rehearing denied 582 F.2d 12 (5th Cir. 1977).
The claimants in this case however, have argued and presented voluminous testimony and exhibits to the effect that other acts and/or conditions of which the Queeny interests had ...