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March 27, 1962

ALASKA NATIVE INDUSTRIES COOPERATIVE ASSOCIATION, Elim Native Store, Koyuk Native Store, Gambell Native Store, Stebbins Native Store, Savoonga Native Store, Libelants,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: BEEKS

This case has been instituted under the Suits in Admiralty Act and/or Public Vessels Act for the purpose of recovering damages to cargo delivered to and accepted by the vessel in good order and condition and out-turned in damaged condition, the damage thereto having been caused by water.

The only matter before me at this time is the question of liability.

 The vessel involved, the MV NORTH STAR, a 'CMAVI' type of vessel, was owned by the United States of America and operated by the Bureau of Indian Affairs, an agency of the Department of the Interior.

 On the voyage in question (voyage No. 70), the Government operated the NORTH STAR between Seattle and various ports in Alaska, ranging from Southeastern Alaska to the Bering Sea, principally for the purpose of supplying various Indian, Aleut and Eskimo villages.

 The NORTH STAR is one of a series of vessels that have been used by the Bureau of Indian Affairs to supply some 75-80 stations in Alaska ranging from Southeastern Alaska to Point Barrow in the Arctic Ocean, and the primary purpose of the vessel is to carry supplies and cargo to approximately 50-60 ports which, with several exceptions, are not served by regular commercial carriers.

 It is the general policy of the Bureau of Indian Affairs not to compete with commercial carriers with respect to cargo not owned by the Government.

 Cargo was accepted by the Government in the following priority: (1) Bureau of Indian Affairs, (2) Alaska natives, including the libelant, and (3) other Government agencies. Included in the third category are teachers, missionaries and a private trader who trades with the natives. Thus, if the cargo capacity of the NORTH STAR is exhausted by any category having priority, those categories of inferior priority would be denied space.

 A prospective shipper falling within the second priority classification writes a letter to the Bureau outlining the merchandise such shipper proposes to ship, together with particulars as to weight and cube, and if accepted the Bureau issues a permit to the shipper in which the shipper is advised of the conditions under which the merchandise will be accepted. One of the conditions of which the shipper is notified, and which is also incorporated in an agency regulation as well as a tariff issued by the Bureau, denominated Tariff No. 2, is an exculpatory provision providing, in substance, that the cargo will be accepted only on the condition that the Government will not be held responsible for any loss, damage or non-delivery. Shippers are further advised that the freight rates charged do not include marine insurance and that they can protect themselves against loss by obtaining their own insurance.

 The cargo of libelants was so accepted by the Bureau and on the voyage in question it was loaded on board the NORTH STAR in good order and condition and stowed in the No. 2 lower hold of the vessel.

 The loading of the vessel for Voyage 70 was planned by the chief mate who made up a stowage plan and loaded the cargo to the vessel in the inverse order of the scheduled ports of call. In other words, the first in would be the last out. After the loading was completed at Seattle, the vessel proceeded to Point Wells for bunkers and after bunkering in all available fuel oil tanks the vessel at the time of departure from Point Wells on April 22, 1958, had a draft of 22 feet 11 inches forward and 20 feet aft. She was down two feet 11 inches by the head. At the time of departure from Point Wells, the vessel had a deckload consisting principally of lumber which was approximately 12 feet in heighth, the heighth being one to two feet higher than usual.

 While at Point Wells the Vessel loaded two self-propelled landing craft type vessels, called M-Boats. They were lifted by use of the jumbo boom trimmed at a 45 degree angle and they were stowed on top of the deckload at No. 2 hatch. The M-boats are used as lighters for the purpose of discharging cargo at various ports of call. During the loading of the M-boats the master noted the NORTH STAR to be tender in that the vessel listed eight degrees at the time the first M-boat was lifted and 12 degrees at the time the second M-boat was lifted. Thereafter the vessel discharged cargo at Hydaburg, Tatitlek, Chenega, Seward, Port Graham, Tyonek, Anchorage Bay, Castle Bay and Chignik. While loading one of the M-boats at Chignik in a flat sea, the master noted that the NORTH STAR listed 14 degrees and thereafter righted herself. The draft of the vessel at Chignik was 19 feet 11 inches forward and 18 feet 11 inches aft. The consumption of fuel oil and water during the period following the departure of the vessel from Point Wells until arrival at Chignik, coupled with the discharge of cargo at the various ports named, had the effect of decreasing her draft and changing her metacentric heighth, with the result that during the course of the voyage she became increasingly more tender and unstable.

 After leaving Chignik for Perryville, the vessel encountered what the master described as a large southeast swell, causing the vessel to take extremely heavy rolls. She was a long time righting herself and the master becoming concerned over the possible loss of the M-boats and the deckload returned and anchored in Castle Bay until the swell subsided. The log book for this period is somewhat at variance with the master's testimony as to the sea in that it indicates a 'choppy WNW sea' and a wind from the same direction of Force 6. The vessel thereafter proceeded to Perryville and Akutan for the further discharge of cargo.

 By the time the discharge of cargo was completed at Akutan, the master determined that there was sufficient space in the No. 2 tween deck to enable him to restow some of the deck cargo under deck and thereby increase the stability of the vessel, and he proceeded to Dutch Harbor and made fast portside to the Ballyhoo Dock at 1620, May 10th. The M-boats were discharged and the crew proceeded to shift lumber from the deckload into No. 2 hatch. It was raining hard and blowing heavily during all of the time the cargo was being transferred and by 2030 the crew was unable to work because of gale winds. The transfer of the deckload was resumed at 0800 May 11th, and completed by 1830, at which time the vessel had a draft of 19 feet 8 inches forward and 19 feet aft.

 There is no evidence indicating that the transfer of the cargo had to be made under the conditions of weather existing at the time. A hatch tent was not used over No. 2 hatch at the time of the transfer, although a hatch tent could probably not have been used under the conditions of weather at the time the transfer of the cargo was actually ...

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