2418144-1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

)

In re Petition of FRESCATI SHIPPING ) CIVIL ACTION No. 05-cv-305 (JHS)

COMPANY, LTD., as Owner of the M/T )

ATHOS I, and TSAKOS SHIPPING & )

TRADING, S.A., as Manager of the M/T )

ATHOS I, for Exoneration from or )

Limitation of Liability ) CONSOLIDATED

____________________________________)

UNITED STATES OF AMERICA, ) CIVIL ACTION No. 08-cv-2898 (JHS)

Plaintiff, )

v. )

)

CITGO ASPHALT REFINING )

COMPANY, et al. )

Defendants. )

____________________________________)

DEFENDANTS’ PRE-TRIAL BRIEF ON LIABILITY

CHAFFE McCALL, L.L.P. PALMER BIEZUP & HENDERSON LLP

Derek A. Walker Richard Q. Whelan (ID No. 35688)

Douglas L. Grundmeyer Frank P. DeGiulio (ID No. 41577)

Chaffe McCall, L.L.P. Palmer Biezup & Henderson, LLP

1100 Poydras Street 190 N. Independence Mall West

2300 Energy Centre Suite 401

New Orleans, LA 70163 Philadelphia, PA 19106-3409

(504) 585-7000 (215) 625-9900

STRONG PIPKIN BISSELL & LEDYARD, L.L.P.

John G. Bissell

Strong Pipkin Bissell & Ledyard, L.L.P.

4900 Woodway Drive, Suite 1200

Houston, TX 77056

(713) 210-4366

Attorneys for Claimant,

CITGO Asphalt Refining Company,

CITGO Petroleum Corporation, and

CITGO East Coast Oil Corporation
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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... vi

BACKGROUND ............................................................................................................................ 1

LAW ............................................................................................................................................... 6

I. Plaintiffs Have No Valid Claim Against CARCO In Contract..................................... 6

A. The safe-port obligation is limited to a maximum of 37 feet............................. 7

1. CARCO did not owe an added margin of clearance

beyond 37 feet above the anchor............................................................... 7

2. CARCO did not warrant the safety of the port at all

times of the tide, and plaintiffs bore the risk of

selecting the tidal stage ........................................................................... 10

B. CARCO did not breach the safe-port obligation ............................................. 14

1. The depth and “flukes-down” orientation of the anchor prove

that CARCO afforded at least 37 feet of clearance and that

the ATHOS I was drawing more than 37 feet at the time

of the incident.......................................................................................... 14

2. The evidence flatly refutes plaintiffs’ “flukes-up” theory................... 16

3. The ATHOS I’s own condition demonstrated that its draft

exceeded 37 feet when it struck the anchor .......................................... 18

4. The Court must consider all the characteristics of the vessel

and the circumstances of its navigation in determining its draft ....... 22

C. The vessel’s negligent navigation and unseaworthiness nullify

the safe-port warranty........................................................................................ 25

1. It was possible for the ATHOS I to avoid the danger

through safe navigation and seamanship in view of the

stage of the tide........................................................................................ 25

2. Plaintiffs own poor navigation and seamanship

proximately caused the allision.............................................................. 31
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a. Plaintiffs negligently failed to prepare a proper

voyage plan .................................................................................. 33

b. Plaintiffs negligently failed to accurately calculate

and predict the vessel’s underkeel clearance............................ 36

c. Plaintiffs failed to consider anticipated controlling depths..... 38

d. Plaintiffs failed to properly consider tidal conditions

and wait for a safety margin at higher water ........................... 40

e. Plaintiffs failed to consider the vessel’s squat .......................... 44

f. Plaintiffs failed to consider Tsakos’s own minimum

underkeel requirements.............................................................. 46

g. Plaintiffs negligently failed to conduct a proper

master-pilot exchange................................................................. 47

(i) No master-pilot exchange with the River Pilot............. 48

(ii) No master-pilot exchange with Docking Pilot .............. 50

h. The allision was a direct, proximate, and inevitable

consequence of plaintiffs’ poor navigation, bad

seamanship, and flagrant regulatory violations....................... 58

3. Plaintiffs breached their non-delegable duty to maintain a

seaworthy vessel in good repair and with a competent crew.............. 58

a. Plaintiffs failed to maintain the ballast systems of

the ATHOS I in good repair, which rendered the

vessel unseaworthy...................................................................... 60

b. Plaintiffs failed to maintain proper ballasting records and

violated their own safety requirements..................................... 63

c. Plaintiffs failed to maintain a proper safety management

system in violation of SOLAS, ISM and U.S. regulations....... 65

d. Plaintiffs failed to man the ATHOS I with a well-trained

and competent crew and monitor their performance, which

rendered the vessel unseaworthy............................................... 67
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4. The hidden nature of the hazard does not excuse negligent

navigation and bad seamanship............................................................. 69

5. The ATHOS I’s officers and pilots alone were responsible

for its safe navigation.............................................................................. 71

a. Plaintiffs alone decided when to enter the port and

approach the berth and chose the wrong time ......................... 71

D. As third-party beneficiaries, plaintiffs themselves owe

warranties to CARCO under the Voyage Charter to furnish

a seaworthy vessel, to comply with applicable U.S. Coast Guard

regulations, and to limit the vessel’s draft........................................................ 72

E. CARCO is not liable in warranty for the sole or superseding

fault of others....................................................................................................... 74

F. The Pennsylvania Rule shifts the burden to plaintiffs to prove

by clear and convincing evidence that their violations of

applicable navigational and operating regulations could not

have caused the allision ...................................................................................... 76

G. Tsakos destroyed, lost, or altered critical vessel records,

giving rise to adverse evidentiary inferences against plaintiffs...................... 82

H. The comparative fault of the vessel can reduce its recovery

under the alleged warranty or in negligence .................................................... 82

I. The gross fault of the unknown Government dredging

contractor, who abandoned the anchor, proximately caused

the allision............................................................................................................ 86

II. CARCO’s Equitable Defenses to Liability Defeat the

Government’s Subrogation Claim................................................................................. 89

A. The doctrine of recoupment in equity............................................................... 90

B. The Government assumed responsibility and control for

maintaining the Anchorage................................................................................ 94

C. Terminal operators such as CARCO have not undertaken

maintenance of Federal anchorages.................................................................. 97

D. Equitable estoppel bars the Government’s claim against
iv

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CARCO for hazards in the Government’s anchorage .................................. 100

E. The Government would be unjustly enriched by recovery

of cleanup expenses caused by a hazard in the Government’s

anchorage........................................................................................................... 102

1. The Oil Spill Liability Trust Fund and the National

Pollution Funds Center......................................................................... 102

2. Liability of third parties under OPA .................................................. 104

3. Rather than admit the involvement of the Government and its

dredging contractors, the Government collaborated with

Frescati/Tsakos to blame CARCO for the oil spill ............................ 105

F. Responsibility for a loss equitably falls on the party

who was best situated to have avoided the loss.............................................. 107

III. Frescati and Tsakos Have No Valid Wharfinger Negligence Claim ........................ 109

A. CARCO’s tort duty as a wharfinger is one of reasonable care .................... 109

1. At the time of the ATHOS incident in 2004, no jurisprudence

imposed an existing duty on CARCO to survey Federal

Anchorage No. 9.................................................................................... 111

2. CARCO reasonably relied on the Government’s exclusive

dominion, responsibility, and control over Federal

Anchorage No. 9.................................................................................... 113

3. No statute or regulation required CARCO to look for

obstructions in federal waters.............................................................. 114

4. No custom put CARCO on notice to survey the Anchorage............. 115

5. A prudent wharfinger should not bear the unreasonable burden

to locate and remove an obstruction that nobody knew existed....... 118

B. CARCO did not proximately cause the oil spill ............................................. 121

1. CARCO had no reason to know of the anchor or to assume

that the oil spill was probable .............................................................. 123

2. CARCO could not have reasonably anticipated that a

single hulled tanker would navigate so recklessly at low tide........... 126
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3. The negligence and fault of the plaintiffs and those in

charge of the vessel’s navigation were the sole proximate

cause of the incident.............................................................................. 129

CONCLUSION........................................................................................................................... 129

CERTIFICATE OF SERVICE ................................................................................................... 131
vi

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TABLE OF AUTHORITIES

Cases

Abruska v. Northland Vessel Leasing Co., LLC, 258 F. App’x 158 (9th Cir. 2007).................... 80

Acciai Speciali Terni USA, Inc. v. M/V Berane, 181 F. Supp. 2d 458 (D. Md. 2002).................. 73

Aktienselskabet Eriksen & Andersen’s Rederi v. Foy, Morgan & Co.,

25 Ll.L.Rep. 442 (1946) ............................................................................................................... 26

Allen v. Chance Mfg. Co., 873 F.2d 465 (1st Cir. 1989) .............................................................. 75

Allied Chemical Corp. v. Hess Tankship Co. of Delaware,

661 F.2d 1044 (5th Cir. Unit A 1981) .......................................................................................... 84

Archawski v. Hanioti, 350 U.S. 532 (1956).......................................................................... 91, 102

Atlantic Banana Company v. M/V Calanca, 342 F. Supp. 447,

972 A.M.C. 880, 886 (S.D.N.Y. 1972), aff’d, 489 F.2d 752 (2d Cir. 1974) ................................ 59

Avondale Indus., Inc. v. Int’l Marine Carriers, Inc., 15 F.3d 489,

1994 A.M.C. 1555 (5th Cir. 1994)................................................................................................ 54

Bangor & Aroostook R.R. Co. v. The Ship Fernview,

455 F. Supp. 1043, 1978 A.M.C. 2439 (D. Me. 1978) ............................................................... 110

Bd. of Comm’rs of the Port of New Orleans v. M/V Space King,

No. 75-1661, 1978 A.M.C. 856 (E.D. La. 1978).......................................................................... 85

Belden v. Chase, 150 U.S. 674, 14 S. Ct. 264, 37 L. Ed. 1218 (1893)......................................... 77

Boyer v. The Merry Queen, 202 F.2d 575, 1953 A.M.C. 482 (3d Cir. 1953)............................... 78

Bull v. United States, 295 U.S. 247, 55 S. Ct. 695, 79 L. Ed. 1421 (1935).................................. 92

California ex rel. Dep’t of Transp. v. S/T Norfolk, 435 F. Supp. 1039,

1978 A.M.C. 144 (N.D. Cal. 1977) ...................................................................................... 10, 110

California ex rel. Dep’t. of Transp. v. S/T Norfolk, 435 F. Supp. 1039 (N.D. Cal. 1977)............ 54

Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 2001 A.M.C. 1815 (5th Cir. 2000)...... 109

Carlton S.S. Co. Ltd. v. Castle Mail Packets Co., Ltd., [1898] A.C. 486 (Macnaghten, J.)......... 10
vii

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Charente S.S. Co. v. United States, 12 F.2d 412, 1926 A.M.C. 1115 (5th Cir. 1926).................. 32

Citgo Asphalt Refining Co. v. Frescati Shipping Co., Ltd.,

2014 WL 216155 (Jan. 17, 2014) ................................................................................................. 32

Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir. 1983),

overruled on other grounds by Lauro Lines v. Chasser, 490 U.S. 495 (1989)............................. 73

Commonwealth of Puerto Rico v. S.S. ZOE COLOCOTRONI,

456 F. Supp. 1327, 1979 A.M.C. 21 (D.P.R. 1978), aff’d on liability,

rev’d on other grounds, 628 F.2d 652 (1st Cir. 1980).................................................................. 77

Compania Anonima Venezolana De Navegacion v. A.J. Perez Export Co.,

303 F.2d 692 (5th Cir. 1962) ........................................................................................................ 92

Complaint of Nautilus Motor Tanker Co., Ltd., 862 F. Supp. 1260

(D.N.J. 1994), aff’d, 85 F.3d 105 (3d Cir. 1996).......................................................................... 53

Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65,

1988 A.M.C. 2352 (5th Cir. 1987), cert. denied, 486 U.S. 1055 (1988).................................... 123

Constantine & Pickering S.S. Co. v. West India S.S. Co., 199 F. 964 (S.D.N.Y. 1912) .............. 83

Cont’l Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426 (1st Cir. 1992)..... 76, 77

Cook Inlet Pipe Line Co. v. American Trading and Production Corp.,

1977 A.M.C. 160 (S.D.N.Y. 1976)............................................................................................... 57

Cornish v. Renaissance Hotel Operating Co., No. 06-1722,

2007 WL 4614776, at *8 (M.D. Fla. Dec. 31, 2007)...................................................................... 6

Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226 (3d Cir. 1994) ................................... 100

Dalehite v. United States, 346 U.S. 15 (1953)............................................................................ 123

Delta Transload, Inc. v. M/V NAVIOS COMMANDER, 818 F.2d 445,

1988 A.M.C. 1155 (5th Cir. 1987)................................................................................................ 53

Dougherty v. Santa Fe Marine, Inc., 698 F.2d 2325 (5th Cir. 1983) ........................................... 80

E.I. Dupont de Nemours and Co. v. Rhone Poulenc Fiber and

Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir. 2001) ............................................................ 73

Evans v. Nantucket City. Sailing, Inc., 582 F. Supp. 2d 121,

2009 A.M.C. 360 (D. Mass. 2008) ............................................................................................. 109
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Evans v. United Arab Shipping Co. S.A.G., 4 F.3d 207,

1993 A.M.C. 2705 (3d Cir. 1993)..................................................................................... 53, 54, 75

Evergreen Int’l, S.A. v. Marinex Constr. Co., Inc., 477 F. Supp. 2d 681 (D.S.C. 2007).............. 88

Exchange Fire Insurance Co. v. Delaware & Hudson Canal Company,

10 Bosw. 180 (N.Y. Super. Ct. 1863)................................................................................... 98, 125

Exxon Co. U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S. Ct. 1813,

135 L. Ed. 2d 113, 1996 A.M.C. 1817 (1996)...................................................................... 75, 122

Frederick v. United States, 386 F.2d 481 (5th Cir. 1967) ............................................................ 91

Galentine v. Estate of Stekervetz, 273 F. Supp. 2d 538 (D. Del. 2003)...................................... 122

Gatlin Oil Co., Inc. v. United States, 169 F.3d 207 (4th Cir. 1999) ..................................... 88, 104

Goodman v. Fireman’s Fund Ins. Co., 600 F.2d 1040, 1979 A.M.C. 2534 (4th Cir. 1979) ...... 116

Guinan v. Boston, Cape Cod & New York Canal Co., 1 F.2d 239 (2d Cir. 1924) ............... 98, 125

Guinan v. Boston, Cape Cod & New York Canal Co., 1 F.2d 239,

1924 A.M.C. 1161 (2d Cir. 1924)....................................................................................... 124, 125

H. Schuldt v. Standard Fruit & S.S. Co., 1979 A.M.C. 2470 (S.D.N.Y. 1978)...................... 25, 31

Hams v. Luckenbach Terminals, Inc., 38 F. Supp. 485,

1941 A.M.C. 1412, 1415-16 (D.N.J. 1941) ................................................................................ 123

Hercules Carriers, Inc. v. Claimant State of Fla., Dep’t of Transp.,

768 F.2d 1558 (11th Cir. 1985) ........................................................................................ 32, 58, 59

Hiernaux v. M/V QUEEN CITY, 244 F. Supp. 511 (W.D. Pa. 1965) ........................................... 77

Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique,

182 U.S. 406, 21 S. Ct. 831, 45 L. Ed. 1155 (1901)..................................................................... 53

Horn v. Cia de Navegacion Fruco, 404 F.2d 422 (5th Cir. 1968)................................................ 74

Horsley v. Price, [1883] 11 Q.B.D. 244 ....................................................................................... 11

In re Arb. Between Atlantic Bulker Shipping Corp. and Babun

Bulk Shipping Corp., 2006 WL 6171996, at *9-10,

S.M.A. Award No. 3938 (Sept. 8, 2006) ........................................................................................ 6
ix

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In re Arb. Between Jebsen Carriers, Ltd. and Gravetal Bolivia, S.A,

1999 WL 34976590, S.M.A. No. 3525 (April 28, 1999)

(Cina, Mordhorst & Jacobson, Arbs.)........................................................................................... 10

In re Arb. Between Delphina Tanker Corp. and Axel Johnson Energy

Corp. (M/T Delphina), 1999 WL 34976573, S.M.A. Award No. 3508

(Feb. 5, 1999) (Nelson, Elias & Mordhorst, Arbs.) .......................................................... 29, 56, 70

In re Arb. Between Fondren Corporation and Lagoven, S.A., 2001 WL 35459259,

S.M.A. Award No. 3711 (Nov. 28, 2001) (Brown, Berg & Scheinbaum, Arbs.)......................... 29

In re Arb. Between Hansen Neuerburg Export-Import GMBH

(M/V Regal Sword) and I.S. Joseph Shipping Co., Ltd., 1982 WL 917235,

S.M.A. No. 1682 (May 28, 1982) (Berg, Simms & James, Arbs.)............................................... 25

In re Arb. Between Navegacion Andina, S.A. and Molinera E. Industrial

de Azapa, S.A., 1986 WL 1179605, S.M.A. Award No. 2303

(Sept. 12, 1986) (Coutsodontis, Georges & Boulalas, Arbs.)....................................................... 74

In re Arb. Between Pac. Logistics (M/T Halekulani) and Mobil

Tankers Ltd., 1981 WL 640686, S.M.A. No. 1633 (Dec. 17, 1981)

(Kalaidjian, Brown & Bauer, Arbs.)............................................................................................. 57

In re Arb. Between Petroleum Transport, Inc. and Texaco Panama, Inc.,

1974 WL 335622, S.M.A. No. 896 (Oct. 31, 1974) ..................................................................... 57

In re Arb. Between PHS Van Ommeren NV and Jno. McCall

Coal Export Corp., 1989 WL 1646306, S.M.A. No. 2571 (May 26, 1989)

(Berg, Nelson & Mordhorst, Arbs.).............................................................................................. 56

In re Arb. Between Slebent Shipping Co., Ltd. and Associated Transport

Line, LLC, 2003 WL 25794986 (Nov. 19, 2003) (Arnold, Fox & Ring Jr., Arbs.)...................... 76

In re Arb. Between Sunrise Shipping Company S.A. (S.T. Michael C. Lemos

and Amerada Hess Shipping Corp., 1983 WL 825073, S.M.A. Award No. 1906

(Nov. 7, 1983) (Zubrod, Berg & Nelson, Arbs.)........................................................................... 56

In re Arb. Between Trade Sol Shipping Ltd. and Sea-Land Industries

Bermuda Ltd., 2001 WL 36175165, at *9, S.M.A. Award No. 3677

(March 15, 2001) (Arnold, Berg & Szostak, Arbs.) ................................................................. 7, 69

In re Arb. Between Transportes del Este Navegaceon, S.A.,

1990 A.M.C. 1058, 1066 (Feb. 13, 1990) (Berg, Healy & Loesberg, Arb.)................................. 54
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In re Arb. Regarding the M/T Anett II Between K/S Anett Kristin and

Petrojam Ltd., 1998 WL 35281267 at *8-9, S.M.A. Award No. 3433

(March 13, 1998) (Engelbrecht, Berg & Vismans, Arbs.)............................................................ 30

In re City of Philadelphia Litig., 158 F.3d 711 (3d Cir. 1998)..................................................... 71

In re Complaint of BFT No. Two Corp., 433 F. Supp. 854 (E.D. Pa. 1977) ................................ 84

In re Complaint of Lenzi, No. 89-4571, 1991 WL 42463, 1991 A.M.C. 1531

(E.D. Pa. Mar. 22, 1991), aff’d, 958 F.2d 363 (3d Cir. 1992) (Table).......................................... 32

In re Complaint of Nautilus Motor Tanker Co. Ltd., 862 F. Supp. 1260 (D.N.J. 1994)....... 78, 109

In re Complaint of Ta Chi Navigation (Panama) Corp., S.A.,

574 F. Supp. 418, 1984 A.M.C. 985 (S.D.N.Y. 1983) ................................................................. 60

In re Complaint of Waterstand Marine, Ltd., No. 87-1516,

1988 WL 78776, 1991 A.M.C. 1784 (E.D. Pa. 1988) .................................................................. 59

In re Complaint of Waterstand Marine, Ltd., No. 87-1516,

1988 WL 78776, 1991 A.M.C. 1784 (E.D. Pa. July 26, 1988)............................................... 58, 59

In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201,

2012 A.M.C. 2048 (5th Cir. 2010).................................................................................................. 1

In re J.A.R. Barge Lines, L.P., No. 03-163, 03-180, 04-753,

04-1611, 2007 WL 6743486 (W.D. Pa. Feb. 28, 2007)................................................................ 76

In re J.E. Brenneman Co., 322 F.2d 846, 1964 A.M.C. 2037 (3d Cir. 1963) ............................ 115

In re Lloyd's Leasing, Ltd., 764 F. Supp. 1114 (S.D. Tex. 1990)..................... 10, 23, 30, 123, 124

In re Marbulk Shipping, Inc. (M/V Bahama Spirit), 2004 WL 5658898,

S.M.A. Award No. 3849 (June 4, 2004) (Berg, Wiswell & Martowski, Arbs.) ....................... 6, 29

In re Marbulk Shipping, Inc. (M/V Bahama Spirit), 2004 WL 5658898,

S.M.A. Award No. 3849 (June 4, 2004) (Berg, Wiswell & Martowski, Arbs.) .......................... 56

In re McDonald, 205 F.3d 606 (3d Cir. 2000), cert. denied, 531 U.S. 822 (2000) ................ 71, 78

In re Nautilus Motor Tanker Co., Ltd., 85 F.3d 105,

1996 A.M.C. 2308 (3d Cir. 1996)............................................................................. 76, 77, 78, 110

In re P & E Boat Rentals, Inc., 872 F.2d 642, 1989 A.M.C. 2447 (5th Cir. 1989).............. 10, 111
xi

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In re Petition of Frescati Shipping Co., Ltd., 718 F.3d 184 (3d Cir. 2012),

cert. denied, 134 S. Ct. 1279 (2014)...................................................................................... passim

In re Quality Marine Servs., Inc., 2005 WL 1155854,

2005 A.M.C. 1438 (E.D. La. May 9, 2005).................................................................................. 77

In re Transportes del Este Navegaceon, S.A. (M/V Cepheus),

1990 A.M.C. 1058, 1063-66 (Feb. 13, 1990) (Berg, Healy & Loesberg, Arbs.).......................... 30

In re Waterstand Marine, Ltd., No. 87-15161988 WL 78776,

1991 A.M.C. 1784 (E.D. Pa. 1988) .............................................................................................. 78

Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co.,

376 U.S. 31584 S. Ct. 748, 11 L. Ed. 2d 732, 1964 A.M.C. 1075 (1964).................................. 108

Japan Line, Ltd. v. United States, 1976 A.M.C. 355 (E.D. Pa. 1975), aff’d,

1977 A.M.C. 265 (3d Cir. 1976)................................................................................... 94, 111, 113

Johnson v. Goldstein, 864 F. Supp. 490 (E.D. Pa. 1994), aff’d,

66 F.3d 311 (3d Cir. 1995)........................................................................................................... 81

Jones v. Texaco Panama, Inc., 428 F. Supp. 1333 (E.D. La. 1977) ............................................. 84

Kure Shipping S.A. v. La. Pac. Corp., No. 99-16835, 2000 WL 1154971

(9th Cir. Aug. 15, 2000).............................................................................................................. 104

Leeds Shipping v. Societe Francaise Bunge (The Eastern City), [1958]

2 Lloyd’s Rep. 127 ............................................................................................................ 26, 27, 31

Livera v. First Nat’l State Bank of New Jersey, 879 F.2d 1186 (3d Cir. 1988),

cert. denied, 493 U.S. 937 (1989)................................................................................................. 91

Lowe v. Gen. Motors Corp., 624 F.2d 1373 (5th Cir. 1980)......................................................... 80

Luckenbach S.S. Co. v. The THEKLA, 266 U.S. 328, 95 S. Ct. 112, 69 L. Ed. 313 (1924) ......... 90

LWT, Inc. v. Childers, 19 F.3d 539 (10th Cir. 1994).................................................................... 81

Manchester Equip. Co. v. Am. Way Moving & Storage Co., Inc.,

176 F. Supp. 2d 239 (D. Del. 2001), aff’d, 47 F. App'x 189 (3d Cir. 2002)............................... 108

Maritrans, Inc. v. United States, 342 F.3d 1344, 2003 A.M.C. 2274 (Fed. Cir. 2003)................ 78

Martin Marine Transp. Co., Inc. v. Jakobson & Peterson Inc.,

135 F.2d 325, 1943 A.M.C. 498 (2d Cir. 1943) ......................................................................... 116
xii

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McCaldin v. Parke, 37 N.E. 622, 142 N.Y. 564 (N.Y. 1894)............................................... 70, 124

Mobil Shipping & Transp. Co v. Wonsild Liquid Carriers, Ltd.,

190 F.3d 64, 1999 A.M.C. 2705 (2d Cir. 1999) ..................................................................... 59, 60

MP Leasing Corp. v. Colonna’s Shipyard, No. 07-273,

2009 WL 2581575 (E.D. Va. May 8, 2009) ................................................................................... 6

N. Am. Dredging Co. v. Pac. Mail S.S. Co., 185 F. 698 (9th Cir. 1911) ...................................... 88

Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004)................... 13

Ocean S.S. Co. v. United States, 38 F.2d 782 (2d Cir. 1930) (Hand, J.) ...................................... 70

Osprey Ship Mgmt. Inc. v. Foster, No. 08-61125, 387 F. App’x 425 (5th Cir. 2010).................. 53

Osprey Ship Mgmt., Inc. v. Foster, No. 1:05cv390, 2008 WL 4371376

(S.D. Miss. Sept. 18, 2008), aff’d, 387 F. App’x 425 (5th Cir. 2010).................................... 36, 54

Otal Investments Ltd. v. M.V. Clary, 494 F.3d 40 (2d Cir. 2007)................................................. 84

Paragon Oil Co. v. Republic Tankers, S.A., 310 F.2d 169,

1963 A.M.C. 158 (2d Cir. 1962)................................................................................................... 83

Parker v. Winlow, [1857] 7 E. & B. 942, 119 E.R. 1497 (Coleridge, J.) ..................................... 10

Pearce v. United States, 261 F.3d 643 (6th Cir. 2001)............................................................... 111

Pelican Marine Carriers, Inc. v. City of Tampa, 1991 WL 325793,

1992 A.M.C. 575 (M.D. Fla. July 30, 1991)................................................................................. 88

Probo II London v. Isla Santay MV, 92 F.3d 361, 1997 A.M.C. 657 (5th Cir. 1996).................. 53

Protectus Alpha Navigation Co., Ltd. v. North Pacific Grain Growers, Inc., 7

67 F.2d 1379 (9th Cir. 1985) ....................................................................................................... 83

Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 9854 (4th Cir. 1990),

cert. denied, 498 U.S. 982 (1990)............................................................................................... 102

Realty Growth Investors v. Council of Unit Owners, 453 A.2d 450 (Del. 1982)....................... 108

Republic of France v. United States, 290 F.2d 395, 1961 A.M.C. 1082

(5th Cir. 1961), partially overruled on other grounds by

Rayonier, Inc. v. United States, 352 U.S. 315 (1957)................................................................. 123

Rothensies v. Elec. Storage Battery Co., 329 U.S. 296 (1946...................................................... 91
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Sikora v. AFD Industries, Inc., 18 F. Supp. 2d 841 (N.D. Ill. 1998)............................................ 92

Smith v. Burnett, 173 U.S. 430 (1899)................................................................................ 109, 112

Smith v. Condry, 42 U.S. 28, 11 L. Ed. 35 (1843)........................................................................ 54

Stevens v. F/V Bonnie Doon, 655 F.2d 206 (9th Cir. 1981) ......................................................... 84

Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684 (1950) ............. 91

The Calliope [1891] A.C. 11 (H.L.) 23............................................................................... 110, 113

The China, 74 U.S. 53, 19 L. Ed. 67, 7 Wall. 53, 2002 A.M.C. 1504 (1868) .............................. 53

The Moorcock (1889), L.R. 14 P.D. 64 .............................................................................. 112, 113

The Oregon, 158 U.S. 186, 15 S. Ct. 804, 39 L. Ed. 943 (1895).................................................. 53

The Pennsylvania, 86 U.S. 125, 22 L. Ed. 148, 19 Wall. 125 (1873)..................... 5, 76, 77, 78, 80

Tracy Towing Line, Inc. v. Jersey City, 105 F. Supp. 910,

1952 A.M.C. 2017 (D.N.J. 1952................................................................................................. 123

Trade Banner Line, Inc. v. Caribbean S.S. Co., S.A., 571 F.2d 229 (5th Cir. 1975).................. 110

Trans-Bay Eng’rs & Builders, Inc., v. Hills, 551 F.2d 370 (D.C. Cir. 1976)............................... 73

U.S. Fidelity & Guar. Co. v. Plovidba, 683 F.2d 1022, 1983 A.M.C. 2473 (7th Cir. 1982)...... 116

United Philippine Lines, Inc. v. USS DANIEL BOONE,

475 F.2d 478, 1973 A.M.C. 1156 (4th Cir. 1973.......................................................................... 90

United States v. Am. Color & Chem. Corp., 858 F. Supp. 445 (M.D. Pa. 1994) ......................... 91

United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 95 S. Ct. 1708,

44 L. Ed. 2d 251, 1975 A.M.C. 541 (1975)............................................................................ 83, 84

United States v. Rogan, 459 F. Supp. 2d 692 (N.D. Ill. 2006),

aff’d, 517 F.3d 449 (7th Cir. 2008)............................................................................................. 102

United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888(1940)................................... 90

United States v. United States Fidelity and Guaranty Co.,

309 U.S. 506, 60 S. Ct. 653, 84 L. Ed.

894 (1940)..................................................................................................................................... 90
xiv

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Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985) ............................... 122

Van Buskirk v. W. Bend Co., No. CIV. A. 96-6945, 1997 WL 34688

(E.D. Pa. Jan. 29, 1997) ............................................................................................................... 81

Vaughan v. Atkinson, 369 U.S. 527 (1962)................................................................................... 91

W. Bulk Carriers, K.S. v. United States, No. 97-2423, 1999 WL 1427719,

1999 A.M.C. (E.D. Cal. 1999)............................................................................................ 108, 111

W. Tankers Corp. v. United States, 387 F. Supp. 487, 1975 A.M.C. 775 (S.D.N.Y. 1975)....... 108

W.V. Realty, Inc. v. N. Ins. Co., 334 F.3d 306 (3d Cir. 2003) ...................................................... 81

Waterman S.S. Corp. v. Gay Cottons, 414 F.2d 724, 1969 A.M.C. 1682 (9th Cir. 1969)............ 77

Weeks Marine, Inc. v. Hanjin Shipping, No. 04-1703, 2005 WL 1638148,

2005 A.M.C. 1917 (D.N.J. July 12, 2005).................................................................................... 75

Regulations

33 C.F.R. § 72.01-1....................................................................................................................... 96

33 C.F.R. § 96.220-250........................................................................................................... 65, 67

33 C.F.R. § 147.455(b) ................................................................................................................. 38

33 C.F.R. § 151.2041.................................................................................................................... 60

33 C.F.R. § 157.450...................................................................................................................... 49

33 C.F.R. § 157.455.............................................................................................................. 40, 115

33 C.F.R. § 157.455(a)............................................................................................................ 24, 39

33 C.F.R. § 157.455 (b) .............................................................................................. 24, 44, 67, 79

33 C.F.R. § 160.215...................................................................................................................... 60

33 C.F.R. § 164.11...................................................................................................... 24, 48, 49, 52

33 C.F.R. § 2045........................................................................................................................... 60

33 C.F.R. Part 150......................................................................................................................... 72
xv

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33 C.F.R. Part 151......................................................................................................................... 72

33 C.F.R. Part 154......................................................................................................................... 72

33 C.F.R. Part 156......................................................................................................................... 72

33 C.F.R. Part 157......................................................................................................................... 72

33 C.F.R. Part 164......................................................................................................................... 72

61 Fed. Reg. at 39,779 (July 30, 1996)......................................................................................... 79

61 Fed. Reg. at 39,781; 39,783 (July 30, 1996)............................................................................ 79

Statutes

3 C.F.R. § 164.11.......................................................................................................................... 45

33 U.S.C. § 1, et seq...................................................................................................................... 94

33 U.S.C. § 2701, et seq. (Oil Pollution Act (“OPA")) ......................................................... passim

33 U.S.C. § 2702......................................................................................................................... 102

33 U.S.C. § 2702(d) .................................................................................................................... 104

33 U.S.C. § 2703..................................................................................................................... 2, 107

33 U.S.C. § 2704............................................................................................................................. 2

33 U.S.C. § 2708(a)(1)................................................................................................................ 104

33 U.S.C. §2712(a)(3) and (4) .................................................................................................... 104

33 U.S.C. §2713(b)(1)(B) ........................................................................................................... 104

46 U.S.C. § 181, et seq. (Shipowner's Limitation of Liability Act)................................................ 1

Rivers and Harbors Act of 1910 ................................................................................................... 94

Rules

Fed. R. Evid. 801(d)(2)............................................................................................... 3, 81, 82, 106
xvi

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Treatises

Julian Cooke, et al., Voyage Charters, ¶ 5.61 (3d ed. 2007) ........................................................ 54

Julian Cooke, et al., Voyage Charters, ¶ 5.92............................................................................... 54

Julian Cooke et al., Voyage Charters, ¶ 5.81 (3d ed. 2007) ......................................................... 26

Julian Cooke, et al., Voyage Charters, ¶ 5.137 (3d ed. 2007) ...................................................... 31

Terence Coghlin et al., Time Charters, ¶ 10.6 (6th ed. 2008) ...................................................... 26

Sir Bernard Eder, et al., Scrutton on Charter-Parties, Section IX,

art. 85, p. 160 (22nd ed. 2011)...................................................................................................... 11

1 Schoenbaum, Admiralty and Maritime Law, §§ 5-2................................................................ 111

Other Authorities

Guide to Port Entry 2003 / 2004 Edition (Volume 1)............................................................. 43, 44

International Maritime Organization ("IMO")........................................................................ 35, 77

IMO Resolution A.741(18)........................................................................................................... 65

IMO Resolution A.893 (21).................................................................................................. 67, 115

International Safety Management Code ("ISM") ............................................... 60, 65, 66, 67, 115

Restatement (Second) of Contracts § 309 cmt. b (1981) .............................................................. 73

Restatement (Second) of Contracts § 309 cmt. c .......................................................................... 73

Restatement of Torts (Apportionment of Liability) § 8 (2000) ..................................................... 84

Restatement of Torts (Apportionment of Liability), § 8, cmt. c .................................................... 85

SOLAS (International Convention for Safety of Life at Sea)......................................... 35, 77, 115

SOLAS Chapter 3 ....................................................................................................................... 115

SOLAS Chapter 34 ....................................................................................................................... 67
xvii

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SOLAS, Regulation XIX/3.1 ........................................................................................................ 65

STCW (Standards of Training Certification and Watchkeeping for Seafarers) ................... 35, 115

STCW Convention, Reg. A-VIII/2, Part 3-1, Para 49 ............................................................ 49, 53

UK East Coast Pilot...................................................................................................................... 38

U.S. Coast Guard Report to Congress, Nov. 20, 2013.................................................................. 89

U.S. Coast Pilot......................................................................................................... 38, 39, 95, 128

Unif. Comparative Fault Act, § 2(b)............................................................................................. 85
1

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MAY IT PLEASE THE COURT:

Defendants—CITGO Asphalt Refining Company, CITGO Petroleum Corporation, and

CITGO East Coast Oil Corporation (collectively “CARCO”)—will show that there is no basis

under the applicable law or the facts for holding CARCO responsible for the ATHOS I incident.1

Plaintiffs—Frescati Shipping Company, Ltd., Tsakos Shipping & Trading, S.A., and their

subrogee, the United States of America—cannot prove the essential elements of any of their

alleged causes of action against CARCO. Furthermore, CARCO has valid legal and equitable

defenses that defeat any claims asserted.

BACKGROUND

On November 26, 2004, the ATHOS I, a 21-year-old single-hull tanker of the type that

Congress has since banned from entering U.S. waters, struck an uncharted, abandoned anchor

lying on the bottom of the Delaware River. The vessel was negligently navigating at nearly dead

low tide within Federal Anchorage No. 9. The unknown anchor, which was lying in a natural

position with its flukes down, pierced the vessel’s hull, resulting in the release of a portion of the

ship’s cargo of crude oil.

In January 2005, Frescati (the titled owner of the ATHOS I) and Tsakos (the vessel’s

manager) filed Civil Action No. 05-305, seeking exoneration or limitation of liability under 46

U.S.C. § 181, et seq., the Shipowner’s Limitation of Liability Act. In response, the Government

filed its own claim (Doc. 20), alleging that Frescati and Tsakos’s negligence, gross negligence,

and violations of applicable federal safety and operating regulations had caused the “grounding”

of the ATHOS I and the resultant oil spill. Id. at ¶ 15. The Government repeatedly alleged that

Frescati, Tsakos, and the ATHOS I in rem were grossly negligent and negligent per se for their

1 References to prior testimony of witnesses who will be recalled is based on their testimony being

indicative of that on recall.
2

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statutory and regulatory violations and had failed to operate the vessel in a safe, prudent, and

seaworthy manner and condition. Id. at ¶¶ 28-33, 37, and 48-49. Neither Frescati, Tsakos, nor

the Government asserted that CARCO bore any responsibility for the incident.

