New Carissa case goes to jury

2002-11-13T00:00:00Z New Carissa case goes to juryBy Andrew Sirocchi, Staff Writer Coos Bay World
November 13, 2002 12:00 am  • 

COQUILLE — A Coos County jury today began deliberating the future course of the New Carissa's rusting remains and whether the state will recoup damages from the 1999 shipwreck or if the vessel's owners were blameless in the grounding near the North Spit.

Special Assistant Attorney General William Wheatley capped his case Tuesday charging Capt. Benjamin Morgado with negligence and failing to heed safety precautions by anchoring in rough weather near the Coos Bay shoreline. But defense attorney Roman Silberfeld, of the Los Angeles-based firm of Robins, Kaplan, Miller & Ciresi, countered that the captain's actions weren't the real cause of the wreckage and blamed faulty navigation charts, unpredicted weather and the lack of warnings for the wreck.

The state's eight theories:

The state has claimed that negligence by Capt. Benjamin Morgado led to the grounding of the freighter New Carissa in a 1999 winter storm and resulted in a case of trespassing. It presented eight theories to its case including allegations that:

  • Morgado anchored too close to the Coos Bay shore without taking reasonable safety precautions in inclement weather;
  • failed to heed warnings in the "U.S. Coast Pilot" safety manual that indicate the coastline is not safe during winter;
  • failed to heed National Weather Service advisories warning of gale-force winds and large swells;
  • failed to take precautions to keep the anchor from dragging;
  • failed to monitor the vessel's movement and keep an adequate and consistent anchor watch;
  • failed to review and take into account all local weather forecasts;
  • didn't calculate the proper length of the anchor chain to keep the ship safe;
  • and failed to keep the vessel under way when it would have been safer to do so.

Morgado, a Philippine native with 20 years experience in shipping, is currently a captain aboard a vessel in Asia. He is under a contractual obligation until December and was not called to testify during the trial.

A team of defense lawyers representing the ship's owner, insurance company and operator claimed that even if true, Morgado's actions were not the cause of the wreck. Instead, the defense said the grounding was caused by unforseen rough weather; faulty navigational charts that failed to identify areas where dredge spoils were dumped; and the lack of warnings from a pilot from the Coos Bay Pilots Association that the ship was anchored in a dangerous location.

The state only needs to prove its civil case beyond a preponderance of the evidence. The standard is judged as easier to meet because evidence need only be enough to breach doubt rather than remove it altogether.

More than a month after the civil case began, the state's lawsuit against the owners and operators of the grounded New Carissa seeking compensation or removal of the 4-million-pound stern ended with a final day-long summation. The state has asked the jury to award it either up to $25 million in temporary damages that would pay for the removal of the bow or, if the wreckage can't be moved, to award permanent damages up to $334 million.

"The stern could have been — should have been — removed and is now worse than ever," Wheatley said.

Wheatley's case was built around eight allegations that Capt. Benjamin Morgado acted negligently when he anchored the ship near the Coos Bay shoreline, causing the ship's grounding. Further, Wheatley charged that the New Carissa's insurance company and its manager John Trew, of Tindall, Riley Marine, conspired to permanently stall removal of the wreck in order to save $3 million.

"Doing nothing may be the satisfactory solution for the insurance company and Mr. Trew but it's not the right thing to do," Wheatley said.

Reading from letters written by Bill Milwee, the ship's salvage expert, Wheatley said the insurance company ignored warnings that it would be difficult to justify hiring the less expensive Donjon Marine in favor of Florida-based Titan to save $5 million.

"It will be difficult to do so if we have contracted with technical matters and probability of success secondary to price," an April 1999 letter from Milwee indicated.

Silberfeld denied the owners and insurance company made any plans to keep the ship's remains where they are and said disagreements over which salvage companies to use have nothing to do with who is at fault for the New Carissa's grounding.

The case's centerpiece element, he said, is whether something the captain failed to do, or should have known to do, created the accident. And, Silberfeld added, whether the jury is able to find the captain was negligent or not, it must also establish that his actions caused the wreck.

"Even if you find that something Captain Morgado did is negligent, it has to be the cause of the accident," Silberfeld said.

Silberfeld focused his closing on Wheatley's allegations that Morgado should have dropped two anchors in inclement weather and that the captain drew an anchor circle that would have allowed the ship to move two football fields before anyone would notice the shift.

While Silberfeld said those could have been incidental causes to the wreck, the attorney argued they were not the defining factors in the accident because the ship's movement toward shore was discovered nearly immediately after the vessel began to drag its anchor.

Silberfeld blamed the wreck on three primary causes: National Ocean and Atmospheric Administration maps that failed to identify the area where the ship anchored as a dump site for dredge spoils; inclement weather that was not forecast; and a lack of warnings from Capt. Steve Sweet, of the Coos Bay Pilots Association.

"There are a number of factors but this one, coupled with the charts, caused this unfortunate accident to occur," Silberfeld said.

The case is the second to reach a jury stemming from the grounding of the New Carissa, but likely won't be the last. The past year, Clausen Oysters won a suit in federal court claiming oil spilled from the freighter killed large amounts of product in Coos Bay. The case is currently under appeal and didn't deal with finding fault with the vessel's grounding.

But the state's lawsuit could influence a federal lawsuit seeking compensation for the ship's grounding. R. Michael Underhill, senior trial attorney for the West Coast office of the U.S. Department of Justice, attended closing arguments Tuesday and kept a keen ear to the defense's strategy.

"The ship owners owe the U.S. government a large amount of money and we're seeking to recover it," Underhill said. "We have spent money that has been in excess of $7 million, and those sums are a separate issue that are not presently in the lawsuit."

The federal case is expected to begin Nov. 3, 2003, in Portland. The owners of the New Carissa also have sued the federal government claiming that the shipwreck was caused by faulty navigation charts. In that suit, the owners are requesting $97 million in compensation, claiming the federal government failed to identify the area where the freighter anchored as dangerous due to years of dumps of dredge spoils.

The 639-foot freighter grounded near the North Spit on Feb. 4, 1999, after completing a journey from Japan to pick up wood chips in the Bay Area. Concerned of an impending ecological disaster, a unified command comprising representatives from the state, the federal government and the ship's owners devised a plan to burn 400,000 gallons of bunker fuel on the vessel.

In the process, the ship cracked in half and 70,000 gallons of thick fuel dumped into the ocean. The bow of the ship was towed out to sea but broke loose from its tow rope in the process and grounded again near Waldport. It eventually was towed to sea again and finally scuttled by a U.S. Navy torpedo.

The stern of the New Carissa, meanwhile, has since remained mired in the sand near the North Spit. After one year of unified efforts to pull the remaining hull from the shore, progress to remove the bow stalled. On Oct. 1, 2001, the state filed suit against Taiheiyo Kaiun Co., a Japanese corporation, and its subsidiaries TMM Co. Ltd. and Green Atlas Shipping.

Copyright 2015 Coos Bay World. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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