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Esso Standard Oil S. A. v. S. S. Gasbras Sul

decided: November 29, 1967.


Friendly, Hays and Anderson, Circuit Judges.

Author: Anderson

ANDERSON, Circuit Judge:

The SS. Gasbras Sul, sailing under the flag of Norway and owned by A/S Sobral, a Norwegian corporation, arrived at San Jose, Guatemala during the evening of September 15, 1955. Originally built as a dry-cargo carrier, she had been converted to a propane carrier by the installation of tanks, both forward and aft, which projected twelve feet above the deck. The vessel was 325 feet long with a beam of 47 feet and a summer draft of 20 feet 8 inches.

She had been chartered by Tropical Gas Company, the consignee of a cargo of liquid propane which was to be delivered at the sea terminal of the plaintiff-appellee, Esso Standard Oil S.A., a Panamanian corporation, at San Jose. The sea terminal consisted of a group of storage tanks ashore, to which were connected four pipelines which ran out into the sea in a southerly direction at right angles to the shoreline, which ran east and west. The four pipelines had varying lengths and diameters: a twelve-inch line extended out 2175 feet; a ten-inch line, 2060 feet; and the two four-inch lines ran out 1900 feet. One of the four-inch lines was used to carry vapor propane and the other liquid propane. At the outer end of each pipeline there was attached a re-inforced rubber hose, 150 feet long, designed to be picked up by a ship and connected with the outlet from the ship's tanks.

There were marker buoys at the seaward ends of both the twelve-inch and ten-inch pipelines and one marking the end of the two four-inch pipelines. There were also marker buoys at the ends of the hoses attached to the pipelines. Between these marker buoys and the shore there were three large mooring buoys, so located that a tanker, with the marker buoys abeam at amidships, could make fast to the mooring buoys with her stern lines. These two four-inch pipelines and the tanks to which they were connected on the shore were leased by Esso to Tropical Gas Company.

Early in the morning of September 16, 1955 Moreno, Esso's terminal superintendent, and Arguello, manager for Tropical Gas, boarded the Gasbras Sul. Shortly thereafter the vessel moved to the discharging berth at the sea terminal. She was moored port side to the pipelines with her starboard and port anchors, each about 45 degrees off of the bow and each on ninety fathoms of chain. Stern lines ran to the three mooring buoys; three lines off the starboard quarter, two from the stern and two from the port quarter. All of the lines were new except one, partly used, which was still in good condition.

Mooring was completed at 0820 but further procedures were delayed for an hour because of heavy rain squalls. The taking up and securing of the hose from the four-inch liquid propane pipeline, the coupling of the connections with the outlets from the tanks, and other preliminary measures were accomplished by 1205, when discharging of the propane began. This continued until 2005 when the shore tanks were filled and the operation of disconnecting the hose began. This was fully accomplished by 2130 and the hose was let go. The Master of the vessel had intended to put out to sea at that time but because of the deterioration of the weather he decided it would be safer to remain where he was.

The evidence showed that at that time of year the prevailing weather at San Jose is characterized by southerly and south-southeasterly winds accompanied by heavy squalls and frequent rains. When the Gasbras Sul was moored at the sea terminal about noon of September 16th, the wind was east, Force 3-4, i.e. gentle to moderate, or 7 to 16 knots, the barometer stood at 750 millimeters and it was raining. The current was setting from west to east at a rate slightly over a knot, and there were swells from the south. Darkness fell between 1830 and 1900, somewhat intensified by clouds and rain. The Master described the weather as "up and down" all afternoon. The gentle-moderate wind had continued but the swells had gradually increased. Between 1800 and 1900 the weather became a little worse and by 2000 the wind had picked up to Force 5, i.e. 17-21 knots, and had commenced to veer toward the southeast. It was also showery. The swells continued to increase but the barometer had dropped only one millimeter to 749. By the time the discharging operation had been completed and the hose was let go at 2130, the combination of wind and current and the increased swells were causing the vessel to yaw badly. A torrential rain had reduced visibility almost to zero. Under these circumstances the Master would have chosen to slip his moorings, take up his anchors and stand out to sea. What prevented him from doing so was the presence of the seven marker buoys and their chains, which were unlighted; one might be seen occasionally but only by chance. Some were heavy in the water from barnacles and the weight of the chains, and they rode so low in the water and were so poorly painted that they were hard to see. They could not be picked-up by flashlight beams which reflected back in the heavy rain.