As the statutorily responsible parties under 33 U.S.C. § 2701, et seq., the Oil Pollution

Act (“OPA”), Frescati and Tsakos paid approximately $124 Million in clean-up costs. In an

administrative proceeding before the National Pollution Funds Center (“NPFC”), they then

sought to limit their liability under 33 U.S.C. § 2704 of OPA and asked for reimbursement from

the Oil Spill Liability Trust Fund (“the OSLTF” or “the Fund”).

Tsakos and Frescati withheld key documents and information from the U.S. Coast Guard

and the NPFC, including evidence of the vessel’s unseaworthiness, malfunctioning ballast

system, erroneous underkeel clearance calculations, grossly negligent navigation, fabricated

post-accident voyage plan, and violation of multiple U.S. Coast Guard safety and operating

regulations that proximately caused the incident. Had Frescati and Tsakos provided all of the

relevant documents and truthfully revealed the facts concerning the navigation and operation of

the ATHOS I, under 33 U.S.C. § 2704(c) their gross negligence and statutory and regulatory

violations would have precluded them from limiting their liability under OPA and being

reimbursed for clean-up costs. Unaware of the truth and failing to conduct a proper inquiry, the

NPFC limited their liability to approximately $45 Million based on the gross tonnage of the

ATHOS I and authorized the Fund to reimburse Frescati and Tsakos approximately $88 Million

for costs in excess of that amount.

Throughout the NPFC limitation proceedings, Frescati, Tsakos, and the Government

never contended that CARCO was responsible or liable for the ATHOS I incident. In a

subsequent NPFC claim seeking total exoneration of liability under 33 U.S.C. § 2703 of OPA,
3

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Frescati and Tsakos asserted that the unknown, third-party anchor dropper was solely at fault in

causing the oil spill. But they withdrew that claim and contradicting their own admission now

allege in this litigation that CARCO is liable for the incident. However, they reserved (and still

have) the right to re-institute that exoneration claim against the OSLTF.

The Government was confronted with embarrassing evidence that the unknown anchor

dropper was a federal dredging contractor, who had used the anchor as a dredge weight and then

abandoned it in Federal Anchorage No. 9 and that Frescati and Tsakos were not entitled to

reimbursement under OPA because of their statutory and regulatory violations, their gross

negligence, and the unseaworthiness of their vessel. Seeking a way out of that conundrum and

flatly contradicting its own pleading in this lawsuit against Frescati and Tsakos, the Government

dismissed that claim but without prejudice against refilling it. Having given and secured

“without prejudice” withdrawals of their claims against each other, the Government, Frescati,

and Tsakos joined together to make new and different factual assertions and legal claims, all

against CARCO.

Plaintiffs’ prior allegations before the NPFC and in this litigation are party admissions

against their own interests under Fed. R. Evid. 801(d)(2), and their shifting positions, claim

shopping, and duplicity underscore why they have no viable claim against CARCO. If the

ATHOS I incident is found to have been caused solely by the unknown third party who

abandoned the anchor, as previously alleged by Frescati and Tsakos, then all costs and damages

arising from the oil spill will be borne by the OSLTF, which is separately funded through a

dedicated tax on oil importers like CARCO (and not by general government revenues).

Congress enacted OPA and intended the Fund to be available to pay costs and damages from a

spill in these exact circumstances. Alternatively, all fault must be assigned to Frescati and
4

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Tsakos, because they caused the oil spill by negligently navigating an unseaworthy and ultrahigh-risk single-hull tanker in direct violation of mandatory regulations specifically designed to

eliminate the risk of striking a submerged object.

Frescati, Tsakos, and the Government have no viable basis for recovery against CARCO

in contract or in tort. Plaintiffs cannot prove that Paulsboro was an unsafe port or that CARCO

breached the safe-port warranty.2 CARCO met all the requirements of the safe-port obligation

under the Tanker Voyage Charter Party according to the contract terms and the law. The scope

of the safe port warranty extends only to seaworthy vessels that are properly operated according

to national and international maritime regulations and principles of good seamanship. The

ATHOS I was neither. It was indeed possible for the ATHOS I to have reached CARCO’s berth

safely if plaintiffs had maintained the vessel in a seaworthy condition and navigated it properly

by calculating its underkeel clearance and timing its arrival in view of the tidal conditions. By

waiting to dock until a higher stage of the tide, plaintiffs could have increased the safety margin

beneath the vessel to avoid grounding or alliding with an uncharted object. The ATHOS I could,

and should, have avoided the risk of striking the anchor just as hundreds of other similarly

situated vessels did by exercising good navigation and seamanship. The ATHOS I’s appalling

navigational negligence and unseaworthiness proximately caused the oil spill and thereby

nullified the safe-port obligation.

Indeed, plaintiffs violated multiple mandatory safety and operating regulations precisely

designed to minimize a single-hull tanker’s risk of hitting uncharted objects. In particular, the

2 As it has repeatedly stated during the proceedings on remand, CARCO fully reserves its right to contest

and seek further review of the Third Circuit’s legal determinations that Frescati, Tsakos, and their vessel

are third-party beneficiaries of the Voyage Charter, that the safe-port/safe-berth provisions of the Voyage

Charter are a warranty of the safety of the port or berth, rather than a duty of due diligence, that the

named-port exception is inapplicable, and that CARCO’s tort duty as a wharfinger extends to routes to its

terminal selected by a vessel’s navigator in Federally maintained waters over which CARCO did not

exercise dominion or control.
5

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presumption of causation of The Pennsylvania, 86 U.S. 125, 22 L. Ed. 148, 19 Wall. 125 (1873),

applies to this maritime incident. Under the Pennsylvania Rule, Frescati and Tsakos have the

burden to show that their statutory and regulatory violations in navigating the ATHOS I could

not have caused the casualty. They cannot meet that burden and therefore cannot prevail.

Moreover, CARCO’s equitable defenses, including recoupment, bar the Government’s

subrogation claim against CARCO for the $88 Million it has reimbursed Frescati and Tsakos

through the OSLTF. CARCO relied to its detriment on the Government’s own conduct and

representations concerning Federal Anchorage No. 9, and the Government is equitably estopped

from asserting that CARCO is liable for the oil spill. The Government would also be unjustly

enriched by recovering clean-up expenses from CARCO for a spill that an unknown third party

(likely its own contractor) solely caused and that the Fund should rightly bear with oil import tax

revenues reserved for that purpose, which CARCO had already paid under OPA to the tune of

$103 Million at the time of the ATHOS I incident. Under the basic principle of equity that

imposes loss on a party who had the best opportunity for avoiding the casualty, no responsibility

falls on CARCO. Rather, it equitably rests on the Government, the unknown anchor dropper,

Frescati, or Tsakos.

Frescati and Tsakos’s negligence claim fares no better. CARCO breached no duty of

reasonable care under the circumstances, but rather did all that was expected of a prudent

wharfinger under statute, custom, and general maritime law. As a dock owner, CARCO was not

the guarantor of the vessel’s safety and could not have foreseen and discovered an unknown

object that it had no reason to suspect even existed in public waters where hundreds of vessels

had safely transited without any prior incident and where nothing put CARCO on notice of any

problem. The evidence further shows that submerged objects are often impossible to find, even
6

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when their general location is known and immense efforts and resources are expended to search

for them. The Government admits that it is pointless to speculatively search for unknown and

unsuspected objects in the River. Through this litigation, Frescati and Tsakos cynically attempt

to evade their own duties to navigate and maintain their vessel safely and try instead to impose

an unreasonable standard of care on CARCO, seeking to cast it liable for an incident it did not

proximately cause.

LAW

I. Plaintiffs Have No Valid Claim Against CARCO In Contract

To recover for the alleged breach of a maritime contract, the plaintiff must prove (1) the

terms of the contract, (2) breach of the contract, and (3) the reasonable value of the purported

damages. MP Leasing Corp. v. Colonna’s Shipyard, No. 07-273, 2009 WL 2581575, at *3 (E.D.

Va. May 8, 2009); Cornish v. Renaissance Hotel Operating Co., No. 06-1722, 2007 WL

4614776, at *8 (M.D. Fla. Dec. 31, 2007). Specifically, “[a] shipowner alleging a claim for an

unsafe port bears the burden of proving that the port was unsafe and that the unsafe condition

was the proximate cause of the damage.” In re Marbulk Shipping, Inc. (M/V Bahama Spirit),

2004 WL 5658898, at *5, S.M.A. Award No. 3849 (June 4, 2004) (Berg, Wiswell & Martowski,

Arbs.).3In addition, the burden of proof rests with the vessel owner to show that the danger

could not have been avoided by good navigation and seamanship. In re Arb. Between Atlantic

Bulker Shipping Corp. and Babun Bulk Shipping Corp., 2006 WL 6171996, at *9-10, S.M.A.

Award No. 3938 (Sept. 8, 2006); In re Arb. Between Trade Sol Shipping Ltd. and Sea-Land

Industries Bermuda Ltd., 2001 WL 36175165, at *9, S.M.A. Award No. 3677 (March 15, 2001)

3 CARCO properly cites both arbitral decisions and jurisprudence as authority. Arbitration decisions

often address safe-port and safe-berth clauses of charter parties and are customarily cited in maritime

cases. In its appellate opinion, the Third Circuit itself relied on maritime law treatises, Time Charters and

Voyage Charters, which cite both arbitral decisions and jurisprudence.
7

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(Arnold, Berg & Szostak, Arbs.). Plaintiffs cannot carry these required burdens to prove any

basis for liability against CARCO.

A. The safe-port obligation is limited to a maximum of 37 feet.

The Third Circuit states that the safe-port/safe-berth warranty of the Voyage Charter

Party “appears” to have required as much as 37 feet of water depth clearance above the anchor.

In re Petition of Frescati Shipping Co., Ltd., 718 F.3d 184, 204 and n.19 (3d Cir. 2012), cert.

denied, 134 S. Ct. 1279 (2014). Remarking that this question is “ultimately a factual matter for

remand,” the Court of Appeals stated that “on remand it will need to be determined whether this

amount of clearance [37 feet] was actually provided.” Id. at 215. See also In re Frescati, at 204

n.21 (“We note there is record evidence suggesting that the promised 37 feet of clearance was

indeed afforded. . . .”); Id. at 205. The evidence will show that CARCO did provide indeed at

least 37 feet of clearance.

1. CARCO did not owe an added margin of clearance beyond 37 feet above

the anchor.

Contrary to what plaintiffs would have this Court believe, the safe-port/safe-berth

provisions of the Voyage Charter do not mean that CARCO was required to provide a “margin”

of additional underkeel clearance beyond 37 feet or give the master an “express assurance” that

the ATHOS I’s draft was “safe” under all circumstances. The Third Circuit has framed the scope

of the warranty as a “promised 37 feet of clearance” for a vessel “drawing 37 feet or less.” In re

Frescati, 718 F.3d at 209 n.21 and 215. Nothing in the Voyage Charter entitles them to a greater

margin.

The Third Circuit’s opinion dispels any notion that the safe-port/safe-berth obligation is

absolute or that the mere fact of the allision imposes liability on CARCO. As the Court of

Appeals expressly states, the mere occurrence of a casualty does not render a port dangerous or
8

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unsafe or make CARCO liable. Id. at 203 (“That the Athos I was injured by the anchor does not

automatically indicate that the warranty was breached. CARCO’s safe berth warranty was not a

blank check; it did not warrant that any ship would be safe at its port, but instead assured that the

port would be safe for the Athos I” if navigated safely and in a seaworthy condition.) (emphasis

added).

The limited safe-port clause is not a license for plaintiffs’ reckless navigation. The

ATHOS I’s navigators, not CARCO as charterer, were solely responsible for providing their own

margin of safety by calculating their vessel’s underkeel clearance, planning their voyage, and

timing their transit at a stage of the tide that allowed them to avoid the risk of grounding or

alliding with a submerged object.4The vessel’s master was responsible for calculation of

underkeel clearance and the ship’s navigation, and both the master and the pilot were responsible

for knowing tidal conditions.5

The master and pilot of the ATHOS I made all decisions concerning the tides, underkeel

clearance, berthing window, and timing for the safe transit up the River and through the

Anchorage.6They alone were responsible for complying with mandatory U.S. Coast Guard

regulations, and the amount of available underkeel clearance as a safety margin for the ATHOS I

was in their complete command and control. Neither of them requested or depended on any

information from CARCO to determine the safety of the ship’s passage through the Anchorage.7

Pilot Bethel evaluated the state of the tide and did not have any contact with the terminal

concerning his maneuvers in the Anchorage.

4

[Ex. D-1235 at 33 C.F.R. §157.455 (a) and (b); TT Day 24 (Grenier) P. 84:3-20; 85:25-86:18; 91:15-92:14; 103:6-

10; TT Day 24 (Haley) P. 147:2-19; 170:22-171:9; TT Day 27 (Daggett) P. 141:3-6; 141:15-142:7; TT Day 16

(Johnson) P. 207:1-208:6; TT Day 29 (Anderson) P. 116:21-117:6; 117:14-118:18].

5

[TT Day 30 (Rankine) P. 60:20-61:1].

6

[TT Day 13 (Brooking) P. 73:4-20; TT Day 24 (Haley) P. 193:13-16].

7

[T[TT Day 8 (Bethel) P. 48:18-49:6; 50:25-51:6].T Day 13 (Brooking) P. 73:4-74:10].
9

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CARCO did not set the docking window or determine when it was safe for the ATHOS I

to dock. Nor did CARCO establish any policies for controlling depth or draft limitations in

Federal waterways, including Federal Anchorage No. 9, or dictate the times when the ATHOS I

or any other ship could arrive or depart from its berth.8The Docking Pilots Association issued

suggested guidelines for berthing at terminals based on the tides, monitored them for

effectiveness, and could amend them if deemed necessary.9 According to the Association’s

suggested “berthing windows,” vessels could dock at CARCO at various times during the tidal

cycle, depending on their drafts.10 These guidelines or berthing windows were only suggestions,

and a ship’s master or a docking pilot could always require a safer time for docking at a higher

stage of the tide based on his own assessment and voyage planning.11

CARCO could neither modify the Association’s directives nor tell a pilot when to sail.12

The vessel’s navigators alone decided when to proceed during the berthing window in

consideration of the tides and the ship’s underkeel clearance. Those choices belonged solely to

Captain Markoutsis and the docking pilot aboard the ATHOS I, not CARCO.13 The Association

expected its member pilots to obtain all necessary updated depth information and soundings from

the U.S. Army Corps of Engineers and the National Oceanic and Atmospheric Association

(“NOAA”).14

The safe-port clause does not permit plaintiffs to neglect their duties of good navigation

and seamanship and shift them to CARCO. A charterer “who has no control over the vessel,

8

[TT Day 30 (Rankine) P. 54:25-57:8; 61:7-62:19; 67:3-5; 68:2-4; Ex. D-766 (CITGO Marine Operations

Guidelines)].

9

[Quillen Dep. 57:16-58:23].

10 [TT Day 30 (Rankine) P. 65:13-66:2].

11 [TT Day 8 (Bethel) P. 77:21-78:12; TT Day 15 (Markoutsis) P. 21:6-10].

12 [TT Day 30 (Rankine) P. 66:10-11].

13 [TT Day 8 (Bethel) P. 78:8-12; TT Day 14 amended (Markoutsis) P. 14:7-19; TT Day 30 (Ranking) P. 61:7-

62:19; 66:12-18; TT Day 30 (Furlotte) P. 136:25-137:7].

14 [Quillen Dep. 70:9-18; 72:5-73:10].
10

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assumes no liability for negligence of the crew or unseaworthiness of the vessel absent a

showing that the parties to the charter intended otherwise.” In re Lloyd's Leasing, Ltd., 764 F.

Supp. 1114, 1136 (S.D. Tex. 1990) (citing In re P & E Boat Rentals, Inc., 872 F.2d 642, 647,

1989 A.M.C. 2447 (5th Cir. 1989)); see also California ex rel. Dep’t of Transp. v. S/T Norfolk,

435 F. Supp. 1039, 1047-48, 1978 A.M.C. 144 (N.D. Cal. 1977) (“Navigational decisions

affecting the safety of the vessel are to be made by the pilot (with the master’s supervision)

rather than charterers or shoreside personnel. . . . [A]ny docking at any wharf will present

dangers when the vessel is navigated without due regard for existing conditions of tide, current

and weather.”) (emphasis added); In re Arb. Between Jebsen Carriers, Ltd. and Gravetal Bolivia,

S.A, 1999 WL 34976590, at *6, S.M.A. No. 3525 (April 28, 1999) (Cina, Mordhorst & Jacobson,

Arbs.) (finding that the presence of an abandoned anchor that entangled the ship’s own anchor

did not amount to a breach of the charterer’s safe berth warranty and that the charterer has no

responsibility for the ship’s operation while in transit).

2. CARCO did not warrant the safety of the port at all times of the tide, and

plaintiffs bore the risk of selecting the tidal stage.

A safe-port or safe-berth warranty does not guarantee safety at all stages of the tide,

unless it expressly includes specific language to that effect. The phrase “always afloat,” without

more, simply places the risk of tidal conditions encountered “in the ordinary course of

navigation, on the shipowner, not the charterer.” See Parker v. Winlow, [1857] 7 E. & B. 942,

948, 119 E.R. 1497 (Coleridge, J.) (by using the words “near thereunto as she may safely get” in

reference to a tidal harbor, the contracting parties “know that, in the ordinary course of

navigation, the state of the tide may delay the possibility of getting safely to the destination. The

risk of that ordinary delay the ship-owner undertakes to bear.”); Carlton S.S. Co. Ltd. v. Castle

Mail Packets Co., Ltd., [1898] A.C. 486, 496 (Macnaghten, J.) (where the vessel was going to
11

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ship cargo “always afloat” in a tidal harbor, the shipowner knows that arrival at certain stages of

the tide would delay it). Placing the risk of selecting a safe tidal stage on the shipowner makes

sense, because such navigational decisions are within the shipowner’s complete control.

By contrast, where the charter party includes the further phrase “at all times of the tide”

in addition to “always safely afloat,” the legal effect of the added phrase is “to relieve the

shipowner from a burden which the law would have thrown upon him in the absence of these

words, viz., the risk of delay upon arrival from the state of the tides in the river to which the

charterer’s convenience required the ship to go.” Horsley v. Price, [1883] 11 Q.B.D. 244, 249.

See also Sir Bernard Eder, et al., Scrutton on Charter-Parties, Section IX, art. 85, p. 160 (22nd

ed. 2011) (noting that a clause “always afloat at all times of the tide” relieves “the ship of the

duty of waiting in a tidal river or harbor till the tide serve her to proceed to the dock or wharf

where she is to discharge,” but that a “clause ‘always afloat’ alone will not justify a vessel in

declining to go to a berth where she cannot lie continuously always afloat, if she can do so partly

before and partly after neap [lowest] tides.’”).

Here, the safe-port language of the Voyage Charter simply provides for “One (1) or two

(2) safe port(s) United States Atlantic Coast” without more.15 The vessel is to proceed to the

discharge port “or so near thereunto as she may safely get (always afloat), and deliver said

cargo.”16 The safe-berth clause provides in relevant part that “[t]he Vessel shall load and

discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival . . .

provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat. . . .”17

The Voyage Charter does not warrant the safety of the port at any stage of the tide or weather. It

uses the phrases “always safely afloat” and “always afloat” only and does not add the phrase “at

15 [See Ex. D-606, ¶ 2 at CARPROD 00538].

16 [See Ex. D-606, Part II, ¶ 1 at CARPROD 00535].

17 [See Ex. D-606, Part II, ¶ 9 at CARPROD 00535].
12

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all times of the tide” or any other remotely similar words that are required to shift liability to the

charterer as discussed above.18 It does not mention wind, tide, or current. The safe-port clause

does not relieve plaintiffs of their sole responsibilities and obligations, discussed above, to plan

the voyage, calculate their underkeel clearance, and navigate the vessel safely by taking into

account the change of available water depth based on tidal conditions.

Plaintiffs proximately caused the allision and the resulting oil spill through their own

fault in failing to delay docking until a higher tide. The high tides in Federal Anchorage No. 9

were over 5 feet above the mean lower low water (“MLLW”) charted depths on November 26

and 27, 2004.19 The ATHOS I chose to navigate up the River and into the Anchorage at nearly

dead low tide when the margin of safety against contact with unknown obstructions was almost

at its absolute minimum. Nothing prevented the ship from planning its voyage and timing its

arrival based on the state of the tide to increase that margin of safety by the more than 5 feet of

additional depth that was available at high tide. The vessel’s navigators alone timed and

controlled the ship’s transit. Had plaintiffs properly planned their voyage, calculated the vessel’s

underkeel clearance, and selected a higher tide before docking, they never would have struck the

anchor.

During the transit of the ATHOS I, neither the river pilot nor the docking pilot obtained

any real time information about the actual height of the tide from NOAA’s PORTS System.20

The master did not discuss underkeel clearance and predicted or actual tide heights and currents

with either of them.21 Despite attempting to dock at nearly low tide and with an insufficient

underkeel clearance, the master and second officer of the vessel erroneously believed they were

18 [See Ex. D-606, ¶ 9 at CARPROD 0535].

19 [TT Day 21 (Cole) P. 69:18-70:18; 71:1-11; Ex. D-2015].

20 [TT Day 2 (Teal) P. 86:12-25; TT Day 8 (Bethel) P. 66:11-24].

21 [TT Day 2 (Teal) P. 76:9-12; TT Day 8 (Bethel) P. 71:1-18; 73:10-16; TT Day 15 (Markoutsis) P. 24:25-25:5;

Markoutsis Dep. P. 410:22-411:23].
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navigating at high tide, as they admitted to the Coast Guard after the incident and documented in

their fabricated, post-casualty voyage “plan.”22 Had they conducted a proper master-pilot

exchange of information and informed the pilot of their erroneous assumptions, they could have

avoided striking the anchor by realizing that they had insufficient underkeel clearance in

violation of Tsakos’s minimum requirements in view of the shallow controlling depth in the

Anchorage and that they needed to delay docking until a higher state of the tide.23

In fact, in seeking to be found blameless by the Coast Guard and to obtain reimbursement

of clean-up costs, after the allision Frescati and Tsakos destroyed documents and fabricated a

voyage plan that they then presented to the Coast Guard. Then they compounded that deception

by misrepresenting not only that they had a voyage “plan” calling for arrival at CARCO’s berth

at high tide (as they should have planned), but they also wrongly claimed that they had in fact

proceeded at a high level of the tide (as they should have done)! In reality, the ATHOS I chose

the wrong time to dock. It proceeded with reckless disregard for safety and the risk of grounding

or alliding with an object on the River bottom under circumstances that would have prompted

any prudent mariner to simply wait for a higher tide.

As the Third Circuit recognizes, “[m]aritime contracts ‘must be construed like any other

contracts: by their terms and consistent with the intent of the parties.’” In re Frescati, 718 F.3d

at 198 (quoting Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 31, 125 S. Ct. 385, 160 L. Ed. 2d 283

(2004)). The plain wording of the Voyage Charter does not make CARCO responsible for the

safety of the port at all stages of the tide. Plaintiffs cannot shirk their sole responsibilities of safe

navigation and seamanship in view of the tide and foist their duties on CARCO.

22 [TT Day 15 (Markoutsis) P. 7:8-10:24; 12:8-15:25; TT Day 24 (Haley) P. 150:18-152:10; TT Day 25 (Bergin)

104:11-13; TT Day 29 (Anderson) P. 84:2-85:12; Ex. D-87A; Ex. D-1910].

23 [TT Day 24 (Haley) P. 168:13-170:21; TT Day 25 (Bergin) P. 125:7-127:4; Ex. D-1910].
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B. CARCO did not breach the safe-port obligation.

1. The depth and “flukes-down” orientation of the anchor prove that

CARCO afforded at least 37 feet of clearance and that the ATHOS I was

drawing more than 37 feet at the time of the incident.

CARCO met its obligations under the Voyage Charter by providing a port that was safe

for a vessel with a 37-foot draft.

The parties have stipulated that the anchor was submerged in Federal Anchorage No. 9

for at least three years before the ATHOS I hit it.24 On January 5, 2005, some six weeks after the

ATHOS I incident, the anchor was first discovered, and divers and side-scan sonar data

confirmed that it was lying in its natural “flukes-down” position flat on the riverbed.25

Dr. Peter Traykovski, an expert oceanographer and ocean engineer, gave testimony that

Judge Fullam remarked was useful and persuasive and that the Third Circuit noted was probative

evidence that CARCO had indeed afforded the promised clearance. He analyzed data obtained

from a 2001 Sommerfield & Madsen side-scan sonar data and compared it to the 2005 sonar data

collected after the ATHOS I incident.26 He found that the 2001 sonar data depicted the anchor in

the same “flukes-down” position with the anchor’s tripping palms extending up to a height of 41

inches above the river bottom, as compared to 37 inches above the riverbed in 2005.27 He

testified that the 2001 height of the anchor off the bottom of 41 inches had an error bound of plus

or minus 0.3 feet (3.5 inches).28 The height of the anchor therefore ranged from 37.5 inches to

44.5 inches above the river bottom.

24 [TT Day 6 (Fish) P. 49:14-16; 62:8-13; Ex. P-1318 (Doc. 525 in Civil Action No. 5-305 (Stipulation)].

25 [TT Day 6 (Fish) P. 62:21-66:8; TT Day 22 (Traykovski) P. 11:18-12:9; 13:16-21; 16:24-17:14; 20:24-31:3]. It

was not identified and removed until January 17, 2005. [TT Day 6 (Fish) P. 89:18-20].

26 [TT Day 22 (Traykovski) P. 21:11-27:4].

27 [TT Day 6 (Fish) P. 62:21-63:4; 63:22-64:5; 64:13-67:3; 67:19-69:25; TT Day 22 (Traykovski) P. 11:13-12:9;

15:3-17:14; 20:24-25:13; 29:1-32:10; 36.2-38:23].

28 [TT Day 22 (Traykovski) P. 29:10-18].
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When the ATHOS I struck it, the anchor was lying in its natural “flukes-down” position

flat on the riverbed.29 Based on the shallowest water depth of 41 feet at the anchor recovery

location and subtracting the height of the anchor palm, the water clearance above the anchor on

November 26, 2004 was therefore between 37.2 and 37.8 feet at MLLW applying the errorbound factor of 0.3 feet.30 The tide correction of 0.2 feet based on Dr. Cole’s testimony would

increase the minimum clearance above the anchor to a range between 37.4 feet and 38 feet.31

Thus, to strike the anchor as it did and puncture holes in its hull, the ATHOS I had

a draft in excess of 37 feet. Indeed, the vessel also went directly over a charted 38-foot depth in

the Anchorage and touched bottom according to the vessel’s own echosounder chart, which

showed zero underkeel clearance at that time and location, thereby demonstrating that the ship’s

draft exceeded 37 feet.32

Proper seamanship by planning the transit through the Anchorage by the navigators

aboard the ATHOS I to dock at a higher tide could have increased these clearance figures by as

much as 5.1 to 5.9 feet.33 The record therefore shows not only that CARCO satisfied its safeport obligation, but that plaintiffs caused the allision by negligently navigating their unseaworthy

deep-draft vessel without properly calculating their underkeel clearance in view of the tidal

conditions and waiting for increased underkeel clearance at a higher stage of the tide..

Furthermore, as Dr. George Langford testified, the evidence of the damage to the ship’s

hull and the anchor shows that the anchor must have been in its natural flukes-down position

when the ATHOS I struck it. His metallurgical analysis revealed that the ship’s hull first

contacted the tip of the left anchor palm, which caused a semi-circular rupture (a/k/a “semi29 [TT Day 22 (Traykovski) P. 16:3-18:5; 21:4-32:10].

30 [TT Day 22 (Traykovski) P. 49:12-50:24; 51:2-4].

31 [TT Day 22 (Traykovski) P. 49:12-50:24; Ex. D-2017].

32 [TT Day 31 (Stoller) P. 82:20-84:16; 85:3-10; 85:16-24; 89:1-17; Ex. D-2063].

33 [TT Day 21 (Cole) P. 69:18-70:18; 71:1-11; Ex. D-2015].
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circular hole”) of the ship’s hull in Cargo Tank 7C, and that the continuing movement of the

vessel’s hull caused one of the anchor’s flukes to rotate upward and make a second rupture in the

hull (a/k/a “the long hole”) in Ballast Tank 7C.34 Before breaking through the hull, the fluke’s

edge created a crease or score mark on the hull known as the “triangular flap.”35 CARCO’s

expert naval architect, George Petrie, confirmed Dr. Langford’s conclusions through a finite

element analysis, which showed that the patterns of stress and deformation on the vessel’s hull

were consistent with the actual damage, a flukes-down orientation, and Dr. Langford’s

description of how it had happened.36

2. The evidence flatly refutes plaintiffs’ “flukes-up” theory.

The Sommerfield & Madsen sonar data in 2001 and the post-incident sonar data in 2004-

2005 show the nine-ton anchor lying with its flukes horizontal on the River bottom and its

shorter tripping palms extending upward with their distinctive “L” shaped acoustic-energy

shadows.37

In support of plaintiffs’ argument that the draft of the ATHOS I was only 36 feet 7 inches

when it contacted the anchor, plaintiffs’ experts advanced their unfounded, factually

unsupported, and physically impossible “flukes-up” theory that the anchor was somehow

perched on the riverbed in an unnatural state, with its long flukes pointed up toward the surface

and extending 6.48 feet (approximately 6 feet 6 inches) above the River bottom at an inclined

angle of 65°.38 The record evidence belies plaintiffs’ scenario.

First, if the anchor was at the height and position that plaintiffs contend, it is

incomprehensible how it was not hit by many of the other vessel with at least 37 feet of draft that

34 [TT Day 23 (Langford) P. 29:10-30:17; 31:4-32.22; Ex. D-2022 (Photograph Binder, Anchor Photo #1)].

35 [TT Day 23 (Langford) P. 37:5-12; Ex. D-2022, Photos 70, 71, and 72].

36 [TT Day 26 (Petrie) P. 37:3-38:9; 40:2-9].

37 [TT Day 6 (Fish) P. 62:21-69:1; 72:25-73:25; 80:4-19; TT Day 22 (Traykovski) P. 25:7-29:9].

38[TT Day 33 (Bowman) P. 106:9-109:4].
17

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had sailed over the same area in the years that the anchor was lying there. Hundreds of vessels

had passed over the spot where it was found, and not a single one touched it or was even aware

of any submerged object in the Anchorage.39 See also In re Frescati, 718 F.3d at 206 (“[T]here

is no suggestion that anyone—much less the master of the Athos I—had any inkling as to the

anchor’s existence in the River.”).

In support of Bowman’s “flukes-up” scenario plaintiffs’ finite element expert, David

Aviram, presented an analysis that defied the facts, common sense, good engineering practice,

and the laws of physics. Unbelievably, Aviram manipulated the data to simulate damage that

was inconsistent with the sediment of the Delaware River bottom and the actual hull damage.40

In his simulation, Aviram assumed that the River bottom was hard and virtually impenetrable for

Dr. Langford’s opinion, but for Bowman’s scenario Aviram presumed instead that the riverbed

was soft with negligible resistance.41

Stephen King, who did the actual computer analysis for him, advised Aviram in an email

that Bowman’s scenario was impossible given the natural rotation of the anchor.42 King could

not replicate the Bowman “fluke-tip-first” scenario and told Aviram that he would try to “dream

up a scheme” to reproduce it, but warned him that it would have to be based on some physical

principles.43 Aviram and plaintiffs’ lawyers ordered King to redo the Bowman scheme no fewer

than 78 times.44 The only evidence plaintiffs have offered on the position and orientation of the

anchor is their “scheme,” which was concocted well after their initial analyses and multiple

39 [TT Day 12 (Bowman) P. 115:14-17; TT Day 13 (Brooking) P. 86:8-88:3; TT Day 10 (Drager) P. 88:4-11].

40 [TT Day 26 (Petrie) P. 46:6-47:13; 50:2-51:22].

41 [TT Day 26 (Petrie) P. 43:17-46:17].

42 [Ex. D-1903 at ATHOS75160-75161; TT Day 8 (Aviram) P. 153:4-155:12].

43 [TT Day 8 (Aviram) P. 156:14-157:11; Ex. D-1903 at ATHOS75160-75161].

44 [TT Day 8 (Aviram) P. 148:15-149:13].
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expert reports in an effort to comply with the demands of plaintiffs and their lawyers in OctoberDecember 2009.45

Metallurgical and geological evidence established that the anchor was oriented “flukes

down.” The physical evidence concerning the depth and orientation of the anchor amply

demonstrates that CARCO afforded at least 37 feet of clearance above it and fully satisfied its

legal obligations under the Voyage Charter.

3. The ATHOS I’s own condition demonstrated that its draft exceeded 37

feet when it struck the anchor.

The laws of physics and the record evidence of the vessel’s own condition, including its

ballast and list, further establish that the vessel’s draft exceeded 37 feet when it struck the anchor

and holed its hull. The draft of an oil tanker varies based on the quantity and weights of liquids

aboard the ship at any given time, including cargo and ballast water. As shown below, as a result

of the ATHOS I’s defective ballasting system, a very significant quantity of additional

unreported ballast water was aboard the vessel before the incident, which increased its draft.

With more ballast than reported and with the heel effect created by the tugs as they pushed it, the

ATHOS I was obviously deeper than 37 feet when it hit the anchor.

After loading its cargo in Puerto Miranda, the ATHOS I reportedly had a draft of 36 feet

6 inches freshwater based on alleged visual observations at the departure terminal.46

Importantly, however, no subsequent visual observations or confirmations of the vessel’s draft

were ever made at any time before the oil-spill incident a week later. Thus, no direct evidence of

the vessel’s draft exists at the time of the incident. Incredibly, the identical draft of 36 feet 6

inches was continually recorded in the vessel’s log books and other records throughout the entire

45 [Ex. D 1903, at Athos 075160, e-mail sent December 7, 2009 at 18:01, 1st unnumbered paragraph; TT Day 12

(Bowman) P. 128:20-23; 130:9-12; TT Day 9 (Crosson) P. 111:8-112:23].

46 [TT Day 4 (Zotos) P. 42:7-24].
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voyage, even though the ship traveled from freshwater to saltwater and to freshwater again,

consumed fuel and water, and took on ballast water while sailing 1,900 miles to Paulsboro.47

Because of the lower density of freshwater, a ship sinks deeper and its draft increases as it enters

freshwater from saltwater.48 A ship drawing 36 feet of saltwater will draw 37 feet in

freshwater.49 Plaintiffs’ own expert, Anthony Bowman, testified that the draft of the ATHOS I

would have increased about 10 inches as it moved from saltwater at Cape Henlopen to fresh

water in Federal Anchorage No. 9.50 The vessel’s recordation of a constant, unchanging draft is

inherently suspect and simply wrong. The draft did not remain constant during that time. The

vessel’s documents reflect that the vessel’s crew either fabricated the draft or were incompetent

in recording ballasting. Moreover, plaintiffs themselves have since admitted that even they

cannot justify the 36-foot 6-inch figure, and they now assert that the actual draft of the ATHOS I

was 36 feet 7 inches. See In re Frescati, 718 F.3d at 204 n.19.

Taking on ballast increases the vessel’s draft.51 All seagoing ships have means of

controlling and documenting ballasting operations, which are critical to safe navigation. The

ATHOS I had a broken ballasting system that was documented to be in need of major repairs.

The malfunctioning ballast system had leaking ballast lines, hydraulic valves that opened or

closed on their own, broken valve-position indicators that prevented the crew from determining

whether a valve was open or closed, and broken gauges that prevented the crew from knowing

how much ballast was in the ship or in what tank. And plaintiffs have lost, altered, or destroyed

vessel logs and records that would have shown every time the ballast pumps were used. The

47 [TT Day 4 (Zotos) P. 54:5-56:10].

48 [TT Day 2 (Teal) P. 71:25-72:3; TT Day 6 (Zotos) P. 9:22-10:5].

49 [TT Day 3 (Adams) P. 76:7-9].

50 [TT Day 12 (Bowman) P. 73:2-14].

51 [TT Day 5 (Zotos) P. 16:9-18:10; TT Day 8 (Bethel) P. 72:24-73:9].
20

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crew had no way of the ATHOS I’s true draft, and the plaintiffs have destroyed the documents

that would show it was over 37 feet at the time of the casualty.

The ATHOS I’s Pump Room Patrol Log, which would have provided evidence of the

time when ballasting was started and stopped aboard the vessel on November 26, 2004 and at all

other times, is missing, and no other written record shows what time the ballasting operation of

November 26 began or ended.52 Computer draft calculations that may have been done before or

during the voyage, as well as the record showing liquid quantities aboard the vessel used to

perform those calculations, were destroyed, and no records are available.53 Plaintiffs have failed

to produce the best evidence of the ballast aboard the vessel, and this Court should draw adverse

evidentiary inferences against plaintiffs and exclude their secondary evidence concerning the

vessel’s draft as a result of their blatant spoliation.

