HISTORICAL MARITIME FRAUD MV Cumberland- Negligence!!A Drawback of the Marine Insurance

“Some of the vessels on which the Insurance brokers have secured insurance will be the colour of rust inside. That rust may be no thin veneer of oxidation but wastage so great as to render the ship unseaworthy.”

Shipping is a global business, involving many players and different jurisdictions in any single shipment of cargo. A simple and single shipment could involve a bunch of problems associated with pitfalls where the unscrupulous seek to take advantage of those are not prepared. As the players are very often based in multiple jurisdictions, and out of necessity deal with each other at arm’s length. Through Brokers and Financial Institutions, there is practically nil opportunity for physical checks.

Shipping almost necessarily entails loss and injury to ships, cargo, human life and the environment.’ As a matter of course, the shipper, carrier and maritime worker will bear some of these costs. In addition, however, today’s admiralty courts accommodate a growing number of other parties seeking to avoid the high costs associated with lost life and environmental cleanup. These litigants include nautical officers, marine engineers, shipbuilders, stevedores, towage companies, and marine surveyors and classification societies. In the eyes of the law, a marine surveyor is a professional. In particular, the courts have defined a marine surveyor as a skilled workman whose profession “is to assist the judgment of the master as to his proceedings to repair damage or sell the ship. Generally, the work of a surveyor falls into two categories: hull & machinery surveyance and cargo surveyance.’ 5 In the broad sense of the term, the “hull surveyor” examines the entire ship and its fixtures and appliances to determine seaworthiness. In the narrow sense of the term, a “hull surveyor” is one who inspects the superstructure of the ship for leaks, worn surfaces and structural weaknesses which could cause leakage or sinking of the vessel.

A similar negligent ignorance in the survey of a vessel to keep the owner’s interest in good hope led to the torture of a vessel, sinking it to the bottom of the ocean with all cargo leading to the loss of the company, and the insurers. The following article is the narration of such a sinking of the vessel The Cumberland near the Pitcairn Island in 1987.
Pitcairn Island is the only inhabited island in the group about 1,500 miles southeast of Tahiti in the South Seas. It was originally populated by mutineers from the HMS Bounty in the 19th century. The island, one- and three-quarter square miles of rock covered with trees, shows as only a tiny speck on the chart of the South Pacific Ocean. Situated halfway between New Zealand and South America, the island offers, even to this day, the ultimate isolation. On the morning of 12 June 1987, the 37,570-ton MV Cumberland (IMO No: 7302990) on passage from Newcastle, NSW to the Panama Canal, gave her position some 180 miles east north east of Pitcairn. Her message was brief and to the point, telling of a critical situation on board. Her two forward holds were flooded, and she was making all possible speed for the nearest land, the uninhabited Henderson Island, 120 miles northeast of Pitcairn.

All the Indian crew members from the Cumberland were picked up in good condition, although one woman had to be hoisted aboard on a stretcher, Pitcairn Magistrate Brian Young said. They were rescued by the British freighter Act 5, officials said. Radio communications between the rescue ship and Pitcairn were conducted in Morse code and further details on the crews’ condition and why the ship sank were not available soon enough, officials said.

The Cumberland began her life in the Hellenic Shipyard at Skara manga, Greece in April 1973. She was a BC35 class bulk carrier, British designed medium sized bulk carrier, 647 feet long, equipped with six electric cranes, which allowed her to be self-sustaining in cargo handling. She had a gross tonnage of 21,384 tons, and a deadweight of 36,978 tons. Her seven holds were hopper shaped to avoid any need for trimming the ore, and were flanked by seven saddle ballast tanks. Her Polish built Sulzer diesel engine gave her a service speed of 16 knots.

