February 25, 1982

ZANZIBAR SHIPPING, S. A.

v.

RAILROAD LOCOMOTIVE ENGINE NUMBER 2199, Railroad Car Number 17860, Railroad Car Number 33641, Sixteen Unknown Railroad Cars and Missouri Pacific Railroad Company







The opinion of the court was delivered by: DEANDA

MEMORANDUM DECISION

The ship now called "ARCTIC STAR" has seen a colorful and varied career. Christened the "ROYAL SCOTSMAN" in 1936, she plied the rough seas between Belfast and Glasgow and survived. She risked German U-Boats when used as a troop ship in World War II and survived. She even had a name change (to "APOLLO") and saw use as a spy ship for the CIA and survived. After having successfully avoided these oft-encountered and expected nautical dangers, it is perhaps quite ironic that she did not survive the night of September 16, 1980, when while lying at berth in the Port of Brownsville, Texas, she was rammed and constructively sunk by a railroad train.

The ship's master is Captain Robert Manning, all of whose navigational charts seem to point towards the federal courthouse. See U. S. v. Firebird, Inc., No. B-79-116, (S.D.Texas, filed May 17, 1979); Baldwin v. Cisneros, No. B-79-249 (S.D.Tex., filed November 15, 1979); Brownsville Navigational District v. "ARCTIC STAR", No. B-82-5 (S.D.Tex., filed January 11, 1982); Zanzibar Shipping v. United States, No. H-82-288 (S.D.Tex., filed after January 11, 1982).

The Missouri Pacific Railroad Company has operated a railroad since at least 1885. See Missouri Pacific Railroad Company v. Humes, 115 U.S. 512, 6 S. Ct. 110, 29 L. Ed. 463 (1885). In that time its trains have collided with countless wagons, carriages, cars, trucks, and pedestrians. See, e.g., Missouri Pacific Railroad Company v. Lee, 70 Tex. 496, 7 S.W. 857 (Tex.1888) (wagon); Missouri Pacific Railroad Company v. Peay, 20 S.W. 57 (Tex.1892) (carriage); Gonzales v. Missouri Pacific Railroad Company, 511 F.2d 629 (5th Cir. 1975) (car); Missouri Pacific Railroad Company v. South Texas Candy Company, 65 S.W.2d 325 (Tex.Civ.App.-San Antonio, no writ, 1933) (truck); Missouri Pacific Railroad Company v. Weisen, 65 Tex. 443 (Tex.1886) (pedestrian). On September 16, 1980, however, it may have forged new ground in railroad history when one of its crews ran their train into the side of the "ARCTIC STAR." (Neither LEXIS nor the Court's manual research has uncovered any other case of a train striking a ship.) But cf. Chicago Burlington & Quincy Railroad Company v. W. C. Harms, 134 F. Supp. 636 (S.D.Tex., 1954) (train struck barge on railroad tracks, barge held liable!)

Not unwisely, the railroad has conceded liability. *fn1" The remaining issue is the amount of damages. Pursuant to Rule 52(a) Federal Rules of Civil Procedure, the Court enters this memoranda decision as its findings of fact and conclusions of law.

THE VALUE OF THE SHIP

The measure of damages in a collision case is an old one, restitutio in integrum. Plaintiff is entitled to that amount of damages which will put him in as good a position pecuniarily as if his property had not been destroyed. Standard Oil Company v. Southern Pacific Company, 268 U.S. 146, 155-156, 45 S. Ct. 465, 466-467, 69 L. Ed. 890 (1924); The Baltimore, 75 U.S. (8 Wall.) 377, 19 L. Ed. 463 (1869). Losses are classified in three ways-total, partial, and constructive total. If a loss is total, the measure of damages is the market value, if there is one, of the vessel lost. The Baltimore, supra. If a loss is partial, the measure of damages is the reasonable value of repairs plus demurrage occasioned by the time taken to complete the repairs. The Umbria, 166 U.S. 404, 421-422, 17 S. Ct. 610, 617, 41 L. Ed. 1053 (1896). If a loss is deemed a constructive total loss, damages are the ship's value at the time of collision, less salvage. Ibid. A loss is deemed total when the ship is lost. A loss is deemed constructive total when the cost of repairs exceeds the ship's value. Any other loss is partial.

The "ARCTIC STAR" was not lost. She lies now, as she lay then, docked at the Port of Brownsville. To determine whether she was a partial or constructive total loss, the Court must determine whether the cost of repairs exceeds the value of the ship. After reviewing all of the evidence, the Court concludes that the "ARCTIC STAR" is a constructive total loss.

The Court finds from a preponderance of the evidence that the collision caused great damage to the "ARCTIC STAR" and that that damage extended beyond the point of impact. While some disagreement exists as to the speed of the train, it is undisputed that the impact moved the ship away from the dock. (See testimony of Lauro Castillo and other eyewitnesses.) It is also undisputed that the train in question consisted of one locomotive and 18 loaded freight cars and weighed over 3,750,000 pounds. (See testimony of Calixto Sandoval and Plaintiff's Exhibits 338 and 159.)

Plaintiff's accident reconstruction expert, William B. Ogletree, testified that the impact would push out the stern of the ship and cause it to rotate, bringing the bow in. The bow would then collide with the dock. The ship would also roll because it was hit above the waterline. The combination of rolling and the second collision created tremendous torque stress which was placed on the ship and twisted or "racked" the hull.

Mr. Ogletree's theory is corroborated by extrinsic evidence. Shortly after the collision, the ship began to take on water. (See testimony of Scott Manning.) The nine-inch polypropylene stern lines securing the ship snapped from the impact. (See testimony of Captain Robert Manning.) The ship's bow fender rail was damaged, as was the dock beside the bow. Evidence of misalignment, indicating twistage, was found by Ogletree and by another surveyor, Mr. Nimai Bandhu Ghose. (See Ogletree testimony and Ghose deposition.) The Court finds that this is credible evidence which preponderates over evidence that the collision damage occurred only at the point of impact.

Repair of a twisted hull is extremely expensive. The "ARCTIC STAR" is a riveted-hull vessel, a type of construction no longer used in shipbuilding. To determine the exact extent of the damages would require the ship to be towed to a shipyard capable of doing this type of repair work and there drydocking and completely inspecting the ship. Estimates for this repair work were uniformly high. (See testimony of Manning, Dierlam, Fergus Fleming, and Robert Hesley.) The lowest estimate is $ 10,000,000.