The ship’s engine log on November 27 shows that the vessel used extra fuel, which

indicates that the ATHOS I was using its steam-driven ballast pumps to discharge ballast water.54

However, the discharge of ballast was not recorded in the ship’s official records.55 The evidence

also shows that plaintiffs conducted undocumented liquid transfers after the incident, concealed

them from their own salvage master and from the Coast Guard, and failed to follow the salvage

plan submitted to and approved by the Coast Guard.56

Plaintiffs’ expert, Anthony Bowman, conceded that just 349.8 tons of unreported

additional ballast aboard the ATHOS I would have increased the ship’s draft to 37 feet.57 He

52 [TT Day 5 (Zotos) P. 20:9-21:7; 34:2-7; 34:12-35:15].

53 [TT Day 12 (Bowman) P. 76:1-24].

54 [TT Day 26 (Petrie) P. 95:2-96:6; Ex. P-370 (Engine Log)].

55 [TT Day 26 (Petrie) P. 95:2-96:14].

56 [TT Day 9 (Umdenstock) P. 64:9-12; 65:3-11; 65:20; 65:25-66:3; 69:19-21; 71:15-18; 73:17-74:3; 78:24-79:7;

Ex. D-179].

57 [Ex. D-1942; TT Day 12 (Bowman) P. 79:12-80:17].
21

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acknowledged that a difference of just 200 tons of ballast water aboard the ATHOS I at the time

of the incident could have increased the draft by 11 inches on one side of the vessel.58

CARCO’s naval architecture expert, George Petrie, independently determined that there

was a minimum of 400 to 600 tons of unreported ballast water aboard the ATHOS I at the time

of the incident, even if you accept plaintiffs’ unreliable and incompetent ballast records.59 Based

on that determination alone, he testified that the draft of the vessel before the incident would

have been a minimum of 36 feet 10 inches.60 Petrie further testified that when the two tugs

pushed the ATHOS I before the allision, they necessarily caused the vessel to heel to the port

side with a resulting increase in the vessel’s draft on the port side, as compared to the vessel’s

centerline.61

The U.S. Coast Guard took increased draft due to heel into account in analyzing the draft

of the ATHOS I at the time it struck the anchor.62 The Coast Guard determined that the heeling

moment caused by the two pushing tugs could have increased the draft of the ATHOS I by as

much as 0.17 meters (61⁄2 inches).63 According to the Coast Guard, this heeling moment resulted

in a draft of the ATHOS I at the time of the incident of 37 feet 3 inches (11.35 meters).64 Using

Professor Petrie’s minimum draft of 36 feet 10 inches and adding the Coast Guard’s 61⁄2 inch

increase in draft due to heel resulted in a vessel draft of 37 feet 41⁄2 inches at the time of the

allision.

58 [TT Day 12 (Bowman) P. 77:21-78:19].

59 [TT Day 26 (Petrie) P. 9:3-10:13; 21:6-22:8; 26:4-27:18; 30:6-31:12].

60 [TT Day 26 (Petrie) P. 27:14-18].

61 [TT Day 26 (Petrie) P. 52:4-15; Doc. 586 in Civil Action No. 05-305 (Statement of George L. Petrie, BS, MSE,

Nav. Arch.), at ¶ 21].

62 [Ex. D-1969].

63 [Ex. D-1969 at page 1, ¶ 2 “. . . the heeling moment generated by the mooring tugs, could have increased the

depth of the vessel at the location of the damage by as much as .17m (0.56 ft).”].

64 Id. at 3, ¶ 5.
22

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Plaintiffs’ expert Bowman admits that he did not take the effect of the tugs’ pushing into

account.65 However, Bowman did admit that just one degree of heel or list of the ATHOS I

would increase its draft by 11 inches on that side of the vessel.66 Both Captain Markoutsis and

Chief Officer Zotos noticed that the ATHOS I listed one-half degree to port when the tugs first

pushed it.67 That observed list would have resulted in an increased draft of 51⁄2 inches on the port

side of the vessel, which is the side where the anchor punctured the hull, bringing it to a draft in

excess of 37 feet when it struck the anchor, even assuming plaintiffs’ own purported draft of

36 feet 7 inches. The vessel’s own condition therefore demonstrated that its draft exceeded

37 feet when it struck the anchor.

4. The Court must consider all the characteristics of the vessel and the

circumstances of its navigation in determining its draft.

Because of the very nature of the safe-port/safe-berth obligation as the Third Circuit

defines it, the Court must consider the amount of the vessel’s draft at the time of the casualty” as

affected by environmental conditions and dynamic effects and forces. Whether the ATHOS I

could safely get to CARCO’s berth if properly navigated necessarily means the vessel is moving.

Plaintiffs want the Court to only consider “static draft,” as if the ship were hypothetically sitting

alongside a dock with no external forces being exerted. But the phrase “static draft” cannot be

found in the Third Circuit’s opinion. It is plaintiffs' misguided effort to limit this Court’s

scrutiny of the facts, to create a new, self-serving analysis of draft, and to avoid the unpleasant

reality of the master’s and the docking pilot’s ill-timed decision to proceed through the

Anchorage without a sufficient underkeel safety margin at low tide.

65 [TT Day 12 (Bowman) P. 105:15-18].

66 [TT Day 12 (Bowman) P. 78:5-79:3].

67 [TT Day 4 (Zotos) P. 68:10-69:5; TT Day 15 (Markoutsis) P. 33:3-11].
23

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The ATHOS I incident did not happen while the ship was at rest in a hypothetical “static”

condition, but instead while the ship was in motion. Plaintiffs would twist the Third Circuit’s

opinion and would have this Court ignore the specific “circumstances” surrounding the

ATHOS I’s use of the port, whether the vessel exercised “bad navigation and seamanship,” and

“whether the port was safe based on the facts particular to the ATHOS I and its arrival”—the

very issues that the Court of Appeals has directed this Court to consider on remand. In re

Frescati, 718 F.3d at 203-04 (citing In re Lloyd’s Leasing, Ltd., 764 F. Supp. 1114, 1135 (S.D.

Tex. 1990)).

The Third Circuit expressly states that the focus is on the ATHOS I’s “actual” draft and

the actual “clearance” for purposes of the alleged warranty claim. Id. at 190 (“We cannot be

sure, however, that this warranty was actually breached, as the District Court made no finding as

to the Athos I’s actual draft nor the amount of clearance actually provided.”) (emphasis added).

And this makes sense because the ATHOS I was moving when it struck the anchor. In

determining the vessel’s draft, whether the port was safe, and whether plaintiffs exercised good

navigation and seamanship, the Court cannot fixate on the irrelevant draft of the ship while it is

stationary and without regard to its condition and movement as it navigated through the water

while affected by tide, wind, current, squat, and other forces, such as those the tugboats exerted

on it. The relevant draft is what it was when the ATHOS I struck the anchor under the actual

conditions at that time, not at some imaginary point in the abstract.

Indeed, to avoid groundings or allisions with submerged objects, mandatory U.S. Coast

Guard regulations for the operation of single-hulled tankers like the ATHOS I require the owner

and operator of the vessel, as well as its master and pilots, to consider and calculate the vessel’s

underkeel clearance based on multiple factors affecting the vessel while it is in motion (not
24

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static), including “the ship’s deepest navigational draft,” “the anticipated controlling

[shallowest] depth” of the water it traverses, and “[c]onsideration of weather or environmental

conditions.” See 33 C.F.R. §§ 157.455(a) and (b) (emphasis added). The reference to weather or

environmental conditions necessarily includes the amount of water available to a particular

vessel due to the stage of the tide and currents (if any). Weather conditions can vary the tides.68

A federal navigation regulation, 33 C.F.R. § 164.11, further requires a pilot directing a

vessel underway to know and consider the velocity and direction of the current, the predicted set

and drift of the vessel, the state of the tide, the speed of the vessel considering the weather and

the channel, and the vessel’s characteristics. Tsakos’s own vessel operation manual recognizes

that underkeel clearance varies with local conditions, such as tidal height, the ship’s speed, the

width of the waters it navigates, and the effect of squat, a hydrodynamic phenomenon that

increases the moving vessel’s draft.69 Tsakos’s safety management system required the master to

fully analyze squat and anticipated underkeel clearance while paying “strict attention” to, inter

alia, “b. tidal conditions . . . c. variation in water level due to barometric pressure or tidal surges

... d. accuracy of soundings and tidal information . . . f. increase of [draft] due to heel or trim, g.

variations in water density . . . h. sea bed conditions, [and] i. the effect of squat.”70 This Court

cannot decide issues of the vessel’s draft, underkeel clearance, and seamanship by focusing only

on its “static” draft while at rest, but rather must consider all these dynamic factors affecting its

navigation, just as the vessel’s operator must consider them in planning the voyage.

68 [TT Day 21 (Cole) P. 49:7-22].

69 [TT Day 3 (Esplana) P. 17:8-24].

70 [Ex. D-20 (Tsakos Vessel Operation Procedures Manual) at pp. Athos 0729-0730, ¶ 24 (“Navigating in Shallow

Waters”)].
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C. The vessel’s negligent navigation and unseaworthiness nullify the safe-port

warranty.

1. It was possible for the ATHOS I to avoid the danger through safe

navigation and seamanship in view of the stage of the tide.

The Third Circuit specified that “[w]hether a port is safe refers to the particular ship at

issue” and held that “the District Court correctly framed the ultimate issue as whether it was

possible for a ship of the Athos I’s purported dimensions to reach CARCO’s berth safely.” In re

Frescati, 718 F.3d at 200, 203 (emphasis added). This articulation of the ultimate issue

comports with both (1) the fact that the safe-port/safe-berth language of the Voyage Charter does

not guarantee safety at all stages of the tide, as discussed above, and (2) the Third Circuit’s

holding that there can be no breach of a safe-port/safe-berth warranty if the vessel could have

avoided an accident by good navigation and seamanship. “To be a safe berth, it is not necessary

that every conceivable approach be free of hazards or even that every possible approach be riskfree.” H. Schuldt v. Standard Fruit & S.S. Co., 1979 A.M.C. 2470, 2476-77 (S.D.N.Y. 1978)

(emphasis added) (finding no breach of a safe-berth clause of a charter where the pier could be

approached without running aground on rocky shoals in shallow waters upriver of the pier).

Temporary tidal conditions or abnormally low water as a result of wind and weather do

not make a port unsafe. See In re Arb. Between Hansen Neuerburg Export-Import GMBH (M/V

Regal Sword) and I.S. Joseph Shipping Co., Ltd., 1982 WL 917235, at *7, S.M.A. No. 1682

(May 28, 1982) (Berg, Simms & James, Arbs.). Indeed, where tides affect the port or berth, tidal

conditions that temporarily prevent a vessel from proceeding at a particular time do not render

the port or berth unsafe, so long as it is possible for the ship to reach it by exercising good

seamanship and navigation, which require the master to determine the stage of the tides and

currents and to plan the voyage accordingly. See Terence Coghlin et al., Time Charters, ¶ 10.6
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at p. 198 (6th ed. 2008) (“The fact that for tidal, meteorological or other reasons, the ship may

have to wait for a time before entering the port does not, in itself, make that port unsafe.”)

(emphasis added).

As Coghlin states, the master has the responsibility to time the vessel’s arrival and to

navigate it in view of the conditions confronting it:

For example, a ship may have to wait for high water to clear a bar in the approach to the

port or for a storm to abate before entering, but as Devil J., said in The Stork [1954] 2

Lloyd’s Rep. 397, at page 415: “The law does not require the port to be safe at the very

time of the vessel’s arrival. Just as she may encounter wind and weather conditions

which delay her on her voyage to the loading port, so she may encounter similar

conditions which delay her entry into the port, and the charterer is no more responsible

for the one than for the other.”

Id.; see also Cooke et al., Voyage Charters, ¶ 5.81 at p. 126-27 (3d ed. 2007) (“Thus, where

loading in a tidal berth involves movement in the normal way to take account of the tide . . . the

costs of the operation will, unless the charter expressly imposes such expenses on the charterer,

fall on the [vessel] owner for, by definition, the warranty of safety has not been broken. . . .”);

Aktienselskabet Eriksen & Andersen’s Rederi v. Foy, Morgan & Co., 25 Ll.L.Rep. 442, 444-45

(1946) (recognizing that a shipowner may not succeed on a claim that a port or berth is unsafe

due to insufficient water if the port or berth is accessible by a seaworthy vessel at a different

phase of the tide)

In Leeds Shipping, 2 Lloyd’s Rep. at 131, a decision that the Third Circuit itself cites in

defining the scope of the warranty, the English Court of Appeal noted in a safe-port case that an

expectation, if not a presumption, exists that dangers created by tidal variations in a river can

normally be met and overcome by proper navigation and handling of a vessel in accordance with

good seamanship. “Most, if not all, navigable rivers, channels, ports, harbours and berths have

some dangers from tides, currents, swells, banks, bars or revetments. Such dangers . . . can
27

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normally be met and overcome by proper navigation and handling of a vessel in accordance with

good seamanship.” Id.

Even though the ATHOS I allided with the anchor in Federal Anchorage No. 9, the Port

of Paulsboro was nonetheless safe, because it was possible for this particular vessel, if

seaworthy, to have avoided the danger through the exercise of good navigation and seamanship.

Dr. George Cole’s supplemental opinion and testimony at the recall hearing concerning tidal

conditions will provide this Court with evidence demonstrating that 21 other vessels with drafts

between 35 and 37.5 feet (and subject to the same docking-pilot window as the ATHOS I) had

safely arrived at the CARCO terminal in 2004, the year of the incident. CARCO’s port captain,

William Rankine, testified that no other ships had hit the anchor, had run aground, or had any

problems in transiting Federal Anchorage No. 9 en route to the CARCO berth.71 He further

testified that “just about all of them would go over that spot.”72

As Dr. Cole observes in his supplemental report, all of the vessels meeting the stated

draft criteria arrived at the Anchorage when the tide was well above MLLW so that the actual

water depths in the area were significantly deeper than charted depths at those times, and the vast

majority of the arrivals occurred when the actual depths were five to seven feet greater than the

charted depths. Plaintiffs’ witness, Andrew Brooking, acknowledged that other vessels had

made safe navigational decisions based on the tide, underkeel clearance, and draft to reach the

CARCO terminal safely.73 The docking pilot aboard the ATHOS I had himself safely berthed 15

vessels at CARCO’s terminal without any problem, including the NEREO, a vessel with a draft

of 38 feet, 6 inches, two feet deeper than the ATHOS I’s reported draft.74 He admitted that every

71 [TT Day 30 (Rankine) P. 16:11-17:4].

72 [TT Day 30 (Rankine) P. 20:11-18].

73 [TT Day 13 (Brooking) P. 84:24-86:19; 87:25-88:3].

74 [TT Day 8 (Bethel) P. 3:16-20; 4:14-16; 52:23-53:18; 54:17-56:14].
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one of those ships had timed its arrival at Paulsboro no earlier than three hours before high tide, a

time midway in the six-foot tidal cycle when the water depth was at least three feet more than the

charted depths, and none contacted an object or grounded.75 This evidence demonstrates that it

was indeed possible for a ship with the purported dimensions of the ATHOS I to reach the berth

safely over the same path taken by so many vessels before it.

Proper prediction of tidal conditions is a critical factor in calculating predicted underkeel

clearance, and Tsakos’s own policy instructed the master of the ATHOS I to delay his transit

until it was safe, if he had any concern about underkeel clearance and the amount of available

water.76 The master of the ATHOS I had the responsibility to navigate the vessel and calculate

underkeel clearance, and the master and the pilot were responsible for knowing the state of the

tides and their fluctuation and the weather conditions to determine whether it was safe to sail to

the CARCO berth through the Anchorage when they did.77 As discussed above, the navigators

of the ATHOS I made wildly incorrect assumptions about the controlling depths and the state of

the tide and recklessly proceeded under circumstances that would have prompted any prudent

seaman to delay his arrival until higher water.

Although the Court of Appeals stated that the district court’s reliance on a finding that the

port and berth were “generally safe” based on a “volume of commercial traffic that passed

without incident” is not relevant “to whether the warranty was actually breached in this case,”

the Third Circuit did not hold that evidence of tidal conditions and the arrival times of other

vessels with the same or similar dimensions and subject to the same berthing window as the

ATHOS I was irrelevant for all purposes. In re Frescati, 718 F.3d at 203-04. Rather, it

recognized that the focus was on the ATHOS I’s “purported dimensions” and further observed

75 [TT Day 8 (Bethel) P. 55:21-24; 56:11-14; 59:14-19; 60:8-16].

76 [TT Day 15 (Markoutsis) P. 21:2-10].

77 [TT Day 30 (Rankine) P. 60:20-61:6].
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that the ATHOS I was following the customary procedure and “the usual path for ships of its size

docking at CARCO’s terminal” when it struck the anchor. Id. at 192, 203, 204, and 209-10.

Thus, evidence that vessels of like size and draft as the ATHOS I had safely used the port

without incident under similar circumstances in calling at CARCO’s berth is material to show

that it was indeed possible for the master and pilots of the ATHOS I also to have avoided the

danger by good navigation and seamanship:

• In re Marbulk Shipping, Inc. (M/V Bahama Spirit), 2004 WL 5658898, at *5,

S.M.A. Award No. 3849 (June 4, 2004) (Berg, Wiswell & Martowski, Arbs.)

(finding the port to be safe, even though plaintiff’s vessel struck a submerged

pipe, where vessels of the size and draft of the ship that grounded had navigated

the western end of a ship channel at Theodore, Alabama without incident for four

or five years; “The accident free history of the Theodore Turning Basin is strong

evidence of its safety.”);

• In re Arb. Between Fondren Corporation and Lagoven, S.A., 2001 WL 35459259,

S.M.A. Award No. 3711 (Nov. 28, 2001) (Brown, Berg & Scheinbaum, Arbs.)

(the safe port claim against the charterer was rejected and the vessel owner held

solely at fault for grounding where the evidence showed that 1,400 vessels a year

with the same or greater drafts had used the same channel without grounding);

• In re Arb. Between Delphina Tanker Corp. (MT Delphina) and Axel Johnson

Energy Corp., 1999 WL 34976573, at *3, S.M.A. Award No. 3508 (Feb. 5, 1999)

(Nelson, Elias & Mordhorst, Arbs.) (finding “that the DELPHINA and many

other similar size vessels, through the exercise of good navigation and seamanship

were able to safely berth at this facility, is ample evidence that the dangers of the
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berth approach maneuver could be avoided, if carried out with extreme caution

and sound seamanship[,]” even though plaintiff’s vessel struck an uncharted rock

approximately 100 feet northeast of the berth);

• In re Arb. Regarding the M/T Anett II Between K/S Anett Kristin and Petrojam

Ltd., 1998 WL 35281267 at *8-9, S.M.A. Award No. 3433 (March 13, 1998)

(Engelbrecht, Berg & Vismans, Arbs.) (finding that a gasoline spill from the

vessel’s tanks was an unusual occurrence and that the port of Montego Bay,

Jamaica was safe, despite the lack of safety and firefighting plans, regulations,

personnel, or equipment, where many petroleum tankers had discharged through

the same lines to the same tanks without incident);

• In re Lloyd’s Leasing Ltd., 764 F. Supp. at 1135-36 (finding the Calcasieu

Channel at Lake Charles, Louisiana to be safe, even though the plaintiff’s vessel

structurally failed and grounded, where vessels substantially identical in size and

draft had passed through the channel on a regular basis for over two years before

the casualty; “This alone is evidence of the safety of the port for the ALVENUS

as loaded.”);

• In re Transportes del Este Navegaceon, S.A. (M/V Cepheus), 1990 A.M.C. 1058,

1063-66 (Feb. 13, 1990) (Berg, Healy & Loesberg, Arbs.) (finding the port of

Anchorage, Alaska to be safe, based on the long-term, accident-free history of the

port and the berth, despite the pilot’s navigational error in stranding the vessel

while attempting to berth it in fog conditions while the harbor was covered with

large pans of floating ice); and
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• H. Schuldt v. Standard Fruit & S.S. Co., 1979 A.M.C. 2470, 2477 (S.D.N.Y.

1978) (finding that a charterer did not violate the safe-berth provision of the

charter where “[a]s evidenced by the large number of ships which safely docked

at Pier 42, this pier can be approached by a ship, such as the Artlenburg, without

running aground on the rocky shoals off Pier 44.”).

Safely sailing to CARCO’s terminal was not a hopeless, physically impossible feat for

the ATHOS I. Hundreds of vessels had done so, and many more had sailed through the

Anchorage without incident. It was a routine occurrence for the ATHOS I or any other similar

vessel during the same docking-window, as long as it exercised basic navigational safety

practices and good seamanship, obeyed the single-hull tanker regulations, planned its voyage,

accurately calculated its underkeel clearance in view of the controlling depth, and prudently

waited for a higher stage of the tide. But plaintiffs did nothing of the sort.

2. Plaintiffs own poor navigation and seamanship proximately caused the

allision.

The Court of Appeals further defined the scope of this warranty and the safety of the

designated port by stating that “[a] port is deemed safe where ‘the particular chartered vessel can

proceed to it, use it, and depart from it without, in the absence of abnormal weather or other

occurrences, being exposed to dangers which cannot be avoided by good navigation and

seamanship.’” In re Frescati, 718 F.3d at 200 (emphasis added) (citing Julian Cooke, et al.,

Voyage Charters, ¶ 5.137 (3d ed. 2007), and Leeds Shipping v. Societe Francaise Bunge (The

Eastern City), [1958] 2 Lloyd’s Rep. 127, 131). Phrasing the converse of the definition in terms

of the “unsafety” of a port, the Third Circuit further declared, “[i]n other words, a port is

unsafe—and in violation of the safe berth warranty—where the named ship cannot reach it

without harm (absent abnormal conditions or those not avoidable by adequate navigation and
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seamanship).” Id. at 200. “The test is whether in the exercise of reasonable care in the

circumstances, a competent master would be expected to avoid the dangers present at the port or

berth.” Terence Coghlin, et al., Time Charters, ¶ 10.146 at p. 230 (6th ed. 2008). See also

Julian Cooke et al., Voyage Charters ¶ 5.137 at p. 139 (3d ed. 2007) (“Dangers which can be

avoided by good seamanship and navigation will not render a port ‘unsafe.’”).

As the Third Circuit has stated, “negligent seamanship will nullify the safe port

warranty. . . .” In re Frescati, 718 F.3d at 205. The plaintiff United States itself admitted in its

opposition to CARCO’s petition for certiorari in the Supreme Court that this Court on remand

will “consider petitioner’s [CARCO’s] claim that the accident was caused by ‘bad navigation or

seamanship’ by ATHOS I’s operator, which would reduce or eliminate petitioner’s liability under

the safe berth clause.”78

In an allision case, four sources provide the standard of care owed by the navigating

vessel: (1) statutory rules of navigation; (2) other statutes and regulations having the force of

statutes; (3) proved local “customs” not contradicting either of the above; and (4) the

requirements of good seamanship and due care. See In re Complaint of Lenzi, No. 89-4571,

1991 WL 42463, at *4, 1991 A.M.C. 1531 (E.D. Pa. Mar. 22, 1991), aff’d, 958 F.2d 363 (3d Cir.

1992) (Table). “The responsibility for the safety of the ship rests upon the master.” Charente

S.S. Co. v. United States, 12 F.2d 412, 413, 1926 A.M.C. 1115, 1117 (5th Cir. 1926). Careless or

improper operation of the ship by its crew is evidence of negligence. See Hercules Carriers, Inc.

v. Claimant State of Fla., Dep’t of Transp., 768 F.2d 1558, 1565-66 (11th Cir. 1985). The

navigators of the ATHOS I miserably failed to meet these standards of care.

78 See Brief for the United States in Opposition at 9, Citgo Asphalt Refining Co. v. Frescati Shipping Co.,

Ltd., 2014 WL 216155, at *9 (Jan. 17, 2014) (No. 13-462).
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a. Plaintiffs negligently failed to prepare a proper voyage plan.

Ricardo Caro, the second officer of the ATHOS I, was responsible for preparing the

berth-to-berth voyage plan from Puerto Miranda to Paulsboro.79 But he did not prepare the

required plan with anticipated underkeel clearance calculations before the voyage or before the

ship began its upriver transit.80 In fact, Caro admitted that on the evening of November 26,

2004, immediately after the oil-spill incident, the master instructed him to throw out whatever

original voyage plan he had allegedly prepared and to fabricate a new post-accident voyage

“plan” before the U.S. Coast Guard boarded the vessel.81 The officers of the ATHOS I signed

this fabricated plan after the incident.82

Captain Markoutsis admits that the voyage plan given to the U.S. Coast Guard was

created after the oil spill, even though he represented to the Coast Guard that it had been

prepared before the vessel had left Puerto Miranda.83 The plan prepared after the incident

violated Tsakos’s own procedures, is unheard of in the shipping industry’s practice, and defeats

the entire purpose of a “plan.”84

Incredibly, even in the fabricated voyage plan prepared after the ATHOS I incident

(when the actual facts of the river transit were known in hindsight), the second officer used

incorrect figures for tidal height, controlling water depth, and vessel speed that were wildly

79 [TT Day 2 amended (Esplana) P. 144:11-14; Zotos Dep. Vol. II (5/15/07) P. 146:23-147:5].

80 [TT Day 27 (Daggett) P. 142:8-13; TT Day 31 (Stoller) P. 52:18-25].

81 [TT Day 30 amended (Reading of Caro Dep. designations) P. 191:11-195:2; Caro Dep. Vol. III (10/19/06) P.

23:12-24; 37:1-25; 38:6-14].

82 [TT Day 2 amended (Esplana) P. 177:10-20; TT Day 3 amended (Esplana) P. 17:25-18:13; TT Day 14 amended

(Markoutsis) P. 130:8-131:10; Ex. P-463 (Passage Plan Record); Ex. D-87A (TST Original Voyage Plan Pto.

Miranda to Paulsboro, NJ)].

83 [TT Day 14 amended (Markoutsis) P. 124:14-127:4; 130:8-131:23; 134:12-135:25].

84 [TT Day 29 (Anderson) P. 79:1-81:10; TT Day 16 amended (Johnson) P. 171:3-172:23; Ex. D-20 at pp. Athos

0717-0723].
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wrong, underscoring his documented incompetency in voyage planning.85 None of his squat

calculations was correct.86 The fabricated voyage plan erroneously reflected that the vessel

undertook a high-tide transit of the River and the Anchorage with a height of 6.2 feet above

MLLW, assumed a controlling depth of 46.2 feet, and called for an anticipated underkeel

clearance of 5.8 feet (1.77 meters) for the entire transit.87 It did not contain any information for

course, speed, or time for the portion of the voyage from Billingsport Range to the CARCO berth

through the Anchorage.88 It erroneously assumed a high-tide passage up the River, when in fact

the vessel had transited the entire River at or near dead low tide. The ATHOS I had almost six

feet less of a safety margin of underkeel clearance for the transit than what the vessel’s officers

apparently assumed.89 In reality, plaintiffs attempted to dock at near low tide and did not even

follow the requirements of their own error-riddled, post-accident plan.

A mandatory Coast Guard regulation, 33 C.F.R. § 157.455(b), which applied to the

ATHOS I as a single-hull tanker, required the master to, inter alia, prepare a comprehensive

voyage plan with an anticipated minimum underkeel clearance calculation for the vessel before it

departed and before it entered any port or place of destination:

157.455 Minimum under-keel clearance.

(a) * * *

(b) Prior to entering the port or place of destination and prior to getting

underway, the master of a tankship that is not fitted with the double

bottom that covers the entire cargo tank length shall plan the ship’s

passage using guidance issued under paragraph (a) of this section and

85 [TT Day 21 (Cole) P. 80:37-81:13; TT Day 27 (Daggett) P. 149:25-153:2; 160:7-25; TT Day 29 (Anderson) P.

84:2-85:5; TT Day 24 amended (Haley) P. 151:19-152:10; 159:10-24; Ex. D-010; TT Day 24 amended (Grenier) P.

97:2-25; 108:12-23; TT Day 31 (Stoller) P. 53:1-14; Ex. D-87A (Voyage Plan)].

86 [TT Day 25 (Bergin) P. 95:13-97:5; TT Day 27 (Daggett) P. 169:17-170:6].

87 [TT Day 24 amended (Haley) P. 147:20-149:14; TT Day 29 (Anderson) P. 84:2-87:5; Ex. D-87A (Voyage Plan)].

88 [Pinat Dep. Vol. II (10/17/06) P. 194:2-195:10].

89 [TT Day 24 amended (Haley) P. 151:19-152:10; TT Day 25 (Bergin) P. 103:15-104:13; TT Day 29 (Anderson) P.

84:6-85:12; TT Day 31 (Stoller) P. 54:7-11; 54:18-55:19; 55:24-57:3; TT Day 27 (Daggett) P. 169:1-16; Ex. D-1910

(Coast Guard Re-Interview of the Master); Exs. D-2013 and D-2015].
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estimate the anticipated under-keel clearance. The tankship master and

the pilot shall discuss the ship’s planned transit including the anticipated

under-keel clearance. An entry must be made in the tankship’s official log

or in other onboard documentation reflecting discussion of the ship’s

anticipated passage.90

The Tsakos Vessel Operation Procedures Manual at VOP-B-11A also required a “berth-to-berth”

voyage plan for the entire voyage from departure in Puerto Miranda to arrival at CARCO’s berth

to ensure that the ATHOS I had a safety margin of underkeel clearance for the passage to avoid

groundings and contact with submerged obstructions in coastal and inland waters.91

Other international conventions—including the Standards of Training Certification and

Watchkeeping for Seafarers (“STCW”), the International Convention for Safety of Life at Sea

(“SOLAS”), and International Maritime Organization (“IMO”) resolutions—likewise applied to

the ATHOS I and required voyage planning.92

These regulatory requirements for voyage planning are intended to identify hazards to

navigation and to avoid the risk of the vessel’s grounding or striking an uncharted object.93 The

ship’s master and officers had to consider all water depths that the vessel would encounter on the

intended voyage, taking into account predicted tidal heights, vessel squat, and other factors in

order to calculate the necessary anticipated underkeel clearance.94

The master and navigation officers of the ATHOS I violated 33 C.F.R. § 157.455(a) and

(b), the STCW, SOLAS, and Tsakos’s own company policy by failing to plan the vessel’s

90 [TT Day 24 amended (Grenier) P. 85:25-86:10; TT Day 24 amended (Haley) P. 146:12-147:19; TT Day 31

(Stoller) P. 49:7-50:20; TT Day 16 amended (Johnson) P. 186:4-22; 188:24-189:5].

91 [TT Day 2 amended (Esplana) P. 143:4-9; 144:3-10; TT Day 3 amended (Esplana) P. 16:23-17:24; TT Day 14

amended (Markoutsis) P. 130:4-7; TT Day 16 (Johnson) P. 188:24-189:19; Pantazatos Dep., Vol. I 02/07/08 P.

264:18-265:3; Ex. D-20 (TST Vessel Operations Procedures Manual); Ex. P-332 (Tsakos Shipping & Trading S.A.

Manuals)].

92 [TT Day 16 (Johnson) P. 192:18-194:5; TT Day 24 amended (Grenier) P. 68:10-77:12; TT Day 31 (Stoller) P.

40:7-12; 41:4-42:17; TT Day 16 amended (Johnson) P. 192:18-194:5; Ex. D-94 (Master’s Change of Command

Protocols); Ex. D-1296 (STCW as amended); Ex. D-2024A (Grenier Table 1–Applicable Statutes and Regulations)].

93 [TT Day 24 amended (Grenier) P. 84:3-86:18; 91:15-20; TT Day 24 amended (Haley) P. 147:13-19; TT Day 29

(Anderson) P. 77:3-25; TT Day 27 (Daggett) P. 141:3-6; 141:15-142:7].

94 [Caro Dep. Vol. III (10/19/06) P. 16:9-17:21; TT Day 16 amended (Johnson) P. 173:3-8].
36

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voyage in advance from berth to berth taking into account all the pertinent information, and by

failing to include updated and correct anticipated minimum underkeel clearance under the hull in

critical areas, failing to consider estimated times of arrival at critical points for tide heights and

flow, failing to set forth the details of the voyage plan, and failing to closely monitor and change

the plan.95 See Osprey Ship Mgmt., Inc. v. Foster, No. 1:05cv390, 2008 WL 4371376, at *26

(S.D. Miss. Sept. 18, 2008), aff’d, 387 F. App’x 425 (5th Cir. 2010) (finding a master negligent

in failing to “properly plan or make and keep himself adequately informed” and allowing the

vessel to stray from the channel and strike a submerged launchway). Plaintiffs’ egregiously

negligent violations of the mandatory voyage planning requirements increased the risk of hitting

the uncharted anchor and proximately caused the allision and the oil spill.

b. Plaintiffs negligently failed to accurately calculate and predict

the vessel’s underkeel clearance.

No document or record contains any anticipated underkeel clearance calculations done by

Captain Markoutsis before the November 26, 2004, transit.96 This failure to timely and correctly

calculate underkeel clearance proximately caused the allision with the anchor in Federal

Anchorage No. 9, where the pilot considered that a controlling depth of only 37 feet of water was

available for the transit of the ATHOS I.97

Indeed, the only existing calculations were the widely incorrect underkeel clearance

calculation found in the fabricated post-incident voyage plan and the figures exchanged between

the master and Tsakos’ General Manager Harry Hajimichael after the incident, when the

plaintiffs were trying to figure out how they struck the anchor.98

95 [TT Day 24 amended (Grenier) P. 95:1-99:18; 103:6-10; 108:6-23].

96 [TT Day 15 amended (Markoutsis) P. 20:13-22].

97 [TT Day 24 amended (Haley) P. 169:10-170:21].

98 [Exs. D-321, D-322, and D-324 (with translation), D-325 (with translation); TT Day 15 amended (Markoutsis) P.

44:21-46:22].
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The master and navigators aboard the ATHOS I erred in all respects, and their anticipated

underkeel clearance calculations after the allision were either wrong or non-existent.99 After the

incident, the master provided the U.S. Coast Guard with an underkeel clearance calculation of

5 feet 8 inches based upon a predicted height of 6.3 feet of tide, which is the equivalent of high

tide.100

Second Officer Caro erroneously based the underkeel clearance calculation in his postincident voyage plan on an incorrect predicted tide of 1.9 meters or 6.2 feet above charted depths

in the Baker Range.101 In fact, the vessel passed through the Baker Range at dead low tide when

the predicted height was 0.0 and the actual tide height was six inches below the charted water

depth.102 As a result of this error, the actual underkeel clearance for the vessel in the Baker

Range was 6 feet 8 inches less than he calculated.103 A proper calculation would have revealed

negative anticipated underkeel clearance for those areas in violation of the Tsakos 10% safety

margin and a significant risk of grounding.104

A mandatory Coast Guard regulation applicable to the operation of single-hull tankers, 33

C.F.R. § 157.455(a), requires the vessel owner to provide the master with written underkeel

clearance guidance concerning the factors of deepest navigational draft, anticipated controlling

depth (the shallowest depth that the vessel will encounter), and weather or environmental

conditions:

99 [TT Day 15 amended (Markoutsis) P. 14:14-15:25; TT Day 27 (Daggett) P. 149:25-151:20; 152:5-153:2; TT Day

29 (Anderson) P. 84:2-86:7; TT Day 25 (Bergin) P. 96:18-97:1; 102:5-23; 103:12-104:4; TT Day 24 amended

(Grenier) P. 95:17-96:8; 96:13-96:15; 100:25-101:16; 103:5-10; Exs. D-87A and D-1910].

100 [Ex. D-1910].

101 [TT Day 21 (Cole) P. 80:16-22].

102 [TT Day 21 (Cole) P. 80:23-81:9].

103 [TT Day 21 (Cole) P. 80:23-81:13].

104 [TT Day 24 amended (Haley) P. 155:6-11; 160:3-162:11; TT Day 25 (Bergin) P. 111:24-112:15; TT Day 31

(Stoller) P. 58:20-59:7].
38

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157.455 Minimum under-keel clearance.

(a) The owner or operator of a tankship, that is not fitted with a double bottom

that covers the entire cargo tank length, shall provide the tankship master with

written under-keel clearance guidance that includes –

1) Factors to consider when calculating the ship’s deepest navigational draft;

2) Factors to consider when calculating the anticipated controlling depth;

3) Consideration of weather or environmental conditions; and

4) Conditions which mandate when the tankship owner or operator shall be

contacted prior to port entry or getting underway; if no such conditions

exist, the guidance must contain a statement to that effect.105

Its companion provision, 33 C.F.R. § 147.455(b), requires the master to estimate the vessel’s

anticipated underkeel clearance.106

Proper anticipated underkeel clearance provides a margin of safety for a single-hull

tanker against the unknown obstructions and deficiencies in charting.107 The purpose of the

regulation is to eliminate the risk of striking an object or shoal and causing an oil spill.108

Plaintiffs’ unsafe and dangerously inaccurate calculations of anticipated under keel clearance

eliminated the required safety margin for the ATHOS I and proximately caused the allision with

the abandoned anchor and the resulting oil spill.109

c. Plaintiffs failed to consider anticipated controlling depths.

