The opinion of the court was delivered by: BEEKS
On August 26, 1976, at approximately 0415 hours
the O/S DEEP SEA sank in the vicinity of Whale Passage near the town of Kodiak, Alaska. All eight persons aboard were lost including her crew of three, John Nichols, master; Bernard Eldridge, engineer; Earl McKee, cook/deckhand; and five passengers, Valerie McCrea, Kathy McCrea, Molly McCrea, Heather McCrea, and Cy Michael Rodgers. The vessel owner, New England Fish Company (Nefco) has instituted this action for exoneration from or limitation of liability pursuant to 46 U.S.C. § 183, Et seq. asserting that the loss of the vessel was due to force majeure. The action on behalf of the survivors of the deceased passengers is based upon negligence and unseaworthiness, while that of the survivors of the crew is based solely upon unseaworthiness.
The DEEP SEA was a single screw fish tender of wood construction built in 1945. She was 80 feet in length (72.5 feet between perpendiculars), with a beam of 19.2 feet, a depth of 9.6 feet, and a draft of 8.0 feet. She was of 96 gross and 71 net tons and was propelled by a six cylinder Atlas Imperial engine rated at 250 h.p., giving her a cruising speed of 9.5 knots.
She had been operating out of Nefco's Uganik Cannery (located on the west side of Kodiak Island) since 1946 as a dry tender. Ordinarily she would leave the cannery every day to pick up fish from independent fishermen. In the evening she would return to the cannery and unload her cargo. The vessel operated without ice approximately 95% Of the time. During the regular fishing season of 1976 she was manned by a crew of four: master, mate, engineer and cook/deckhand.
During the hours of darkness on August 24/25 DEEP SEA returned to the cannery from Packer's Spit to refuel and take on additional ice. Fox observed the vessel at the fuel dock on the morning of August 25 where she had been moored during the previous night. At about 1300 that afternoon Fox talked with Nichols while DEEP SEA was icing and told him DEEP SEA was expected at the Kodiak cannery at 0800 the next morning. The vessel then departed Uganik for the last time between 1300 and 1330.
Upon departure she carried a crew of 3: John Nichols, master; Bernard Eldridge, engineer, and Earl McKee, cook/deckhand. The vessel arrived at Packer's Spit approximately one hour later and loaded fish from 1700 to approximately 2100. Prior to departing, DEEP SEA boarded the forenamed passengers who were family members of beach fishermen. The vessel then battened down and proceeded to Kodiak, a trip of approximately 7.5 hours. Fox called DEEP SEA at 2200, in accordance with his usual schedule, and Nichols informed him that they were battening down and he would call Fox at 2300 when he was less busy. However, the last word from DEEP SEA was a distress signal sent out at 0415, August 26, 1976, by an unidentified person: "Mayday, Mayday, vessel DEEP SEA, vicinity Whale Pass." The vessel and all aboard were lost.
The question of liability hinges on the cause of the loss. No one survived and only scattered wreckage was recovered. Thus, claimants' burden is great. They must piece together the loss of DEEP SEA without the aid of any direct physical evidence or eyewitness accounts. The law, however, provides claimants faced with such an onerous burden some relief. Where claimants establish negligence or unseaworthiness on the one hand and there is an unexplained loss of a vessel in expectable weather on the other, the court is permitted, although not required, to infer that the unseaworthiness or negligence was the proximate cause of the loss.
Claimants' burden is, therefore, reduced to establishing negligence or unseaworthiness which reasonably, though not necessarily, may have been the cause of the loss.
Claimants first contend that DEEP SEA was unseaworthy in that she was equipped with bin boards inadequate in both size and number which allowed the cargo to shift causing the vessel to capsize. Claimants have failed to establish this contention.
Next, it is asserted that the vessel was negligently manned. It is uncontroverted that the vessel was carrying only 3 instead of 4 crewmen and that the cook/deckhand was totally inexperienced. McKee joined the crew at the request of Nichols approved by Fox. The crew usually included a mate, although none was carried on the fatal voyage. An experienced mate was not available and none was employed by Fox after Nichols informed him that he thought a mate was unnecessary for the short trip to Kodiak. Events were to prove both Nichols and Fox tragically in error. I find that their negligence resulted in an undermanned and incompetent crew. In effect, DEEP SEA carried only two crewmen; McKee had no knowledge of seamanship; he was employed by Nefco as a machinist in the reform shop where tin plate cans are shaped before canning. The vessel was undermanned and was, thus, unseaworthy.
The vessel was also unseaworthy in that she was incompetently crewed. The long hours of continuous duty required of the crew under the conditions existing at the time in question must have affected their performance and judgment. This is especially true of the master, the only experienced navigator on the vessel. At the time DEEP SEA sank Nichols had been on duty for approximately 15 hours. The vessel left Uganik at about 1300 and arrived at Packer's Spit an hour later. She began loading fish at 1700 and departed for Kodiak between 2100 and 2200. All of these duties required the attention of the master. When DEEP SEA was anchored taking on fish Nichols had to supervise the operation and issue fish tickets to the fishermen. As the vessel prepared to depart for Kodiak, he had to make sure she was properly battened down. In fact, Nichols was so busy when Fox called at 2200, he said he would have to call back in an hour. At the time of this call the crew of DEEP SEA had already worked 9 hours and Kodiak was approximately 7.5 hours away from Packer's Spit. When the vessel was underway to Kodiak the master's presence in the wheelhouse was mandatory. He was the only one aboard competent to navigate the vessel, and if another crewman was at the wheel Nichols was certainly supervising him.
The voyage to Kodiak was to be made in inclement weather and through Whale Passage, which requires "careful attention to steering" even in the best of conditions, due to the various shoals and tricky currents.
I am satisfied that DEEP SEA exited the eastern entrance of Whale Passage at a time near full ebb tide which runs from west to east at approximately 6 knots. "Passage through Whale Passage at times of maximum current should be avoided . . . . During large tides, the currents are very strong with boils and swirls."
Mariners are to "exercise particular caution" at times of maximum current because "floating aids to navigation may be dragged under or off station during these periods."
DEEP SEA endeavored to make the passage during the height of a strong gale from the northeast with winds of 40 to 50 knots. With a strong ebb tide meeting gale force winds in an area subject to violent whirlpools and severe rips, confused seas of at least 15 to 20 feet from the eastern entrance of the Passage to 1/4 mile east of Ilkognak Rock could be expected. Nichols tried to negotiate this area after he had been working for 15 hours without relief. Kodiak was only about 2 hours cruising time from Whale Passage and DEEP SEA could have sought shelter within Whale Passage itself to let the tide and storm abate before proceeding.
In fact one fishing vessel was observed by the Coast Guard rescue helicopter pilot riding out the storm very comfortably 1 mile south of Occident Point on Whale Island within the Passage at approximately 0730.
Petitioner maintains that the weather was the sole cause of the sinking. I am convinced that the weather was very severe but not catastrophic in the sense that it could not be expected. Severe weather is common in the Kodiak area. According to Fox, a vessel which cannot withstand 40 to 50 knot winds would not be usable as a tender, and seas of at least 14 feet must be anticipated.
Furthermore, the weather forecasts broadcast for August 25 and August 26, 1976 were for gale warnings in the vicinity of Kodiak Island. DEEP SEA was not set upon by a williwaw. The weather conditions were foreseeable and Petitioner's contention must be rejected. Thus, ...