She was first registered in Piraeus under the name “World Achilles”, and served her original owners for only twenty months, before being sold to the ‘Broken Hill Proprietary Company of Australia’. Renamed “Iron Cumberland”, she was then re-registered under the Hong Kong flag in the ownership of the ‘County Shipping Company’, a wholly owned subsidiary of Broken Hill–a flagged out Australian ship, in other words. Manned by a full Australian crew, she plied the Australian coastal trade for the next twelve years, much of the time carrying iron ore from Yampi Sound, West Australia to Port Kembla and Newcastle, NSW. Being a handy size and having her own cranes, the Iron Cumberland was ideally suited to this run, but she was inevitably pushed to her utmost limits. The passage between ports was only eight days, the turnaround times fast, and there was little time to spare for maintenance, which gradually assumed a very low priority. The Iron Cumberland grew old and battered in the service of Broken Hill. In December 1986, then nearing the end of her useful life, she was sold to a third owner, Glenara Ltd., and was renamed “Cumberland”, retaining her Hong Kong registry.

Manned by an Indian crew, she was then immediately taken on a time-charter by Furness-Withy, an Australian Corporation, which had voyage-chartered it to Electrolytic Zinc Company of Australasia Ltd., another Australian Corporation. The phoenix had risen from the ashes, with a new name, a new insignia on her funnel, but otherwise, apart from a few essential repairs, the Cumberland was still her tired old self. The Cumberland’s chief officer, the first of her new all Indian crew, joined her in Hakata, Japan on 16 November, 1986, just nine days before she was handed over to Glenara. He was not impressed with the state of his new ship, which in his stated opinion had suffered years of neglect, particularly on the deck. He found the hull and deck plating to be badly corroded in many areas, while below decks bulkheads, tank tops and the ship’s side plates were covered with loose rust. The main deck, he reported as covered with a thick coating of fish oil mixed with ore dust, below which was thick rust. Quite obviously, the Cumberland was a victim of the modern approach to ship operation, which spurns anything that might be construed as cosmetic maintenance.

Only the bare minimum of work required to keep the insurance in force was carried out, while many pivotal repairs were overlooked upon as making unwarranted inroads into profit. Since she was already 14 years old, the Cumberland was due for a special hull survey, and if she was to remain in class, and therefore insurable, this could not be avoided. She entered the dry dock at Ulsan, South Korea on January 9, 1987, and nine days later emerged with all her certificates in force. But nothing could disguise the fact that the long years on a punishing, nonstop schedule had taken their toll. She was long overdue for the breaker’s yard, but before she went, Glenara intended to put her to the ultimate test on a long haul Pacific run. Over the following five months, she made three round voyages in quick succession from Australia to Japan. It was when she was returning from Japan in ballast for the third time, that her newly joined Indian chief officer, when making a routine inspection of the holds, discovered a six foot long crack in the watertight bulkhead separating No.1 and 2 holds. This crack was welded up at sea by the ship’s engineers.

The Cumberland arrived at Bell Bay, Tasmania, where she was to commence loading, on 12 May 1987. Here Captain W.G. Kaisar assumed command. With regard to the state of the bulk carrier’s holds, he noted her general condition as poor, with much superficial damage to the hull and holds, neither of which had seen paint in a long while. Her tank tops and hoppers were battered, and the corrugated bulkhead between holds No. 1 and 2 was wasted and welded up in places. An independent surveyor, carrying out an “on hire” survey at Bell Bay for the charterers, BHP, reported in a similar vein, but ignored the faults in the forward watertight bulkhead, as reported by Captain Kaisar. However, after being advised by Kaisar, the Cumberland’s owners agreed to the employment of shore welders to reweld the fracture in the bulkhead on both sides. There was nothing that could be done about the obvious wastage of the steel in the bulkhead. Unexpectedly, the Cumberland was delayed awaiting a berth at Bell Bay, and it was not until 23 May that she sailed, having loaded 21,285 tons of Manganese Sinter and 4,419 tons of Ferro Manganese Fines. The latter, being an exceptionally dense cargo, stowing at only 9 cubic feet to the ton, was placed amidships in No. 4 hold, while the Sinter, a coke like ore stowing at 20 cubic feet to the ton, was distributed between Nos. 1, 3, 5 and 7 holds. The passage to Newcastle, where the Cumberland was to complete loading, was uneventful. The weather on passage was not good, predicted with ‘force 6’ North-north westerly winds, and a moderate sea with swell prevailing. A reasonable speed was maintained, the ship reaching Newcastle on the evening of May 25th. Here she loaded 10,278 metric tons of Elura Lead Concentrate, which was carried under a bill of lading held and endorsed to ASARCO, a New York Corporation, and insured by Hansa Marine Insurance, a Swedish corporation. The bill of lading was signed by Burns Phlip Company Ltd., as agent for Furness-Withy or Electrolytic Zinc.

