Full opinion text
CASSIBRY, District Judge. I. BACKGROUND BASIC FACTS This case involves an attempt by owners of the vessel KATRIN to recover damages due to faulty repairs performed by several repairers. The SS KATRIN was purchased by Auto Transportation, S.A. (“Owners” or “Shipowners”) early in 1973 and managed and operated by Diana Shipping Agencies, Inc., a Greek management company (“Diana”). In February of 1975, the vessel entered Todd Shipyards Corporation’s (“Todd”) repair yard at Algiers, La. for repairs to the bulkheads and boilers as well as an inspection of the vessel’s high pressure (HP) and low pressure (LP) turbines. Todd engaged a subcontractor, Turbine Service, Inc. (“Turbine Service”) to open up the turbines for inspection. The LP turbine was found to be badly damaged, needing extensive reblading and repair. The HP turbine required relatively minor repairs. Todd obtained a bid from Turbine Service for the required repair of the turbines. Turbine Service, in turn, subcontracted a substantial portion of the work to Gonzales Manufacturing and Industrial Machine Works, Inc. (“Gonzales”). Todd and Turbine Service personnel searched for replacement blades for the KATRIN’s LP turbine. Finding none that were suitable, Turbine Service procured some blades which had an airfoil profile similar to the airfoils of the KATRIN’s LP rotor blades. A decision was made to arc weld more than 400 of these replacement airfoils onto roots of old blades for insertion into the KATRIN’s LP turbine rotor. Who decided to do this welding was a primary issue at trial. Because the fabricated blades were shorter than the original KAT-RIN blades, Gonzales manufactured “spacer rings,” annular steel rings, to attach to the inner diameter of the KATRIN’s LP turbine casing to take up the gap left between the fabricated blades and the casing. In addition, shrouding strips were manufactured and attached to the rotor blades around the entire circumference of four rows. Shrouding is a steel rim all the way around the ends of the airfoils. The casings, rotor and airfoils may be seen in pictures which are in the record. The work on the turbines was accomplished during March, April and May of 1975. The turbines were tested during two dock trials without major incident. On Saturday, May 24, 1975 the KATRIN underwent a river trial. A Todd observer on board the KATRIN during the river trial reported that the turbines had reached normal operating speed when he heard a “ping” in the LP turbine. Later he heard two more “pings” followed by a rubbing sound. The turbines were stopped and the vessel was returned to Todd by tow. The LP turbine was opened, and considerable damage was found. Owners elected to ship the LP turbine to Siemens A.G. in Germany (“Siemens”), the original manufacturer, for rebuilding. Eight months later the LP turbine was returned to New Orleans and reinstalled by owners’ own contractor, outside Todd Shipyards, under the supervision of manufacturer’s and owners’ representatives. An examination of the HP turbine, which had remained in place in New Orleans, disclosed that the gaps between the tips of the rotor blades and the outer casing of the turbine (known as “clearances”) were excessive. Despite this discovery owners decided to let the vessel sail out of New Orleans on March 2, 1976. The vessel traded commercially for the next four months, experiencing excessive temperatures in the condenser top. In July of 1976, passing the Irish coast at Cork, one boiler was closed down while repairs were being made to an evaporator cover, and the vessel maintained a speed of about 45 RPM. The turbines suddenly seized and stopped. The vessel began drifting towards the coast, and the danger was such that preparations were made to abandon ship. The master ordered the chief engineer to try to operate the turbines, no matter what their condition, in order to save the ship and crew. The chief engineer started the turbines and operated them long enough to bring the vessel away from the coast and subsequently into Cork harbor. The damage to both the HP and LP turbine due to this casualty was so extensive that the vessel was sold for scrap. THE LITIGATION This suit was initiated on June 11, 1975 by Todd against Turbine Service and Gonzales demanding return of the damaged turbine parts of the KATRIN, which had been removed after the river trial casualty and taken to the shops of Turbine Service and Gonzales. Both Gonzales and Turbine Service asserted a lien for monies due from Todd on prior invoices for work done on the turbines. Owners then intervened in this action. After that, Turbine Service’s insur-' er, The Travelers Insurance Company (Travelers) and Gonzales’s insurer, Sentry Insurance Company (Sentry), were brought into the case. More recently, Siemens was impleaded. Siemens counterclaimed against Todd for unpaid bills for attendance of their representatives in New Orleans after the river trial casualty. The title of the consolidated suits does not accurately reflect the position of the various parties. The true nature of the litigation is an action by shipowners to recover for damage to the KATRIN. The main action has had various interrelated claims, counter-claims and cross-claims of the parties engrafted onto it. The parties’ claims are summarized as follows: 1. Shipowners seek to recover an amount stated to be in excess of three million five hundred seven thousand and five hundred sixty-two ($3,507,562.00) dollars for the cost of repairing the LP turbine in Germany, loss in value by reason of the casualty off Cork, detention of the vessel during the various repair periods and related survey fees, expert fees, and expenses. Shipowners have sued Todd, Turbine Service, Gonzales, Travelers and Sentry, all of whom are named defendants. 2. Todd has counter-claimed against shipowners for the balance of its repair invoices of $175,166.00 and also for approximately $99,647.00 for work ordered by shipowners’ representative after the casualty of May 24, 1975. Todd has also cross-claimed against defendants Turbine Service and Gonzales and their respective underwriters for indemnity in the event Todd is found liable to shipowners, together with the cost of defense and seeks to recover $40,000 paid to Turbine Service on account. 3. Turbine Service and Travelers have cross-claimed against Gonzales and Sentry for indemnity for negligent workmanship by Gonzales; Turbine Service has counterclaimed against Todd and claimed against the vessel to recover $125,000, the unpaid balance of its invoices for the initial turbine repair. 