The Captain of the Gasbras Sul was faced with a very difficult decision. The vessel had liquid propane left in some of the tanks and was less than half a mile from a lea shore. If, on the one hand, he decided to leave the mooring, he faced the very grave risk of fouling the buoys in getting under weigh, with a good chance of broaching to, followed by the beaching of the vessel, and her destruction by explosion. On the other hand, if he remained at the mooring, there was the possibility that he might be struck by a "Chubasco," a local, heavy squall which from May to October occurs frequently at night; it blows at anywhere from 20 to 60 knots from the east, accompanied by heavy rain, and lasts about 45 minutes. The Master decided that in view of the fact that he was well moored, with anchors holding and with ample scope, it was less dangerous to remain where he was than it was to attempt to leave.

The Gasbras Sul continued at her mooring without difficulty and without incident during the remainder of September 16th. At 0100, September 17th, the wind was southeast and at 0200 its velocity went down to Force 4. The sea was at Force 5, i.e. waves of eight to twelve feet from trough to crest. During the last two or three hours of September 16 and the first two and a half hours of the 17th the evidence indicates that there was no significant change in the progression of rain squalls, with possibly brief lulls in between. The combination of heavy swells and seas and the extremely limited visibility made it still hazardous to attempt to leave the mooring. Between 0230 and 0300, however, the Chubasco struck. The wind veered to the south; it increased to Force 6 (22-27 knots) and continued to rise. The swells were large and the seas were turbulent. There was practically no visibility because the rain was so heavy. The barometer had started to drop at about 0230 and at 0300 stood at 744 millimeters. During this time the anchors began to drag. Captain Dahle immediately ordered the stern lines to be cut or let go through the chocks. When this had been done, he ordered the Chief Officer to take in the anchors. Some of the crew were stationed around the rail to try to locate buoys which occasionally showed up, sometimes on one side of the ship and sometimes on the other. The Captain had ordered the engines ahead at speeds called for by the changing circumstances, but stopped the propeller whenever there appeared to be imminent danger of fouling a buoy. Just after the starboard anchor had been broken out, and was "up and down," something*fn1 fouled the propeller and prevented it from turning. The Captain ordered the starboard anchor dropped under foot and both anchors let out. The vessel, which meanwhile had swung off before the wind and sea, headed up. The engineer by alternately backing and going ahead on the engine cleared the propeller. By this time the stern of the vessel was almost into shoal water and the surf. The Captain, during a lull in the down-pour saw just off the port quarter a red buoy which marked the line of breakers. With the propulsion restored the anchors were taken in and at 0400 the Gasbras Sul with all engines ahead at full speed put out to sea where she rode out the storm and did not return to the roadstead until 0850 after the storm had abated. It was afterward discovered that in dragging her anchor the vessel caused damage to Esso's submarine pipeline and, based upon findings by a special master, the trial court awarded Esso $62,733.17. We conclude that the appellant was not liable and therefore reverse the judgment.

Captain Dahle had moored the Gasbras Sul at Esso's sea terminal and discharged a cargo of propane on three occasions prior to September 15-17; they were April 9, June 16 and August 3 of the same year, 1955. On April 10th, the day following arrival on the first trip, Esso's mooring master, Captain Jensen, went on board shortly after the Gasbras Sul had moored at the terminal and was preparing to discharge the cargo. He and Captain Dahle discussed mooring and unmooring and Captain Jensen told Captain Dahle about local and seasonal weather conditions. On June 16th Captain Jensen boarded the vessel before it went to the sea terminal, and he remained on board during the mooring operation. He again discussed mooring and unmooring procedures with Captain Dahle. Captain Jensen was not aboard during the visit of August 3rd and was not at San Jose September 16th-17th. In his discussions with Captain Dahle about the weather, Jensen told him of the dry and rainy seasons, that the latter starts in May and ends in October; that during the rainy season there were often southeasterly storms that usually lasted two or three days; that there could also occur between 1800 of one day and 0600 of the next, during that season, local rain squalls, called "Chubascos," which have wind velocities from twenty to sixty miles per hour. Captain Jensen advised Captain Dahle that when there were very bad conditions of winds, seas or currents it would be best not to moor, but if the vessel was already moored and discharging, and conditions of sea or weather became so bad that it endangered the ship he should stop discharging, drop the hose, and leave the terminal. He also advised Captain Dahle to leave the terminal in any event once he had completed discharging.