When the Cumberland sailed from Newcastle, on the evening of May 27, her draught was 38 feet, and she had on board a total cargo of 35,942 tons. This was as evenly distributed between her seven holds as was possible. Before sailing, the Chief Officer calculated the shearing force and bending moment at each bulkhead between the holds, and confirmed to Captain Kaisar that the stresses on the ship were well within the permissible limits. The calculated metacentric height of ship and cargo was just over 18 feet, giving the ship great stability, but as is usual with a loaded ore carrier, an uncomfortable stiffness in any sort of a sea.

The declared destination of the Cumberland’s cargo was Burnside, near New Orleans, in the Gulf of Mexico. She was small enough to transit the Panama Canal, but even so, she faced a passage of over 9,000 miles. The weather enroute was expected to be favourable, however, the Cumberland was heavy, and her engine had seen its best days. She was unlikely to average much more than 12 knots, at which rate she would expect to reach Balboa, Panama at the Pacific end of the canal, in around twenty-five days. It would be the end of June before she arrived off New Orleans. During the long ocean passage between Newcastle and Balboa, across the vast emptiness of the South Pacific, the Cumberland was to be weather monitored by Navitech, New York. She would follow the great circle track south of the islands of Polynesia, and then direct to Panama, participating throughout in the AMVER reporting scheme. It was anticipated that the passage would be leisurely and uneventful. Things began to go wrong for the Cumberland from the moment she cleared the breakwaters at the mouth of the Hunter River. She immediately ran into a wind ‘force 8’ South south-westerly, with rough seas and a heavy swell, and a bemoan to this began to roll her gunwales under.

For those on board who were experiencing their first ocean passage in the bulker this, was not a happy introduction. Mercifully, the gale did not linger, and by noon on the 29th, when the Cumberland was south of Lord Howe Island, the weather became more friendly. The wind eased, the sun broke through, and the ship was soon putting the miles behind her at a steady 11 knots, although she had now acquired a long, lazy roll as she rode the big swells bearing down on her from the south.

On the afternoon of May 31st, the Cumberland was in the 30-mile-wide channel between Three Kings Islands and the northern point of New Zealand. The weather continued to improve; the wind having dropped away to no more than a moderate breeze from the southeast. This was the first of the South-east Trades, which brought with them blue skies dotted with fair weather cumulus, and a discernible lifting of spirits aboard the Cumberland. The news from New York was also good, Navitech indicating that a large area of high pressure covered much of the ship’s intended route. Yet, West to northwest winds force 4 to 6 were forecast up to longitude 170° W. Thereafter, it was predicted that the wind would ease and go round to the northeast before backing and settling down between southeast and southwest. At no time was the wind expected to exceed force 6. By noon on 2 June, the bulker had reached a position 230 miles south of the Kermadec Islands, and was logging a very respectable 12 knots, but as forecast by Navitech, the wind was beginning to come ahead.

The International Date Line was crossed at about 1600 hrs on June 3rd , and the clocks were retarded one whole day, the third day of the month becoming the second, much to the bewilderment of some crew members. The wind was now due east, blowing from right ahead, and bringing with it a rising sea that sent spray soaring over the Cumberland’s blunt bows. The futility of attempting to read the weather from an office 6,500 miles removed from the scene was now becoming evident. Navitech’s forecast had gone badly wrong, and by noon on June 4th, the Cumberland, then south of the Cook Islands, was experiencing a near gale from the east and labouring in rough seas. As the days passed, the weather grew steadily worse, and by the time the deep laden carrier was south of Iles Gambier, on the morning of June 9th, she was battling against a full gale and shipping green seas on deck. Navitech continued to talk of winds force 4 to 6, although they did concede that there might be a very brief increase to force 7.