4. Gonzales has cross-claimed against Turbine Service and Todd and counterclaimed against shipowners to recover unpaid invoices of $50,000 and seeks indemnity from Turbine Service for any liability it may have to shipowners or Todd. 5. Siemens has settled with shipowners and has been dismissed from the action on condition that any liability of Siemens for the Cork casualty will pro tanto reduce the liability of the remaining defendants. Siemens has retained its counter-claim against Todd for the cost of its service representatives in the amount of $12,838.01. THE ISSUES A global summary of the issues and how I have resolved them might help in understanding the subsequent discussion. (The Appendix is a list of dramatis personae in alphabetical order.) It was vital to determine what caused the river trial casualty, and I have determined that the preponderance of evidence shows that the failure of one or more low pressure rotor blades initiated the chain of damages. The ultimate loss of the ship was due to the casualty at Cork, but I have concluded that no repairer was responsible for the defect that caused that casualty. The classic questions of negligence analysis were presented here, i. e., was any repairer negligent and was the negligent act a proximate cause of the river casualty. I have found all of the repairers liable to owners in tort. I have found no contributory negligence on the part of owners. A separate but parallel route to liability urged by shipowners was breach of warranty. I have concluded that all repairers owed an obligation of diligent and workmanlike performance to the shipowners and breached it, that the breaches proximately caused the injuries to owners in each case and that the owners did not prevent or hinder proper performance in any way. The closeness of an issue often is manifested by the energy counsel expend in arguing it. This was the case with the issue of whether Todd’s release-from-liability clause was valid. I have found that the clause formed a part of the contract between Todd and shipowners, but that it was not valid in this specific situation. The repairers generally presented a united defense against owners’ attacks. However, it was necessary to decide each repairer’s right to indemnity from the other repairers. I have concluded that Turbine Service and Gonzales must indemnify Todd for the breach of their obligations of diligent and workmanlike performance to Todd. Finally, an issue almost orphaned by counsel was whether or not Todd was liable to Siemens A.G. of Germany for various services requested by Todd after the river trial casualty. I have concluded that Todd benefitted from the services and is liable. II. FINDINGS OF FACT I now make the following findings of fact: 1. The KATRIN was a steam-powered bulk carrier with two turbines, one high pressure (HP) and one low pressure (LP). The steam from its two boilers passed through the HP turbine, entered the LP turbine, and passed from there into a condenser. 2. Simos Palios was president and part-owner of Auto Transportation and authorized to contract on its behalf, either in that capacity or in his capacity as president of Diana. 3. The KATRIN was last drydocked in approximately April, 1974. 4. On or about February 7, 1975 the KATRIN entered the port of New Orleans in need of several tons of bulkhead repairs and boiler repairs. 5. Emmanuil Manellis, a Greek national and technical director of Diana, arrived in New Orleans shortly after the vessel had entered port and began negotiations with Todd to repair the bulkheads and boilers and to open the vessel’s turbines to inspect them to determine the need for repairs. 6. On February 10, 1975 Manellis gave Todd a list of work items that he wished to have performed on the KATRIN. On February 12, William Koren, an employee of Todd, gave Manellis a letter typed on Todd stationery offering to perform those items of work requested on the February 10 list. The Todd stationery included a printed clause in small red letters near the top of the page, the address, date and salutation being typed in above the red printed clause, the text of the letter being typed below the clause. 7. Manellis telexed owners in Greece shortly after receipt of the February 12 offer. The telex is a verbatim repeat of the February 10 list and the February 12 offer with three exceptions: 1) the telex to owners includes none of the red-letter clause; 2) some inconsequential lines giving Diana an address for forwarding boiler tubes were added to the telex; and 3) the telex included prices alongside the work items. 8. Palios did not receive any documents with the red-letter clause on them nor did he personally have notice of the existence of the clause at this time. 9. Palios received a letter on Todd stationery on April 26, 1975 including the printed red-letter clause. 10. On February 14,1975 Manellis called Todd Shipyards and advised them that the owners had accepted the tender and would move the KATRIN to Todd. On that same day, Todd wrote a letter addressed to the “S/S ‘KATRIN’, c/o Diana Shipping Agencies, S.A., New Orleans, Louisiana” acknowledging that they had received instructions to begin work. This letter also contained the red-letter clause. It was presented to Manellis on board the KAT-RIN along with a tax exemption certificate. Manellis signed the tax exemption certificate and accepted the February 14, 1975 letter. 11. Manellis knew or should have known that the red-letter clause was part of Todd’s original tender and that it applied to every order of work placed with Todd. 12. Manellis had the authority to transmit offers from Todd to the owners in Greece and to communicate acceptances of offers from owners to Todd. 13. A contract was formed between Todd and shipowners on February 14, 1975 to perform boiler and bulkhead repairs and to examine the HP and LP turbines, as specified in the February 10, 1975 list, including as one of its terms the red-letter clause printed on the Todd stationery. Both of Todd’s letters of February 12 and February 14 specifically stated that the offer or acknowledgment was “subject to all the provisions contained herein,” and “applied to every order for work whether written or verbal.” Owners knew or should have known that the red-letter clause was an integral part of each and every contract formed between shipowners and Todd. 14. The two contracting parties in this situation enjoyed approximately equal bargaining power. 15. It was Todd’s policy to accept different or more extensive liabilities if an agreement was entered into before the vessel entered the yard or work was commenced, and an adjustment would be made in the price to include the cost of appropriate additional insurance. 16. The clause clearly and unequivocally limits Todd’s liability for negligence and for all other claims to $300,000. 17. Manellis had been authorized to place work in hand and settle prices, and Todd was aware of this authorization as of February 14, 1975. 18. Manellis had express authority to tell Todd what work had to be done, receive bids from Todd, pass them on to Palios, and pass the message from Palios to Todd if the bid was acceptable. 19. Todd contracted with Turbine Service to open up the vessel’s turbines for inspection. 20. On February 26, 1975 Jan D. Van Rynbaeh, an independent surveyor hired by owners, prepared a field survey of the damage to the KATRIN’s boilers and turbines after viewing the equipment with the upper casings of the turbines removed and the rotors still in place in the lower casings. 21. Van Rynbach telephoned Palios in Greece to report the results of the survey. Palios gave Van Rynbach an order to have Todd begin repairs in accordance with the field survey, and the field survey was given to Walker Coleman, Todd’s contract negotiator and estimator. 22. The items in the “Found” column of the February 26, 1975 field survey by Van Rynbach and Keith Harvey, a London Salvage Association surveyor, are correct descriptions of the damage found in the HP and LP turbines of the KATRIN as of that date. I make no finding on whether or not the survey fails to mention damage that did in fact exist. 23. The “Recommended” column of the February 26, 1975 field survey shows the following recommendation for the LP turbine rotor blading: “L.P. Turbine Rotor to be removed to shop. All blading of Ahead part to be removed and renewed. Spare blading to be supplied by Owners from ship’s spares. Afterwards rotor to be balanced.” 