Both the U.S. Coast Pilot and the UK East Coast Pilot of the U.S. specifically distinguish

controlling depth from “project depth” and define “controlling depth” as the shallowest depth

105 [TT Day 24 amended (Grenier) P. 84:3-20].

106 [TT Day 24 amended (Grenier) P. 85:25-86:10; 103:6-10].

107 [TT Day 24 amended (Grenier) P. 91:15-23; TT Day 24 amended(Haley) P. 147:2-19; 170:22-171:9; TT Day 27

(Daggett) P. 141:3-6; 141:15-142:7].

108 [TT Day 27 (Daggett P. 141:20-142:2; TT Day 24 amended (Grenier) P. 86:11-18; 91:15-92:14; TT Day 29

(Anderson) P. 116:21-118:18; TT Day 14 amended (Markoutsis) P. 130:3-7].

109 [TT Day 29 (Anderson) P. 116:21-117:12; 118:6-18; TT Day 21 (Cole) P. 72:4-74:16; Ex. D 2015; TT Day 25

(Bergin) P. 123:23-124:4; 125:7-25; 126:12-21; TT Day 27 (Daggett) P. 194:1-195:2; TT Day 24 amended (Grenier)

P. 113:13-22; TT Day 12 amended (Bowman) P. 110:7-111:3; Ex. D-96; Ex. D-2013; Ex. D-2014; Ex. D-2015; Ex.

D-2016].
39

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within the confines of the entire channel.110 Tsakos failed to provide any guidance to the master

of the ATHOS I concerning the procedure to identify anticipated controlling depths and thereby

violated 33 C.F.R.§ 157.455(a), which specifically requires such guidance.111

The master and navigation officer of the ATHOS I further ignored the published

controlling depth information on the navigation charts before the incident.112 Plaintiffs were also

required to be fully aware of NOAA’s admonition in its U.S. Coast Pilot publication aboard the

ATHOS I, which warned that it cannot be emphasized too strongly that charts based on modern

surveys do not show all sea bed obstructions.113

The post-incident Tsakos voyage plan reveals that the master and second officer of the

ATHOS I based their after-the-fact calculations on an erroneous controlling depth of MLLW of

40 feet, an erroneous height of tide of 6.2 feet (high tide), and the erroneous assumption that

there would be 46.2 feet of available water throughout the Anchorage.114 Contrary to their

misconceptions, Pilot Bethel, the docking pilot, was aware of a charted 38 foot shoal in Federal

Anchorage No. 9 and assumed that only 37 feet of available water was available in Federal

Anchorage No. 9 for the transit, since the tidal height was one foot lower than predicted.115 Yet,

he never communicated this fact to Captain Markoutsis.116 Moreover, an Army Corps of

Engineers Channel Statement issued on January 30, 2004 set forth a controlling depth of 37 feet

110 [TT Day 24 amended (Haley) P. 156:21-157:8; Ex. D-6 at page 2373; TT Day 24 amended (Grenier) P. 84:3-

85:20; Ex. D-1108 at page CARPROD 23013].

111 [TT Day 24 amended (Grenier) P. 84:3-85:20; 101:25-102:16; TT Day 27 (Daggett) P. 138:5-23; 157:14-158:14;

Ex. D-234; Ex. D-20 at VOP B-13, pages 0728-0730].

112 [TT Day 27 (Daggett) P. 176:3-12; TT Day 24 amended (Grenier) P. 101:25-102:16; TT Day 24 amended

(Haley) P. 155:12-157:8; 158:5-22; 159:25-160:9; 161:13-162:11; TT Day 15 amended (Markoutsis) P. 8:8-9:8;

9:16-10:25; Ex. D-87A; Ex. D-8 at page 2603].

113 [Ex. D-1108 at page CARPROD 23014].

114 [TT Day 24 amended (Haley) P. 169:22-170:21; TT Day 25 (Bergin) P. 125:7-21; Ex. D-1910].

115 [TT Day 8 amended (Bethel) P. 7:5-9; 10:3-7; 64:22-65:1; TT Day 24 amended (Haley) P. 169:10-170:21; TT

Day 31 (Stoller) P. 62:1-24; 67:2-24; 69:13-70:2; 75:5-25; 76:18-24].

116 [TT Day 8 amended (Bethel) P. 71:1-9; 71:13-18].
40

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and depths as low as 36 feet for Federal Anchorage No. 9.117 Nevertheless, Captain Markoutsis

and navigators aboard the ATHOS I negligently failed to use 37 feet as the anticipated

controlling depth of water for the transit through the Anchorage.118

By failing to properly consider anticipated controlling depths and comply with Tsakos’

minimum anticipated underkeel clearance guidance, plaintiffs violated 33 C.F.R. § 157.455 (a)

and (b) and Tsakos’ safety management system procedures.119 Their erroneous assumptions,

miscalculations, and regulatory violations solely and proximately caused the allision.

d. Plaintiffs failed to properly consider tidal conditions and wait

for a safety margin at higher water.

By failing to consider tide and currents properly, the pilots, the master, and the crew of

the ATHOS I negligently violated 33 C.F.R. § 157.455, and Tsakos’s own procedures, and

transited through the Anchorage with an insufficient underkeel clearance and safety margin to

avoid the anchor. Their violations proximately caused the allision with the anchor at near low

tide.

On November 26, 2004, during the ATHOS I’s voyage up the Delaware River at low tide

with an ebb current flowing out of the River, NOAA’s tidal data revealed that the actual tide

was, in fact, running 0.8 to 1.1 feet below predicted levels.120 Strong winds out of the northwest

on November 25 and 26, 2004, as predicted in the UK Coast Pilot book aboard the ATHOS I,

caused the tidal height also to be lower than predicted.121

117 [Ex. D-1174; Ex. D-321].

118 [TT Day 24 amended (Haley) P. 169:10-170:21; TT Day 31 (Stoller) P. 62:1-24; 67:2-24; 69:13-70:3; 75:5-

76:24].

119 [TT Day 16 (Johnson) P. 187:5-25; TT Day 24 amended (Haley) P. 166:15-168:6; 169:10-170:21; TT Day 27

(Daggett) P. 135:10-136:12; 139:25-140:2].

120 [TT Day 21 (Cole) P. 60:20-61:4; TT Day 24 amended (Haley) P. 164:3-11].

121 [TT Day 21 (Cole) P. 49:7-18; TT Day 24 amended (Haley) P. 164:17-20; 165:10-22; Ex. D-46 (East Coast of

the United States Pilot Volume 11-9th Ed. 2003) at p. ATHOS 2445].
41

2418144-1

The high tides at Federal Anchorage No. 9 actually occurred at 12:48 hours on November

26, 2004 and at 01:06 hours on November 27, 2004. At these high tides, the actual tidal heights

in the Anchorage were 5.9 feet and 5.1 feet, respectively, above the MLLW charted depths.122

The tide reached a height of 2.3 feet above charted depths in Federal Anchorage No. 9 at 22:06

hours on November 26, 2004, and water depths in the Anchorage were 5.1 feet above charted

depths at maximum high tide, which occurred at 01:06 hours on November 27.123 The

ATHOS I’s officers and pilots failed to take these conditions into account and instead proceeded

up the river and into the Anchorage at near low tide.

Although he had a cell phone, River Pilot Teal never attempted to obtain information

about the actual height of the tide from NOAA’s PORTS System either before or during the river

transit.124 Astonishingly, he did not know that the actual tide height was lower than predicted on

the date of the incident.125 Had the master and Pilot Teal properly consulted the PORTS system,

they would have readily realized that the tides were lower than predicted and that they were

proceeding at low tide, rather than high tide as the master and navigation officer erroneously

assumed.126 The ATHOS I’s navigators could not have gotten it any more wrong, and they failed

to candidly admit their errors to the Coast Guard, instead representing in Coast Guard interviews

and in their fabricated post-incident “voyage plan,” that they had planned a high-tide approach

and had come in at a higher tide, which if true, would have avoided the anchor.

When Docking Pilot Joseph Bethel boarded the ATHOS I at 20:30-20:31 hours, the

vessel was about one and one-half miles south of Federal Anchorage No. 9 and 30-50 minutes

away from the CARCO terminal, the tidal current was ebbing (decreasing) at 0.5 knots, and the

122 [TT Day 21 (Cole) P. 69:18-70:18; 71:1-11; Ex. D-2015].

123 [TT Day 21 (Cole) P. 71:21-74:16; Ex. D-2015].

124 [TT Day 2 amended (Teal) P. 86:12-25].

125 [TT Day 2 amended (Teal) P. 87:1-4].

126 [TT Day 21 (Cole) P. 60:20-61:4].
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actual tidal height was 0.5 feet below the charted depths and 1.1 feet below the predicted tidal

height.127 The docking “window” established by the Docking Pilots Association “opened” at the

time of the start of the flood current at Billingsport Range. Bethel never consulted NOAA’s

Ports System to obtain real-time information about the actual height of the tide.128 Nor did he

calculate the predicted tide for the start of the flood current at Billingsport Range, the “trigger”

for the start of the docking-pilot window that he was applying. Instead, Bethel erroneously

assumed that the flood current would start at about 20:20 or 20:25 hours and that the tide would

rise from one to one and one-half feet above low tide by the time he entered the Anchorage.129

He did not check to confirm, or discuss his assumptions with the ship’s officers.

Contrary to Bethel’s erroneous assumption, however, the flood current was in fact shown

in the official NOAA data to start at Billingsport Range at 20:52 hours, 30 minutes later than

Bethel mistakenly believed, which was four minutes after the ATHOS I had already entered

Federal Anchorage No. 9, when the actual tide height was one foot lower than predicted and

when the water depths were 2.4 inches less than the charted depths.130 The ATHOS I

prematurely arrived in the Anchorage before the Docking Pilots Association’s window opened,

which should have been “a red flag” to the pilot not to continue onward into potential danger.

In an attempt to camouflage the fact that the ATHOS I entered the Anchorage at dead low

tide, plaintiffs have characterized the tide as “rising.” But they fail to consider Dr. Cole’s actual

tidal calculations. Dr. Cole testified that he calculated the tide level for the time the ATHOS I

entered the Anchorage to be .2 feet below the MLLW charted depths.131 He testified that after

127 [TT Day 8 amended (Bethel) P. 4:12-13; 5:19-22; 7:5-13; 8:25-9:3; 13:19-24; Day 21 (Cole) P. 66:16-68:10; Ex.

D-2013].

128 [TT Day 8 amended (Bethel) P. 66:11-24].

129 [TT Day 8 amended (Bethel) P. 9:21-10:7; 47:21-24; 72:6-14; 74:1-20; TT Day 21 (Cole) P. 69:10-17].

130 [TT Day 21 (Cole) P. 68:11-69:17; 71:12-73:22; TT Day 31 (Stoller) P. 78:22-79:9; Ex. D-2014; Ex. D-2012;

Ex. D-2016; Ex. D-2015].

131 [TT Day 21 (Cole) P. 71:13-72:23].
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the ATHOS I had already entered the Anchorage and was reportedly passing over the anchor

between 21:00 and 21:04 hours, the tide level was a mere 2.4 to 3.8 inches above MLLW.132

Tide levels of -.2 feet below and 2.4 to 3.84 inches above MLLW are in stark contrast to the tide

levels calculated for the other ships in the same docking window category that safely passed

through the Anchorage to get to the CARCO terminal. Had Captain Markoutsis and the

navigators properly considered the time and tides, the ATHOS I would have waited before

proceeding and would not have struck the anchor.133 Having no accurate tidal or current

calculations of his own, Captain Markoutsis had no means to check Bethel’s erroneous

assumptions. Instead, Captain Markoutsis blindly relied on what turned out to be dangerously

inaccurate information.

The plaintiffs’ own expert, Anthony Bowman, admits that the ATHOS I would not have

contacted the anchor if the ship had waited until the tide was just 1 foot 6 inches higher, even if

the anchor was standing “flukes up” as he hypothesizes.134 The tide would have risen by more

than 1 foot 6 inches in less than an hour after the vessel hit the anchor.135 By 22:06 hours on

November 26, 2004, the tide was 2.3 feet above the charted depths and was 5.1 feet above the

charted depths by 01:06 hours on November 27, 2004.136

The Guide to Port Entry 2003 / 2004 Edition (Volume 1), a publication referenced by the

second officer as having been used in preparing the post-incident Tsakos voyage plan, provided

that vessels calling at the CITGO Refinery, Paulsboro, New Jersey should transit the Delaware

132 [TT Day 21 (Cole) P. 74:20-75:11]).

133 [TT Day 25 (Bergin) P. 125:12-25; 126:12-21; TT Day 27 (Daggett) P. 190:15-191:18; 194:1-195:2;

Ex. D-196 at Athos 24524; Ex. D-2013; Ex. D-2014; Ex. D-2015; Ex. D-2016].

134 [TT Day 12 amended (Bowman) P. 21:13-22:8; 110:8-111:3].

135 [TT Day 21 (Cole) P. 71:21-74:16; Ex. D-2105].

136 [TT Day 21 (Cole) P. 69:18-25; 70:18; 71:1-11; 73:23; 74:5; Ex. D-2015].
44

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River on a rising tide so as to arrive off the CITGO dock two hours before high tide.137 The

Captain of the ATHOS I intentionally ignored the arrival recommendations set forth in that

publication.138 Had the ATHOS I followed the advice in the Guide to Port Entry, the ATHOS I

would have had an additional 41⁄2 feet of water as a safety margin during the transit through

Federal Anchorage No. 9 and would not have struck the anchor under any orientation scenario.139

Plaintiffs contend without support that they were entitled to violate mandatory United

States Coast Guard regulation 33 C.F.R. § 157.455 (a) and (b) and rely solely on non-binding

Mariners Advisory Committee (“MAC”) Transit Advisories to determine whether the vessel had

an adequate safety margin for the low tide transit up the Delaware River and through Federal

Anchorage No. 9. But plaintiffs’ own expert, retired Coast Guard Captain Gregory Adams,

confirmed that the MAC transit advisories did not relieve the master and pilot aboard the

ATHOS I of the requirement to fully comply with 33 C.F.R. § 157.455 (a) and (b).140 The MAC

advisories were non-binding recommendations based on normal tide and weather conditions.141

They did not trump or affect the actual conditions of the vessel’s transit. Plaintiffs and their

pilots failed to consider actual tidal conditions and to heed the warnings set forth in the very

MAC advisories upon which they purportedly relied.

e. Plaintiffs failed to consider the vessel’s squat.

Plaintiffs’ failure to properly calculate and consider the effects of squat proximately

caused the allision. Vessel squat is the increase in draft that a ship experiences as it displaces

137 [TT Day 15 amended (Markoutsis) P. 5:16-6:22; Ex. D-196 at page Athos 24524; Ex. D-87A at page Athos

10082].

138 [TT Day 15 amended (Markoutsis) P. 6:23-7:7; TT Day 27 (Daggett) P. 194:1-195:2; Ex. D-87A at p. Athos

10082].

139 [TT Day 27 (Daggett) P. 194:1-195:2; TT Day 12 (Bowman) P. 21:13-22:8; 110:5-111:1; Ex. D-196; Ex. D2013; Ex. D-2014; Ex. D-2015; Ex. D-2016].

140 [TT Day 3 amended (Adams) P. 95:16-97:3].

141 [TT Day 2 amended (Teal) P. 81:10-24; 87:1-4; TT Day 3 amended (Adams) P. 88:2-90:1; TT Day 24 amended

(Haley) P. 164:3-16; Ex. D-87A].
45

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water beneath it in proportion to the square of the ship’s speed and drops down (squats) deeper in

the water. The shallower the depth of water beneath the ship, the greater the squat.142 Ship’s

squat is an important factor that must be considered when calculating anticipated underkeel

clearance.143

Tsakos’s safety management system procedures required the master to fully analyze

squat and anticipated underkeel clearance.144 Additionally, regulations and conventions required

the navigators aboard the ATHOS I to consider the effects of squat before the start of the subject

voyage.145 There is no evidence that the officers of the ATHOS I, before the casualty,

considered squat to determine the depth of the vessel’s hull.

Even after the oil-spill incident occurred and “actual data” was available, the second

officer still miscalculated the ATHOS I’s predicted squat for the transit of the Delaware River by

basing it on the wrong vessel speed of 8.4 knots when the vessel’s speed was 10 knots during the

transit up through Billingsport Range, and he failed to make speed estimates by taking into

account the effect of predicted ebb currents, which actually increased the vessel’s speed through

the water and the amount of squat during the transit.146 The vessel’s failure to properly predict

vessel speed and squat made it impossible to accurately calculate anticipated underkeel

clearance.147

142 [TT Day 27 (Daggett) P. 153:3-20; 155:12-156:13; TT Day 25 (Bergin) P. 98:16-24; TT Day 24 amended

(Haley) P. 162:12-23].

143 [TT Day 15 amended (Markoutsis) P. 46:23-25; 48:3-25; 49:1-18; TT Day 27 (Daggett) P. 156:15-157:9].

144 [Ex. D-20 (Tsakos Vessel Operation Procedures Manual) at pp. Athos 0729-0730, ¶ 24 (“Navigating in Shallow

Waters”)].

145 [3 C.F.R. § 164.11 (p) (3); IMO Res. 893(21), ¶ 3.2.2.2; Ex. D-1201 (Navigation and Inspection Circular No. 2-

97 Change No. 1, 11/7/97) at Grenier 052, ¶ H. (2)].

146 [TT Day 27 (Daggett) P. 139:4-24; 149:25-151:21; 152:5-153:2; 156:6-12; 169:17-170:6; TT Day 25 (Bergin) P.

96:12-97:1; TT Day 15 amended (Markoutsis) P. 11:17-12:7; 14:14-23; TT Day 24 amended (Haley) P. 159:10-24;

Ex. D-87A].

147 [TT Day 27 (Daggett) P. 169:17-170:6; 177:14-178:11].
46

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Squat was also of special significance during the ATHOS I’s transit of Federal

Anchorage No. 9. Squat increases dramatically when a large ship is being pushed sideways, and

the closer the bottom of the hull is to the river bottom, the greater the squat effect.148 Captain

Markoutsis noticed a one-half degree list of his vessel to port when the two tugs were pushing it

sideways in the anchorage.149 The ATHOS I’s draft dramatically deepened on its port side as the

two tugs pushed it and caused the vessel to “heel” to port relative to the vessel’s centerline.150

This heel effect increased the vessel’s draft to a point where its hull was deep enough, regardless

of its purported draft, to hit the anchor. Id.

f. Plaintiffs failed to consider Tsakos’s own minimum underkeel

requirements.

Tsakos’s own requirements were for 10% anticipated underkeel clearance based on the

shallowest controlling depth of each area the vessel transited. Even assuming the vessel’s

purported draft was 36 feet 6 inches, this would have required a minimum clearance of 3 feet

6 inches.

Once they learned that the pilot was going to dock the vessel port side, rather than

starboard side to the berth, the officers of the ATHOS I needed to re-evaluate and re-assess their

passage plan with a new course line to the CARCO dock, but they failed to do so.151 A proper

reassessment would have alerted them that the controlling depth of Federal Anchorage No. 9 was

38 feet (based on the navigation chart aboard the vessel) and that the ship lacked a sufficient

safety margin of underkeel clearance.152 Had they done so, the course line would have shown

that the vessel was traversing a 38-foot charted spot in Federal Anchorage No. 9, giving the

148 [TT Day 15 amended (Markoutsis) P. 48:3-49:18].

149 [TT Day 15 amended (Markoutsis) P. 33:3-11; TT Day 4 (Zotos) P. 68:10-69:5].

150 [TT Day 26 (Petrie) P. 51:23-53:3].

151 [TT Day 24 amended (Grenier) P. 98:10-16; TT Day 25 (Bergin) P. 122:19-124:1].

152 [TT Day 24 amended (Haley) P. 166:21-168:6].
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vessel only one and one-half feet of underkeel clearance, with its purported draft and without

including the effect of squat, tide, and tugboat forces.153

The predicted underkeel clearance of the ATHOS I through Federal Anchorage No. 9 at a

charted depth of 38 feet was a “no-go area” based on Tsakos’s own safety management system

procedures.154 Captain Markoutsis acknowledged that his intention to dock under the

circumstances ignored Tsakos’s required 10% anticipated underkeel clearance requirement.155

He should have realized that he was endangering the vessel and was violating his company’s

own safety requirements unless he waited to proceed to the berth at higher water.156

g. Plaintiffs negligently failed to conduct a proper master-pilot

exchange.

The single-hull tanker regulation, 33 C.F.R. § 157.455(b), further requires the master to

conduct a “master-pilot exchange” with each boarding pilot to discuss minimum underkeel

clearance requirements, as well as the vessel’s voyage plan and its anticipated underkeel

clearance calculations.157 This thorough exchange of information and expectations between the

vessel’s master and the local pilots is also an entrenched and fundamental principle of good

seamanship.158 Because the voyage plan was admittedly prepared after the oil-spill incident, it

was impossible to discuss it with the pilots and complete the mandatory master-pilot

exchange.159 This violation of single hull tanker regulations was a proximate cause of the

allision

153 [TT Day 25 (Bergin) P. 122:19-124:1].

154 [TT Day 24 amended (Haley) P. 166:16-168:6; TT Day 25 (Bergin) P. 123:23-125:11; 125:7-126:21].

155 [TT Day 15 amended (Markoutsis) P. 21:25-22:9].

156 [TT Day 25 (Bergin) P. 125:7-21].

157 [Ex. D-2024A. Ex. D-1201; Ex. D-1235 at Grenier 0542-0543; TT Day 24 amended (Grenier) P. 85:21-86:10;

86:19-87:6; TT Day 24amended (Haley) P. 146:12-147:1; 149:15-150:4; 168:7-12; TT Day 31 (Stoller) P. 49:21-

50:20; TT Day 3 amended (Adams) P. 95:16-96:24].

158 [TT Day 2 amended (Teal) P. 94:1-22].

159 [TT Day 24 amended (Haley) P. 150:5-17; TT Day 24 amended (Grenier) P. 100:25-101:16; TT Day 27

(Daggett) P. 139:25-140:23; TT Day 25 (Bergin) P. 95:13-96:16].
48

2418144-1

Additionally, a general navigation regulation, 33 C.F.R. § 164.11, requires the master to

inform the pilot of the vessel’s draft, maneuvering characteristics, peculiarities, and

circumstances that may affect its safe navigation and must ensure that the pilot knows the current

velocity and direction and the tidal state for the intended transit.160

Captain Markoutsis admitted that it was his job to know all the available depth

information before the passage to determine any potential hazards for his vessel.161 By failing to

plan the voyage or calculate the vessel’s underkeel clearance before the pilots boarded, however,

the master could not carry out his continuing obligation to determine whether the pilots’

recommendations and intentions were safe or correct.162

(i) No master-pilot exchange with the River Pilot.

In direct violation of 33 C.F.R. § 157.455(b), the master had no discussion with River

Pilot Teal about the voyage plan that the ship was required to complete.163 Teal was not given

copies of any ship’s documents other than the pilot card, and he never saw a voyage plan while

aboard the vessel.164 The master admitted that he had not even seen or checked any voyage plan

before the incident.165

Pilot Teal testified that the master had no discussion with him about calculations of the

minimum anticipated underkeel clearance for the river transit that the ship was required to

perform under 33 C.F.R. § 157.455(b).166 In an interview with the U.S. Coast Guard on

December 2, 2004, the master confirmed that he did not discuss underkeel clearance for the

transit with either Pilot Teal or Pilot Bethel.

160 [TT Day 24 amended (Grenier) P. 92:19-93:7].

161 [TT Day 14 amended (Markoutsis) P. 14:7-14:19].

162 [TT Day 24 amended (Grenier) P. 100:11-101:20].

163 [TT Day 24 amended (Grenier) P. 96:21-97:1; TT Day 27 (Daggett) P. 142:8-19; TT Day 31 (Stoller) P. 52:18-

53:14].

164 [TT Day 2 amended (Teal) P. 73:1-11].

165 [TT Day 15 amended (Markoutsis) P. 7:8-25; 9:1-10:24].

166 [TT Day 2 amended (Teal) P. 76:25-77:19; 101:17-103:1].
49

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Nor did the master and Pilot Teal discuss squat or the predicted or actual tidal heights and

currents that the ship would encounter during the river transit.167 Their failure to do so violated

33 C.F.R. § 157.455(a) and (b) concerning underkeel clearance and 33 C.F.R. § 164.11(l) and

(n), which require the master to ensure that persons directing the movement of the vessel know

the tidal state and the current velocity and direction for the area to be transited, and Reg. AVIII/2, Part 3-1, Para 49 of the STCW Convention.168 Pilot Teal also was never informed that

the ship took on additional ballast water after he boarded.169 That failure violated 33 C.F.R.

§ 164.11(k), which required the master to ensure that the pilot was informed of the vessel’s draft

and any factors influencing it.170

The master also admitted that the ATHOS I was not equipped with the wheelhouse poster

required by single-hull tanker regulation 33 C.F.R. § 157.450.171 It would have provided Pilot

Teal with information on specific squat characteristics, underkeel clearance, maximum bow

squat, and increases in draft at various speeds, even though the master failed to provide that

information.172 The failure to have the required single-hull tanker wheelhouse poster was a

violation of 33 C.F.R. § 157.450.173

Had a proper master-pilot exchange occurred during the river transit, any reasonably

competent pilot would have immediately realized that the ship’s assumptions and calculations

were completely erroneous for a transit beginning at 1220 hours on November 26th, that his and

the master’s own assessment of the timing of the transit was in error, and that the transit should

167 [TT Day 2 amended (Teal) P. 76:9-12].

168 [Exs. D-1236 and D-2024A].

169 [TT Day 2 amended (Teal) P. 89:6-8.]

170 [Ex. D-2024C (Grenier Table 3); TT Day 24 amended (Grenier) P. 107:7-22; TT Day 24 amended (Haley) P.

152:11-153:6; TT Day 31 (Stoller) P. 62:1-24].

171 [TT Day 14 amended (Markoutsis) P. 114:1-25; Ex. D-436 (Email from master to Tsakos dated Nov. 22, 2004

asking for the poster)].

172 [TT Day 17 amended (Johnson) P. 13:10-15:25; Ex. D-1212 (the required form of the special single-hull tanker

wheelhouse poster)].

173 [TT Day 24 amended (Grenier) P. 82:21-83:21; Ex. D-2024C].
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be delayed for approximately five hours to coincide with the next high tide.174 This simple and

brief exchange of information that the regulation requires would have sounded alarms in time to

avoid the casualty. Instead, the navigators’ fault, negligence, and violations of the mandatory

Coast Guard regulations detailed above resulted in the vessel’s unnecessarily undertaking the

river transit with the least possible underkeel clearance and margin of safety and the maximum

possible risk of grounding or contact with an unknown obstruction, the very risk that the

applicable regulations were intended to avoid.175 Plaintiffs attempt to no avail to minimize the

effects of their multiple statutory violations during the River transit. Their violations were

serious and set in motion the cascade of errors that resulted in the oil spill.

(ii) No master-pilot exchange with Docking Pilot.

The master and Pilot Bethel likewise had no discussion about the voyage plan that the

ship was required to complete and discuss with him under 33 C.F.R. § 157.455(b).176 Bethel was

not shown copies of any ship’s documents other than the pilot card, and he never saw any voyage

plan while aboard the vessel.177 The pilot card contained no information whatsoever concerning

a voyage plan, tide or current calculations, or underkeel clearance calculations.178 These failures

made it impossible for the master to satisfy his separate obligation to discuss his plan and his

anticipated underkeel clearance calculations with the Pilot Bethel as 33 C.F.R. § 157.455(b)

required.

In addition, the master never informed Bethel about the minimum underkeel clearance

restriction of 10% of the vessel’s draft that the ATHOS I was required to maintain according to

174 [TT 27 (Daggett) P. 180:17-183:6; Exs. D-1415A, D-1424, and D-1425 (Daggett Tables); TT Day 31 (Stoller) P.

59:15-61:25; TT Day 24 amended (Haley) P. 149:15-164:2; TT Day 25 (Bergin) P. 120:14-121:9].

175 [TT Day 27 (Daggett) P. 141:3-142:2; TT Day 31 (Stoller) P. 59:1-14].

176 [TT Day 8 amended (Bethel) P. 72:18-20].

177 [TT Day 8 amended (Bethel) P. 29:15-30:19; 72:15-17; TT Day 15 (Markoutsis) P. 30:8-11; Markoutsis Dep. P.

429:12-430:3].

178 [Ex. D-015 (pilot card); TT Day 16 amended (Johnson) P. 210:21-25].
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the guidance that Tsakos provided to the ship under 33 C.F.R. § 157.455(a) in its official Vessel

Operations Procedure Manual.179 The master was required to inform him about this restriction

under 33 C.F.R. § 157.455(b). The master admitted that a water depth of 38 feet made it

impossible for the ship to maintain a 10% or even a 5% minimum underkeel clearance.180

Lacking knowledge of the Tsakos restriction, the docking pilot had no reason to evaluate and

advise the master whether the ship could satisfy it based on the depths in Federal Anchorage No.

9 and the state of the tide.181

The master and Pilot Bethel had no discussion of the predicted, assumed, or actual tidal

heights for the transit through Federal Anchorage No. 9, and Bethel never saw any tide

calculations done by the ship’s crew.182 Despite having a cell phone, Bethel did not obtain any

information about the actual height of the tide from the NOAA’s PORTS System or any other

source.183 Although he claims to have assumed that the actual tides were one foot lower than

predicted and that the tide would rise from one to one and a half feet above low tide by the time

that the ship entered the Anchorage, Bethel never discussed that assumption with the master.184

Bethel never told the master that the transit would occur at or near the time of predicted low

tide.185

Both Bethel and the master had the authority to wait for a higher tide before entering

Federal Anchorage No. 9.186 Bethel testified that the decision on when to enter Federal

Anchorage No. 9 was his alone, subject only to being overruled by the master, and that he had

179 [TT Day 8 amended (Bethel) P. 71:25-72:2].

180 [TT Day 15 amended (Markoutsis) P. 21:25-22:25].

181 [TT Day 25 (Bergin) P. 122:19-128:15; TT Day 24 amended (Haley) P. 166:16-169:9; TT Day 31 (Stoller) P.

68:1-71:4].

182 [TT Day 8 amended (Bethel) P. 71:1-18; 73:10-16].

183 [TT Day 8 amended (Bethel) P. 66:11-24].

184 [TT Day 8 amended (Bethel) P. 10:3-7; 72:6-14; 74:1-16].

185 [TT Day 8 amended (Bethel) 71:13-18].

186 [TT Day 8 amended (Bethel) P. 79:16-80:6; TT Day 15 amended (Markoutsis) P. 21:6-10].
52

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the authority to depart from the Docking Pilot Guidelines if necessary for safety.187 Without a

proper master-pilot exchange, however, neither Captain Markoutsis nor Pilot Bethel could make

a meaningful decision about safety by considering the tides.

Although he had never piloted a ship through Federal Anchorage No. 9 at dead low tide,

but instead at times no earlier than three hours before high tide (when the tide would be at least

half way to high tide), Bethel never disclosed that fact to the master of the ATHOS I.188 Indeed,

Bethel had piloted at least 15 ships to the CARCO terminal before the ATHOS I, and the arrival

of every one of those ships was timed to occur no earlier than three hours before high tide.189

Had the ATHOS I properly planned its voyage and timed its arrival at the Anchorage to provide

for a safe underkeel clearance at a time of the tide consistent with all of the other vessels that

Bethel piloted, the ATHOS I would have missed the anchor under either anchor-orientation

scenario.190

Also in violation of Federal regulations, the master never told Pilot Bethel that the ship

had taken on additional ballast water during the upriver transit.191 Bethel testified that because

more ballast necessarily increased the vessel’s draft, he should have been informed.192 This

failure to communicate violated another mandatory regulation, 33 C.F.R. § 164.11(k), which

required the master to ensure that the pilot was informed of the vessel’s draft and any factors

influencing it.193

The master and pilots were all at fault, and the ship and plaintiffs bear the ultimate

liability under maritime law. The mere presence of a pilot on board the ship does not relieve the

187 [TT Day 8 amended (Bethel) P. 77:21-78:12].

188 [TT Day 8 amended (Bethel) P. 4:14-16; 52:23-25; 53:12-18; 54:17-55:4; 55:13-55:25; 59:14-60:24].

189 Id.

190 [TT Day 21 (Cole) P. 73:2-74:16; Ex. D-2015; TT Day 25 (Bowman) P. 110:8-111:3].

191 [TT Day 8 amended (Bethel) P. 72:21-23].

192 [TT Day 8 amended (Bethel) P. 72:24-73:9].

193 [Ex. D-2024C (Grenier Table 3); TT Day 31 (Stoller) P. 62:1-24].
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vessel’s master from his responsibility and obligation for the safety of the vessel. The Oregon,

158 U.S. 186, 195, 15 S. Ct. 804, 39 L. Ed. 943 (1895); Osprey Ship Mgmt. Inc. v. Foster, No.

08-61125, 387 F. App’x 425, 433 (5th Cir. 2010). Both the docking pilot and the master bear

responsibility for bringing a ship safely through a channel to a berth. See Complaint of Nautilus

Motor Tanker Co., Ltd., 862 F. Supp. 1260, 1274 (D.N.J. 1994), aff’d, 85 F.3d 105 (3d Cir.

1996); Delta Transload, Inc. v. M/V NAVIOS COMMANDER, 818 F.2d 445, 451, n.17, 1988

A.M.C. 1155 (5th Cir. 1987).

Under the STCW in effect on November 26, 2004, a pilot’s “presence on board does not

relieve the master or the officer in charge of the navigational watch from their duties and

obligations for the safety of the ship.” [STCW, ’78 as amended, Reg. A-VIII/2, Part 3-1,

paragraph 49] (emphasis added). Before the incident, plaintiffs themselves specifically

instructed the captain of the ATHOS I that a pilot’s “presence on board does not relieve the

Master or Officer in charge of the watch from their duties and obligations for the safety of the

ship.”194 Plaintiffs required Captain Markoutsis to “take over for the pilot when he deem[ed]

necessary” and to “take any appropriate action to ensure the vessel’s safe transit.”195

The fault of a compulsory pilot like Howard Teal in causing a collision is imputed to the

vessel in rem, which is liable for the damage caused. Homer Ramsdell Transp. Co. v. La

Compagnie Generale Transatlantique, 182 U.S. 406, 413, 21 S. Ct. 831, 45 L. Ed. 1155 (1901);

The China, 74 U.S. 53, 64, 19 L. Ed. 67, 7 Wall. 53, 2002 A.M.C. 1504 (1868); Probo II London

v. Isla Santay MV, 92 F.3d 361, 365, 1997 A.M.C. 657 (5th Cir. 1996); Evans v. United Arab

Shipping Co. S.A.G., 4 F.3d 207, 217-18, 1993 A.M.C. 2705 (3d Cir. 1993). If the compulsory

pilot’s fault alone causes the collision, the shipowner will not be liable in personam, but if the

194 [Ex. D-20 (Tsakos Vessel Operation Procedures Manual), P. 0708, ¶ No. 2 “Responsibility” (emphasis added)].

195 Id. at 0708, ¶ No. 2 “Responsibility”; id. at 0730, ¶ No. 2.4 “Under keel clearance.”
54

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negligence of the master or crew also contributes to the collision, then in addition to the vessel’s

liability in rem the shipowner is also liable in personam. Id.; Smith v. Condry, 42 U.S. 28, 35-36,

11 L. Ed. 35 (1843); Avondale Indus., Inc. v. Int’l Marine Carriers, Inc., 15 F.3d 489, 492-93,

1994 A.M.C. 1555 (5th Cir. 1994). “Even in the case of the compulsory pilot . . . the shipowner

may still be liable in personam if found somehow at fault.” Evans, 4 F.3d at 218; see also

Osprey Ship Mgmt., Inc. v. Foster, No. 1:05CV390, 2008 WL 4371376, at *29 (S.D. Miss.

Sept. 18, 2008), aff’d, No. 08-61125, 387 F. App’x 425 (5th Cir. 2010) (finding a compulsory

pilot 50% at fault and the vessel’s master 50% at fault in proximately causing damages that the

vessel sustained when it allided with a submarine launchway).

A shipowner is also liable for the negligent acts of a voluntary or non-compulsory pilot

like Joseph Bethel, the docking pilot who was aboard the ATHOS I. See Evans, 4 F.3d at 217-18

(“Where the pilot is taken at the discretion of the shipowner, the case for a master-servant

relationship is stronger and the owner may be held to answer for the torts of the pilot.”). A

voluntary or non-compulsory pilot aboard a vessel is the servant of the vessel owner. See

California ex rel. Dep’t. of Transp. v. S/T Norfolk, 435 F. Supp. 1039, 1046 and n.2 (N.D. Cal.

1977); In re Arb. Between Transportes del Este Navegaceon, S.A., 1990 A.M.C. 1058, 1066

(Feb. 13, 1990) (Berg, Healy & Loesberg, Arb.); Cooke, et al., Voyage Charters, ¶ 5.61, at

p. 121 (3d ed. 2007) (“Pilots and tugboats are normally regarded as agents of the owner for the

purpose of navigating the vessel in restricted waters, whether pilotage is compulsory or not, and

errors in navigation by a pilot (or a tug) are thus generally regarded as attributable to the

owners.”); id. at ¶ 5.92, at p. 130 (“The charterer has no liability where the effective cause of the

loss is not the unsafety of the port or place but rather the negligence of the master, owner or his
55

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servants or agents, among which are included, in the absence of special provision to the contrary,

tugs and pilots.”)