As per the ship’s routine, the Cumberland’s hold bilges were being sounded twice a day by the carpenter. It was on June 9th, that he first reported water in No. 1 hold bilges. His rod showed 3 inches port and starboard, not a great deal of water; it might be moisture draining off the cargo, or water seeped in through a leaking hatch. In a ship as old and badly used as the Cumberland, the latter would not be surprising. The pumps were started and the bilges showed dry within a very short time. Pitcairn Island passed at a distance of 35 miles to the north on the afternoon of June 10th. The weather had eased somewhat, but it was still blowing East northeast force 7, with very rough seas. The Cumberland was riding the weather comfortably enough, rolling and pitching moderately, and making 10.3 knots. Navitech was now predicting a further improvement, forecasting the wind to drop to force 5. The night went well, and on the morning of June 11th the carrier was to the south of Ducie Island, the easternmost of the Pitcairn Group. The wind had veered to the east southeast, bringing it on the starboard bow, but it continued to blow force 7, although the sea seemed to be flattening out. The speed was up to a little in excess of 11 knots. At 1130 hrs, the Second Engineer, was making his rounds of the engine room, sounded the lubricating oil drain tank, and found it to be 1.5 inches below the normal level. Given that this tank when full contained only 19.5 tons, the loss was not significant, but there was something about it that worried the Second Engineer. He checked the sounding again, and then for a third time. The discrepancy was still there. That afternoon, at around 1600 hrs, the Second Engineer again went below to check the lubricating oil tank. The sounding was down by another 1.5 inches, but, as before, there was no visible sign of a leak. Fortunately, the engineer was a man with a good knowledge of his ship. He concluded that, as the tank sounding pipe was at its after end, the unexplained reduction of 3 inches in the sounding must indicate the Cumberland was trimming by the head, whereas she should have been slightly by the stern. He rang the bridge, suggesting to the Chief Officer, who was then on watch, that the forward holds and tanks be sounded. Captain Kaisar was called and at once took a grasp of the situation. The Cumberland was at the time pitching heavily and shipping water on the foredeck, so Kaisar brought her round onto a northerly course, putting the sea abaft the starboard beam. This left the port side of the deck dry, and a cadet was sent forward to take soundings. He came aft again fifteen minutes later with the devastating news that No. 1 port bilge was showing 20 feet of water.

The Captain then sent the Chief Officer on deck, who, armed with a torch, entered No. 1 hold through the forward access hatch. As he descended, he heard the unmistakable swish of water below him. The beam of his torch revealed that the cargo in the hold was completely submerged. The water level was, in fact, only five steps below him on the ladder; at a rough estimate 30 feet deep. Regaining the deck, the Chief Officer then checked No. 2 hold in the same manner, and he found a similar state of affairs, the water being at about half height of the hold, again around 30 feet deep. There was a strong and obnoxious smell in the hold, and the atmosphere was misty. This was probably due to the water turning the lead concentrates in the hold to a slurry. It was with some trepidation that the Chief Officer, now thoroughly alarmed, moved aft to No. 3 hold, and shone his torch down through the access hatch. He was relieved when the beam showed only a mound of dry ore. If there was any water in the hold, then it was below the level of the cargo. The Chief Officer returned to the bridge and reported his findings to Captain Kaisar, who instructed the engine room to put its most powerful pumps on No. 1 hold bilges. Both ballast pumps were brought into use, and by 1830 hrs, they were pumping water over the side at the rate of 300 tons per hour. After two hours, the pumps were changed over to No. 2 hold bilges. Capt. Kaisar seemed certain that his ship had somehow developed a hole below the waterline–a sure sign that she was down by the head. It could be that the pumps would be able to hold the water at bay, allowing the Cumberland to reach Balboa.