24. In order to lift the top half of the LP ahead turbine casing from its normal position, it was necessary to work on the bolts and nuts with a cutting torch, to knock out the bolts with pins and to drive a chisel in between the parting faces of the turbine casing halves to pry them loose. 25. Jon Sheridan, supervisor of the KATRIN job for Turbine Service, testified that opening the LP and HP turbine was not any more difficult than usual, and that such jobs are always difficult. 26. None of the surveys conducted in February of 1975 revealed any distortion in the casings of the LP ahead or astern turbines. 27. Todd was aware of a warping in the astern turbine casing sometime before the repair job was completed. 28. Based upon the field survey conducted February 26, 1975, Todd began to investigate methods of repair and availability of spare parts to determine whether or not the LP turbine could be repaired at Todd. 29. On February 28, 1975 a work specification was agreed upon between Manellis and Todd to remove broken blades, furnish and install new blades, straighten all bent blades and rebalance the LP rotor. In addition, it was agreed to renew or straighten stationary blading in the upper and lower casing as found necessary. 30. In spite of the fact that the original field survey recommended renewing the entire blading of the LP rotor, such a course of repair was either ignored by Manellis or specifically rejected by February 28, 1975. 31. Because Todd’s labor force was occupied and its shops were crowded, Todd asked Turbine Service to conduct the investigation of potential methods and material in order to determine whether or not Turbine Service could be granted a subcontract to repair the LP turbine. 32. Todd had contracted with Turbine Service on other previous jobs for opening and closing of one main turbine, reblading turbine generators, major rotor work, sea valves, piping and smaller steam turbine work. 33. Todd conducted no independent investigations of the qualifications of Turbine Service to conduct a major steam turbine reblading job before the investigation of methods began. 34. Manellis was not aware of the fact that Turbine Service was a separate and distinct entity from Todd nor did he ever visit the facilities at Turbine Service. 35. On or about February 28, 1975 Todd’s purchasing department called Siemens A.G. in Germany to determine whether or not they could manufacture replacement blades for the LP turbine. 36. By March 3, 1975 a decision had been made to accomplish repairs on the LP turbine rotor more or less in accordance with the recommendations of the field survey. However, two different alternatives were being considered for rotor Rows 11-14. The understanding was that, if Turbine Service could locate replacement blades, Rows 11 through 14 would be rebladed and considered a “permanent” repair. If those blades could not be located, the blades of those rows were all to be cut off smooth at the root to allow the ship to return to service minus those rows of blades. 37. On March 4 or 5, some spare replacement blades were located aboard the KAT-RIN. It was not known at that time how many were proper replacement blades for the damaged blades in the LP rotor. Approximately 557 replacement blades were needed for the various rows of the LP rotor. 38. Informal discussions between Todd and Turbine Service sometime between February 28, 1975 and March 7, 1975 resulted in an understanding that Turbine Service was to accomplish the repair work on the LP turbine and that Turbine Service would be able to find sufficient replacement blades to accomplish the permanent repair. 39. Manellis had never been involved with opening a steam turbine before nor had he ever observed a turbine reblading job before. 40. It is not unusual that a chief engineer or a person with experience equivalent to that of a chief engineer has not participated in a major turbine repair throughout the course of his career. '41. Manellis left New Orleans on March 7, 1975, arrived in Greece on March 8 and retired from service. 42. When Manellis arrived in Greece on March 8, 1975 he did not give Palios a report on the technical details of the repair discussions in New Orleans; he did not tell Palios about any procedure for reworking and replacing blades. Manellis gave Palios some photos and an unused, non-welded blade. 43. Neither Manellis nor Palios knew that Todd or Turbine Service planned to replace LP turbine rotor blades by welding old roots to new airfoils. 44. When Manellis left New Orleans on March 7, 1975 owners had not yet made a decision to authorize the replacement of rotor blades in the LP turbine. Todd was prepared to receive a telex on March 11 authorizing permanent repairs and was, in the meantime, authorized to proceed with the other repairs, known as temporary repairs. 45. Owners telexed Todd on March 10, 1975 authorizing permanent repairs and asking for a breakdown of expenses and a reconfirmation of time. 46. The contract to repair the LP turbine included the red-letter clause as one of its terms. 47. Jon Sheridan of Turbine Service, after a trip to the northeastern United States, returned to New Orleans on March 14,1975 with turbine blades with a profile very similar to the KATRIN’s LP rotor blades. He took four or five of these blades to Gonzales with old roots taken from the LP rotor. He asked Ronald Hoover, supervisor of the KATRIN job for Gonzales, to mill off the rotor root, cut the root off the new blade and mill it off to weld the old rotor root to the newly procured airfoil. 48. Hoover told Sheridan he wasn’t sure he could do it but he would try. Dale Saint, Gonzales’ welder, asked Sheridan to tell him the metallic composition of the old roots and new airfoils. Sheridan did not know the metallic composition nor did anyone else who undertook to weld the four or five blades. 49. Saint consulted a welding manual at Gonzales and determined that a 309 Stainless rod was recommended for dissimilar metals. Gonzales did not have any 309 Stainless rods so Saint decided to use a 308 Stainless rod since in his opinion it was very close to a 309. 50. After welding the sample blades, Sheridan put one or two of the newly fabricated blades in a vise and he and Hoover bent them and hammered them to determine the strength of the weld. 51. Sheridan took the remaining welded blades, saying that he would do some tests on them and take them to Todd and the shipowners for approval. 52. Sheridan’s testimony that he met with Manellis on the KATRIN on or about March 17, discussing the welded blades with him and giving Manellis the remaining fabricated sample blades to take back to Greece with him, was not credible testimony. 53. The testimony of Sheridan that Bergeron, Todd’s assistant general manager, was well aware of the fact that Turbine Service was going to weld blades, was not credible testimony. 54. On March 18, 1975 Diana telexed Todd asking again for advice of “present estimate of cost and time involved for permanent repairs now in hand.” 55. Sometime between March 17 and March 20, Charles Woods, vice-president of Turbine Service, and Sheridan prepared a proposal estimating repairs necessary to return the HP and LP turbines to service. Two estimates were submitted, the first including removal, repair and straightening of the first ten rows of LP rotor blades with replacement of 38 blades in those ten rows, the removal of Rows 11,12,13 and 14 of the rotor and 5 rows of stationary blades, called “temporary repairs.” The second option, the “permanent” repairs, included everything outlined in the temporary repairs except that the 4 rows of rotor blades were to be replaced and the damaged stator blades were to be replaced or repaired. 