As discussed above, the master of the ATHOS I and both pilots failed in their

responsibilities to conduct master-pilot exchanges concerning voyage planning, underkeel

calculations, and tidal information that were necessary for the safe navigation of the ship and the

avoidance of the oil spill, and they violated fundamental principles of good seamanship and

mandatory Coast Guard regulations for single-hull tankers.196 The negligence of River Pilot Teal

and Docking Pilot Bethel is imputable to plaintiffs.

The ATHOS I incident is a textbook example of the consequences of a failed master-pilot

exchange that put the vessel at high risk. The required master-pilot exchange between the master

and the docking pilot represented the last clear chance to prevent the oil spill.197 Plaintiffs’

negligent failure to obey the mandatory Coast Guard regulations resulted in a transit through

Federal Anchorage No. 9 when the vessel had the least possible underkeel clearance as a margin

of safety and the maximum possible risk of contact with a unknown obstruction—the very risk

that the regulations were intended to avoid.198 No closer or more direct nexus between

regulatory violations and the oil spill could exist.

Courts and arbitrators have repeatedly refused to impose liability upon a charterer such as

CARCO for alleged breach of a safe-port or safe-berth obligation where the vessel’s master or

pilot failed to navigate safely under the circumstances in view of the tide or current confronting

the vessel. The designated port or berth is safe, and a charterer satisfies a warranty, when it is

possible for the vessel to avoid the danger through the exercise of good navigation and

196 [TT Day 24 amended(Grenier) P. 107:19-25; 108:1; TT Day 25 (Bergin) P. 120:10-24; TT Day 31 (Stoller) P.

59:15-61:11; Ex. D-2024C (Grenier Table 3)].

197 [TT Day 31 (Stoller) P. 67:2-24].

198 [TT Day 24 amended (Grenier) P. 113:13-22; TT Day 31 (Stoller) P. 59:1-14].
56

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seamanship. And a charterer has no liability under a safe-port/safe-berth clause where the

vessel’s poor seamanship or failure to maintain a proper underkeel clearance or draft solely

causes the casualty:

• In re Arb. Between Delphina Tanker Corp. and Axel Johnson Energy Corp. (M/T

Delphina), 1999 WL 34976573, at *3, S.M.A. Award No. 3508 (Feb. 5, 1999)

(Nelson, Elias & Mordhorst, Arbs.) (a vessel that struck an uncharted rock

obstruction while attempting to dock took the risk of navigation and could have

avoided the dangers of the berthing maneuver if carried out with extreme caution

and sound seamanship);

• In re Marbulk Shipping, Inc. (M/V Bahama Spirit), 2004 WL 5658898, at *6,

S.M.A. Award No. 3849 (June 4, 2004) (Berg, Wiswell & Martowski, Arbs.) (a

vessel’s striking an uncharted object and grounding resulted solely from

imprudent navigation by the pilot and the master);

• In re Arb. Between Sunrise Shipping Company S.A. (S.T. Michael C. Lemos and

Amerada Hess Shipping Corp., 1983 WL 825073, at *11, S.M.A. Award No.

1906 (Nov. 7, 1983) (Zubrod, Berg & Nelson, Arbs.) (a vessel grounded due to

errors of navigation by the pilot; the charterer furnished a safe port/berth

according to its responsibility under the charter party);

• In re Arb. Between PHS Van Ommeren NV and Jno. McCall Coal Export Corp.,

1989 WL 1646306, at *7-9, S.M.A. No. 2571 (May 26, 1989) (Berg, Nelson &

Mordhorst, Arbs.) (the charterers provided a safe berth with a depth that

fluctuated with the tide and prevailing winds; the damage to the vessel’s hull that

occurred when it stranded “was the end result of the Master’s and Pilot’s
57

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negligence in attempting to berth” with insufficient underkeel clearance at a time

when the water level was decreasing with an ebb tide);

• Cook Inlet Pipe Line Co. v. American Trading and Production Corp., 1977

A.M.C. 160, 165-66 (S.D.N.Y. 1976) (no breach of the safe-berth clause occurred

where the master and pilot of the vessel were negligent in miscalculating the time,

direction, and force of the maximum ebb current and in failing to await a change

in tidal conditions before attempting to depart from the terminal);

• In re Arb. Between Petroleum Transport, Inc. and Texaco Panama, Inc., 1974

WL 335622, at *7-9, S.M.A. No. 896 (Oct. 31, 1974) (Ottaway, Berg & Sauer,

Arbs.) (the grounding of the vessel resulted from an error in navigation while

attempting to unberth from the Texaco facility in Pointe-a-Pierre, Trinidad, where

during previous years three longer ships with deeper drafts had “departed the

berth at or near high water while the ‘PYRGOS’ departed about one hour prior to

low water,” where “the Master could have done more to satisfy himself that the

‘PYRGOS’ could safely load her cargo and then unberth at near or low tide,” and

where “[h]e need not have undocked at about the time of low water; this was a

matter in which he could exercise his own discretion and for which he had sole

authority.”);

• In re Arb. Between Pac. Logistics (M/T Halekulani) and Mobil Tankers Ltd., 1981

WL 640686, at *4, S.M.A. No. 1633 (Dec. 17, 1981) (Kalaidjian, Brown &

Bauer, Arbs.) (denying a claim for damages associated with a vessel’s grounding,

noting that the safe-berth provision was not an unconditional warranty, that the

master went ashore without obtaining information on tidal conditions or
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determining the tidal stage, and that if the vessel had current tidal tables or had

obtained tidal information from the Coast Guard, the insufficient depth of the

anchorage would have been discovered before the grounding); and

h. The allision was a direct, proximate, and inevitable

consequence of plaintiffs’ poor navigation, bad seamanship,

and flagrant regulatory violations.

The master and pilots of the ATHOS I negligently navigated the vessel and attempted to

dock at near low tide, instead of waiting for higher water. Frescati, Tsakos, the vessel’s officers

and crew, and the river and docking pilots aboard the ATHOS I utterly and completely

disregarded multiple mandatory domestic and international marine safety regulations that were

intended to prevent the very type of casualty that occurred. The ATHOS I incident was no

“accident” at all.

3. Plaintiffs breached their non-delegable duty to maintain a seaworthy

vessel in good repair and with a competent crew.

The ATHOS I was unseaworthy in a multiple of ways, including a malfunctioning ballast

system, a deficient maintenance, record-keeping, and safety system required to maintain and

repair the vessel’s equipment in good order, and an ill-trained and incompetent crew. These

unseaworthy conditions directly resulted in the allision.

In addition to negligence, an unseaworthy condition of a vessel can be a contributory and

proximate cause of an accident. See Hercules Carriers, Inc. v. Claimant State of Fla., Dep’t of

Transp., 768 F.2d 1558, 1566 (11th Cir. 1985). “The vessel owner has a nondelegable

responsibility to use diligence to make its ship seaworthy which includes proper selection and

training of the ship’s crew.” In re Complaint of Waterstand Marine, Ltd., No. 87-1516, 1988

WL 78776, at *11, 1991 A.M.C. 1784 (E.D. Pa. July 26, 1988). Unseaworthiness may result

from an incompetent crew or from improper maintenance of the vessel’s equipment. Hercules
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Carriers, Inc., 768 F.2d at 1566. Here the Voyage Charter, Part II, paragraph 1 contains a

seaworthiness warranty that spans the entire voyage of the ATHOS I.199 See Mobil Shipping &

Transp. Co v. Wonsild Liquid Carriers, Ltd., 190 F.3d 64, 66, 1999 A.M.C. 2705 (2d Cir. 1999)

(under the charter party contract the ship owner warranted a seaworthy vessel).

As in this case, a vessel may be rendered unseaworthy when the master and crew

regularly fail to follow rules and regulations applicable to navigation. See Hercules, 566 F.

Supp. at 976. The ship must be staunch and strong and well equipped for the intended voyage,

with a competent crew and skilled master. In re Complaint of Waterstand Marine, Ltd., No. 87-

1516, 1988 WL 78776, at *13, 1991 A.M.C. 1784 (E.D. Pa. 1988).

In Waterstand Marine, this Court held that a vessel piloted by Howard Teal (the same

River Pilot who was aboard the ATHOS I on November 26, 2004) was unseaworthy when it

struck an electric utility tower in the Delaware River. 1988 WL 78776, at *13, 1991 A.M.C. at

1799. As this Court found, the ship was unseaworthy because “both pilot Teal and Captain

Siderakis were incompetent regarding the use of ARPA [Automatic Radar Plotting Aid]. This

incompetence was due to petitioners’ failure to fulfill their duty to man their ships with a fully

trained crew.” Id., 1991 A.M.C. at 1801. The Waterstand court denied the ship owner’s request

to limit liability, upon concluding that the ship’s negligence and/or unseaworthy conditions bore

a substantial causal relationship to the collision. Id., 1991 A.M.C. at 1799.

The test of seaworthiness also requires the vessel to be reasonably fit to carry the cargo

that she has undertaken to transport. See Mobil Shipping and Transp. Co. v. Wonsild Liquid

Carriers, Ltd., 190 F.3d 64, 69, 1999 A.M.C. 2705 (2d Cir. 1999); Atlantic Banana Company v.

M/V Calanca, 342 F. Supp. 447, 452, 1972 A.M.C. 880, 886 (S.D.N.Y. 1972), aff’d, 489 F.2d

752 (2d Cir. 1974). Particularly relevant to the ATHOS I matter—a heightened standard for

199 [Ex. D 606 at ¶ 1, at CARPROD 00535]. See also [Ex. D-606, ¶ 19, at CARPROD 00536].
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determining seaworthiness applies when the vessel is carrying a hazardous liquid cargo such as

oil and when a spill may adversely affect the environment. See Mobil Shipping, 190 F.3d at 68-

69 (“In this environmentally-sensitive era, consideration of the potential environmental impact of

a disaster comports with modern notions of what goes into the ‘seaworthiness’ calculus.”).

“Common sense counsels that ‘safe’ transport encompasses not only the vessel’s ability to

protect the cargo’s integrity, but also its ability to transport the cargo without threatening the

environment.” Id. at 69. The ATHOS I’s cargo of crude oil in a single-hulled tanker mandates a

heightened standard for determining the vessel’s seaworthiness.

Mere certification of the vessel by a classification society or a foreign government does

not establish that a ship is seaworthy or that the shipowner is not negligent. In re Complaint of

Ta Chi Navigation (Panama) Corp., S.A., 574 F. Supp. 418, 428, 1984 A.M.C. 985 (S.D.N.Y.

1983). This is because while “the shipowner, on paper follows the . . . rules and

recommendations, the actual practice of the company was” that it does not. In re Hercules

Carriers, Inc., 566 F. Supp. 962, 974 (M.D. Fla. 1983), aff’d, 768 F.2d 1558 (11th Cir. 1985).

Moreover, an ISM audit of a company’s safety management system or a vessel audit by Lloyd’s

Register is not a guarantee that non-conformities or negligent actions by vessel personnel or the

company will not occur in the future.200

a. Plaintiffs failed to maintain the ballast systems of the ATHOS I

in good repair, which rendered the vessel unseaworthy.

The ATHOS I was unseaworthy because of the seriously deteriorated and unrepaired

condition of its ballast system, which caused the ship’s personnel to be unable to determine the

amount of ballast aboard the vessel during the voyage. Coast Guard regulations, 33 C.F.R.

§ 160.215 and 33 C.F.R. §§ 151.2041 and 2045, require the vessel to report to the Coast Guard

200 [TT Day 34 amended (Mitchell) P. 34:7-37:2].
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anything that affects the seaworthiness of the vessel, such as problems and defects in the ship’s

ballast system.201 Taking on ballast changes the draft of the vessel, which is critical information

for the ship’s navigation.202

The ATHOS I’s ballast system was a “U” type with short branch lines leading from the

main line to each ballast tank.203 To add ballast to any tank, the operator must pressurize the

entire ballast line running through all the tanks and use remotely controlled hydraulic valves to

direct ballast into specific tanks.204 If the ballast line has a hole in it or if a valve to another tank

is open, leaking, or not fully closed, ballast water may be unknowingly and unintentionally

added to the tank where the hole or open valve is located.205

The ballast system of the ATHOS I had been in disrepair since May 5, 2004, when a

Tsakos superintendent had inspected it and documented in a Tsakos Assessment Report that the

system was broken and in need of repairs.206 The ATHOS I had entered the Dalian Shipyard on

April 3, 2004, and left the shipyard for sea trials on May 3, 2004.207 It left 11 days earlier than

scheduled and without completing the following shipyard repair items: (1) broken ballast valve

position indicators; (2) leaking ballast lines; (3) inoperable ballast tank and draft gauging system;

and (4) hydraulic ballast valves and actuators.208 The list placed Tsakos on notice that the

ATHOS I had serious deficiencies in its ballast system.209

201 [TT Day 31 (Stoller) P. 46:12-47:1].

202 [TT Day 3 amended (Esplana) P. 15:5-7; TT Day 5 amended (Zotos) P. 16:9-18:10].

203 [TT Day 5 amended (Zotos) P. 56:12-57:15; Ex. D-145 (Diagram of Cargo & Ballast Pipe – Date Drawn

01/15/82)].

204 [TT Day 4 amended (Zotos) P. 61:7-63:16].

205 [TT Day 5 amended (Zotos) P. 65:3-67:8].

206 [TT Day 5 amended (Zotos) P. 80:20-81:4; Bartzis Dep. Vol. I (10/04/07) P. 66:13-67:24; 71:6-24].

207 [TT Day 17 amended (Ragousis) P. 39:17-40:17; Ex. D-313 (Athos 34333, ¶¶ 10 and 14)].

208 [TT Day 17 amended (Ragousis) P. 41:6-54:12; Ex. D-446 with translation; Ex. D-316 at p. Athos 034658, ¶

073; Ex. D-316 at page Athos 034655, ¶ 16; Ex. D-316 at p. Athos 034657, ¶ D050); Ex. D-316 at p. 034657,

¶ D0531; Ex. D-151].

209 [TT Day 31 (Stoller) P. 31:25-35:7].
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A series of Greek e-mails in November 2004 documented the ongoing problems with the

ATHOS I’s ballast system, including valves that were opening and closing, leaks, and a report

that the ship was incapable of pumping off some 100 to 200 tons of ballast due to the system’s

deteriorated condition.210 The ballast valve position indicators and ballast tank fixed gauging

system were also in disrepair and inoperable before the oil-spill incident.211

On November 13, 2004, just 13 days before the oil spill, Captain Markoutsis sent an email to the Assistant Manager of the Tsakos Quality and Safety Department, Vassilis Iliopoulos,

documenting the deteriorated condition of the ATHOS I by listing outstanding maintenance and

repair items and begging Tsakos to take urgent steps to effect repairs to the ballast system and

other critical systems aboard the vessel. The Captain took 19 photographs documenting the

many problems, which he sent to the Tsakos office and saved on the ship’s computer, but they

are allegedly “missing” and have never been produced in this lawsuit.212

Additional e-mails sent to Tsakos on November 22, 2004, just four days before the

incident, continued to detail repair items relating to the ballast system. These deficiencies, which

were deteriorating on a daily basis, included: (1) ballast valves that opened and closed on their

own; (2) the inability to conduct normal ballasting operations due to leaking ballast lines; (3) an

inoperable ballast tank and draft gauging system; and (4) inoperable ballast valve position

indicators.213 The ballast valves’ opening and closing on their own were not minor problems, but

rather, “relate[d] to the return of oil to the hydraulic pump” and the failure of the hydraulic pump

crossovers to properly control the pressure.214

210 [TT Day 31 (Stoller) P. 35:19-36:11; 40:25-42:1].

211 [TT Day 5 amended (Zotos) P. 75:19-76:4; Bartzis Dep. Vol. I (10/04/07) P. 71:6-24; 74:9-24].

212 [TT Day 14 amended (Markoutsis) P. 93:17-95:17; Ex. D-446 (with translation)].

213 [TT Day 14 amended (Markoutsis) P. 100:23-101:8; 110:21-113:22; 116:11-119:3; TT Day 5 (Zotos) P. 50:6-15;

Ex. D-446 (at Athos 040707, Item 5 with translation); Ex. D-425 (with translation); Ex. D-436 (with translation);

Ex. D-513 (with translation)].

214 [TT Day 14 amended (Markoutsis) P. 110:21-113:10; Ex. D-436 with translation, p. 040478, ¶ 3].
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These outstanding serious repair items were also repeatedly documented in Tsakos

Shipboard Assessments, Weekly Inspection Follow-Up Meeting (“WIFUM”) Reports, and

spreadsheets completed both before and after the oil spill, on May 5, July 11, September 23,

October 21, and December 9 and 16, 2004, and on January 26, 2005.215 The vessel was using an

improvised system of portable tapes to attempt to determine the level of water in the ballast

tanks.216

Deficiency reports from September-November 2004 confirmed that the problems were

unresolved and continuing.217 The master complained that the entire ballasting system was

inoperable and could not be repaired until after the ship arrived in Paulsboro.218 None of these

critical items—most relating to ballast, its effect on the vessel’s draft, and the crew’s inability to

accurately determine the draft—was repaired before the November 26, 2004 oil spill.219

b. Plaintiffs failed to maintain proper ballasting records and

violated their own safety requirements.

The ATHOS I was required to keep records of soundings in a ballast water handling log

when taking ballast aboard.220 The log that plaintiffs have produced as the official record does

not show all of the ballasting operations and movements that occurred before the oil-spill

incident.221 There is no written record of any daily soundings of the ballast tanks of the ATHOS

I taken either before or after the ballasting operations and thus no evidence of the amount of

215 [TT Day 5 amended (Zotos) P. 58:12-23; 75:19-78:9; 80:20-81:4; TT Day 31 (Stoller) P. 41:14-47:1; Pantazatos

Dep. Vol. I (02/07/08) P. 63:1-64:2; 73:2-7; 77:10-18; Papazis Dep. Vol. I (09/25/07) P. 99:5-101:21; 104:6-105:20;

Bartzis Dep. Vol. II (10/05/07) P. 149:1-153:23; 159:10-160:25; Figueros Dep. Vol. I (08/01/07) P. 88:15-23; 90:2-

91:18; Ex. D-101 (TST Assessment Report dated 12/009/04)].

216 [Papazis Dep. Vol. I (09/25/07) P. 102:15-23].

217 [TT Day 31 (Stoller) P. 32:21-34:9].

218 [TT Day 5 amended (Zotos) P. 70:9-71:11; TT Day 14 amended (Markoutsis) P. 100:23-113:22; Ex. D-436

(11/15/04 E-mail from ATHOS to TST re: ATHOS I CAP & WIFUM ítems (in Greek with formal translation))].

219 [TT Day 14 amended (Markoutsis) P. 110:21-113:22; TT Day 5 amended (Zotos) P. 50:20-51:11; 75:19-77:20;

Papazis Dep. Vol. I (09/25/07) P. 104:6-105:20].

220 [Zotos Dep. (05/17/07) P. 200:7-20; Papazis Dep. Vol. II (09/26/07) P. 274:5-276:8].

221 [TT Day 26 (Petrie) P. 9:3-12; Ex. D-9 (Ballast Water Handling Log)].
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ballast water in the tanks.222 The Pump Room Patrol Log, which would have shown the exact

time when ballasting operations were started and stopped, is missing and has never been

produced. The chief officer’s record of the November 26 ballasting does not indicate how long

the ballasting lasted.223

The Tsakos Vessel Operation Procedures Manual required that “all ballast operations be

recorded in the Bridge Log Book.”224 The ballasting done on November 26 was not entered into

the Bridge Log Book, and the section of this book for recording the volume of ballast in each

tank and the date on which each tank was last filled was not completed during the entire voyage

in question. Third Officer Esplana testified that he could not remember any officer of the

ATHOS I who entered ballasting information in the bridge log book.225 No Ballast Management

Plan was prepared for the ballasting done on November 26, 2004, before the oil spill, even

though Tsakos’s safety management system required that a plan be prepared for all ballast

loading and discharge operations.226

Plaintiffs have made much of the various compliance certificates issued to Tsakos and the

ATHOS I but fail to explain the missing ballast and maintenance records and photographs. The

mere issuance of a certificate to a shipping company or vessel is not proof that non-conformities

or deficiencies did not exist or that outstanding repairs were completed. Nor is a certificate proof

that vessel and company personnel did not act negligently.227 The entities issuing the certificates

relied on by plaintiffs were paid by Tsakos for their services in issuing the certificates.228

222 [TT Day 5 amended (Zotos) P. 19:9-19].

223 [TT Day 5 amended (Zotos) P. 33:20-34:1].

224 [TT Day 5 amended (Zotos) P. 16:5-11].

225 [TT Day 3 amended (Esplana) P. 34:1-22].

226 [TT Day 15 amended (Markoutsis) P. 64:6-66:1; Ex. D-13; Doc. 306 (CA No. 05-305), Admissions of Master,

Dep. (Markoutsis) Vol. IV (02/08/07) P. 646:13-24; 647:1-19)].

227 [TT Day 34 amended (Mitchell) P. 35:24-36:16; 47:12-24].

228 [Id. at P. 46:19-47:11].
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Captain Markoutsis’ standing instructions required that the daily soundings of the

vessel’s ballast tanks be taken and recorded in the ship’s record entitled “Monitoring of Cargo

Tanks, Water Ballast Tanks, and Void Spaces.”229 Chief Officer Zotos failed to comply with the

Captain’s standing order, as there is no record of the required soundings in this document.230 As

noted above, the Pump Room Patrol Log, which would have recorded the times and durations of

all ballasting operations, is “missing” and has never been produced by plaintiffs, despite

confirmation of its being aboard the ATHOS I after the incident in 2005.231 Plaintiffs’ soundings

simply do not exist in any ship’s record and cannot be used to explain away the inoperable

ballast gauging system and the missing Pump Room Patrol Log.

c. Plaintiffs failed to maintain a proper safety management

system in violation of SOLAS, ISM and U.S. regulations.

Plaintiffs negligently failed to maintain and monitor a proper safety management system,

which further rendered the ATHOS I unseaworthy at the time of the casualty.

Regulation XIX/3.1 of SOLAS required Frescati, Tsakos, and the officers of the ATHOS I to

comply with the International Safety Management Code as set forth in IMO

Resolution A.741(18). Under the ISM Code, shipowners must implement a written safety

management system to ensure that the vessel is properly maintained and manned, that the vessel

and those in charge comply with all international and national regulatory requirements, and that

procedures are in place to detect and correct any non-compliance or maintenance failures. A

U.S. regulation, 33 C.F.R. § 96.220-250, also requires compliance with the ISM Code.232

229 [Ex. D-220].

230 [Doc. No. 306 (Civil Action No. 05-305), Admissions of Master, Markoutsis Dep. Vol. I (02/08/07) P. 658:14-

662:17; Ex. D-21; Ex. D-220; TT Day 5 amended (Zotos) P. 19:22-20:2].

231 [TT Day 5 amended (Zotos) P. 20:9-21:7; 34:2-35:15; Ex. D-68 (Blank Tsakos Pump Room Patrol Log form)].

232 [TT Day 24 amended (Grenier) P. 75:18-79:6; TT Day 29 (Anderson) P. 72:24-75:7].
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The ISM Code required Tsakos to include maintenance and repair items in the safety

management system with verification through controlled documents and forms within the

system.233 Leaks in ballast lines and maintenance and repair items should be documented and

followed in controlled documents as the ISM Code requires.234 In violation of the ISM Code,

Tsakos and Captain Markoutsis used Greek language e-mails to report and discuss serious

maintenance and repair items aboard the ATHOS I that were never documented in the official

safety management system.235 Tsakos did not even include many of the critical repair items

listed in the Greek language e-mails in their Weekly Inspection Follow Up Meeting (“WIFUM”)

reports prepared by the company.236 Tsakos kept the vessel’s deficiencies and the WIFUM

program apart from and completely outside the official Tsakos safety management system

procedures for maintenance and repair.237

The failure to verify, track, and document the serious vessel maintenance issues, such as

the leaking ballast lines and the ballast valves that opened and closed on their own, resulted in

Tsakos’s failing to repair the malfunctioning ballast system and other critical systems before the

oil spill.238 The unsafe condition of a critical system of the ATHOS I exposed the vessel to

inadvertently taking on unknown additional amounts of ballast water during ballasting

operations, a situation that would increase the vessel’s draft.239 The inability to measure the

precise quantities of ballast water in each ballast tank prevented the ship’s personnel from being

able to accurately determine the ship’s draft, information that was critical in analyzing

anticipated underkeel clearance as required by 33 C.F.R. § 157.455 (a) and (b). The ATHOS I

233 [TT Day 29 (Anderson) P. 107:22-108:3; 111:21-112:18; 116:1-20].

234 [TT Day 29 (Anderson) P. 114:11-16].

235 [TT Day 29 (Anderson) P. 112:19-115:25; TT Day 24 amended (Grenier) P. 112:9-18].

236 [TT Day 17 amended (Johnson) P. 19:4-24; TT Day 29 (Anderson) P. 112:19-116:5; Ex. D-245; Ex. D-446 with

translation].

237 [TT Day 16 amended (Johnson) P. 219:4-10].

238 [TT Day 29 (Anderson) P. 113:3-115:25; TT Day 24 amended (Grenier) P. 112:9-18].

239 [TT Day 24 amended (Haley) P. 171:10-172:22].
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should not have sailed with these serious deficiencies in the ballast system, which rendered the

ship unseaworthy.240

d. Plaintiffs failed to man the ATHOS I with a well-trained and

competent crew and monitor their performance, which

rendered the vessel unseaworthy.

The ISM Code and 33 C.F.R. § 96.220-250 further required plaintiffs to implement a

safety management system to ensure that the ATHOS I was properly manned with officers who

could comply with all international and domestic regulatory requirements and that procedures

were in effect to detect any failures in compliance.241 Tsakos failed to properly train and assess

the competency of Captain Markoutsis, Second Officer Ricardo Caro, and the other officers

aboard the ATHOS I in proper voyage planning. Had Tsakos done so, it would have realized

that the master and officers did not know how to prepare a voyage plan that complied with

Tsakos safety management system voyage planning procedures, SOLAS Chapter 34, IMO

Resolution A.893(21), and U.S. Coast Guard regulations, 33 C.F.R. § 157.455 (a) and (b).242

Both Captain Markoutsis and Chief Officer Zotos erroneously believed that the Tsakos

Voyage Plan VOP B-11/A could be prepared after the completion of each voyage, and they

testified that they never prepared, reviewed, or signed voyage plans before the vessels began to

sail.243 They also were under the mistaken belief that the voyage plan was limited to navigation

charts aboard the vessel.244 Although this history of improper voyage planning violated its own

safety management procedure, Tsakos claims to have been unaware of these non-conformities

240 [TT Day 31 (Stoller) P. 31:25-33:14; 35:19-36:25; 40:7-41:13].

241 [TT Day 24 amended (Grenier) P. 74:23-75:6; 77:1; Ex. D-2024A; Ex. D-1211; Ex. D-1213].

242 [TT Day 29 (Anderson) P. 100:8-101:19; 102:17-104:20; Ex. D-122; TT Day 25 (Bergin) P. 115:14-19; 116:22-

117:2; 117:22-118:3; Ex. D-2041].

243 [TT Day 14 amended (Markoutsis) P. 124:22-25; 125:1-126:12; TT Day 15 amended (Markoutsis) P. 19:7-20:7;

Zotos Dep. Vol. II (05/15/07) P. 522:13-525:9].

244 [TT Day 15 amended (Markoutsis) P. 19:7-20:7; Zotos Dep. Vol. II (05/15/07) P. 524:8-525:9].
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by the two highest ranking deck officers aboard the vessel.245 These egregious failures resulted

in the ATHOS I’s sailing under the command of an incompetent master and crew, who were

incapable of doing a proper risk assessment through a voyage plan with an anticipated underkeel

clearance analysis.

In an e-mail dated November 3, 2004, Captain Markoutsis also complained about the

competency and performance of the vessel’s pumpman, Vincent Figueros, and his inability to

respond to critical outstanding repair items. The master requested a replacement for Figueros to

repair hydraulic valves, the ballast and cargo system, the pump room, and weakened or leaking

ballast lines, but the pumpman was not replaced until after the ATHOS I incident.246 Chief

Officer Zotos relied on Pumpman Figueros for ballast tank soundings, repairs to the ballast

system, and assistance in ballasting operations. Before the incident, Chief Officer Zotos had

likewise asked Captain Markoutsis for a more experienced pumpman.247 Tsakos Fleet

Superintendent Ragousis was unaware of this request.248 The ATHOS I had an admittedly

incompetent crewmember dealing with a key system of the vessel that affected its ballasting,

draft, and underkeel clearance. It is no stretch to conclude that his incompetence and Tsakos’s

inability to rectify it directly caused the allision.

The ATHOS I should never have begun the voyage with the poor condition of its ballast

system and with a master and officers who misunderstood proper voyage planning

requirements.249 The ATHOS I was rendered unseaworthy for at least two reasons: (1) its

malfunctioning ballast system and faulty safety management system that failed to monitor and

245 [TT Day 16 amended (Johnson) P. 170:5-172:19].

246 [TT Day 14 amended (Markoutsis) P. 118:7-119:3; TT Day 5 amended (Zotos) P. 50:6-15; Ex. D-513 (with

translation at Ex. D-1899 at Athos 1775)].

247 [TT Day 5 amended (Zotos) P. 46:19-47:1].

248 [TT Day 17 amended (Ragousis) P. 63:8-15].

249 [TT Day 31 (Stoller) P. 40:7-19].
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repair it and (2) its incompetent and ill-trained crew, who failed to maintain the vessel’s

equipment and navigate the vessel properly according to mandatory Coast Guard regulations for

the operation of single-hull tankers. In breach of their warranties in the Voyage Charter and their

duties under the general maritime law, Frescati and Tsakos negligently violated mandatory

federal marine-safety statutes, principles of good seamanship and navigation, and failed to

maintain a seaworthy vessel.

Plaintiffs’ own gross fault and the unseaworthiness of the ATHOS I proximately caused

the vessel to strike the anchor and nullified the safe-port obligation. Plaintiffs therefore cannot

satisfy their burdens of proof on the safe-port warranty claim, because it was entirely possible for

the ATHOS I to have avoided the incident by exercising good navigation and seamanship.

4. The hidden nature of the hazard does not excuse negligent navigation

and bad seamanship.

The facts that the anchor was uncharted and that no parties to this lawsuit knew that it

existed do not reduce plaintiffs’ responsibility for the ATHOS I incident or excuse the breach of

their obligations to comply with the applicable navigation regulations and principles of good

seamanship. Those mandatory regulations and navigational safety standards were designed to

prevent the foreseeable risk known to all mariners of striking unknown and uncharted

obstructions. Competent navigators are aware of that risk and take steps to eliminate it by

obeying the safety requirements. But plaintiffs did not, and the ATHOS I oil spill is the direct

result of their regulatory violations and bad seamanship.

Ports have been found to be safe, even though the navigators were unaware of the hazard

and the vessels in question grounded or struck an uncharted, submerged object. See In re Arb.

Between Trade Sol Shipping Ltd. and Sea-Land Industries Bermuda, Ltd., 2001 WL 36175165,

at *9 (despite a missing navigational buoy that was unknown to the vessel’s captain, the port was
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safe, and no breach of the safe-port warranty occurred, where the vessel owner could not prove

that the grounding could not have been avoided by good navigation and seamanship); In re Arb.

Between Delphina Tanker Corp. (MT Delphina) and Axel Johnson Energy Corp., 1999 WL

34976573 at *2-3, S.M.A. Award No. 3508 (Feb. 5, 1999) (Nelson, Elias & Mordhorst, Arbs.)

(finding that other vessels, through the exercise of good navigation and seamanship, were able to

safely berth at a facility, even though plaintiff’s vessel struck an uncharted rock approximately

100 feet northeast of the berth); McCaldin v. Parke, 37 N.E. 622, 623-24, 142 N.Y. 564 (N.Y.

1894) (rejecting plaintiffs’ contractual claim where hundreds of vessels had gone to the wharf for

several years in safety, except for the plaintiffs’ vessel, which hit an uncharted rock 70 feet from

the dock).

Here, even though it recognized that the anchor was unknown, the Third Circuit

nevertheless identified improper navigation and seamanship as an issue to be resolved on

remand. In re Frescati, 718 F.3d at 204-05 and nn.22 and 23. Moreover, the risk of uncharted

objects in navigable waterways is always foreseeable to a mariner. Indeed, precisely to eliminate

that risk, the mandatory U.S. Coast Guard regulations for single-hull tankers, as well as the

general maritime law, require a vessel’s master, crew, and pilots to plan their voyage, calculate

and maintain sufficient underkeel clearance, and exchange information to maintain a margin of

safety to avoid the risk of an allision with an uncharted object. See 33 C.F.R. § 157.455 (a) and

(b); see also Ocean S.S. Co. v. United States, 38 F.2d 782, 784 (2d Cir. 1930) (Hand, J.) (“[I]t

must always be remembered that it is the risk of collision, not the collision itself, that the masters

must avoid.”) (emphasis added).
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5. The ATHOS I’s officers and pilots alone were responsible for its safe

navigation.

a. Plaintiffs alone decided when to enter the port and approach

the berth and chose the wrong time.

In another misreading of the appellate opinion, plaintiffs make much ado about the Third

Circuit’s passing comment in a footnote that the Panel found “no indication in the record that the

Athos I was attempting to dock at an inappropriate time.” In re Frescati, 718 F.3d at 205 n.22.

The Court of Appeals did not elaborate or offer any explanation regarding what portions of the

“record” it may have reviewed. Importantly, the “record” on appeal consisted only of the limited

trial materials selected for inclusion in the joint appendix based on the appellate issues. Its

fleeting remark in a footnote to its opinion is not a “finding of fact,” has no precedential value,

and does not in any way limit this Court’s responsibility to hear further evidence and make its

own findings of fact on remand. It is a classic example of dictum, a “peripheral” statement in a

judicial opinion that “could have been deleted without seriously impairing the analytical

foundations of the holding.” In re McDonald, 205 F.3d 606, 612 (3d Cir. 2000), cert. denied,

531 U.S. 822 (2000). “The law of the case doctrine . . . acts to preclude review of only those

legal issues that the court in a prior appeal actually decided, either expressly or by implication; it

does not apply to dicta.” In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir. 1998).

Here, the Third Circuit did not and could not make factual conclusions concerning the

vessel’s navigation, much less the timing of its arrival. Rather, it has remanded the case for this

Court to determine all aspects of the vessel’s seamanship and navigation. As the evidence

discussed above amply demonstrates, the ATHOS I chose the wrong time to attempt to dock. It

proceeded with a reckless disregard for safety and the risk of grounding or alliding with an object
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on the river bottom under circumstances that would have prompted any prudent mariner to

simply wait for a higher tide.

D. As third-party beneficiaries, plaintiffs themselves owe warranties to CARCO

under the Voyage Charter to furnish a seaworthy vessel, to comply with

applicable U.S. Coast Guard regulations, and to limit the vessel’s draft.

Not only are plaintiffs held to standards of good navigation and seamanship by the force

of federal regulations and maritime law, but also by the terms of the Voyage Charter. In this

case they warranted that they would meet those requirements. Their failure to comply not only

constitutes negligence, but a breach of their warranties.

The Voyage Charter expressly states in Part II, ¶ 1, that the vessel shall be “seaworthy,

and having all pipes, pumps and heater coils in good working order.” Further, in ¶ 3 of the Citgo

Petroleum Corporation clauses of the Voyage Charter, the owner warrants that the vessel “will

be in full compliance with all applicable U.S. Coast Guard regulations, including pollution

prevention regulations as specifically described as 33 C.F.R. Parts 150, 151, 154, 156, 157, and

164. . . .” In ¶ 25, the owner warrants that it has P&I Club insurance coverage for oil pollution of

at least $1 Billion in place for the duration of the charter. In ¶ 36, the owner warrants that the

vessel owner or operator has submitted to the U.S. Coast Guard a response plan for the vessel

that meets the full requirements of OPA and the governmental regulations issued thereunder and

that the owner “shall ensure that the owner or operator of the vessel and the vessel fully meet all

other requirements of OPA and any governmental regulations or guidelines issued thereunder.”

Because the Third Circuit concluded that plaintiffs have the status of third-party

beneficiaries under the Voyage Charter, plaintiffs must likewise be held accountable for the

owner’s obligations under the contract, not just its benefits. As a matter of law, if they are thirdparty beneficiaries of the Voyage Charter, plaintiffs necessarily owe CARCO the warranties
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discussed above. As the Third Circuit observes, federal law controls the interpretation of

maritime contracts, and “[w]e typically look to the Restatement of Contracts for the federal law

on third-party beneficiaries.” In re Frescati, 718 F.3d at 198. According to the Restatement,

“[W]here there is a contract, the right of a beneficiary is subject to any limitations imposed by

the terms of the contract.” Restatement (Second) of Contracts § 309 cmt. b (1981). “The

position of a beneficiary is comparable to that of an assignee after knowledge of the assignment

by the obligor. . . . His right, like that of an assignee, is subject to limitations inherent in the

contract, and to supervening defenses arising by virtue of its terms.” Id. at cmt. c.