Capt. Kaisar deliberated only for a short while, then decided to reverse course and make for Pitcairn Island, which although it had no harbour or beach shelving enough to run the ship ashore, was at least inhabited. The course was altered to 280° and speed increased as much as the weather would allow. At 2200 hrs, the Cumberland’s second engineer, accompanied by a cadet, made his way up the foredeck, which was now dry, to inspect the forward holds. Hold no. 3 still appeared to be dry, but in holds nos. 1 and 2 the water had risen to within about 3 feet or so, unto the top platform of the ladder. It was the Second Engineer’s opinion that either the bulkhead between the holds was breached, or the ship’s hull was holed in both holds. Whatever had transpired, it was plain that the pumps were losing the battle with the sea. A further inspection of the holds was made at 2300 hrs, this time by the Chief Officer and a cadet. They found the water level in both Nos. 1 and 2 holds had risen to another two feet. The message could not have been clearer–the Cumberland was slowly sinking. Curiously enough, it was not until 0221 hrs on June 12th, more than three hours later, that the captain decided to inform the outside world of his plight, and this he did not do so with any sense of urgency.

In an AMVER (Automated Mutual-Assistance Vessel Rescue) message sent to the US Coast Guard Station on Hawaii, via Sydney Radio, he gave the Cumberland’s position, and mentioned–almost as an
afterthought–that two of his holds were flooded. At daylight on June 12th, when the Chief Officer again checked the forward holds, he found the water was now over the top platform of the ladder in Nos. 1 and 2. These holds were in fact all full. Again, there was no sign of water in No. 3 hold, and the forepeak tank, immediately forward of No. 1, was also dry. A glance over the side showed the waves to be lapping just 3 feet below the main deck bulwarks. By this time, the wind had dropped away to no more than a moderate breeze, with a slight sea running, but the ship now had so little freeboard the seas were lapping over the bulwarks onto the deck. By 0900 hrs, the Cumberland’s forecastle head was awash. It was only then that the captain decided to call Sydney asking for assistance.
An hour later, the captain mustered his crew and advised them of the situation, for the first time mentioning the possibility of abandoning ship. Anxious to avoid panic, he assured his men that help was at hand from Pitcairn, the Radio Officer being in constant touch with the island. He did not, however, tell them that Pitcairn had no rescue services. Both lifeboats were then lowered to the embarkation deck and stocked with extra provisions, fuel, pyrotechnics and blankets. Throughout that morning, the Cumberland’s freeboard continued to decrease, and it became obvious that she must sink within the next few hours.

At noon, all crew members were mustered on the boat deck wearing lifejackets, as they had done so often at their regular boat drills. At 1320 hrs, Capt. Kaisar instructed the Radio Officer to contact Pitcairn and pass the following message to the ship’s managers, Anglo Eastern Management Services in Hong Kong: NO IMPROVEMENT IN DRAUGHT PUMPING OUT CONTINUOUSLY SHIPPING MORE SEAS ON FOCSLE: FOCSLE REMAINING UNDER WATER FOR LONG PERIOD CONTINUING TOWARDS PITCAIRN ISL. SHIP POSITION 12TH 2100 HRS GMT (1300 HRS SMT) 23° 40‚–S 127° 29‚–W SPEED 11.4 KNOTS COURSE 242° ON WAY PASSING HENDERSON ISLAND 13TH 0200 HRS GMT (12TH 1800 HRS SMT) WHERE MIGHT HAVE TO WAIT ANCHOR DEPENDING ON SITUATION. SITUATION. IN CASE SITUATION WORSE MIGHT HAVE TO ABANDON VESSEL. CONTACT WITH PITCAIRN RADIO UNABLE CONTACT SYDNEY RADIO. The Cumberlande was heavily down by the head with the sea washing over her foredeck, and her time was fast running out. It was only an hour and a half later Pitcarin’s Radio Operator, listening on 2182 kHz, picked up the Cumberlande’s Mayday, which was also repeated at 1522 on 500 kHz, the W/T distress frequency. Meanwhile, on board the sinking bulk carrier, the engine room had been evacuated and the main engine and all auxiliaries shut down by remote control from the deck. At 1524 hrs, the Captain, judging the end to be near, gave the order to abandon ship. The only man to suffer any real discomfort was the Second Officer, who was left behind, having gone to the bridge to collect the deck log book and a chart of the area. When he returned to the boat deck, both boats had moved clear of the ship’s side to avoid damage by the swell. With the log book and chart tied to his body, the unfortunate officer was clinging to a ladder, waiting for one of the boats to come in and pick him up, when the Cumberland, her bulkheads collapsing with the weight of water in her holds, began to slide under. He was obliged to jump into the sea to save himself, losing both log book and chart in the progress of swimming clear off the sinking ship. He was picked up by No. 2 lifeboat, by which time the Cumberland had sunk. Only seven minutes had elapsed from the time the order was given to abandon ship.