The trial court concluded that the appellant had been negligent in the management and operation of the vessel on three separate occasions, that any and all of these acts of negligence proximately caused the damage to appellee's underwater pipeline and that the appellant was therefore liable. The negligence found consisted of the exercise of faulty judgment on the part of Captain Dahle in not discontinuing discharging operations and leaving the terminal for the open sea on September 16 at or about 1700, also between 1800 and 1900 and after discharging had been completed at 2130. The trial court found: "The chief reason given by Captain Dahle for not leaving the sea terminal at 9:30 P.M., when discharging and disconnecting was actually completed, was that darkness made departure too dangerous in the light of the then prevailing weather. Although it is true that the weather worsened from 5:00 P.M. to 9:30 P.M., nevertheless the danger attendant upon darkness would have been eliminated had discharging been stopped at about 5:00 P.M." While this is so in retrospect, Captain Dahle did not know at 1700 or at 1800, 1900 or 2000 what the weather and sea conditions would be at 2130. Nor can it be said that he reasonably ought to have known. The weather was apparently typically erratic. There were no local weather reports or forecasts. Moreno and Arguello, though they were not seamen, were nevertheless very familiar with local weather conditions and patterns and they told Captain Dahle that the weather was likely to continue as it was for several days or a week. The Captain testified that it had been up and down all day. It was what usually prevailed at that season, with southeasterly winds, heavy squalls and frequent rains. The barometer at noon was at 750 millimeters; at about 1900 it had remained unchanged. The wind, which at noon was Force 3-4, gentle to moderate, and from the east, veered somewhat toward the southeast and gradually increased so that at 2000 it was blowing at Force 5, which was a fresh breeze. At that time the barometer read 749 millimeters. The swells from the south had gradually increased. Surely none of these things threatened any danger to a vessel of the size of the Gasbras Sul, nor did they appear to be a prelude to a Chubasco. The rain squalls were a weather disturbance separate and distinct from the Chubasco. The former came from the sea, southeast to south, and lasted for several days; the latter came from the land, from a northeasterly to an easterly direction, and lasted about 45 minutes.

The appellee places a great deal of stress upon the trial court's finding that Captain Jensen had warned Captain Dahle not to remain at the sea terminal overnight if discharging of the cargo had not been completed before dark. Although Captain Jensen at one point said, in part, that he warned Captain Dahle "against staying in the sea mooring overnight in the rainy season," it becomes clear from the rest of his testimony as well as his own customary practice, that he did not mean that Dahle should never continue discharging cargo after dark, but that he shouldn't moor there overnight when there was no need for it, and that whenever Captain Dahle completed the discharge of his cargo after dark, he should leave the mooring. Captain Jensen nowhere suggests that he advised any master to attempt to leave the mooring under circumstances such as those faced by Captain Dahle at 2130 on September 16. As to conditions under which the discharging of cargo should be suspended and the vessel should leave the mooring Captain Jensen said "Captain Dahle was to use his own judgment as a seaman if the weather was at worse and it is hard for his ship to lay in the terminal, and if he felt in his judgment that the weather would cause possible strain or damage to his ship."

Moreover, the appellee, recognizing the hazards both to tankers and to the sea terminal inherent in the use of its installation, located as it was in an open roadstead where erratic weather patterns prevailed, provided the services of Captain Jensen, who was an experienced master of tankers and who had extensive knowledge of local conditions of current, sea and weather. He customarily approved and made a practice of continuing the discharging of cargoes through the night hours during the Chubasco season and had done so with a tanker the day before the Gasbras Sul used the terminal ...

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