The case law echoes the principles of the Restatement. “[A] third-party beneficiary is

bound by the terms and conditions of the contract it invokes.” Acciai Speciali Terni USA, Inc. v.

M/V Berane, 181 F. Supp. 2d 458, 464-65 (D. Md. 2002). “[T]hird-party beneficiary status does

not permit the avoidance of contractual provisions otherwise enforceable.” Coastal Steel Corp.

v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983), overruled on other grounds by

Lauro Lines v. Chasser, 490 U.S. 495 (1989). “[W]hether seeking to avoid or compel

arbitration, a third-party beneficiary has been bound by contract terms where its claim arises out

of the underlying contract to which it was an intended third-party beneficiary.” E.I. Dupont de

Nemours and Co. v. Rhone Poulenc Fiber and Resin Intermediates, S.A.S., 269 F.3d 187, 195 (3d

Cir. 2001). In sum, “[t]he beneficiary ‘cannot accept the benefits and avoid the burdens or

limitations’ of the contract.” Acciai Speciali Terni USA, Inc., 181 F. Supp. 2d at 465 (quoting

Trans-Bay Eng’rs & Builders, Inc., v. Hills, 551 F.2d 370, 378 (D.C. Cir. 1976)).

Thus, as third-party beneficiaries, plaintiffs must accept the responsibilities and

obligations of the contract they invoke. As alleged third-party beneficiaries of the Voyage

Charter, plaintiffs not only had duties under general maritime law to navigate safely in
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compliance with principles of good seamanship, to follow mandatory U.S. Coast Guard

regulations for operating single-hull tankers, and to maintain a seaworthy vessel with a draft of

37 feet or less, but they further expressly warranted in the Voyage Charter to CARCO that they

would do so. See Horn v. Cia de Navegacion Fruco, 404 F.2d 422, 429 (5th Cir. 1968)

(provisions of a charter party making specific reference to certain characteristics, specifications,

and capacities of the ship may reasonably be treated as warranties); In re Arb. Between

Navegacion Andina, S.A. and Molinera E. Industrial de Azapa, S.A., 1986 WL 1179605 at *5,

S.M.A. Award No. 2303 (Sept. 12, 1986) (Coutsodontis, Georges & Boulalas, Arbs.) (the vessel

owner breached the charter by arriving with an excessive draft).

As detailed above, plaintiffs nullified the safe-port warranty through their numerous

statutory and regulatory violations and the ATHOS I’s unseaworthiness. They thereby breached

their own warranty obligations owed to CARCO as third-party beneficiaries under the Voyage

Charter, and proximately caused the allision through their violations of their duties, both in

contract and in tort. CARCO has no liability.

E. CARCO is not liable in warranty for the sole or superseding fault of others.

Plaintiffs’ own extraordinary, superseding negligence in navigating the ATHOS I

proximately caused the allision and oil spill and nullifies CARCO’s safe-port obligation. The

ATHOS I would not have struck the anchor if the master and pilots aboard it had followed

mandatory Coast Guard regulations, international conventions, and Tsakos’s own guidelines for

proper voyage planning, underkeel clearance, vessel maintenance, officer training, safety

systems, record-keeping, and principles of good seamanship for operating a single-hull tanker.250

As voyage charterer, CARCO has no liability whatsoever under the safe-port warranty for the

allision, which plaintiffs themselves solely caused.

250 [TT Day 31 (Stoller) P. 106:3-11].
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Principles of proximate causation or legal causation determine liability both in contract

and in tort. Exxon Co. U.S.A. v. Sofec, Inc., 517 U.S. 830, 839-40, 116 S. Ct. 1813, 135 L. Ed.

2d 113, 1996 A.M.C. 1817 (1996). “Indeed, the requirement of foreseeability may be more

stringent in the context of contract liability than it is in the context of tort liability.” 517 U.S. at

840. As the Supreme Court stated, “where the injured party is the sole proximate cause of the

damage complained of, that party cannot recover in contract from a party whose breach of

warranty is found to be a mere cause in fact of the damage.” Id. at 839; see also Allen v. Chance

Mfg. Co., 873 F.2d 465, 471 (1st Cir. 1989) (where the proximate cause of the injury lies

elsewhere a defendant has a complete defense against both negligence and warranty claims).

In Exxon Co., U.S.A. v. Sofec, Inc., a tanker broke away from a mooring system, safely

maneuvered out to sea from its position of peril, but ran aground on a reef as the master

attempted to navigate the ship back toward the shore. 517 U.S. at 840-42. The vessel owner

sued the owner of the mooring equipment for damages arising from the total loss of the ship,

based on allegations of negligence, strict products liability, and breach of warranty concerning

the mooring. Id. The Supreme Court affirmed the judgment holding that the master’s

extraordinary negligence in failing to plot fixes as he maneuvered his vessel back to shore after

the “breakout” was the sole proximate and superseding cause of the grounding. Id. The vessel’s

navigational fault cut off the defendant’s liability on both the tort and warranty claims. See also

Weeks Marine, Inc. v. Hanjin Shipping, No. 04-1703, 2005 WL 1638148 at *5-6, 2005 A.M.C.

1917 (D.N.J. July 12, 2005) (the superseding negligence of a vessel in colliding with a barge

while moving from one berth to another was the sole proximate cause that negated any prior

alleged independent negligence of the time charterer in sending the vessel to the wrong berth); In

re Arb. Between Slebent Shipping Co., Ltd. and Associated Transport Line, LLC, 2003 WL
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25794986, at *3-5 (Nov. 19, 2003) (Arnold, Fox & Ring Jr., Arbs.) (the master’s actions “were

so egregiously negligent and unseamanlike that they overcame any safe port deficiencies and led

directly to the vessel’s grounding,” where the master did not prepare a voyage plan, did not chart

navigational fixes, did not have the proper chart or notices to mariners on board, and impugned

his own credibility by erasing entries in the rough log and rewriting them “so that they would

adhere to his version of the events.”).

F. The Pennsylvania Rule shifts the burden to plaintiffs to prove by clear and

convincing evidence that their violations of applicable navigational and

operating regulations could not have caused the allision.

Under the Pennsylvania Rule, a principle of maritime law in effect for 140 years since the

U.S. Supreme Court’s landmark decision in 1873, when a person violates a statute or regulation

imposing a mandatory duty intended to prevent a maritime accident, a presumption arises that

the violation caused the resultant injury. The Pennsylvania, 86 U.S. at 136; In re Nautilus Motor

Tanker Co., Ltd., 85 F.3d 105, 113, 1996 A.M.C. 2308, 2316 (3d Cir. 1996). Three elements

must exist for this presumption of causation to apply:

(1) proof by a preponderance of the evidence of violation of a statute or regulation

that imposes a mandatory duty; (2) the statute or regulation must involve marine

safety or navigation; and (3) the injury suffered must be of a nature that the statute

or regulation was intended to prevent.

In re Nautilus Motor Tanker Ltd., 85 F.3d at 114, 1996 A.M.C. at 2317-18; In re J.A.R. Barge

Lines, L.P., No. 03-163, 03-180, 04-753, 04-1611, 2007 WL 674348, at *13 n.26 (W.D. Pa.

Feb. 28, 2007). The Pennsylvania Rule applies not only to statutory violations, but also to

violations of federal regulations governing vessel navigation and operation. See Cont’l Grain

Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 436 (1st Cir. 1992) (applying the

Pennsylvania Rule to a vessel’s failure to comply with numerous federal regulations governing

vessel operations); Waterman S.S. Corp. v. Gay Cottons, 414 F.2d 724, 737 n.28, 1969 A.M.C.
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1682 (9th Cir. 1969) (citing Belden v. Chase, 150 U.S. 674, 698-99, 14 S. Ct. 264, 37 L. Ed.

1218 (1893)); In re Quality Marine Servs., Inc., 2005 WL 1155854, *3-4, 2005 A.M.C. 1438

(E.D. La. May 9, 2005) (holding that “C.F.R. regulations are treated as statutory violations for

the purposes of the Pennsylvania rule” and applying the rule to violations of 33 C.F.R. Part 164,

the regulations at issue here); Hiernaux v. M/V QUEEN CITY, 244 F. Supp. 511, 513 (W.D. Pa.

1965).

The Pennsylvania Rule also applies to violations of international maritime conventions,

including the International Convention for Safety of Life at Sea (“SOLAS”), which is at issue in

this case. See Commonwealth of Puerto Rico v. S.S. ZOE COLOCOTRONI, 456 F. Supp. 1327,

1335, 1979 A.M.C. 21 (D.P.R. 1978), aff’d on liability, rev’d on other grounds, 628 F.2d 652

(1st Cir. 1980) (applying the Pennsylvania Rule to a vessel grounding and holding that the ship’s

violation of SOLAS “is not only indicative of negligence . . . but also brings into play the

application of the so called Pennsylvania Rule. . . .”); see also Continental Grain Co., 972 F.2d

at 432-436 (applying the Pennsylvania Rule to violations of SOLAS and International Maritime

Organization (“IMO”) Resolutions incorporated therein).

To rebut the Pennsylvania Rule’s presumption of causation, the statutory or regulatory

violator must make a “clear and convincing” showing, not merely that the violation was not a

proximate cause of the loss based on a preponderance of the evidence, but rather that the

violation “could not” have proximately caused it. In effect, in order to escape a finding of fault

under this enhanced standard, the violator must prove that the accident would have nevertheless

occurred, despite the statutory violation. In re Nautilus Motor Tanker Co., Ltd., 85 F.3d at 114.

The Pennsylvania Rule is “necessary to enforce obedience to the mandate of the statute.” The
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Pennsylvania, 86 U.S. at 136; In re Waterstand Marine, Ltd., No. 87-1516, 1988 WL 78776, at

*8, 1991 A.M.C. 1784 (E.D. Pa. 1988).

In In re Complaint of Nautilus Motor Tanker Co., Ltd., the Third Circuit affirmed the

district court’s decision and held that when a regulatory violation is established, the burden of

proof to overcome the legal presumption shifts to the statutory violator, who must make a clear

and convincing showing that the violation could not have been a proximate cause of the incident.

85 F.3d at 114. The district court in the Nautilus case held that the “clear and convincing”

standard of proof under the Pennsylvania Rule requires “evidence so clear, direct and weighty

and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of

the truth of the precise facts in issue.” In re Complaint of Nautilus Motor Tanker Co. Ltd., 862

F. Supp. 1260, 1272 n.4 (D.N.J. 1994) (citations omitted). See also Boyer v. The Merry Queen,

202 F.2d 575, 579, 1953 A.M.C. 482 (3d Cir. 1953) (“‘[W]ould not’ must go a long way before

it becomes ‘could not,’ in satisfaction of the rule of The Pennsylvania.”).

In 1990, in the aftermath of the 1989 EXXON VALDEZ oil spill in Alaska, Congress

enacted OPA to require that all new tank vessels transporting oil and petroleum products in the

United States must be constructed with double hulls and that any single-hull vessel not retrofitted

with a double hull would be phased out of service.251 See also Maritrans, Inc. v. United States,

342 F.3d 1344, 1348-49, 2003 A.M.C. 2274 (Fed. Cir. 2003). Congress determined that this

double-hull requirement and restrictions on single-hull tankers were necessary to avoid oil spills

and to reduce pollution.252 As Congress recognized in OPA, a single-hull tanker like the

ATHOS I presents a far greater risk of oil pollution from contact with uncharted obstructions or

251 [TT Day 24 amended (Grenier) P. 80:14-81:6].

252 [TT Day 24 amended (Grenier) P. 80:16-25; Maritrans, 342 F.3d at 1357].
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other hazards to navigation, making it critically important that navigators assure and maintain an

adequate underkeel clearance safety margin at all times.253

In response to that mandate, the Coast Guard began a rule-making process in 1996 and

stressed the need for specific requirements for voyage planning and maintenance of adequate

underkeel clearance for single-hull tankers upon finding that “[o]il spills have occurred because

tank vessels enter port with drafts too deep for the facility and then ‘find’ an anchor or rock. . . .”

(Emphasis added).254 More specifically, and quite prophetically apropos to the ATHOS I, the

Coast Guard noted that “[o]il spills, such as the World Prodigy, indicate that lack of passage

planning, specifically lack of under-keel clearance planning, has contributed to accidents” and

that its own research of 107 pollution incidents revealed that more than seven thousand barrels of

crude oil had been spilled in a five year period “because the pilot or master did not correctly

gauge the vessel’s draft in relationship to the transit depths. . . .”255 Thus, what happened to the

ATHOS I as a result of its flagrant regulatory violations is not surprising.

The requirements for advance voyage planning, calculation of anticipated minimum

underkeel clearance, and exchanges between a master and a pilot in 33 C.F.R. § 157.455(a) and

(b) mandate that those in charge of the operation and navigation of a single-hull tanker must

conduct a complete and thorough risk assessment before undertaking a voyage in U.S. waters.

The purpose of the risk analysis is to plan the anticipated voyage from load to discharge port to

eliminate the possibility of contact with unknown and uncharted obstructions or hazards to

navigation by taking advantage of the maximum available underkeel margin of safety.256

253 [TT Day 24 amended (Grenier) P. 82:6-15; 86:11-18; 91:15-23; TT Day 27 (Daggett) P. 141:20-142:2].

254 [Ex. D-1221 (61 Fed. Reg. at 39,779 (July 30, 1996)]. ].

255 [Ex. D-1221 (61 Fed. Reg. at 39,781; 39,783 (July 30, 1996)].

256 [TT Day 24 amended (Haley) P. 170:22-171:9; TT Day 27 (Daggett) P. 141:3-142:7; TT Day 31 (Stoller) P.

16:24-18:2; TT Day 24 amended (Grenier) P. 86:11-18; 91:15-23].
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Frescati and Tsakos cannot possibly meet their burden of proving by clear and

convincing evidence under The Pennsylvania that their multiple regulatory violations discussed

in detail above could not have proximately caused the vessel to contact the anchor. Plaintiffs do

not even come close to overcoming the Pennsylvania Rule’s presumption. Any one of their

regulatory and statutory violations alone is fatal to their case, and collectively the violations

make the plaintiffs’ burden insurmountable. Had the vessel’s officers and pilots complied with

them, the ATHOS I would not have “found” the anchor in Federal Anchorage No. 9, and this

casualty would not have happened. This case is a classic one where the Pennsylvania Rule gives

rise to a presumption of proximate causation against plaintiffs, who cannot rebut it.

Furthermore, violation of a Coast Guard regulation amounts to negligence per se. When

a statute or regulation “creates a minimum standard of care . . . then an unexcused violation, an

act done with less than minimum care, would have to be negligence;” in other words, negligence

per se. Dougherty v. Santa Fe Marine, Inc., 698 F.2d 232, 234-35 (5th Cir. 1983) (quoting Lowe

v. Gen. Motors Corp., 624 F.2d 1373, 1381 (5th Cir. 1980)); see also Abruska v. Northland

Vessel Leasing Co., LLC, 258 F. App’x 158, 160 (9th Cir. 2007) (finding vessel owners

negligent per se for failing to follow a Coast Guard regulation in an action by longshoreman).

Notably, after being on the scene and investigating the allision, the Government itself

alleged in this lawsuit that Frescati and Tsakos violated federal statutory and regulatory

violations and caused the ATHOS I incident. In its claim and answer (Doc. 20) in response to

Frescati and Tsakos’s limitation complaint, the Government alleged that the “grounding” of the

ATHOS I and the resulting oil spill were caused by plaintiffs’ “negligence, gross negligence,

willful misconduct and/or violation of applicable federal safety, construction, or operating

regulation[s].” Id. at ¶ 15. The Government further alleged that the vessel was unseaworthy,
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that plaintiffs had “operated, manned and equipped the ATHOS I in a negligent or grossly

negligent manner,” that plaintiffs were guilty of “negligence per se” because of their “violation

of federal regulations and/or statutes,” and that plaintiffs had “negligently failed to take adequate

action and precautions to ensure that the ATHOS I would be operated in a safe, prudent and

seaworthy manner and condition.” Id. at ¶¶ 28-30, 47-48. After joining forces with Frescati and

Tsakos and entering into a Joint Interest and Confidentiality Agreement and Cooperation

Agreement with them against CARCO,257 however, the Government changed its stripes and later

dismissed its claim and answer in Civil Action No. 05-305 “without prejudice.” See Doc. 102.

Nonetheless, the Government made these damning allegations against Frescati and

Tsakos in its own pleading, and this Court can give them weight as admissions against plaintiffs’

interests as parties under Fed. R. Evid. 801(d)(2). See Doc. 556 (CARCO’s statement of the

United States’ admissions through the Government’s pleading). See also W.V. Realty, Inc. v. N.

Ins. Co., 334 F.3d 306, 316 (3d Cir. 2003) (inconsistent earlier allegations may be introduced by

the adversary as evidence in a subsequent action); Van Buskirk v. W. Bend Co., No. CIV. A. 96-

6945, 1997 WL 34688, at *1 (E.D. Pa. Jan. 29, 1997) (“[A] pleading which is abandoned or

superseded through amendment even though it no longer serves any function in the case, may be

introduced into evidence as the admission of the party.”); Johnson v. Goldstein, 864 F. Supp.

490, 493 (E.D. Pa. 1994), aff’d, 66 F.3d 311 (3d Cir. 1995) (where ownership of property was

admitted in Defendants’ First Answer but denied in a Second Answer, the First Answer “was

admissible as an admission of Defendants and as an abandoned pleading”). See also LWT, Inc. v.

Childers, 19 F.3d 539 (10th Cir. 1994) (where a defendant in a state court action became a

plaintiff in a separate federal action and abandoned a defense he had asserted in the former action

that was directly contrary to his position in the latter, the abandoned defense was admissible

257 [Ex. D-1890].
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under Rule 801(d)(2)). Regardless of their procedural withdrawal, the Government’s admissions

condemning Frescati and Tsakos for their statutory and regulatory violations are true, and

plaintiffs cannot rebut the Pennsylvania Rule’s presumption of causation against them.

G. Tsakos destroyed, lost, or altered critical vessel records, giving rise to

adverse evidentiary inferences against plaintiffs.

In Doc. 754 and its supporting memorandum, CARCO has moved for adverse evidentiary

inferences because of plaintiffs’ spoliation of vessel records. Tsakos and the crew of the

ATHOS I hid, manipulated, fabricated, destroyed, altered, or failed to produce critical evidence

concerning the vessel’s condition and draft. This spoliation of evidence is not a matter of mere

sloppy recordkeeping or innocent mistakes, but rather involves the bad-faith loss, destruction,

and alteration of critical vessel records without a proper accounting. This spoliation warrants

adverse inferences findings that plaintiffs negligently navigated an unseaworthy vessel in

violation of safety regulations and that the ATHOS I had a draft deeper than 37 feet at the time

of the incident.

Furthermore, as CARCO has explained in its motion (Doc. 755) and its supporting

memorandum, this Court should enforce the Best Evidence Rule of Fed. R. Evid. 1002, et seq.,

and exclude plaintiffs’ secondary evidence of ballasting aboard the ATHOS I because of

plaintiffs’ bad-faith loss of the vessel’s original ballasting logs. Even if any of these documents

remain in evidence, they should not be given any weight. Ultimately, plaintiffs have failed to

carry their burdens of proof, and this Court should dismiss their claims.

H. The comparative fault of the vessel can reduce its recovery under the alleged

warranty or in negligence.

The evidence shows that CARCO provided a safe port that posed no danger that the

ATHOS I could not have avoided through good seamanship and navigation, and that there was
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no breach of the safe-berth/safe-port warranty. Rather, the ATHOS I incident resulted from the

vessel’s own sole and proximate fault. Principles of comparative negligence do not apply when

the injury results from such a separate cause. See Protectus Alpha Navigation Co., Ltd. v. North

Pacific Grain Growers, Inc., 767 F.2d 1379, 1383-84 (9th Cir. 1985).

However, even assuming that CARCO breached the alleged warranty, which is denied,

the Third Circuit has recognized that the Court may apportion fault to plaintiffs that would

reduce CARCO’s liability, if any, under the safe-berth provision. In re Frescati, 718 F.3d at 205

n.23 (“If the vessel is found to have been drawing more than 37 feet, this could potentially

reduce CARCO’s liability even if it were determined that a safe berth was not provided” and

further noting that “damages resulting from both a breach of a safe berth warranty and the

master’s negligence may appropriately be split between the parties.”). See also Paragon Oil Co.

v. Republic Tankers, S.A., 310 F.2d 169, 173-74, 1963 A.M.C. 158 (2d Cir. 1962) (quoting

Constantine & Pickering S.S. Co. v. West India S.S. Co., 199 F. 964, 967-68 (S.D.N.Y. 1912))

(“[O]ne liable for violating a safe berth clause ‘may lessen the amount of damages for which he

is responsible by showing negligence, or even lack of diligence, on the part of the person

wronged, in failing to take steps to lessen certain or even probable damages[.]’”).

CARCO has no fault at all and did nothing to proximately cause the ATHOS I incident,

but where multiple parties are liable for a maritime accident, the court apportions their liability

according to their relative degrees of fault. United States v. Reliable Transfer Co., Inc., 421 U.S.

397, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251, 1975 A.M.C. 541 (1975) (“We hold that when two or

more parties have contributed by their fault to cause property damage in a maritime collision or

stranding, liability for such damage is to be allocated among the parties proportionately to the

comparative degree of their fault . . . .”). Under Reliable Transfer, the court now must apportion
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liability based on the parties’ degrees of responsibility, rather than applying the old admiralty

rule of equal division. 421 U.S. at 411 (“[L]iability for such damages is to be allocated equally

only when the parties are equally at fault or when it is not possible fairly to measure the

comparative degree of their fault.”).

In determining comparative fault, courts evaluate the various statutory violations and

other contributory faults that might have been factors in the allision or collision. Lentz v. M/V E.

Grace, 852 F.2d 571 (9th Cir. 1988). The various considerations include, but are not limited to:

• Violations of statutory law by either or both parties. See Allied Chemical Corp. v.

Hess Tankship Co. of Delaware, 661 F.2d 1044, 1052, 1057 (5th Cir. Unit A

1981);

• Failure to observe industry custom. See Stevens v. F/V Bonnie Doon, 655 F.2d

206, 208 (9th Cir. 1981);

• Actions of third parties, such as the failure of a pilot station to report incoming

traffic to a vessel. See In re Complaint of BFT No. Two Corp., 433 F. Supp. 854,

875-76 (E.D. Pa. 1977);

• Practical navigational abilities of vessels. See Jones v. Texaco Panama, Inc., 428

F. Supp. 1333, 1336-37 (E.D. La. 1977);

• Use of due care and good seamanship by vessels. Id. at 1337; and

• Alteration of the ship’s logbook. See Otal Investments Ltd. v. M.V. Clary, 494

F.3d 40, 58-59 (2d Cir. 2007).

See also Restatement of Torts (Apportionment of Liability) § 8 (2000) (“Factors for assigning

percentages of responsibility to each person whose legal responsibility has been established

include (a) the nature of the person’s risk-creating conduct, including any awareness or
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indifference with respect to the risks created by the conduct and any intent with respect to the

harm created by the conduct; and (b) the strength of the causal connection between the person’s

risk-creating conduct and the harm.”); Unif. Comparative Fault Act, § 2(b) (“In determining the

percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at

fault and the extent of the causal relation between the conduct and the damages claimed.”).

“The nature of each person’s risk-creating conduct includes such things as how

unreasonable the conduct was under the circumstances, the extent to which the conduct failed to

meet the applicable standard, the circumstances surrounding the conduct, each person’s abilities

and disabilities, and each person’s awareness, intent, or indifference with respect to the risks.”

Restatement of Torts (Apportionment of Liability), § 8, cmt. c. “The comparative strength of the

causal connection between the conduct and the harm depends on how attenuated the causal

connection is, the timing of each person’s conduct in causing the harm, and the comparison of

the risks created by the conduct and the actual harm suffered by the plaintiff.” Id.; see also Bd.

of Comm’rs of the Port of New Orleans v. M/V Space King, No. 75-1661, 1978 A.M.C. 856

(E.D. La. 1978) (assigning the charterer 30% fault for breach of the safe-berth warranty and

assigning the vessel 70% fault for its breach of its warranty of proper loading and seaworthiness,

where the vessel grounded after failing to observe the loading process and the tidal stage of the

river).

All of these factors warrant assessment of the overwhelming percentage of fault, if not

total liability, to the plaintiffs for the ATHOS I incident. As discussed above, the ATHOS I’s

navigators violated multiple compulsory Coast Guard regulations for single-hull tankers that

were specifically designed to prevent allisions with submerged obstructions, whereas no statute,

regulation, or custom put CARCO on notice to search for objects in Federal Anchorage No. 9.
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The unseaworthy ATHOS I recklessly transited the River and the Anchorage without a voyage

plan and adequate underkeel clearance, contrary to the mandatory regulations and Tsakos’s own

minimum safety requirements. Plaintiffs destroyed, lost, or altered critical vessel records.

Plaintiffs created the risk of the allision and directly caused the oil spill, which they could have

entirely avoided by following the regulations and their own safety policy and exercising the

requisite due care and good seamanship. On the other hand, CARCO had no active or

constructive knowledge of the hazard and acted as any prudent charterer and wharfinger would

have at the relevant time and under the circumstances.

I. The gross fault of the unknown Government dredging contractor, who

abandoned the anchor, proximately caused the allision.

Besides plaintiffs, the only other person liable for the ATHOS I incident is the unknown

anchor-dropper. CARCO had nothing to do with the anchor or the other objects found within

Federal Anchorage No. 9 and neither knew nor had any reason to know that they even existed

before the allision. Rather, all the evidence on this point implicates an unidentified Government

contractor working for the Corps of Engineers as the entity who intentionally or negligently

dropped and abandoned the anchor (and likely the concrete block and pump casing found at the

allision scene too), failed to report it to the Government or warn the public, and thus proximately

caused the ATHOS I incident and the resulting oil spill.

Plaintiffs’ metallurgist, Joseph Crosson, testified that the abandoned anchor found in

Federal Anchorage No. 9 was of a type used by the U.S. Navy.258 Plaintiffs’ expert Bolton

called it an “ex-anchor” because its shank or rectangular portion, which would ordinarily have

been attached to a chain, was cut off.259 Dredging companies hired by the Corps of Engineers

commonly use large, heavy objects, such as pump casings and anchors with cut shanks, during

258 [TT Day 9 (Crosson) P. 130:1-22].

259 Id.; [TT Day 17 amended (Bolton) P. 133:23-134:5].
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their hydraulic pipeline dredging operations.260 Most of the Corps of Engineers’ dredging in the

Delaware River is hydraulic pipeline dredging.261 Robert Ross, the diver who discovered the

pump casing and the anchor after the ATHOS I incident, testified that his company has been

involved in searches for anchors lost by dredging contractors.262 Third-party contractors conduct

ninety-five percent of the dredging that the Corps of Engineers undertakes in the Delaware

River.263

The Corps of Engineers conducts all the dredging within Federal Anchorage No. 9.

David Olson testified that during his 36 years of employment with the Corps of Engineers it has

never received a request from, nor granted a permit to, a private terminal to dredge within

Federal Anchorage No. 9.264 The only entities that dredged within Federal Anchorage No. 9

were the Corps of Engineers and Weeks Marine, its dredging contractor.265

Although the Corps of Engineers states that it has been unable to definitively determine

who owned and left the pump casing found in the Anchorage, it did determine that casing was

cast in a pattern owned by American Dredging, who may have bought it.266 Weeks Marine later

purchased American Dredging.267 Both companies performed dredging in the Delaware River

for the Corps of Engineers.268 The NPFC and the Corps of Engineers did not conduct an

investigation to determine who owned the anchor and did not contact Weeks Marine to try to

find out if it had any knowledge about it.269 From this overwhelming circumstantial evidence, it

260 [TT Day 10 (De Pasquale) P. 114:22-115:22; TT Day 28 (Long) P. 107:24-108:20; TT Day 29 (Denmark) P.

34:3-7; 58:10-14].

261 [TT Day 10 (DePasquale) P. 108:2-10].

262 [TT Day 33 amended (Ross) P. 31:15-32:3; Ex. D 2086 (Randive Newsletter July-August 2009)].

263 [TT Day 29 (Denmark) P. 44:11-14].

264 [TT Day 10 (Olson) P. 147:4-12].

265 [TT Day 29 (Denmark) P. 58:7-14].

266 [TT Day 29 (Denmark) P. 31:9-32:3; 32:18-33:8].

267 [TT Day 29 (Denmark) P. 33:9-16].

268 [TT Day 29 (Denmark) P. 33:18-34:2; 51:5-9].

269 [TT Day 19 (Morrison) P. 205:22-206:6; TT Day 29 (Denmark) P. 34:8-15].
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is reasonable and proper for the Court to infer that the unidentified entity who abandoned the

anchor was most certainly a dredging contractor for the U.S. Government.

Admiralty law imposes tort liability on a defendant who negligently creates or leaves a

hidden obstruction in a navigable waterway resulting in damage to a vessel that allides with it.

See Pelican Marine Carriers, Inc. v. City of Tampa, 1991 WL 325793, at *4-5, 1992 A.M.C. 575

(M.D. Fla. July 30, 1991). See also Evergreen Int’l, S.A. v. Marinex Constr. Co., Inc., 477 F.

Supp. 2d 681, 686, 689 (D.S.C. 2007) (finding a valid cause of action for fault against the Corps

of Engineers’ dredging contractors for damage to a container vessel that struck a submerged

dredge pipeline in a federal channel and further finding that the Pennsylvania Rule would apply

upon proof that the dredging contractors had violated requirements of the Corps of Engineers

dredging contract, which were “intended to prevent the very sort of allision that occurred”); N.

Am. Dredging Co. v. Pac. Mail S.S. Co., 185 F. 698, 701-02 (9th Cir. 1911) (finding a dredger

liable for leaving a submerged wire cable and buoy anchor chain used in its dredging work in

Honolulu Harbor where it fouled a vessel’s propeller). As the North American Dredging court

recognized, “To leave a wire cable attached to the anchor chain of a buoy in a harbor when not in

use was obviously negligence and a menace to deep draft vessels, and therefore a legal wrong

subjecting the wrongdoer to legal liability for the direct consequences.” 185 F. at 702.

The fault of an unidentified third person can proximately cause damage. In Gatlin Oil

Co., Inc. v. United States, 169 F.3d 207, 209-10 (4th Cir. 1999), the act of an unknown vandal,

who jammed open seven above-ground fuel storage tanks, was the sole cause of the resultant fuel

spill and entitled the tank owner to a complete defense to any responsibility or strict liability

under OPA, 33 U.S.C. § 2701, et seq.
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No act or omission of CARCO proximately caused the incident. It occurred in Federal

Anchorage No. 9 after the unidentified third party abandoned the anchor and after plaintiffs

failed to comply with the mandatory single-hull tanker regulations and principals of good

seamanship and navigation. CARCO is not the responsible party under OPA, should not unjustly

bear the fault of the anchor dropper in any degree, and has no liability for the superseding

negligent acts of others who solely and proximately caused the oil spill.

II. CARCO’s Equitable Defenses to Liability Defeat the Government’s Subrogation

Claim

Equitable principles bar the Government’s subrogation claim against CARCO, which is

based on Frescati’s allegation that CARCO breached the alleged safe-port warranty of the

Voyage Charter. Necessarily, if Frescati fails to carry its burden of proving that a safe-port

warranty was breached, the Government cannot recover. Even assuming, however, that Frescati

were able to prove a breach, equity precludes the Government from recovering the $88 Million it

has reimbursed Frescati through the OSLTF. CARCO, as an innocent terminal operator, should

not be forced to reimburse the Government’s clean-up expenses resulting from a hazardous

condition in Federal Project waters that the Government maintained, controlled, and regulated.

CARCO and the Government have settled all tort claims between them. In order to

eliminate CARCO’s negligence claims, the Government waived its claims against CARCO for

additional damages that reportedly exceeded $120 Million.270 In Section 4.2 of the Settlement

Agreement with CARCO (Exhibit A to Doc. 29 in Civil Action No. 08-cv-2989), the

Government stipulated that CARCO reserved and could assert every possible legal and equitable

defense to the Government’s remaining claims, “. . . including but not limited to the right to raise

affirmative defenses under any theory or doctrine of law or equity, the right to assert setoff or

270 See U.S. Coast Guard Report to Congress, Nov. 20, 2013, “Oil Pollution Act Liability Limits.”
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recoupment and the right to assert compulsory or non-compulsory counterclaims other than a

Claim for Contribution or Indemnity. . . .”

As a result of that voluntary agreement and the explicit waivers contained therein, the

Government is absolutely barred in this litigation from attempting to assert that CARCO owed or

breached any duty to ensure the safe navigation of vessels through Federal Anchorage No. 9

based on tort or equitable principles. And the Third Circuit expressly rejected the Government’s

attempt “to preclude CARCO on remand from raising any equitable defense premised on the

Government’s regulation of the Anchorage.” In re Frescati, 718 F.3d at 214. The Government

has waived the issue, and CARCO has the right to pursue “any previously raised equitable

defense to the Government’s subrogation claims.” Id.

A. The doctrine of recoupment in equity.

In answer to the Government’s complaint, CARCO has denied any responsibility for the

submerged object that the ATHOS I contacted in Federal Project waters created, monitored,

controlled, surveyed, and charted by the Government’s agencies and has pleaded the equitable

doctrine of recoupment. See Doc. 11 in Civil Action No. 08-cv-2898 at Fourth Separate Defense

and Fourteenth Separate Defense. By filing suit against CARCO, the Government consented to

CARCO’s right to assert legal and equitable defenses, including recoupment, up to the amount of

the Government’s own claim, and sovereign immunity does not apply. See generally United

States v. Shaw, 309 U.S. 495, 502, 60 S. Ct. 659, 84 L. Ed. 888(1940); United States v. United

States Fidelity and Guaranty Co., 309 U.S. 506, 512-13, 60 S. Ct. 653, 84 L. Ed. 894 (1940);

Luckenbach S.S. Co. v. The THEKLA, 266 U.S. 328, 95 S. Ct. 112, 69 L. Ed. 313 (1924) (suit to

recover damages to a vessel constitutes waiver of sovereign immunity to counterclaim); United

Philippine Lines, Inc. v. USS DANIEL BOONE, 475 F.2d 478, 1973 A.M.C. 1156 (4th Cir. 1973)
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(Government waived sovereign immunity by filing counterclaim against vessel that collided with

a U.S. submarine); Frederick v. United States, 386 F.2d 481 (5th Cir. 1967) (waiver of sovereign

immunity can be by statutory consent or by the institution of the particular action).

A district court sitting in admiralty may grant any equitable relief appropriate to the

transaction before the court, even on subsidiary or derivative issues. See Swift & Co. Packers v.

Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 691-92 (1950); see also Vaughan v.

Atkinson, 369 U.S. 527, 530 (1962) (“Equity is no stranger in admiralty; admiralty courts are,

indeed, authorized to grant equitable relief.”). The Court can balance the equities of the parties

to a maritime contract in order to prevent unjust enrichment and avoid an unjust result. See

Archawski v. Hanioti, 350 U.S. 532, 535-36 (1956). The purpose of recoupment is to “permit a

transaction which is made subject of suit by a plaintiff to be examined in all its aspects, and

judgment to be rendered that does justice in view of the one transaction as a whole.” Rothensies

v. Elec. Storage Battery Co., 329 U.S. 296, 299 (1946).

The remedy of recoupment is available when (1) a defendant’s claim or defense arises

from the same transaction or occurrence as the plaintiff’s claim; (2) the defendant seeks relief of

the same kind and nature; and (3) if a claim is being made by defendant, that claim is defensive

in nature and does not seek affirmative relief. United States v. Am. Color & Chem. Corp., 858 F.

Supp. 445, 451 (M.D. Pa. 1994); see also Livera v. First Nat’l State Bank of New Jersey, 879

F.2d 1186, 1195-96 (3d Cir. 1988), cert. denied, 493 U.S. 937 (1989). Here, CARCO’s defenses

meet the criteria for application of recoupment.

First, the Government’s subrogation claim and CARCO’s defenses arise from the same

occurrence—the November 2004 oil spill in Federal Anchorage No. 9. The Government

contends that CARCO breached a contract warranty that the Anchorage was safe for vessel
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traffic, and CARCO’s defenses are premised on the Government’s responsibility and control

over Federal Anchorage No. 9 under federal law.

Second, the Government and CARCO seek relief of the same kind and nature,

specifically equitable relief. It is well recognized that subrogation claims, including those

asserted in a maritime setting, are rooted in equity:

This takes us to the very fundamentals of subrogation. It is now a mechanism so

universally applied in new and unknown circumstances that it is easy to overlook that it

originates in equity. Every facet, whether substantive or procedural, is controlled by the

equitable origin and aim of subrogation.

Compania Anonima Venezolana De Navegacion v. A.J. Perez Export Co., 303 F.2d 692, 697 (5th

Cir. 1962).