56. Turbine Service’s estimate was dated March 4, 1975 in spite of the fact that it was not prepared until sometime after March 17, 1975. 57. On March 20, 1975 Todd telexed Diana in Greece quoting a price breakdown for permanent repairs in the lump sum of $273,269.00. This telex indicated that the price breakdown was “per field survey, crew negligence, January 31, 1975, and as quoted to Mr. E. S. Manellis March 4,1975.” 58. In spite of the fact that the March 20 telex from Todd to Diana indicates that it is “per field survey” of January 31, 1975, the price given for LP turbine rotor blading and LP turbine stationary blading of $148,-891 was not high enough to indicate that the parties contemplated renewal of all LP rotor blades as had been recommended in Van Rynbach’s field survey. 59. The price quoted by Todd to Diana for repair of the LP turbine rotor and stationary blading was $148,891. Total work on the HP and LP turbines of the KATRIN was priced at almost $200,000, more than 70% of the $273,269 quoted for all work contemplated. 60. On March 21, 1975 Todd issued purchase orders to Turbine Service for repairing the HP turbine rotor and LP turbine. The LP purchase order confirmed an order dated March 4, 1975 made to Sheridan by telephone. The HP purchase order confirmed an order made by telephone to Sheridan on March 6, 1975. Both purchase orders stated that “all work was to meet approval of Todd, owners and regulatory body.” The letter and two purchase orders are the best reflection of the contract between Todd and Turbine Service. 61. The LP purchase order required that “Four rows of blades ... be replaced and damaged stators ... be replaced or repaired.” The back of the purchase orders stated that the work could not be subcontracted and that all goods and labor were to be warranted by Turbine Service to be merchantable and fitting in all respects for the purpose for which intended. It also stated that if goods and labor were approved, such approval should not in any way be construed as a waiver of any warranties, express or implied, and that Turbine Service would guarantee to Todd that all the material, equipment and labor be guaranteed in the same manner and to the same extent that Todd was required to guarantee such material, equipment and labor to its customers. 62. On March 21,1975 Gonzales received an order from Turbine Service to “modify turbine blades and repair” from Sheridan based upon an estimated price of $43,800. 63. Sheridan’s testimony that Turbine Service did not authorize Gonzales to start work on the repairs before April 1 is not credible. 64. Sheridan told Hoover to “do all the rest of the blades the same way.” Sheridan assured Hoover the welds were good and that they had been accepted. 65. When Hoover advised Sheridan that Gonzales could not test the welds, Sheridan told Hoover that that was not necessary since Turbine Service had already planned to test them. 66. I. J. Saenz, Jr., a Gonzales employee, machined the new blade foils to prepare them for welding. Sheridan told him how he wanted this done. The new blade was cut off with one-sixteenth of an inch of its root remaining in order to weld it onto the old root. The old blade roots were also cut off with some material left for welding purposes. The cutting was done with an abrasive saw followed by a fly cutter. 67. Todd assigned Gordon Ault as ship’s superintendent. He was in charge of the job for Todd. 68. Ault was familiar enough with turbines to know if any problems arose and to inform his superiors. 69. Ault was serving on two or three jobs as ship’s superintendent at the same time. Although he considered himself to be supervising Sheridan “in a round about way,” since the job was subcontracted, Sheridan “was supervising himself, really.” 70. No one at Todd had any dealings with Gonzales, no contract was made between Todd and Gonzales and no direct payment was made by Todd to Gonzales. 71. The overwhelming weight of testimony at the trial shows that welding two different parts of a steam turbine rotor blade onto one another is not considered prudent engineering practice. 72. The preponderance of testimony at trial showed that the only proper way to weld airfoils to blade roots such as those in question in this case would be to effect a full penetration weld between the two parts so that there was no discontinuity of any kind across the cross-section of the weld. Testimony also showed that such a welding procedure would have been much more time-consuming and expensive than the procedures actually used. 73. The preponderance of evidence produced at trial showed that the standard of conduct expected of a reasonable repairer in the ship repair industry would require a contractor to refuse to do a job that was considered unworkmanlike, even if ordered to do so by a customer unless the customer had been fully informed of the risk of failure and had assumed it. 74. Turbine Service did not perform any work on the LP astern casing. 75. Turbine Service accomplished the following work on the LP turbine: welded various spots on LP blades and ground the welds smooth; inserted shims between the blade roots, replaced some stator blades from ship’s spares; removed some rotor blade roots to take to Gonzales for fabrication of new blades; placed the newly fabricated blades back in their grooves in the LP rotor; attached shrouding rings in a full circle around the tips of Rows 11 through 14 of the LP rotor using the tenons protruding from the purchased airfoils; and reinstalled the turbine casings and rotor in the vessel. 76. Turbine Service accomplished the following work on the HP turbine: straightened damaged HP rotor blades; inspected all HP blades and “dressed” burrs on the upper edge of the HP rotor blades without grinding or filing any “feather edges” or “feather tips” of the HP rotor blades. 77. Plaintiff failed to show by a preponderance of evidence that any repairers ground off the feather edges of the HP rotor blades or caused excess clearances between the tips of the blades and the HP casings. 78. Plaintiff failed to show by a preponderance of the evidence that the feather tips of the HP rotor blades were intact when the vessel first entered Todd. 79. Gonzales accomplished the following on the LP turbine: machined and welded all fabricated blades, including four different sizes of blades; manufactured spacer rings according to measurements given to them by Sheridan and installed these rings around the inside circumference of the LP turbine casing situated in such a way as to close the steam-passage gap caused by the short blades in Rows 11 through 14 of the rotor; and balanced both the HP and LP rotors on their balancing equipment. 80. Gonzales manufactured one-half of one spacer ring inaccurately so that it did not complete a full circle. On orders from Sheridan, it filled up the gap left with brazing material. 81. On May 14, 1975, Hoover met Sheridan at the Painted Pony Bar near Todd and presented him with a release-from-liability statement which Sheridan willingly signed. 