During this, ashore on Pitcairn’s Radio Operator had passed the Cumberlande’s Mayday to the US Coast Guard on Hawaii. The Coast Guard immediately initiated a search and rescue operation. The French Air Base on Tahiti was nominated as the Rescue Coordination Centre, but the distances involved were great, and the resources available meagre. The nearest long range aircraft, a French naval plane, was at Mururoa Atoll, 650 miles to the west of Pitcairn, while the nearest ship, the British container vessel ACT 5, was 460 miles to the east. The only thing the Cumberlande’s survivors had on their side was the weather, which had now become a flat calm. The Cumberlande’s radio officer, using a portable lifeboat radio, remained in contact with Pitcarin’s Radio Operator, who kept the survivors advised of the progress of the rescue operation.

At 1830 hrs, just as the night was starting to loom the sky, the French naval aircraft from Mururoa arrived overhead and dropped flares, followed by a package containing food and water, but the package was lost in the darkness. Radio contact was maintained with Pitcairn throughout the night, and at 0736 hrs on June 13th, Pitcarin’s Radio Operator passed the good news that the British ship “ACT 5” was coming towards them, and would arrive that evening, at around 1840 hrs. It was fully dark, when at 1900 hrs, the lights of the ACT 5 were seen approaching from the east.

Unfortunately, then, the sky clouded over, the wind freshened from the northwest, and heavy rain lashed down. Yet, the master of the 27,000-ton ACT 5 manoeuvred his ship with carefully enough, making a good lee for the lifeboats to come alongside. All the twenty-nine crew members of the Cumberland were safely aboard the containership by 2030 hrs. The ACT 5 set course for Pitcairn, then 135 miles away, with the empty lifeboats in tow, having in mind the desperate need of boats on the island. Unfortunately, the motor lifeboat was lost in the early hours of June 14th. The other boat also broke adrift soon after daylight, but by this time the ACT 5 was close to Pitcairn. After heaving to off Pitcairn for about 40 minutes, the rescue ship continued on to Auckland, where she landed the Cumberland survivors on June 22.

The Court of Inquiry held in Hong Kong in October 1988 to investigate the loss of the Cumberland looked at all possibilities, including the deliberate sinking of the ship by her crew for insurance purposes. In the case of the Cumberland, the two forward holds could have been deliberately flooded, only by filling them with fire hoses through the access hatches, or by removing the nonreturn valves in the engine room and flooding through the bilge lines. The use of either method is long and laborious, and could not have been done without most of the crew being aware of what was going on. The truth would then surely have been revealed at the inquiry. It must also be borne in mind that there are far more convenient places to scuttle the ship than in the middle of the South Pacific, where the chances of a speedy rescue were not good. As it was, the Cumberland’s crew spent a very uncomfortable 28 hours in the boats, and if Tom Christian had not been scanning the air waves on June 12th, the outcome of the matter might have been very different.

After examining all the evidence, the Court of Inquiry concluded that the Cumberland was lost through a crack in the ship’s side plating which resulted in the flooding of her Nos. 1 and 2 holds. The recorded weak state of the bulkhead between the two holds was held to be a contributory factor, it being implied that this bulkhead probably collapsed. The discovery of water in No. 1 bilges on the 9th, and again on the 11th morning, indicates that the crack in the ship’s side plating–if there was one–almost certainly first appeared below the waterline in that hold. But what could have caused the crack remains a matter for debate. The most likely causes of a ship being holed below the waterline are through collision with another ship, a rock, or a shoal, violent, traumatic occurrences unlikely to go unnoticed. It is certain that no other ship was involved with the Cumberland, and evidence given by her officers was to the effect that she did not strike any underwater obstruction. Their evidence was supported by the courses reportedly steered, which when plotted on the charts were clear of any known shoal or rock.