Third, CARCO does not request affirmative relief, and has asserted its equitable rights

and defenses solely for the purpose of offsetting or reducing the Government’s subrogation

claim. “[R]ecoupment is in the nature of a defense arising out of some feature of the transaction

upon which the plaintiff’s action is grounded.” Bull v. United States, 295 U.S. 247, 262, 55 S.

Ct. 695, 79 L. Ed. 1421 (1935).

A claim in subrogation does not preclude an equitable defense. “It is permissible for a

defendant to make a claim for recoupment against a plaintiff’s subrogee, since it is generally true

that any defenses that are valid against plaintiff are also valid against its subrogee.” Sikora v.

AFD Industries, Inc., 18 F. Supp. 2d 841, 847 (N.D. Ill. 1998). Because the Government seeks

reimbursement of clean-up expenses as the subrogee of Frescati, CARCO is entitled to raise any

legal or equitable defense that applies to either the Government or to Frescati. The

Government’s right of subrogation under OPA does not strip CARCO of its equitable defenses

under general and maritime law, as the Government is entitled to no special or preferential

treatment. Like any other private litigant, the Government must contend with the defenses
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available to CARCO, who properly invokes the Court’s traditional power to examine all aspects

of the dispute and apply those equitable principles necessary to achieve a fair result.

Even if OPA endowed the Government with a “super-subrogation” claim, the partial

settlement agreement stipulates that the Government’s rights against CARCO are strictly limited.

In Section 3.4 of the Settlement, the Government expressly waived all rights against CARCO

that might exist apart from the voyage charter and the bill of lading, and agreed that it would not

“assert, file, commence, prosecute, or pursue any other claims, demands, causes of action or

legal theories of recovery against CITGO based in tort, equity, strict liability, nuisance, trespass

or any other common law or statute against CITGO. . . .” The agreement bars the Government

from asserting any statutory right of subrogation that somehow diminishes or extinguishes

CARCO’s available defenses. As a result, even if the Government could have asserted some

supreme claim of subrogation under OPA that guaranteed a recovery, the Government released

that claim. The Third Circuit eliminated any issue in this regard and ruled that the Government

has waived any right to preclude CARCO from raising its equitable defenses. In re Frescati, 718

F.3d at 214-15.

Accordingly, CARCO is entitled to the remedy of recoupment and its equitable defenses

in order to offset the Government’s claim for restitution of clean-up expenses. CARCO should

not have to pay any amount to the Government. As discussed below, the Government’s recovery

against CARCO for clean-up expenses caused by a hazard to navigation in the Government’s

Anchorage would contravene the equity and fairness incorporated in such doctrines as equitable

estoppel, unjust enrichment, and the unjust imposition of losses and penalties on an innocent

party.
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B. The Government assumed responsibility and control for maintaining the

Anchorage.

Almost forty years ago, Judge Troutman of this Court stated “Congress has charged the

Secretary of the Army and the Chief of Engineers with the responsibility of seeing that navigable

waterways remain unobstructed and safe for navigation,” and the “Army Corps of Engineers in

the Delaware River undertook the responsibility of surveying, dredging and depth maintenance

of the river. . . .” Japan Line, Ltd. v. United States, 1976 A.M.C. 355, 364 (E.D. Pa. 1975), aff’d,

1977 A.M.C. 265 (3d Cir. 1976). Judge Troutman ruled that the “United States has the duty of

periodically surveying the channel of the Delaware River and reporting the results of these

surveys promptly to mariners,” and held that the “United States by (1) statute, (2) regulations and

(3) course of conduct of the United States Army Corps of Engineers has assumed the obligation

to survey, maintain and advertise depths of the navigable waters of the Delaware River. . . .” Id.

at 366, 371.

Congress established Federal Anchorage No. 9 in 1930 as part of the country’s regulated

system for water-borne commerce. The Corps of Engineers, NOAA, and the Coast Guard

maintain and control the Anchorage. For decades, as authorized by a 1930 amendment to 33

U.S.C. § 1, et seq., the “Rivers and Harbors Act” of 1910, the Army Corps of Engineers has been

charged with maintaining Federal Anchorage No. 9 at its “project depth” of 40 feet to

accommodate deep draft vessels on the Delaware River.271 For the thirty years that preceded the

incident, the Corps of Engineers and its third-party contractors performed all dredging for depth

maintenance in Anchorage No. 9.272 The only other dredging that has occurred in the Anchorage

took place in 1977, when the Corps of Engineers issued a permit for mining of gravel and fill to

be used in the Philadelphia Airport expansion project. Even then, the Corps of Engineers

271 [TT Day 10 (De Pasquale) P. 101:2-10].

272 [TT Day 10 (Olson) P. 147:4-18.]
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supervised the dredging and also confirmed afterwards that project water depths had been

maintained.273

In accordance with a plan to perform surveys on an annual basis, the Corps of Engineers

has regularly surveyed Federal Project waters for depth and for dredging of Federal Anchorage

No. 9, using single-beam sonar.274 In fact, the Corps of Engineers surveyed the entire Anchorage

in June 2004, less than six months before the Athos oil spill.275 The Corps reports the results of

these hydrographic surveys to the maritime community, including mariners and terminal users,

and publishes the survey results in “Channel Statements” that summarize the controlling or

shallowest depths of the channels and anchorages.276 The Corps did not report the presence of

the anchor in any of its multiple surveys since 2001.

The Corps of Engineers has routinely provided copies of their hydrographic survey

drawings to the Coast Guard, NOAA, the Pilots’ Association, and anyone else who asked.277 As

of November 2004, federal law mandated that the Corps of Engineers post its hydrographic

surveys on a website accessible to the public.278

Congress has assigned the responsibility of preparing and publishing official nautical

charts to NOAA.279 NOAA maintains its “AWOIS” database of known or suspected submerged

objects.280 NOAA publishes the Coast Pilot, which sets forth important information for mariners

as a supplement to its charts, including information about hazards to navigation in a particular

273 [TT Day 10 (Olson) P. 148:5-14].

274 [TT Day 10 (DePasquale) P. 92:16-22; 96:15-25].

275 [TT Day 10 (De Pasquale) P. 92:23-93:5; Ex. P-666].

276 [TT Day 10 (De Pasquale) P. 91:12-22; 92:3-15; 108:2-109:9; TT Day 30 amended (Rankine) P. 54:25-55:16;

Ex. D-1174 (Depth Chart)].

277 [TT Day 10 (De Pasquale) P. 119:23-120:22; 121:11-17].

278 [TT Day 35 (Barnes) Video Dep. P. 65:21-25; 66:1-24].

279 [TT Day 24 amended (Barnum) P. 5:4-11].

280 [TT Day 24 (Barnum) amended P. 27:11-22; 33:25-34:11].
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area.281 NOAA likewise published nautical charts showing the depths taken from hydrographic

surveys performed by NOAA and by the Corps of Engineers, as well as the locations of reported

obstructions and hazards to navigation discovered by surveys or otherwise.282

NOAA is also responsible for providing the public with tide and tidal current

predictions.283 It publishes predicted tide and tidal current tables and provides real-time

information concerning the actual tides and current on the Delaware River via its PORTS

system, which is available to mariners by telephone and NOAA’s internet website.284 Its

objective is to promote safe navigation to deep-draft ships and give mariners information and a

clearer picture of potential dangers as they make their decisions.285

The U.S. Coast Guard is charged by statute with the obligation to implement and enforce

laws and regulations designed to facilitate the safe navigation of vessels. See 14 U.S.C. § 2. The

Coast Guard also maintains a warning communication system, known as “Notices to Mariners,”

which are issued weekly to notify mariners of any changes in navigable waterways, including the

location of newly discovered hazards and obstructions to navigation.286 See 33 C.F.R. § 72.01-1.

The Coast Guard is further tasked with the responsibility for marking structures, sunken vessels,

and other obstructions that constitute hazards to navigation. The applicable regulations require it

to take corrective action as to any “obstruction, usually sunken, that presents sufficient danger to

navigation so as to require expeditious, affirmative action such as marking, removal, or

redefinition of a designated waterway to provide for navigational safety.” 33 C.F.R. § 64.06.

281 [TT Day 24 (Barnum) amended P. 34:19-35:3; TT Day 25 (Danley) Video Dep. P. 27:6-13; 105:2-21; 107:13-

108:19].

282 [TT Day 24 amended (Barnum) P. 5:17-24; 6:13-21; TT Day 25 (Danley) Video Dep. P. 21:4-14; 22:4-6; Ex. D1535 (Letter from U.S. Coast Guard to Rep. Booth)].

283 [TT Day 23 (Szabados) Video Dep. P. 88:7-23].

284 [TT Day 23 (Szabados) Video Dep. P. 89:4-90:3; 92:4-93:19; 115:5-116:11].

285 [TT Day 23 (Szabados) Video Dep. P. 92:4-8; Ex. D-1338 (Website printout for NOAA PORTS Description

dated 08/11/09)].

286 [TT Day 8 amended (Bethel) P. 37:16-38:12; 39:4-40:8; Ex. D-1810; Ex. D-1535 (Letter from U.S. Coast Guard

to Rep. Booth)].
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Both the Corps of Engineers and NOAA actively searched for hazards to navigation

within Federal Anchorage No. 9 before and after the ATHOS I incident. In 1974, the Corps of

Engineers searched the bottom of Federal Anchorage No. 9 for hazards when a tanker exploded

across the Delaware River, blowing debris into the Anchorage.287 In 1981, NOAA surveyed the

Delaware River, including Federal Anchorage No. 9, searching for hazards to navigation.288

When NOAA surveyed the Delaware River again in 2002, NOAA searched for hazards to

navigation and in fact found a hazard within Federal Anchorage No. 9, the position of which was

to be marked on NOAA’s chart, but the hazard was mistakenly omitted.289

Furthermore, representatives of the Coast Guard, NOAA, and the Corps of Engineers

regularly attend the quarterly meetings of the Mariners Advisory Committee (“MAC”) for the

Delaware River, which is comprised of the terminal operators and other representatives from the

maritime community. At the MAC meetings, the federal agencies report on conditions and

activities within Federal Project waters, including ongoing and planned surveying, charting, and

dredging.290

C. Terminal operators such as CARCO have not undertaken maintenance of

Federal anchorages.

Until this litigation against CARCO, there was never any suggestion that the

Government, or anyone else, expected terminal operators like CARCO to survey, dredge or

search for objects in Federal Project waters. When the ATHOS I spill occurred, the Coast Guard

requested that both NOAA and the Corps of Engineers provide survey vessels to search Federal

287 [TT Day 10 (Olson) P. 153:12-23].

288 [TT Day 24 amended (Barnum) P. 17:3-8; Ex. D-1517 at p. 5-7 (NOAA Descriptive Survey Report 1981)].

289 [TT Day 24 amended (Barnum) P. 10:17-21; 30:20-25; 31:1-16; Ex. D. 1520 at p. 5 (NOAA Descriptive Survey

Report 2002); Ex. D-1522; Ex. D-1354 (Nautical Chart 12313 (50th ed.)].

290 [TT Day 10 (De Pasquale) P. 106:24-108:23; TT Day 3 amended (Adams) P. 69:10-22; 98:2-22].
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Anchorage No. 9 for the hazard(s) that had damaged the ship.291 No one looked to CARCO for

survey information or assistance.

As the Government has conceded, “no maritime statute or regulation creates a duty to

keep anchorage grounds free of hidden obstructions.” See Brief of United States, Appeal No. 11-

2577, at p. 44. Similarly, it has long been recognized that navigation channels and anchorages

are not, and cannot be, maintained in perfect condition for the convenience of mariners. See

Guinan v. Boston, Cape Cod & New York Canal Co., 1 F.2d 239, 243 (2d Cir. 1924) (quoting

Exchange Fire Insurance Co. v. Delaware & Hudson Canal Company, 10 Bosw. 180 (N.Y.

Super. Ct. 1863), which recognizes that it is unreasonable to require a canal owner “to sound and

drag” or guard the canal “perpetually” for an unknown obstruction not previously contacted).

After the ATHOS I went aground and spilled her cargo, no one demanded survey data

from CARCO or asked CARCO to search Federal Anchorage No. 9 for the object that had

apparently caused the damage and pay the costs of its removal. CARCO was not cited, fined, or

reprimanded, nor even questioned about the incident or any specific obligation or expectation

that it should have surveyed, dredged, or searched in Federal Anchorage No. 9, outside its

permitted area. When the pump casing and cement block, and later the anchor, were ultimately

found and identified as the possible culprits, the Government removed the objects from the

Anchorage. The only culprits were the entity who dropped the anchor, or in the eyes of the

Government, the grossly negligent plaintiffs who had violated statutes and regulations in

navigating an unseaworthy vessel.

Likewise, in the aftermath of the ATHOS I spill, no authority directed any blame or

criticism toward CARCO.292 Notably, when CARCO dispatched a representative to the Unified

291 [TT Day 10 (De Pasquale) P. 133:10-21; TT Day 24 amended (Barnum) P. 36:20-24; 37:20-24; TT Day 25

(Danley) Video Dep. P. 125:3-126:16; 129:7-15; 129:21-130:8].
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Command headquarters after the spill to determine what involvement CARCO might have, the

Coast Guard informed CARCO that it had no role to play in the Unified Command (and no right

to have a representative in attendance) because CARCO had no responsibility for the incident or

for pollution cleanup operations.293 As a result, CARCO had no involvement in the process and

participated in no decisions.

The Government gave essentially the same response to Delaware State Representative

Joseph Booth, who wrote to the Coast Guard and pointedly asked “which agency is responsible

for ensuring that the waterways by which these tankers travel is clear of debris and safe for

passage.” The Coast Guard Captain of the Port simply replied that the Corps of Engineers,

NOAA and the Coast Guard “all have a role in this mission.”294 The Government made no

mention of CARCO and never suggested that any non-governmental entity had some role in

safeguarding vessels within the Federal Anchorage.

Not even the Government contends that CARCO had a duty to conduct dredging or

water-depth surveys for shoals in the Anchorage. Congress assigned to the Corps of Engineers

the responsibility of dredging the Anchorage and maintaining the project depth of 40 feet.295

Richard Long of Hudson Engineers has performed hydrographic surveys for 31 of the 32 marine

terminals on the Delaware River, and testified that prior to the ATHOS I incident, all terminal

owners surveyed only the permitted area adjacent to their berths, and did not survey any area

within designated boundaries of the Federal Project limits.296 Like uncharted objects, shoals can

292 [TT Day 30 amended (Rankine) P. 11:22-12:6].

293 [TT Day 10 (Drager) P. 79:16-80:20].

294 [Ex. D-1535].

295 [TT Day 10 (De Pasquale) P. 100:25-101:10; TT Day 35 (Barnes) Video Dep. P. 60:11-24; 96:7-15; Ex. D-1535

(Letter from U.S. Coast Guard to Rep. Booth].

296 [TT Day 28 (Long) P. 79:15-80:25; 132:12-15; 136:15-17; see also Klein Dep. P. 23:1-14; 25:17-26:17; 35:16-

38:11; 40:6-15; 115:24-116:11; Long Dep. P. 46:1-12].
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pose a hazard to navigation. But neither the Government nor anyone else expected CARCO to

survey Federal Anchorage No. 9 for shoals or objects.

The Government was the only entity that (i) conducted hydrographic surveys,

(ii) performed dredging, (iii) prepared and issued nautical charts, (iv) searched for hazards, and

(v) warned the maritime public about the existence of hazards to navigation within the

designated confines of Federal Anchorage No. 9. It was the Government, and only the

Government, who undertook those responsibilities and furnished the results of those activities

directly to the public and mariners for their use in planning and conducting the navigation of

their vessels. The evidence is overwhelming that the responsibilities undertaken by the

Government in Federal Anchorage No. 9 are substantial, exclusive, and all-encompassing. It is

no wonder that the many entities who comprise the maritime industry on the Delaware River,

including marine terminals and charterers like CARCO, have justifiably relied on the

Government to maintain the navigational safety of Federal Project waters.297

D. Equitable estoppel bars the Government’s claim against CARCO for hazards

in the Government’s anchorage.

Under federal common law, equitable estoppel will bar a claim upon a showing of (1) a

material misrepresentation, (2) defendant’s reasonable reliance to its detriment, and

(3) extraordinary circumstances that warrant barring the plaintiff from asserting an otherwise

lawful claim. Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235 (3d Cir. 1994). The

defense of equitable estoppel applies to breach-of-contract claims by the Government acting in

the proprietary capacity of a private party. See In re Am. Training Services, Inc., 434 F. Supp.

988, 1003 n.35 (D.N.J. 1977) (“In acting as a private party would, as distinguished from the

sovereign, the government may be subject to equitable estoppel by the same standards applicable

297 [TT Day 3 amended (Adams) P. 98:5-22; TT Day 28 (Taylor) P. 178:12-23; Ex. D 766 at p. 5 (CARCO Marine

Operations Guidelines)].
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to private actions, i.e., with no additional ‘affirmative misconduct’ requirement. . . .”) (citations

omitted).

The Government cannot evade examination of its own conduct and responsibilities

simply because the Government asserts subrogated rights under Frescati’s voyage charter. By

virtue of its lawsuit against CARCO for a hazardous condition in Anchorage No. 9, the

Government has put at issue its own regulation and control of the anchorage, and the activities

that have continuously been conducted by the Government within the Anchorage. Thus, under

equitable principles, the Government’s responsibilities, actions, and omissions are subject to

scrutiny, including the Government’s creation of the Anchorage as federal waters for navigation

by deep-draft vessels; the Government’s undertaking to dredge, maintain, survey, and chart this

federal waterway; the Government’s announcements that the Anchorage remained open to

general vessel traffic; and in particular, the Government’s representations to the maritime

community that the Anchorage was safe for navigation. Through its unquestionable power to

achieve equity and fairness, the Court can and should find that equitable estoppel prevents the

Government from asserting that CARCO is somehow liable for relying to its detriment on the

Government’s own actions and reports.

Regardless of whether the Government’s conduct is deemed to fall into some defined

category of equitable estoppel, the principles of equity inherent in the doctrine apply here. The

loss cannot fairly be imposed on CARCO, who was not the “responsible party” under OPA.

CARCO no control over Federal Anchorage No. 9 and relied to its detriment on the safety of a

federal waterway that the Government created, controlled, and maintained for decades. CARCO

never could have anticipated being held responsible to the Government for the condition of the

Government’s own anchorage.
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E. The Government would be unjustly enriched by recovery of cleanup

expenses caused by a hazard in the Government’s anchorage.

A district court has the power “to prevent unjust enrichment from a maritime contract”

and to prevent “a maritime contract from being exploited. . . .” Archawski v. Hanioti, 350 U.S.

532, 535, 76 S. Ct. 617, 100 L. Ed. 676, 1956 A.M.C. 742 (1956). To withstand scrutiny of its

subrogated contract claim under the doctrine of unjust enrichment, the Government would have

to show that the Government had a reasonable expectation of receiving payment from CARCO

for oil spills in the Federal Anchorage, and further, that CARCO should reasonably have

expected to pay the Government’s expenses, or society’s reasonable expectations would be

defeated by nonpayment. Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 993-94

(4th Cir. 1990), cert. denied, 498 U.S. 982 (1990); United States v. Rogan, 459 F. Supp. 2d 692,

728 (N.D. Ill. 2006), aff’d, 517 F.3d 449 (7th Cir. 2008). To the contrary, the legislative scheme

reflected in OPA demonstrates that the Government, CARCO, and society generally had the

reasonable expectation that cleanup expenses incurred in the present circumstances would be

paid by the OSLTF, which was established for this very purpose.

1. The Oil Spill Liability Trust Fund and the National Pollution Funds

Center.

Congress enacted OPA as comprehensive legislation intended to prevent oil pollution and

to ensure that mechanisms are in place to fund cleanup operations and pay claims resulting from

a pollution incident. See 33 U.S.C. § 2701, et seq.298 A “Responsible Party” designated under

the Act is liable to pay the removal costs and damages resulting from an oil spill in navigable

waters. 33 U.S.C. § 2702. According to Thomas S. Morrison, the NPFC’s Chief of the Claims

Adjudication Division, the NPFC can determine that an oil spill was caused solely by an

unknown third party. In that event, the unknown polluter is deemed to be the “Responsible

298

. [TT Day 24 amended (Grenier) P. 80:14-21.]
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Party” under the statute,299 and the OSLTF absorbs the pollution cleanup costs and damages

arising from the spill.300 The primary source of revenue for the self-sustaining Fund is the tax

paid by companies like CARCO into the Fund for every barrel of crude oil that they import.301

As of the time of trial, CARCO had already paid into the Fund approximately $103 Million.302

After the ATHOS I incident, the U.S. Coast Guard designated Frescati and Tsakos as the

“Responsible Parties” who were therefore liable in the first instance to pay all pollution cleanup

costs and damage claims.303 As Mr. Morrison acknowledged, however, if the Court determines

that the sole cause of the oil spill was the unknown anchor dropper, then Frescati and Tsakos

would be entitled to present their claim to the Fund for exoneration. That was precisely the

result of Judge Fullam’s trial and is still available as a statutory remedy, as the Third Circuit

noted. Frescati and Tsakos would recover all of their uncompensated damages and costs from

the Fund.304

Here, CARCO is not a “Responsible Party” under the provisions of OPA, and no act or

omission on their part renders CARCO liable for cleanup costs. Indeed, putting aside the fault of

Frescati and Tsakos, the only party who bears responsibility for the oil spill is the person who

left the anchor on the river bottom. Under these circumstances, OPA places the financial burden

on the Fund that was established for the specific purpose of paying cleanup expenses and claims

arising from oil spills in U.S. waters, and that has been endowed through taxes paid by

companies like CARCO.305 Having already paid $103 Million into the Fund, CARCO

reasonably could expect OPA and the Fund to work as Congress intended, such that the true

299 [TT Day 19 (Morrison) at 190:6-191:2; 192:14-193:18].

300 [TT Day 19 (Morrison) at 194:5-9].

301 [TT Day 19 (Morrison) P. 189:1-19].

302 [TT Day 28 (Taylor) P. 189:23-192:23; Ex. D-2046 (Spreadsheet of tax payments)].

303 [TT Day 19 (Morrison) P. 189:24-191:12].

304 [TT Day 19 (Morrison) at 195:18-196:1].

305 [TT Day 19 (Morrison) P. 162:10-15; 166:3-20; 189:10-19].
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Responsible Parties and the Fund would pay the necessary cleanup expenses and not that

CARCO would essentially have to pay twice. Neither CARCO nor anyone else could have

anticipated the joint attempt by Frescati and the Government to force a terminal operator to pay

twice for oil spilled from Frescati’s vessel because someone abandoned an anchor in the

Government’s Anchorage. Equity does not allow, and this Court should not permit, such a

result.

2. Liability of third parties under OPA.

Under OPA, where a third party’s act or omission is the sole cause of the oil spill, that

third party must be treated as the responsible party for purposes of determining liability for

removal costs and damages. 33 U.S.C. § 2702(d); see Gatlin Oil Co., Inc. v. United States, 169

F.3d 207, 209-10 (4th Cir. 1999); Kure Shipping S.A. v. La. Pac. Corp., No. 99-16835, 2000 WL

1154971, at *4 (9th Cir. Aug. 15, 2000) (“Under this provision, the third party is treated as the

responsible party for purposes of determining liability, and an original responsible party . . . may

seek total indemnification.”). Congress created the OSLTF to reimburse uncompensated

removal costs, and a statutory responsible party who is exonerated may claim full reimbursement

from the Fund. Gatlin, 169 F.3d at 209; 33 U.S.C. §§ 2708(a)(1), 2712(a)(3) and (4), and

2713(b)(1)(B).

When Frescati and Tsakos submitted their claim for limitation of liability, they never

suggested that CARCO had caused or contributed to the oil spill.306 Likewise, when the NPFC

evaluated the Frescati/Tsakos request for limitation of their liability, the NPFC never suggested

that CARCO was somehow implicated.307 In fact, when Frescati and Tsakos submitted their

separate application for complete exoneration from liability, they stated without qualification that

306 [TT Day 20 (Morrison) P. 6:14-23].

307 Id.
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the oil spill was caused solely by the unidentified person “who lost, impermissibly abandoned

(and/or neglected to discover) a nine (9) ton anchor in the Delaware River without reporting or

marking the hazard.”308 Again, Frescati and Tsakos never mentioned CARCO nor alleged that

CARCO had contributed to the occurrence of the oil spill in any way.309 In such circumstances,

if the NPFC concludes a spill was caused solely by an unknown third party, the Fund is solely

responsible to pay all cleanup expenses and damages arising from the spill, including

reimbursement of all amounts that have been paid by the statutory Responsible Party.310

3. Rather than admit the involvement of the Government and its dredging

contractors, the Government collaborated with Frescati/Tsakos to blame

CARCO for the oil spill.

The Government’s actions after the oil spill further reflect their transparent and cynical

strategy to pin blame on CARCO. When the pump casing was discovered in the anchorage after

the ATHOS I incident, the Government was well aware of evidence linking it to a Government

contractor who performed dredging for the Corps of Engineers. Nevertheless, the Corps of

Engineers neglected to consult the dredger about its knowledge regarding the pump casing or the

anchor.311 Despite knowing that a dredging contractor working for the Government had likely

abandoned the anchor and the other objects in the Anchorage, the Corps of Engineers admittedly

did nothing to determine the identity of the anchor’s owner.312

Frescati and Tsakos’s administrative claim presented to the NPFC states unequivocally

that the unknown person who abandoned the anchor was solely responsible for the ATHOS I oil

spill.313 Nevertheless, just as the Corps of Engineers made no effort to consult its dredging

308 [Ex. D-2142 (claim submission for complete exoneration)].

309 [TT Day 20 (Morrison) P. 8:23-9:2].

310 [TT Day 19 (Morrison) P. 192:9-193:18; 193:21-194:9].

311 [TT Day 29 (Denmark) P. 30:3-34:15].

312 [TT Day 10 (De Pasquale) P. 134:11-14; TT Day 29 (Denmark) P. 33:1-34:11].

313 [TT Day 20 (Morrison) P. 6:14-7:19].
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contractors, the NPFC admittedly made no attempt to identify the unknown anchor dropper.314

Furthermore, despite the Government’s assertion in this litigation that the ATHOS I was

unseaworthy and that the master and crew had negligently navigated the vessel in violation of

Coast Guard regulations (Doc. 20 in Civil Action No. 05-305), the NPFC has nonetheless

determined that Frescati was without fault and entitled to limitation of its liability under Section

2704 of OPA. Plaintiffs’ contradictory claims are admissible and deserve weight as judicial

admissions against their interests under Fed. R. Evid. 801(d)(2).

The Government crafted a cooperation agreement with Frescati and Tsakos in December

2008, which allowed them to withdraw their exoneration claim against the Fund, while fully

reserving the right to re-assert their claim in the future.315 In this way, the Government

suspended the issue of third-party liability and exoneration of Frescati and Tsakos, and

postponed the Fund’s potential obligation to pay them an additional $45 Million, so that the

plaintiffs could re-direct the Frescati/Tsakos claim for $45 Million, and the Government’s claim

for $88 Million against CARCO. Frescati and Tsakos risk nothing, since even if their claim

against CARCO fails, they will still have recourse against the Fund. The Government likewise

risks nothing. If the Government’s subrogated contract claim against CARCO fails, the plaintiffs

will simply resolve the Fund’s postponed obligations and determine whether the Fund should

pay $45 Million to Frescati/Tsakos.316

Ultimately, neither OPA nor equity allows plaintiffs to foist liability on CARCO for any

pollution-related liability resulting from the ATHOS I incident. The facts and procedural history

of this case speak for themselves. Even the Third Circuit was puzzled by plaintiffs’ inexplicable

withdrawal of their exoneration claim. See In re Frescati, 718 F.3d at 193 and n.6 (“In February

314 [TT Day 19 (Morrison) P. 205:22-206:24].

315 [TT Day 20 (Morrison) P. 9:13-10:11].

316 [TT Day 19 (Morrison) P. 194:5-14; 194:22-196:2].
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2007, Frescati applied to have its liability exonerated pursuant to 33 U.S.C. § 2703(a)(3). That

subsection directs that a responsible party is not liable for the acts or omissions of a third party.

In this case, that third party would have been the unknown anchor-dropper. It is unclear why

Frescati withdrew this claim in 2008.”).

Furthermore, not only the statute but the Voyage Charter itself imposes all risks of

pollution and responsibilities under OPA on the vessel owner, not CARCO. In Paragraph 3 of

the CITGO Petroleum Corporation clauses, the vessel owner warranted that the vessel “will be in

full compliance with all applicable U.S. Coast Guard regulations, including pollution prevention

regulations. . . .” In Paragraph 25, the owner warranted having P&I Club insurance coverage for

oil pollution of at least $1 Billion during the period of the charter. In Paragraph 36, the owner

warranted that a pollution response plan meeting the full requirements of OPA had been

submitted to the Coast Guard, and “that the owner shall ensure that the owner or operator of the

vessel and the vessel fully meet all other requirements of OPA and any governmental regulations

or guidelines issued thereunder.” As the charterer, CARCO is the beneficiary of these

warranties. It is not the warrantor or the obligor who owes them. Despite these warranties,

Frescati, Tsakos and the Government have joined forces to attempt to shift OPA liability entirely

to CARCO, contrary to the statute and the Voyage Charter.

F. Responsibility for a loss equitably falls on the party who was best situated to

have avoided the loss.

A fundamental principle of equity provides that when a loss must be borne by one of two

innocent parties, the loss should fall on the party who enabled the loss to occur or who had the

best opportunity for avoiding the loss. This long-established equitable doctrine has been applied

in a variety of settings under many differing circumstances. See Italia Societa per Azioni di

Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324, 84 S. Ct. 748, 11 L. Ed. 2d 732,
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1964 A.M.C. 1075 (1964). For example, in Manchester Equip. Co. v. Am. Way Moving &

Storage Co., Inc., 176 F. Supp. 2d 239, 247 (D. Del. 2001), aff’d, 47 F. App'x 189 (3d Cir.

2002), both the plaintiff and the defendant were defrauded when a third party induced the

plaintiff to deliver computer equipment to the defendant. The district court stated that “where

both litigants are innocent, the burden must fall on the party that was the most active in creating

the situation that lead [sic] to the loss.” Id. (citing Realty Growth Investors v. Council of Unit

Owners, 453 A.2d 450, 457 (Del. 1982)).

In W. Bulk Carriers, K.S. v. United States, No. 97-2423, 1999 WL 1427719, 1999

A.M.C. at 2827 (E.D. Cal. 1999), the court found no authority for a contractual claim of breach

of implied warranty “where a wharfinger has failed to discover, remove and/or warn about the

existence of a shoal located within a federally-maintained waterway.” As the Western Bulk court

stated, “to find that the implied warranty stretches so far would run counter to the Supreme

Court’s reasoning that ‘liability should fall upon the party best situated to adopt preventive

measures and thereby to reduce the likelihood of injury.’” Id. (quoting Italia Societa per Azioni

di Navigazione, 376 U.S. at 324); see also W. Tankers Corp. v. United States, 387 F. Supp. 487,

491, 1975 A.M.C. 775 (S.D.N.Y. 1975) (holding that the vessel was best situated to have taken

preventive measures to avoid injury to a seaman in an unsafe berth and was sufficiently negligent

to preclude it from recovering indemnity from the charterer for breach of its duty to furnish a

safe berth).

Here, if the unknown third party who left the anchor in the River solely caused the spill,

the cost of the clean-up falls on the Oil Spill Liability Trust Fund, not CARCO. Alternatively,

plaintiffs were in control of their vessel’s navigation and could have avoided striking the anchor

through good seamanship. And in any event, at all times the Government retained sole
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responsibility and control of Federal Anchorage No. 9. The unknown anchor-dropper, Frescati,

Tsakos, and the Government itself were all in better positions than CARCO to have prevented

the incident. Under equitable principles, no responsibility falls on CARCO.

In the end, this litigation reflects a massive effort by plaintiffs to avoid their own

embarrassment and responsibilities. Plaintiffs seek to impose liability on CARCO by subverting

the OPA statute and perverting the provisions of CARCO’s Voyage Subchapter with Star

Tankers. Admiralty law, OPA, and equity do not permit such an injustice.

III. Frescati and Tsakos Have No Valid Wharfinger Negligence Claim

To establish negligence or fault under the general maritime law, the plaintiff must prove

that the defendant owed it a duty, that the defendant breached the duty, and that a causal

connection exists between the defendant’s conduct and the plaintiff’s injury. See Canal Barge

Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376, 2001 A.M.C. 1815 (5th Cir. 2000); Evans v.

Nantucket City. Sailing, Inc., 582 F. Supp. 2d 121, 137, 2009 A.M.C. 360 (D. Mass. 2008). The

plaintiff must carry this burden of proof by a preponderance of the evidence. In re Nautilus

Motor Tanker Co., Ltd., 862 F. Supp. 1260, 1271 (D.N.J. 1994), aff’d, 85 F.3d 105 (3d Cir.

1996). Frescati and Tsakos cannot meet their burden. CARCO acted as any reasonable private

terminal would and bears no responsibility for an allision and oil spill that it could not have

foreseen and in no way caused.

A. CARCO’s tort duty as a wharfinger is one of reasonable care.

The Third Circuit states that a wharfinger is ‘‘bound to use reasonable diligence in

ascertaining whether the berths themselves and the approaches to them are in an ordinary

condition of safety for vessels coming to and lying at the wharf.” In re Frescati, 718 F.3d at 207

(quoting Smith v. Burnett, 173 U.S. 430, 436 (1899) (quoting, with approval, The Calliope
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[1891] A.C. 11 (H.L.) 23 (appeal taken from Eng.)). Although the Court of Appeals has

determined that the ATHOS I was within the “approach” to the CARCO berth, it left to this

Court on remand the task of delineating “the exact standard of care required by CARCO, let

alone whether there was a breach of that standard (a.k.a. duty).” Id. at 211-12. The Third Circuit

emphasized that CARCO’s tort duty of reasonable diligence does not make it “a guarantor of a

visiting ship’s safety” and that it does not have “an unconstrained mandate to ‘ensure safe

surroundings or warn of hazards merely in the vicinity.’” In re Frescati, 718 F.3d at 207

(quoting In re Nautilus, 85 F.3d at 116 (citing Trade Banner Line, Inc. v. Caribbean S.S. Co.,

S.A., 571 F.2d 229, 230 (5th Cir. 1975)).

Plaintiffs cannot shift their own duties of good seamanship and navigation onto CARCO

as a dock owner. The master and pilot must make navigational decisions with due regard to

“existing conditions of tide, current, and weather.” See California ex rel. Dep’t of Transp. v. S/T

Norfolk, 435 F. Supp. 1039, 1047, 1978 A.M.C. 144 (N.D. Cal. 1977). “A wharfinger is under

no duty to advise an approaching vessel of weather reports at the pier or of other conditions

arising during the ordinary course of navigation or docking and which are readily apparent to the

ship.” Bangor & Aroostook R.R. Co. v. The Ship Fernview, 455 F. Supp. 1043, 1062, 1978

A.M.C. 2439 (D. Me. 1978). Indeed, in discussing CARCO’s tort duty, the Third Circuit itself

recognizes that the vessel bears the responsibility for its own navigation by stating that “‘a vessel

should be able to enter, use and exit a wharfinger’s dock facilities without being exposed to

dangers that cannot be avoided by reasonably prudent navigation and seamanship.’” In re

Frescati, 718 F.3d at 207 (quoting Trade Banner Line, Inc., 521 F.2d at 230). CARCO fully met

all these legal standards and did not breach its duty of reasonable care as a prudent wharfinger.
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1. At the time of the ATHOS incident in 2004, no jurisprudence imposed

an existing duty on CARCO to survey Federal Anchorage No. 9.

In its opinion, the Third Circuit states that negligence in admiralty law requires “[t]he

existence of a duty required by law which obliges the person to conform to a certain standard of

conduct. . . .” In re Frescati, 718 F.3d at 207 (citing 1 Schoenbaum, Admiralty and Maritime

Law, §§ 5-2 at 252; Pearce v. United States, 261 F.3d 643, 647 (6th Cir. 2001)). The Court of

Appeals emphasizes that the standard of reasonable diligence required of a wharfinger “varies

greatly” and depends upon “the circumstances” of the particular case. In re Frescati, 718 F.3d at

211 (“Negligence exists where there was a ‘fail[ure] to exercise that caution and diligence which

the circumstances demanded, and which prudent men ordinarily exercise.’ . . . In admiralty, the

particular duty required under any given circumstance can be gleaned from statute, custom, or

‘the demands of reasonableness and prudence.’” (citations omitted)).

Importantly, at the time of the ATHOS allision in 2004, no existing case law or statutory

regulation imposed any duty on a private wharfinger to survey Federal project waters for

hazards. Indeed, published jurisprudence held that a private wharfinger had no such duty. See

W. Bulk Carriers, K.S. v. United States, No. 97-2423, 1999 WL 1427719, 1999 A.M.C. 2818,

2827 (E.D. Cal. 1999) (holding that a wharfinger had no duty in tort or contract to discover and

warn of a shoal located within a federally maintained waterway); Japan Line, Ltd. v. United

States, 1976 A.M.C. 355, 366 (E.D. Pa. 1975), aff’d, 547 F.2d 1161, 1977 A.M.C. 265 (3d Cir.