82. On May 15,1975 Gonzales billed Turbine Service in the amount of $43,800 less a 5% discount of $2,190 for a total of $41,610 for an item entitled “modify turbine blades and repair.” 83. On or about May 14, 1975 Sheridan presented Van Rynbach with a previously requested list of the work that Sheridan had accomplished. This statement was typed on a plain sheet of paper without any signature. 84. On or about that same day Sheridan gave the same work list to Keith Harvey pursuant to Harvey’s request. 85. The testimony of Sheridan that he did not prepare these statements was not credible. I find that Sheridan did prepare the two statements. 86. The statement referred to the blade replacements as “new blades manufactured involving four complete rows. An additional 63 blades were made for rotor at various rows.” No mention was made of welding old roots to new airfoils. 87. On May 16, 1975 Van Rynbach, Harvey, and Coleman set the final prices for the repair work done. The prices were negotiated using the original quote as a base (altering prices if the repairs in fact did not conform to the original plan) and quotations as of the March 20, 1975 telex. 88. Even though it was written in the future tense as if the work were still to be done, a revised field survey was prepared and dated May 14, 1975 with the “Recommended” column reflecting the actual work done rather than the work projected. Item 6 of that revised field survey reflected that Rows 2-5 of the LP ahead part were “to be removed and completely renewed. Necessary blading to be manufactured.” The convention used in numbering the LP rotor blades in the field surveys prepared by Van Rynbach was opposite to the conventions used by all other surveyors and witnesses at the trial so that Rows 2 through 5 in the Van Rynbach surveys correspond to Rows 11 through 15 in other testimony and documents. 89. At the final price-negotiation meeting, no one mentioned anything about welding of new blades onto old roots and the procedure is not mentioned in any of the documents relating to that meeting. 90. On May 17, 1975, Van Rynbach wrote Diana to certify the final field survey including information that the total cost was $337,161, exclusive of any overtime charges, and was agreed to by all parties concerned as fair and reasonable. That letter also mentioned that Todd was to submit separate invoices to owners for ten separate items. This letter is the best expression of detail work contemplated by the contract between Todd and owners. 91. The bulkhead and minor miscellaneous repairs in the engine room necessary in February 1975 would have required about three weeks to complete if there had been no repairs to be carried out on the boilers and turbines. 92. Stylianos Tsaknaris, a Greek national, was the chief engineer on the vessel from March 25 to May 24, 1975 and owners stipulated at trial that he was authorized to place work in hand and to settle prices during that period. Todd was aware of this authorization. 93. Tsaknaris was not an experienced steam turbine engineer. 94. No evidence was presented at trial to show that Tsaknaris knew that LP rotor blades had been welded together. The only testimony tending to show that Tsaknaris had knowledge of such welding was presented by Sheridan and was not credible. 95. Tsaknaris was present at Gonzales on May 7, May 9, and May 13 while the LP turbine rotor was being balanced. On one of those occasions, Tsaknaris made a comment indicating that he was aware of the existence of shrouding on Rows 11-14 of the turbine rotor. 96. Tsaknaris had difficulties with the English language. 97. After the last balancing, Tsaknaris said that he would accept the LP rotor as being balanced. 98. By May 7, 1975 Tsaknaris either knew or should have known in the exercise of reasonable diligence that subcontractors were performing some of the work on the LP rotor. 99. Ault from Todd was present at one of the balancings and did not observe that the blades were welded onto old roots. Olaf Olsen, III, a Germanischer Lloyd surveyor, was present at one of the balancings and was not aware of the fact that the blades were welded to old roots. Van Rynbach was present at one of the balancings and was not aware of the fact that the blades were welded to roots. 100. At the trial, all witnesses except Sheridan and Gonzales personnel denied any knowledge of the fact that old roots were being welded to new blades. 101. McPhate, an engineering professor called to inspect the LP turbine rotor after the river trial casualty in late May, testified that it was not obvious to him that the blades were welded when he looked at the rotor but that someone told him later. 102. Ault testified that he closely inspected the LP rotor to see the blade repair work but failed to see the welding because he wasn’t looking for it. 103. Olsen said that at the first LP balancing he touched the blades and felt that they were jiggling but did not notice any difference in the blades. 104. None of the owners’ representatives or representatives of Todd Shipyards knew that the new airfoils had been welded to old roots on the LP rotor. 105. The LP turbine casing and rotor were installed by Turbine Service sometime between May 14 and May 20, 1975. 106. The lower casing was set in place and the rotor lowered down into it. Clearance measurements were taken. 107. Somewhere close to Rows 13 and 14, rotor blades were touching the neighboring stator blades so that the rotor would not rotate. To correct this condition, Adams of Turbine Service heated the base of the stator blades to a red-hot condition with a welding torch and tapped on the blades with a hammer to straighten them out and allow the rotor to turn freely in the lower casing. 108. When Turbine Service attempted to lower the upper casing down over the guide rods, the casing became jammed and had to be forced down on top of the lower casing. The casings would not fit flush with one another at the parting faces in spite of Turbine Service’s attempts to tighten the bolts down. 109. Ault told his superior at Todd, O’Neil, that there was some difficulty with the reinstallation. Tsaknaris and Bergeron were also aware of the difficulty. 110. O’Neil and Sheridan agreed that heating the casing in the vicinity of the bolts would help tighten down the casing. 111. Tsaknaris was aware that such a procedure was being used and did not attempt to stop it. Tsaknaris did express his unhappiness with the heating procedure to Bergeron but did not order him or anyone else at Todd to stop the job or the reinstallation of the turbine. 112. Ultimately the ahead turbine upper casing was successfully tightened down on top of the lower casing. 113. The LP ahead casing was distorted to some unknown degree at the time of reinstallation in the vessel and before the river trial casualty. 114. The LP astern casing was distorted to some unknown degree prior to the time of reinstallation and before the river trial casualty. 115. Heating of the LP turbine ahead casing did not cause the distortion and out-of-roundness present at the time of reinstallation. 116. Shipowner’s expert surveyor Higgins attempted to make a claim on behalf of the owner against underwriters for the warped casings in June or July of 1975 basing the claim on the theory that it was attributable to an incident of crew negligence that occurred on January 31, 1975, shortly before the vessel entered New Orleans. 