The opinion of the court was delivered by: BIUNNO
The 5-count complaint in this case centers on the fate of a tug boat, the Chippewa II, and the crew aboard it, including its captain, Otto Evers. The Chippewa II evidently was last heard from on January 5, 1976, at about 11 AM when Otto Evers radioed Brown Minneapolis Tank Co. (Brown) in Minneapolis to report that he was off Key West, Florida, and was headed directly across the Gulf of Mexico for New Orleans because the vessel was so far behind schedule, rather than proceeding along the coast as first planned. Evers said he was encountering seas up to 7 feet but that they were no worse than what had been encountered on the trip down the east coast to Florida and felt the tug could handle them with no problem. He gave an estimated time of arrival (ETA) of late January 8 or early January 9, 1976 for New Orleans, and said he would contact Brown every morning via marine operator to give progress reports. The straight line distance from the Keys to New Orleans is about 450 miles. From 11 AM January 5 to 11 AM January 9, 1976, is 4 days or 96 hours and would involve an average speed of about 4.69 miles per hour. The Chippewa II was capable of a top speed of about 12 knots in smooth water. It was travelling alone, without tow.
The Chippewa II was never heard from again, so far as the papers presented indicate. Brown tried to initiate contact with the tug every day from January 6 to January 9, 1976, after failure to receive progress reports, but without success. Brown officially notified the U.S. Coast Guard Rescue Coordination Center at New Orleans on January 9 at 4:35 PM (3:35 PM EST) when the tug failed to appear.
The Coast Guard immediately began broadcasting periodically to all naval and merchant vessels crossing the Gulf. A description of Chippewa II was given. All vessels were asked to keep a sharp lookout and to report any sightings. A land search was also initiated of all marinas and waterfront facilities from Key West to New Orleans, to check whether the tug had landed at some intermediate point.
A full air/sea search was initiated January 11, 1976 after a check of all land facilities revealed no sightings of the tug. The search involved units of the Coast Guard, Navy and Air Force, and continued through January 16, 1976, including night searches by radar. There were 40 aircraft sorties for a total of 218.9 search hours covering a total of nearly 228,000 square miles. No debris that could be identified as coming from the Chippewa II was sighted.
An ocean going tug, the Atlantic Star, had departed Port Everglades at 11:20 AM, January 5, 1976 bound for New Orleans with a light barge in tow. At departure there was a strong breeze with 5 to 6 foot seas from the east. At 4:25 PM January 6, the Atlantic Star was off Dry Tortugas in 3 to 4 foot seas and a wind of 15 knots. By 9 PM the seas were 5 to 6 feet in winds of 25 knots. At 10 AM January 7, the Atlantic Star was at position 26-15 N, 85-20 W, making 9.5 knots in calm winds and flat seas. At 3 AM January 8, it encountered a full Northwest gale with 12 to 15 foot seas about 80 miles southeast of Southwest Pass. The storm moderated at 5 AM January 9 and the tug and tow reached Southwest Pass Buoy at 8:25 AM January 9, 1976. During this trip, the vessel monitored channels 13 and 16 VHF/FM, and also 2182 KHZ but never heard any distress calls. The captain of the Atlantic Star personally knew Otto Evers and the Chippewa II but did not know he was in the area. Knowing the capabilities of the Chippewa II, he felt the Atlantic Star should have overtaken the Chippewa II before New Orleans if it had remained afloat and on course.
Inquiry made to Cuban authorities through the Swiss Embassy revealed that no trace of the Chippewa II or any of its crew members had shown up in Cuba or otherwise had come to their attention.
The Chippewa II was a welded steel, single screw, diesel propelled towing vessel built in Brooklyn in 1941 as one of a class of tugboats specifically designed for service on the Erie Barge Canal system in New York. It was of narrow breadth, with high center of gravity, features that made it "tender", i. e., subject to capsizing if the helm were thrown over suddenly at high speed. No record of stability tests was found. It was not subject to U.S. Coast Guard inspection and certification. It was not built to the design specifications of any recognized classification society. For these reasons, the only surveys of the vessel were for insurance purposes. Since it was under 150 gross tons, the vessel was not subject to load line requirements and was never assigned any type of load line.
He operated Chippewa II in New York Harbor and Long Island Sound, except for one trip to Providence, Rhode Island via Long Island and Block Island Sounds, and for one trip to Wilmington, Del. and Atlantic City, N.J. Except for these two trips, Evers had no ocean or coastwise experience. He also belonged to the Coast Guard Auxiliary for 7 years and had just been elected Commander of Flotilla 45, to take effect January 1, 1976. He had been very active and was reputed to be a good sailor.
Evers had been low bidder on a proposal to provide an ocean-going tug to tow two empty fuel oil barges from New Orleans, La. to the U.S. Naval Station at Guantanamo Bay, Cuba. The contract for this was entered into on December 8, 1975 with Brown. The original schedule called for arrival at New Orleans by December 20, 1975 to commence the tow, but the vessel did not leave New York until December 21, 1975.
In preparation for the job, a condition and value survey was conducted November 18, 1975 by Hull and Cargo Surveyors of New York. The surveyors were asked to survey for insurance purposes but not for suitability for a specific job. After the survey, an insurance underwriter asked for a recommendation as to suitability for ocean work, and the surveyor advised against insuring it for such work.
No hull or liability insurance could be obtained before sailing due to poor market conditions and the fact that the underwriters did not like the size of the Chippewa II for ocean work. One underwriter offered hull insurance, but only for New York harbor.
After the survey, the tug was drydocked at Rodermond Industries in New Jersey. The propeller was reconditioned, the rudder gland bushing was reset, a welding machine was installed on board, several doublers were welded to the hull and various cracks welded in the hull plating. The vessel was refloated on December 18, 1975, after which the owner installed a 900 lb. welding generator on top of the deckhouse, above the pilothouse.
Chippewa II left Raritan Center, Edison, N.J. at 7:30 AM on December 21, 1975. Six were on board, as follows:
After clearing New York harbor, the vessel immediately encountered heavy weather and was forced to pull into Atlantic City due to a blinding snow storm. The compass card was found to be sticking to a northeast heading, ...