That left only metal fatigue as a possible cause of any fracture in the ship’s side. When this was considered by the Court of Inquiry, it came to light that the Cumberland had a history of cracks in her hull plating. In May 1982, following a passage in particularly rough weather, water was found in No. 1 hold, which was traced to two significant cracks in the port side shell plating low down in the hold. These were gouged out and welded up. Eight months later, in January 1983, No. 1 hold was again found to be making water, and an inspection of the hold revealed a 16 inch long crack on the port side near the previous repair. In April of that year, yet another crack opened up in the same area. When the ship went for a Special Survey in December 1983, a detailed examination was made of her hull in No. 1 hold, this time a small fracture being reported. A permanent repair was made by cropping and renewing part of the shell plating in the area. Although up until the time of founding no further hull cracking was reported, it seems clear that there was some inherent weakness in the Cumberland’s plating on the port side of No. 1 hold. This weakness was probably aggravated by the pounding of the vessel in heavy weather, leading to cracking. However, on her final voyage the weather does not appear to have been exceptionally bad, and at no time did her officers report heavy pounding. It may be that after fourteen years of carrying ore cargoes, and with little or no internal maintenance, the ship’s shell plating in this area could have worn thin and been severely fatigued.

Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 785 (5th Cir. 1990) (“Seeking to recover damages for the lost cargo, ASARCO and Hansa Marine sued Glenara and Anglo-Eastern in both federal court and Louisiana state court, asserting claims in both actions under the Carriage of Goods by Sea Act, 46 U.S.C. App. §§ 1300 et seq., the Pomerene Bills of Lading Act, 49 U.S.C. App. §§ 81 et seq., and state tort and contract law. Glenara and Anglo-Eastern removed the state court suit to federal court, where it was consolidated with the federal action. Defendants then moved to dismiss on grounds of lack of personal jurisdiction, improper venue and forum non conveniens, while plaintiffs sought remand of the state suit. The district court refused to remand, finding no personal jurisdiction. Plaintiffs sought reconsideration of both rulings, partly on the basis of newly discovered information concerning Anglo-Eastern’s contacts with Louisiana, and they also sought the reopening of discovery. Following a hearing the court refused to remand or to reopen discovery and reaffirmed its prior ruling, dismissing the consolidated cases without prejudice for lack of personal jurisdiction, improper venue and forum non conventions. ASARCO and Hansa Marine timely appealed.

The Cumberland’s construction was such that, when fully loaded, she was capable of floating with one hold flooded. And she may well have done so, if the bulkhead between Nos. 1 and 2 holds had held. But this bulkhead was known to be weak. During the Special Survey carried out at Ulsan in January 1987, ultrasonic testing of the bulkhead showed a wear down or wastage of 40 percent on average, and in at least one area in excess of 60 percent. In accordance with the Classification Society’s guidelines, plates which average a wear down of 30 percent or more of the original thickness should be renewed. In this case, only a small section of the bulkhead near the starboard lower corner of the bulkhead was renewed. There can be no doubt that the bulkhead between the Cumberland’s Nos. 1 and 2 holds was highly suspicious. The 6 footlong crack that appeared in this bulkhead on the ballast passage from Japan to Tasmania is evidence enough of that. When the water rose in No. 1 hold, the bulkhead was subjected to immense pressures, which it eventually could not withstand. It is highly likely that it collapsed, leading to the flooding of No. 2 hold. From then on the Cumberland began to sink.

The ship’s age, metal fatigue and a chronic lack of proper maintenance must all have contributed to the eventual loss of the Cumberland. She was a ship that had been hard run over the years in the pursuit of maximum profit. Her days were ended because ignorant Inspection by flag state of the vessel, negligent survey by Vessel’s Classification Society, suspicious assessment by the Underwriter & Insurance Surveyor.

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