117. Higgins changed his view as to the cause of the distortion in the casing after he heard evidence that the repairers had heated the casing in attempting to close the LP turbine. After the river trial casualty Higgins observed and recorded a distortion or warping in the astern casing by taking measurements with the top half placed on top of the bottom half of the casing. 118. On May 29, 1975, after the river trial casualty, Gonzales prepared a drawing of the ahead casing. This showed the lower half casing diameter measured from parting face to parting face (horizontal diameter) .107" shorter than the diameter of the upper half from parting face to parting face. With the casing halves placed on top of one another, the horizontal diameter was less than the vertical diameter by at least .048". 119. Higgins had observed LP rotor clearances being taken in Rotterdam in April of 1973 and considered the clearances to be proper and the casings to be round. 120. The turbines were operated with steam at the dock trial on May 21, 1975, manifesting a noise that was caused by a pinion gear improperly assembled by the crew. This was corrected before the second dock trial. 121. Todd determined that an LP support bearing had “wiped” (a technical term meaning bearing metal had been rubbed away) during the first dock trial and had to remetal and remachine the bearing before the second dock trial. 122. On May .23,1975 a second dock trial was accomplished, starting and stopping both the ahead and astern turbines several times, reaching a maximum RPM of 65 RPM ahead and 20 RPM astern. Total time of the dock trial was 3V2 hours. The turbine itself manifested no noises or irregularities at the second dock trial. Gear noise was heard both ahead and astern but all bearing temperatures were normal. Tsaknaris gave the OK ending the dock trial. 123. Any testimony by Sheridan that the turbine was scraping when it was running on the jacking gear during the second dock trial was not credible. 124. During the second dock trial, the LP rotor turned freely in place without touching any part of the casing or casing blades. 125. The port and starboard clearances between rotor blades and stationary casing parts at the parting faces of the LP ahead turbine were below manufacturer’s recommended clearances. 126. The river trial began on Saturday, May 24, 1975 enroute to a loading berth where the vessel was to pick up cargo. 127. Mussachia was Todd’s representative on board the vessel during the river trial. 128. The river trial began at approximately 9:00 A.M. Speed was steadily increased up to 75 RPM at 9:45 A.M. The engine was run at 80 shaft RPM for approximately 2 hours. The shaft RPM was raised to 85 RPM at about 11:40 A.M. when Mussachia heard a ping, a noise like “a nail thrown against a tin building.” This ping was followed by two more pings, Mussachia gave the order to the chief engineer to stop the engine. The pilot would not let the engines stop immediately because there was no proper anchorage. The pinging noises were followed by “scraping noises” or “groaning.” 129. After the engine was stopped, the turbine was turned by electric motor to avoid distortion due to rotor shaft sag. 130. Prior to the pinging sound there was an increase on the LP astern bearing of 3.1 degrees, over the course of an hour. 131. The turbine did not reach full operating temperature during the river trial. 132. The vessel was anchored 8-10 miles upriver from Todd. The LP rotor bearings and thrust bearings were inspected and found to be wiped. 133. Sheridan was not on board during the river trial but went on board at St. Rose before the vessel was towed back to the yard on Sunday, May 25, 1975. 134. After the river trial casualty Sheridan selected ten blades to be tested by an independent testing laboratory. These ten blades were tested using destructive testing techniques in what is known as a pull test. The first five blades tested broke under tension at 9,500 pounds, 18,000 pounds, 21,-800 pounds, 17,000 pounds and 18,500 pounds. The second set of five blades tested broke at 21,020 pounds, 17,050 pounds, 18,000 pounds, 15,000 pounds and 22,000 pounds. 135. Nine expert witnesses expressed their opinions as to the cause of the river trial casualty. 136. McPhate, the mechanical engineering professor calculated that the maximum total centrifugal force applied to the blades of Row 14 with the shrouding attached would be 3,483 pounds at a turbine speed of 3,950 RPM. He also testified that his force calculation would increase by the square of the increase in speed. • 137. Higgins testified that the maximum turbine speed was 5,000 RPM. I find that the centrifugal force according to McPhate’s calculations would be approximately 5,400 pounds at a maximum speed of 5,000 RPM. 138. The cause of the damage to the LP turbine during the river trial on May 24, 1975 was the failure of a weld in one or two Row 14 rotor blades causing the fracture of the blades at the weld. One or two rotor blades plus attached shrouding tore loose and the loose parts jammed between rotating and stationary parts of the turbine. The turbine was thus thrown out-of-balance. All damage which resulted was caused by the broken rotor blade or blades. 139. The river trial casualty was not caused or aggravated in any way by whatever distortion existed in the LP ahead turbine. 140. Ault prepared a list of LP rotor and casing conditions after the river trial casualty. 141. McPhate also prepared a report of his May 30, 1975 inspection of the LP turbine. 142. Surveys were conducted on June 3, 1975, June 11, 1975 and July 21, 1975, the latter being the final joint survey of the damage from the river trial casualty. 143. Todd requested that Siemens send a representative to aid in the investigation of the casualty and possibly to supervise repairs. Heinz Distelhut of Siemens arrived on May 28 or May 29. 144. The price charged by Siemens for the attendance of its personnel after the river trial casualty was fair and reasonable. 145. Palios arrived in New Orleans with Higgins on June 5, 1975. 146. On June 6, 1975 Siemens telexed Bergeron at Todd that new blades could not be delivered before the middle of September and “welding on blades cannot be accepted by us.” 147. Palios, Higgins and Todd personnel met on June 9, 1975 to discuss problems caused by the river trial casualty. Temporary repairs were contemplated consisting of removing Rows 11-15 of the stator, removing Rows 11-15 of the rotor, balancing the rotor and reinstalling with proper alignments and clearances. Todd estimated that such work would take about 3 weeks. 148. Bergeron and Meghrian, of Todd, assured Higgins and Palios that the vessel’s turbines would be put in order. 149. Bergeron testified that it was Todd’s responsibility to put the turbines back in order after the river trial casualty. 150. The classification society, Germanischer Lloyd of Hamburg, agreed to the temporary repairs specified above. 151. The owners gave Todd authorization to re-open the HP turbine for checking on July 16, 1975. 152. On July 17, 1975, after fly ash blasting, the Siemens’ representative recommended that temporary repairs not be performed on the LP turbine. They recommended a complete overhaul at their own workshop in Germany with complete new blades for the stator and rotor. 153. On July 18, 1975, all parties were notified of a final field survey to take place on July 21, 1975. 