1976) (recognizing that the Federal Government “has assumed the duties of surveying the

navigable channels of the Delaware River in advising mariners promptly of its findings.”)

(emphasis in original). The Third Circuit itself recognized that its ruling imposing a duty on

CARCO concerning the “approach” in this case was novel. See In re Frescati, 718 F.3d at 207

(“The geographic scope of a safe approach has been largely unaddressed by the courts.”). Prior
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to the Third Circuit’s decision in this case, no court had held that a private wharfinger owed any

duty concerning Federal Project waters. “Under the circumstances” prevailing at the time of the

ATHOS allision, therefore, CARCO acted reasonably in maintaining its own permitted area and

in not conducting speculative searches for unsuspected and unknown objects in Federal

Anchorage No. 9, an area that the Government agencies controlled.

The fact that the anchor was unknown to CARCO or anyone else limits the degree of

prudence expected of a reasonable wharfinger such as CARCO. In Smith v. Burnett, a vessel

grounded on a rock within a berth while actually secured to the pier and loading crushed stone.

Moreover, the wharf owners in Smith knew that another vessel with a similar draft had

previously grounded on a rock in the same berth. The Smith case did not involve an unknown

obstruction in an “approach” in a Federal waterway outside the berth, nor did it involve a vessel

that was underway and approaching the berth area. Smith’s mere reference to the vague

“approach” language in decisions applying English law does not support plaintiffs’ claim that

CARCO breached its duty of reasonable care under the law that existed at the time of the

allision.

In The Moorcock (1889), L.R. 14 P.D. 64, one of the English decisions cited in Smith and

relied upon by plaintiffs, a vessel sustained damage when she settled on a ridge on the bottom of

the River Thames while actually secured to the pier waiting to discharge at the defendant’s

facility. Unlike CARCO in the case at bar, the wharfinger in Moorcock had prior actual

knowledge that ships would touch bottom at low tide while docked at the berth, and the case did

not involve an unknown hazard in the approach.

In The Calliope [1891], A.C. 11, L.R. 14 Prob. Div. 138, another English case relied

upon by plaintiffs, a vessel damaged its hull when she came to rest on a mud ridge in the River
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Usk. Like The Moorcock, the case involved a condition of the river bottom that was well known

to the wharfinger and that had resulted from the use of the wharfinger’s facility. The wharf in

The Calliope had two berths, one alongside the pier and the other just outside of it, where vessels

would lie when stranded by the receding tide, causing mud ridges to form. The vessel in

question had been heading to the inner berth when she stranded on a ridge. Indeed, the Calliope

court ultimately found that the wharfinger did not breach any duty, because the captain and pilot

of the vessel had caused the injury by attempting to berth the vessel at an unsafe time of the tide.

2. CARCO reasonably relied on the Government’s exclusive dominion,

responsibility, and control over Federal Anchorage No. 9.

Through a “comprehensive system” and “elaborate plan” the Government “has assumed

the duties of surveying the navigable channels of the Delaware River and advising mariners

promptly of its findings.” Japan Line, 1976 A.M.C. at 366 (emphasis in original). As discussed

above, the Corps of Engineers, NOAA, and the Coast Guard investigated and reported the

condition of Federal Project waters.

The general public, terminal operators, and the Mariners Advisory Committee (“MAC”),

(an organization of professional mariners concerned with safe navigation of deep-draft vessels on

the Delaware River) naturally and properly looked to and relied on the Corps of Engineers,

NOAA, and the Coast Guard as the responsible federal agencies with the mandate for the

navigational safety of the River, including federal anchorages.317 One of the primary functions

of these three Government agencies is to ensure safe navigation.318 The MAC was made up of

professional mariners, ship operators, terminal operators, the U.S. Coast Guard, NOAA, and the

Corps of Engineers.319 The expectation of the MAC that the Corps of Engineers, NOAA, and the

317 [TT Day 3 amended (Adams) P. 67:16-20; 69:10-23; 98:5-99:5; Ex. D-1535].

318 [TT Day 35 (Barnes) Video Dep. P. 60:17-24; Ex. D-1535].

319 [TT Day 3 amended (Adams) P. 69:10-23; 101:13-20].
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Coast Guard were responsible for navigational safety of the Delaware River anchorages

constitutes evidence of the custom and practice on November 26, 2004. The MAC never looked

to private terminals when it came to the safety of federal channels or anchorages.

This complex scheme of federal statutes and regulations charging the Corps of Engineers,

NOAA, and the Coast Guard with responsibilities for Federal Anchorage No. 9 and informing

the public necessarily affects the standard of care expected of CARCO as a prudent wharfinger at

the time the ATHOS I incident in 2004. The evidence readily shows that CARCO as a private

wharfinger reasonably relied on the Government to safeguard federal waterways, including

Federal Anchorage No. 9.

3. No statute or regulation required CARCO to look for obstructions in

federal waters.

In its Opinion in this case concerning the specific nature of CARCO’s duty of reasonable

care as a wharfinger, the Third Circuit openly acknowledges that no statute required CARCO to

survey Federal Anchorage No. 9 for obstructions. See In re Frescati, 718 F.3d at 211 n.31 (“In

evaluating the specific nature of this duty, the parties point to no statute on point and our

research reveals none.”). The Government itself has judicially admitted in this case that “no

maritime statute or regulation creates a duty to keep anchorage grounds free of hidden

obstructions.” See USA Appellate Brief at p. 45. This point is especially significant as this

Court considers and delineates the exact standard of care required of CARCO on remand. As

discussed in detail above, the OPA statute and the Coast Guard regulations promulgated under it

impose an extensive network of requirements on the owners and operators of single-hull tankers,

but do not charge private terminal operators to search for objects in Federal Anchorage No. 9.
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Plaintiffs own expert, Andrew Brooking, admitted that no law or regulation required

CARCO to survey or look for obstructions in federal waters.320 He agreed that the Corps of

Engineers, NOAA, the Coast Guard, the pilots, the Maritime Exchange, and the Mariners

Advisory Committee (all with a greater responsibility over Federal Anchorage No. 9 than

CARCO) did not identify and manage the risk of the unknown anchor.321 Yet plaintiffs would

now seek impose that responsibility on CARCO as a prudent wharfinger.

The International Ship Safety Management System (“ISM”), though required for ships, is

not required of shoreside terminals.322 This is because ships are much more heavily regulated

than shoreside terminals. Although the SOLAS convention and 33 C.F.R. § 157.455 legally

mandate that the master of a single hulled tanker such as the ATHOS I pre-plan the ship’s

voyage to calculate anticipated underkeel clearance (and thereby assess the risk of striking

uncharted, submerged objects), no federal or state statutes or regulations require CARCO to

adopt the policies that plaintiffs propose. See 33 C.F.R. § 157.455 (a) and (b); SOLAS Chapter

34 and IMO Resolution A.893 (21); STCW. Even Andy Brooking, plaintiffs’ expert, concedes

this.323 Plaintiffs, not CARCO, failed to properly monitor and enforce a safety management

system, and thereby proximately caused the ATHOS I incident.

4. No custom put CARCO on notice to survey the Anchorage.

The absence of custom and statutory duty is relevant to establish the required standard of

care. See In re J.E. Brenneman Co., 322 F.2d 846, 855, 1964 A.M.C. 2037 (3d Cir. 1963);

Pennsylvania R.R. Co. v. S.S. Marie Leonhardt, 202 F. Supp. 368, 375, 1962 A.M.C. 370 (E.D.

Pa. 1962). It is a “material consideration.” See U.S. Fidelity & Guar. Co. v. Plovidba, 683 F.2d

320 [TT Day 13 amended (Brooking) P. 71:3-5; TT Day 30 amended (Rankine) P. 57:16-19; TT Day 30 amended

(Furlotte) P. 132:1-4; TT Day 35 (Barnes) Video Dep. P. 96:2-97:1].

321 [TT Day 13 amended (Brooking) P. 92:2-17].

322 [TT Day 13 amended (Brooking) P. 71:10-17; TT Day 30 amended (Rankine) P. 11:9-25].

323 [TT Day 13 amended (Brooking) P. 71:10-17].
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1022, 1028, 1983 A.M.C. 2473 (7th Cir. 1982). Custom is a finding of fact, subject to review

under the clearly erroneous standard. See Goodman v. Fireman’s Fund Ins. Co., 600 F.2d 1040,

1043, 1979 A.M.C. 2534 (4th Cir. 1979); Martin Marine Transp. Co., Inc. v. Jakobson &

Peterson Inc., 135 F.2d 325, 327, 1943 A.M.C. 498 (2d Cir. 1943).

No policy or custom imposed any obligation on CARCO or any other private terminal on

the Delaware River to survey the federal anchorage for uncharted objects before the ATHOS I

incident.324 Annually since 1991, an independent contractor, S.T. Hudson Engineering

(“Hudson”), performed hydrographic surveys of CARCO’s permitted area of responsibility.

Hudson performed surveys and obtained permits for thirty out of the thirty-two terminals on the

Delaware River and always used the same single beam sonar technology—which makes perfect

sense since the surveys are to determine depths and for no other purpose.325 The Corps of

Engineers also used only single-beam sonar to survey Federal Anchorage No. 9.326

Hudson only surveyed CARCO’s and the other terminals’ permitted areas of

responsibility, and CARCO had no responsibility, authority, interest, or reason to conduct

soundings or surveys beyond its permitted area.327 CARCO has never asked Hudson to survey

Federal Anchorage No. 9, and Hudson has never been asked to survey federal waters by any

terminal.328 Before 2004, Hudson had not conducted any side-scan sonar surveys for any

terminals to look for obstructions, other than looking for debris immediately adjacent to

324 [TT Day 6 amended (Capone) P. 183:2-20; TT Day 13 amended (Brooking) P. 70:24-71:25; 92:10-17; 106:1-4;

TT Day 28 (Long) P. 79:15-81:13; 112:8-117:11].

325 [TT Day 10 (Drager) P. 67:21-24; 70:16-71:11; TT Day 28 (Long) P. 80:11-81:13; Rankine Dep. (10/16/07) P.

146:6-13; Klein Dep. (11/20/07) P. 25:17-22; 35:1-12; 115:24-116:11; Ex. D-603 (Survey dated 10/18/04)].

326 [TT Day 6 amended (Capone) P. 182:6-184:6; TT Day 10 (De Pasquale) P. 92:20-93:10; TT Day 28 (Long) P.

91:14-92:4].

327 [TT Day 30 amended (Rankine) P. 54:7-24; Rankine Dep. 10/16/07, P. 172:5-174:5; TT Day 28 (Long) P. 79:15-

81:13; 82:4-18; 88:23-89:21; 112:8-117:11].

328 [TT Day 30 amended (Rankine) P. 57:6-58:3; TT Day 28 (Long) P. 79:15-81:13; 82:4-18; 88:23-89:12; 112:8-

117:11].
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collapsed piers or pilings.329 CARCO’s Marine Operations Guidelines specifically state that

CARCO has a policy of not surveying or dealing in any way with federal waters.330

Indeed, plaintiffs’ own witnesses acknowledged that no private terminal on the Delaware

River surveys federal project waters outside of their own berths and permitted areas of

maintenance.331 Brooking has never recommended that his private clients should survey federal

waterways, and he was unaware of any terminal on the Delaware River that has undertaken a

responsibility to survey Federal Anchorage No. 9.332 Thus, plaintiffs’ own experts established

that there was no custom and practice by wharfingers on the Delaware River to survey federal

waters. Whether CARCO could have voluntarily surveyed the Anchorage or could have

requested a permit to do so is beside the point. Like every other terminal on the river, CARCO

had no reason to do so and never did. According to the custom and practice in the industry prior

to the November 26, 2004 incident, terminal operators on the Delaware River did not survey

Federal anchorages.

As discussed above, CARCO and all the other users of the Delaware River relied upon

the Corps of Engineers and other federal agencies to maintain Federal Project waters, including

Federal Anchorage No. 9. Suggesting that CARCO and the other terminals’ duties as prudent

wharfingers included surveying for and discovering unknown and unsuspected objects in

publicly navigated waterways is unworkable, unrealistic, unreasonable, and unenforceable.

Finally, the events after the ATHOS I incident are the best evidence of who had the

responsibility to survey Federal Anchorage No. 9. NOAA and the Corps of Engineers

immediately took responsibility by conducting surveys of Federal Anchorage No. 9 to look for

329 [Klein Dep. (11/20/07) P. 25:23-26:17; 115:24-116:11].

330 [R. Williams Dep. (01/16/08) P. 144 (Errata); TT Day 30 amended (Rankine) P. 52:12-53:4; Ex. D-766 (Marine

Operations Guidelines (revised (5/30/2000)].

331 [TT Day 6 amended (Capone) P. 183:2-20; TT Day 13 amended (Brooking) P. 71:3-25; 92:10-17; 106:1-4].

332 [TT Day 13 amended (Brooking) P. 92:10-17; 105:22-106:4].
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the object struck by the ATHOS I. The Corps of Engineers conducted multi-beam sonar surveys

on November 28 and 29, 2004, and NOAA conducted side-scan sonar surveys searching for

objects within the Anchorage.333 Their actions are the best evidence of custom and practice

concerning who was responsible for surveying the Federal Anchorage No. 9. No one ever

looked to CARCO for survey information either before or after the incident. As a prudent

wharfinger, CARCO had no reason to believe that surveys of the Federal Anchorage were

necessary or expected of it as a private terminal.

5. A prudent wharfinger should not bear the unreasonable burden to

locate and remove an obstruction that nobody knew existed.

Absent notice of a potential hazard, the Corps of Engineers does not routinely search for

hazards because it is too expensive.334 Indeed, the U.S. Government in its Third Circuit

appellate brief admitted: “Unrebutted expert testimony in district court established that unless a

known or suspected hazard justifies the expense, federal agencies do not search for objects on

the river bed because speculative searches would be a pointless waste of resources.” See USA

Brief, Appeal No. 11-2577, at pp. 50-51 (emphasis added). The Government stated that

“searching indiscriminately for underwater hazards [would not] be a prudent use of resources for

the agencies charged with promoting the overall interests of safe navigation. . . .” Id. at pp. 23-

24. The Government also acknowledged that no dredging was performed after the Corps

performed its 2004 depth survey, “’because of the limited use of the anchorage’ and the lack of

any complaints or other evidence that ‘this was causing anybody any problems. . . .” Id. at p. 48.

Ironically, the search for the anchor in this case confirms the accuracy of the Government’s

concessions. Following the oil spill, the Government committed immense resources and spent

333 [TT Day 10 (DePasquale) P. 133:10-21; TT Day 24 amended (Barnum) P. 36:20-24; 37:20-24; TT Day 25

(Danley) Video Dep. P. 125:3-24; 126:1-16; 129:7-15; 129:21-24; 130:1-8; Ex. D-1514 (NOAA Graphic); TT Day

22 (Traykovski) P. 11:4-17].

334 [TT Day 35 (Barnes) Video Dep. (08/12/09) P. 68:2-11].
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several weeks searching a part of the anchorage for the object, but the anchor was not located

and removed until some 40 days after the incident. The Government’s stated position constitutes

evidence of custom and practice concerning surveying. Neither the Government nor private

terminal operators conducted speculative searches for unknown objects. The long and expensive

post-incident search for the anchor in this case further proves the Government’s point.

Any suggestion that the anchor would have necessarily or easily been discovered through

the use of side-scan or multi-beam sonar surveys or a wire drag is flatly contradicted by the

evidence demonstrating the extraordinary difficulty encountered by the Government in locating

the anchor after the incident. It took plaintiffs, NOAA, the Coast Guard, and the Corps of

Engineers 40 days of active searching to locate the anchor after the November 26, 2004 oil spill,

even though: (1) they knew that the object struck by the ATHOS I existed; (2) they knew the

precise GPS track of the ATHOS I; (3) they knew the approximate GPS location of the anchor;

and (4) they were assisted by divers, government survey vessels, more than 200 side scan sonar

surveys, multiple multibeam sonar surveys, and magnetometer technology.335 Despite this

detailed actual knowledge and these technological advantages, plaintiffs spent over $100,000 in

post-incident search charges paid to John Fish’s company AUSS, which does not include the

additional labor and equipment dedicated to the search by NOAA, the Coast Guard, and the Corp

of Engineers.336 Plaintiffs’ own expert, John Fish, testified at trial that he believed that a side

scan survey would cost between $8,000 and $10,000, but his own firm charged more than

$100,000 for the post-incident search that took 40 days, even though they knew the ship’s GPS

track and the GPS coordinates of the location where the ship contacted the anchor.337

335 [TT Day 33 amended (Ross) P. 21:2-13; 22:17-23:8; TT Day 6 amended (Fish) P. 56:13-57:1; 84:16-24; 85:21-

86:17; 87:1-8; 88:19-89:21; 91:2-24; Ex. D-1914].

336 [TT Day 6 amended (Fish) P. 88:19-25; 91:25-92:5].

337 [TT Day 6 amended (Fish) P. 56:13-19; 84:13-24; 89:1-21; 91:2-92:5].
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Furthermore, very early on in the 40-day search, the Government held a press conference

on December 7, 2004 and erroneously advised the public that a pump casing was the object

struck by the ATHOS I.338 It was Captain Sarrubi of the Coast Guard who identified the pump

casing as the culprit at the press conference.339 Ironically, the wrongly blamed pump casing was

not identified by the many sonar surveys, but rather by happenstance when diver Robert Ross

“bumped into it” at the end of one of his dives.340 Plaintiffs’ first phase of their extensive search

for a known object ended on December 10, 2004 and cost more than $38,000 with the result

being the inadvertent discovery of the wrong object and the inability to find the anchor.341

Despite performing and analyzing numerous side scan surveys that would have included

the location of the anchor, plaintiffs blamed the pump casing for the incident and did not

discover the anchor until weeks later.342 After more than 200 side-scan runs, plaintiffs did not

locate, identify, and remove the anchor until January 17, 2005.343 Plaintiffs own difficulty and

confusion in their post-incident search of Federal Anchorage No. 9 refutes their speculation that

CARCO would have somehow found the anchor with minimal effort and expense.

Side-scan sonar does not indicate the depth of an object and therefore does not provide

information about whether or not it poses a danger to navigation.344 In light of these facts,

plaintiffs have no basis for their unsupported suggestion that CARCO could have easily found

the anchor through an “inexpensive” search for an object it did not know existed. Indeed, as the

Third Circuit noted, Judge Fullam stated that he “was not convinced that had the area been

scanned the anchor would perforce have been detected. . . .” In re Frescati, 718 F.3d at 212 and

338 [TT Day 6 amended (Fish) P. 87:9-88:22].

339 [TT Day 33 amended (Ross) P. 21:2-13; 21:22-22:1; TT Day 6 amended (Fish) P. 84:16-24; 85:21-24; 87:1-25;

88:1-3; Ex. D-1549A; Danley Dep. P. 142:22-144:12].

340 [TT Day 33 amended (Ross) P. 21:2-13; Ex. D-1549A].

341 [TT Day 6 amended (Fish) P. 87:9-88:25; TT Day 33 amended (Ross) P. 21:2-13].

342 [TT Day 33 amended (Ross) P. 22:25-23:8; TT Day 6 amended (Fish) P. 87:9-89:21].

343 [TT Day 6 amended (Fish) P. 84:13-24; 89:1-21].

344 [TT Day 22 (Traykovski) P. 57:3-58:21; TT Day 6 amended (Fish) P. 98:19-21].
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n.32. The anchor was only discovered post-accident after herculean and costly efforts, even with

the benefit of the vessel’s GPS track and the exact location of the vessel’s contact with the

object.

The Corps of Engineers’ ultimately fruitless search for a missing propeller from the

Dredge MCFARLAND in 2004 further exemplifies the difficulty of detecting the existence of

objects in the Delaware River. The search for that propeller included side-scan surveys inside

the confines of Federal Anchorage No. 9.345 Although it knew the dredge’s location when it lost

its propeller, as well as the vessel’s track, the Corps of Engineers was never able to find the

propeller, despite searching for it for months using multi-beam and side-scan sonar, as well as

divers.346 Plaintiffs’ assertion that inexpensive measures somehow would have led to CARCO to

discover an unknown anchor ignores reality and their own time-consuming, expensive, and

massive effort to find a known object armed with precise GPS coordinates.

Even if the subject area within Federal Anchorage No. 9 had been surveyed with side

scan sonar technology as proposed by plaintiffs, the evidence shows that more likely than not

that the anchor would not have been discovered. This is the very reason why plaintiff USA

admitted in its appellate brief that speculative searches for unknown objects are a waste of

resources. [USA Appellate Brief at p. 50-51]. CARCO’s standard of reasonable care as a

private wharfinger likewise does not require such perpetual speculative searches for unknown

and unsuspected objects.

B. CARCO did not proximately cause the oil spill.

The law also requires plaintiffs to prove that CARCO proximately caused the oil spill.

See In re Frescati, 718 F.3d at 212 (“On remand, the District Court will also need to determine

345 [TT Day 10 (DePasquale) P. 130:13-20].

346 [TT Day 10 (DePasquale) P. 127:1-24; 130:13-20; TT Day 6 amended (Capone) P. 138:10-139:3].
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whether the failure, if any, to meet the standard of care proximately caused the accident.”). A

party alleging negligence under maritime law must demonstrate both factual and proximate

causation. In re J.A.R. Barge Lines, L.P., No. 03-180, 2007 WL 674348 at *29 (W.D. Pa.

Feb. 28, 2007); Galentine v. Estate of Stekervetz, 273 F. Supp. 2d 538, 548 (D. Del. 2003).

Factual causation involves an inquiry into whether the event would have occurred in the absence

of an act or omission, whereas proximate cause involves an inquiry into whether the damage was

a reasonably foreseeable consequence. Id. All factual (“but for”) causes are not necessarily

proximate causes. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 492 (3d Cir.

1985); see In re Frescati, 718 F.3d at 212 (“More crucially, the issue is whether the accident

would have been prevented had CARCO exercised its duty to act as a prudent wharfinger within

the approach. . . . Here, the causation inquiry turns on whether prudent behavior—had it been

exercised, a factual inquiry—would have prevented the injury.”).

Plaintiffs cannot prove that CARCO breached a duty that proximately caused the oil spill.

Proximate cause involves an inquiry into whether the damage was a reasonably foreseeable

consequence of the defendant’s act or omission, not simply a factual, temporal, or “but-for”

occurrence in a chain of factual events leading up to the alleged damage. See In re J.A.R. Barge

Lines, L.P., 2007 WL 674348 at *29. Proximate cause “hinges on principles of responsibility,

not physics.” Van Buskirk, 760 F.2d at 492. As noted earlier, a defendant has a complete

defense against both negligence and warranty claims when the sole proximate cause lies

elsewhere with other persons. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 842, 116 S. Ct.

1813, 135 L. Ed. 2d 113, 1996 A.M.C. 1817 (1996); Allen v. Chance Mfg. Co., 873 F.2d 465,

471 (1st Cir. 1989).
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1. CARCO had no reason to know of the anchor or to assume that the oil

spill was probable.

In order to carry its burden of proving that the defendant’s negligent act proximately

caused the damage, the plaintiff must show that the wharfinger knew or should have known

about the condition at issue. Tracy Towing Line, Inc. v. Jersey City, 105 F. Supp. 910, 912, 1952

A.M.C. 2017 (D.N.J. 1952). “Lack of care is never presumed; it must be shown by a fair

preponderance of the evidence. . . . ” Hams v. Luckenbach Terminals, Inc., 38 F. Supp. 485, 487,

1941 A.M.C. 1412, 1415-16 (D.N.J. 1941) (citation omitted).

Foreseeability is relevant to both the duty and proximate cause determinations. Republic

of France v. United States, 290 F.2d 395, 399, 1961 A.M.C. 1082 (5th Cir. 1961), partially

overruled on other grounds by Rayonier, Inc. v. United States, 352 U.S. 315 (1957). To prove a

duty and its breach, plaintiffs must show that the defendant had knowledge of a danger and failed

to warn of it, which requires a finding that the defendant knew or had reason to know that a

specific danger is “not merely possible, but probable.” Dalehite v. United States, 346 U.S. 15,

42 (1953); In re Lloyd's Leasing, Ltd., 764 F. Supp. 1114, 1136, 1991 A.M.C. 906 (S.D. Tex.

1990). The harm alleged must be “within the scope of the risk” that the defendant’s conduct

creates. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 212, 2012 A.M.C. 2048 (5th

Cir. 2010); Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67, 1988 A.M.C. 2352

(5th Cir. 1987), cert. denied, 486 U.S. 1055 (1988).

In Lloyd’s Leasing, where vessels with similar drafts had safely used the port without

complaints or problems, the court held that Conoco, a charterer and terminal owner, was not

negligent in chartering a vessel with a 40-foot draft to carry a cargo of crude oil to its terminal

near Lake Charles, Louisiana, where “there was no way for Conoco to have known it was

possible for a properly navigated, seaworthy vessel of the size and draft of the ALVENUS to
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contact the bottom, much less suffer any hull damage under normal weather and tide conditions

in the Calcasieu Channel.” 764 F. Supp. at 1123, 1136. “Conoco was not negligent because it

was not probable that there would be any damage to a seaworthy vessel with a 40-foot draft.” Id.

at 1136. The court likewise found no tort liability or duty on Conoco to change its policy on

draft where “Conoco could not have foreseen that a 40-foot draft on a seaworthy vessel could

result in damage to that seaworthy vessel that would result in an oil spill. . . .” Id. at 1136.

In McCaldin v. Parke, the court held that a wharfinger was not negligent and had not

failed to use ordinary care to make its wharf reasonably safe where a vessel struck an uncharted

rock in the East River about 70 feet from the wharf. 37 N.E. 622, 623-24, 142 N.Y. 564 (N.Y.

1894). In so holding, the court noted that the wharfingers had owned and used their wharf for 12

years, that neither they nor their employees had ever heard of the rocks, that 500 to 1,000 vessels

(many of them as large and some larger than the plaintiff’s vessel) had gone to the wharf in

safety, that the plaintiff’s vessel had used the wharf twice before, and that the defendants had

dredged the place in front of their wharf. Id. As the McCaldin court stated, under those

circumstances the wharfingers had no reason to suppose that the approach to their wharf was not

safe:

What greater assurance of their safety could they have than that they had always

been found adequate for all the vessels that came there during a series of years?

They had employed a dredging company to dredge out the basin in front of their

wharf. What more should they have done, having no notice whatever of the

presence of the rocks there?

Id. at 624.

In Guinan v. Boston, Cape Cod & New York Canal Co., 1 F.2d 239, 245, 1924 A.M.C.

1161 (2d Cir. 1924), a private canal company had no liability for damage to a barge that struck

an unknown obstruction while navigating the defendant’s tidewater ship canal, where numerous
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vessels had passed through the canal and over the identical spot without damage and where no

one knew of the existence of any obstruction at that point until this accident. The Guinan court

cited with approval the following passage from Exchange Fire Ins. Co. v. Delaware & Hudson

Canal Co., 10 Bosw. 180, 188 (N.Y. Super. Ct. 1863), which held that a canal owner had

employed reasonable diligence and likewise was not liable for an unknown obstruction:

One thing is very clear, that, the stone being covered by water, there was no

notice of its presence until something came in contact with it. It would be

unreasonable to require the defendants to sound and drag the whole length of their

canal perpetually, to ascertain what obstructions might lie at the bottom, or to

keep guards along the banks to prevent the commission of injuries by designing

persons. Id. at 243.

The Exchange Fire court found no evidence to attribute the presence of the stone to the

defendant’s negligence rather than to an unforeseen accident. Id. The Guinan court similarly

held that the plaintiff had failed to carry its burden of showing negligence or want of due care

under the circumstances concerning an unknown obstruction. 1 F.2d at 245.

The foregoing decisions cannot be more determinative and on point. Like the

charterers/terminal operators/canal owners in those cases, CARCO neither knew nor had any

reason to believe that an anchor or other object was present in Federal Anchorage No. 9.

Not only was the actual presence of the anchor in Federal Anchorage No. 9 unknown to

CARCO, but CARCO knew that hundreds of vessels, many with drafts deeper than the ATHOS

I’s reported draft of 36 feet 6 inches, in fact had safely used the Anchorage and its dock for

years. Not one of those vessels had problems transiting the river, Federal Anchorage No. 9, or at

the berth.347 A total of 250 ships had arrived at or departed from the CARCO berth over the

course of seven years without any reported problems in the Anchorage or at the berth.348

347 [TT Day 30 amended (Rankine) P. 14:3-17:15; Ex. 586; Ex. 586 A].

348 Id.; [TT Day 30 amended (Rankine) P. 22:25-23:6; 23:13-23].
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Plaintiffs’ own witness, Stephen Carroll (a local steamship agent for the ATHOS I, who

coordinated the ship’s arrival and docking), had no knowledge that any ship had ever struck a

submerged object in Federal Anchorage No. 9 before the ATHOS I.349 Carroll had previously

handled the berthing of vessels with 39-foot drafts at the CARCO dock without any problem.350

Pilot Bethel had previously docked 15 tankers at the terminal and was not aware of any

obstructions or hazards to navigation in Federal Anchorage No. 9 before the ATHOS I

incident.351

Under these circumstances, as a reasonable dock owner, CARCO could not possibly have

foreseen that as a result of choosing its berth at Paulsboro as the point of cargo discharge, the

ATHOS I would allide with the uncharted anchor abandoned in Federal Anchorage No. 9. The

oil spill was not “probable” and was therefore not foreseeable to CARCO as a terminal operator

in view of the extensive and continuous history of safe passage by hundreds of similar vessels

and the frequent use of the Anchorage and CARCO’s berth by ships with drafts as deep or

deeper than the ATHOS I. As the Third Circuit states in its Opinion, “the particular hazard—the

submerged anchor—was unknown to the parties.” In re Frescati, 718 F.3d at 206. CARCO had

no actual or constructive knowledge of the uncharted anchor hundreds of yards from its berth.

The presence of this anchor was not reasonably foreseeable, except in plaintiffs’ “perfect

hindsight,” which they wrongly seek to impose on CARCO and no one else.

2. CARCO could not have reasonably anticipated that a single hulled

tanker would navigate so recklessly at low tide.

Plaintiffs—who certainly owed a duty to maintain a seaworthy vessel and to adhere to

statutes and regulations governing safe navigation—could have prevented the oil spill with

349 [TT Day 11 amended (Carroll) P. 72:15-24].

350 Id. [TT Day 11 amended (Carroll) P. 73:6-21].

351 [TT Day 8 amended (Bethel) P. 4:14-20; 41:18-42:2; 54:17-55:9; 56:11-14].
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virtually no “burden” at all. As the Third Circuit noted, no claim is available against a

wharfinger where a danger can be avoided by the vessel “by reasonably prudent navigation and

seamanship.” In re Frescati, 718 F.3d at 207. The ATHOS I would have avoided hitting the

anchor had plaintiffs undertaken a proper underkeel clearance analysis and transited through the

Anchorage at a higher state of the tide. If the ship had performed the underkeel clearance

analysis required by both Federal regulations and Tsakos’ own Safety Management System, the

crew would have realized that the ship did not have the necessary safety margin and would have

waited for a higher stage of the tide.

Frescati and Tsakos cannot prove that the oil spill was a highly “probable” and

“foreseeable” result of any act of CARCO, though it was certainly the probable (if not certain)

result of plaintiffs’ own actions in negligently navigating an unseaworthy vessel without accurate

knowledge of its draft and underkeel clearance in view of the tide. In light of the unblemished

safety record of the port and berth, CARCO had no inkling that an oil spill was probable or even

possible, or that a seaworthy vessel properly maintained and navigated would encounter any

problem.

Notwithstanding the anchor’s being indisputably unknown to the United States, the

pilots, and to all river users, and unforeseeable in a practical sense based on the extensive history

of vessel traffic using the Anchorage and the berth without incident, plaintiffs nevertheless go

still further and seek to impose “constructive knowledge” of the anchor against CARCO (but no

one else), on the basis that the anchor had been there a long time. The fact that it had been there

for years without prior incident or complaint shows that there had been no reason, over many

years of ship traffic, to suspect it was there. In other words, this fact rebuts plaintiffs’ reasoning

rather than supporting it.
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Plaintiffs attempt to evade responsibility for their own faulty navigation, failure to

maintain a seaworthy vessel, and disregard and violation of applicable safety regulations by

arguing that CARCO “did nothing.” Based on information available to CARCO (as opposed to

the universe of navigational information possessed by plaintiffs), there was a negligible chance

from CARCO’s standpoint that a vessel, with a draft similar to or even greater than ATHOS I’s

reported draft, would strike an abandoned, uncharted submerged anchor in the Federal

Anchorage and cause an oil spill.

On the other hand, there is ample evidence warning single hull tankers such as the

ATHOS I of the critical importance of maintaining an adequate underkeel safety margin

precisely because of the danger they might encounter an uncharted hazard or shoal. The

following oft-cited statement from the Coast Pilot concerning underkeel clearance is just one

example: “It cannot be too strongly emphasized that even charts based on modern surveys may

not show all seabed obstructions or the shoalest depths, and actual tide levels may be appreciably

lower than those predicted.”352 Plaintiffs, who failed to even consider underkeel clearance

before the transit, did so with full awareness that uncharted objects pose a threat to ships

(particularly single-hulled ships) and that proper voyage planning is the best and only line of

defense against this risk.

Plaintiffs’ own conduct in navigating their unseaworthy single-hulled tanker at low tide

without planning their voyage and calculating underkeel clearance in view of the tide and the

controlling depths of the waters they traversed greatly increased the risk of an oil spill from

grounding or striking an object that it could easily have been able to avoid by exercising good

seamanship and complying with the mandatory Coast Guard regulations. Thus, to the extent the

352 [TT Day 24 amended (Barnum) P. 35:8-25; Ex. D-1108 at CARPROD 23014 (2004 United States Coast Pilot:

Atlantic Coast)].
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foreseeability of a major oil spill is used to evaluate CARCO’s and plaintiffs’ respective actions,

plaintiffs proximately caused the allision and should be held liable, not CARCO.

3. The negligence and fault of the plaintiffs and those in charge of the

vessel’s navigation were the sole proximate cause of the incident.

As discussed in detail above, the unseaworthiness of the ATHOS I and the fault and

negligence of those in charge of the vessel’s navigation proximately caused the incident. Those

facts and the applicable law are equally relevant to both the contract and tort claims. Therefore,

even if the plaintiffs could establish a prima facia case on its wharfinger negligence claim, which

they cannot, this Court should conclude that the plaintiffs’ fault, negligence, and the

unseaworthiness of the ATHOS I solely caused the allision and the resultant oil spill.

CONCLUSION

Under the applicable law and the evidence, plaintiffs have no basis for recovery against

CARCO either in contract or in negligence. This Court should find in favor of CARCO on all

claims asserted against it.
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Respectfully submitted,

CHAFFE McCALL, L.L.P. PALMER BIEZUP & HENDERSON LLP

By: /s/ Derek A. Walker By: /s/Richard Q. Whelan

Derek A. Walker Richard Q. Whelan (ID No. 35688)

Douglas L. Grundmeyer Frank P. DeGiulio (ID No. 41577)

Chaffe McCall, L.L.P. Palmer Biezup & Henderson, LLP

1100 Poydras Street 190 N. Independence Mall West

2300 Energy Centre Suite 401

New Orleans, LA 70163 Philadelphia, PA 19106-3409

(504) 585-7000 (215) 625-9900

STRONG PIPKIN BISSELL & LEDYARD, L.L.P.

By: /s/ John G. Bissell

John G. Bissell

Strong Pipkin Bissell & Ledyard, L.L.P.

4900 Woodway Drive, Suite 1200

Houston, TX 77056

(713) 210-4366

Attorneys for Claimant,

CITGO Asphalt Refining Company,

CITGO Petroleum Corporation, and

CITGO East Coast Oil Corporation

Dated: February 13, 2015
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CERTIFICATE OF SERVICE

The undersigned certifies that service of a true and correct copy of Defendants’ Pre-Trial

Brief on Liability was sent to the following counsel on the below-listed date, via electronic mail:

Alfred J. Kuffler, Esq.

Montgomery, McCracken, Walker

& Rhoads, LLP

123 South Broad Street

Philadelphia, PA 19109

John J. Levy, Esq.

Montgomery, McCracken, Walker

& Rhoads, LLP

457 Haddonfield Road, Suite 600

Cherry Hill, NJ 08002

Eugene J. O’Connor, Esq.

Montgomery, McCracken, Walker

& Rhoads, LLP

437 Madison Avenue, 29th Floor

New York, NY 10022

Stephen G. Flynn (SGF-8075)

Department of Justice

Assistant Director Admiralty

Sharon K. Shutler

Trial Attorney

Torts Branch, Civil Division

P.O. Box 14271

Washington, D.C. 20044-4271

PALMER BIEZUP & HENDERSON LLP

By: /s/ Richard Q. Whelan

Frank P. DeGiulio (ID No. 41577)

Palmer Biezup & Henderson LLP

190 N. Independence Mall West Suite 401

Philadelphia, PA 19106-1572

Telephone: (215) 625-7809

Dated: February 13, 2015