154. On July 21, 1975, a field survey was made with Higgins, Harvey, Bergeron, Tsaknaris, O’Neil, Ault, Meghrian, Sheridan, Richter as well as other personnel. The results found were reported in a document dated July 21, 1975. This document accurately reflects the condition of the LP turbine after the river trial casualty. 155. On July 22, 1975 Siemens telexed Todd that the time for manufacturing Rows 1 through 14 stator and rotor blades would be about three months, with one more month being necessary for dismantling and reblading the stator and the rotor. 156. On August 19, 1975 Diana authorized Todd to arrange with owners’ agents Hansen and Tidemann to collect all parts of the LP turbine for shipment to West Germany for repair. This decision was made by the shipowners. 157. The HP turbine was opened as requested by owners and the damage was inspected by owners’ surveyor Higgins. No HP rotor blade clearances were taken at this time. The HP was closed up after an undetermined period of time. In July/August, 1975, neither owners nor Todd was aware of the fact that the rotor blade tip clearances were excessive. 158. Higgins did not check clearances of the HP rotor blades in July of 1975 because Bergeron had told him that the clearances would be furnished to him on both the HP and the LP. Neither Sheridan nor Berger-on showed any clearances of any kind to Higgins before January of 1976. 159. The LP turbine was repaired and reconditioned by Siemens in West Germany with extensive reblading, remachining, re-boring, removal of Row 15 of the rotor and the addition of shrouding strips on several of the rotor blade rows. 160. The LP turbine was shipped back to New Orleans in early January, 1976. 161. Higgins was commissioned by the owners to attend the reinstallation of the LP turbine. Two Siemens personnel were ordered by owners to aid in the installation. 162. Todd made an offer to reinstall the LP turbine for $29,000. 163. Ardell Marine Engineering Corporation of Brooklyn, N. Y. and two New Orleans firms were hired to help reinstall the LP turbine instead of Todd. 164. The KATRIN was removed from the Todd berth to a city pier for reinstallation. 165. Higgins became concerned because of the unavailability of any HP clearances and decided to open the HP turbine to take rotor blade clearances. 166. The HP turbine was opened on January 29, 1976. On February 6, 1976 clearances were taken on the HP rotor blade tips. 167. Higgins had observed clearances being taken in Rotterdam in April 1973 and spot-checked those clearances himself. The increase in rotor blade tip clearances between the Rotterdam inspection and the February, 1976 inspection varied from 0.4 mm to 1.3 mm. The clearances for the stator blades of the HP had increased by only about 0.05 mm over that same period of time. 168. Higgins made a close examination with a magnifying glass, noting that there were marks on the ends of the HP rotor blade tips, not visible to the naked eye, which looked like filing or scratch marks. 169. Higgins discussed this problem with the Siemens engineer, Warnkross. They agreed that the excess clearances would cause decreased efficiency of the HP turbine, increased consumption of fuel oil and an increase in the HP turbine exhaust temperature. 170. It would have taken approximately 130 man hours to file off the tips of the HP rotor blades while spinning the HP rotor in a lathe. 171. Higgins informed Palios that there were excessive HP clearances but together the two of them decided that the HP could be closed and the vessel put into service. 172. The KATRIN took on cargo, leaving New Orleans on March 2, 1976. 173. It was reported to Higgins that the vessel was experiencing excessive condenser top temperatures after leaving New Orleans. Because of this, when he attended the vessel at Birkenhead on June 7, 1976, Higgins checked the HP clearances once again and determined they had not changed since New Orleans. 174. Higgins installed a new, higher range thermometer to the condenser top to allow the crew to be able to monitor the temperatures more closely. 175. On July 10, 1976, 3-5 miles from Cork, the KATRIN was required to reduce speed to 45 shaft RPM because of difficulties with one boiler. This continued for 4 hours. The engine began to vibrate for 3 or 4 minutes and then stopped at 10:00 P.M. The current pulled the vessel toward shore and the captain forced the chief engineer to start the engine again to save vessel and crew. 176. When the engine was re-started, the crew was on deck preparing to abandon ship. 177. The engine was successfully started and run at 45 RPM for 2 hours, moving the ship 10 miles away from the coast. 178. The cause of the Cork casualty was the excessive blade tip clearances of the HP rotor. Excessive steam was allowed to pass through the gap between the rotor blade tips and the casing, the temperature drop across the HP turbine was decreased so that the temperature of the steam exiting the HP turbine was excessive, the steam exiting the LP turbine and entering the condenser was excessively hot, and the condenser top temperatures increased to a dangerous degree. 179. The excessive condenser top temperatures caused unusual expansion in the LP turbine. The turbine could not tolerate such heat and grew to such a degree that it seized. This caused all of the subsequent damage found when the turbines were later opened for inspection. 180. Since it was not economically feasible to repair the KATRIN, it was sold for scrap on February 8, 1977 for a price of $364,800. 181. The value of the vessel at the time of the Cork casualty was $850,000. III. LIABILITY CAUSE OF THE RIVER TRIAL CASUALTY As I have said, the principal issue in this case is the cause of the breakdown of the KATRIN’s LP turbine on May 25, 1975. The ultimate burden of proof is on owners to establish the cause of that breakdown. I have found that a defective weld on one or two LP rotor blades precipitated the casualty. Although repairers have advanced other theories of the cause of the casualty, the preponderance of evidence favors the findings I have made. After the river casualty, one thing was undebatable: two LP rotor blades from Row 14 were broken at the root. Owners’ expert welding witness Arthur Kugler testified that the welds between the new airfoils and the old roots were “non-penetration welds.” This testimony was uncontradicted. In essence, the new airfoil was set down upon the old root and the two pieces were welded together around the four sides of the rectangle, leaving the unreachable mating surfaces in the center of the cross-section unwelded and unconnected. Kugler testified that the gap in the center of this fabrication would tend to grow like an air bubble as the rotor increased speed up to 5,000 RPM. He emphasized that the moving blade would be subjected to cyclical stresses as it rotated, such stresses causing fluttering of the blade and further localized increases in stresses. This is not the first time that a court has faced the problem of a “non-penetration weld.” In a case in the United States Second Circuit Court of Appeals a helicopter crash was allegedly caused by the failure of a steel tube welded to a stabilizer bracket on the helicopter’s tail. The court’s discussion of expert testimony in that case has a familiar ring: The root of a weld is the point at which the surfaces of the two pieces of metal being welded come together, at right angles in the present case. Incomplete root penetration occurs when the weld metal does not sufficiently penetrate this area where the surfaces of the metals are in contact. Holshouser [libelants’ expert witness] testified that incomplete root penetration would result in increased stress concentration at the point where the weld metal is joined to the tubing, near the root of the weld, and would reduce the load which could be transmitted between the horizontal stabilizer bracket and the longeron. [Stewart, another expert witness,] testified in detail to the effect that incomplete root penetration in the weld would cause normal stresses originating in the horizontal stabilizer to be sidetracked through the weld metal to a necessarily weaker and more brittle part of the weld area rather than being passed directly through the root of the weld. Krause v. Sud-Aviation, Societe Nationale de Constructions Aeronautiques, 413 F.2d 428, 430 (2nd Cir. 1969). Owners’ expert witnesses in this case provided a similar explanation of the failure mechanism. Kugler testified that the welds he observed on some of the fabricated blades could not withstand severe stress. Harrison viewed many of the welds of the blades tested after the casualty and condemned all of them he observed as being defective. Higgins made note of the lack of penetration on the welds and explained that the gap in the interior of the weld would act like a fracture under working conditions. After a certain amount of time, the fracture or split would propagate, move into the existing weld and lead to a failure. All of the experts were agreed that the maximum stress concentration occurred at the point where the cross-section was abruptly changed, that is, where the root left off and the airfoil began. That is where the blades were welded by repairers. Of course, an adequate and consistent explanation of how an accident may have occurred is not evidence that it in fact occurred that way. What evidence supports owners’ hypothesis? Some major confirming evidence is provided by the “ear-witness” account of Todd’s employee Mussachia. His description of the three “pings” followed by a scraping and rubbing conforms to the hypothesis that one or more rotor blades broke at the weld. As described by various experts, if a rotor blade broke, it would fly off and hit the easing or neighboring blades at a very high speed. This could have caused the “ping” that Mussachia heard. Since there were two blades and pieces of shrouding attached to those blades that were found to be ripped, off after the casualty, it is also consistent that Mussachia heard more than one ping. Higgins and Harvey both testified that pieces of blade or shrouding spinning around in the LP turbine would most likely become jammed between moving and stationary parts, an occurrence that would very likely give rise to scraping or groaning noises that Mussachia heard. Expert witnesses also explained that when one or two rotor blades and shrouding break loose, an LP turbine is thrown out of balance so severely that it begins to rotate in an eccentric pattern, thereby coming in contact with the casing and other stationary parts. This is a further explanation for the rubbing and scraping sounds. After the river trial casualty, Turbine Service sent ten sample blades to a testing laboratory to be subjected to a pull test. All of the blades broke at the welds. One blade broke at an applied force of 9,500 pounds, and the balance broke at an applied force of 15,000 pounds or more. Turbine Service’s expert witness McPhate calculated that the centrifugal force that would be applied to a Row 14 rotor blade at a speed of 3,950 RPM would be 3,483 pounds. Static testing is not a final indicator of whether or not a part will stand up in service. Numerous cases support this assertion. In the famous case of Sieracki v. Seas Shipping Company, 149 F.2d 98 (3rd Cir. 1945) a 10-ton boom on a vessel was tested by lifting a dead weight of I2V2 tons before turning the vessel over to the shipowner. Later, the boom broke under a weight of 8.2 tons or less, causing injury to a seaman (not to mention the injuries it caused to courts later faced with cases involving “Sieracki seamen”). The court found that other and more searching tests could have been made and should have been made in the exercise of reasonable care. The Fifth Circuit has more recently upheld a trial court’s conclusion that static testing of a chain hoist at loads of one and one-half times its rated capacity was not sufficient to reveal a defective weld in a link that failed. Watz v. Zapata Off-Shore Co., 431 F.2d 100, 114-115 (5th Cir. 1970). Owners’ counsel objected that the turbine’s operating speed was higher than 3,950 RPM and elicited from McPhate the concession that the centrifugal force would increase with the square of the increase in speed above 3,950 pounds. Nonetheless, using all Professor McPhate’s other assumptions, the maximum centrifugal force at the maximum turbine speed of 5,000 RPM would be 5,400 pounds. Repairers have asked me to join them in their inference that since the maximum centrifugal force was no more than 60% of the breaking force necessary to fracture the weakest of the ten test blades, the blade welds could not have failed in service on the river casualty. It should be noted that Professor McPhate did not testify that this inference was supportable. He merely said 9,500 lbs. is more than 4,000 lbs. To draw this inference, many hurdles must be leaped. First of all, the sampling procedures of the pull-tests were completely unknown. Turbine Service picked ten blades to test them. No one else saw them or participated in choosing them, and no other party or representative was present at the test. Testimony at trial indicated that the jaws used in the pull-test to hold the test specimens were probably not properly designed for this type of blade, thereby giving inconclusive results. Furthermore, the fact that ten blades might break at a certain point does not prove that two blades of the remaining ninety would not break at a much lower point. No evidence showing the statistical likelihood of this happening was presented. Even if all of these hurdles were cleared, there is one remaining fact that has caused me to refuse to draw the inference pressed upon me by repairers. Kugler testified that the LP blades rotating at a high speed were subject to cyclic stresses. These loads may be less than the static loads applied to a part in a pull-test. Nevertheless, particularly when a part has a flaw such as insufficient root penetration, the repeated application of such stresses may be severe enough to cause a fracture. I am convinced by a preponderance of the evidence that that is what happened in this case. In accident reconstruction cases a court is sometimes fortunate enough to be faced with damage symptoms that allow only one conclusion as to their cause. This case was not so easy. All of the damage that was observed could have been caused according to any one of three separate theories advanced during the litigation. For instance, the groove marks on the inside of one of the spacer rings could have been caused by the piece of broken rotor blade flying around inside the turbine or it could have been caused by expanding rotor parts coming in contact with the out-of-round casing and spacer ring or it could have been caused by a stator blade breaking loose and being dragged across the spacer ring by a moving part. Almost all of the observable evidence was susceptible to reasonable inferential analysis that would lead back to any of the three hypothetica